Lawyers: Supreme Court faces perception crisis

As the Judicial Service Commission begins investigating the bribery allegation against a judge, the Supreme Court is facing a perceptions crisis.

Senior counsel and Law Society of Kenya Chairman Eric Mutua said thorough investigations into the claim and resignation of the judge were the first step to redeem the ‘damaged reputation’ of the Judiciary.

Mutua and LSK Secretary Apollo Mboya said the fact that there was an investigation against a senior judge of the highest court in the land “does not inspire confidence” to the public that the Judiciary was beyond reproach.

“If the committee says he has a case to answer and the JSC adopts that position and sends the name to the President, the judge will be suspended and a tribunal formed to investigate him. Once you have a tribunal investigating a judge of the Supreme Court, there is a strong likelihood that that court is without credibility,” said Mutua.

The LSK bosses said the corruption allegations and the claim that the money was shared out among a majority in the bench had given fresh impetus in their push to have the court reconstituted.

But if the committee exonerates the judge and the JSC adopts that verdict to clear the judge, then, well, Mboya said, “...it doesn’t make a difference”.

“The questions about integrity will not go away if he is cleared. They will still linger. This is a perception issue that we are dealing with and the public will want to know whether it was a fair hearing. Whatever the outcome, it won’t make a difference” said Mboya.

Completely disfigured

The LSK has filed a petition for the disbandment of the Supreme Court bench and the new allegations, the LSK bosses said, added weight in their public battle to reconstitute the highest court in the land.

“This matter does not just affect one judge of the bench because for you to influence a decision, you must have a majority on your side. As you can see, if this is proven to be true, it will vindicate our position that the Supreme Court is completely disfigured,” said Mboya.

Senior Counsel Ahmednassir Abdullahi said Tunoi would be better off quitting the Judiciary ‘on principle’. “I think where this matter has reached, if he is a sensible man, and I think he is very sensible, Tunoi should just throw in the towel and resign. If you look at the gravity of the accusations and I am not saying they are true, he should not wait to be dragged through a tribunal,” said Ahmednassir. But if the committee finds there’s some truth in the bribery allegations, resignation will not save Tunoi from being charged in court, Ahmednassir said.

Probing powers

Ahmednassir said the spotlight should also turn on Nairobi Governor Evans Kidero, who is said to have given the bribe.

“If these allegations are found to be true, then it is not just Tunoi. Even Kidero would be equally guilty. We are just talking about the alleged receiver of the bribe yet the alleged giver is hiding in a bunker somewhere away from public scrutiny,” Ahmednassir said.

Shakeel Shabbir (Kisumu East) said Tunoi and everyone else mentioned in the scandal has to quit.

“The accusations are damning. You cannot fight the claims while still sitting in office because we know that the Judiciary has to be beyond reproach,” said Shabbir.

The lawmaker said the judge should not say he is being targeted because the allegations were too grave. “This thing is big. The President should also take it seriously,” said Shabbir.

But even with that, the lawyers warned that if the judge resigns, the matter will not end there. They said it will be for the Director of Public Prosecutions Keriako Tobiko to make a determination whether the criminal element in the case will be pursued.

Lawyer Gitobu Imanyara however dismissed the role of the committee, saying it does not have investigatory powers and cannot assume the role of a tribunal.

“The key thing is that the entire court now faces perception questions which dent the public confidence,” he said.