Baraza faces moment of truth at JSC hearing

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Bella Dona Pharmacy inside the Village Market where the Deputy chief justice Nancy Baraza had gone to purchase drugs before she exchanged words with a security officer Rebecca Kerubo who later claimed of being threatened the Deputy CJ on January 4, 2012. PHOTO/ JENNIFER MUIRURI 

By SATURDAY NATION TEAM newsdesk@ke.nationmedia.com
Posted  Friday, January 6  2012 at  22:30

IN SUMMARY

• Deputy CJ denies threatening a security guard with a gun during the now infamous New Year’s Day incident at Gigiri

Another written statement was taken on Friday from Ms Rebecca Kerubo, the security guard who accuses the Deputy Chief Justice of pointing a gun at her on New Year’s day.

A colleague of Ms Kerubo also recorded a statement on the incident at the Village Market mall which will now be the subject of an emergency Judicial Service Commission (JSC) hearing called by Chief Justice Willy Mutunga.

A member of the commission, who did not wish to be named, told the Saturday Nation that Deputy Chief Justice Nancy Baraza was also expected to write a statement of her own ahead of the JSC hearing on Monday.

Ms Baraza will be the first witness to appear before the emergency JSC meeting on Monday from 2.30 pm.

Dr Mutunga summoned the JSC on Thursday saying no person or institution was above the law. “This is the creed that we seek to uphold in the judiciary,’ he said in a statement.

A member of the commission who did not want to be identified by name said the JSC had the powers to recommend sanctions ranging from removal to reprimand depending on the analysis of events by the witnesses.

He said the JSC would also review CCTV footage of the Village Market incident.

Ms Baraza denies threatening the security guard with a gun during the New Year’s Day incident in the northern Nairobi suburb of Gigiri.

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Though she admitted that there was a confrontation with the guard, she has denied the gun claim.

Ms Kerubo, a mother of three, said she had only worked at the mall for one month and has occasionally encountered mall goers who resisted screening.

Most businesses have enhanced security following threats of an Al Shabaab attack after Kenya sent its military inside Somalia to end incursions into the country by the militants.

Ms Kerubo claims that Ms Baraza walked past the screening desk and when asked to undergo security checks she pinched her nose and confronted her.

Ms Baraza has also denied pinching her.

Ms Baraza has described the incident as “unfortunate” but insisted that she has never been issued with a gun.

A member of the commission who spoke to Saturday Nation on condition of anonymity cited possible outcomes of the probe and gave insights into what is likely to transpire during the Monday meeting.

Her side of the story

First, the meeting will give Ms Baraza an opportunity to give her side of the story as the commission seeks to establish the truth over the incident.

“If it is established that the she pulled a gun and threatened the security then that could amount to gross misconduct,” said the commissioner.

But if the commission, which has powers to discipline judges, finds that Ms Baraza only pinched the security guard’s nose as claimed, then the options might range from suspension, reprimand, chastisement or even a financial penalty.

Article 168 of the Constitution says a judge of a superior court may be removed from office for gross misconduct or misbehaviour.

The removal may be initiated only by the JSC acting on its own motion, or on the petition of any person to the commission. If the JSC is satisfied that the petition discloses a ground for removal, then it will be sent to the President.

The President shall, within 14 days of receiving the petition, suspend the judge from office and appoint a tribunal to probe the matter.
Meanwhile, a citizen has petitioned the Chief Justice and the JSC to sack Ms Baraza.

Mr Peter Gichira Solomon says in a petition that Ms Baraza failed to uphold the values of leadership expected of a state officer as provided for in the Constitution, during her recent dramatic encounter with a guard at a Nairobi mall.

“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.”

“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 to confidence on the Judiciary and the rule of law at the very inception from the New Constitution,” he says.

Mr Gichira says that the matter is “the real litmus test” for the Judiciary, adding that he had played his role as a citizen by writing the petition.

Civil activists have also warned they will not accept the findings of the Judges’ disciplinary unit looking into the conduct of the besieged judge unless she steps aside to pave way for independent investigations.

“Failure to do that, we hope that the emergency session of the JSC that chief Justice Dr Willy Mutunga has called will suspend the DCJ pending investigations,” said Mr Okiya Omtatah, Executive Director of Kenyans for Justice and Development.

Reported by Emeka-Mayaka Gekara, Richard Munguti and Leonard Mutinda