Kenya: Tribunal finds a top judge is not above the law

Nancy Baraza, Kenya's deputy chief justice, was found guilty of 'gross misconduct.' Her case could set a precedent of reducing impunity for Kenyan government officials.

Kenya’s second-most senior judge should be removed from office after allegedly threatening to shoot a security guard at an upscale Nairobi shopping mall, a tribunal ruled Monday. 

The panel, appointed by Kenya’s president, Mwai Kibaki, said that Nancy Baraza, the country’s deputy chief justice, was guilty of “gross misconduct and misbehavior.” 

She had refused to be searched by Rebecca Kerubo, a female guard on duty at a security desk at the entrance of a shopping center popular among wealthy Kenyans, expatriates, and diplomats, on New Year’s Eve last year. 

During the argument that followed, Ms. Baraza reportedly pinched Ms. Kerubo’s nose, and then threatened to shoot her. 

The incident caused an uproar at the time, and the ongoing investigation has been seen by Kenyans as a true test of the country’s new constitution: its fairness, and its ability to ensure better conduct from public officials. 

It is expected that President Kibaki will follow the recommendations of the seven-member tribunal, led by Tanzania’s former chief justice, Augustino Ramadhani, and sack Baraza.

"The tribunal members have unanimously found that the conduct of the [deputy chief justice] on 31st December 2011 at the Village Market amounted to both gross misconduct and misbehavior," the panel ruled.

"She didn't carry herself in the manner anticipated by the Constitution and the Judicial Code of Conduct.

"Every single judge has a potential of preserving or tarnishing the integrity of the Judiciary on every occasion."

Kerubo said Monday that she would ask Kenya’s state prosecutor to file criminal charges against Baraza, who has ten days to respond to the tribunal’s decision. She was suspended from work during the course of the investigation. 

She is reported to have told Kerubo that she should “know people”, which has been taken to mean that the guard should have known that Baraza was a VIP and treat her differently. 

Kerubo said her job demanded that she search everyone entering the mall, one of many now deploying increased security following bomb threats from Somalia’s Al Shabab terror group. 

“It might look like not much of a big deal, but you have to remember that in this country, the Goliaths get away with everything and the Davids are never vindicated,” said Stella Karanja, a businesswoman watching the story on the evening news in a Nairobi bar. 

There were mixed reactions from Kenyans following the story via Twitter. 

“Baraza's story proves arrogance shall lead you to the bottom of the food chain. A watchman can make u lose ur job,” Mukiri Mwithiga tweeted.

But another Twitter user with the name Kefaz said: “Let's be real here. Baraza pinched a guard, she's sent packing. People mastermind killings after election and they are running this country.” 

He was referring to international court cases against four senior Kenyan figures, including its finance minister, Uhuru Kenyatta, accused of orchestrating deadly clashes after the 2007 election. 

The country’s legal institutions have been widely discredited as corrupt and places where money and influence can buy impunity. 

Baraza has not yet decided on her next course of action, her lawyer told Kenya’s Nation TV news.