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THE NANCY BARAZA VERDICT, PART I: JUSTICE AUGOSTINO RAMADHANI’S STATEMENT AT THE KICC

Justice Augustino Ramadhani

Justice Augostino Ramadhani statement at the Kenya International Conference Centre (KICC) on the special tribunal’s findings into the conduct of Deputy Chief Justice Nancy Baraza lasted 1 hour, 26 minutes and 18 seconds. The transcript below is of the last 30 minutes of Justice Ramadhani’s statement (beginning at 54 minutes and 58 seconds) covering the tribunal’s conclusions and recommendations.

EVALUATION OF THE EVIDENCE

It is now for the tribunal to evaluate the evidence taking into account the standard of proof we have set for ourselves.

To a very large extent what is in issue is the credibility of witnesses. As we have already pointed out there are two versions of what happened on that fateful day: that of Kerubo on the one hand and that of DCJ on the other hand.

Admittedly, Deputy Chief Justice Nancy Baraza conceded a great deal of what took place at the Village Market. She admitted to have gone to mall, to have by passed the security desk and to have been followed by security guard Rebecca Kerubo who demanded that the DCJ’s handbag be searched.

There is no doubt that there was an altercation between the DCJ and Kerubo. From the CCTV it is clear the DCJ’s arm was outstretched outside the pharmacy whereas according to her, this incident took place inside the pharmacy.

This would corroborate Kerubo’s story that her nose was pinched. There is also the evidence of (Dr James) Wathigo and that of his assistant, (Benedict) Muhani, who both worked at the pharmacy.

“This would corroborate Kerubo’s story that her nose was pinched”

Kerubo testified that the DCJ pinched her nose outside the pharmacy, and when she followed her into the pharmacy the DCJ placed her hand on her shoulder.

Indeed the DCJ testified that she did place her hand on her shoulder inside the pharmacy and also placed her hand over Kerubo’s mouth to stop her from shouting. The DCJ made no mention of the touching of Kerubo outside the pharmacy.

Kerubo had stated in her evidence that on January 1, 2012, when she first viewed the CCTV footage it was clear that her nose was pinched. However, on the other occasions the CCTV footage merely showed the DCJ’s hand being stretched towards her.

When the Tribunal viewed the CCTV, we observed that the DCJ turned around between the security desk and the Pharmacy, and then turned to proceed into the Pharmacy; she then came out, and Kerubo could be seen standing outside and looking into the Pharmacy.

The image then showed DCJ with her arm outstretched towards Kerubo, and then turning and going back to the Pharmacy.

“We find Kerubo to be credible from the way she confidently and steadfastly gave her evidence and especially in cross-examination… On the other hand, we were not thus impressed by the evidence given by the DCJ”

Kerubo suggested that the films have been tampered with. However, that was never established. But it is our considered opinion that that is not absolutely necessary for our determination in these investigations.

The question for us to determine is why was the arm stretched? For Kerubo the arm was stretched to pinch her nose. As for the DCJ she merely confirmed that it was her stretching her hand, but she provided no explanation. Kerubo’s account of the incident was corroborated by Makhanu.  We find Kerubo to be credible from the way she confidently and steadfastly gave her evidence and especially in cross-examination. In fact, she has been consistent in her statements since  December 31, 2011. What she did not know she forthrightly admitted her lack of knowledge. She never contradicted herself.

On the other hand, we were not thus impressed by the evidence given by the DCJ. There were discrepancies in her evidence. For instance, she testified that after she entered the Belladonna Pharmacy, Kerubo followed her and used disrespectful language.

This was denied by Kerubo. Wathigo who was in the Pharmacy testified that Kerubo told the DCJ that she needed to be searched. The DCJ responded that Kerubo “should know people around here” and walked away to the counter and from there, DCJ directed Kerubo to apologise to her.

DID DCJ BRANDISH A PISTOL AND THREATEN TO KILL KERUBO?

Deputy Chief Justice Nancy Baraza – “not impressed by the evidence given”

The DCJ further informed the Tribunal that she was without her bodyguard, (Annalice) Kaburu, because she had given her leave of absence to attend to family matters in Meru. But Kaburu stated that she came back on December 26, 2011and that she phoned the DCJ the following day. So, there was no reason for the DCJ to be without her bodyguard on the December 31 2011.

The other matter is whether the DCJ brandished a pistol at Kerubo threatening to kill her. The cameras, which would have captured what was happening at the point of entry and point of exit of the DCJ were said not to be working. That was the evidence of Makori, who works in the Control Room, Meshack, the Chief Security Officer of the Village Market; and Kiplimo, who was working with the CID in Cybercrime Unit. So, the only evidence was that of the DCJ against that of Kerubo and Makhanu.

We have already found that Kerubo was a credible witness but it may not be out of place to show why she should be believed in this issue, too. Her nose was pinched outside the Belladonna Pharmacy and yet she went back to her security desk to proceed with her duties.

We ask ourselves what then made her scared to the marrow and caused her to go home prematurely and then straight to bed until the following morning, as narrated by her husband, (Bernard) Morara. Certainly it was not the pinching of the nose.

Equally it was not the realization that the woman she was confronting was a VIP because the DCJ herself told her inside the Pharmacy who she was. The only plausible explanation is what she said: that the DCJ brandished a pistol and threatened to shoot her.  It is significant that Kerubo only referred to the pistol incident in the report captured in the occurrence book at Gigiri Police Station. It appeared to the Tribunal that had there been no pistol incident, no report would have been made to the police as despite having her nose pinched Kerubo went back and carried on with her duties.

