A recent twitter spat between Chief Justice Willy Mutunga and former Chief Registrar of the Judiciary Gladys Shollei regarding the controversial purchase of a Sh310 million official residence for the Chief Justice has rekindled Judiciary woes that saw her sacked and confidence ratings in the third arm of government plummet.
It also lays bare the application of double standards in Kenya’s justice system. Curiuously Mrs Shollei is as free as a bird even after a plethora of damning charges of impropriety that culminated into loss of billions of shillings in the Judiciary. The Office of the Director of Prosecutions has not taken any action, or indicated intention to, even after the Court of Appeal dismissed Mrs Shollei’s petition of wrongful dismissal.
Until August 17 2013 when the media broke the news of the Judicial Service Commission’s impending discussion of the conduct of the then Chief Registrar, all seemed rosy in the Judiciary. JSC and the Judiciary at large had displayed a united front, successfully (allegedly) rolling out programme after another, reforming and regaining the public’s confidence in the otherwise beleaguered Judiciary.
The new Judiciary’s transformation agenda had been implemented with zeal, with Kenyans being treated to the sense of a remarkably busy institution, where every element in the team knew and responded to its calling with precision. No one would have anticipated the simmering disquiet in the JSC until it eventually boiled to the fore.
If the news of Mrs Shollei’s conduct being under scrutiny by the JSC came as a surprise to the members of the public, what was to follow was even more exciting. Gladys Shollei who was reported to be on an official trip in Canada sent a press release on the same Saturday to the media denying that she was going to be discussed.
“I note with concern a headline story in the Saturday Nation dated 17th August 2013 which purports to bring the office of the Chief Registrar of the Judiciary and the senior Judiciary management into disrepute.
“I would like to clarify that the Judicial Service Commission is at a retreat and there is no ongoing probe on any issue. The agenda of the retreat is to deliberate on the workings of the Commission,” Mrs Shollei noted in her press release.
But true to the daily’s reporting, the JSC meeting in Mombasa on August 18, 2013 did not only discuss her, it sanctioned an investigation into complaints over her running of the judiciary. JSC also recommended sending her on a two-week forced leave to facilitate the investigations.
On August 19, 2013, the JSC with the Chief Justice Willy Mutunga who is also the commission’s chair in attendance unanimously passed the resolution to have the Chief Registrar probed for the complaints lodged against her.
“All the nine (9) commissioners agreed that: Two committees of the JSC responsible for Finance and Administration and Human Resource Management will inquire into various allegations of malpractices touching on but not limited to the process of procurement, employment, administration, finance and corporate governance of the Judiciary… and open up the inquiry to any person within the Judiciary and outside it, who might have issues to raise,” the CJ announced late evening on the stairs of the Supreme Court after the marathon meeting of the JSC.
However, in an unprecedented fashion, hardly had the CJ and the JSC commissioners disappeared from the background after announcing the JSC’s recommendations than the suspended Chief Registrar with a crowd of judiciary workers reportedly from her department in tow stormed the same venue and used the same podium to give her press conference in which she denounced, in strong language bordering on blackmail, the resolutions of the commission.
“There is no statutory or regulatory provision for sending the Chief Registrar on compulsory leave. I understand that the decision was not unanimous (5-4). Some commissioners including the Attorney General and Justice Isaac Lenaola were absent. I can guess those commissioners who supported the resolution and their reasons. But that is for another day,” Shollei thundered.
It must be noted that the split of 5-4 was only on whether Shollei should be sent on forced leave to pave way for investigations. The decision to have her probed was unanimous.
“I have built my reputation over many years as an honest and hardworking woman in public service. This was until the JSC made the unfortunate, irregular, unprocedural and irresponsible decision. I therefore welcome the probe and will personally work on restoring my reputation, and the integrity of the Judiciary, and that of the professional management team implementing the transformation agenda of the Judiciary,” she added.
What was surprising and which cemented fears that Mrs Shollei may have been very powerful in the judiciary was the fact that both the press statements, by the CJ and the suspended Chief Registrar were dispatched to the media by the judiciary’s public communication department despite the fact Shollei had been suspended.
Same evening, in a fashionable Kenyan style of “we are being finished”, a section of leaders from Mrs Shollei’s larger Kalenjin community came out with a hurried press conference to defend one of their own. Led by Senator Kipchumba Murkomen of Elgeyo Marakwet, they argued it was all politics of succession in the judiciary given that CJ’s unredeemable term was nearing an end.
Murkomen argued that Mrs Shollei was a strong candidate for the position of CJ when that office falls vacant at the expiry of Dr Mutunga’s tenure and forces that were angling for the same position were edging her out.
That argument did not resonate with many. How, observers asked, could Shellei be a front-runner for the office of CJ when she could not make it for that of judge of the Court of Appeal? Miss Shollei interviewed unsuccessfully with the JSC for the position of Court of Appeal Justice. Sources intimate that it is the JSC members that advised her to apply for the Chief Registrar’s position given her demonstrated skills in IT, to help automate and digitize operations of the judiciary.
Events of Shollei’s suspension and impending investigation into her conduct for the two years as Chief Registrar and therefore chief accounting officer of the Judiciary took a dramatic turn when Parliament waded into the matter. A National Assembly Committee on Justice and Legal Affairs chaired by MP Samuel Chepkonga summoned the JSC and the suspended Chief Registrar to appear before it to shed light on circumstances leading to resolutions taken by the commission on Mrs Shollei.
