The Judicial Service Commission (JSC) has recommended the suspension of Deputy Chief Justice Nancy Baraza over allegations of misconduct.
It wants President Kibaki to appoint a tribunal to investigate her conduct in line with Article 168 (4) of the Constitution.
“The JSC will send a petition to the President with a view of suspending Justice Baraza as judge of the Supreme Court and Deputy Chief Justice of the Republic of Kenya and to appoint a tribunal to investigate her conduct,” said Chief Justice Willy Mutunga in a statement.
The decision was made on Friday after the commission upheld recommendations of a subcommittee that looked into claims that she assaulted a security guard at the Village Market in Nairobi.
Lady Justice Baraza, the country’s most senior female judge, was accused of assaulting Ms Rebecca Kerubo and threatening to shoot her on New Year’s eve. (READ: Guard changes tune on Baraza, insists on trial)
Article 168 of the Constitution says a judge of a superior court may be removed from office for gross misconduct or misbehaviour.
The removal may be initiated by the JSC acting on its own motion, or on a petition to the commission.
The President shall, within 14 days of receiving the petition, suspend the judge from office and appoint a tribunal to probe the matter.
In the case of a judge other than the CJ, the tribunal should consist of a chairperson and three other members qualified to sit in a superior court.
Alternatively, those to be appointed must be qualified to be a judge of a superior court but must not have been a member of the JSC at any time within three years.
If suspended, Justice Baraza’s will be on half salary until she is removed from office or reinstated.
Justice Mutunga said the subcommittee threw out a petition by Mr David Gichira to remove Ms Baraza from office.
“This petition, under close scrutiny by the sub committee that was investigating the matter, was found to be devoid of any material substance to act upon under Article 168 of the Constitution. It was therefore dismissed.”
Ms Kerubo alleges that the judge pinched her nose when confronted after ignoring security screening, admonished her, asked her bodyguard to shoot her and then brandished a pistol when the male officer refused to do as ordered.
Ms Baraza has since denied the claims.
The Deputy CJ has however acknowledged that there was an incident at the mall, which she described as “unfortunate”. She said she “had no intention of high-handedness, arrogance or ill-will”.
The decision comes a day after the Director of Public Prosecutions Keriako Tobiko said there was not enough evidence to prosecute Ms Baraza on gun charges. (READ: Baraza gun probe is shoddy, says Tobiko)
He said the case put together by the police had gaps, inconsistencies and contradictions.
The sub-committee was chaired by the Rev Samuel Kobia. Its members were Mr Ahmednasir Abdullahi, Ms Emily Ominde, Ms Florence Mwangangi, Prof Christine Mango, Mr Titus Gatere and Mr Justice Isaac Lenaola, with Mrs Gladys Shollei as its secretary.
On Friday, Justice Mutunga said in making their decision, they were not conducting a criminal trial.
“The standard of proof as per Article 168 and the judicial code of ethics is not the same as for criminal proceedings. It is beyond reasonable doubt,” he said.