“It has been sufficiently proved that the DCJ pinched the nose of Kerubo and that conduct displayed by the DCJ was demeaning her office… It has also been sufficiently proved that the DCJ threatened to shoot Kerubo with a pistol and that conduct constitutes gross misconduct on her part”

The DCJ’s evidence is she has no licence to carry one. Her driver, Omondi and bodyguard, Kaburu, both carry a pistol in their assignment with the DCJ and both stated that the pistols were in their possession throughout. We find Omondi to be an unabashed liar. He claimed that he went into the Village Market on that fateful day with his pistol on his body and that he had to show his police identity card to Makhanu.

The latter denied there having being any person who passed through the security desk with a pistol on that day. We believe Makhanu on this issue for the simple reason that this is an occurrence, which one would never have forgotten.

Besides, in his earlier statement before the JSC, Omondi said that he entered the Village Market without being checked. He also contradicted the DCJ in that he claimed he saw Kerubo pulling the handbag from the DCJ while the DCJ said no one touched her bag.

Here we must observe that the investigators, if they had pulled their weight, could have produced independent witnesses to prove or disprove that assertion of brandishing a pistol. There were two independent guards close to the Security Desk: one was Peter guarding the Diamond Trust Bank, according to Mungai and the other KK Security in the parking lot.

PROOF AND PROBABILITY

Rebecca Kerubo – “credible”

Had this been a criminal matter we would require proof beyond reasonable doubt. But the proof required in this matter is below “beyond reasonable doubt” but above a “balance of probability” and we find that it has been met. We are satisfied that the allegations have been proved and that we have no doubt in our mind that what was alleged to have occurred did in fact occur.

It has been sufficiently proved that the DCJ pinched the nose of Kerubo and that conduct displayed by the DCJ was demeaning her office, to say the least.

It has also been sufficiently proved that the DCJ threatened to shoot Kerubo with a pistol and that conduct constitutes gross misconduct on her part. It has automatically been proved after the proof of the first and the second allegations that the DCJ created disturbance in a manner likely to cause a breach of the peace which constitutes gross misconduct and misbehaviour.

BARAZA CONTACTED WITNESSES

In determining the proper sanction, this Tribunal also has to consider the impact of the DCJ’s conduct on the Judiciary. It must be remembered that every single Judge has the potential of preserving or tarnishing the integrity of the Judiciary on every occasion.

On June 27, 2012, about one week before the Tribunal was scheduled to start its hearings, and after the DCJ had been served with a list of witnesses as well as witness statements, she contacted Kerubo and Makhanu.

The DCJ’s testimony was that she wished to reconcile with Kerubo, while Kerubo stated that she asked them to change their evidence and to remove references that she (the DCJ) brandished a pistol and threatened to shoot Kerubo. That was a very serious undertaking conducted by a judicial officer.

BARAZA’S STATE OF MIND

We are, therefore, not convinced that the DCJ can be expected not to engage in this kind of misconduct or misbehaviour in the 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.

The DCJ has raised the issue of her state of mind on the evening of December 31, 2011. She stated that she was distressed after visiting her son who is in a rehabilitation centre and whose condition and state of mind are worrisome. A doctor was to be produced to substantiate that submission.

However, as the doctor would have taken a lot of time to appear before the Tribunal he was discarded by the DCJ. We are prepared to take the word of the DCJ on this score and to accept that such a situation is very disturbing. Let us assume that her state of mind was disturbed as aforesaid. When Kerubo trailed her to the pharmacy and demanding to search her handbag she should have let her do so.

“She went away and came back with a pistol and brandished it at the unfortunate woman who was just performing her duty”

Her story that Kerubo called her discourteously finds no purchase with us.

Wathigo, who is an independent witness, told the Tribunal that she heard the DCJ telling Kerubo who she was and that she should be respected and also that the DCJ told Kerubo that they were not sisters. This clearly indicated that Kerubo addressed the DCJ as “my sister” and that is far from being discourteous, otherwise all judges are discourteous to one another. Then even 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 did she do?

She went away and came back with a pistol and brandished it at the unfortunate woman who was just performing her duty. Surely, the second highest judicial officer ought to have done better than that.

CONCLUSION

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.

Having determined the facts of the allegations facing the DCJ, and having found all that we have as displayed above, we have concluded that the DCJ committed gross misconduct and misbehaviour.

The actions of the DCJ were not done in connection with her office duties but rather with her private life. Rule 12 of the Judicial Service Code of Conduct and Ethics states as follows: “A judicial officer and any other officer in the Judicial Service shall ensure that his official and private conduct upholds at all times, the dignity and integrity of the Judicial Service by conducting himself, both officially and in private, in a dignified, honest and impeccable manner.” The Tribunal is satisfied that the conduct of the DCJ breached the provisions of Article 168 (1) (e) read together with Article 7,5 (1) (c) of the Constitution, 2010 and of the Judicial Code of Conduct, and was of such a serious nature to amount to gross misconduct and misbehaviour.

RECOMMENDATION

The Tribunal members having unanimously found that the conduct of the DCJ on December 31, 2011 at the Village Market, Nairobi, amounted to both gross misconduct and misbehaviour, we therefore recommend to Your Excellency Mwai Kibaki, CGH, MP, President and Commander In Chief of the Armed Forces of the Republic of Kenya, that Lady Justice Nancy Makokha Baraza, the Deputy Chief Justice and the Vice-President of the Supreme Court of Kenya, be removed from office.


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