Pressure was mounting on disgraced Deputy Chief Justice Nancy Baraza to resign instead of waiting for President Kibaki to fire her.
Baraza was on Monday found to be unfit to continue serving as the deputy CJ by a tribunal appointed by the president to investigate her conduct. During her suspension, Baraza was on half salary and was still accessing some of the benefits due to her by virtue of her position.
The report was presented to President Kibaki who is expected to decide by next Friday. Baraza can appeal against the tribunal decision by then. Yesterday, a judicial officer who is a very close friend of the deputy CJ said there were numerous other friends and family members who were trying to persuade Baraza to resign and not appeal against the tribunal decision.
"We have told her that appealing the decision is a waste of time especially because there is overwhelming evidence that she was in the wrong. Resigning will see her get something," said the judicial officer who has been taking to Baraza but who declined to be identified due to the sensitivity of the matter.
Baraza's lawyer, Kioko Kilukumi said he had not yet received instructions to appeal against the tribunal decision. "I have not met or spoken to my client since the tribunal announced its decision. If she decides to appeal the recommendations then that will be a purely personal decision," he said.
The tribunal found Baraza guilty of gross misconduct and cites several instances. The seven-member tribunal was told how Baraza offered the security guard Rebecca Kerubo Sh3.5 million to drop the case. She was also accused of lying about a raft of things.
Already, speculation is rife that Supreme Court Judge Njoki Ndung'u will be considered to succeed Justice Baraza if the latter is removed. Although Justice Njoki is reportedly not interested in the position, some of her judicial collegues have been trying to persuade her to apply for the job.
"Some of us have spoken to her about applying for the job because she is better placed to continue with the work Baraza and the CJ have been doing," said a Court of Appeal judge who requested anonymity as he is not supposed to publicly comment on such a matter.
Lawyers interviewed were in agreement that Justice Baraza's fate was sealed and chances of mounting a successful appeal were minimal. They said that if she lodged an appeal at the Supreme Court, she would have to face the Chief Justice Willy Mutunga who is the president of the Supreme Court.
Mutunga is also chairman of the Judicial Service Commission which petitioned Kibaki to set up the tribunal after it investigated Justice Baraza and found her conductor questionable. The recommendation to ask for the tribunal was made by the JSC sub-committee chaired by the Rev Sam Kobia.
The Law Society of Kenya chairman Eric Mutua said Justice Baraza's chances of lodging a successful appeal were low. "We'll wait and see if she appeals. But even if she appeals, her chances of success are very slim," said Mutua.
Senior counsel Paul Muite said he would advise Justice Baraza to resign instead of filing the appeal. He said that even if Justice Baraza did not resign, President Kabaki would be compelled to act. "The Constitution says the President must act in accordance with the recommendations made by the tribunal. It is not a matter of discussion," he added.
It is not clear how much time President Kibaki has before he decides. While Muite said 10 days was adequate, Mutua said 14 days was reasonable adding that Article 168 (9) did not specifically spell out the period within which the president has to decide.
The article states that the President shall act in accordance with the recommendations made by the tribunal on the later of -expiry of the time allowed for an appeal or if no such an appeal is taken, he should act after the completion of all rights of appeal.
If the President Kibaki decides to sack Justice Baraza, the will place an advertisement calling for applicants interested in filling the position. It will be another rigorous process as candidates will be interviewed in public. The position will most likely be awarded to a woman in order to meet the gender balance requirement stipulated in the Constitution. Current judges and qualified lawyers will also be eligible to apply for the position.