Tribunal recommends dismissal of Kenyan Deputy Chief Justice

Kenya’s suspended Deputy Chief Justice Nancy Makokha Baraza is in all probability looking at the end of her one-year old judicial career.

A seven member tribunal set up to investigate her conduct on New Year’s eve has unanimously recommended Baraza, who is also Vice President of the Supreme Court, be removed from office. That recommendation binds President Mwai Kibaki to fire her unless Baraza chooses to appeal to the Supreme Court to overturn the tribunal’s recommendation. She has 10 days to file that appeal, starting from Monday, the day the tribunal presented its report to Kibaki.

The President of the Supreme Court is Chief Justice Willy Mutunga. In his capacity as Chairman of the Judicial Service Commission he petitioned Kibaki to form a tribunal to investigate Baraza’s conduct after the commission’s own inquiry concluded that she had committed gross misconduct. Gross misconduct is one of the grounds a judge can be removed. Although the commission is the judiciary’s supervisory body, it is only a tribunal that can recommend retaining or removing a judge.

Tribunal Chairman Augustino Ramadhani said on Monday that the tribunal believed security guard Rebecca Kerubo’s claim that Baraza pinched her nose and then later drew a gun on her and threatened her at a shopping mall on December 31, 2011. The incident happened at the Village Market shopping mall in the capital Nairobi. Ramadhani, a former Tanzanian Chief Justice, read the tribunal’s report to the media, Baraza’s lawyers and others on Monday. The event was aired live on most television stations.

“We find Kerubo to be credible from the way she confidently and steadfastly gave her evidence and especially in cross examination. In fact, she has been consistent in her statements since 31st December,” said Ramadhani. “On the other hand, we were not thus impressed by the evidence given by the DCJ. There were discrepancies in her evidence.”

Baraza did not dispute that an altercation occurred on New Year’s Eve between her and Kerubo. She, however, had claimed that Kerubo shouted at her when she past the security check without having her handbag searched. Baraza denied pinching Kerubo’s nose and instead claimed she had tried to calm Kerubo down and put her hand over Kerubo’s mouth to stop her shouting. Baraza also denied drawing a gun at Kerubo or threatening her.

Ramadhani observed that had the tribunal been investigating a criminal matter they would have required proof beyond reasonable doubt to sustain the charges. “But the proof required in this matter is below “beyond reasonable doubt” and above “a balance of probability” and we find that it has been met,” said Ramadhani.

The tribunal acknowledged that the matter under investigation involved one incident, which did not necessarily show a pattern of misconduct. But Baraza’s actions after the incident gave the tribunal pause for thought. It found that after Baraza’s legal team had received the witness list for the tribunal’s hearings and witness statements, Baraza went to see Kerubo and her husband on June 27. This was one week before the tribunal’s hearings were due to begin. Kerubo told the tribunal that Baraza wanted her and her husband to change their statements and remove any references to Baraza brandishing a gun or threatening Kerubo. Baraza told the tribunal that she had only wanted to reconcile with them.

“The fact that she improperly contacted witnesses in the absence of the Lead Counsel to the Tribunal also raises concerns about her ability to refrain from future misconduct,” Ramadhani said. “She has shown an inability to control her behaviour, demonstrating the strong likelihood she will continue to commit misconduct or misbehaviour in future.”

“We have concluded that the DCJ has committed gross misconduct and misbehaviour,” said Ramadhani.

Since Kenya sent troops to Somalia in October 2011 to fight against the extremist Islamic group al-Shabab, security has been increased in the country with shopping mall managers introducing checks at entrances. The security measures are in response to threats from al-Shabab that it will retaliate for Kenya’s attacks on its bases in neighboring Somalia. Village Market is in the diplomatic hub of Nairobi where the United Nations has the headquarters of two of its agencies and where several embassies are located such as that of the United States. Many diplomats live in the neighbourhood of the mall.

Baraza’s lawyers did argue during the hearings that the searches at Village Market infringed on their client’s privacy and went against the constitution. The tribunal acknowledged the issue of privacy they raised had wide implications but was beyond its scope and would require a court to adjudicate it.

“It is our view, however, that no one has any right to enter any premises without the consent of the owner and if a condition for such entry is a mandatory search of a person, then the person has the option of either acquiescing in such a search or not entering the premise,” said Ramadhani.

The tribunal was appointed following a petition the Judicial Service Commission sent to President Mwai Kibaki on January 19 this year. A week later Kibaki suspended Baraza as required by the constitution when a tribunal is formed to investigate a judge. By that time, Baraza had only been Deputy Chief Justice for seven months. The same day, January 26, Kibaki appointed Ramadhani and six Kenyans, four of whom are either lawyers or retired judges, to form the tribunal. The tribunal was unable to start its work until the conclusion of a case Baraza filed at the High Court challenging the establishment of the tribunal. The High Court disposed of the case in March and Baraza did not appeal its decision to allow the tribunal to continue its work.

The tribunal has completed its work within about four months, which was fast. Other tribunals that have investigated judges in the past have not been as fast. In September 2003, when a committee appointed by the then Chief Justice Evan Gicheru recommended half of the country’s judges be removed, some of the affected judges opted to face a tribunal. Although those tribunals were set up within weeks of Gicheru requesting the president do so, they did not complete the seven cases they handled until some years later.

Baraza’s appointment on June 16, 2011 to the second highest judicial position in the country was hailed as evidence that the transformation of the judiciary was on course. She and Mutunga had undergone a two-stage unprecedented vetting process as described under the constitution. The constitution, which was passed in an August 4, 2010 referendum with more than 60 percent of the votes, prescribes a series of changes to the judiciary as a response to public outrage at the corruption and lethargy that has pervaded the institution.