WHY TRIBUNAL SACKED BARAZA

Tuesday, August 7, 2012 - 00:00 -- BY SAM KIPLAGAT
Kibaki recieves Baraza report
President Mwai Kibaki receives a report on the conduct of Deputy Chief justice Nancy Baraza from former Tanzanian Chief justice Augustino Ramadhani AS Prime minister, VP and other government officials look on at Harambee House yesterday. Photo/Monicah Mwangi

Suspended Deputy Chief Justice Nancy Makokha Baraza allegedly offered Sh3.5 million to security guard Rebeccah Kerubo in an attempt to persuade her to drop the case. The offer was among several attempts of reconciliation made by Justice Baraza and her friends in a bid to suppress the case which Kerubo had filed following the New Year's eve incident in which the judge had pinched her nose and threatened her with a gun. Details of these reconciliation attempts emerged when the tribunal investigating Justice Baraza recommended that she be sacked.

In his testimony, Kerubo's husband, Bernard Morara said he went with his wife to Baraza’s home in late January where they were allegedly offered Sh3.5 million to “drop the complaint and go live elsewhere”. Justice Baraza had claimed that Kerubo’s lawyers had demanded Sh10 million as a pre-condition to dropping the case. The amount was later scaled down to Sh4 million. However, Kerubo, her husband and her lawyer all denied these allegations. Both Kerubo and the DCJ admitted they had another meeting in June. This time, Kerubo was accompanied by her colleague Anthony Makhanu, who was present during the gun incident.This meeting in Baraza's car in Karura forest. Unable to reach any agreement, Baraza offered Kerubo Sh5,000 and Makhanu Sh2,000 as “fare” back to their homes.

A week before the tribunal started its hearings—on June 27— Baraza once again contacted Kerubo and Makhanu.During the meeting, Baraza wanted Kerubo and Makhanu to change their statements and drop their claims that she had brandished a pistol and threatened to kill Kerubo. By then, Baraza had already been served with the list of witnesses to be summoned by the tribunal and had also been given their statements. Defending her actions, Baraza told the tribunal that she had wanted to reconcile with Kerubo. However, the seven-member tribunal chaired by retired Tanzania Chief Justice Agostino S.L. Ramadhani saw this as misconduct and a “serious undertaking conducted by a judicial officer”.

“The fact that she improperly contacted witnesses in the absence of the lead counsel to the tribunal also raises concerns about her ability to refrain from future misconduct. She has shown her inability to control her behavior, demonstrating the strong likelihood that she will continue to commit misconduct or misbehavior in future,” said tribunal in its report to President Kibaki. The tribunal said it was not convinced that  Baraza would change her conduct in future. “Even if she does not engage in similar misconduct in future, we are not convinced that she would not engage in other types of misconduct. Her failure to consider the effect of her misconduct and the reputation of the judiciary at the time of her actions leaves us with little confidence in her ability to refrain from future misconduct demeaning to the esteem of the judiciary,” it said.

The tribunal also found that Baraza had mishandled the whole incident and the matter would not have taken the angle it took had she allowed Kerubo to inspect her bag. “…assuming that she was provoked by the way she was addressed and handled with disrespect, which we refuse to have been the case, after the altercation, there was enough time to cool down. But what she did she do? She went away and came back with a pistol and brandished it to the unfortunate woman who was just performing her duty. Surely, the second highest judicial officer ought to have done better than that,” the tribunal said.

It said that a judge who engages in lawless conduct and “thereafter tries to explain it away with misleading testimony should not continue being in office”. The tribunal said Baraza's actions had nothing to do with her official duties but her private life. Her conduct was contrary to Rule 12 of the Judicial Service Code of Conduct and Ethics, which calls on judicial officers to uphold dignity and integrity at all times. The tribunal found Baraza's actions amounted to gross misconduct and misbehavior. Baraza has ten days to appeal against the decision at the Supreme Court. By last evening, her lawyer Kioko Kilukumi said he ad yet to get any further instructions from his client.

Last night, Kerubo welcomed the tribunal's decision and asked the DPP Keriako Tobiko to speedily act on the criminal complaint she had filed against Baraza.Last night,Tobiko said he would review the report of the tribunal and all the material presented by witnesses before he decides whether to file charges against Baraza. Kerubo said the decision had vindicated her as she had been telling the truth all along.  “We wanted justice and it is clear that the new constitution protects the lowly and the mighty in equal measure,” said Kang'ata on behalf of his client. He said his client had not been motivated by revenge as she had initially offered to unconditionally forgive the judge without asking for any favour.