Have anti-reformists found Judiciary’s Achilles’ heel?

Deputy Chief Justice Nancy Baraza is undoubtedly facing personal agony over the now infamous Village Market incident.

But of even more importance than the personal woes facing the legal officer is the unwelcome spotlight the saga puts on the reformist forces pledged to clean up the Judiciary.

When Ms Baraza was sworn into office less than six months ago alongside Chief Justice Willy Mutunga, the pair, drawn from outside the Judiciary signified the emergence of a new order committed to reform the entire edifice.

The push to bring in fresh faces under the new Constitution that created the Supreme Court was based on the rationale that the old order was ill-equipped to weed out from within itself the entrenched culture of sloth, corruption, incompetence and other traits that had long discredited the Bench.

Conservative forces within the Judiciary put up considerable resistance against new rules that required fresh vetting of serving judges.

And there were the historic confirmation hearings under the new-look Judicial Service Commission where Dr Mutunga, Ms Baraza and other applicants for Supreme Court posts were put through gruelling interviews under the glare of live television coverage.

They had to submit to intrusive scrutiny of their public and private conduct, activities, associations and finances and even sexual orientation in an atmosphere where anti-reform forces were mobilised to dig up dirt that would derail their prospects.

The heated debate over Dr Mutunga’s ear stud was just a convenient and handy issue in what was really a battle between reformists and the conservative political forces that preferred retention of the status quo.

Dr Mutunga and Ms Baraza survived to take office in a historic moment that signalled the dawn of a new era in the Judiciary.

Public vetting

Now all that effort could be badly compromised. Even before the allegations against the deputy CJ were put to the test, it was clear that the forces arrayed against her — and against reform — from the outset were salivating at the opportunity presented.

For, one, it was a chance to point accusing fingers at those who held themselves up as models of virtue, but do not live up to what they preached.

It also became easy to call into question the validity of the process by which new judges were being recruited from outside the existing pool and subjected to rigorous public vetting; only for glaring deficiencies in their character and temperament to slip through.

It was probably with an eye towards re-assurance on the integrity of the system that Dr Mutunga moved fast in convening the Judicial Service Commission to deliberate on the accusations Ms Baraza is facing.

But from the outside, the pro-reform lobbies that would loudly scream blue murder when a senior government official transgressed were notable only for their very loud silence.

Apart from maverick activist Okoiti Omtata who was quick to call on Ms Baraza to step aside, groups such as the Kenya Human Rights Commission, Fida, the Kenya National Commission on Human Rights, ICJ Kenya, the International Centre for Policy and Conflict and others who played a prominent role in pushing for reform in the Judiciary, remained conspicuously quiet.

They thus opened themselves up to accusations of practising double standards. As the matter dragged on, it also became apparent that some were keen to politicise the usual ethnic schisms.

Regional Development minister Fred Gumo and Lugari MP Cyrus Jirongo were some of the early and prominent voices to publicly side with Ms Baraza, and it seemed that they were more intent on defending a person from their community rather than addressing the germane issues of whether the deputy CJ threatened a lowly security guard with a gun.

The same schisms were also evident in some of the media commentaries and social media debates, where some were quick to side with Ms Baraza simply because of shared ethnic background.

An overriding theme from her supporters was that the Supreme Court vice-president was being subjected to a lynch mob for a minor infraction while many other senior people routinely waltz through security checks.

The conclusion was that the whole affair was engineered to hound her out of office so that a candidate from another community could get the job.

Her supporters, however, preferred not to touch on the details of what she is alleged to have done. But they might also have taken note of the fact that the police moved with unusual speed to put together the evidence and present a case for arrest and prosecution to Director of Public Prosecutions Keriako Tobiko.

The police, usually very tight-lipped on such matters, were also unusually generous with leaks to the media on the evidence they had gathered against Ms Baraza, complete with hints that Commissioner of Police Mathew Iteere had threatened to resign if the recommendation for prosecution was ignored by the DPP.

Handed a weapon

The police obviously had been handed a weapon to exploit in their own battles against the infiltration of activist “outsiders” into the criminal justice system.

The Baraza saga exploded at the same time that senior police chiefs were directing an orchestrated public campaign against the possibility of civilians being brought in to head the service.

They were going as far as threatening mutiny if outsiders were proposed for the new posts of inspector-general and two deputy inspectors-general of the Kenya Police Service.

It therefore was in the interests of the police to demonstrate, in Nancy Baraza, that outsiders being brought in to head vital institutions such as the police and Judiciary without the requisite training, experience and service would be destined to fail.