Four of Kenya’s top seven judges could be forced to defend themselves over damaging allegations of corruption filed against them at the Judicial Service Commission (JSC).
Through the law firm of Nchogu, Omwanza & Nyasimi Advocates, the losing petitioners in the Wajir gubernatorial election petition — former governor Ahmed Abdullahi and Ahmed Muhumed Abdi — have asked JSC to initiate investigations into the conduct of Supreme Court judges Jackton Ojwang’,
Mohamed Ibrahim, Smokin Wanjala and Njoki Ndung’u, with a view to removing them from office for reported gross misconduct — if found culpable.
The petition, which the Sunday Nation has seen, was filed on Friday evening after weeks of swirling accusations.
On Saturday, it was not clear if the judges had been served with the petition but the filing is just the first step in the process and JSC will have to decide whether the allegations have any substance before giving the judges the chance to respond.
If deemed serious enough, a recommendation will be made to the President to form a tribunal that will test the evidence presented before coming up with a decision on whether or not a judge in questions should be removed.
This means that despite the JSC receiving the petition on Friday, the detailed accusations will have to be scrutinised first.
The four judges the petitioners want removed formed the majority that upheld the election of Wajir governor Mohamed Abdi.
Chief Justice David Maraga and Justice Isaac Lenaola returned separate dissenting judgments. Deputy Chief Justice Philomena Mwilu did not participate in the election petition.
Two of the four judges are specifically being accused of engaging in improper contacts with agents of the governor with the intention of receiving bribes in tens of millions of shillings to influence the outcome of the appeal by the Wajir County chief whose election had earlier been nullified by the High Court and the ruling upheld by the Court of Appeal.
In claims that mirror the 2016 bribery allegations against retired Supreme Court judge Justice Philip Tunoi — whose conduct a tribunal was set up to investigate after it was alleged he received Sh200 million from then Nairobi Governor Evans Kidero to influence an election case —
the petitioners in the latest complaint give what they allege are graphic details of how more than Sh390 million was transferred to people linked to some of the judges.
The petition claims that a sitting MP and a chief administrative secretary from northern Kenya were involved in the scheme. Working with them, the petition claims, were two law firms.
“Through the (MP and CAS, names withheld), communication/contact was established with (the two judges, names withheld) with a view to channel bribes for a positive and intended outcome in Mohamed Abdi’s favour,” the petition reads.
The CAS is said to have directly initiated communication with one of the judges using a personal mobile line. At the same time, the MP, using his past personal relations with another judge, is alleged to have also made direct contact.
“As a result of these improper communications, the decision of the Supreme Court leaked and bloggers allied to/working for the appellant (Governor Abdi) were posting the result/outcome before the judges walked into the Supreme Court …to deliver judgment,” the petition claims.
The petitioners allege that sometime in September 2018, one of the judges drove to Jomo Kenyatta International Airport where an exchange of an equivalent of Sh75 million in dollars was passed on to him by a lawyer at the parking lot.
“(The lawyer, name witheld) drove to JKIA in a Toyota Land Cruiser V8 vehicle with a box packed with Sh75 million (in dollars) in the vehicle trunk,” the petition states.
At the airport, it is alleged that the lawyer pulled up alongside a Prado with tinted windows which was carrying the judge who sent his driver to pick the box from the lawyer.
Another transaction is alleged to have taken place in early January. A law firm was reportedly asked to sell a property urgently to raise Sh60 million.
The petitioners allege that the proceeds from the sale was topped up to Sh300 million and transferred by the law firm to four different bank accounts held at a local Islamic bank.
These monies, the petition claims, were eventually given to the MP who “on or about the week of 4th – 7th February 2019” ensured it reached some judges.
Another transaction involving Sh15 million is alleged to have taken place on February 11 at between 3pm and 4pm at a local bank in Eastleigh.
The petition further details a transaction at a local bank where money was transferred to a law firm with links to Wajir County — with a “substantial amount” later withdrawn “for purposes of treating the judges and buying their influence”.
It is also alleged that a person connected to the saga has been trying to tamper with call records and erase the trail of communication that link them to the judges and has been to the VIP centre of a telecommunications company “more than 40 times between mid-January and end-February”.
