Shame Upon Supreme Court

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By Kenya Confidential Legal Affairs Editor, Nairobi March 10, 2019

A petition likely to shake the foundation of Kenya’s colourless Supreme Court has been filed before the Judicial Service Commission (JSC) seeking the removal of four Supreme Court Judges over bribery allegations in the Wajir gubernatorial petition.

Four of Kenya’s top seven judges could be forced to defend themselves over corruption and unprofessional allegations filed against them at the Judicial Service Commission The four Supreme Court Judges named in the petition are Mohamed K. Ibrahim, Jackton B. Ojwang, Smokin C. Wanjala and Njoki S. Ndung’u.

The four judges are being accused of;

  • Gross misconduct following; their decision to uphold the election of Wajir Governor Mohamed Abdi
  • Failure to respect the law or to be able to imagine or perceive accurately the matters at issue in Petition No. 7 of 2018 triggers concerns about their integrity in discharge of judicial functions, undermines the rule of law and the strength of our democratic institutions.
  • Justices Smokin Wanjala and Njoki Ndung’u went against all known principles of judicial independence and conduct, because they were in constant communication with Governor Abdi while the case was still pending before the court,
  • There were corrupt dealings between the appellant (Mohamed Abdi), through others, and some judges.
  • The judges 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 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 petition filed through 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 petitioners allege that sometime in September 2018, Wanjala drove to Jomo Kenyatta International Airport where an exchange of an equivalent of Ksh 75 million in dollars was passed on to him by a lawyer at the parking lot. The dollar currenct reminds Kenyans of the case of Supreme Court  Judge Justice Philip Tunoi alleged to have been bribed with Ksh 200 million dollars by former Nairobi Governor Evans Kidero.

Sheikh Yunis drove to JKIA in a Toyota Landcruiser V8 vehicle with a box packed with Ksh.75 million [in dollar currency] in the vehicle trunk. A lawyer drove to JKIA in a Toyota Land Cruiser V8 vehicle with a box packed with Ksh 75 million, in dollars, in the vehicle trunk,” the petition states.

At the airport, 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 this year. A law firm was reportedly asked to sell a property urgently to raise Ksh 60 million. The petitioners allege that the proceeds from the sale was topped up to Ksh 300 million and transferred by the law firm to four different bank accounts held at a local Islamic bank.

The High Court, on January 12, 2018, nullified Governor Abdi’s election following a petition by Ahmed Abdullahi Mohamad on September 6, 2017 challenging the results. . Abdi was dissatisfied with the judgment and he moved to the Court of Appeal where his case was dismissed on April 20, 2018.

The Wajir county Governor, once again dissatisfied with the Appellate court’s judgment, filed an appeal before the Supreme Court on May 7, 2018 where his election was in February upheld. Thereafter communication was established with  two judges in order to channel bribes for a positive and intended outcome in Mohamed Abdi’s favour, the petitioners claim

A Chief Administrative Secretary is reported to have directly initiated communication with one of the judges using a personal mobile line. At the same time, the one MP, using his past personal relations with another judge, is alleged to have also made direct contact.

Consequently, the decision of the Supreme Court was leaked to bloggers allied to the appellant (Governor Abdi) who posted the judgment even before the judges walked into the Supreme Court to deliver judgment,” claims the petition.

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 Ksh 15 million allegedly took place on February 11 at between 3pm and 4pm at a local bank in Eastleigh. The petition further details a transaction in which money was transferred to a law firm from a local bank with links to Wajir County — with a substantial amount later withdrawn for purposes of treating the judges and buying their influence.

The fact that lawyers and their firms are involved in corruption in Kenya is an open secret. Lawyers bribe magistrates and judges, offer their companies to hide money stolen from public institutions by the corrupt and shamefully offer money laundering opportunities globally. That is the reason President Uhuru Kenyatta directed Attorney General Paul Kihara Kariuki to come up with a law under which lawyers’ client confidentiality would not be used to hide stolen money.

“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,” states the petition.

Further allegations are that a person connected to the saga has been trying to tamper with call records and erase the trail of communication at Safaricom that link them to the judges and has been to the VIP centre of the mobile telephony company more than 40 times between mid-January and end-February.

Chief Justice Maraga, who also chairs the  JSC, while presiding over the launch of the State of the Judiciary report a fortnight ago, called on Nairobi lawyer Ahamednasir Abdullahi to immediately file the petition containing his allegations against the judges.

Said Maraga “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”.

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. The petition was filed 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.