Prosecution of Nancy Baraza.

[Daktari wa makazi]

The investigations are progressing along, by Friday, the JSC will report its findings. The police have finished theirs, done by no less, the head of CID. File is with the DPP - who is looking to bring prosecution.

In this thread, I attempt to give a view of the pending prosecution. The usual disclaimer applies - I cannot be held responsible nor liable for any opinion given.

According to the Standard, the Police want Nancy Baraza to face the following charges,

1. assault,
2. illegal use of a firearm,
3. unlawful possession of a firearm, and
4. threatening to kill.

Facts.

The facts emerging so far is that,

1. The police state there is no CCTV evidence that Nancy Baraza held a gun on a kneeling Kerubo’s head. It is a matter of words between the two antagonists. However, the JSC believe there a conclusive video of the incident and have asked the proprietor of the Supermarket not to release it to the Police.

2. Kerubo says in her statement that Nancy Baraza obtained a gun from her driver, which she brandished at a cowering Kerubo who was then kneeling before her.

3. Nancy Baraza’s second statement, which police described as “self-incriminating” seems to agree with Kerubo’s ‘pinching the nose’ but is not clear the gun theory.

4. But, the driver and bodyguard, both police officers, in their statements, denied giving their weapons to the judge. They also denied that she handled any weapon during the incident.

Analysis.

I think they got some of the charges wrong. Was it assault or battery? Assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. If the claim is that Kerubo was ‘pinched’ on the nose, then that is obviously battery, not assault. But, if the claim is about the threatening behavior in words and gestures, then assault is proper. Which is which? Wrong charges means no charge!

In my knowledge, the most serious is the ‘threatening to kill’. In strict terms, that is another way of committing assault, maybe aggravated assault. The crime should read, ‘attempted to murder (kill)’. That is a serious charge if framed that way. The test in criminal cases is beyond reasonable doubt. On the charge of attempting murder, there must be an intention to kill (murder) coupled with the action, both of which in tandem could lead to murder. Attempted murder is the crime of more than merely preparing to commit unlawful killing and at the same time having a specific intention to cause the death of human being. The phrase "more than merely preparatory" is specified to denote the fact that preparation for a crime by itself does not constitute an "attempted crime".

Based on the little information available, I doubt if it can be proved that Nancy Baraza wanted to kill Kerubo. From what I can see, there is no motive. It may be coached as a crime out of ‘anger’. Despite, the anger, would it be substantiated that Nancy Baraza had clearly formed her mind to kill? I seriously doubt it.

The weaponry charges seem to me to be superficial. Illegal use of firearm entails using the fire, albeit illegally. So far, I haven’t heard that the gun was discharged. Unlawful possession means the person using the gun does not have a licensed to do so. Using a gun means discharging it. One cannot use gun without discharging it. I doubt very much if that includes holding at some else’s head gun. The security details have all reported that they did not give their guns to Nancy Baraza. Even if they did, they are the ones to face the music, not Nancy Baraza for allowing the ‘misuse’ of their guns. They are expected to decline to follow orders which go counter to lawful ones. Maybe that is why they are categorical that their guns was not used.

[afrigun]

Sadik,

firstly, i dont know under what authority the JSC is acting in giving directions on how evidnece should be disposed of or dealt with. it is a clear case of interference, if not an outright criminal offence, to ask anybody to conceal evidence.

Secondly, "threatening to kill" is recognised as a distinct offence under kenyan law, separate from attempetd murder. have a look at section 223 of the Penal Code which defines the offence. the proposed charge can therefore stand in court.

in view of the fact that the complainant says she was terrified and reduced to begging for her life on her knees, (and given that there is no denial that she at one point was on her knees pleading) what would be your views?

[nereah]

thanks sadik ;D for this but check again if its standard because i suppose it was the daily nation that went to town with the police(cid) prosecution details.

now, i read in the daily nation online that kerubo has changed her mind and is opting for full trial, egged on by a seemingly excited lawyer who rhetorically ask what would have happened if his client was the one who would have allegedly assaulted the senior judicial officer.

i am with nancy baraza on this and i want the case to go full trial, keenly looking out for those interested parties that may want to be enjoined in the suit. what i know for sure is that the full trial will be a reality check, sobering indeed.

by the way sadik, is it stretching my fertile imagination to far by seeing some hidden forced behind kerubo's full trial? see the optics? who is meeting the lawyers cost given her known economic status( and i state this neither lightly nor slightly) and more importantly what is kerubo suing for( compensation?). ...or am i mistaking the police(cid) prosecution with kerubo's reported intent to sue?

i may be wrong as usual.

[Daktari wa makazi]

Jan 11, 2012 13:58:39 GMT 3 afrigun said:

Sadik,

firstly, i dont know under what authority the JSC is acting in giving directions on how evidnece should be disposed of or dealt with. it is a clear case of interference, if not an outright criminal offence, to ask anybody to conceal evidence.

Secondly, "threatening to kill" is recognised as a distinct offence under kenyan law, separate from attempetd murder. have a look at section 223 of the Penal Code which defines the offence. the proposed charge can therefore stand in court.

Afrigun

You are right the penal code has a ‘threat to kill’ offence. Is it a distinct offence? My experience is that, as ‘inchoate’ offence, ‘threat to kill’ is usually in the company of other offences, blackmail, extortion, kidnap, hijacking, and illegal detention. I have not heard of ‘threat to kill’ standing alone as a charge. What I meant to say, therefore, is that as offence, ‘threat to kill’ usually is difficult to prosecute as a stand-alone because it involves a ‘developing’ crime evidentiary.

The investigation by the JSC and the police are stepping on each other. Which takes precedence? I think it is the police one. However, the JSC are doing their investigation after the police have finished theirs. They can ask therefore for evidence they are interested in not to be disposed of before they completed their investigation.

I think the ‘kneeling’ if it can be proved was because there was a threat may support assault, if done using a gun will reach aggravated level. Is that enough to satisfy the threat to kill? It will depend on the evidence. If it is established that Kerubo was terrified and reduced to begging for her life on her knees, then I assume the charge can be sustained. I note, though, there in no CCTV record of Nancy holding a gun on Kerubo’s head.