An outspoken close ally of President Uhuru Kenyatta has also been mentioned along those who facilitated the transfer of the alleged bribes. The man is said to have travelled to Naivasha where he met and handed money to influence the decision.
The petition was filed exactly three weeks after the Supreme Court delivered its much-delayed judgment. The delay had been a contentious point with lawyers for the losing petitioners alleging foul play.
Wajir governor Abdi filed his appeal on May 7, 2018 and it took more than 10 months to be determined. An interlocutory application by the governor to be allowed to table fresh evidence on his academic papers, which had been one of the grounds the High Court had nullified his election, took three months to be determined.
The Court of Appeal upheld the High Court ruling based on the same reason that the governor did not possess a university degree, which is a basic requirement for gubernatorial candidates.
After the ruling, there were murmurs of discontent especially from the losing petitioners’ lawyers. Specifically, lawyer Ahmednasir Abdullahi in a tweet questioned the decision by Justice Mohamed Ibrahim to reportedly change his mind just hours to the judgment being delivered, thus tilting the balance towards Governor Abdi.
As a result of the tweet, Justice Ibrahim has served Mr Abdullahi with a demand letter to withdraw and apologise failure to which he would take legal action against the lawyer for defamation.
“The perverse outcome intended by the majority by mere subterfuge of jurisdictional misinterpretation, resulted in the ‘election’ of a candidate who, by a tonne of incontrovertible evidence is not qualified to be governor.
A court that hammers, twists and bends the law to bury what is as plain as daylight is a forum of injustice, a threat to liberty and an enemy of the constitution,” the petition states.
As soon as the murmurs about the alleged misconduct by Supreme Court judges began to swirl, Chief Justice Maraga, while presiding over the launch of the State of the Judiciary report, called on Mr Abdullahi to immediately file the petition containing his allegations against the judges.
“In the last few weeks, senior counsel Ahmednasir Abdullahi publicly claimed that some judges of the Supreme Court were bribed to decide the Wajir gubernatorial petition in the way that they did.
I challenge him to file a petition and assure him that the Judicial Service Commission will take stern and appropriate action against those judges if given the evidence of alleged corruption,” the Chief Justice said.
Lawyers for governor Abdi have since the day the judgment was delivered on February 15 maintained that there was no bribery and the allegations by the governor’s rivals were a case of sour grapes.
“Mr Abdullahi has formed a habit of complaining every time a matter does not go his way. The allegations on bribery have no foundation.
If there was bribery he should have petitioned the JSC earlier before the judgment was delivered. But he is complaining because he lost fair and square,” lawyer Nelson Havi who was in Governor Abdi’s legal team said.
It will be interesting to see how JSC will handle the petition. Chief Justice Maraga, as chairman of JSC, will be approaching the petition as an interested party having sat in the bench whose integrity is now being questioned.
Similarly, Prof Tom Ojienda who also sits in the commission represented the Wajir governor in the petition, which makes him an interested party.
Deputy Chief Justice Philomena Mwilu was not part of the bench but is facing separate allegations in court related to her personal financial transactions.
In the petition which is now before the JSC, the petitioners also accuse the court of treating Governor Abdi differently from other parties – he was granted leave to table new evidence in an appeal against the Supreme Court’s established tradition, which evidence was “completely disregarded.”
At the same time the governor’s political rivals were denied the opportunity to cross examine him based on the new evidence he brought.
Other accusations against the judges are that they arrived at their judgment by gross intellectual dishonesty and judicial craft of interpretation, partial analysis of the matters before court and failure to take into account evidence placed before the court, among others.
“The petitioner’s reading of the judgement of the above judges points to a pre-ordained outcome in the appellant’s favour and the use of judicial craft and intellectual dishonesty to arrive at it,” the petitioners assert.
The petition comes at time JSC is currently investigating the conduct of 12 judges, including two from the Supreme Court.
The matter of the 12 judges came up during the JSC retreat on Thursday though details of the meeting were not forthcoming.
The new shocking allegations will once again put the nation’s apex court in the spotlight as the Supreme Court battles to win public confidence amidst the chaos that have rocked it since its establishment
By Daily Nation