Court declines to stop Tobiko's hiring as DPP
An attempt by an activist to temporarily stop the appointment of Mr Keriako Tobiko as Director of Public Prosecutions failed on Tuesday.
However, Lady Justice Jeanne Gacheche certified the case as urgent and set a hearing for next Tuesday.
Mr Thomas Kagwe Mbugua, the deputy director of the Kenya Human Rights Commission, filed the case seeking an order against the panel which interviewed candidates for the post, or any State institution, against processing the appointment of Mr Tobiko as DPP.
He also asked the court to compel members of the panel to provide him with all minutes, notes, reports, maps, questionnaires, memoranda and any other document they had prepared or received, including a report allegedly prepared for the panel by the National Security Intelligence Service.
The judge declined to grant these orders, saying the panel had completed its task.
Lawyer Haron Ndubi, representing the petitioner, unsuccessfully tried to convince the judge to reconsider her position, arguing that even if Parliament approved the name, “the President still has an additional function to appoint.”
That function could still be stopped by the court since an order would also apply to the Attorney General, who is among those sued, he argued.
All the members of the interviewing panel, including the AG, permanent secretary in the Office of the President Francis Kimemia, Law Society of Kenya officials and Cotu secretary general Francis Atwoli are respondents in the petition.
According to Mr Kagwe, the interview was conducted in secrecy and neither the public nor he were granted an opportunity to take part and thus it lacked integrity and was flawed.
“His shortcomings are a failure in integrity, lack of impartiality and lack of independence,” Mr Ndubi told the judge.
These allegations are based on a memorandum allegedly written to the panel by Yash Pal Ghai, a former chairman of a defunct constitutional review commission, and the NSIS report, the court heard.
Mr Tobiko worked under Prof Ghai at the defunct Constitution of Kenya Review Commission.
The panel allegedly chose to ignore that letter and failed to acknowledge receiving it, contrary to constitutional values of transparency, integrity, accountability and public participation, according to Mr Kagwe.
Meanwhile, a non-governmental organisation has written to House Speaker Kenneth Marende to intervene and stop Mr Tobiko’s nomination.
The Africa Centre for Open Governance told Mr Marende that “neither the nominee nor the manner of his nomination can provide Kenyans with the confidence that he represents anything other than the continuity of the old order.”
