Are suspects appointing own judges?

The aggressive support of President Kibaki’s nominees by Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto and Head of Public Service Francis Muthaura has raised eyebrows among political observers.

A group of politicians and members of civil society has termed the backing of nominees to the posts of Chief Justice, Attorney-General and Director of Public Prosecutions as a “big conspiracy” to defeat justice.

The three, who have been named in connection with the 2008 violence, have been mobilising support for approval of the President’s nominees.

Fast-tracking

President Kibaki has said the government is fast-tracking the appointments to help build a persuasive argument for the deferral of Kenya’s case before the International Criminal Court, saying a new CJ, AG and DPP would enable Kenya to set up a credible local tribunal to try the suspects.

Given the nature of their jobs, the three State officers will most certainly play a central role in the possible trials, which is what is raising suspicion.

“The implication of this is that the three potential ICC suspects are the ones influencing the nominations of key officers who are going to preside over a local mechanism that would try them in the event that the deferral of the ICC prosecution is granted,” said Mr Gitobu Imanyara, the MP for Imenti Central.

His position is shared by Immigration minister Otieno Kajwang’, lawyer Paul Muite and civil society activists Njeri Kabeberi, Harun Ndubi and Ndung’u Wainaina.

The recruitment

Notably, it was Mr Muthaura who chaired a panel tasked to interview and advise on the recruitment. He also wrote to the Speaker, notifying him that President Kibaki had made the nominations in consultation with the Prime Minister.

Moreover, he was among top government officials who on Tuesday briefed Kenya’s diplomats who have been asked to lobby their host nations to back the deferral campaign.

And when he appeared before the House committee on legal affairs, Mr Muthaura made it clear to the members that the President wanted the names approved.

“The whole world knows the nominations were done by ICC suspects. If the suspects appoint their own chief justice, attorney-general, prosecutor and investigator then say they have appointed a tribunal, who will accept?” asks Mr Kajwang’.

President Kibaki has nominated Appeal Court judge Alnashir Visram for chief justice, Prof Githu Muigai (AG) and lawyer Kioko Kilukumi as DPP.

However, Prime Minister Odinga rejected the nominees, saying he was not consulted by the President as required by law.

Incidentally, Mr Kilukumi was until his nomination Mr Ruto’s lawyer in the ongoing fraud case against the Eldoret North MP.

“It is really an obvious question on whether Mr Kilukumi would coordinate the prosecution of Mr Ruto if the ICC confirms charges against him,” said Mr Wainana.

Prof Muigai is said to enjoy a close relationship with top PNU politicians including Mr Kenyatta.

On his website, the constitutional scholar has cited the Government of Kenya has one of his clients.

The motive

The group questioning the motive behind the nominations says the fact that some of those being proposed for appointment have been close allies or advisors to the suspects does not make matters any better, as it points to “a much deeper agenda that Kenyans should be wary of”.

ICC prosecutor Louis Moreno-Ocampo has also expressed intention to prosecute former police commissioner Hussein Ali, Tinderet MP Henry Kosgey and journalist Joshua arap Sang for crimes against humanity allegedly committed during the violence.

After Speaker Kenneth Marende’s declared the nominations unconstitutional, Mr Ruto and Mr Kenyatta led a team of more than 30 MPs who declared Mr Marende a “dictator” and vowed to overturn his ruling.

Before the ruling, Mr Ruto and Mr Kenyatta had led a group of MPs to a meeting with President Kibaki, during which they expressed support for his nominations and promised to marshal sufficient numbers to push the list through Parliament.

On more than two occasions, they have hosted like-minded MPs for lunch at a city hotel.

And there was an interesting demonstration by dozens of women who gathered outside  Parliament before the Marende ruling. “No Hague. He is our son. The river must return to the course,” they sang.