By Evelyn Kwamboka
Efforts by suspended Deputy Chief Justice Nancy Baraza to stop a tribunal from investigating her conduct have flopped.
The High Court dismissed her petition, saying the tribunal will give her adequate opportunity to contest the evidence and cross-examine witnesses.
But the three-judge-Bench ordered the tribunal to investigate only the Village Market incident on New Year’s Eve.
The tribunal was told not to entertain any allegations outside the petition the Judicial Service Commission forwarded to the President.
This, the court said, is because allowing allegations outside the document that led to the appointment of the tribunal would amount to the President abusing his statutory and constitutional powers. Suspended Deputy Chief Justice Nancy Baraza addresses students of Lugulu Girls High School in Bungoma during the school’s Book Harvesting Day last Saturday. Baraza, an alumnus of the school, donated textbooks worth Sh250,000. [PHOTO: BENJAMIN SAKWA/STANDARD]
Suspended Deputy Chief Justice Nancy Baraza addresses students of Lugulu Girls High School in Bungoma during the school’s Book Harvesting Day last Saturday. Baraza, an alumnus of the school, donated textbooks worth Sh250,000. [PHOTO: BENJAMIN SAKWA/STANDARD]
In the gazette notice in which President Kibaki appointed the tribunal, he indicated that the chairman, Tanzania’s Chief Justice (rtd) Augostino Ramadhan and his team, are to investigate matters including but not limited to the allegations contained in the petition dated January 19.
Judges Mohammed Warsame, Hellen Omondi, and George Odunga said the President has no powers to enlarge the tribunal’s mandate. They said his powers are constitutional, and the mandate is limited to the petition.
"The President is like a conveyor belt and forwards the petition to the tribunal and cannot purport to include matters which were not considered and determined by the commission. The President enjoys no discretion and has to execute his mandate in accordance with the petition," Justice Warsame said.
He said the words "including but not limited to" should be struck out of the gazette notice, leaving Justice Ramadhan and his team to consider only JSC’s petition.
The court said failure by the JSC’s sub-committee to allow Baraza to cross-examine 15 witnesses who gave evidence does not amount to breach of rules of natural justice.
The court said the committee heard her version of the Village Market saga. She is accused of pinching security guard Rebecca Kerubo’s nose, and threatening her with a gun.
Claims by Baraza that Attorney General Githu Muigai gave hurried advice to the President to suspend her were also dismissed.
"There is no evidence that the AG acted in a particular manner whether malicious or otherwise to achieve ulterior motives," Justice Warsame said in the 142-page decision.
The court said it is not satisfied at this stage that the basis for the decision by the commission to send the petition to the President was solely the result of police investigations.
Baraza had alleged that the commission should not have relied on a statement she recorded under duress to petition the President.
Through her lawyer John Khaminwa, Baraza had claimed she recorded the statement at the CID headquarters in Nairobi under duress.
The court was told officers led by Assistant Commissioner of Police Mohammed Amin used the statement touching on an incident in which she is accused of pinching a security guard’s nose, and threatening using a gun in exchange for her freedom.
Khaminwa said in law a statement recorded under duress cannot be relied upon.
In the police transcript filed in court, the DCJ said she was not going to shoot the security guard (Kerubo) with 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.
It is this transcript and other details that JSC used to form a basis of its findings that led to President Kibaki suspending Baraza and forming a tribunal to investigate her.
Baraza told the police the gun was not inside her bag, and that she was just showing Kerubo that there were guns around.
"Now I did it like a kieyenji (ordinary) woman, like showing her there were guns around me. I didn’t give it much thought. 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 when the incident in which she is accused of pinching Kerubo’s nose and threatening her with a gun, occurred.
She admitted that she does not own a gun or possess a license for one, but people around her – her driver and bodyguard – do.
The DCJ said she felt regret on her way home and was planning to return to the mall when the police called her.
On his part, through State Counsel Stella Munyi, the AG said what the JSC sub-committee did was an inquiry into the Village Market incident.
Munyi asked the Bench to dismiss claims that the sub-committee chaired by the Reverend Samuel Kobia breached Baraza’s constitutional rights by failing to hear her account.
Baraza appeared before the sub-committee on January 10.
She denied having handled a gun during the incident. It is here she said for the first time she recorded the statement under duress.
Munyi also dismissed claims by Baraza that the AG is the JSC’s legal advisor, and that he influenced Director of Public Prosecutions Keriako Tobiko and CID officers in the matter.
Paul Muite, JSC’s lawyer, argued that the commission and the President acted within their mandates.
Integrity of judges
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 CJ Willy Mutunga convened a special JSC meeting on January 9, to deliberate the Village Market saga. It is at this meeting that members resolved to appoint a sub-committee to probe the incident.
In an affidavit JSC secretary, Gladys Shollei, filed 15 witnesses to testify. Among them was Amin who said Baraza confirmed Kerubo’s claims.