By Wahome Thuku

Disgraced Deputy Chief Justice Nancy Baraza’s decision to challenge the recommendation to remove her from office will ruffle the Judiciary.

Her lawyer Kioko Kilukumi said Justice Baraza would file an appeal against the decision to eject her from office today.

Justice Baraza’s appeal will present various legal challenges touching on suitability of Supreme Court President Chief Justice Willy Mutunga and Judge Smokin Wanjala to sit and determine her fate.

Legal experts are in agreement that Mutunga and Wanjala’s double roles as judges of the highest court and members of Judicial Service Commission (JSC) could complicate the matter, raising challenges in according Justice Baraza a fair hearing. Wanjala represents Supreme Court judges in JSC.

Her last stroke to fight removal from office will be given impetus by the fact that presently, Supreme Court 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 early this month through vetting.

The latest twits come as focus shifts on JSC, which is already under fire for picking or promoting judges, who subsequently fail the test of competence.

It also depends on how Mutunga will deal with any legal issues that may be raised.

When the allegations of misconduct were made against Justice Baraza in early January, JSC formed a sub-committee comprising seven of its commissioners, which carried out preliminary investigations into the incident.

It then presented its findings to JSC chaired by Mutunga, which then recommended to Kibaki to form a tribunal.

removal of judge

All JSC members including Mutunga and Wanjala were present and took part in the recommendation.

Announcing their 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.”

Article 168(4) requires that JSC must be satisfied there are enough grounds to lead to the removal of the judge. Virtually all the 16 witnesses who testified before the sub-committee are the same ones who testified before the tribunal.

The sub-committee accessed all the evidence that was later adduced before the tribunal.

Mutunga would again have to preside over the Bench to determine if the recommendation by the tribunal is proper or not and Justice Wanjala would sit on that Bench.

“This would be a major obstacle for the DCJ to appear before two people who have already made adverse decisions against her in the past,” says lawyer Lempaa Soyianka.

Lawyers acknowledge Baraza may rightly ask the two to disqualify themselves from hearing her case. That would instantly complicate the matter given that the court has the minimum number of judges.

lead by example

The tribunal’s recommendation, however, raised questions as to whether JSC made the proper choice of the DCJ in May last year.

The JSC that was sworn in on January 11, last year was differently constituted. It was chaired by the current vice-chair Christine Mango. Other members were Chief Justice Evan Gicheru, Attorney General Amos Wako, justices Riaga Omolo and Isaac Lenaola, Florence Mwangangi, Ahmednasir Abdullahi, Titus Gateere, Antony Muheria and Emily Ominde.

This was the office that interviewed Justice Mutunga and Justice Baraza and proposed their appointment with the absence of Gicheru, who had already vacated office.

“The commission has seen the attribute and the vision we were looking for,” said Prof Mango when announcing the selection of the CJ and his deputy. “We were looking for candidates who will lead by example, persons of great depth, legal and constitutional leaning whose integrity is both impeccable and beyond reproach. These two are people we can trust the Judiciary with.”

Mutunga, Wanjala as well as Attorney General Githu Muigai and Reverend Samuel Kobia joined the JSC later, some as late as August 2011 when they were appointed to their respective offices. Other members like Gicheru, Wako, Justice Omolo and Muheria have since left the JSC.