Details of Baraza statement emerge even as Githu backs tribunal
By Evelyn Kwamboka
A police transcript containing suspended Chief Justice Nancy Baraza’s confession over the Village Market on the Eve of New Year saga has been filed in court.
In the document filed by the Judicial Service Commission, the DCJ said she was not going to shoot security guard Rebecca Kerubo using her driver’s gun.
"I wasn’t going to shoot her, I was showing her, probably the naÔve way of a mother or a woman. Yeah. And I showed her I am like, this is what we shall get into," she said.
This is in the transcript containing details of a recorded interview of Baraza by Senior Assistant Commissioner of Police Mohammed Amin. It is this transcript and other details that JSC’s sub-committee used to form a basis of its findings that led to President Kibaki suspending Baraza and forming a tribunal to investigate her.
It is part of the papers filed by JSC in its response in a case in which Baraza wants the High Court to stop a tribunal appointed by President Kibaki from investigating her conduct based on allegations that she pinched a security guard’s nose and threatened her with a gun.
High Court judges Mohammed Warsame, Hellen Omondi and George Odunga, who are expected to deliver their judgement on whether the tribunal chaired by Tanzania Chief Justice (Rtd) Augustino Ramadhan is to investigate her conduct, were told the transcript clearly shows that Baraza did not give her statement to the police under duress.
The judgement, to be delivered on March 12, is to set a precedent in cases touching on senior judicial officers under the new Constitution and in the Commonwealth.
In the transcript, Baraza told the police in her statement the gun was not inside her bag and that she was just showing Ms Rebecca Kerubo that there were guns around her.
"Now I did it like a kieyenji (ordinary) woman, like to show her there were guns around me. I didn’t give it much thought but I thought I was explaining to her, next time somebody is trying to explain something to you, please listen," she told the officers at the CID headquarters on January 7.
Baraza had gone to a chemist at the mall to buy medicine for her son when she was involved in an altercation with a security guard.
She admitted that she does not own a gun or license, but that the people around her (driver and bodyguard) do.
The DCJ said she felt remorseful on her way home on the material day and was planning to return to the mall the following day when the police called her.
On Thursday, Attorney General Githu Muigai told her to face the tribunal and asked the court to dismiss her case because the President set up the tribunal to investigate her, as per the Constitution.
Through State Counsel Stella Munyi, the AG pointed out that what the sub-committee appointed by JSC did, was not a trial but an inquiry into the Village Market saga.
Munyi asked the three-judge Bench to dismiss claims that the sub-committee chaired by Reverend Samuel Kobia infringed her constitutional rights by failing to hear her account.
Baraza appeared before the sub-committee on January 10, when she denied having handled a gun during the incident. It is here she said for the first time that she recorded her statement under duress.
Munyi also dismissed claims by Baraza that the AG is JSC’s legal advisor and that he influenced the Director of Public Prosecutions Keriako Tobiko and CID officers in the matter.
The court was told that if the AG had influenced the DPP and CID, Baraza could have been charged with a criminal offence by now.
"No legal advice was sought from the DPP or CID and the AG has never interacted and does not know the CID officers," she told the court.
On its part, JSC through its lawyer Paul Muite argued that JSC and the President acted within their mandate as provided by the Constitution.
Muite said his client takes seriously to safeguard the integrity of judges and the constitutional process leading to the recommendation of the removal of a judge by petitioning the president.
He said the Chief Justice Willy Mutunga convened a special JSC meeting on January 9 to deliberate on the Village Market saga. It is at this meeting that members resolved to appoint a sub-committee to inquire into the matter.
In an affidavit filed by JSC’s secretary Gladys Shollei, 15 witnesses testified, among them Amin, who said Baraza confessed on her own free volition and admitted the allegations made by Kerubo.
On Tuesday, Baraza’s lawyer told the court that in law, the statement recorded under duress could not be relied on in law.
"The officers made it clear to her to confess, so that they could leave her. As soon as she made the statement that they wanted, one of them called the AG, saying, "We have cracked it." It is the AG who was also the first person to produce that statement to the Judicial Service Commission," said Khaminwa.
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