By WAHOME THUKU
Suspended Deputy Chief Justice Nancy Baraza is set to ask that her boss and another Supreme Court judge be disqualified from hearing her appeal citing alleged conflict of interest on their side.
“That will be the very first move,” confirmed a source privy to her preparation.
To justify her appeal, Baraza is likely to cite Chief Justice Willy Mutunga’s and Justice Smokin Wanjala’s roles as members of the Judicial Service Commission (JSC) that recommended setting up the tribunal in January that investigated investigated her conduct and eventually declared her unfit to be a judge of the Supreme Court. A disqualification of Mutunga and Wanjala would spark an unprecedented legal battle as the court has only five judges, the minimum number allowed by the Constitution to sit and hear cases. The number fell from the initial seven after Justice Mohamed Ibrahim was forced to step down by the Vetting of Judges and Magistrates Board, while Baraza remains suspended.
Having filed a notice to appeal the decision by a judicial tribunal recommending her removal from office, Baraza is no longer basking in the latitude that the law creates for her before her appeal can be heard.
According to the legal timelines provided under the Supreme Court Act, Baraza’s case will not be set for hearing until well after mid next month.
She is accused of assaulting security guard Rebecca Kerubo at the Village Market, Nairobi on December 31, last year, brandishing a pistol and threatening to shoot her, and behaving in a manner likely to cause a breach of the peace.
Under the Constitution, Justice Baraza had 10 days in which to file a notice to appeal the tribunal’s ruling. She beat the deadline when her lawyer Kioko Kilukumi filed the notice on August 5.
Thereafter, she had 30 days within which to file the appeal itself as provided by Rule 32(1) of the Supreme Court rules. The deadline for that is September 10, giving her ample time to prepare her case.
“Between now and the time the appeal is determined, every law on the land will be on her side,” commented a lawyer who sought anonymity.
“She should have even filed the notice on the 10th day to enjoy every minute that the law gives her,” said the lawyer he asked not to be named.
Under the Supreme Court rules, Baraza is required to file a petition, a record of appeal and security for costs that may arise from the case.
The petition must contain specific grounds for objecting to the decision of the tribunal, the points she alleges to have been wrongly decided and the nature of the order she propose the court should make.
She will be asking the court to overturn the decision of the tribunal, thereby confirming her as fit to continue serving as judge.
After filing the petition and the record appeal she has seven days within which to serve the tribunal with the papers.
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Under Rule 33 of the Supreme Court, the court may direct her to serve the papers to any other persons that were parties to the tribunal proceedings, and that could include Ms Kerubo.
Influence witnesses
If she fails to file the appeal within 30 days, the notice is deemed to have been withdrawn and the court will make any necessary orders on its own. She would be liable to pay any costs to the tribunal if she has already served it with the notice.
Justice Baraza is expected to argue that there was no hard evidence, including CCTV footage from the mall’s cameras, brought before the tribunal to prove that she committed any of the acts for which she was indicted.
She will say that the recommendation to remove her as judge was based more on her conduct after the incident, including allegations that she contacted and attempted to influence witnesses to change their statements.
Only two guns featured in the episode, that of her driver Constable Eric Omondi and bodyguard Annalice Kaburu who was not at the scene.
The DCJ has denied having taken Omondi’s gun to threaten Kerubo.
Kaburu was on a short leave during the incidence and she told the tribunal she had her pistol with her in her house.
paralysis
Drama would, however, unfold if the Supreme Court were to entertain her application for Mutunga and Wanjala to be disqualified.
The move would completely paralyse the proceedings raising a constitutional matter.
It would leave the highest court in the land with only three judges, J.B. Ojwang, Philip Tunoi and Njoki Ndungu to hear Baraza’s appeal and even if the Supreme Court hires a judge to replace Ibrahim, it would be one shy of the constitutional requirement of five.
“It would only be fair for the Supreme Court to accord the DCJ every available fairness in the case, otherwise it could start on the wrong footing in determining appeals from lower courts,” said a lawyer.
“These are some of the eventualities that the drafters of the Constitution might never have anticipated,” the lawyer added.
And until the final decision on the appeal is made, Baraza remains on the half salary she has been drawing since President Kibaki suspended her in January.
But it is not uncommon for judges to continue enjoying perks of their office as they embark on lengthy process of challenging decisions to remove them from office.
This is why, for instance, the Vetting of Judges and Magistrates Board has been given the first and the last word on the fate of the judicial officers by the Constitution, to avoid situations where judges kicked out of the Judiciary would file lawsuits that drag on for years.
In another development Kerubo is progressing with a civil suit to demand compensation for the assault by the DCJ. “We are in the process of filing a civil case for compensation. I am at advanced stage in preparing the papers and it’s only a matter of time,” said Cherub’s lawyer Irungu Kangata.
Baraza is also awaiting the final decision from the Director of Public Prosecutions on whether to charge her with assault and death threats on Kerubo.