BY STANDARD REPORTER

In the fate that befell suspended Deputy Chief Justice Nancy Baraza one thing stood out – the reality of Kenya’s changed constitutional order and higher level of integrity expected of public officials.

So devastating to Baraza must have been the ruling, not only because it has taken away from her one of Kenya’s most prestigious and well-paying jobs, with a guaranteed 10-year term and security of tenure. But it has also dealt a blow to her standing as a defender of human rights, especially of the vulnerable such as women.

That could explain why by nightfall Tuesday, the suspended judge known never to shy away on a public matter of this magnitude in which she is involved had taken refuge in silence. She kept Kenyans guessing whether she would appeal or walk away from the public limelight.

“We have done our work and now must wait for further instructions from our client. That is what lawyers do,” said Baraza’s Counsel Kioko Kilukumi.

Lawyer Peter Kaluma, who has represented the DCJ since the case began last year, said it is only her client who would decide the way forward.

The process

 “We are still consulting, and it is only the client who will make the final decision,” said Kaluma.

The Chief Registrar of the Judiciary Gladys Shollei told The Standard Baraza still had time to appeal. “The DCJ still has 10 days within to appeal. If she does, the process would go on to its conclusion,” she added.

However, Ms Shollei, who is also the secretary to Judicial Service Commission, explained in the event she does not appeal within the 10-day period set out by the Constitution and the President acts on the recommendation of the tribunal and removes her from the Bench, then JSC will fill the positions.

“As things stand now the Supreme Court where the DCJ also sits, has five of seven judges.  The quorum is five,” she said.

The drama that played out publicly – patterned along the lines of Biblical David and Goliath’s story – where a guard at a mall fell a vice-president of the Supreme Court, also exposed how limited Baraza’s options are.  On the one hand is the demand for prosecution by the guard, Rebecca Kerubo.  On the other, is the Director of Public Prosecutions Keriaoko Tobiko’s start of a process that could see Baraza charged with a criminal offence over her conduct at the mall in December last year.

But even as the clock ticks towards the August 16 deadline by which she should have appealed, else the President formalises her removal, another painful reality stands out: The rigours of appeal and the potential of more damaging evidence coming out in a public hearing.

The tribunal that probed her held its sittings in camera, but that won’t be the case were she to appeal. The prosecution and the defence will raise the bar of evidence: More witnesses and facts may be unsettling for someone already accused of acting violently and dishonourably before a judicial tribunal. 

But as things are, with her character and reputation severely undermined by her exposure as a judge who committed a crime, went ahead and tried to meddle with the victim of her aggression, and even lied about her actions that day and thereafter, an appeal may be futile. Already, her character is no longer beyond reproach, as required of judge of the Supreme Court.

Legal issues

Another fact that could show the suspended judge may be between the devil and the deep blue sea is that the tribunal ruling has severely undermined her suitability for other public appointments. The ruling may also have a negative impact on client trust were she to return to private legal practice.

Should Baraza appeal then it is the five Supreme Court judges who would determine her fate.  Not even the President who for decades, was the final authority in determining who serves as judge, can save Baraza.

Failure to file the appeal or to succeed should she do so, Baraza would be destined either to the world of academia or in the civil society where she featured prominently before she became DCJ in May, last year. And even there, the damning report on her misconduct by the seven-member tribunal is likely to follow her.

The process of her ultimate removal from the Judiciary, takes the country back to legal and political tussles witnessed in April, last year, when the post was being filled.

That aside, an appeal by Baraza is likely to spark an unprecedented legal contention over double role of Supreme Court President Willy Mutunga and Justice Smokin Wanjala.

The two are members of JSC, which recommended to President Kibaki in February that investigation of misconduct against Baraza be commenced.

Jostling for post

Though the report on her has been presented to President, Baraza is still on suspension and on half salary until the constitutional timelines to vacate office are exhausted.

The implication of a Baraza successful appeal would be that the Supreme Court now, comprising of five judges, might not affirm the tribunal’s decision handing Baraza a lifeline. As controversial as that decision would be, it would be the final word of the law of the land.

The Supreme Court has constitutional powers to hear and determine appeals from courts and tribunals.

Dismissing the appeal and confirming the recommendations of the tribunal would put the JSC in a spot. It will start by JSC advertising for the job, then shortlisting candidates for interview.

Given the acrimonious and embarrassing manner Baraza is vacating office, JSC will be keen to interrogate in depth the character of the person to replace her.

The JSC may even disregard strong objection by the Law Society of Kenya and pick a replacement from outside the country, but within the Commonwealth jurisdiction.

But the ultimate appointment by President Kibaki of the candidate recommended by the JSC will still be subject to approval by the National Assembly. That is the process in which the political aspects of Baraza’s sacking are likely to be presented for national debate.

But even a more ferocious debate will be on the regional and gender disparities in picking Baraza’s replacement.

Debate as to whether the seat should be given back to a woman or a man gets it is already going on. Some lawyers say the   JSC must look at the gender balance in the Judiciary as a whole, in determining whether to appoint a man or woman.

 “You can’t have 80 per cent of women as magistrates and only appoint male judges then claim there is gender balance,” said International Centre for Policy and Conflict executive director Ndung’u Wainaina.