War cries over ‘our son’ mar Tobiko debate

The appointment of the Director of Public Prosecutions, one of the highly powerful creatures of the new constitutions, has degenerated into an incredible circus.

It has become the subject of petty politics which threaten to bury salient questions about the process deployed as well as the integrity of nominee Keriako ole Tobiko.

In a sad turn of events, grave allegations about Mr Tobiko have been contested on ethnic and political grounds, raising speculation that powerful political interests may have conspired to bulldoze him through despite the lingering integrity issues around him.

Notably, it would take a probe by a special tribunal to remove the DPP in case the allegations against him are proved to be true after his appointment.

His appointment has been turned into a communal affair and any questions about the candidate are being seen as “persecution” of a man from a marginalised community.

The talk of “our son” has featured in the debate and groups of fire-breathing villagers ferried to the city to castigate those questioning his nomination.

Sad precedent

A sad precedent is being set in Parliament where MPs have been vilified by their colleagues for executing their vetting mandate in committees.

This was clear in the Abdikadir Committee where some MPs were criticised of being to “aggressive” by asking tough questions.

The allegations against Mr Tobiko touch on his integrity, success record as prosecutor and role in the push for new constitution.

Former Local Government permanent secretary Sammy Kirui accused him of soliciting a Sh5 million bribe through third parties while Court of Appeal judge Moijo ole Keiwua also accused Mr Tobiko of influencing his suspension from the Judiciary and interfering with a land case in the Maasai Mara. Mr Tobiko denied the allegations.

In what some politicians have described as “blackmail to sneak through” a candidate with unanswered queries of integrity, Maasai leaders have threatened to withdraw their party support if its members block the appointment of “our son”.

This has triggered debate on whether the candidate applied for the job as a competent professional or a Maasai; and whether ethnic considerations should override the requirements for competence and integrity.

More importantly, the ethnic and political shenanigans have blurred the critical questions: Does Mr Tobiko fit the bill for appointment as DPP?

Two, should he be appointed before the allegations against him are cleared? Three, did the process of his appointment satisfy the spirit and letter of the new constitution?

And was the process above board? The answers lie in Articles 157 (on qualifications of DPP), 73 on leadership and integrity and 10 on national values and principles of governance.

Article 157 says that individuals to be named DPP should possess attributes of those qualified for appointment as High Court judges.

In addition to the requisite academic qualifications, they must have high moral character, integrity and impartiality.

Article 73 says state officers should bring “honour to the nation and dignity” to the office they occupy.

The Article cites the guiding principles of leadership and integrity as selection on the basis of personal integrity, competence and suitability, or election in free and fair elections.

The others are objectivity and impartiality in decision making and ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices.

Article 10 also singles out patriotism, the rule of law, participation of the people, good governance, integrity, transparency and accountability as critical national values.

These values touch on the transparency of the process of Mr Tobiko’s nomination.

Mr Abdikadir Mohammed who chaired the committee which vetted him has admitted that interviewing process was flawed. He said it was “not properly conducted and was not transparent.”

But despite this, he said Mr Tobiko should be approved. “There is no need to delay Tobiko’s nomination. We have already delayed the process for one week.”

Justice minister Mutula Kilonzo, chief whip Jakowo Midiwo, MPs Martha Karua and John Mbadi and key civil society groups have asked Parliament to first investigate the claims against Mr Tobiko before appointing him because they touch on his integrity.

On Monday, the minister said Mr Tobiko’s nomination should be suspended until all weighty allegations against him are investigated and the truth ascertained.

He said if Tobiko’s name is approved with the allegations, it would “contaminate” the reform agenda.

“Even if we are in a hurry to implement the Constitution — and I’m the one responsible for that — will you just step on the accelerator if the vehicle has a problem?

“Obviously you will step on the brakes and tell the passengers that there’s a problem. You’ll only proceed after the problem has been sorted out.

Restore confidence

“If he (Mr Tobiko) accepts to go on with this job, his name will be so dirty for a long time, yet this is a job he’ll do for eight years. I know he’d love to have his name cleared from all these allegations.”

Mr Midiwo says allegations against Mr Tobiko must be investigated in order to restore confidence and bring honour and dignity to the office of DPP. He says the country “will not go up in flames” if the process is delayed for a week or two.

“Let the committee do this country a favour by delaying the nomination to investigate the allegations as well as protect the integrity of both the process as well as Mr Tobiko,” he says.

He said the Abdikadir team had both the resources and the power to probe the matter because it enjoys the authority of a High Court.

“We don’t have such luxury on the floor of the House. The team can subpoena the Francis Atwoli team which interviewed Mr Tobiko and the intelligence agency to clarify the issues.”