Kenya’s Supreme Court in crisis

Kenya’s Supreme Court made history in 2017 when it was the first in Africa to annul a presidential election. The next presidential poll is still three years away, but, in an echo of the 2013 and 2017 pre-election periods, the seven-member bench is encountering turbulence and it is not clear how many of them will remain by 2022. While the court’s president, Chief Justice David Maraga, and one other judge will reach the mandatory retirement age before then, the court is also beset with petitions against its judges related to fraud, bribery and abuse of office.

What’s going on?

• In August last year, Deputy Chief Justice Philomena Mwilu was arrested and charged with a litany of crimes including tax evasion, fraudulent recovery of loan securities and abuse of office.
• The ongoing case mainly revolves around her dealings with Imperial Bank, a mid-tier lender that collapsed in October 2015. According to the country’s head of prosecutions, Noordin Haji, the senior judge obtained several loans from the bank between 2013 and 2015 on false pretences. In one, the lender provided her with KSh12m ($120,000) without any letter of offer or interest rate. The prosecution also claims she failed to pay stamp duty for properties she bought around the same time.
• Justice Mwilu has fought back, claiming in her court filings that the entire case is meant to intimidate her into “relinquishing her position and office as Deputy Chief Justice by brandishing the sword of punishment under criminal law”. QC Khawar Qureshi, who was engaged to lead the prosecution in late 2018, told a Nairobi court: “There is no evidence to suggest [the case] was politically motivated.”

In March, the Judicial Service Commission (JSC) recommended the investigation of Justice Jackton Ojwang’, a senior member of the bench who is set to retire next year. The judge is being investigated for allegations of receiving favours from Migori governor Okoth Obado in exchange for influencing a case involving the governor.

• Justice Ojwang’, who was one of two judges who dissented to the annulment of the presidential election in August 2017, refused to appear before the commission’s hearings on the case.

The JSC announced on 20 March that it was also considering a petition against its chairman, Chief Justice Maraga, for violating the constitution, and another against four judges for “alleged gross misconduct, misbehaviour and incompetence, breach of the Constitution and Oath of Office”.

• One of the four, Justice Mohammed Ibrahim, is also under investigation for threatening to shoot a security guard at his house. Ibrahim was the only judge who missed the famous 2017 ruling, as he was hospitalised in the early stages of the petition. He has denied owning a gun or threatening the guard.

What’s really going on?

To many observers, including Deputy Chief Justice Mwilu, the current onslaught on the Supreme Court’s bench is meant to force changes before the next election cycle. The court went through similar challenges before the 2013 and 2017 elections. In 2016, Justice Philip Tunoi was investigated for allegedly receiving KSh200m from the then Nairobi governor Evans Kidero. He retired after losing a protracted court battle challenging the retirement age for judges, and the tribunal ended before reaching any conclusions.

The previous Deputy Chief Justice, Kalpana Rawal, also retired after losing the retirement case. She, at the time, was dealing with revelations that she and her husband had used Panamanian law firm Mossack Fonseca to register 11 companies in the British Virgin Islands.

Justice Rawal’s predecessor, Nancy Baraza, resigned in October 2012 in the midst of an investigation into allegations of gross misconduct.

Bottom line

The next few months will be a test of the Supreme Court’s ability to retain its credibility and impartiality ahead of elections in 2022.