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March 2003

Guilty as charged: The people versus Chunga

Zachary Ochieng

In what appears to be Kenyans’ desire to end unjust and corrupt practices among public servants, embattled former Chief Justice Bernard Chunga found himself on the receiving end when he was forced to resign late last month. For a public prosecutor whose appointment as Chief justice three years ago generated a lot of controversy, his exit was equally controversial and unprecedented.

He was appointed Chief justice despite the fact that he had never served on the bench and bypassed senior Court of Appeal judges who merited the post. It is also the first time in Kenya’s history that a tribunal was set up by the president to investigate the conduct of a judge. Not one to be pressured to resign, he ignored a public outcry even as it became increasingly evident that his days were numbered. However, he eventually resigned five days after a tribunal had been set up by President Mwai Kibaki to investigate his conduct.

Pressure to have the Chief justice removed was first brought to the fore in early January when Tigania East MP Peter Munya (Safina) said Chunga was unfit to hold the office, given the role he played in the torture and subsequent detention of perceived dissidents when he was the Deputy Public Prosecutor in the 80s.

There was no relenting as 17 organisations, including the Law Society of Kenya (LSK), human rights workers, former prisoners and detainees and lawyers joined the fray in citing his role during the infamous trials of members of an alleged underground movement known as “Mwakenya”. Earlier, a group of former detainees led by lawyer Rumba Kinuthia and Subukia MP Koigi wa Wamwere issued Chunga with a seven day ultimatum which required him to either resign or have a complaint about him lodged with the president.

But Chunga was adamant. He decided to remain mute over the matter and only broke his silence early February when, in his characteristic arrogant style, he dismissed the charges levelled against him as “petty propaganda”. Said he: “Apart from lofty talk and petty propaganda, those who make such claims have made absolutely no contributions to judicial reforms”.

It did not help matters that even after Chunga broke his silence, a former prisoner Mr Akelo Onyango, who served a three- year jail term over his alleged links with “Mwakenya”, filed a private prosecution against him before the Nairobi Chief Magistrate Boaz Olao. Olao, however, threw out the case and refused to summon the chief justice to answer the charges. But the matter did not end there.

More pressure mounted when for the first time, the government opened to the public the Nyayo House torture chambers where the “Mwakenya” dissidents would be held for weeks before being hurled to detention. When they visited the dark cells this time round as free citizens, the former detainees could not hold back their tears and insisted that whoever was responsible for their incarceration there must be called upon to explain why they had to be treated that way. They wondered why such a person should continue to hold a public office.

Apparently all the while, the government was listening. It is instructive that the National Rainbow Coalition (NARC) government won the December 2002 election on a platform of reforms in the judiciary, which was tainted with corruption and other severe malpractices.

But a clear indication that the government was about to honour its pledge came when Kibaki appointed 19 advocates as senior counsel. Judges enjoy security of tenure and can only be removed from office through a tribunal whose membership must comprise a senior counsel among others.

As pressure continued to mount on the chief justice to resign, Justice and Constitutional Affairs minister Kiraitu Murungi – who had earlier insisted that he had no evidence to warrant the establishment of a tribunal to investigate Chunga – finally told parliament on February 20 that he had gathered enough evidence and that the tribunal would soon be constituted. “Now I have the evidence and a tribunal to investigate the conduct of the chief justice would soon be constituted,” he told parliament.

But only a day after Murungi had issued his statement, President Kibaki suspended Chunga from office and named a tribunal to be headed by the National Assembly speaker Francis ole Kaparo, with senior counsel Gibson Kamau Kuria, retired Chief Justice Abdul Majid Cockar and Appellate judge Justice Richard Kwach as members among others. The dye was cast. The composition of the tribunal was seen by Chunga’s sympathizers as an attempt to intimidate him to quit office, considering the long -standing enmity between him and Kamau Kuria and Justice Kwach.

The charges levelled against Chunga included allegations that he had been corrupt and dishonest while in office, that he conducted himself disgracefully and dishonourably and doesn’t deserve to be the chief justice and that he no longer commands the respect and confidence of Kenyans as the Chief justice and therefore he ought to be removed. These were just but some of the eight charges levelled against him.

But Chunga, probably fearing that his name would be tarnished further, tendered his resignation, which was promptly accepted by President Kibaki. The resignation marked the end of his over two -decade career as a public prosecutor and chief Justice. Many former detainees hailed his exit as a good riddance. In the judicial circles, Chunga’s resignation mirrors a similar scenario in 1971 when the first African Chief Justice Kitili Mwendwa was forced to resign after a series of condemnations at public rallies, where he was linked to a group that was planning to overthrow President Jomo Kenyatta’s government.

Following Chunga’s exit, two other senior public officials have bowed to public pressure and relinquished their posts. They are former Commissioner General of the Kenya Revenue Authority (KRA) John Munge, who was forced to resign following his close links with the collapsed Eurobank, which went under with millions of Kenya shillings belonging to state corporations. He was followed by former Central Bank of Kenya governor - Nahashon Nyagah - who was equally blamed for failing to advise the state corporations on Euro bank’s liquidity problems.

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