Jan 11, 2012 15:07:13 GMT 3 nereah said:

thanks sadik ;D for this but check again if its standard because i suppose it was the daily nation that went to town with the police(cid) prosecution details.

now, i read in the daily nation online that kerubo has changed her mind and is opting for full trial, egged on by a seemingly excited lawyer who rhetorically ask what would have happened if his client was the one who would have allegedly assaulted the senior judicial officer.

i am with nancy baraza on this and i want the case to go full trial, keenly looking out for those interested parties that may want to be enjoined in the suit. what i know for sure is that the full trial will be a reality check, sobering indeed.

by the way sadik, is it stretching my fertile imagination to far by seeing some hidden forced behind kerubo's full trial? see the optics? who is meeting the lawyers cost given her known economic status( and i state this neither lightly nor slightly) and more importantly what is kerubo suing for( compensation?). ...or am i mistaking the police(cid) prosecution with kerubo's reported intent to sue?

i may be wrong as usual.

Nereah

Kerubo will not gain anything financially if the case goes for criminal trial. If Nancy Baraza is found to have assaulted her, and for argument sake is ‘jailed’. Then Kerubo can sue in a civil action to claim compensation. Any criminal action will therefore be important to both sides for the seek of the next action. That is why I assume the lawyers representing her now are egging for - the civil action to follow. Let us not forgot that a lot of tribal chest thumping is also manifesting itself here, and I wouldn't be surprised if people are backing Kerubo simply because of her tribe.

The little I have seen on the evidence on paper, I am not convinced Nancy Baraza can be convicted. There is a lot of holes in Kerubo’s statements, even if they don’t deal with the evidence that can be used against her. The biggest danger to Kerubo’s case is the fact that there is no incriminating abstract evidence like CCTV recording against Baraza. That would have been game over! It remains to be what she said against Baraza’s account. If for example it has been established she lied about her motive, or anything else however irrelevant then Nancy Baraza can argue that Kerubo is not reliable and her testimony is not credible, and that can fatally damage her case. Now, that is where the 'quality' of lawyering especially on cross-examination becomes very significant.

[nereah]

sadik, i am being informed by a capital fm radio newscaster that sister nancy was summoned before the dr samuel kobia led inquest committee today for the third time so as to "clear some matter." the committee has reviewed evidence from 16 witnesses and also the recorded cctv footage.


i wonder:are videocctv and published materials admissible in court of law as evidence? if so, what about a tape recording of a conversation?

[akinyi2005]

oh dear looks like some people will have to return home without the 'hippo meat' ;D as mentioned by adongo elsewhere.
anyway, we still have the much-anticipated ruling on the election date plus the announcement from the Hague - not a bad Friday after all.


Baraza gun probe is shoddy, says Tobiko


.....Mr Tobiko said his decision had no bearing on the internal probe by the JSC.

“Our mandate is separate from JSC’s. The Judiciary is concerned with alleged professional misconduct, we are looking at criminality.

The burden and standard of proof is higher for us than the JSC. With the gaps and deficiencies raised above, I am not confident that if I charge the DCJ a conviction would result,” Mr Tobiko said.....

www.nation.co.ke/News/politics/Baraza+gun+probe+is+shoddy+says+Tobiko+/-/1064/1304764/-/myf0it/-/index.html

[tnk]

Jan 13, 2012 0:57:05 GMT 3 akinyi2005 said:

oh dear looks like some people will have to return home without the 'hippo meat' ;D as mentioned by adongo elsewhere.
anyway, we still have the much-anticipated ruling on the election date plus the announcement from the Hague - not a bad Friday after all.


Baraza gun probe is shoddy, says Tobiko


.....Mr Tobiko said his decision had no bearing on the internal probe by the JSC.

“Our mandate is separate from JSC’s. The Judiciary is concerned with alleged professional misconduct, we are looking at criminality.

The burden and standard of proof is higher for us than the JSC. With the gaps and deficiencies raised above, I am not confident that if I charge the DCJ a conviction would result,” Mr Tobiko said.....

www.nation.co.ke/News/politics/Baraza+gun+probe+is+shoddy+says+Tobiko+/-/1064/1304764/-/myf0it/-/index.html

ati cctv footage only shows baraza entering and leaving the mall

back to my point earlier on about personal safety and the terrorism threat

kenyans entering the mall believe they are safe after being frisked, and captured on CCTV

my advice is we are courting disaster and if the security services in public places do not take this seriously, some major disaster will be inevitable.

back to this issue, am guessing it will soon turn into a vengeance mission

[Onyango Oloo]

Let me briefly say that on Thursday afternoon (January 12, 2012) I was in the office of one of my friends that I have known for almost thirty years-a certain human rights lawyer who happens to be a well-known member of parliament.

No, he is NOT a Luo; he is not in the cabinet and he is NOT in ODM, for the obsessively curious.

He actually rooted for Nancy Baraza's appointment.

But he told me that Nancy has cooked herself on this one-she took herself to the police station and basically ADMITTED EVERYTHING IN WRITING.

He even told me about the ITEM in Ms. Baraza's purse that had her in such a funk when Ms. Kerubo insisted on searching the DCJ-but that is neither here, nor there.

In his opinion, the ONLY PERSON who can save the Deputy Chief Justice is Dr. Willy Mutunga.

Will Ms. Baraza lose her job on the unlucky Friday the 13th?

Who knows?

This is Kenya.

Onyango Oloo
Nairobi

[tnk]

Jan 13, 2012 1:17:02 GMT 3 Onyango Oloo said:

Let me briefly say that on Thursday afternoon (January 12, 2012) I was in the office of one of my friends that I have known for almost thirty years-a certain human rights lawyer who happens to be a well-known member of parliament.

No, he is NOT a Luo; he is not in the cabinet and he is NOT in ODM, for the obsessively curious.

He actually rooted for Nancy Baraza's appointment.

But he told me that Nancy has cooked herself on this one-she took herself to the police station and basically ADMITTED EVERYTHING IN WRITING.

He even told me about the ITEM in Ms. Baraza's purse that had her in such a funk when Ms. Kerubo insisted on searching the DCJ-but that is neither here, nor there.

In his opinion, the ONLY PERSON who can save the Deputy Chief Justice is Dr. Willy Mutunga.

Will Ms. Baraza lose her job on the unlucky Friday the 13th?

Who knows?

This is Kenya.

