Time: Circa 1000 BC. Place: Palestine. According to the Hebrew Bible, David, son of Jesse, is king of Israel and Judah. He has had an affair with a soldier’s wife, and tries to hide the illicit liaison by having the soldier named Uriah killed in battle.
The prophet Nathan confronts David with a story about a rich man who had a huge herd of cattle and sheep, and his neighbour, a poor man whose only earthly possession was a lamb that he loves like one of his children.
One day, the rich man had a guest in his house, but instead of slaughtering one of his own animals, he instead took the lamb that belonged to the poor man and prepared it for his visitor.
When David hears this, he becomes enraged, and declares that the man who did this must pay four times over, because he had no pity on a defenceless man.
Nathan then makes the grave pronouncement to the king, “You are that man.” It must have been a mortifying blow to David — as king, he was expected to uphold the law and protect the powerless, but instead, he had turned around and victimised those who looked up to him as the custodian of justice.
Fast forward 3,000 years, and the story gains a new resonance in Kenya.
The country’s Deputy Chief Justice Nancy Baraza was last week caught up in an altercation with a security guard at a shopping mall in Nairobi.
The security guard, identified as Rebecca Kerubo, said that the deputy CJ arrived at the Village Market around 6pm, and walked past the security guards towards a pharmacy not bothering to be screened as is required by the mall’s security protocol — measures that are routinely followed in the city’s office buildings and entertainment spots.
Ms Kerubo then followed the deputy CJ to the pharmacy counter asking to search her purse, but Ms Baraza reportedly dismissed her saying that the guard “ought to know people.” What happened next is under contention.
According to Ms Kerubo, they got into an argument, and a furious deputy CJ dashed to her car, returned brandishing a gun and threatening to shoot the guard.
On her part, Ms Baraza admitted to the press that there was a confrontation, but denied the gun claim. “I have never been issued with a gun,” she told our sister publication Daily Nation, while describing the incident as “unfortunate.” Police Commissioner Matthew Iteere confirmed that the incident was under investigation, with Gigiri police boss Patrick Mwakio saying that the mall’s CCTV footage did not capture the gun.
Gun or not, Kenya’s judiciary has been plunged into the throes of an ethical and credibility crisis by what appears to be at best, an unnecessary escalation of a situation that could have been reasonably handled with dialogue. It could not come at a worse time for the country.
Last year, the search for Kenya’s top judicial officers under a new constitutional dispensation was lauded for its transparency and high standards, and was expected to restore long-lost confidence in the judiciary. Before clinching the job, Ms Baraza was subjected to gruelling interviews on her character, her commitment to reforms and the upholding of the rule of law.
Speaking to the Inter Press Service agency in November last year after being sworn in as Kenya’s first woman to hold the post, she said, “We shall implement radical but necessary reforms that are going to bring effectiveness, fairness, eliminate corruption and instil discipline among [the judiciary’s] officers.”
The budding faith the common man had in a revamped judiciary could be nipped by a resurging cynicism — that, after all the glitzy television interviews, a stubborn impunity remains firmly in place in the highest corridors of justice.
Activists have already started calling for her resignation.
The International Centre for Policy and Conflict described the incident as “irresponsible” adding that “Ms Baraza’s conduct has dealt a severe blow” to the momentum that had been building in the quest to protect and defend the Constitution.
Chief Justice Willy Mutunga issued a statement reiterating the commitment of the judiciary to the rule of law and the “steadfast belief in the equality of all before the law,” promising to investigate the matter. The CJ said that he would convene an emergency meeting of the Judicial Service Commission to discuss the matter.
“I am in the process of getting full facts surrounding the incident... the Constitution of Kenya envisages an open and democratic society based on human dignity, equality, equity, freedom and non-discrimination. Nobody or institution in Kenya is above the law. This is the creed that we strive to uphold at the judiciary,” he said.
