Sunday, January 15, 2012

The gun factor in DCJ Baraza's case


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By EMEKA-MAYAKA GEKARA gmayaka@yahoo.com
Posted  Saturday, January 14  2012 at  22:30
The chickens have come home to roost for Nancy Makokha Baraza.
Having fought hard for enactment of the new Constitution which demands integrity from state officials, the Deputy Chief Justice has now turned victim of the same supreme law.
Chapter 6 of the Constitution on integrity says that authority assigned to a state official is a public trust that must be exercised in a manner that demonstrates respect for the people, brings honour to the nation and dignity to the office as well as promotes public confidence in the integrity of the institution.
There is also an old adage that like Caesar's wife, a judge should be beyond reproach.
Well, while proposing her for the post last year, the Judicial Service Commission (JSC) painted her golden colours. (READ: Mutunga, Baraza and Tobiko get House nod)
The JSC described her as a “person of great depth of legal and constitutional leaning, whose integrity is both impeccable and beyond reproach”.
Hardly six months on the job, the world has come tumbling down on the Deputy Chief Justice threatening to cut short her career.
Now President Kibaki has less than 14 days to suspend her from office and set up a tribunal to investigate her conduct.
A sub-committee of the JSC resolved that she should be investigated over allegations that she threatened security guard Rebecca Kerubo with a gun at Nairobi’s Village Market. (READ: JSC wants Baraza out)
It is emerging that two more complaints about Ms Baraza’s conduct during the Mashujaa Day celebrations and a trip to Washington last year may have been the straw that broke the camel’s back.
The committee was supposed to interrogate two issues: whether the Deputy Chief Justice pinched Kerubo’s nose as alleged, and whether she threatened her with a gun.
A report of the JSC commission seen by the Sunday Nation revealed that indeed Ms Baraza had confronted Ms Kerubo with a gun.
It was established during the Village Market altercation, the Deputy Chief Justice stuck her finger against Ms Kerubo’s mouth ordering her to shut up.
The Deputy Chief Justice was said to be concerned that the security guard had been disrespectful and acted in a manner that was embarrassing the former member of the constitutional review commission.
The security guard had apparently followed the Deputy Chief Justice to a pharmacy in the mall after she by-passed a security check desk.
According to the report, CCTV footage for the incident captures Ms Baraza stretching her right hand and touching the security guard’s left hand shoulder outside the Belladona Pharmacy.

The footage showed a “female adult customer (Ms Baraza)” entering the pharmacy after the encounter with the guard standing outside.
At this point, Kerubo’s colleague from the security check desk is seen approaching the pharmacy.
Testimonies by Ms Kerubo’s workmates corroborated the evidence. On this basis, the JSC concluded that there was “unwelcome contact which was condescending and intrusive on the person Kerubo”.
Own confession
But the most defining revelation of the report is that Ms Baraza had, on her own confession before the CID, approached the security guard with a gun.
It is recorded that after the mouth incident, she went to her car and took the her bodyguard’s gun and confronted Kerubo.
Apparently, the Deputy Chief Justice is reported to have unwittingly confessed the gun incident in her statement to the police.
In a statement after the incident, Ms Baraza described it is “unfortunate” but denied the gun allegation. “I certainly had no intention of high-handedness, arrogance or ill-will,” Ms Baraza said.Chief Justice Willy Mutunga on Friday stressed that the investigations were not a criminal trial and that the threshold of evidence was not beyond reasonable doubt. (DOWNLOAD: CJ Willy Mutunga's statement)
The Supreme Court Vice-President said she was taking extra security measures after a series of incidents near her office and on her person.
Director of Public Prosecutions Keriako Tobiko dismissed the police investigations as shoddy.
However, his critics say that he measured evidence as applied in criminal trials; the evidence threshold in a tribunal investigating a judge is much lower.
The Baraza case can be characterised as a tussle between Wanjiku and the high and might.
Wanjiku has taken advantage of the new Constitution to demand restoration of her integrity and accountability of public office holders.
It was also a test on whether the JSC would protect the right to a fair hearing and access to justice. Ms Baraza’s critics also argue that the Village Market conduct raises questions about her temperament.

The judges’ code of conduct demands that they maintain composure under stress. Judges are also supposed to demonstrate compassion, humility, courtesy and civility in dealing with other people.
Issues of her conduct were also raised during the Mashujaa Day celebrations last year.
Here it was alleged that Ms Baraza had an altercation with protocol officers after she insisted that her seat should have been placed next to that of Chief Justice Willy Mutunga.
On that day, the seats around Dr Mutunga were reserved for senior state officers including service commanders.
Equally, the DJC is said to have complained that a seat was not reserved for her during the swearing in ceremony for Supreme Court judges.
And as head of delegation during a trip to Washington accompanied by a judge known for his “British manners”, the Deputy Chief Justice is said to have embarrassed members of the team with grumbling and mannerisms.
The complaint was that her behaviour did not depict “class and sophistication” of a judge.
Private conversations with those familiar with her predicament returned a picture of insecurity and a sense of inadequacy on her part.
Fida executive director Grace Maingi has come to Ms Baraza’s defence. “People saying that women are not good leaders because of this incident really is patriarchy speaking.“The stature of the office overwhelmed her. She doesn’t seem to have come to terms with what her office entails,” said a judge who requested anonymity.
“She has said that the incident was unfortunate, we should respect her view with regards to that and we need to realise that she is an individual; this does not in any way mean that women do not have the temperament to be able to be in leadership positions.”
Past controversy
Well, Ms Baraza is no stranger to controversy. Senior lawyers remember Ms Baraza for her attempt to silence officials of the Law Society of Kenya during the Nyayo dictatorship.
The case of Nancy Baraza and Other vs Charles Nyachae and Others is cited as a stain on her career.
In the 1991 case, a group of pro-government lawyers led by Ms Baraza successfully sought and obtained an injunction to restrain the LSK then headed by Mr Paul Muite from engaging in politics.
The legal battle was prompted by Mr Muite’s inaugural speech which was pro-reform, urging the government to register Jaramogi Oginga Odinga’s New Development Party.
Ms Baraza teamed up with former anti-corruption chief Aaron Ringera. At that time, she was then a partner in the Oraro and Rachier Advocates.
Almost the entire LSK council was found guilty of contempt of court and fined Sh10,000 each.
Incidentally, the LSK members sued alongside Mr Muite included vice-chairman Willy Mutunga, now her boss, Mr Charles Nyachae, chairman of the Constitution Implementation Constitution, Gichugu MP and presidential hopeful Martha Karua and Maina Kariuki now a judge of the High Court.

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