Onyango Oloo
Nairobi

well let me join the guessing game

since he is not a corporate titan given his resume, you omitted one incident at state-house my guess is you are talking here about Gitobu Imanyara

anyway back to the issue, you have seen what DPP has said about the investigations. and as far as i know, thats the only entry point for pressing criminal charges

[adongo23456]

Folks,

The public statement by Tobiko is quite a blow to the lynch mob. For one thing Tobiko did not have to make a public statement. He could have silently returned the file to the police and informed the public that he needs farther evidence.

So the DPP publicly rubishing the police investigation by declaring that the CCTV footage was less than useless and that statements even from the suspect to be are not admissible in any court of law is thrashing a dagger on any possibility of criminal charges. Without a criminal charge everything gets very dicey and removal from office becomes very unlikely.

Now as far as the JSC is concerned a few things are worth noticing.

1. Contrary to what OO's good friend told him about Mutunga being the only hope left for Nancy Baraza, I tend to think Dr. Mutunga will avoid dictating terms and resolutions to the JSC.

The JSC had appointed a sub committee. The CJ cannot and will not simply bulldoze his way and demand Nancy Baraza be saved or be hanged.

It will have to be a collective decision where the CJ's voice will be critical but not final. I suspect the JSC may take a vote on the form of punishment they meet out to the DCJ.

My sense is that the punishment could range from setting a Tribunal to determine the DCJ's fate which means the JSC will be asking for her removal from office to smaller forms of repremand. Whatever the case is Nancy Baraza will face some form of punishment from the JSC.

2. The creteria for the JSC to punish Nancy Baraza is much lower than the creteria to have her charged in court.

If Nancy Baraza was to be charged in court she would be history as a DCJ.

However taking the case of Nancy Baraza's incriminating statement, it may not be admissible in a court of law but at the JSC the issue would be whether the DCJ was lying to the police, was telling the truth and if so what is the significance of such statements?

How does a lying DCJ look in the eyes of the members of the JSC? Does Nancy Baraza actually have unlicensed gun and is carrying it around? It will also be imporant what Nancy Baraza herself told the JSC sub-committe? Was she contrite about her folly? Was she forthcoming with the truth? etc.

3. On the basis of the above the JSC will tomorrow make a ruling. If Nancy Baraza really got a break today it is the fact that the DPP has almost outruled any criminal charges.

The problems the DPP cited with the police investigation are almost irrepairable.

But we will find out tomorrow what the JSC has to say. I will accept their verdict just as I will accept the ICC verdict coming down on Monday next week.

The mere fact that such things are now subjects of investigations and far reaching verdicts tells me our country has made many steps forward. Kudos to the patriots who have fought so hard for these things to become reality including the Kiboko (our new constitution). It is a brave new world out there, isn't it? I love it!

[afrigun]

Jan 13, 2012 1:17:02 GMT 3 Onyango Oloo said:

1. ... Nancy has cooked herself on this one-she took herself to the police station and basically ADMITTED EVERYTHING IN WRITING.

2. He even told me about the ITEM in Ms. Baraza's purse that had her in such a funk when Ms. Kerubo insisted on searching the DCJ-but that is neither here, nor there.


Onyango Oloo
Nairobi

Though Nancy is now being reported as having recnted this statement, it points to her lack of judgment. This is a senior lawyer, expected to know all the legal requirements and consequences of giving a statement to the police, and she proceeded to actually make one?

Does she want us to believe that the person taking the statement did not advise her of her rights, or did she not know that the statement would be used against her?
and for gods sake, why was she not represented? and why isnt she even now?

She is taking things too casually, perhaps with the confidence of someone who believes shes too big/important for these things to have any consequences?

As to the ITEM, what was it? How did your friend know? please disclose, or cue wild speculation. bottle of ...? roll of ... ? Pack of ...? blue or other pills? ... ;D

[kamalet]

Jan 13, 2012 2:44:17 GMT 3 adongo23456 said:

Folks,

The public statement by Tobiko is quite a blow to the lynch mob. For one thing Tobiko did not have to make a public statement. He could have silently returned the file to the police and informed the public that he needs farther evidence.

So the DPP publicly rubishing the police investigation by declaring that the CCTV footage was less than useless and that statements even from the suspect to be are not admissible in any court of law is thrashing a dagger on any possibility of criminal charges. Without a criminal charge everything gets very dicey and removal from office becomes very unlikely.

Now as far as the JSC is concerned a few things are worth noticing.

1. Contrary to what OO's good friend told him about Mutunga being the only hope left for Nancy Baraza, I tend to think Dr. Mutunga will avoid dictating terms and resolutions to the JSC.

The JSC had appointed a sub committee. The CJ cannot and will not simply bulldoze his way and demand Nancy Baraza be saved or be hanged.

It will have to be a collective decision where the CJ's voice will be critical but not final. I suspect the JSC may take a vote on the form of punishment they meet out to the DCJ.

My sense is that the punishment could range from setting a Tribunal to determine the DCJ's fate which means the JSC will be asking for her removal from office to smaller forms of repremand. Whatever the case is Nancy Baraza will face some form of punishment from the JSC.

2. The creteria for the JSC to punish Nancy Baraza is much lower than the creteria to have her charged in court.

If Nancy Baraza was to be charged in court she would be history as a DCJ.

However taking the case of Nancy Baraza's incriminating statement, it may not be admissible in a court of law but at the JSC the issue would be whether the DCJ was lying to the police, was telling the truth and if so what is the significance of such statements?

How does a lying DCJ look in the eyes of the members of the JSC? Does Nancy Baraza actually have unlicensed gun and is carrying it around? It will also be imporant what Nancy Baraza herself told the JSC sub-committe? Was she contrite about her folly? Was she forthcoming with the truth? etc.

3. On the basis of the above the JSC will tomorrow make a ruling. If Nancy Baraza really got a break today it is the fact that the DPP has almost outruled any criminal charges.

The problems the DPP cited with the police investigation are almost irrepairable.

But we will find out tomorrow what the JSC has to say. I will accept their verdict just as I will accept the ICC verdict coming down on Monday next week.

The mere fact that such things are now subjects of investigations and far reaching verdicts tells me our country has made many steps forward. Kudos to the patriots who have fought so hard for these things to become reality including the Kiboko (our new constitution). It is a brave new world out there, isn't it? I love it!

