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What Mutunga actually said

By | Jan 14th 2012 | 3 min read
By | January 14th 2012

Following widespread media reports concerning a New Year Eve incident that occurred at the Village Market, Nairobi involving an alleged row between a security guard Mrs Rebecca Kerubo and Deputy Chief Justice Mrs Nancy Baraza I released a press statement on January 5.

In my statement I reiterated my commitment to the rule of law and my steadfast belief in the equality of all before the law. I further noted the public interest generated by the incident at the Village Market and promised that the organs at the Judiciary will deal with the incident "conclusively and satisfactorily."

In the said press statement I gave notice that I was convening an emergency session of the Judicial Service Commission (JSC) with a view to address the issues raised by the Village Market incident. I noted that I was aware that the police were investigating the incident and reiterated, "no one in Kenya is above the law."

On January 9, as promised I presided over a full JSC meeting. The JSC then resolved to appoint a sub-committee of eight members to look into the said incident and report back to the commission.

The committee was chaired by Reverend Samuel Kobia. The other members were commissioners Justice Isaac Lenaola, Prof Christine Mango, Emily Ominde, Florence Mwangangi, Ahmednasir Abdullahi and Titus Gatere. The secretary was Glady Shollei, the Chief Registrar of the Judiciary. In appointing the sub-committee, the JSC set it terms of reference as follows:

1. To investigate all aspects or facets of the incident, altercation, exchange, disagreement and/or argument between the DCJ Nancy Baraza and Ms Rebecca Kemunto on New Year’s eve at the Village Market Shopping Mall.

2. To interview, interrogate and debrief Ms Baraza, Kerubo and other material witnesses relevant to the incident.

3. To hear, receive any report or information that the public may forward relating to the incident.

4. To liaise and collaborate with any agency or institution that may have relevant information, report or witness testimony relevant to the incident.

5. To report its findings and recommendations on the incident and all relevant issues to the JSC on January 13.

The subcommittee interpreted and understood its mandate to be holistic appraisal, audit and investigation of all facets of the Village Market incident in so far as it relates to the incident relevant to the person of the Deputy Chief Justice.

The subcommittee took cognizance of the fact that its mandate relates to an investigation as to whether the Deputy Chief Justice has breached the judicial code of conduct or acted in a gross manner or showed, exhibited a conduct that can be seen as a gross misconduct or misbehaviour under Article 168 of the Constitution of Kenya.

Subsequent to my calling for an emergency meeting, the JSC received a petition for the removal from office of Baraza from one David Gichira. This petition under close scrutiny by the subcommittee was found to be devoid of any material substance to act upon under Article 168 of the Constitution. Therefore it was dismissed in limine.

This report by the subcommittee therefore is based on the inquiry on the incident pursuant to the JSC’s own motion to investigate an issue that may have raised as it relates to the conduct of the Deputy Chief Justice.

The subcommittee embarked to discharge its mandate by holding evidentiary hearings and interviewing several material witnesses. The Deputy Chief Justice was afforded an opportunity to testify before the subcommittee. We must reiterate that this was not a criminal trial.

The standard of proof per Article 168 and the judicial code of ethics is not the same as for criminal proceedings. It is not beyond reasonable doubt.

After lengthy deliberation, evaluation of witness testimonies and other material evidence submitted, the JSC has now resolved that pursuant to Article 168 (4) it will send a petition to the President with a view of suspending Justice Nancy Baraza as a judge of Supreme Court and Deputy Chief Justice of the Republic of Kenya and to appoint a tribunal to investigate her conduct.


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