FEUDS within the judiciary have taken a new turn after an advocate wrote to Judicial Service Commission seeking the removal of High Court Judge Prof Joel Ngugi.
Edwin Sifuna's petition which was received by the JSC secretariat on Wednesday seeks to have Justice Ngugi who heads the Judiciary Transformation Secretariat removed allegedly for breaching the constitution, the Judicial Service Code of Conduct and Ethics, the Public Officers Ethics Act, the Public Finance Management Act and lacking in integrity.
The allegations are based on a trove of emails published by the Standard newspapers which indicated that the judge was a member of a self-styled “war council” set up with the sole intention of pushing out embattled Chief Registrar of Judiciary Gladys Boss Shollei.
“It is further based on conduct attributed to the judge in an apparent clandestine conspiracy to channel funds from a donor, the Ford Foundation, outside the system and in a manner aimed at circumventing the system of Public Financial management,” the petition reads.
The conspiracy is contained in one of the email exchanges between “War Council” members—Chief Justice Willy Mutunga, his chief aide Duncan Okello and consultants Kwamchetsi Makokha and Dennis Kabaara which reports how the defection of finance director a Mr Ben to Shollei's camp had affected their camp's prospects of removing Shollei.
He claims that Justice Ngugi, Okello and Kwamchetsi were pursuing a tender for a prefabs and cabling project at the judiciary but the Ben stopped them: “He appeared ready to do the right thing; then, I suspect someone got to him,” Justice Ngugi claims in the email.
He says the finance director had been rewarded with a “junket trip” to Egypt to belly-dance and when he returned, he was immediately offered yet another fully paid for junket to Montreal, Canada which saw him 'defect' to Shollei's side.
The judge reveals the existence of a Kiambu bank account which he claims was supposed to receive the funds from the Ford Foundation but which Ben allegedly stopped.
“In quick order, he reversed the decision to receive the Ford Foundation Grant at our account in Kiambu and advised Ford that we needed a Financing Agreement signed by the Treasury.”
“He also put JTI (Judicial Training Institute) on JSC vote and decided that we will operate on IFMIS not AIE- all ways of ensuring that our funds are tied up as much as possible,” he says in reference to the Internal Finance Management System which the judiciary has been using to strictly monitor funds.
It is through this system that captured and traced the theft of Sh80m which is one of the issues that Shollei has been asked to respond to by the JSC.
The AIE is the Authority to Incur Expenditure which has been in use in the civil service and has presented many problems since tracking of public fundings was cumbersome and time consuming.
In the email to CJ Mutunga, Justice Ngugi laments the loss of Ben. “Anyway, we lost Ben. He is not only uncooperative; he is downright hostile. Remember he stood behind the CRJ on the day of her suspension.” Sifuna says that although the CJ's office explained that his email had been hacked into, he has never denied the contents of the emails.
Sifuna said the content of the email exchanges had raised “fundamental questions” on whether it was proper for a member of the bench to unlawfully hatch, conspire and plot to remove a duly appointed constitutional office holder.
“Is it proper for a judge of a superior court to use his office for advancement of his personal and that of his cohorts quest for power and influence within the judicial service?” he poses.
He says the overall effect of the email leaks was dishonor and erosion of public confidence in the integrity of judiciary thereby making Justice Ngugi's continued employment untenable.
He said the judge had violated various parts of Articles 73, 75 and 206 of the constitution as well as Section 27 (1) of the Judicial Service Act. Sifuna says the judge has failed to uphold the dignity and integrity of the judicial service contrary to Rule 12 (1) of the Judicial Code of Conduct and Ethics.
“The judge has by his conduct created the appearance of impropriety and greatly undermined public confidence in the integrity of the judiciary in violation of Rule 3(5) of the code,” the petition reads.
Sifuna accuses the judge has used the prestige of his office to advance private interests, undermined meritocracy in judiciary and used his relationship with members of judiciary hierarchy for clandestine activities.
It is now up to JSC to weigh Sifuna's petition and make recommendations to the president on whether to appoint a tribunal to investigate him or not.