Baraza’s ominous fate hangs over judiciary reforms plan
Chief Justice Willy Mutunga led the judiciary in the launch of the Transformation Framework on the last day of May 2012.
The plan consists of a ten-point programme to rid the institution of case backlogs, corruption, intimidation and rampant loss if files. From the look of it, this could be the mother of all reforms in Kenya.
However, the CJ made a statement which a few keen analysts later described at the “elephant in the room.”
Said he; “those who may think that focusing on an individual can halt or derail this transformation have not made the necessary mental shift. The office of the Chief Justice is not a transmission station for instructions from any quarter.”
The CJ could have one of those general statements to reiterate the independence of the judiciary, but who exactly did he mean?
Expression Today has attempted to read Dr Mutunga’s mind, and in interaction with people who work closely with the top judge, his words were directed at a clique of people said to be unhappy with “strangers in the judiciary.”
An acquaintance of the CJ since their days in civil society told Expression Today that Dr Mutunga really missed the presence of his suspended deputy Nancy Baraza at the launch of the transformation blueprint.
A close aide of Ms Baraza, who sought anonymity, also told Expression Today that the transformation document launched on the material day was the product of the hard work put in by the suspended deputy CJ. “Ms Baraza did most of the spade work to produce the transformation blueprint, and Dr Mutunga had a lot of faith in her as an ally. Since the two considered themselves ‘outsiders’, they had forged a close working relationship to ensure they deliver the much- needed reforms in the hitherto conservative judiciary. But forces of impunity went a notch higher to ensure that Nancy is bogged down in controversies with the hope of splitting the team and leaving Dr Mutunga hamstrung,” the aide said.
This is curious; but when pressed to elaborate what she meant by forces of impunity seeking to ensnare the suspended deputy chief justice in order to disable the CJ, the aide revisited events leading to Ms Baraza’s suspension, saying that the Village Market altercation between Ms Baraza and Rebecca Kerubo was deliberately blown out of proportion with the connivance of certain media institutions in order to get her out of the way.
“Nancy’s was mob justice and the media played a big role. By the time she realized she had been ensnared, she became very skeptical of everyone including the media— that’s why she has completely stayed out of the public limelight and would not even dare talk to the press to give her side of what transpired at Village Market because she believes some media people were used to bring her down,” Ms Baraza’s aide said.
Whereas it was difficult to get much out of this source because she would not put us through to the suspended judge, a review of how the media treated the Nancy Vs Kerubo saga reveals some degree of unfairness on the part of the media.
While the incident at Village Market where Ms Baraza allegedly threatened security guard Rebecca Kerubo with a gun occurred on December 31, 2011, the story gained prominence three days later when the Star made it their headline news captioned “Deputy CJ in Gun Drama.” The same story was tucked away in the inside pages of the Daily Nation, but told quite mildly.
For their effort, the Star later received the praise of Journalism lecturer Joe Kadhi when he addressed a forum organised by the Media Council of Kenya on February 2, 2012.
Mr Kadhi, who teaches journalism at the United States International University- Africa, lauded the Star for breaking the Baraza Vs Kerubo story, saying that the paper provided real-time crusading journalism when it broke the story which ensured subsequent front- page stories from other newspapers.
“It is the Star that stirred the story, four days after the incident had occurred. It was a scoop,” Kadhi said.
It is, however, now alleged by those in Ms Baraza’s corner that between December 31 and January 4 when the story went viral, those seeking to bring down the judge plotted to use the incident to ruin her reputation and the media innocently became part of it.
Indeed, when appearing for Ms Baraza in a case filed to block the establishment of a tribunal to investigate her conduct, lawyer John Khaminwa accused the police of twisting statements and turning a “feud between two women” into a big issue.
On January 4, 2012, other media outlets picked up the story and ran with it. Citizen TV gave the story the most prominent coverage with reporter Sally Mbilu tracing Ms Kerubo to her Gachie home to interview her on what happened during her encounter with Nancy.
In this interview with Citizen TV, Ms Kerubo gave her version of the events, claiming that the deputy CJ arrived at the Village Market and headed straight to Bella Dona Pharmacy, ignoring the security-check desk at the entrance.
“I followed her to the pharmacy and told her that I must frisk her and also check her bag. But she instead railed at me, pinched my nose and admonished me for not recognizing that she was a prominent personality,” Kerubo said on Citizen TV.
