By Juma Kwayera
Chief Justice Willy Mutunga’s resolve to restore confidence in Kenya’s discredited Judiciary comes under severe test on Monday when the Judicial Service Commission (JSC) convenes to discuss the conduct of his deputy, Justice Nancy Baraza.
Baraza was grilled at the Criminal Investigation Department headquarters on Kiambu Road in Nairobi on Saturday, seven days after a guard at the upmarket mall, Village Market, lodged a complaint with the police that the DCJ had pinched her nose and threatened her with a gun.
Chief Justice Willy Mutunga. The Judicial Service Commission (JSC) convenes to discuss the conduct of his deputy, Justice Nancy Baraza on Monday [Photo:File]
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In the court of public opinion and the Judiciary, the incident in which the guard, Rebecca Kerubo, alleges Baraza assaulted her when asked to comply with orders to go through mandatory security checks is the toughest test yet for Mutunga.
In his speech at last month’s dialogue and reconciliation conference on Kenya organised by the Kofi Annan Foundation, Mutunga observed: "I have come to the inescapable conclusion that there are Kenyans at all levels who are yet to make the mental shift to the national and individual conduct the Constitution heralds.
It is depressing that one year after the promulgation of the Constitution, the country falls in the corruption index, we still hear of extra-judicial killings, institutions still play flat and loose with constitutional deadlines."
Against this backdrop, attention is focused on Mutunga, especially in the absence of an explicit legal or constitutional provision that addresses the conduct of officials at the Judiciary
International Centre for Policy and Conflict Executive Director Ndung’u Wainaina says the incident is a godsend opportunity to test the commitment of the Chief Justice to reforms in the institution he heads.
Voted for change
"Many Kenyans voted for change but they still do not understand the impact of the changes they wanted. Public confidence is critical and the Judiciary should remain true to its calling," says Wainaina.
As the country awaits the outcome of Monday’s meeting, Wainaina says the values, norms and objectives the CJ spent his life fighting for will be tested because he set very high standards when he assumed office.
Mutunga has been critical of the Executive over implementation of the Constitution and the rush with which a section of the governing elite want to amend it.
Mutunga told the Annan conference, "Constitutional provisions are there to be obeyed and any public or State officials who find certain clauses administratively inconvenient must be reminded that vacation of office is an honourable option if one no longer feels capable of honouring his or her oath of office to protect, defend and uphold the Constitution."
As the legal fraternity discussed the course of conduct of senior judicial office holders, it was generally agreed the outcome would have a bearing on the vetting of magistrates and judges that gets under way on Monday.
Njonjo Mue, a Nairobi based human rights lawyer, terms the situation the Deputy Chief Justice finds herself in "unfortunate" and one that does not merit the media and public attention it is getting.
"It is an unfortunate coincidence. It took place just before the vetting of judges starts. Whatever the case, it is going to be a spanner in the works in the implementation of the Constituionand administration of justice. Mutunga has to take the right decision, therefore the JSC meeting will be more of a balancing act," says Mue.
It is not the Judiciary that faces a stern test in the Baraza saga. The International Federation of Women Lawyers (Fida), too, has been noticeably silent. Fida Executive Director Grace Maingi says the organisation has not come out because it wants to allow independent investigations in the matter. "As lawyers, we respect due process. Institutions should be left to do their job," Maingi says.
The outcome of the JSC, however, is the most highly anticipated, given its composition.
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