Baraza tribunal set low threshold for removal of judges

The 2012 tribunal that investigated former Deputy Chief Justice Nancy Baraza set a low threshold for removal of judges over gross misconduct or misbehaviour.

This is the same ground the Judicial Service Commission affixed on Supreme Court judge Justice Philip Tunoi in their public statement yesterday. The tribunal chaired by former Tanzanian Chief Justice Augustino Ramadhani agreed with lawyers Valeria Onyango and Kioko Kilukumi that the standard of proof into an inquiry of “gross misconduct or misbehaviour” on the part of a judge is “neither that of criminal law (beyond reasonable doubt) nor that in civil cases (balance of probability).

Instead, the standard is “somewhere between” the two variables. The members of the tribunal merely took note of the fact that in order to prove gross misconduct or misbehaviour, they had to confirm that the allegations had been proved to their satisfaction.

They, however, found that determination of allegations against a judge of a superior court is “no longer solely a legal process of sifting through the evidence and finding whether the facts proved support the charge.”

The tribunal went on to list over 100 values that ought to be observed by all State officers among them judges. The values included among others appreciativeness, candor, caution, discretion, modesty, propriety, prudence, remorsefulness, wariness and intuitiveness. The petition against Baraza had been sent to former President Mwai Kibaki on January 19, 2012. Seven days later, Kibaki appointed a tribunal.

Riding on the standards they had set, the tribunal fixed the judge for the axe.

“The tribunal is satisfied that the conduct of the DCJ breached the provisions of Article 168(1) (e) read together with Article 75 (1) (c) of the Constitution, 2010 and of the Judicial Code of Conduct, and was of such a serious nature to amount to gross misconduct and misbehavior.”

Their recommendation was unequivocally brutal: “We therefore recommend that Lady Justice Nancy Makokha Baraza, the Deputy Chief Justice and the Vice President of the Supreme Court of Kenya, be removed from office.”