, NAIROBI, Kenya, Jan 6 – A Kenyan researcher on Friday initiated a process seeking the removal of Deputy Chief Justice Nancy Baraza from office following her spat with a security guard at the Village Market shopping mall on New Year’s eve.
In a petition to the secretary of the Judicial Service Commission, Peter Gichira Solomon has quoted relevant provisions of the Constitution and is seeking her ejection for misconduct against Rebecca Kerubo. Baraza has admitted there was an altercation but denies brandishing a gun at the guard.
“I do hereby submit a petition for the removal of office of the Deputy Chief Justice, the Lady Hon. Justice Nancy Baraza following her misconduct and misbehaviour against Ms Rebecca Kerubo on Saturday 31st December 2011 at the Village Market, Nairobi, Kenya,” Solomon states in his petition.
Solomon said that by her words, actions and demeanour, Baraza failed to uphold constitutional Leadership and Integrity provisions under Chapter Six.
He also said that the Deputy Chief Justice failed to uphold the law through her “power to rule” attitude towards Kerubo who was performing her official security duties.
“Further failed to uphold its article (a) through her “power to rule” attitude to Ms Kerubo, a law abiding Kenyan taxpayer while performing her official security duties for the safety of the citizenry -all in contravention of Chapter Six, 73. (1) (a) (i) of the Constitution of Kenya,” he added.
According to the Constitution, the process of removing a judge can be initiated by the Judicial Service Commission on its own motion or at the instigation of a private citizen.
Solomon says his petition is informed by his worry that public dissatisfaction with the way the issue is dealt with may strike a fatal blow to confidence in the Judiciary and the rule of law. He believes that if the law is given the highest priority and justice is done, then a reputation for the Judiciary and the new dispensation will forever have been established.
“My petition for the removal of the Deputy Chief Justice from office is informed by my worry that, on one hand, public dissatisfaction with the way this issue is dealt with may strike a fatal blow to confidence on the Judiciary and the rule of law at the very inception from the New Constitution. On the other hand, if the law is given the highest priority and justice is done, then a reputation for the Judiciary and the new dispensation will forever have been established,” he added.
“As a private citizen, I have thus played my role through this petition, but also acknowledge that this is the real litmus test for the Judiciary.”
Process of removal of a judge
The Constitution of Kenya provides under Article 168. (1) A judge of a superior court may be removed from office only on the grounds of –
(a) Inability to perform the functions of office arising from mental or physical incapacity;
(b) A breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament;
(d) Incompetence; or
(e) Gross misconduct or misbehaviour.
(2) The removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission.
(3) A petition by a person to the Judicial Service Commission under clause (2) shall be in writing, setting out the alleged facts constituting the grounds for the judges removal.
(4) The Judicial Service Commission shall consider the petition and, if it is satisfied that the petition discloses a ground for removal under clause (1), send the petition to the President.
(5) The President shall, within fourteen days after receiving the petition, suspend the judge from office and, acting in accordance with the recommendation of the Judicial Service Commission-
(a) In the case of the Chief Justice, appoint a tribunal consisting of-
(i) The Speaker of the National Assembly, as chairperson;
(ii) Three superior court judges from Common Law jurisdictions;
(iii) One advocate of fifteen years standing; and
(iv) Two other persons with experience in public affairs; or
(b) In the case of a judge other than the Chief Justice, appoint a tribunal consisting of-
(i) a chairperson and three other members from among persons who hold or have held office as a judge of a superior court, or who are qualified to be appointed as such but who, in either case, have not been members of the Judicial Service Commission at any time within the immediately preceding three years;
(ii) One advocate of fifteen years standing; and
(iii) Two other persons with experience in public affairs.
(6) Despite Article 160 (4), the remuneration and benefits payable to a judge who is suspended from office under clause (5) shall be adjusted to one half until such time as the judge is removed from, or reinstated in, office.