Adongo

Reading the message from Tobiko, he has not outruled (sic) the police or any prosecution. I think his is that the police suggested charging Baraza on certain crimes in the penal code but did not provide suifficient evidence to support the charges. He has given them 7 days to fix this.....and I am sure he has helped them know what to do.

I would like to imagine that Tobiko is not in cahoots with those that want to have the matter swept under the carpet. We are all agreed that the DCJ was wrong in her behaviour - and I still hold the view that she should still do the honorable thing.

As for the JSC, I am not sure there is much more they can do in the form of punishment to Baraza if they are not recommening appointment of a tribunal. If they do not recommend this, I do not think the JSC has any other powers of punishment for judges.

[Onyango Oloo]

Jan 13, 2012 9:58:50 GMT 3 afrigun said:

Jan 13, 2012 1:17:02 GMT 3 Onyango Oloo said:

As to the ITEM, what was it? How did your friend know? please disclose, or cue wild speculation. bottle of ...? roll of ... ? Pack of ...? blue or other pills? ... ;D

Afrigun:

ONE of the ABOVE for sure.

But since Jukwaa is ≠ the Weekly Citizen,∴ MY LIPS are














Onyango Oloo
Nairobi, Kenya

[Daktari wa makazi]

Jan 13, 2012 10:28:15 GMT 3 kamalet said:

Jan 13, 2012 2:44:17 GMT 3 adongo23456 said:

Folks,

The public statement by Tobiko is quite a blow to the lynch mob. For one thing Tobiko did not have to make a public statement. He could have silently returned the file to the police and informed the public that he needs farther evidence.

So the DPP publicly rubishing the police investigation by declaring that the CCTV footage was less than useless and that statements even from the suspect to be are not admissible in any court of law is thrashing a dagger on any possibility of criminal charges. Without a criminal charge everything gets very dicey and removal from office becomes very unlikely.

Now as far as the JSC is concerned a few things are worth noticing.

1. Contrary to what OO's good friend told him about Mutunga being the only hope left for Nancy Baraza, I tend to think Dr. Mutunga will avoid dictating terms and resolutions to the JSC.

The JSC had appointed a sub committee. The CJ cannot and will not simply bulldoze his way and demand Nancy Baraza be saved or be hanged.

It will have to be a collective decision where the CJ's voice will be critical but not final. I suspect the JSC may take a vote on the form of punishment they meet out to the DCJ.

My sense is that the punishment could range from setting a Tribunal to determine the DCJ's fate which means the JSC will be asking for her removal from office to smaller forms of repremand. Whatever the case is Nancy Baraza will face some form of punishment from the JSC.

2. The creteria for the JSC to punish Nancy Baraza is much lower than the creteria to have her charged in court.

If Nancy Baraza was to be charged in court she would be history as a DCJ.

However taking the case of Nancy Baraza's incriminating statement, it may not be admissible in a court of law but at the JSC the issue would be whether the DCJ was lying to the police, was telling the truth and if so what is the significance of such statements?

How does a lying DCJ look in the eyes of the members of the JSC? Does Nancy Baraza actually have unlicensed gun and is carrying it around? It will also be imporant what Nancy Baraza herself told the JSC sub-committe? Was she contrite about her folly? Was she forthcoming with the truth? etc.

3. On the basis of the above the JSC will tomorrow make a ruling. If Nancy Baraza really got a break today it is the fact that the DPP has almost outruled any criminal charges.

The problems the DPP cited with the police investigation are almost irrepairable.

But we will find out tomorrow what the JSC has to say. I will accept their verdict just as I will accept the ICC verdict coming down on Monday next week.

The mere fact that such things are now subjects of investigations and far reaching verdicts tells me our country has made many steps forward. Kudos to the patriots who have fought so hard for these things to become reality including the Kiboko (our new constitution). It is a brave new world out there, isn't it? I love it!

Adongo

Reading the message from Tobiko, he has not outruled (sic) the police or any prosecution. I think his is that the police suggested charging Baraza on certain crimes in the penal code but did not provide suifficient evidence to support the charges. He has given them 7 days to fix this.....and I am sure he has helped them know what to do.

I would like to imagine that Tobiko is not in cahoots with those that want to have the matter swept under the carpet. We are all agreed that the DCJ was wrong in her behaviour - and I still hold the view that she should still do the honorable thing.

As for the JSC, I am not sure there is much more they can do in the form of punishment to Baraza if they are not recommening appointment of a tribunal. If they do not recommend this, I do not think the JSC has any other powers of punishment for judges.

Kamalet,

A prosecutor doesn’t investigate, but can advise on the law, on the threshold to be reached in line of investigation. That is usually done behind the scene, for the simple reason that any prosecutional action must be disclosed to the other side. Now, imagine, the prosecutor telling the police to get this or that evidence to reach given threshold of an offence. They must tell the defence what was said because the Prosecutor is not the police’s lawyer and can’t claim confidentiality.

Further, it opens the can of ‘ manufactured’ evidence. If the original file didn’t have those pieces of evidence, where will they come from, now? The police have a duty to collect evidence which both incriminate and exonerate, and both must be passed over to the defence.

I doubt if Nancy Baraza will lose her job because of the little misdemeanour on her part. JSC may recommend some disciplinary action, but not forming a tribunal to sack her.

Jan 13, 2012 1:17:02 GMT 3 Onyango Oloo said:

Let me briefly say that on Thursday afternoon (January 12, 2012) I was in the office of one of my friends that I have known for almost thirty years-a certain human rights lawyer who happens to be a well-known member of parliament.

No, he is NOT a Luo; he is not in the cabinet and he is NOT in ODM, for the obsessively curious.

He actually rooted for Nancy Baraza's appointment.

But he told me that Nancy has cooked herself on this one-she took herself to the police station and basically ADMITTED EVERYTHING IN WRITING.

He even told me about the ITEM in Ms. Baraza's purse that had her in such a funk when Ms. Kerubo insisted on searching the DCJ-but that is neither here, nor there.

In his opinion, the ONLY PERSON who can save the Deputy Chief Justice is Dr. Willy Mutunga.

Will Ms. Baraza lose her job on the unlucky Friday the 13th?

Who knows?

This is Kenya.

Onyango Oloo
Nairobi

Oloo

Harun Ndubi?

