By standing down as Mr William Ruto’s lawyer in the Sh96 million fraud case, Mr Kioko Kilukumi has done the right thing.
After all, he cannot be in line to be Director of Public Prosecutions while also sitting on the other side as the lawyer for person he might come to be prosecuting.
The problem here is that even if he rightly did not want to be in conflict of interest, he withdrew from the wrong assignment.
It would have been much more preferable that Mr Kilukumi turn down his unilateral nomination by President Kibaki – to the chagrin of Prime Minister Raila Odinga – to head the critical prosecution branch.
Key in his consideration is that in the new appointment, he will forever in the public mind be linked to Mr Ruto.
Over and above Mr Kilukumi’s professional association with the suspended Cabinet minister in the fraud case is another grave matter that provided the rationale for President Kibaki’s timing in naming him alongside Justice Alnashir Visram as Chief Justice and Prof Githu Muigai as Attorney-General.
Ahead of the ongoing African Union summit in Addis Ababa, the President has been at the head of an initiative designed to rescue the so-called Ocampo Six from the clutches of the International Criminal Court over the country’s descent into post-election butchery.
The strategy is grounded on securing support of the African Union support in persuading the United Nations Security Council to suspend ICC’s move on Kenya, so that a home-grown mechanism can try the suspected perpetrators.
Success is contingent on demonstrating that Kenya has reformed its Judiciary and other branches of the criminal justice system to enable the establishment of a competent and independent local tribunal to try the Ocampo Six.
Hence a new Chief Justice, new Attorney-General and new Director of Public Prosecutions. The odd thing here is that the person nominated to the latter post also happens to act for one of the Ocampo Six in an unrelated criminal case!
Mr Kilukumi’s client in the fraud case, William Ruto, is one of the six individuals listed by ICC prosecutor Luis Moreno-Ocampo.
Of course there is nothing to suggest that the lawyer is thus barred from the office of DPP or would be in any conflict of interest, but here we are talking about appearances and perceptions.
The mooted special tribunal is supposed to be independent of the regular justice mechanism, so technically and legally, there should be no conflict.
But if the Kenya Government – or rather President Kibaki’s PNU axis – is to convince anyone that it has the will to establish a truly independent local tribunal, then it could not do much worse than nominate a lawyer for one of the Ocampo Six as Director of Public Prosecutions.
That is why Mr Kilukumi should have turned down the nomination.
In any case, the distinguished lawyer in him would not at this stage in his career want to be dragged into the quagmire of no-holds-barred political wrestling.
That is what Judge Visram and Prof Muigai should consider too. From a professional standpoint, they may be eminently qualified and suitable to hold high office. But they surely would not want to besmirch well-earned reputations and have their standing lowered in the eyes of the public.
Nothing can work more against anyone holding the office of Chief Justice, Attorney-General or Director of Public Prosecution than being viewed as a political hatchet-man.
If they accept these appointments, they will be seen as the equivalent of the Electoral Commissioners appointed by President Kibaki ahead of the last elections – and we all know the aftermath – or the unqualified political judges that debased the Judiciary through much of President Moi’s rule.
The three gentlemen would do their individual reputations the world of good if they respectfully declined the nominations for now.
That would not disqualify them in the future under a process that respects the letter and spirit of the National Accord which is also captured in the transitional clauses of the new Constitution – consultation between President and Prime Minister on all major decisions.
Turning down the nomination would also do Kenya a world of good in helping stave-off unnecessary confrontation between the President’s supporters, and the Prime Minister’s wing of the coalition government.