NAIROBI, Kenya, Mar 13 – The fate of suspended Deputy Chief Justice Nancy Baraza appears sealed after the High Court ruled that she must face a tribunal set up to investigate her conduct.
Justices Mohammed Warsame, Hellen Omondi and George Odunga observed that the tribunal would give Baraza the opportunity to defend herself following an alleged assault against security guard Rebecca Kerubo in Nairobi on New Year’s Eve.
The High Court in January issued temporary orders restraining the tribunal set up by President Kibaki to probe Baraza’s conduct from going on with the investigation, until her petition was heard and determined.
“Having considered all the grounds raised by the petitioner and the response by the respondents, we think that the issues raised cannot entitle the petitioner to the orders sought,” the judges said adding that the Judicial Service Commission did not commit any errors or omissions in the manner in which it conducted its inquiry which recommended establishment of the tribunal.
Tuesday’s ruling was immediately contested by Baraza’s lawyer John Khaminwa who argued that his client had not received fair trial by virtue of two gazette notices issued after the closure of submission by counsels.
Khaminwa accused the court of being influenced by the Executive in making its decision since it had not factored the effect of the two legal notices.
Khaminwa sought stay orders to bar the tribunal from embarking on its task until the appeal is heard and determined.
The judges however declined to issue the order, instead urging Khaminwa to proceed to the Supreme Court and lodge an appeal.
They said they did not have ‘supernatural’ powers to get to know of the gazette notices which not been brought to their attention before the ruling was made.
Counsel representing the Judicial Service Commission (JSC) Paul Muite termed the allegations by Khaminwa as grossly unfair to the impartiality of the court.
He said that it was not in the interest of justice for the court to further delay the commencement of duty by the tribunal which was constituted by the president in January.
The court also ruled that the tribunal limits its scope to the matters included in the petition sent to the president by the Judicial Service Commission.
The judges ordered that the words “including but not limited to” to be deleted from the gazette notice of January, 26 2010 to give clarity to the scope of inquiry the tribunal will handle.
The gazette notice on the formation of the tribunal had said: “The mandate of the tribunal shall be to investigate the conduct of the Deputy Chief Justice, Supreme Court of Kenya, Honourable Lady Justice Nancy Makokha Baraza on the basis of Articles 168 (I)(e); 73(I)(a) and (b); and 75(I) and (2) of the Constitution and the Judicial Service Code of Conduct and Ethics, Legal Notice No. 50 and other relevant laws and matters including but not limited to the allegations contained in the petition by the Judicial Service Commission of Kenya dated 19th January, 2012 and presented to myself (president).”
“For the petitioner to be confronted with fresh allegations by the tribunal which were not sieved through by the commission (JSC) goes against the principle of legitimate expectation,” the judges said.
The court further ruled that JSC had relied on Baraza’s confession alone as the basis of its recommendations as there was evidence of the commission relying on statements of other witnesses in respect of the New Years Eve incident.
The three-judge bench said that there was no evidence that the Deputy Chief Justice had suffered any inhumane treatment or that she was exposed to any administrative act that was unlawful, unprocedural or unreasonable.
The court affirmed that the tribunal was well constituted to undertake its mandate following submissions by the petitioner to the effect that the DCJ was entitled to a tribunal similar to the one that may be constituted in the case of the Chief Justice.
Baraza had moved to court arguing that she would not get a fair trial before the tribunal.
The tribunal was established following a petition by the Judicial Service Commission to inquire into Baraza’s conduct following the altercation at the Village Market.
President Kibaki suspended Baraza from office and formed the tribunal to investigate her conduct, following allegations that she pinched Kerubo’s nose and threatened to shoot her.
The seven-member tribunal comprises Augustino Stephen Lawrence Ramadhan, a former Chief Justice of Tanzania, as chairman. The members are Prof Judith Mbula Behemuka, Justice (Rtd) Philip J. Ransley, Surinder Kapila, Beauttah Alukhava Siganga, Grace Barbara Ngele Madoka and Prof Mugambi Jesse Ndwiga Kanyua.
Lawyers Valeria Onyango (Lead Counsel) and Gideon Solonka Kilakoi (Assisting Counsel) were appointed to back the tribunal.