Chances of suspended Deputy Chief Justice Nancy Baraza getting back her job were dimmed on Monday after the tribunal investigating her conduct recommended she should be sacked.
After sitting for one month and hearing eight witnesses, the tribunal concluded that Ms Baraza had acted improperly.
The tribunal, chaired by retired Chief Justice of Tanzania Augustino Ramadhani, first delivered their findings to President Kibaki before announcing the decision to the public.
Ms Baraza now has two options: Appeal in 10 days to the Supreme Court for the verdict to be reversed, or accept the verdict and leave office.
Alternatively, the President will dismiss her next with at the expiry of the appeal window if she doesn’t act.
This will trigger the search for her successor by the Judicial Service Commission (JSC).
Her imminent departure leaves the Supreme Court on the brink of a quorum crisis, with only five judges available — including the Chief Justice. Her replacement just be a woman in line with the Constitution that provides all top positions in public offices must be shared equally between the sexes.
The tribunal, appointed by President Kibaki in January but began its hearings on July 2, found Justice Baraza guilty of gross misconduct and misbehaviour.
“The tribunal members having unanimously found that the conduct of the DCJ on December 31, 2011 at the Village Market amounted to both gross misconduct and misbehaviour. We recommend to President Kibaki that Lady Justice Nancy Makokha Baraza be removed from office,” said the tribunal in its recommendation to the President.
The judge was accused of assaulting Mr Rebecca Kerubo, a guard at the shopping mall. The incident sparked public uproar prompting the JSC chaired by Chief Justice Willy Mutunga to petition the President to suspend and form a tribunal to look into her conduct.
The seven-member tribunal heard evidence from eight witnesses and found discrepancies in Justice Baraza’s testimony. The tribunal said Ms Kerubo had been a “credible witness” who confidently and steadfastly gave her evidence when she was cross-examined.
“We were not impressed by the evidence by the DCJ,” they said. For instance, the judge claimed that the guard followed her into Belladona Pharmacy and used disrespectful language. But Ms Kerubo disputed this was backed by Dr James Wathigo, who said the guard only told Ms Baraza that she needed to search her.
The judge also gave conflicting accounts of her bodyguard’s whereabouts on the fateful day. Justice Baraza told the tribunal she had given her time off to attend family matters in Meru on December 23, but when Ms Annalice Kaburu appeared before the tribunal she said she returned to Nairobi on December 26 and had called the judge to inform her of her availability for duty.
The tribunal also upheld claims that the judge pinched Ms Kerubo’s nose and brandished a pistol at her.
“We ask ourselves what then made her scared to the marrow and caused her to go home prematurely and then straight to bed until the following morning as narrated by her husband. Certainly it was not the pinching of the nose,” reads the verdict in part. The team concluded that Justice Baraza could have threatened the guard with the weapon.
“Had this been a criminal matter we would require proof beyond reasonable doubt. But the proof required in this matter is below this doubt but above balance of probability…we are satisfied that the allegations have been proved and we have no doubt in our mind that what was alleged to have occurred did in fact occur.”
Defence lawyer Kioko Kilukumi said the search was unconstitutional therefore unlawful. He cited Articles 31(a) of the Constitution that protects privacy rights and the right not to have a “person, home or property searched.”
He further added that Ms Kerubo did not have any right to conduct the search. But the tribunal said no one had a right to enter premises without the consent of the owner.
Justice Baraza’s witnesses were said to have given unsatisfactory testimonies, with his driver Mr Eric Omondi described as “unabashed liar”.
Another incident which attracted the attention of the tribunal was the meeting between the suspended DCJ, Ms Kerubo and Mr Antony Makhanu, Kerubo’s colleague on June 27, a week before the hearings began. When they met, Ms Kerubo alleged she asked them to change their evidence.
“That was a serious undertaking conducted by a judicial officer…the fact she improperly contacted witnesses in the absence of the lead counsel to the tribunal also raises concern about her ability to refrain from future misconduct.”
Justice Ramadhani read the verdict at the Kenyatta International Conference Centre after delivering the report to the President at Harambee House earlier in the morning. The President was accompanied by Prime Minister Raila Odinga, Vice President Kalonzo Musyoka.
The recruitment of another deputy chief justice will be put on hold if Justice Baraza appeals the decision to remove her from the Judiciary.
The JSC can only start the search for her successor if she leaves.
Senior Counsel Paul Muite said another Deputy Chief Justice must be recruited competitively.
“The JSC will have to advertise the vacancy inviting qualified candidates from the bench and the bar,” he said.
Mr Muite added that the vacancy will have to go to a woman due to the gender balance requirement in the Constitution.
“Almost inevitably the position will perhaps go to another woman,” said Mr Muite.
But the woman must not be a sitting judge.
On Monday, Ms Kerubo asked the Director of Public Prosecutions, Mr Keriako Tobiko, to charge the judge for assaulting her. Mr Tobiko has since asked for the tribunal’s report to determine if she would be charged.
“The DPP will review all material along with the evidence provided by police and make a decision,” he said in a statement.