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Can Judges Overrule their Own Decision

It is a constitutional AND human right for anyone to defend himself or herself before the law. The fact that the JSC has said that Hon. Justice Tunoi has a case to answer does not mean that the suspect is already guilty. The presumption of innocence still stands. He only has to go through another process known as the Tribunal set up by the President as per the constitution. It is the duty of the tribunal to carry out the adjudication and come up with its verdict and recommendations. If found guilty by the tribunal, the accused will still have option to appeal but in The Supreme Court. If found guilty in both the trial tribunal and The Appellate Organ of The Supreme Court, of course, the judge shall face the axe and penalty according to the law. This shall irreparably damage the reputation of the judge. If found not guilty, Hon. Justice Tunoi shall be reinstated but the reputation of the entire Bench shall be questionable. The collegiality of judges fear shame and bad image.
At the moment the charges against him are what is contained in the affidavit presented by Mr. Kiplagat, the whistle-blower.
The JSC Committee only declared that the accused did not act appropriately by being in communication with the litigant during the case which is against the norms of justice. This wording does not show much about the “Bribe Theory” that is prominent in the affidavit. Having such compelling evidence of facts and no judge is allowed by law and principles to be biased, the impartiality of the Bench during the handling and the ruling of the case will be totally ir-reversably compromised. The implication of all this should be, the ruling of The Supreme Court in such particular case shall be rendered null and void meaning that the previous ruling of the Court of Appeal shall stand, a direction which The Supreme will avoid. Supposedly this is the case, Dr. Evans Kidero shall have to start again the entire process or re-appealing the appeal if he deems it right and necessary. If he does not and the ruling of The Supreme Court is rendered null and void by the Tribunal, he will lose his job and re-election will be held. This shall cost money and time.
Separately, Dr. Kidero can be accused by his opponent for not being honest and using bribe to circumvent the wheel of justice in his favour, a behaviour that is not expressly illegal by case law, but purely unethical. Is bribery unlawful in Kenya? If at all, Dr. Kidero tipped the judge or bribed the judge must also be redefined and interpreted within the legislation. The same judges are charged with the interpretation of the law and I find it contradicting how the very Supreme Court judges shall incriminate themselves by unbinding themselves by their own rule.
Another separate issue that may come, is the integrity of The Supreme Court / the highest court in the land. Is it lawful for the judge to receive or take bribe from a litigant, a friend, a client or a relative? Does the law specify this? Is there grey area in the law that may enable judges to get away with corruption crimes? If there is no law prohibiting a judge from taking a bribe, a gift, a tip or a prize from interest party or a sympathizer, then The Supreme Court judges may not have a case to answer. Such loopholes in the law can jeopardize the war against graft and Kenya shall be faced with another issue.
Kenya legal system shall be considered weak and uncivilized by international standards. The Judiciary shall not be blamed for the law they have not broken anyway.
Does the law penalize only bribe taker or also the bribe-giver? Actually both are morally speaking guilty of being aware of the wrong-doing. When Dr. Kidero gave the bribe he has not broken any part of the law. The judge went ahead to accept the money or the offer and used his position, power, office to influence the outcome of the case. The judge has acted wrongfully and there is no way he can escape the wrath of law. The litigant can only suffer the moral damage in his career and profession but does not break any law unless there is law prohibiting bribe giving. In the electoral laws of Kenya no candidate is allowed to bribe the voters…but by the rule of precedent, Hon. Wetangula has been found innocent in his case in which he was charged of bribing the electorates. If the Precedent is anything to standby then the “Bribe-giving” is not considered by the judicial view a wrong doing.
Another possibility is that if Justice Tunoi argues that taking and giving of bribe has been a practice in the Judiciary from time immemorial and that he did not hold the bribe alone and influenced innocent colleagues, then we should think in another direction. Who else received the bribe from the litigant? Who received the bribe from Justice Tunoi? In the second question, what would be the intention of the Judge in bribing his colleagues? And the judge that dissented from supporting the outcome of the judgement, what would be her stake in this? It will be a chain of accusations and counter accusations that may turn to be ugly. But the main issue is based on the law regulating corruption in the country.
Another question that one must know is whether The Supreme Court is the court of law or the court of justice or the court of politics? The Supreme Court in Kenya is not a purely court of law. It has jurisdiction over political issues and its ruling can depart from the law. It also behaves as the court of equity whose ruling can be tilted by moral influences than the law and this might have been the case of the Hon. Raila petition in 2013, electoral petitions. The Supreme Court in Kenya shall still justify itself from the alleged loss of reputation. The first case was that of Justice Nancy Baraza who went through the Tribunal set up by the President and when found guilty lost her job. Justice Tunoi may suffer the same plight and lose his job and everything stops there. But if, Hon. Waititu, the petitioner who lost his case, deems it right to challenge the outcome of the case due to bribe allegations, then his case will he heard by the same Supreme Court that can either maintain the ruling to save the face of the Judiciary or nail itself. No court is willing to overrule its own ruling or depart from the judgment it has made previously…this would be illogical and silly. The wisest thing for Hon. Waititu to do is to allow justice take its course because the outcome of his re-appeal in the same Supreme Court is predictable. The wisest thing for Hon. Dr. Kidero to do is to save his reputation and moral image in order to win the public confidence without going to court to accuse Mr. Kiplagat for the affidavit. If he does go to court to seek justice for his tainted name then he will incriminate himself morally and politically, something he has to avoid at this point.
Since the Supreme Court in Kenya is a political court, political bigwigs will obviously use this case of Hon. Tunoi to gain millage. Politicians have interests and both CORD and Jubilee will either be tacit about the case or use it selectively and carefully to carry-out their political agenda. CORD will not love to see a case that may taint Dr. Kidero, or their strong man in Nairobi. Jubilee will hit hard on Kidero to knock out their opponents in the Nairobi politics. The Supreme Court will be now the battle ground. It is in this line that CORD and Jubilee will be very prudent in this matter… any way this case shall go, will have consequences.

About Peter Onyango

Dr. Peter Onyango O. is one of our main contributors. He is a senior law lecturer, a writer, a consultant, peace ambassador, and a researcher. He assists so many professionals, legal minds, and debaters with his skills and scholarly wealth! He supports children and village community as a way of giving back to community. He edits, proof reads, and publishes various articles for our page!

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