There is usually a heavy risk in relying upon a confession in criminal cases. In the case in question, the so-called confession does not hold any value as far as I am concerned. I don't know if she was 'advised' by a lawyer before giving a confession? If not, she was entitled to one, even as a judge. On the confession, she can discredit her action. Nancy Baraza can say it was meant to appease those who were baying for her blood and save her job. That, she did it under duress, and was not out of straight mind, and cannot be a reflection of what happened. But it merely was what the police and the general public wanted to hear. Hence, deny the confession any value.

Jan 12, 2012 17:12:29 GMT 3 nereah said:

sadik, i am being informed by a capital fm radio newscaster that sister nancy was summoned before the dr samuel kobia led inquest committee today for the third time so as to "clear some matter." the committee has reviewed evidence from 16 witnesses and also the recorded cctv footage.


i wonder:are videocctv and published materials admissible in court of law as evidence? if so, what about a tape recording of a conversation?

Nereah

CCTV itself may be controversial evidence because the pictures can be manipulated. The problem is usually whether the CCTV pictures were taken when the crime was committed, not after or before, assuming they are of good quality. However, when corroborated with actual physical evidence, can be powerful evidence in giving the visual picture of what really happened.

The police did not find the CCTV pictures helpful and cannot be used by them but must pass them over to the defence. The Defence can use them if they find them useful.

Tape recording are different, and are rarely used because they can be manipulated. Secondly, recording someone talk is considered an invasion of privacy and is illegal. Even the security agents cannot use taped telephone conversation as evidence of crime.

[Onyango Oloo]

Sadik:

Ndubi is NOT an MP.

Besides, despite appearances,



Harun is MUCH MUCH YOUNGER than I so I couldn't have possibly have known him for 30 years. I first met Harun Ndubi on Thursday, October 26, 2000 when he accompanied Dr. Willy Mutunga, Dr. Matunda Nyanchama and others as part of a Kenyan/Canadian social justice activist delegation who went to petition Monsieur Jean-Charles Potvin the CEO of Tiomin Inc. between 10:30 and 11:45 am at their Toronto offices over their then controversial plans for titanium strip mining in Kwale and other areas of the Kenyan coast.

For more information see the link below:

www.africafiles.org/printableversion.asp?id=619

Onyango Oloo
Nairobi, Kenya

[kasuku]

Off Topic

Can someone shed some more light on this guy Harun Ndubi

[afrigun]

Jan 13, 2012 12:17:15 GMT 3 Onyango Oloo said:

Jan 13, 2012 9:58:50 GMT 3 afrigun said:

Jan 13, 2012 1:17:02 GMT 3 Onyango Oloo said:

As to the ITEM, what was it? How did your friend know? please disclose, or cue wild speculation. bottle of ...? roll of ... ? Pack of ...? blue or other pills? ... ;D

Afrigun:

ONE of the ABOVE for sure. ...

Onyango Oloo
Nairobi, Kenya

Hahaha Oloo,

You inscrutable, cryptic devil!! ;D

[phil]

Watching JSC ruling on Citizen TV live!

BREAKING: JSC to send a petition to the President to suspend Nancy Baraza and to appoint a tribunal to investigate her conduct.

[mzee]

Phil,
Wow! Thats brave of JSC after the spineless Tobiko had said that there was no evidence/evidence was shoddy. For him it was rub my back and I rub yours.

Let the lady be investigated and exonerated or not without the pretense that Tobiko wanted to bring about.

What a week this has been. Sit baaaack for the ICC next week.

[nereah]

thanks phil for this,

i can tell you for sure that nothing is as injurious to sensibilities that i ascribe to than this...

yes, i am firmly in nancy baraza's corner and cash this to the bank near you.... nancy is not going down that fast.

[Onyango Oloo]

www.nation.co.ke/News/politics/JSC+wants+Baraza+out+/-/1064/1305256/-/c708g5/-/index.html

JSC wants Baraza out

By DAVE OPIYO [e-mail]
Posted Friday, January 13 2012 at 22:36

The Judicial Service Commission (JSC) has recommended the suspension of Deputy Chief Justice Nancy Baraza over allegations of misconduct.

It wants President Kibaki to appoint a tribunal to investigate her conduct in line with Article 168 (4) of the Constitution.

“The JSC will send a petition to the President with a view of suspending Justice Baraza as judge of the Supreme Court and Deputy Chief Justice of the Republic of Kenya and to appoint a tribunal to investigate her conduct,” said Chief Justice Willy Mutunga in a statement.

The decision was made on Friday after the commission upheld recommendations of a subcommittee that looked into claims that she assaulted a security guard at the Village Market in Nairobi.

Lady Justice Baraza, the country’s most senior female judge, was accused of assaulting Ms Rebecca Kerubo and threatening to shoot her on New Year’s eve. (READ: Guard changes tune on Baraza, insists on trial)

Article 168 of the Constitution says a judge of a superior court may be removed from office for gross misconduct or misbehaviour.

The removal may be initiated by the JSC acting on its own motion, or on a petition to the commission.

The President shall, within 14 days of receiving the petition, suspend the judge from office and appoint a tribunal to probe the matter.

In the case of a judge other than the CJ, the tribunal should consist of a chairperson and three other members qualified to sit in a superior court.

Alternatively, those to be appointed must be qualified to be a judge of a superior court but must not have been a member of the JSC at any time within three years.

If suspended, Justice Baraza’s will be on half salary until she is removed from office or reinstated.

Justice Mutunga said the subcommittee threw out a petition by Mr David Gichira to remove Ms Baraza from office.

“This petition, under close scrutiny by the sub committee that was investigating the matter, was found to be devoid of any material substance to act upon under Article 168 of the Constitution. It was therefore dismissed.”

Ms Kerubo alleges that the judge pinched her nose when confronted after ignoring security screening, admonished her, asked her bodyguard to shoot her and then brandished a pistol when the male officer refused to do as ordered.

Ms Baraza has since denied the claims.

The Deputy CJ has however acknowledged that there was an incident at the mall, which she described as “unfortunate”. She said she “had no intention of high-handedness, arrogance or ill-will”.

The decision comes a day after the Director of Public Prosecutions Keriako Tobiko said there was not enough evidence to prosecute Ms Baraza on gun charges. (READ: Baraza gun probe is shoddy, says Tobiko)

He said the case put together by the police had gaps, inconsistencies and contradictions.

