BY WAHOME THUKU

Declared a liar, a woman whose outlandish actions and runaway rage brought the Judiciary into disrepute and social rogue who brandished gun at an unarmed guard, Deputy Chief Justice Nancy Baraza’s fate appears sealed.

She has ten days to appeal against the unflattering verdict by a judicial tribunal into her conduct, but it remains to be seen if after such an unflattering verdict, she would still want to take this route.

If she does, then her fate would lie with the Supreme Court, which is chaired by Chief Justice Willy Mutunga and to which she was Vice President.

However, it is unlikely she would want to undergo the blistering character attack that she weathered during the tribunal, but still again it will still be within her right to try and get back her job, that is literally the doorway to her being Kenya’s first woman CJ.

If she does not appeal, then the President will after the ten days order her removed from office and a fresh process for recruiting a new DCJ, who because of gender-balance rule must also be a woman, started.

But there is another fact that she must have to contend with, which is the guard’s threat yesterday that she wants the Director of Public Prosecutions to open criminal charges against Baraza for physical assault and threats.

Last evening the Director of Public Prosecutions Mr Keriako Tokiko wrote to the tribunal requesting for a copy of its report and proceedings so that he can make a decision on the next move. 

This means hers will be one of the costliest altercations ever on Kenyan soil, pitting a security guard and senior judicial official, whose result is her losing the post of DCJ, Vice President of the Supreme Court and Judge of the Supreme Court, and all the string of privileges that come with the office.

What is even more stunning is the tribunal’s verdict that Rebecca Kerubo, whose nose the commissioners determined Baraza pinched with the now infamous restraint ”you should know people”, was a credible witness, and the ‘short-lived’ DCJ the exact opposite, along with her star witness and bodyguard whom the team declared “an unabashed liar’.

Clearly, not only was the recommendation for removal the worst kind of indictment any judicial officer has received in the recent past, but the scale of her crude and roguish behaviour in public even appalled the seven-member tribunal appointed by President Kibaki to investigate her conduct.

And they did not mince words in expressing their findings about her.

Graphic description of her as one who can’t be trusted not to repeat her actions despite her plea for forgiveness, stood out conspicuously in a report prepared for the President by the tribunal but which was released to the public yesterday.

The tribunal is chaired by former Tanzania Chief Justice Augustino Ramadhani, a fact that cushioned it with the claims of partisanship and prejudices that are often associated with locally led tribunals.

Baraza, who overcame a host of accusations to become the first DCJ and the second senior-most woman in the Judiciary, stood the highest chance of stepping into Mutunga’s shoes when the latter retires in five years after attaining the mandatory age of 70.

Mutunga is certain to retire before the end of his 10-year term upon attaining the retirement age of 70 years. And although the Constitution does not automatically require the deputy to take over, Baraza stood the best chance of replacing him.

The Constitution allows a CJ who attains retirement age before completion of his or her tenure to remain a Judge of the Supreme Court.

But her encounter with Kerubo, a security guard at the Village Market on December 31, last year, appeared to wipe out all the sweet dreams full of such possibilities.

Before the tribunal she faced three accusations of pinching Kerubo’s nose for insisting that she submit herself for a security check, and threatening to shoot her with a pistol and creating disturbances at the mall.

Each of the three allegations was proven to the required standard leaving the tribunal with a unanimous verdict that she was beyond redemption.

But it was Baraza’s conduct after the incident and her evidence before the tribunal that put to question her ability to continue serving as a judge.

The tribunal said it considered entertaining DJC’s transgression a one-off, which was not likely to occur again. But what broke the camel’s back was the fact Baraza continued contacting Kerubo and her colleague Makhanu a week before the tribunal was to start hearings and after she had been served with a list of witnesses.

Kerubo said she asked them to change their evidence to remove claims that she brandished a pistol and threatened to shoot her.

“That was a very serious undertaking conducted by a judicial officer,” the tribunal concluded. “We are therefore not convinced that the DCJ can be expected not to engage in this kind of misconduct of misbehaviour in the future,’’ they concluded.

The tribunal considered the impact of her conduct to the Judiciary. They said even if not a similar incidence, Baraza was capable of engaging in other misconduct especially given that she contacted witnesses in the absence of the tribunal lead counsel.

“She has shown an inability to control her behaviour, demonstrating the strong likelihood she will continue to commit misconduct or misbehaviour in future,” they ruled.

Baraza said she gave Kerubo Sh5,000 and Makhanu Sh2,000 after they asked her for fare. She said the money was not an inducement for them to change their evidence.

She told the tribunal that Kerubo had expressed fears for her life. The DCJ had written to Mutunga on February 8, 2012, to provide Kerubo with security. The CJ forwarded the request to the police commissioner. Baraza said she was apprehensive that she would be blamed if any harm befell Kerubo.

Baraza denied having ever sent emissaries to Kerubo’s house but said she was aware that several people including her friends had tried to intervene to assist her. “We were not impressed by the evidence of the DCJ. There were discrepancies in her evidence.

After the pinching incidence Kerubo went back to her desk and carried on with her work.

“We asked ourselves, what then made her scared to the marrow and caused her to go home prematurely and then straight to bed until the following morning as narrated by her husband. Certainly it was not the pinching of the nose. The only plausible explanation is what she said, that the DCJ brandished a pistol and threatened to shoot her,” said the tribunal chairman.

The tribunal concluded that if there was no pistol incidence, no report would have been made at the police station.

Series of lies detected in Baraza’s defence

A list of lies to the judicial tribunal hammered the last nail on Nancy Baraza’s fate.

She told the tribunal that it was the guard, Rebecca Kerubo, who used nasty language against her by calling her mjinga (stupid).

She insisted that she was only trying to calm Kerubo by touching her shoulder and covering her mouth whilst identifying herself.

But a witness James Wathigo testified of the altercation between the guards and the DCJ saying he heard Baraza tell Kerubo that she must know people.

The DCJ denied before the tribunal that she pinched Kerubo’s nose or that she asked her driver Eric Omondi to shoot the guard.

She also denied having threatened Kerubo with a pistol.

She denied having gone to her car to fetch the gun saying she did not even know where the vehicle had been packed, She did not possess a pistol and did not take Omondi’s gun.

Baraza told the tribunal that she had allowed her bodyguard Annalice Kaburu to take her Christmas leave from December 23, 2011 and had not asked for replacement. Constable Kaburu told the tribunal that she was allowed a three-day off from December 23, 2011 and returned to Nairobi Meru on December 26.

She rang the DCJ on December 27 to inform her that she was back raising question on Baraza’s evidence.
Offering bribe
Baraza said Kerubo, her husband and her lawyer demanded Sh10 million settlement, which was scaled down to Sh4 million, but she declined to pay.  She denied having offered Kerubo Sh3.5 million to settle the matter.

But Morara told the tribunal that they went to Baraza’s house where she allegedly offered Kerubo Sh3.5 million to drop the complaint and go live elsewhere.

Baraza said she gave Kerubo Sh5,000 and Makhanu (a second guard) Sh2,000 after they asked her for fare. She said the money was not an inducement for them to change their evidence.

Kerubo said she asked them to change their evidence to remove claims that she brandished a pistol and threatened to shoot her mentary approval.” 

With such evidence, the tribunal had no option but declare her unfit to serve in the Judiciary.