Fraud cases for MPs an acid test for Tobiko
Following his controversial endorsement by Parliament as Director of Public Prosecutions, Keriako Tobiko will be a man under intense public scrutiny as he handles criminal cases facing some MPs.
Mr Tobiko will be assuming the powerful office at a time when over 20 MPs are facing criminal cases in various courts or are under investigation by the Kenya Anti-Corruption Commission (KACC) or the police.
Among those facing cases in court include suspended Industrialisation minister Henry Kosgey, Dr Wilfred Machage (Kuria), Gidion Mbuvi (Makadara), Clement Waibara (Gatundu North) and Zakayo Cheruiyot (Kuresoi).
Others like Trade minister Chirau Ali Mwakwere, Public Health assistant minister James Gesami, John Harun Mwau (Kilome), William Kabogo (Juja) and Ali Hassan Joho (Kisauni) are facing possible criminal investigation for suspected corruption, hate speech or drug trafficking.
Mr Mwakwere faces possible prosecution for hate speech following remarks he allegedly made during the campaign for the Matuga by-election while KACC has recommended the prosecution of Dr Gesami over embezzlement of Constituency Development Fund (CDF) monies.
Mr Mwau, Mr Kabogo and Mr Mbuvi have been subjects of criminal investigations by the police over their suspected links to drug trafficking.
KACC is also investigating corruption allegations levelled against Water minister Charity Ngilu over irregular dealings at her ministry.
Also being investigated over graft claims revolving around the purchase of property for five Kenyan embassies is suspended Foreign Affairs minister Moses Wetang’ula.
Human rights activist and lawyer Harun Ndubi thinks Mr Tobiko was approved for nomination by what he calls a “House of suspects”.
Mr Ndubi was referring to the MPs who may have to contend with scrutiny by Mr Tobiko’s in the coming days, months and years owing to cases under investigation or prosecution and which Mr Tobiko will now drive.
“Assuming we weare to give him the benefit of doubt, I don’t think he is able to surprise us. It is too soon to judge considering that his appointment was kind of confirmed by coercion. He has too many political debts to pay. Elections are coming next year.
There are people who should be charged and who by that act would be disqualified from contesting. Depending on the level of investigation and the information he will have in office, there is the potential that he might be called on to repay gratitude for the support he received,” Mr Ndubi said.
“The new challenge is the legal battles he has to fight in court. He is not through yet because of the allegations that were levelled against him. He may get political support, but he is not out of the woods yet.
The challenge to Parliament is why they can trivialise allegations because they want someone ... They are deliberately sabotaging the proper implementation of the new Constitution,” he said.
The new Constitution gives the DPP powers to initiate, take over, revive or terminate criminal proceedings against any individual without seeking direction or consent from any authority.
The Constitution also gives the DPP unfettered powers to direct the police to launch investigations into any matter he deems as criminal without seeking direction from any quarters.
“The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction,” the new Constitution says.
The law says that the DPP shall only act in public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
With the sweeping powers, it remains to be seen how Mr Tobiko will handle the various cases or investigations facing the scores of MPs who supported or opposed his nomination during last week’s debate in Parliament.
“Mr Tobiko will be the wrong man for the job if he goes there to revenge as a result of the varied views expressed against his nomination in Parliament. He should enter office knowing very well that he was not picked from a pack of angels and that the MPs who supported or opposed him are not angels either,’ said Mr Wetang’ula in an interview with the Sunday Nation.
“He should know that the people who said things against him during the debate are now subject to his authority. He should exercise that authority with extreme objectivity and with the presumption of innocence until proven guilty. He must not at any one time act with malice or with the desire to revenge,” the suspended Foreign Affairs minister added.
According to Constitutional and Human Rights lawyer Okweh Achiando, all MPs who are facing court cases or are under investigations ought to have abstained from the debate in Parliament to approve or reject Mr Tobiko’s nomination due to conflict of interest.
“In a properly structured dispensation, all those MPs with pending criminal charges in court ought to have excused themselves from the debate,” he stated.
He blames the Mohammed Abdikadir-led Constitution Implementation Oversight Committee for requiring Parliament to approve or reject all the three names for the posts of Chief Justice, Deputy CJ and DPP in a single vote.
But some of the harshest criticism was levelled against Mr Tobiko came from human rights activist Ndung’u Wainaina who maintains that Parliament made a fatal mistake in endorsing the nomination.
“The tragedy is that if Tobiko is officially appointed today, it will be impossible for him to prosecute any Anglo Leasing case pending before the courts because of a direct conflict of interest. In his private capacity as a lawyer, he has defended some of the Anglo Leasing suspects,” he noted.
Under the Constitution, Mr Tobiko will serve for eight years, but his term cannot be renewed, according to a clause included to cushion the holder of the office from interference from any authority in the discharge of his duties.