The sub-committee was chaired by the Rev Samuel Kobia. Its members were Mr Ahmednasir Abdullahi, Ms Emily Ominde, Ms Florence Mwangangi, Prof Christine Mango, Mr Titus Gatere and Mr Justice Isaac Lenaola, with Mrs Gladys Shollei as its secretary.

On Friday, Justice Mutunga said in making their decision, they were not conducting a criminal trial.

“The standard of proof as per Article 168 and the judicial code of ethics is not the same as for criminal proceedings. It is beyond reasonable doubt,” he said.

[Daktari wa makazi]

Statement by CJ Willy Mutunga.

Following widespread media reports concerning a New Year Eve incident that occurred at the Village Market, Nairobi involving an alleged row between a security guard Mrs Rebecca Kerubo and Deputy Chief Justice Mrs Nancy Baraza I released a press statement on January 5.

In my statement I reiterated my commitment to the rule of law and my steadfast belief in the equality of all before the law. I further noted the public interest generated by the incident at the Village Market and promised that the organs at the Judiciary will deal with the incident "conclusively and satisfactorily."

In the said press statement I gave notice that I was convening an emergency session of the Judicial Service Commission (JSC) with a view to address the issues raised by the Village Market incident. I noted that I was aware that the police were investigating the incident and reiterated, "no one in Kenya is above the law."

On January 9, as promised I presided over a full JSC meeting. The JSC then resolved to appoint a sub-committee of eight members to look into the said incident and report back to the commission.

The committee was chaired by Reverend Samuel Kobia. The other members were commissioners Justice Isaac Lenaola, Prof Christine Mango, Emily Ominde, Florence Mwangangi, Ahmednasir Abdullahi and Titus Gatere. The secretary was Glady Shollei, the Chief Registrar of the Judiciary. In appointing the sub-committee, the JSC set it terms of reference as follows:

1. To investigate all aspects or facets of the incident, altercation, exchange, disagreement and/or argument between the DCJ Nancy Baraza and Ms Rebecca Kemunto on New Year’s eve at the Village Market Shopping Mall.

2. To interview, interrogate and debrief Ms Baraza, Kerubo and other material witnesses relevant to the incident.

3. To hear, receive any report or information that the public may forward relating to the incident.

4. To liaise and collaborate with any agency or institution that may have relevant information, report or witness testimony relevant to the incident.

5. To report its findings and recommendations on the incident and all relevant issues to the JSC on January 13.

The subcommittee interpreted and understood its mandate to be holistic appraisal, audit and investigation of all facets of the Village Market incident in so far as it relates to the incident relevant to the person of the Deputy Chief Justice.

The subcommittee took cognizance of the fact that its mandate relates to an investigation as to whether the Deputy Chief Justice has breached the judicial code of conduct or acted in a gross manner or showed, exhibited a conduct that can be seen as a gross misconduct or misbehaviour under Article 168 of the Constitution of Kenya.

Subsequent to my calling for an emergency meeting, the JSC received a petition for the removal from office of Baraza from one David Gichira. This petition under close scrutiny by the subcommittee was found to be devoid of any material substance to act upon under Article 168 of the Constitution. Therefore it was dismissed in limine.

This report by the subcommittee therefore is based on the inquiry on the incident pursuant to the JSC’s own motion to investigate an issue that may have raised as it relates to the conduct of the Deputy Chief Justice.

The subcommittee embarked to discharge its mandate by holding evidentiary hearings and interviewing several material witnesses. The Deputy Chief Justice was afforded an opportunity to testify before the subcommittee. We must reiterate that this was not a criminal trial.

The standard of proof per Article 168 and the judicial code of ethics is not the same as for criminal proceedings. It is not beyond reasonable doubt.

After lengthy deliberation, evaluation of witness testimonies and other material evidence submitted, the JSC has now resolved that pursuant to Article 168 (4) it will send a petition to the President with a view of suspending Justice Nancy Baraza as a judge of Supreme Court and Deputy Chief Justice of the Republic of Kenya and to appoint a tribunal to investigate her conduct.

[Daktari wa makazi]

Jan 14, 2012 12:30:21 GMT 3 Daktari wa makazi said:

Statement by CJ Willy Mutunga.

Following widespread media reports concerning a New Year Eve incident that occurred at the Village Market, Nairobi involving an alleged row between a security guard Mrs Rebecca Kerubo and Deputy Chief Justice Mrs Nancy Baraza I released a press statement on January 5.

In my statement I reiterated my commitment to the rule of law and my steadfast belief in the equality of all before the law. I further noted the public interest generated by the incident at the Village Market and promised that the organs at the Judiciary will deal with the incident "conclusively and satisfactorily."

In the said press statement I gave notice that I was convening an emergency session of the Judicial Service Commission (JSC) with a view to address the issues raised by the Village Market incident. I noted that I was aware that the police were investigating the incident and reiterated, "no one in Kenya is above the law."

On January 9, as promised I presided over a full JSC meeting. The JSC then resolved to appoint a sub-committee of eight members to look into the said incident and report back to the commission.

The committee was chaired by Reverend Samuel Kobia. The other members were commissioners Justice Isaac Lenaola, Prof Christine Mango, Emily Ominde, Florence Mwangangi, Ahmednasir Abdullahi and Titus Gatere. The secretary was Glady Shollei, the Chief Registrar of the Judiciary. In appointing the sub-committee, the JSC set it terms of reference as follows:

1. To investigate all aspects or facets of the incident, altercation, exchange, disagreement and/or argument between the DCJ Nancy Baraza and Ms Rebecca Kemunto on New Year’s eve at the Village Market Shopping Mall.

2. To interview, interrogate and debrief Ms Baraza, Kerubo and other material witnesses relevant to the incident.

3. To hear, receive any report or information that the public may forward relating to the incident.

4. To liaise and collaborate with any agency or institution that may have relevant information, report or witness testimony relevant to the incident.

5. To report its findings and recommendations on the incident and all relevant issues to the JSC on January 13.

The subcommittee interpreted and understood its mandate to be holistic appraisal, audit and investigation of all facets of the Village Market incident in so far as it relates to the incident relevant to the person of the Deputy Chief Justice.