This sparked off arguments as to whether a parliamentary committee can summon the JSC in view of the tenets of separation of power among the three arms of government (Executive, Legislature and Judiciary) and whether it would not amount to undermining the independence of the judiciary. The JSC elected not to appear before Chepkonga’s committee.
Surprisingly, Mrs Shollei appeared before the parliamentary committee ahead of the JSC, which was the accuser. In the absence of the allegations before the parliamentary committee for which JSC reached the resolutions to suspend and investigate her, what was the Chief Registrar responding to? Those allegations, analysts argued, could only be given to the parliamentary committee by the JSC and therefore it was the JSC that should have appeared before the committee first. With JSC refusing to appear, Shollei had no business presenting herself before the committee of the House.
People also wondered what was so special about Shollei’s case that Parliament had to intervene when many top parastatal bosses had been inexplicably sacked without being given the opportunity to defend themselves yet Parliament never blinked.
Ms Eva Oduor, Managing Director Kenya Bureau Of Standards had a few weeks earlier been shown the door over alleged gross misconduct and was replaced by Mr Charles Gichahi. This had come hot on the heels of the dismissal of Mr Selest Kilinda of Kenya Pipeline Corporation. Labour Secretary, Kazungu Kambi had also earlier fired and ordered Tom Odongo, the National Social Security Fund (NSSF) boss to immediately vacate office. The minister also replaced Odongo with his own tribesman. No parliamentary commission raised an eyebrow over these cases.
For a quarrel with a fellow woman at a market place, in the words of her lawyer, the renowned John Khaminwa, former and first woman Deputy Chief Justice, Nancy Baraza faced a tribunal that later recommended her removal from office, setting high standards in the conduct of judicial officers.
The finer details, for which Shollei was suspended, investigated and, on October 18 2013, dismissed by the JSC whose policies and blue print as its secretary and Judiciary’s chief accounting officer she had been implementing gradually emerged in the protracted petition against the decision to sack her. They were as tantalizing as they were confounding, revealing a trail of rot that should never have occurred right in the heart of the country’s justice system. It also revealed the bottomless pockets of the office of the Chief Registrar during Mrs Shollei’s tenure that swallowed in the estimates of Sh2billion with little to show for it.
It took two months of high-octane drama in which emails to official communication of the CJ were hacked into before the JSC took the decisive step to fire Shollei. In a statement, the CJ said the former Chief Registrar had admitted to 33 allegations in which Sh1.7 billion was at risk or had been lost, and denied another 38 allegations in which Sh250 million was lost. Mutunga also said that her responses to allegations involving Sh361 million were “mixed, flippant and flimsy.”
The JSC then invited the Ethics and Anti-Corruption Commission (EACC) to investigate corruption allegations in the Judiciary. A year on, no progress has been reported by the Anti-Corruption body on the investigations in the Judiciary. Sources indicate the file is ready but due to a confluence of interests in the matter, it is collecting dust on the shelves at Integrity Centre.
When he appeared before the Public Accounts Committee (PAC) last June, former chair of JSC’s Finance Committee Ahmednasir Abdullahi alluded to Shollei’s change of character immediately the Jubilee Coalition took over the reins of power.
“She grew horns once this government came into power and she created an impression that she is even bigger than the Judicial Service Commission. We employed a very obedient employee in 2010 but she suddenly became a monster under this administration,” Senior Counsel Abdullahi told PAC.
In regard to the controversial purchase of the official residence of the CJ, Mr Abdullahi told the Ababu Namwamba-led committee that the former Chief Registrar overshot the budget on her own motion before she ran back to the JSC for the way forward. He also doubted whether the whole amount went into the purchase of the house.
“She overshot the budget of Sh200 million, entered into a contract for Sh310 million then came to us and said ‘you know, the Sh200 million was not enough, I have already entered into a contract, what do we do,” he said.
It now turns out Mrs Shollei may have bought hot air for Sh310 million as it emerges the land on which the house in question lies has got no title and the property is under a bank charge. Speaking to The Nairobi Law Monthly, an officer in the CJ’s communication office said the office of the Chief Registrar has got no document to prove purchase of the said property and if indeed the seller, Johnston Nduya Muthama Holdings, handed over the property, then the documents are with the former Chief Registrar.
The CJ’s communication office says a lot of altering of documents in relation to procurement was done in the period intervening the sacking of Mrs Shollei. It also alleges Mrs Shollei left with so many documents that should be in the custody of the office of the Chief Registrar. Indeed, during the online quarrel with the CJ, Shollei attached numerous documents in an effort to prove her side of the story leaving those who followed their exchanges wondering how the documents could still be in her possession.
In yet another serious breach of regulation and procedure, Shollei’s personal lawyer, CJ’s communication office says, was behind the multi-million transactions undertaken by the Judiciary and initiated by her despite the fact that he was not one of the advocates in the panel listed to provide services to the Judiciary. Who did her lawyer negotiate his terms of service with and how was he paid?
Gladys Shollei has all through protested her innocence. It is, however, difficult to take her protestations at face value. Allegations leading into her sacking from the Judiciary touch on billions of of shillings of taxpayers’ money. It is a high time a competent court looked into this matter to establish the truth. Focus is now on the two bodies with the mandate to trigger this process, EACC and the DPP’s office. That so far the ball has not been set rolling is shocking.
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