Nancy Baraza finally resigns

By Wahome Thuku

The resignation of Deputy Chief Justice Nancy Baraza on Thursday came as a relief to the Judiciary, which was already readying for a constitutional crisis caused by her decision to challenge a tribunal ruling.

Baraza’s appeal against the recommendations of the tribunal to have her sacked was a test case for the Supreme Court and Judiciary, which is credited for leading public institutions in reforms.

Coming one day before Chief Justice Willy Mutunga briefs the country on the state of the Judiciary, Baraza’s decision to quit is welcome.

Her implication in allegations of assaulting security guard Rebecca Kerubo at a shopping mall in Nairobi on December 31, last year, has been the heaviest load of disgrace the Judiciary has had to endure in months.

Baraza handed in her resignation to the Judicial Service Commission (JSC)  on Thursday, saying she expected no justice from the Supreme Court and in particular her immediate boss Mutunga.

Intense debate

She confirmed resigning as DCJ and Vice-President of the court. And though she said she tendered her letter to the JSC, her statement was addressed to President Kibaki.

Article 167(5) of the Constitution provides that the Chief Justice and any other judge may resign by giving a written notice to the President.

Baraza’s exit, however, sparked an intense debate on the social media with many people questioning why she had not quit earlier to save the State time and resources in investigating the misconduct.

Also of concern was whether the Director of Public Prosecutions (DPP) Keriako Tobiko would now charge her in court for allegedly assaulting Kerubo at the Village Market.

Tobiko had said he shelved the prosecution to allow the investigation by a tribunal set up by President Kibaki. Later, the DPP indicated the prosecution would wait for her appeal case at the Supreme Court.

Baraza was found guilty of misbehavior by the tribunal for pinching Kerubo’s nose and threatening her with a firearm. The confrontation occurred when Kerubo demanded she submits her handbag for security check before accessing the mall.

Her lawyers Judith Guserwa, Kioko Kilukumi and Solomon Wamwai had already planned to push for the disqualification of Mutunga and justice Smokin Wanjala from hearing the appeal on the ground they made prejudicial decisions about her.

The two are members of the JSC, which petitioned the President to form a tribunal to investigate Baraza’s conduct in February.

While Mutunga chairs the commission, Wanjala represents Supreme Court judges in JSC.

When announcing the JSC decision, Mutunga said: “After lengthy deliberations, evaluations of witness testimonies and other material evidence submitted, JSC has now resolved that pursuant to Article 168(4) of the Constitution, it will send a petition to the President to suspend Justice Nancy Baraza and appoint a tribunal to investigate her conduct.”

Some legal experts agreed that Mutunga and Wanjala’s double roles could complicate the matter and raise questions about conflict of interest and fairness in determining the appeal.

“You have disclosed our plan prematurely because that is exactly what we intend to do,” one of Baraza’s lawyers said when The Standard first highlighted the possibility of seeking Mutunga’s disqualification from the case.

First ruling

That would have put the Supreme Court in a composition crisis because currently it has only five judges, the minimum number that can sit to hear cases. The shortage from seven was created by the removal of Judge Mohamed Ibrahim earlier through vetting. But the vetting board wants to review the decision. With Mutunga and

Wanjala out of the bench, there would only be three judges to hear Baraza’s appeal. But an indication that all was not well for Baraza came on Wednesday when lawyer Guserwa missed the hearing prompting the court to adjourn. Guserwa was said to be out of the country but the case was adjourned on application of lawyer Wamwai.

Mutunga who was the presiding judge, described the absence of the party as disrespectful and arrogant and ordered Guserwa to personally pay the cost of the adjournment to other lawyers. The appeal was to resume on Tuesday next week.

As she bowed out, Baraza said she expected no justice from the very Judiciary which she was deputy head. “Although I have preferred an appeal in the Supreme Court challenging the recommendations of the tribunal set up be your Excellency to probe my conduct, I do not see myself getting a fair and impartial hearing before the court as currently constituted,” she told the President.

“Two of the judges sat at the JSC which petitioned your Excellency to appoint the tribunal that probed my conduct. They cannot, therefore, logically and legally sit on my appeal.”

Baraza said the Chief Justice had in a recent television interview endorsed the tribunal recommendations against her, which were the subject of the appeal.

She was referring to recent remarks by Mutunga confirming that Judiciary would decide all questions of integrity of public officers based on the decision of the tribunal and the High Court in a case involving the appointment of the Ethics and Anti-Corruption Commission head.

“This has compounded my fears that I will not get a fair trial before a bench in which he will participate.” She added: “I still reject the tribunal findings which I found most injudicious and not founded in known principles of law. However, our country is bigger and greater than any one of us,” Baraza told the Head of State.

“I want to thank my country for affording me that privilege to serve it in the capacity of deputy chief justice. I want to thank my country women and men for their support and ask for their forgiveness where I fell short and tell them we are all human.”

Baraza said she wished the CJ and his staff the best of luck as he undertakes the necessary reforms in the Judiciary.

“I ask the country to give him all the support because he requires it to be able to realise the reforms that will give our country the kind of Judiciary we have longed for and deserve.”

Since she was suspended, Baraza had been on half salary as provided under the Constitution and enjoyed other pecks that come with the office, including security, which she now has to forego. The CJ is expected to gazette the vacant position to kickstart recruitment.

Under Section 30 of the Judicial Service Act, the JSC shall now set up a panel to shortlist candidates.