, NAIROBI, Kenya, Feb 1 – The Director of Public Prosecutions (DPP) Keriako Tobiko has put on hold a decision whether or not to prosecute suspended Deputy Chief Justice Nancy Baraza until the determination of a case she’s filed in court and conclusion of the tribunal investigating her conduct.
Tobiko said this was to ensure that Baraza’s right to fair treatment and due process under the Constitution was not violated and that she was not subjected to multiple concurrent legal processes.
Already, there is a tribunal in place to inquire into her removal from the office of Deputy Chief Justice.
“Secondly, on her part, the DCJ has gone to court to challenge the removal process. In the court petition, the DCJ relies on the fact that I had found the investigations earlier carried out by the police to be incomplete as one of the grounds to challenge the appointment of the tribunal,” Tobiko said in a statement.
He added that the two processes were “distinct and separate” because that they had different evidentiary thresholds.
“Criminal prosecution requires a higher standard of proof than a removal process. However, although the two processes are different, they are, nonetheless, intrinsically interrelated as they rely on the same evidence and witnesses,” he said. Read a related story here.
He spoke as the seven-member tribunal set up to investigate Baraza’s conduct was sworn into office on Wednesday to probe the alleged gun drama at the Village Market shopping mall on New Year’s Eve.
This came a week after President Kibaki gazetted members of the tribunal to be chaired by Augustino Stephen Lawrence Ramadhan, a former Chief Justice of Tanzania.
“In discharge of its functions, the tribunal shall prepare and submit a report and its recommendations thereon to me expeditiously and exercise all the powers conferred upon it by law for the proper execution of its mandate,” the president said in his Gazette notice.
Other members of the tribunal are Judith Mbula Behemuka, Justice (Rtd) Philip J. Ransley, Surinder Kapila, Beauttah Alukhava Siganga, Grace Barbara Ngele Madoka and Mugambi Jesse Ndwiga Kanyua.
Lawyers Valeria Onyango (lead counsel) and Gideon Solonka Kilakoi (assisting counsel) were appointed to aid the tribunal.
However, the members of the tribunal cannot question Baraza for a period of 45 days following a High Court ruling on Monday that blocked the tribunal from summoning her pending the determination of a case she filed challenging the removal process.
Chief Justice Willy Mutunga appointed the three-judge bench comprising Mohammed Warsame as the presiding judge, Hellen Omondi and George Odunga to determine a petition filed by Baraza challenging her removal process.
President Kibaki suspended Baraza on Wednesday last week and formed the tribunal to investigate her conduct following allegations that she pinched a security guard’s nose and threatened to shoot her.