The subcommittee took cognizance of the fact that its mandate relates to an investigation as to whether the Deputy Chief Justice has breached the judicial code of conduct or acted in a gross manner or showed, exhibited a conduct that can be seen as a gross misconduct or misbehaviour under Article 168 of the Constitution of Kenya.

Subsequent to my calling for an emergency meeting, the JSC received a petition for the removal from office of Baraza from one David Gichira. This petition under close scrutiny by the subcommittee was found to be devoid of any material substance to act upon under Article 168 of the Constitution. Therefore it was dismissed in limine.

This report by the subcommittee therefore is based on the inquiry on the incident pursuant to the JSC’s own motion to investigate an issue that may have raised as it relates to the conduct of the Deputy Chief Justice.

The subcommittee embarked to discharge its mandate by holding evidentiary hearings and interviewing several material witnesses. The Deputy Chief Justice was afforded an opportunity to testify before the subcommittee. We must reiterate that this was not a criminal trial.

The standard of proof per Article 168 and the judicial code of ethics is not the same as for criminal proceedings. It is not beyond reasonable doubt.

After lengthy deliberation, evaluation of witness testimonies and other material evidence submitted, the JSC has now resolved that pursuant to Article 168 (4) it will send a petition to the President with a view of suspending Justice Nancy Baraza as a judge of Supreme Court and Deputy Chief Justice of the Republic of Kenya and to appoint a tribunal to investigate her conduct.

My reading of the statement is that the CJ did the right thing. He could not sweep the accusation levied against Nancy Baraza under the carpet, even if he believed there was nothing on it. It had generated a lot of publicity which is not good for the judiciary. He let the JSC which he chairs take the centre position, having forms their own committee who looked at the evidence, and importantly formed a view independently.

The view they formed was to petition the President to suspend Nancy Baraza and institute a Tribunal to investigate her conduct. That was clearly the only way forward. The JSC could not itself finalise the matter because the CJ is their chair. It could be accused of nepotism.

When ( as there is no if now) Kibaki appoints a Tribunal, because he has, that Tribunal will have to make its mind on the evidence already available whether to recommend dismissal. No further evidence will be made available because the JSC has already interviewed witness and parties and have 'secured' the CCTV images.

I think the criminal case against Nancy Baraza will fail, or has simply died a natural death even before commencement. DPP does not think there is enough evidence to have a realistic chance to convict. Of course there is a bad blood already between the Police and DPP. The Police ran to the AG where the Commissioner stated categorically that he will resign if Nancy Baraza is not prosecuted. Why go the AG not the DPP? The AG isn't DPP's boss? DPP is an independent office with secure of tenure. That was simply a poor judgement on the Police. The Police seems very interested in this matter. They had the most senior CID investigate it, and put forward the best resources, man and machine on it. It didn't escape my attention that most of the officers working on this case were kikuyus culminating with the Police Commissioner himself. Does that tell me so

[jakaswanga]

Jan 14, 2012 12:48:53 GMT 3 Daktari wa makazi said:

Jan 14, 2012 12:30:21 GMT 3 Daktari wa makazi said:

Statement by CJ Willy Mutungi.

Following widespread media reports concerning a New Year Eve incident that occurred at the Village Market, Nairobi involving an alleged row between a security guard Mrs Rebecca Kerubo and Deputy Chief Justice Mrs Nancy Baraza I released a press statement on January 5.

In my statement I reiterated my commitment to the rule of law and my steadfast belief in the equality of all before the law. I further noted the public interest generated by the incident at the Village Market and promised that the organs at the Judiciary will deal with the incident "conclusively and satisfactorily."

In the said press statement I gave notice that I was convening an emergency session of the Judicial Service Commission (JSC) with a view to address the issues raised by the Village Market incident. I noted that I was aware that the police were investigating the incident and reiterated, "no one in Kenya is above the law."

On January 9, as promised I presided over a full JSC meeting. The JSC then resolved to appoint a sub-committee of eight members to look into the said incident and report back to the commission.

The committee was chaired by Reverend Samuel Kobia. The other members were commissioners Justice Isaac Lenaola, Prof Christine Mango, Emily Ominde, Florence Mwangangi, Ahmednasir Abdullahi and Titus Gatere. The secretary was Glady Shollei, the Chief Registrar of the Judiciary. In appointing the sub-committee, the JSC set it terms of reference as follows:

1. To investigate all aspects or facets of the incident, altercation, exchange, disagreement and/or argument between the DCJ Nancy Baraza and Ms Rebecca Kemunto on New Year’s eve at the Village Market Shopping Mall.

2. To interview, interrogate and debrief Ms Baraza, Kerubo and other material witnesses relevant to the incident.

3. To hear, receive any report or information that the public may forward relating to the incident.

4. To liaise and collaborate with any agency or institution that may have relevant information, report or witness testimony relevant to the incident.

5. To report its findings and recommendations on the incident and all relevant issues to the JSC on January 13.

The subcommittee interpreted and understood its mandate to be holistic appraisal, audit and investigation of all facets of the Village Market incident in so far as it relates to the incident relevant to the person of the Deputy Chief Justice.

The subcommittee took cognizance of the fact that its mandate relates to an investigation as to whether the Deputy Chief Justice has breached the judicial code of conduct or acted in a gross manner or showed, exhibited a conduct that can be seen as a gross misconduct or misbehaviour under Article 168 of the Constitution of Kenya.

Subsequent to my calling for an emergency meeting, the JSC received a petition for the removal from office of Baraza from one David Gichira. This petition under close scrutiny by the subcommittee was found to be devoid of any material substance to act upon under Article 168 of the Constitution. Therefore it was dismissed in limine.

This report by the subcommittee therefore is based on the inquiry on the incident pursuant to the JSC’s own motion to investigate an issue that may have raised as it relates to the conduct of the Deputy Chief Justice.

The subcommittee embarked to discharge its mandate by holding evidentiary hearings and interviewing several material witnesses. The Deputy Chief Justice was afforded an opportunity to testify before the subcommittee. We must reiterate that this was not a criminal trial.

The standard of proof per Article 168 and the judicial code of ethics is not the same as for criminal proceedings. It is not beyond reasonable doubt.

