Deputy Chief Justice Nancy Baraza’s days in office may be numbered, even as she ignores mounting pressure to step aside until cleared of gun whipping and public nuisance allegations.
It also now looks certain the deputy president of the Supreme Court, who ordinarily in the absence of the Chief Justice may be called upon to swear in Kenya’s Fourth President, may face a judicial tribunal and criminal charges at the same time.
Already, a week has gone since Judicial Service Commission, chaired by Chief Justice Willy Mutunga who declared no one is above the law when convening a preliminary team to probe Baraza, petitioned the President to suspend the DCJ and appoint a tribunal to investigate her. The President has until Thursday next week to do so.
The possibility of criminal charges running along side the tribunal took shape after the Criminal Investigations Department, which had prepared a prosecution file against her to Director of Public Prosecutions Keriako Tobiko, sent a second file tying the loose ends the DPP had earlier cited.
It is now up to the DPP to initiate prosecution as recommended by Police Commissioner Mathew Iteere and CID Director Ndegwa Muhoro.
Sources said it is likely Tobiko, too, would commence prosecution proceedings if satisfied Muhoro and his team had tied the loose ends on the evidence against Baraza.
In particular, the flaws relate to the incoherence and gaps in the camera footage obtained from Village Market Mall on New Year Eve incident involving Baraza.
This is the day when Baraza allegedly pinched the nose and pointed a gun at a private security guard who insisted she must be screened like anyone else at the mall.
Baraza has denied carrying a gun and threatening the guard, Rebecca Kerubo, and has expressed willingness to go through a tribunal where she hopes to give her account.
Detectives are understood to have returned to the Village Market, Gigiri, and questioned security personnel and a manager at the CCTV room to fill the gaps Tobiko cited.
Whereas JSC is interested in alleged professional misconduct of the judge whose suspension it has recommended, police are pursuing a criminal angle.
Tobiko confirmed receiving refined evidence against Baraza, but insisted he will first have to review it before deciding on whether to initiate prosecution. If charged, the judge would have to step aside until the case against her is determined.
"It is true I received the file this morning. I am going to review it to see whether there is sufficient evidence to sustain prosecution," explained Tobiko when reached on phone.
Justice minister Mutula Kilonzo last evening confirmed it was possible for her to go through a tribunal hearing and court trial because one is criminal while the other is a disciplinary.
The police file was returned to Tobiko a week after he had told police there were various gaps, and inconsistencies in their investigations that needed to be addressed before he could charge Baraza.
Mr Muhoro confirmed the file had been returned to the DPP after repeat investigations.
A top judicial officer explained in case of a tribunal, the President would have to suspend Baraza and then constitute a tribunal. It will consist of a chairperson and three other persons who either hold or have held office of a judge of a superior court, or are qualified to be appointed as such, but have not been members of JSC for the last three years.
He will also appoint one advocate of 15 years standing, and two other persons with experience in public affairs.
That is the threshhold for all judges apart from the Chief Justice whose tribunal is chaired by the Speaker and three judges from the superior court.
Once the panel is constituted, it will then decide when to summon Baraza for hearing. She will be entitled to have her own lawyer to defend her against the accusations against her.
After sitting for an unspecified period, the tribunal will compile a report, by either recommending her removal from office or dismissing the allegations and recommending retention.
The tribunal will also be expected to examine the possible credibility crisis the Baraza saga has unleashed on a Judiciary struggling to regain public confidence.
The report will then be forwarded to the President for further action. The tribunal’s decision will be final.
On Wednesday, Tobiko revealed crucial witnesses had not recorded statements to corroborate claims against Baraza and that is why the file was returned.
He explained CCTV footage, which formed a critical part of the evidence, required some explanation, as it did not capture the alleged gun drama. It only showed Baraza entering and leaving the pharmacy at the mall. If it is true as Muhoro said that all the gaps have been sealed, and if in the judgement of the DPP they can support charges police prefer, then Baraza’s fate could as well be already in the hands of the court.
JSC had asked President Kibaki to appoint a tribunal to investigate her conduct in line with Article 168 (4) of the Constitution.
Police are relying on Baraza’s statement to prefer the charges against her. Baraza has since recanted the statement, claiming it was not taken according to the law.
Police had initially recommended that the judge be tried for threatening to kill and illegally holding a gun. Sources said there are other recommendations in the file touching on Kerubo and Baraza’s bodyguard.
Kerubo alleges that Justice Baraza 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 ignored the order.
Baraza has since retained lawyers George Oraro, Chacha Odera and Cyprian Wekesa to represent her when a tribunal is constituted.
Baraza will be on half-pay until she is either removed from office or reinstated once suspended.
Source- http://www.standardmedia.co.ke/InsidePage.php?id=2000050307&cid=4&ttl=Double trouble: Baraza may face tribunal, court
