Impeachment of Judges: Tribunal set to rule on fate of Suspended Kenyan Deputy Chief Justice, Nancy Baraza

LILLIAN ONYANGO

If team rules she is unsuitable to remain in office, she will have 10 days to appeal against decision to the Supreme Court.

Suspended Deputy Chief Justice Nancy Baraza will know her fate on Monday. The tribunal appointed by President Kibaki to investigate her conduct and suitability to remain in office will deliver its verdict at 11am.

Former Tanzanian Chief Justice Augustino Ramadhani chaired the tribunal, which comprised Justice (rtd) Philip Ransley, Surinder Kapila, Prof Judith Behemuka, Beauttah Siganga, Grace Madoka and Prof Mugambi Kanyua, that sat from July 2 to July 25.

On Saturday, Law Society of the Kenya chairman Eric Mutua said Ms Baraza should resign if the tribunal finds her unsuitable to remain in office.

He added that what would follow would just be a “formality”.

“If Baraza is out, then that position must be replaced with a female to conform to the gender rule,” he told the Sunday Nation.

The loss of the position would also affect the composition of the Supreme Court as Ms Baraza is also the Vice-President of the Supreme Court.

Recently, the Judges and Magistrates Vetting Board found Supreme Court Judge Mohamed Ibrahim unfit to serve in the Judiciary citing delays in delivering rulings.

The Supreme Court, which consists of the Chief Justice, the Deputy Chief Justice and five other judges, is now operating on the bare minimum number of five judges.

Section 163 of the Constitution provides that it is “properly constituted for the proceedings if it is composed of five judges”. According to Mr Mutua, there is no cause for alarm and the court can still conduct business.

“However, in view of the other administrative duties of the CJ, who is the president of the court, there may be challenges when he is unavailable to sit,” Mr Mutua added.

Constitutional lawyer Ben Sihanya sees it as a risky state of affairs.

“Legally it is okay but it is risky to have the bear minimum number. Should one of them be indisposed, then they would find themselves in a difficult position,” he told the Sunday Nation in a telephone interview.

He explained that some issues that would come before the court would require the full bench to hear.

If the court’s verdict tomorrow is against her, Ms Baraza will have 10 days to appeal against its decision to the Supreme Court.

“But this only makes things more complicated as the CJ Willy Mutunga as the chairperson of the JSC has handled the matter at that level and may want to excuse himself thus effectively reducing the number of judges,” Mr Sihanya said.

“There is need for a lot of care in handling this matter as we are setting a precedent here – whether good or bad,” Mr Sihanya said. “This is Kenya’s inaugural Supreme Court.”

However, he opines that should the position of the DCJ be declared vacant, the application process should not be a female-only affair.

“The issue of the one-third rule went to the court when the Supreme Court was constituted and it found that it looks at the bigger picture,” Mr Sihanya said.

He went on to add that the hiring process should be “strictly” constitutional and gender balance looks at the entire judiciary and not at the individual courts.

Daily Nation (04/08/2012): http://www.nation.co.ke/News/Tribunal+set+to+rule+on+fate+of+Baraza/-/1056/1471502/-/sd5hbnz/-/index.html