After lengthy deliberation, evaluation of witness testimonies and other material evidence submitted, the JSC has now resolved that pursuant to Article 168 (4) it will send a petition to the President with a view of suspending Justice Nancy Baraza as a judge of Supreme Court and Deputy Chief Justice of the Republic of Kenya and to appoint a tribunal to investigate her conduct.

My reading of the statement is that the CJ did the right thing. He could not sweep the accusation levied against Nancy Baraza under the carpet, even if he believed there was nothing on it. It had generated a lot of publicity which is not good for the judiciary. He let the JSC which he chairs take the centre position, having forms their own committee who looked at the evidence, and importantly formed a view independently.

The view they formed was to petition the President to suspend Nancy Baraza and institute a Tribunal to investigate her conduct. That was clearly the only way forward. The JSC could not itself finalise the matter because the CJ is their chair. It could be accused of nepotism.

When ( as there is no if now) Kibaki appoints a Tribunal, because he has, that Tribunal will have to make its mind on the evidence already available whether to recommend dismissal. No further evidence will be made available because the JSC has already interviewed witness and parties and have 'secured' the CCTV images.

I think the criminal case against Nancy Baraza will fail, or has simply died a natural death even before commencement. DPP does not think there is enough evidence to have a realistic chance to convict. Of course there is a bad blood already between the Police and DPP. The Police ran to the AG where the Commissioner stated categorically that he will resign if Nancy Baraza is not prosecuted. Why go the AG not the DPP? The AG isn't DPP's boss? DPP is an independent office with secure of tenure. That was simply a poor judgement on the Police. The Police seems very interested in this matter. They had the most senior CID investigate it, and put forward the best resources, man and machine on it. It didn't escape my attention that most of the officers working on this case were kikuyus culminating with the Police Commissioner himself. Does that tell me something?

Now, the Tribunal, although, it has a lower proof than a criminal case, will not be helped much if no criminal case is brought against Nancy Baraza. With a criminal conviction, their job was almost done for them, and sacking was certain. As things go, not anymore!

I fear the whole exercise of the Tribunal, and the criminal case will turn out to be one of futility - I think that Nancy Baraza will walk back to her office, head high after being cleared by the Tribunal. Who knows, I maybe be wrong

[/size]![/quote]

Sadik,
Gross misconduct or misbehavior! [article 168]. This according to me is the bone that the JSC cannot have sticking in its throat. I would like to hear yu theorise why you think an investigation into the conduct etc of Nancy relevant the said mall incident, will whitewash her and leave her head held high --no pun intended in the sense of executioners who hold the head aloft to the extacy of the crowd!

So
I am sorry I am late, and this is now water under the brigde, but I cannot help draw you attention to it. Sir, I could not help my irritation when you wrote that you could not help noticing the police officers were mainly kikuyu!

The genius Tobiko!
Take a look at this: 1. Crucial witnesses had not recorded statements to corroborate claims against Lady Justice Baraza.

That is an ABC mistake. And remember [as you have noted] who it was who took charge of the investigation: the very top. Amin et al. Now, if you have to be at least good to rise to the top, I want a rational explanation for this slip. Other than ethnic origins!

2. Mr Tobiko said the CCTV footage, which formed a critical part of the evidence, required some explanation as it did not capture the alleged gun drama. It only shows Ms Baraza entering and leaving the pharmacy at the mall.

Who said the CCTV was critical? cctvs have restricted angles of vision: [there are the advanced ones we call retinal or sunflower, but I doubt these models are deployed in Kenya, apart from around western embassies. But there could be a bored manual operator intertaining him/herself stalking his choices].

3. Why is this episode not covered on the footage? asks Tobiko.

Either it was originally covered, then deleted. Or it took place outside the camera-vision range!
Before going to press, Tobiko should have found out which is which!

So: it was a relatively busy time. Good old [Sherlockholming] police work doing witnesses would do. No witnesses found, no case. As it is, the witnesses were there, some even took photos, but the police could not trace them, or could, but failed to interview them; or interviewed them but in a manner unusable to a prosecution!

[Hear the CJ appeal for more wananchi who have info to come forward! How much will you pay us? the commercially minded ask].

I pose senior officers understand the consequences of these [icompetent] actions. Yes, I can think of them being deliberate in their incompetence. But the interest is far from ethnic the way I see it.

4. Mr Tobiko also questioned the veracity of the confession by Ms Baraza, saying it raised several legal issues. Ms Baraza has since recanted the statement, claiming it was not taken according to the law.

Good point. [Baraza's written and signed confession] will be technically inadmissible. However, that it was not taken according to the law, does not mean it depicts falsehoods. Baraza was smart enough to cover her a-double-s on that score. But I wonder how she explained her confession and recantation to the JSC panel!

Her explanation/behavior questions the veracity of her character! conjures up enough doubt to warrant the term sleazy on her. Not bad for a practicing attorney, but a death blow to a judge.

Criminally, she may be saved by a shoddy investigation! Long live incompetence she must shout in private! But if she Baraza sees no need to resign, she will enjoy a slow roasting, like a maize cob on the sidewalk!

And, Sadik. The sub-committee appears to have had the mandate to question Baraza on other alleged incidences too! 2 other incidences of her unstable judgement/behaviour came forward.

Otherwise she is free to legally reason that the sub committee overstepped their mandate, so we can have another Bethwel Kiplagat soap!

The precedent set here should Baraza go, as Jukwaa's Adongo loves to maliciously rub in, is a monster that shall turn back to consume many a beloved hero!

[nereah]

sadik & all,


i am firmly in nancy baraza's corner and glad that she has settled for some of the finest legal minds in kenya. i have warned those baying for nancy's blood to hold their horses as the good fight has not even started.

the media trial of nancy and where her enemies chose to selectively plant some disturbing stories of her alleged/perceived past indiscretions and worse still leak to the media the judicial service commission dossier on her,tells all.

those who have the energy to lift the big moral brush and with glee broadly painting her character fails me somewhat by not subjecting all if not some and especially the chair of the judicial service commission to the same test. i have in mind( and this i say with tremendous respect) the likes of clergyman samuel kobia whose integrity was faulted by the phd degree scandal at the world council of churches and which local media recently reminded us of. i could go on and on..

by invoking nancy's past indulgence( for instance the pro-government lawyer posture) where her boss and some members of judiciary were affected, tells me of desperation by some quarters to fix if not get rid of her.

i welcome the tribunal and look forward to its establishment.