Baraza loses bid to block tribunal

By Evelyn Kwamboka and Willis Oketch

Deputy Chief Justice Nancy Baraza has failed to block a tribunal from investigating her conduct.

The High Court ruled Thursday that her request for interim orders against the team has been overtaken by events after President Kibaki announced the tribunal lineup on Wednesday.

"We must treat our own with profound respect [and] in the same breath treat judicial officers just like ordinary citizens seeking protection from an alleged infringement or isolation suffered as a result of the conduct, action or omission," the judge said.

Nancy Baraza

Justice Mohammed Warsame ordered her to serve the Judicial Service Commission (JSC) and Attorney General Githu Muigai with the suit papers, so that the issues raised in her application can be discussed between the parties on Monday, next week.

"Just like ordinary citizens, the applicant can only be granted the interim orders if there is a prima facie (arguable) case and which needs urgent interim orders," the judge ruled.

Due to the weight and fundamental issues in the petition, the High Court certified the case as urgent and ordered it be heard on Monday.

Earlier, the case was taken to Justice Isaac Lenaola, who is in charge of the Judicial Review Division of the court, but he could not hear it since he is a member of JSC. The same applied to Lady Justice Mumbi Ngugi who served in Fida-Kenya with Baraza.

The DCJ, who is alleged to have assaulted a security guard at Village Market in Nairobi, on New Year’s Eve, moved to the High Court in Nairobi Thursday, barely 24 hours after President Kibaki suspended her from office, pending investigations into her professional conduct.

The President formed a tribunal of seven to investigate claims that she confronted a security, guard, Rebecca Kerubo. This followed a petition to Kibaki from the JSC, as the Constitution requires.

In the tribunal are Augustino Ramadhan, Judith Behemuka, Justice (Rtd) Philip Ransley, Surinder Kapila, Beauttah Alukhava Siganga, Grace Barbara Ngele Madoka, and Mugambi Jesse Ndwiga Kanyua.

The High Court was told Baraza had not received a letter from Kibaki or a gazette notice suspending her from office, and was working in her chambers at the Supreme Court in Nairobi.

Punched holes

Baraza, through her lawyer John Khaminwa, punched holes in the JSC petition, saying it was based on a CID officer’s statement, which cannot be relied on as evidence.

"When you put police officers in a witness box, they contradict themselves and start making confessions. You will be extremely blinded to make a finding using a police statement," he said.

"All we are told is a misunderstanding between two women at a market place and you ask His Excellency to appoint a tribunal? JSC has no proof of misbehavior," Khaminwa argued.

The court was told JSC had no powers under the new Constitution to form a sub-committee to investigate her, and what it did was erroneous.

It is Baraza’s testimony that JSC did not give her any documents touching on the allegations against her.

In the application, she wanted the judge to issue a conservatory order restraining any State officer or institution from publishing in the Kenya Gazette notice a tribunal as requested by JSC in its petition to the President.

She wanted the court to temporarily stop the swearing-in of the tribunal members, and that it be stopped from executing its mandate.

In her affidavit, Baraza stated that she had an encounter at the Village Market Mall on December 31, last year, and thereafter, a series of events followed. She claimed there was extensive media coverage which tailor-made the episodes to "achieve character assassination".

She added: "My reputation has been severely damaged by the intense media coverage."

In the petition forwarded to the President by Chief Justice Willy Mutunga, the findings of the sub-committee stated that as per the statement of a witness who appeared before it, it was clear Baraza breached the Constitution.

The sub-committee stated that she breached the Article that requires a State officer to behave, whether in public and official life, in private or in association with other persons, in a manner that avoids demeaning the office he or she holds.

The committee found that her actions breached the Judicial Service Code of Conduct and Ethics.

The security guard, Ms Kerubo alleged that Baraza brandished a pistol at her.

She also claimed the DCJ pinched her nose and threatened to shoot her when she pursued her to demand she undergo a routine security check.

Meanwhile, a remand prisoner in Malindi prison has moved to court seeking orders to set aside the JSC report that recommended Baraza’s suspension.

Right to privacy

Emmanuel Boki Kibagendi, who is facing a capital offence in Kilifi, has filed five grounds why he feels the rights of Baraza were overlooked by the JSC, which recommended her suspension to President Kibaki.

He wants the court to stop the proceedings against Justice Baraza until his application is heard and determined.

He claims Chief Justice Willy Mutunga rushed in interpreting the law, which was not fair, and wants the contents of the report declared null and void. Justice Edward Muchiri ordered prison officers in Malindi to produce Kibagendi in court on Monday to make his application.

Kibagendi, who will argue the application on his own, says the decision of JSC was unconstitutional because the committee failed to consider that every citizen had a right to privacy.

He says JSC erred in recommending the suspension of Baraza, without documentary evidence that the metal detector raised an alarm, which warranted Kerubo to use her hands to search the DCJ’s handbag.

He claims that by using her hands instead of the detector, Kerubo breached Baraza’s right to privacy, which the ad hoc sub-committee failed to include in the report. "The security guard could have used a sensor, which if used limits intrusion into one’s privacy," said Kibagendi.