August 16 2012 at 10:05

When one of the most senior judges in a country assaults a security guard and threatens her with a pistol, what outcome should the judge expect – impunity or impeachment?

Kenya provides a model answer to the question. Its judicial service commission sprang into action immediately, performing its duty exactly as required.

The controversy began on December 31 last year and was finalised just days ago, with a formal recommendation that President Mwai Kibaki sack the judge concerned. Now there is a 10-day hiatus during which the judge may appeal against the finding; if she does not, Kibaki is obliged to impeach her.

At heart this is a simple morality tale about a high official using her office to trample on an ordinary woman.

You can easily imagine the scene: 6.30pm on the evening before New Year’s Day; a last-minute shopper rushes to a mall and finds her entry delayed by a security team checking parcels and handbags.

Irritated, she sidles in without submitting to the check. A guard goes after her and the two get involved in an argument. Now pay close attention, for the shopper is Kenya’s deputy chief justice, Lady Justice Nancy Makokha Baraza.

What does she do when the lowly security assistant, Rebecca Kerubo, says: “My sister, you must let me check your bag”?

She tells Kerubo they are not “sisters”, adds that Kerubo must learn who the really important people in Kenya are – then twists the woman’s nose.

Kerubo, returning from the pharmacy where the dispute played out, takes up her station at the security desk once again.

But almost unbelievably, when Baraza reappears, presumably after completing her purchases, she tells her driver/bodyguard to shoot Kerubo.

The driver does not react but Baraza suddenly brandishes a pistol and points it at Kerubo, saying: “I want to kill you now.”

The story is soon all over the media, a complaint comes to the judicial service commission and its members carry out an initial inquiry. The commission finds there is a case to answer and officially approaches Kibaki to appoint a tribunal.

Headed by the former chief justice of Tanzania, Augustino Ramadhani, the seven-person tribunal moves swiftly and conducts a full and proper inquiry.

This week it released its conclusion: the case against Baraza had been shown to be true. She had conducted herself in a way that demeaned her office, and created a disturbance likely to cause a breach of the peace.

The tribunal heard suggestions that key evidence might have been tampered with: Kerubo said she had viewed security camera footage and that she could clearly see Baraza twisting her nose. But a week later, at an official replay in the presence of police, this section was no longer visible.

In what should have been the most humiliating part of the tribunal’s judgment for Baraza, Ramadhani explained that they found Kerubo an honest and plausible witness but that the same could not be said for the judge.

While the shopping centre debacle might be described as a single incident, another factor had to be taken into account: after the tribunal had given Baraza the list of witnesses it intended calling and the statements made by all the witnesses, Baraza contacted Kerubo and Kerubo’s security desk colleague, Antony Makhanu, to set up a meeting.

Challenged afterwards to explain the meeting, the judge said she wanted to “reconcile”, but Kerubo and Makhanu said they were offered money to change their evidence.

The tribunal found this was evidence of extremely serious misbehaviour. It showed Baraza had not learnt from previous mistakes and that she was likely to continue such gross misconduct in the future.

“In our opinion a judge who engages in lawless conduct and thereafter tries to explain it away with misleading testimony, should not continue in office.”

From the time the tribunal was appointed, Baraza has been suspended on half pay, but even if – or rather when – Kibaki acts on its recommendation and removes her from office, it will not be the end of the judge’s woes: Kenyan media report the head of public prosecutions saying she will be prosecuted for unlawful possession and illegal use of a firearm, as well as for threatening to kill, all of which could attract a jail sentence of up to 15 years.

It seems we have a lot to learn from the Kenyans about how to deal with those who believe themselves untouchable.


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