Nancy Baraza should apologize

Nancy Baraza is stuck into a filthy and embarrassing quagmire. She badly slipped on New Year’s eve and has now become a subject of ridicule and contempt. But she is still Nancy Baraza, the lady who topped the list of scores of highly qualified Judges, lawyers and academics to be chosen the country’s first Deputy Chief Justice under the new Constitution. There are very few people of Nancy Baraza’s competence.

Those who know Nancy Baraza well will tell you for nothing that she is a woman of no nonsense. You step on her toes at your own peril. Her capacity to hit back is as quick as lightening and just as lethal. It is without a doubt that Rebecca Kerubo, the security guard at the Village Market, had none of these facts when she insisted on frisking the Deputy Chief Justice on New Year ’s Eve before the number two boss of justice in the country entered the mall for shopping. The rest is now history; but a number of vital questions ought to be discussed by the entire society on what is now commonly known as the Nancy Baraza Gun saga at the Village Market.

The first question is simple but may be would help us know the true nature of our society. It simply is: Who between Nancy and Rebecca is more important before the law and who among them should be protected more by that same law than the other? Asked in colonial times, the answer would obviously have been Nancy. In those days no small woman of Rebecca’s status, working as a female askari, a position which in fact never existed, would have dreamt of coming anywhere close to a judge, leave alone the number two of the judges in Kenya.

If Rebecca would have been lucky enough to get a job as a doorkeeper through which judges walked, her duty would have been to solute to all the white judges, because that is what they all were, and maybe she would also have been obliged to kowtow so deeply in order to show her respect, fear and awe to the powers of the crown in the colony.

Under Jomo Kenyatta’s regime she would have ended up in jail for disrespecting authority by trying to bodily search a judge. Under Daniel arap Moi’s rule of terror Rebecca would probably simply have disappeared or get all sorts of charges framed up against her before she ended up in jail for disrespecting lawful authority.

Today Rebecca is a lucky lady. She is protected by the Bill of Rights found in Chapter Four of the Constitution which says in Article 19(2) that the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. The fact that Rebecca’s rights are protected by the Constitution is also known to Nancy who admits there was an “unfortunate” incident at the Village Market on the last day of last year.

The incident has also made the CJ, Willy Mutunga, to summon the JSC to examine the Nancy Baraza episode. As the high powered team meets to look into the whole sad issue the second question comes to mind: Would Nancy Baraza have been humiliated by succumbing to a bodily search by Rebecca on that fateful day? Even as the number two judge in the country is she really the people’s boss or servant?

Article 159. (1) of the Constitution says judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution. That to me makes the people to be Nancy Baraza’s bosses and when she goes around demanding to be given special treatment like Colonial, Kenyatta’s or Moi’s judges, as Rebecca seems to suggest, the whole episode becomes an extremely sad affair which should make us all wonder whether the DCJ knows that she is indeed a mere servant of the people.

Even when she is on the Bench exercising her powers Baraza is not allowed to forget that fact for Article 199 (2) also clearly say that in exercising judicial authority, the courts and tribunals shall be guided by the principles of justice being done to all, irrespective of status; without being delayed. Be that as it may Baraza is not an ordinary person. She topped the list of scores of applicants who wanted her job because she was, without any doubt the most qualified of the lot.

The qualifications needed for her job were not ordinary. The Judicial Service Commission, which will be reviewing her case, wanted someone who would be deputising for the CJ and be the Vice President of the Supreme Court. Apart from being responsible to the Chief Justice Nancy Baraza wears many other hats but basically the JSC wanted a person of high moral character, integrity and impartiality.

In addition the JSC wanted a person who had demonstrated a high degree of professional competence , communication skills , fairness, good temperament, making good judgement in both legal and life experience and commitment to public and community service. The allegations made by Rebecca against Nancy put Baraza’s real qualifications for the job she is holding in a very tricky and questionable situation .Since she admits the incident at the Village Market was an “unfortunate” one, she probably needs to explain to the JSC about the manner in which she was able to, or probably not quite able to, control her temper on New Year’s eve.

Rebecca has told journalists that Nancy has sent a lady to try and reconcile the two . If it is true it is a commendable gesture which shows the soft side, which is the humane side, of Nancy Baraza. After all she is also a human being and the approaches she is making are indeed supported by the Constitution which says in Article 159 (2)(c) that alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted subject to clause (3) which says traditional dispute resolution mechanisms shall not be used in a way that— contravenes the Bill of Rights; is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or is inconsistent with this Constitution or any written law.

Nancy Baraza will now have an uphill task of proving that she did not in any way violate Rebecca’s fundamental rights as they are enshrined in the Bill of Rights in Article 27(1) which says every person is equal before the law and has the right to equal protection and equal benefit of the law.The Constitution says clearly that equality includes the full and equal enjoyment of all rights and fundamental freedoms.

Baraza can therefore not use State powers, some of which she arguably enjoys, to deny other people their rights because the Constitution says the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion,conscience, belief, culture, dress, language or birth.

To Nancy Baraza,Rebecca Kerubo is a very small person. But before the law they are both equal and Nancy, as the second most powerful person in the Judiciary should have been the first person , or is this the second, to know that. The very least she can do now is to publicly apologize to Rebecca and pay her a handsome amount which will make her forget the sad incident. And then she should continue to be the DCJ this country needs.