, NAIROBI, Kenya, Jan 30 – The High Court has blocked the tribunal investigating Deputy Chief Justice Nancy Baraza from summoning her, pending the determination of the case she has filed challenging it.
Baraza moved to court a day after President Mwai Kibaki appointed a seven-member tribunal to investigate her conduct following an alleged gun drama at the Village Market shopping mall on New Year’s Eve.
Justice Mohammed Warsame said in granting the order that the court was not defeating the course of justice and directed that the matter be heard and determined within 45 days.
“I have considered that this is an application that is meant to stop a constitutional process. However in order not to defeat the course of justice I order the tribunal not to summon her pending the determination of the petition within the next 45 days,” Justice Warsame said.
The Chief Justice Willy Mutunga will now constitute a three judge bench to hear Baraza’s petition. The matter is due in court on Friday for further directions.
The suspended Deputy CJ had complained to court that the tribunal had no jurisdiction to probe her since President Kibaki had violated the law when he constituted the panel.
“I hold that the President did not violate the law in forming the tribunal,” Warsame ruled.
However the Judicial Service Commission which instigated her suspension by writing to the president argued that the law was properly followed when the team was put in place.
JSC’s lawyer Paul Muite told the court that the Constitution was followed to the letter when recommendations were made to the President Kibaki to suspend her and appoint a tribunal to investigate her conduct.
“No law was violated. We will in due course provide the applicant with materials that JSC relied upon in recommending her suspension,” Muite said.
President Mwai Kibaki suspended Baraza on Wednesday last week and formed a tribunal to investigate her conduct following allegations that she pinched a security guard’s nose and threatened to shoot her.
The action by the Head of State followed recommendations by the Judicial Service Commission (JSC) which demanded that she faces suspension and a probe, after last month’s confrontation with Rebecca Kerubo.
The tribunal includes 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 assist the tribunal.
“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 regarding the conduct of the Honourable Deputy Chief Justice, Lady Justice Nancy Makokha Baraza,” a dispatch from State House said.
In the discharge of its functions, the statement said: “The Tribunal shall prepare and submit a report and its recommendations thereon to me expeditiously.”
A police probe over the same matter had been concluded and the file is before the Director of Public Prosecutions Keriako Tobiko for action.