Lawyers begin jockeying for key prosecutions job

Prominent lawyers have started jockeying for the post of Director of Public Prosecutions.

The powerful office was created with the enactment of the new Constitution to address Kenya’s poor prosecution record under the Attorney-General, which has been blamed for perpetrating impunity.

The Constitution says the roles of the DPP should be exercised by the Attorney-General until a substantive officer is appointed. AG Amos Wako assumed the roles soon after the new laws were proclaimed but delegated them to Mr Keriako Tobiko.

The new Constitution has effectively split the office of the Attorney-General into two. Criminal prosecution is now under the DPP, while the AG remains the principal legal adviser to the government.

Those said to be lobbying for the job include Mr Tobiko, deputy solicitor-general Muthoni Kimani and former Law Society of Kenya chairman Okong’o O’Mogeni.

Nairobi lawyer Paul Mwangi and former committee of experts on law review member Otiende Amollo have also been mentioned in connection with the post.

Justice minister Mutula Kilonzo said the appointment of the DPP is long overdue, adding, the office must be occupied by the end of next month.

“This would relieve the Attorney-General to allow him to concentrate on implementation of the Constitution. It does not require a law,” he told Saturday Nation.

The new Constitution mandates the President to make the appointment in consultation with the Prime Minister.

After identifying their choice, the candidate’s name will be sent to Parliament for debate and approval before the President makes the final appointment.

Ostensibly, the post will be the subject of horse trading between President Kibaki’s PNU and Prime Minister Raila Odinga’s ODM. The choice of the candidate will certainly be informed by considerations of those to be appointed Chief Justice and Attorney-General.

Given the powers vested in the DPP and possible high profile prosecutions, there is no doubt that the occupant would have to be acceptable to the two coalition parties. There is also the International Criminal Court factor.

Those opposed to the ICC involvement in the Kenyan case argue that credible appointment to the three posts would form a stronger plank in the country’s efforts to try the post-election violence suspects at home.

Mr Kilonzo emphasises that for Kenya to put up a strong case for home-based trials, individuals appointed to the three key posts must be credible.

“The principals should agree to advertise the position or if they want to chance it, let them propose names to Parliament for approval,” he added.

The Cabinet has already approved the budget for the office — a total of Sh3.5 billion. Mr Kilonzo said early appointments would ensure a smooth transition.

However, LSK chairman Ken Akide has warned against “horse-trading”, saying it would compromise the credibility of the candidates. He has maintained that the candidates must be appointed on merit, track record as well as meet the threshold set out in Chapter Six of the new Constitution touching on leadership and integrity.

Mr Ahmednasir Abdullahi, a member of the Judicial Service Commission, has also pointed out that the appointments must not be made based on ethnic, religious or political considerations.  

While Mr Tobiko enjoys considerable experience in public prosecution, an article in Mr Abdullahi’s Nairobi Law Monthly (January issue) faults his record.

The article says despite his solid academic credentials and high standing among fellow lawyers, Mr Tobiko’s leadership style has been “less than vigorous”.

In the article, it is advanced that Mr Tobiko operates behind the scenes and it is hard to gauge his stand on the most controversial issues of the day.

Mr Mwangi, the other lawyer said to be in the running, is a regular newspaper commentator and author of The Black Bar, a book on the Kenyan Judiciary.

Mr O’Mogeni earned public accolades during his push for the resignation of former KACC director Aaron Ringera. He chairs the commission’s advisory board and was the LSK chairman during the 2007 elections.