Tobiko verdict creates confusion

A parliamentary committee on Tuesday threw into confusion the endorsement of Mr Keriako Tobiko as Director of Public Prosecutions.

The Committee on Implementation of the Constitution recommended that Mr Tobiko’s nomination be approved, but that further investigations into allegations made against him be carried out.

It was not clear how Parliament would enforce this bit of the recommendation as the role of MPs at this stage is only to either approve or reject committee recommendations ahead of formal appointment by President Kibaki and Prime Minister Raila Odinga.

By Tuesday evening there were efforts by some MPs to have the House propose amendments to delete recommendations to investigate Mr Tobiko.

There were also claims that some MPs intend to delete proposals in support of Dr Mutunga for Chief Justice to have him rejected.

The proposal to investigate Mr Tobiko further was opposed by some committee members with Mr Chirau Mwakwere and Mr Wilfred Ombui arguing it “was vague and inconclusive both technically and legally”.

Committee’s approval

MPs John Mbadi and Ababu Namwamba on the other hand rejected the committee’s approval of Mr Tobiko alongside Dr Willy Mutunga and Ms Nancy Baraza for Chief Justice and Deputy Chief Justice respectively.

The two recommendations brought confusion as soon as the report was made public and this could extend to Parliament when it is discussed, most likely on Wednesday.

The first one reads: “…this House approves Mr Keriako Tobiko for appointment to the position of Director of Public Prosecutions.”

The next reads; “THAT the approval of the Director of Public Prosecutions is subject to further investigations on the outstanding issues; subject to objections by Hon Mwakwere and Hon Ombui.”

The presentation of the report was delayed by one hour, with chairman Abdikadir Mohammed having to seek the Speaker’s permission to table it late as members wrangled over the recommendations.

Mr Mohammed later called the Nation in an attempt to clarify the apparent confusion, saying, the committee simply meant that the allegations would need to be investigated by the relevant authorities.

He said there had been a suggestion from a member that Mr Tobiko should not take office even if approved by Parliament, until the issues are cleared but he was overruled by the rest.

MPs Mbadi and Namwamba would have preferred that the adverse claims against Mr Tobiko are investigated before his nomination is approved.

In their report, the CIOC members were divided on the integrity issues, with some recommending further investigation and others attributing them to professional rivalry, vendetta and community disputes.

Some MPs expressed concern at the pace of prosecution of Anglo Leasing cases since Mr Tobiko took office with others reported to have said his appointment would stall the cases.

The team was also split on the issues raised over the acquittal of Eldoret North MP William Ruto over a fraud case; some said the prosecutor should be blamed while others pointed at the police as the culprits.

Some MPs felt Mr Tobiko was reckless and careless in his handling of the case that had sparked Justice Moijo Ole Keiwua’s charges against him.

PNU Deputy Whip Jeremiah Kioni alleged that the second recommendation is part of a larger scheme to have the top Judiciary posts left vacant until the conclusion of the International Criminal Court cases against six Kenyans.

The report was released on a day the politics behind the debate on Mr Tobiko played out in Parliament, where three different groups of MPs called the press to express their support for the chief public prosecutor.

From different parties

In the morning, ministers Charity Ngilu and Fred Gumo led a group of MPs from different parties, including Mr Gideon Mbuvi ‘Sonko’ of Makadara and William Kabogo of Juja, in support of the embattled prosecutor.

Later, Finance assistant minister Oburu Oginga and his ODM colleagues John Pesa, Edwin Yinda, Eddick Anyanga and James Rege also expressed their support for Mr Tobiko.

This stance was at variance with the one expressed by ODM Chief Whip Jakoyo Midiwo, who with Mr Namwamba and Mr Mbadi have been against Mr Tobiko’s nomination.

Dr Oginga suggested Prime Minister Raila Odinga would also support Mr Tobiko when debate on the report, expected to be slated for on Wednesday, begins in Parliament proper.

“Our party leader (the Prime Minister) supports the names as they are and he has not given any position that does say he is not,” said Dr Oginga, also the MP for Bondo.

The move by the ODM MPs, who said they were making the statements as individuals, was welcomed by Jeremiah Kioni, Ephraim Maina, Peter Mwathi, Nemesyus Warugongo and Njuguna Mwaura, who support PNU.

“More and more from ODM have continued to see the light. We certainly expected them to backtrack,” said Mr Kioni at the third press conference of the day on Mr Tobiko.

Overall, the MPs are of the idea that Mr Tobiko should take up office, the claims investigated and action taken as per the Constitution if they are found to be true.

Dr Oginga said Parliament “cannot act on allegations and matters that cannot be proved” to prevent Mr Tobiko from becoming the first DPP under the new Constitution.