She continued: “When I insisted that she must undergo the security check, Nancy got so enraged and ordered her body guard to shoot me but the guard declined. She then went to her car and, in a feat of rage, returned with a gun which she pointed at me and threatened to shoot me. I was so sacred and pleaded with her to spare me. She didn’t shoot because a crowd had milled around and perhaps that’s why she left me.”
It was, certainly, this Citizen TV interview that elicited public outrage, with almost everybody who cared to comment on the matter calling for Ms Baraza’s resignation and prosecution for threatening Ms Kerubo.
Meanwhile, the police had already launched investigations into the incident, with reports saying that the suspended deputy CJ was grilled by detectives for close to four hours. Chief Justice Willy Mutunga weighed in with a public statement saying that nobody was above the law, and he later appointed a committee to investigate the matter and advise the Judicial Service Commission (JSC)— a committee whose report JSC apparently relied on to recommend that Nancy be suspended and a tribunal appointed to investigate her conduct.
This chain of events certainly turned public opinion against Ms Baraza, but six months later, it now appears that the media could have played a role, albeit inadvertently, in crucifying Nancy.
A review of how the Nancy Vs Rebecca saga was reported reveals that the media, for unexplained reasons, sided with Rebecca by portraying as the angel and Nancy the villain.
Headlines like “Goliath versus David” to refer to Nancy and Rebecca respectively were obviously meant to win public sympathy for the guard by making her a victim of the mighty in society. A headline posted on ‘Nairobi Wire’— an online forum — showed outright bias with a caption; “Deputy Chief Justice Nancy Baraza Pulls Out Gun, Threatens to Shoot Security Guard.” A popular social media forum, Jackal News, carried a comment that read; “if Nancy Baraza cannot treat a lowly Kenyan fairly on the streets, why would you trust she’ll do it in the Supreme Court?”
Such headlines and comments were to be followed by manipulated pictures, cropped-out through photoshop technology, showing the deputy CJ menacingly brandishing a gun. But despite the mischief behind such pictures appearing on internet and social media, the end result was that they helped in rendering Nancy guilty as charged.
Interestingly, the usually robust mainstream Kenyan media did very little to pursue Nancy to get her side of the story. The moment she was suspended and a tribunal to investigate her conduct established, no media house bothered to find out what Ms Baraza had to say about the alleged gun drama or to independently establish what really transpired at Village Market.
But a story by BBC on the saga, citing a police report, should prompt the media to pursue the Nancy Vs Rebecca saga afresh.
According to a report to the police by Ms Kerubo, the BBC story said, Ms Baraza drove into the Village Market compound and parked her car 50m from the security desk at the entrance to the shopping mall.
The guard said Ms Baraza ignored the security desk— at which all people entering the mall are frisked— before going to various shops. The guard told the police that she told Ms Baraza that she was to be frisked but she walked away. Things got out of hand, the police report says, when the deputy chief justice finished her shopping. She went to the car before coming back to the security guard and threatened to shoot her, the report says, if she persisted in what Ms Baraza is alleged to have termed as humiliating her.
What Kerubo told the police is similar to what she said in her interview with Sally Mbilu on Citizen TV, except for a minor contradiction. In the Citizen TV interview, Kerubo said she followed Nancy immediately after she ignored the security check. But the police report says the altercation commenced after Nancy had finished her shopping.
Minor as it may appear, these two different versions of the altercation have the potential to turn the whole Nancy Vs Rebecca story upside down— a contradiction the media cannot afford to ignore.
Besides, why didn’t the media strive to seek the account of Ms Kerubo’s colleague after it became clear that she had a male counterpart at the security desk? Why didn’t the media seek the account of the Village Market management, any other witness or Ms Baraza’s body guard whom Kerubo alleged was ordered by the deputy CJ to shoot her but declined to follow the order?
Above all, when Director of Public Prosecutions Keriako Tobiko declined to prosecute Ms Baraza, saying that the police investigation file furnished to him contained nothing tangible to sustain a charge against the judge, why didn’t the media pursue the matter to establish a new angle to the story? What efforts, if any, have the media made to view the CCTV footage that could have captured Ms Baraza brandishing a gun at Ms Kerubo as alleged?
These omissions, innocent as they may appear, cause one to conclude that the media failed the fairness test by unreasonably siding with the underdog (Kerubo) in the so-called “Goliath Vs David” duel.