NAIROBI, Kenya, Oct 18 – Former Deputy Chief Justice Nancy Baraza, who resigned on Thursday afternoon, will get all her benefits as outlined in the contract she signed with the Judicial Service Commission (JSC).
A legal expert interviewed by Capital FM News said Baraza would only have lost her terminal dues if she lost the appeal she had filed at the Supreme Court.
Baraza had sought the intervention of the Supreme Court following a decision by a tribunal calling for her dismissal from duty, after she was accused of assaulting a security guard.
Lawyer Patrick Kahonge however noted that it would be difficult to estimate the amount of money that Baraza was entitled to owing to the fact that the public was not privy to the discussions contained in her contract with the JSC.
“She will be entitled to her terminal dues, which are spelt out in her contract document but you know none of us has the advantage of knowing what is in it and we will have to go back to the contract. However her dues will also include her pension benefits,” he said.
Kahonge added that the JSC would have to advertise the vacancy to get a replacement.
The Judicial Service Act (2011) states that the Chief Justice shall within 14 days from the resignation date place a notice in the Kenya Gazette announcing the vacancy before the JSC can take up the matter.
The JSC will then place a notice on its website in addition to notifying the professional lawyers’ association and invite members of the public to apply for the available position.
“Because there is a vacancy the JSC has established a procedure of how to hire the Judges so in this case the commission will put up a public advertisement and they will vet the candidates they get,” Kahonge explained.
He also argued that there was a high possibility that the candidate chosen would be a woman so as to ensure that the Supreme Court adhered to the constitutional gender balance rule.
He added that if Lady Justice Njoki Ndung’u or any other judge, who sits in the Supreme Court, showed interest in the position they would also have to apply.
“And it doesn’t necessarily have to be those that had applied before and going by what the Constitution provides on gender and given the current composition of the Supreme Court it is most likely that the JSC will appoint a female candidate,” he argued.
Kahonge further pointed out that the JSC could also pick a female candidate who sits in the Court of Appeal or the High Court.
Baraza withdrew her appeal before the Supreme Court and instead chose to resign saying she had no faith in the process due to the court’s current composition.
“Two of the judges sat at the Judicial Service Commission which petitioned the president to appoint the tribunal that probed my conduct. They cannot therefore, logically and legally sit on my appeal,” she argued.
“I still reject the tribunal findings which I found most injudicious and not founded in known principles of law. However, our country is bigger and greater than any one of us,” she added.
The former Deputy Chief Justice had been accused of pinching a guard’s nose at the Village Market in Nairobi, on New Year’s Eve, in addition to threatening her with a gun after the guard attempted to frisk her.
A seven member tribunal, under the leadership of former Chief Justice of Tanzania Augustino Ramadhani, was then formed to investigate her conduct upon which it advised President Mwai Kibaki to remove her from office.
The president could however not act on the recommendation after Baraza filed the appeal against the tribunal’s decision.
The hearing was scheduled to take place on Wednesday but failed to materialise after Baraza’s lawyer failed to show up. It was then moved to October 23.