Wednesday, June 29, 2016

How business is done

One of the strangest things happened without much fanfare yesterday: the tribunal appointed to investigate the conduct of Philip Tunoi, retired judge of the Supreme Court, wound up its sittings arguing that with the retirement of the judge, it had become "functus officio", that is, the retirement of the judge no longer required the tribunal to continue to investigate his conduct because he was no longer a judge. The winding up of the sittings or the reasons for the winding up are not the strange part; the strange part is how the whole thing unfolded in the first place.

The basis for the appointment of the tribunal was an accusation by a journalist that he had been denied his due in a scheme to pervert the course of justice. The judge's accuser claimed that he had acted as an intermediary between the newly-elected governor of Nairobi City County and the judge in a scheme to bribe the judge to guarantee a favourable ruling for the governor in an election petition filed by the governor's principal rival in the 2013 general election. The bribe has never been proven.

The saga begins in a strange way. The accuser goes to a contact he knows at the Directorate of Criminal Investigations and asks for help to get his cut of the bribe from the judge. He informs the CID man that the judge has for months been dodging him, fobbing him off with twenty thousand shillings. The CID man, for some reason, sends the man to his superior who, rather than open a criminal investigation into the alleged bribe, asked the man to find a lawyer to help him swear out an affidavit laying out the sum and substance of his accusations. The lawyer he settled on happened to be the lawyer for the Judicial Service Commission, which had already asked the judge to retire.

The man gave the affidavit to the Chief Justice some time in 2014. Why he gave it to the Chief Justice remains a mystery. The Chief Justice on his part decided to "investigate" the allegations using the administrative machinery of the Judiciary. The man grew impatient as the judge didn't seem to be paying a price for allegedly cheating him out of his cut. So he went to the press with a copy of the affidavit, forcing the Chief Justice's hand who in turn announced the appointment of a team to investigate the affidavit and make recommendations. The team recommended the appointment of a tribunal to investigate the judge. The recommendations were forwarded to the president.

The president blew hot ad cold on the appointment of the tribunal, eventually being forced to do so by a sustained bad press over the whole affair. The rest, they say, is history, for while the tribunal sat, the Court of Appeal ruled that the judge should have retired at the age of seventy years and the Supreme Court, in a fit of madness, is unable to do anything about it because the Chief Justice has retired too, as has the Deputy Chief Justice, and two members of the Supreme Court have recused themselves from hearing the matter and, therefore, the Supreme Court has no quorum to hear the matter.

I find it strange, though, that the man who accused the judge of withholding his cut of the alleged two million dollar bribe was not charged by the Office of the Director of Public Prosecutions with his part in the alleged crime. He has vanished from the newspaper pages, TV studios and blog posts. The whole saga has been about the judge and whether or not he received a bribe from a governor. The Chief Justice behaved strangely, too. Even with his notorious open door policy, how did he come t receive the affidavit and to whom did he share it? Was he so hell bent in forcing the judge out of office on account o his age that he would enter into a scheme to force him out on account of alleged bribe-taking? The judge himself created the circumstances that exposed him to this state of affairs by engaging with both the governor and his accuser in the months before the accusation.

With the winding up of the sittings of the tribunal, and the notorious secrecy instincts of the presidency, it is almost certain that we will never know the truth of what really happened between the three of them. That will be in keeping with the way Kenya does business, which is, really, how the whole world does business.

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