Why I believe that Nancy Baraza should resign

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By MAKAU MUTUA
Posted  Saturday, August 4  2012 at  18:05

IN SUMMARY

• Ordinary Kenyans believe Kerubo’s story as opposed to yours and the JSC, too, has lost trust in you

Until now, I have kept my powder dry. I have been reluctant to pull the trigger. That’s because I hold suspended Deputy Chief Justice Nancy Baraza in high esteem.

I consider her a friend. But I cannot keep silent any longer. She’s innocent of the charges levelled against her until she’s found culpable.

However, what’s at stake now isn’t her innocence or guilt. It’s the public’s faith in the institution of the judiciary. That’s why – painful as this is for me to say – I believe that Justice Baraza must resign.

Her credibility as a guardian – and steward – of a new judiciary has been shattered by the allegations against her. She simply can’t recover from such serious – and unfathomable – accusations.

I am utterly flabbergasted by the charges levelled by Village Market security guard Rebecca Kerubo against Justice Baraza. They are completely incredulous. I am not saying they are untrue – or true.

Hapless security guard

But they are eye-popping and outlandish. I thought it was a cruel prank when I first heard about it. I said to myself – that’s not the Nancy I know. Pinching the nose of a hapless security guard? Pulling a gun on an innocent working poor woman? I almost went on my knees to pray that it wasn’t true.

My head is still spinning even now when I think about it. It sounds like fiction, straight out of the movies. Except it could all be sadly true. We don’t know yet.

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I last physically saw Justice Baraza at a conference organised by the Gay and Lesbian Coalition of Kenya (GALCK) at the Masai Lodge in April last year.
GALCK had invited both of us to speak about strategies for decriminalising homosexuality in Kenya.

Justice Baraza spoke eloquently and with great empathy about the humanity of us all, whether gay or straight, and the obligation of society and the law to treat gays and lesbians as equal human beings. I admired her courage to stand up and be counted on this difficult and toxic issue.

It’s because of that courage – and her long history in the trenches for civil and human rights – that I supported her candidacy for the Supreme Court.

I know some critics charge that Justice Baraza has been double-faced as a reformer. She’s been accused of opportunism, and of “sleeping with the enemy”.

In 1991, she teamed up with former KACC Director Aaron Ringera to sue the Law Society of Kenya and its chair Paul Muite for advocating multipartyism. The suit was believed to have been instigated by the Kanu-party state.

Predictably, Justice Norbury Dugdale, a “contract judge”, ruled against Mr Muite and the LSK. Justice J.A. Mango affirmed the ruling, saying the LSK was guilty of public incitement and contempt for lawmakers.

I am told that Justice Baraza has since apologised for her role in that dark episode. I have accepted her contrition.

Except for that LSK problem, the balance of Justice Baraza’s public life has been lived in the service of the people. She’s not perfect, but who among us is? So far as I can tell – and I don’t know anything about her private life – she has been toiling like most Kenyans.

Overall, she’s been on the right side of history. That’s why what happened to her hurts so much. I know that some of her detractors are misogynists who hate women in power. Others are civil society haters. They never tire of disparaging what they call “civil society types”. They claim that “civil society types” are disastrous when they join government. Don’t listen to them.

Post-election mayhem

Those attacking civil society are the ones who have run the country into the ground since 1963.

They orchestrated the 2008 post-election mayhem. They’ve been at the helm since Kenya was born, and they’ve failed. The freedoms they enjoy today are a direct result of activism by civil society.

That’s why they should shut up and stop lecturing civil society – even when one of us goes astray. It will take 100 years before we make half the mistakes they’ve made.

Others attack Justice Baraza because she believes that gay rights are human rights. Guess what? Justice Baraza has been a beacon of light on this critical issue. Live with it, and let our gay and lesbian brothers and sisters be.

I now directly turn to Justice Baraza. You believe in your own innocence, but this matter is now larger than you. Even if the tribunal vindicates you, you may never recover the trust of the public.

Do you want to be an obstacle to the goals you’ve fought for all your life for the sake of a seat on the Supreme Court? How does it look like being in the dock accused by Ms Kerubo? Isn’t she the “Wanjiku” to whom you’ve devoted your entire life?

Public believes Kerubo

I can tell you one thing. The tribunal hasn’t concluded, but the public believes her, not you. I know this is very painful, but you must stop any further bleeding by resigning.

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Imagine this – you’ve lost the trust of the Judicial Service Commission. This is the body that interviewed and vetted you. They believed in you.
But, based on the evidence of your encounter with Ms Kerubo, they now doubt you.

They have asked President Mwai Kibaki to suspend you. We can all read between the lines. They must believe you did it, otherwise they wouldn’t have asked the President to appoint an inquisitorial tribunal and suspend you.

That’s why I believe it’s in your best interest – and the reforms you’ve fought for all your life – to resign.

Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC.