Jared Juma Salient features of the explosive Affidavit sworn by Geoffrey Kiplagat, the accuser of Supreme Court Judge Philip Tunoi in the Sh200 million bribery saga, brings back memories of the con game in the corridors of justice popular in the old Judiciary. The same could still be going on despite the many reforms Chief Justice Willy Mutunga has tried to infuse in the systems management of the institution. Considering the rampant claims of bribery and justice brokerage claims that had become common with the Kenyan courts in the pre-new Constitution era, one of the following narratives came out; that parties could come and argue so much about the entire suit and fix a judgment date, but with no side sure on how the judge would tilt his ruling or judgment, they would both hope for the best as they prepared for the worst. The era of judicial activism had then set in. A court clerk attached to the judge and familiar with the pending outcome would then approach one of the parties in whose favour the judgment has been prepared and posture as an accessory of the Judge – it would be the party whose argument the judge had upheld – and the clerk would tell them that “the judge is saying you are so quiet since you made your last submission” in the matter. The approached party, unaware that the judge has ruled in their favour and is only a matter of time before the judgment is read, would take cue and start looking for “something” to give the clerk so as to help “talk” to the Judge. When the matter was eventually read in favour of the party, they would believe they had successfully bought the judgment when, in fact, they would have been mere victims of their own circumstances. In such a matter, the clerk eats minus making any more disclosures lest the clueless, even honest judge gets wind of the fact that a cunning clerk used his name to enrich himself. A game of chance So, in all these underhand developments, there would be a party who would be quietly making himself (or herself) rich. The judge would not know that money had changed hands behind his back since as a public officer, he had dispensed with his duties. But that is not always the case. Some judges and magistrates play along and benefit from the subversion of justice. It is just a way of looking at the case of Justice Philip Tunoi of the Supreme Court and Geoffrey Kiplagat. One of the facts that stand out in the affidavit calls for a scrutiny of how the Supreme Court works, and how the judges arrive at their judgments. While explaining how the Raila Odinga petition was ruled, Nairobi lawyer Isaiah Munje quotes Chief Justice Dr Willy Mutunga: “The Judges will first hear the matter in an open court then each party will retire with the bundle of evidence of argument to their chambers and independently arrive at a position. After each judge forms an opinion, then they would all conference around the matter and they would each bring their position in the case conference session. “But if it were to happen that the matter had judges arriving with divergent opinion, then a vote will be taken and one position that has been favoured with simple majority of the bench will be adopted as the final way of ruling the case. The dissenting judges will then be at liberty to write their dissenting opinion, which will also be read but the substance will be carried as the main judgment.” Going by the above, it is easier to question why the Kiplagat affidavit says that the judge postponed the meeting at least three times. In fact, in paragraph 16 of the detailed affidavit, Tunoi’s accuser depones thus: “THAT Justice Tunoi acceded to my request only telling me to advise Mike Njeru to advise his boss that there was still enough time and that we had to keep matters very secret.” A second meeting, scheduled for June 8, 2014 at Michael Njeru’s office along Waiyaki way was cancelled. In paragraph 25, Kiplagat says, “Shortly after, the judge called to explain the cancellation. He had cancelled the meeting because a group of Maasai friends had slaughtered a bull and they were to pick him that day…” In subsequent paragraphs, 28, 29 and 30, Kiplagat talks of growing anxiety in the governor’s camp and the reassurance from the judge that all was well. “Mike Njeru and John Osogo were getting impatient and there was constant communication. Then came the hearing of the appeal in June and another meeting was scheduled. This time round’ the Judge promised to make good the meeting, always assuring that things had been taken care of and there was still time…” the affidavit reads. One gets the feeling that he was, like the court clerks described above, waiting for the entire bench to arrive at a position, where he would still pocket the money without sharing, at the same time appear to have served the interests of the governor. It is also telling in the manner the judge now hastened plans to meet and finalise the deal, roping in, according to the affidavit, the help of high-flying lawyer Kitwa Kigen, only after the hearing of the case. After the Judgment and after a big brown briefcase had been delivered to Tunoi, Kiplagat depones at Paragraph 51, 52 and 53 that “The judge told the governor “si umeona ni mimi mwenyewe?”, loosely translated to mean “you have ascertained it is me, haven’t you? This was perhaps to allay the governor’s fears of being coned and confirming to him that the job had been done perfectly. Victims of circumstances It is therefore possible, even if highly unlikely, that Justice Tunoi acted alone and that his colleagues whose blood the public and stakeholders in the justice system are baying for are only victims of circumstances. Indeed, sources from the Supreme Court intimate that from the time the media lifted the lid on the matter, by publishing the affidavit, to the time the Judicial Service Commission formed a committee to determine whether the matter warranted advising the President to form a tribunal, Justice Tunoi had not as much as contacted his colleagues to even update or even deny the allegations. It must also be noted that even until the last minute of the 14-day deadline when the President suspended him and formed the tribunal, Justice Tunoi had never called a formal press conference to address the nation and appraise the Judiciary and the Court in which he serves on the matter. In the meantime, calls, mostly from emotion, for the entire Supreme Court to be dissolved have been rising in crescendo. If this were to happen, it would be the most brutal attack to the rules of natural justice that the law holds so dear. Fortunately, the Constitution states in no uncertain terms how a judge of a superior court, including the High Court, Court of Appeal and the Supreme Court can be removed from office. Be that as it may, it is a common fact that the Supreme Court is in a big perception crisis. The President’s move, however delayed, to form a tribunal to investigate allegations levelled against Justice Tunoi is welcome. Should the tribunal carry out its mandate effectively and without favour, it will go a long way towards serving justice, not to Tunoi – his is a forgone case even if it were proved beyond any reasonable doubt, which is unlikely, that he is falsely accused – but to the rest of his colleagues, especially those at the Supreme Court. Should it, however, be found that Tunoi acted with any of the other Justices, then the full force of law should be brought upon them.