The High Court yesterday rejected an application filed by embattled Deputy Chief Justice Nancy Baraza to appeal against the decision to suspend her and set up a tribunal to investigate her conduct. President Kibaki announced his decision to suspend Justice Baraza on Wednesday evening and also appointed the tribunal to investigate the judge's alleged gross misbehaviour.
Yesterday morning, Justice Baraza filed her application with the High Court in which she sought to stop the publication of the Kenya Gazette announcing her suspension and barring members of the tribunal from executing their mandate. She accused the Judicial Service Commission of acting in breach of the constitution by appointing a sub committee to investigate her. "There is no provision in law that entitles JSC to set up a sub committee to investigate me.Its jurisdiction is strictly limited to judicial officers and staff within which does not include her—the DCJ,” she claims in her application.
She further claims that the sub-committee never gave her any opportunity to test the evidence presented by the witnesses who appeared before the committee. She said the findings and recommendations were solely based on the report and witness statements recorded at CID which could only be proved and substantiated through a trial process.
“My integrity and standing as the DCJ and the Vice president of the Supreme Court of Kenya has been subject to ridicule and contempt in the eyes of the general public at the instigation of the JSC,” she states adding that the situation has been made worse by the "absolute media attention" whom she accuses of having already prosecuted and sentencing her with their reports calling for her resignation. “It was quickly assumed she was evil and no one wanted to hear her side of the story,” stated her lawyer,John Khaminwa.
A few hours after she had filed her application, Justice Mohammed Warsame ruled that it was "unnecessary" for the court to grant the orders Justice Baraza was seeking as the Gazette notice had already been published and a tribunal appointed to investigate the alleged gross misbehavior of the DCJ.
A special Gazette announcing her suspension and name the seven-member tribunal was published on Wednesday. The members of the tribunal which will be chaired by former Tanzania Chief Justice Augustino Stephen Lawrence Ramadhan are Prof Judith Mbula Bahemuka, Justice (Rtd) Philip J. Ransley, Surinder Kapila, Beauttah Alukhava Siganga, Grace Barbara Ngele Madoka and Prof Mugambi Jesse Ndwiga Kanyua. “We must treat our own with profound respect. If there was a prima facie case the interim orders would have been granted. As for now we will only grant the deserving ones,” said Justice Warsame who certified the matter as urgent and directed that the case be heard next Monday.
In their petition to President Mwai Kibaki, the JSC said they found that the New Year eve incident in which Justie Baraza is alleged to have pinched the nose and then threatened with a gun a guard at the Village Market shopping mall constituted gross misbehavior. The JSC said oral and written statements by Justice Baraza incriminated her as she admitted in her evidence that she indeed threatened Rebeca Kerubo with a gun. They described the confession made by the DCJ to be grave as it had been given voluntarily and willingly.
In her application, Justice Baraza dismisses the evidence recorded and collated by the Criminal Inevstigations Department headquarters as being devoid of any probative evidential value since it had been illegally obtained and solicited by the officers. Khaminwa argues that the removal of a judge from office was a judicial process and the police were not competent enough to make a finding on the DCJ. “The police statements that are being relied on are not evidence at all. All they had were purported confession which could have been taken under influence,” he added.
