Suspended Deputy Chief Justice Nancy Baraza will be charged with assaulting and threatening to kill a security guard at a Nairobi shopping mall on New Year’s eve.
Director of Public Prosecutions Keriako Tobiko on Wednesday said that he had also ordered that Lady Justice Baraza be charged with threatening breach of peace.
The charges are serious and could see the judge jailed for up to 10 years if she is convicted.
A tribunal investigating her conduct on Monday found her unsuitable to hold office and recommended that she be removed. It found her guilty of gross misconduct and misbehaviour.
Judge Baraza’s lawyers said they are appealing the findings of the tribunal at the Supreme Court.
A confrontation between the judge and a security guard, Ms Rebecca Kerubo, at the Village Market during which the judge is alleged to have waved a gun, pulled Ms Kerubo’s nose and threatened to shoot her, had damaged the judge’s career on the Bench.
But she intends to fight the recommendation that she be sacked with her lawyer, Mr Kioko Kilukumi, saying: “Our client has made up her mind. She will file an appeal tomorrow (Thursday).”
Earlier, Mr Tobiko said: “I’ve directed that she be charged based on the charges recommended by the police.”
Acting deputy DPP Dorcas Oduor and principal prosecutor Alexander Muteti have been appointed to handle the case.
Police recommended the charges to Mr Tobiko after investigating the incident, but the DPP decided to put his decision to charge her on hold until the tribunal probing her conduct concluded its inquiries.
At the time, he argued, it would have been unfair to subject the judge to “multiple concurrent legal processes”.
This decision was opposed by Ms Kerubo’s lawyer, but supported by lawyer Paul Muite, who was representing the Judicial Service Commission, in a case judge Baraza had filed challenging the tribunal investigating her.
Chaired by retired Tanzania Chief Justice Augustino Ramadhani, the tribunal on Monday recommended to President Kibaki that the suspended DCJ be removed from office.
The seven-member tribunal heard evidence from eight witnesses and found discrepancies in the judge’s testimony.
The tribunal said Ms Kerubo had been a “credible witness” who confidently and steadfastly gave her evidence when she was cross-examined.
On Wednesday, Ms Baraza met with her lawyers and decided to exercise the last legal remedy available to her — to appeal to the Supreme Court.
The Supreme Court, whose president is the Chief Justice, now has only five members — making up the quorum — after the suspension of Ms Baraza, who was the vice-president, and dismissal of Mr Justice Mohammed Ibrahim by the Vetting Board.
By Fred Mukinda, Pamela Chepkemei and Jeremiah Kiplang’at