Tuesday, 7 August 2012


In the fate that befell suspended Deputy Chief
Justice Nancy Baraza one thing stood out – the
reality of Kenya’s changed constitutional order
and higher level of integrity expected of public
So devastating to Baraza must have been the
ruling, not only because it has taken away from
her one of Kenya’s most prestigious and well-
paying jobs, with a guaranteed 10-year term
and security of tenure. But it has also dealt a
blow to her standing as a defender of human
rights, especially of the vulnerable such as
That could explain why by nightfall Tuesday, the
suspended judge known never to shy away on
a public matter of this magnitude in which she
is involved had taken refuge in silence. She kept
Kenyans guessing whether she would appeal
or walk away from the public limelight.
“We have done our work and now must wait
for further instructions from our client. That is
what lawyers do,” said Baraza’s Counsel Kioko
Lawyer Peter Kaluma, who has represented the
DCJ since the case began last year, said it is
only her client who would decide the way
The process
“We are still consulting, and it is only the client
who will make the final decision,” said Kaluma.
The Chief Registrar of the Judiciary Gladys
Shollei told The Standard Baraza still had time
to appeal. “The DCJ still has 10 days within to
appeal. If she does, the process would go on to
its conclusion,” she added.
However, Ms Shollei, who is also the secretary
to Judicial Service Commission, explained in the
event she does not appeal within the 10-day
period set out by the Constitution and the
President acts on the recommendation of the
tribunal and removes her from the Bench, then
JSC will fill the positions.
“As things stand now the Supreme Court where
the DCJ also sits, has five of seven judges. The
quorum is five,” she said.
The drama that played out publicly – patterned
along the lines of Biblical David and Goliath’s
story – where a guard at a mall fell a vice-
president of the Supreme Court, also exposed
how limited Baraza’s options are. On the one
hand is the demand for prosecution by the
guard, Rebecca Kerubo. On the other, is the
Director of Public Prosecutions Keriaoko
Tobiko’s start of a process that could see
Baraza charged with a criminal offence over her
conduct at the mall in December last year.
But even as the clock ticks towards the August
16 deadline by which she should have
appealed, else the President formalises her
removal, another painful reality stands out: The
rigours of appeal and the potential of more
damaging evidence coming out in a public
The tribunal that probed her held its sittings in
camera, but that won’t be the case were she to
appeal. The prosecution and the defence will
raise the bar of evidence: More witnesses and
facts may be unsettling for someone already
accused of acting violently and dishonourably
before a judicial tribunal.
But as things are, with her character and
reputation severely undermined by her
exposure as a judge who committed a crime,
went ahead and tried to meddle with the victim
of her aggression, and even lied about her
actions that day and thereafter, an appeal may
be futile. Already, her character is no longer
beyond reproach, as required of judge of the
Supreme Court.
Legal issues
Another fact that could show the suspended
judge may be between the devil and the deep
blue sea is that the tribunal ruling has severely
undermined her suitability for other public
appointments. The ruling may also have a
negative impact on client trust were she to
return to private legal practice.
Should Baraza appeal then it is the five
Supreme Court judges who would determine
her fate. Not even the President who for
decades, was the final authority in determining
who serves as judge, can save Baraza.
Failure to file the appeal or to succeed should
she do so, Baraza would be destined either to
the world of academia or in the civil society
where she featured prominently before she
became DCJ in May, last year. And even there,
the damning report on her misconduct by the
seven-member tribunal is likely to follow her.
The process of her ultimate removal from the
Judiciary, takes the country back to legal and
political tussles witnessed in April, last year,
when the post was being filled.
That aside, an appeal by Baraza is likely to
spark an unprecedented legal contention over
double role of Supreme Court President Willy
Mutunga and Justice Smokin Wanjala.
The two are members of JSC, which
recommended to President Kibaki in February
that investigation of misconduct against Baraza
be commenced.
Jostling for post
Though the report on her has been presented
to President, Baraza is still on suspension and
on half salary until the constitutional timelines
to vacate office are exhausted.
The implication of a Baraza successful appeal
would be that the Supreme Court now,
comprising of five judges, might not affirm the
tribunal’s decision handing Baraza a lifeline. As
controversial as that decision would be, it
would be the final word of the law of the land.
The Supreme Court has constitutional powers
to hear and determine appeals from courts and
Dismissing the appeal and confirming the
recommendations of the tribunal would put
the JSC in a spot. It will start by JSC advertising
for the job, then shortlisting candidates for
Given the acrimonious and embarrassing
manner Baraza is vacating office, JSC will be
keen to interrogate in depth the character of
the person to replace her.
The JSC may even disregard strong objection by
the Law Society of Kenya and pick a
replacement from outside the country, but
within the Commonwealth jurisdiction.
But the ultimate appointment by President
Kibaki of the candidate recommended by the
JSC will still be subject to approval by the
National Assembly. That is the process in which
the political aspects of Baraza’s sacking are
likely to be presented for national debate.
But even a more ferocious debate will be on
the regional and gender disparities in picking
Baraza’s replacement.
Debate as to whether the seat should be given
back to a woman or a man gets it is already
going on. Some lawyers say the JSC must look
at the gender balance in the Judiciary as a
whole, in determining whether to appoint a
man or woman.
“You can’t have 80 per cent of women as
magistrates and only appoint male judges then
claim there is gender balance,” said
International Centre for Policy and Conflict
executive director Ndung’u Wainaina.

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