Sunday, January 8, 2012

Why critics want deputy CJ kicked out



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By JULIUS SIGEI jsigei@ke.nationmeia.com AND EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com
Posted  Saturday, January 7  2012 at  22:30
She is the Vice-President of the Supreme Court and the Deputy Chief Justice of the Republic of Kenya.
As the second in command of one arm of the government, Nancy Makokha Baraza is arguably the senior-most female state officer in the country.
She fought like a wounded lioness to secure the job under public vetting brought about by the new constitutional dispensation and was subsequently sworn in together with Chief Justice Willy Mutunga in a ceremony which marked new dawn for a discredited Judiciary.
Now her career hangs on the edge of a cliff and could come tumbling down should the Judicial Service Commission (JSC) meeting on Monday find that she engaged in gross misconduct. (READ: Mutunga calls JSC over Baraza)
Mr Peter Gichira Solomon, a citizen, has also petitioned the Chief Justice and the JSC to sack Ms Baraza, arguing the DCJ failed to uphold the values of leadership expected of a state officer as provided for in the Constitution.
Moi University law lecturer Kipchumba Murkomen said Ms Baraza’s presence in the Judiciary was no longer tenable even if she were innocent, saying the “application of law was not just as it is, but also as perceived”.
“To what extent is a watchman confident she can appear before her and expect justice?” asked Mr Murkomen.
He said the DCJ was overwhelmed by the trappings of office and described as a fraud the public vetting to which she and other constitutional office holders were subjected.
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“This saga exposes the irony and contradiction of public vetting. A bad tradition has been set to offer former civil society bosses an easy time during vetting yet tested public servants sweat it out,” claimed the public law expert.
Lend credence
Mr Murkomen’s claim seems to lend credence to allegations against Ms Baraza before the Constitutional Implementation Oversight Committee.
A day before her afternoon appearance at County Hall on July 9, Kenya Leadership Trust head Okoch Mondo had asked MPs to reject her, arguing she was not fit for the job due to what he described as her “strong character and intolerance”.
Mr Mondo said Ms Baraza had once rudely thrown him out of a meeting in Kakamega. She denied the allegation.
However, senior counsel Paul Muite was of a different opinion, saying not every misconduct or misdemeanour should lead to removal.
“The JSC will have to evaluate the results of the investigation by both itself and also the police and make a decision of whether it meets the threshold of forming a tribunal or the lesser sanctions of a reprimand or being asked to publicly apologise,” he argued.
It all started at the Village Market in Nairobi last Saturday when Ms Baraza refused to be frisked before entering the mall despite passing a desk clearly marked security check. (READ: Deputy CJ denies mall gun threat)
A security guard, Ms Rebecca Kerubo Morara, recorded a statement with the police claiming that the Deputy CJ had not only threatened her with a gun but also pinched her nose hard. Ms Baraza has denied the gun claim.
But according to Mr Ron Osiemo, who wrote to the Daily Nation on Friday, this is indeed not the first time the DCJ had behaved badly.
He says he was in a queue at a Nairobi medical centre when she arrived and asked how long it would take to attend to her.
The receptionist, who apparently did not recognise her, said it would not be long as only two people were ahead of her.
Ms Baraza then reportedly flashed her business card and was attended to immediately. “She should apologise for this, too,” he wrote.
Those who want her removed cite Chapter Six of the Constitution, which addresses issues of leadership and integrity. Article 73 spells out the expected conduct of State officers.
It says authority assigned to a State officer is a public trust to be exercised in a manner that demonstrates respect for the people, brings honour to the nation and dignity to the office and promotes public confidence in the integrity of the institution.
The judges’ code of conduct demands that they maintain composure under stress, calmness and order as well as control anger.Ms Baraza’s critics also argue that her conduct at the Village Market raises questions about her temperament.
The other emerging argument is that handling of Ms Baraza’s incident could be a reference point in the ongoing vetting of judges.
The Vetting of Judges and Magistrates Act requires the relevant agency to measure the judicial officers’ temperament.
The vetting board would only recommend retention judges with “demonstrable possession of compassion and humility and those with a history of courtesy and civility in dealing with others”.
A member of the Judicial Service Commission, who spoke to the Sunday Nation on condition of anonymity, said members may propose removal of the deputy chief justice if it is proven that she threatened a security guard with a gun as alleged.
Article 168 of the Constitution says a judge of a superior court may be removed from office for gross misconduct or misbehaviour.
The JSC, which is chaired by Chief Justice Willy Mutunga, will on Monday review CCTV footage of the Village Market incident in which a security guard alleges that the deputy CJ threatened her with a gun.
Ms Baraza has described the incident as “unfortunate” but insisted that she has never been issued a gun.
“If it is established that she pulled a gun and threatened the guard, then that would amount to gross misconduct, and we’ll recommend accordingly,” said the commissioner.
But if the commission finds that Ms Baraza only pinched Ms Kerubo’s nose, then they might either suspend, reprimand, or chastise her or even withhold her salary for a specified period.
“I certainly had no intention of high handedness, arrogance or ill will,” the DCJ said in a prepared statement.
Ms Baraza’s critics accuse her of taking the shine off the reforms of the Judiciary for which the JSC is pushing.
The removal may be initiated only by the JSC acting on its own motion or on the petition of any person to the commission.
Ground for removal
The President shall, within 14 days after receiving the petition, suspend the judge from office and appoint a tribunal to probe the matter.If the JSC is satisfied that the petition discloses a ground for removal, then it will send a petition to the President.
It is not the first time VIPs are said to have drawn guns. In 2008 Justice GBM Kariuki was accused of causing grievous bodily harm to Robert Kamau by stabbing him with a sword.
A year later, the judge was cleared of the charges. (READ: Court acquits road rage judge)
Earlier on, renowned medical researcher Prof Arthur Obel allegedly shot at a driver in Central Nairobi “for blocking his way”. His firearm was withdrawn.
Prime Minister Raila Odinga’s advisor Salim Lone said by consistently tackling challenges head-on, Dr Mutunga has kept the Judiciary in the forefront of the public imagination.
“Mr Mutunga is setting an example of pro-active, rather than re-active, engagement that many more heads of institution would do well to emulate, to give hope to Kenyans that the new Constitution definitely has the potential of being a life-changing force,” he told Sunday Nation on Saturday.
There is no guessing how the saga will play out in light of Dr Mutunga’s guarded but terse statement in convening the special JSC meeting. “Nobody or institution is above the law....”
Whatever the decision of the JSC, the Judiciary, and indeed the conduct of public officials, may never be the same again.

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