, NAIROBI, Kenya, Feb 16 – A constitutional court will determine next month whether suspended Deputy Chief Justice Nancy Baraza will face a seven-member tribunal set up by President Mwai Kibaki to investigate her conduct.
Justices Mohammed Warsame, Hellen Omondi and George Odunga have said they will decide a petition lodged by the suspended DCJ contesting the jurisdiction of the tribunal to probe her on March 12.
The tribunal was appointed to probe her conduct following a widely publicised altercation with a security guard at the Village Market on New Year’s Eve.
Baraza, through lawyer John Khaminwa, has urged the court to find that it is unconstitutional for the tribunal comprising Augustino Ramadhan (chairman) Judith Behemuka, Justice (Rtd) Philip Ransley, Surinder Kapila, Beauttah Alukhava Siganga, Grace Barbara Ngele Madoka and Mugambi Jesse Ndwiga Kanyua to investigate her conduct.
According to the DCJ, her constitutional rights will be violated because she will not have the right of appeal against any decision reached by the tribunal.
Baraza has punched holes in the recommendation by the Judicial Service Commission for the probe , saying it was based on a CID officer’s statement, which cannot be relied on as evidence.
The court has also been told that JSC had no powers under the new Constitution to form a sub-committee to investigate and recommend her suspension.
President Kibaki suspended Baraza and formed the tribunal to investigate her conduct following recommendations of the JSC, after the confrontation with security guard Rebecca Kerubo.
Lawyers Valeria Onyango (Lead Counsel) and Gideon Solonka Kilakoi (Assisting Counsel) were appointed to aid 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 had said.
In the discharge of its functions, the statement said: “The tribunal shall prepare and submit a report and its recommendations thereon to me (President Kibaki) expeditiously.”
“Honourable Lady Justice Nancy Makokha Baraza, the Deputy Chief Justice, Supreme Court of Kenya stands suspended from exercising the functions of her office with immediate effect according to Article 168(5) of the Constitution.”
The resolution to send a petition to the president was reached at a meeting held by the JSC on January 13, 2012.