Baraza has 10 days within which she can challenge the decision of the tribunal/FILE
The seven-member tribunal chaired by former Chief Justice of Tanzania Augustino Ramadhani has now advised President Mwai Kibaki to remove Baraza – who is also the Vice President of the Supreme Court – from office.
Baraza was accused of assaulting security guard Rebecca Kerubo and threatening to shoot her on New Year’s Eve at the Village Market shopping mall.
“We are satisfied that the allegations have been proved and that we have no doubt in our minds that what was alleged to have occurred did in fact occur,” Ramadhani said.
“We therefore find that allegation number one has been sufficiently proved that the DCJ pinched the nose of Kerubo and that the conduct displayed by DCJ was demeaning her office to say the least.”
“Allegation number two has also been sufficiently proved that the DCJ threatened to shoot Kerubo with a pistol and that conduct constitutes gross misconduct on her part.”
The tribunal pointed out that despite a brilliant career in which she made an outstanding contribution to the nation as an advocate and commissioner of the Constitution Review Commission, there were aggravating factors which show she lacked the temperament and ability to perform judicial functions.
“She didn’t carry herself in the manner anticipated by the Constitution and the Judicial Code of Conduct,” they ruled. “Every single judge has a potential of preserving or tarnishing the integrity of the Judiciary on every occasion.”
Baraza was accused of contacting Kerubo and her fellow guard Anthony Makhanu on June 27, a week before the tribunal was scheduled to start its hearing where she asked them to alter their evidence that she brandished a pistol and threatened to shoot Kerubo.
But Baraza told the tribunal that she had merely wanted to reconcile with Kerubo.
“This was a very serious undertaking conducted by a judicial officer. We are therefore not convinced the Deputy Chief Justice cannot be expected not to engage in this kind of misconduct or misbehaviour in the future,” they said.
“The fact that she improperly contacted witnesses also raises concerns about her ability to refrain from future misconduct.”
In their opinion, the tribunal ruled, a judge who engages in lawless conduct and thereafter tries to explain it away with misleading testimony ‘should not continue in office.’
“The tribunal members have unanimously found that the conduct of the DCJ on 31st December 2011 at the Village Market amounted to both gross misconduct and misbehaviour,” they said.
“We therefore recommend to Your Excellency Mwai Kibaki that Lady Justice Nancy Makokha Baraza, the Deputy Chief Justice and the Vice President of the Supreme Court of Kenya, be removed from Office.”
According to the Constitution in Article 168 (8) Baraza has 10 days within which she can challenge the decision of the tribunal.
“A judge who is aggrieved by a decision of the tribunal under this Article may appeal against the decision to the Supreme Court, within 10 days after the tribunal makes its recommendations.”
In the absence of an appeal, the president is obligated to act on the recommendations of the tribunal and remove Baraza from office.