But this is not the first time that Nancy Baraza has been on the wrong side of news. In 1990, Ms Baraza joined hands with former anti-graft chief Aaron Ringera and fellow lawyers Phillip Kandie and Nesbitt Onyango seeking to have Paul Muite, then chairman of the Law Society of Kenya (LSK) barred from issuing “political” statements on behalf of the legal fraternity. At the time, Kenya was still a one-party state by law, and critics of Daniel arap Moi’s government were routinely harassed, arrested and even tortured. But the winds of democracy were blowing — the Berlin Wall had come down the previous year, communism in the Soviet Union was crumbling, and opposition activists in Kenya were agitating for change, with the LSK at the vanguard.
Near fallout with LSK
The current CJ was then the LSK’s vice-chairman, and he was on the receiving end of Ms Baraza’s gag order, along with Muite, Charles Nyachae — now the chairman of the Commission for the Implementation of the Constitution — Martha Njoka, whom Kenyans now know as Martha Karua, Japheth Shamalla, F. Kagwe and G. B. M. Kariuki.
As LSK chairman, Muite told the court that it was the business of LSK to speak out on human-rights violations, over-concentration of powers in the presidency, subordination of other institutions and emasculation of parliament. These were the issues that would later inform the struggle for multiparty politics and the Constitution that we have today.
The Nancy Baraza group felt that LSK should restrict itself to the narrow objective of disciplining and licensing lawyers and that the Muite group was out of line.
It wanted the Muite group sent to jail for contempt of court after they defied orders issued by Justice Norbury Dugdale and Justice Joseph Amonde Mango barring them from making political statements. Muite completed his tenure without doing too much as the Baraza faction managed to scuttle his efforts to use the LSK to raise serious issues of political leadership in this country.
At the vetting exercise for the top judicial jobs, the 1990 incident was revisited when parliamentarian Millie Odhiambo asked Ms Baraza how, as a self-confessed reformist, she justified her move to have Muite and company gagged. Ms Baraza said that she was then naive and wanted to save the law body from being proscribed by Moi. In the ensuing years, Ms Baraza managed to erase this blot on her career by becoming a democracy activist — it seems that all was forgiven by Muite and civil society.
Nancy Makokha Baraza was born in Bungoma County in the 1950s and attended Lugulu Girls High School for her O-levels.
She is a former chairperson of the Federation of Women Lawyers of Kenya (Fida), a group known for its strong advocacy of democracy, women’s and children’s rights.
She served in Yash Pal Ghai’s original Constitution of Kenya Review Commission, which produced the Bomas draft constitution, a document that served as one of the reference drafts for the constitution passed in 2010.
She was appointed to the Kenya Law Reform Commission in 2008 for a term of three years, serving as a vice chairperson until her appointment as deputy CJ. In early 2010, she was elected chairperson of the Media Council of Kenya’s Ethics and Complaints Commission.
Ms Baraza has a bachelor’s and master’s degree in law, and lectured at Kenyatta University’s law school until last year. She is pursuing a doctorate degree in law at Kenyatta University.
Her PhD thesis on rights of gays drew some interest during the judiciary vetting interviews, with religious conservatives opposing her appointment, fearing that she would champion gay rights.
The Catholic Church said: “We need people with a judicial philosophy that reflects natural law, the Kenyan religious and African cultural values, including our universal respect for life...” But Ms Baraza said her PhD thesis on the rights of gays in Kenya was informed by the fact that health services were non-existent for gays.
“Those who say I’m supporting them are jumping the gun. I have gone into the unknown. I have no findings yet,” she told IPS.
During the vetting interviews, Baraza recalled that while at CKRC, two senior members of the judiciary filed a suit opposing the inclusion of the judicial chapter in the draft constitution.
When questioned by Judicial Services Commissioner Ahmednasir Abdulahi on what should happen to the judges who attempted to block the revamping of the judiciary in the Constitution, Ms Baraza said it would be upon the JSC to determine what actions to take against them. Ms Barasa told the panel that despite the 2003 “radical surgery” in the judiciary, corruption became worse.
When asked what her agenda for the judiciary would be in the first 100 days in office, Baraza said she would seek public involvement, initiate training in cultural values and create a mechanism to deal with advocates, whom she accused of perpetuating corruption in the courts.
“It is the lawyers who encourage corruption in the judiciary. We should not blame the judicial officers alone because it takes two to tango,” she said.
