Sunday, January 15, 2012

Baraza’s troubles: Law should take its course


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By KWENDO OPANGA
Posted  Saturday, January 14  2012 at  16:20
Did Deputy Chief Justice Nancy Baraza pull guard Rebecca Kerubo’s nose? Did she refuse to queue up for a security check at the Village Market mall?
Did the DCJ draw a gun and threaten Ms Kerubo for insisting on frisking her? The answers to these questions should determine the fate of the DCJ.
But the current runs deeper. The tribulations of Ms Baraza have triggered succession talk in the Judiciary even before the Judicial Service Commission and police complete their investigations and make known their preferred and legal courses of action.
Swiftly and as if in tandem with this thinking, there have been demands from civil society groups and the prolific grievance industry that Ms Baraza resigns from her twin positions of Judiciary’s second in command and Deputy President of the Supreme Court.
Predictably and understandably, there has been a huge public discussion in which varied positions and accusations and counter-accusations have been stated.
DCJ is next CJ
At the end of it, the voices clamouring for the hanging of Ms Baraza have clearly been the loudest.
Indeed, the street is adamant that Ms Baraza should exit and make way for Ms Njoki Ndung’u, the other woman on the Supreme Court, in conformity with the Constitution since Chief Justice Willy Mutunga is a man.
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The street is also clear that the DCJ is the next CJ. Lastly, selective findings from police investigations have been leaked, which portray the DCJ as liable for prosecution on gun charges.
These leaks and pointer to prosecution are ominous when it is taken into account that the DCJ is on record as saying she has not been issued with a gun.
Those who want the DCJ to vacate office immediately argue that Ms Baraza has, by her actions and temperament, disqualified herself from being a sober and patient analyst of events and arbiter in situations of conflict because she is unlikely to arrive at a measured verdict.
And yet others have canvassed that the DCJ, as indeed any other Kenyan, must not be tried and convicted by the street, in the street and for the street.
She must be subjected to due process where the JSC or a competent court passes judgment.
I supported Dr Mutunga and Ms Baraza last year when varied faiths and civil society groups ganged up to oppose their nomination for the jobs they now hold.
I supported the two because of their reformist credentials and belief they will uphold the rule of law.
In this regard, may I congratulate the CJ on moving quickly to order investigations into the events of December 31 at the Village Market involving his deputy.

I commend the police for similarly swinging into action to investigate Ms Kerubo’s complaint against the DCJ filed at Gigiri Police Station.
It is highly unlikely that in years gone by a magistrate, let alone a judge, would have been subjected to what Ms Baraza is going through.
Similarly, it is highly unlikely police would have treated Ms Kerubo the way they have nor would she have set foot at the law courts to meet the JSC.
What is constant is this: the public falls in love with the underdog and expects the law to fall in its line.
We have taken to Ms Kerubo and have sympathised with her and empathised with her every move and word.
And we have vilified Ms Baraza as breathtakingly arrogant. The law cannot fall in line outside due process.
Sit back
This tells me the law is blind as to Ms Baraza’s stature or station in the Judiciary.My take is we sit back and let the law take its course. The goddess of justice is blindfolded as she holds the scales of justice.
If the DCJ is to be tried or lynched, let this be done by the law and not the grievance industry.
I admit that there is reason and time for public pressure to force public officers to quit.
But, as already pointed out, the CJ and the police have already instituted measures to get to the bottom of the altercation between Ms Kerubo and the DCJ.
Those ignoring due process and want to pile pressure on Ms Baraza may be accused of seeking to hound her out of office in order to facilitate the succession scenario being discussed.
But, wait a minute, succession? The CJ has not even served for a year! He is not yet 65 and could elect to go on when he attains that age.
But, madam DCJ, how could you?
Kwendo Opanga is a media consultant opanga@diplomateastafrica.com

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