Friday, January 13, 2012

Baraza gun probe is shoddy, says Tobiko



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By JOHN NGIRACHU jngirachu@ke.nationmedia.com and PAMELA CHEPKEMEI pjepkemei@ke.nationmedia.com
Posted  Thursday, January 12  2012 at  22:30
IN SUMMARY
  • DPP finds police file wishy-washy, orders more investigations
There isn’t enough evidence to prosecute Deputy Chief Justice Nancy Baraza on gun charges, Director of Public Prosecutions Keriako Tobiko has concluded.
The case put together by the police has gaps, inconsistencies and contradictions, says the DPP. He has now given the police seven days to fix them and report back to him. (READ: Police want Baraza tried)
“I have completed review of the file and sent it back to the police. In view of the evidence submitted by the police, we have found gaps, inconsistencies and contradictions to be addressed,” Mr Tobiko said.
Crucial witnesses had not recorded statements to corroborate claims against Lady Justice Baraza, he said. The country’s most senior lady judge is accused of assaulting Ms Rebecca Kerubo, a guard at Nairobi’s Village Market mall, and threatening to shoot her on New Year’s eve.
The Judicial Service Commission (JSC) has been investigating her conduct and will make its findings known on Friday.
Mr Tobiko said the CCTV footage, which formed a critical part of the evidence, required some explanation as it did not capture the alleged gun drama. It only shows Ms Baraza entering and leaving the pharmacy at the mall. (READ: Minister wants Baraza evidence made public)
“Why is this episode not covered in the footage? I want police to find out this from the Village Market management.”
Mr Tobiko also questioned the veracity of the confession by Ms Baraza, saying it raised several legal issues. Ms Baraza has since recanted the statement, claiming it was not taken according to the law.
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“The statement may not be admissible in court. Accordingly, I have given the police commissioner seven days to address the critical issues raised and get back to us.”
Mr Tobiko said his decision had no bearing on the internal probe by the JSC.
“Our mandate is separate from JSC’s. The Judiciary is concerned with alleged professional misconduct, we are looking at criminality.
The burden and standard of proof is higher for us than the JSC. With the gaps and deficiencies raised above, I am not confident that if I charge the DCJ a conviction would result,” Mr Tobiko said
Focus now shifts to Chief Justice Willy Mutunga, who will receive the report of a team investigating the conduct of the judge and thereafter decide her fate.
Friday will be a day of big judicial decisions in other areas too — judges Isaac Lenaola, David Majanja and Mumbu Ngugi will be delivering the much-anticipated ruling on the election date.
At the Hague, International Criminal Court judges Ekaterina Trendafilova, Cuno Tarfusser and Hans Peter-Kaul will be returning from their Christmas vacation to announce the date for the ruling on whether six Kenyan suspects will stand trial for the post-election violence.
The six are Finance minister Uhuru Kenyatta, Civil Service head Francis Muthaura, Postmaster-General Hussein Ali, MPs Henry Kosgey and William Ruto and radio presenter Joshua Sang.
On Thursday, Ms Baraza was called back to the eight-member panel probing her conduct. The team, chaired by Rev Samuel Kobia, also had the footage from the closed-circuit television cameras at the mall played in sequence to get a clearer view of the events.
Speaking to the press on Thursday afternoon, the Rev Kobia said the committee had also called in Bryson Mangla, a man who had sworn an affidavit on an experience he allegedly had at the judge’s office but which is not related to the mall incident.
“There is one matter that we wanted the Deputy Chief Justice to clarify and to be sure, you know, that what we have heard was what was exactly meant to be said, and that was clarified,” the Rev Kobia said. She was in the room on the second floor for about 17 minutes.
He said the committee had not seen it necessary to call any other of the 16 witnesses — Rebecca Kerubo, her husband, colleagues and officers from the Criminal Investigations Department — a second time.
The Rev Kobia said the committee had begun to analyse the data received as well as review the evidence provided by the witnesses in oral and written statements.
Ms Kerubo alleges that judge Baraza pinched her nose when confronted after ignoring security screening, admonished her, asked her bodyguard to shoot her and then brandished a pistol when the male officer refused to do as ordered.
The Deputy CJ has acknowledged that there was an incident at the mall, which she described as “unfortunate” but said she “certainly had no intention of high-handedness, arrogance or ill-will.”
On Thursday, the Nation was told that the JSC has had an earlier complaint on Judge Baraza, who is also the Vice President of the Supreme Court, arising from a trip to the United States in the company of another senior judge last November.
Five of its members watched the video at the mall on Tuesday morning. (READ: Don't release evidence, mall told)A CCTV camera takes a photograph every two seconds and having the sequences of the video, said to be up to 10 minutes long, would enable the committee to have a clearer view of the events.
Those who have watched the video, among them Gigiri OCPD Patrick Mwakio, claim that it is not usable, as the scope of the camera is limited and the shots taken are grainy, but they also say that there is no gun visible in the pictures.
If the pictures are indeed not clear, the committee would have to depend on the testimony of Ms Kerubo, Mr Anthony Makhanu, who was with her at the security desk and Mr John Mako, who was in charge of the CCTV control room.
Judge Baraza also recorded statements at the Gigiri Police Station, but she has since recanted the confession.
The committee will also consider evidence presented by the Nairobi Provincial CID boss, Mr Peter Muinde.
The seriousness with which the police approached the matter was underlined by the fact that it was the head of the Investigations Bureau at the CID headquarters, Mr Mohammed Amin, who made the final presentation on behalf of the law enforcement agency.
These reports could not be verified independently and the Rev Kobia kept to the official line and could neither confirm nor deny that there were other complaints the JSC is handling.
Crucial test
The case involving the deputy CJ is a crucial test for the newly reconstituted JSC, which has been tasked with guiding reforms at the Judiciary.
The JSC does not have the power to prosecute, but could exercise powers provided in Article 172 (c) of the Constitution.
The Article states that the JSC can appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament, the JSC Act.
The act provides for the procedure, which would involve the appointment of a tribunal to investigate the judge.
Some judicial experts expect the JSC to give weight to judge Baraza’s statement to the police. They will not expect the second senior-most judge in the country to have been intimidated into incriminating herself.

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