Keriako Tobiko’s suitability for appointment as the country’s first Director of Public Prosecutions came into question following a series of complaints made against him before a parliamentary committee.
Questions about Mr Tobiko’s suitability were first raised by the chairman of the defunct Constitution of Kenya Review Commission Prof Yash Ghai in relation to his interaction with Mr Tobiko, who served as a commissioner in the CKRC.
Prof Ghai asserted that “Tobiko did not meet the constitutional standards for appointment as DPP and should neither have been considered by the committee, nor endorsed by the President and Parliament.
“He complained that as commissioner of the CKRC, “Tobiko constantly violated the code of conduct as well as the oath of office of the commissioners”.
Prof Ghai accused Mr Tobiko of financial impropriety, alleging that he “claimed, and received, allowances to which he was not entitled”.
He further claimed that Mr Tobiko was constantly reporting to President Moi and some key ministers in breach of the commission’s rule of confidentiality.
This, he said, was a violation of the oath of office which required commissioners to sever links with political parties and other organisations.
Prof Ghai described Mr Tobiko as a man who had great connections in Kanu, the then ruling party, which he used to try to derail the commission and to unprocedurally remove him as the CKRC chairman.
A number of Prof Ghai’s accusations against Mr Tobiko were supported by Prof PLO Lumumba, who was a secretary of the CKRC.
Prof Lumumba, who is the director of the Kenya Anti-Corruption Commission (Kacc), had been called by the parliamentary committee to explain the contents of his book, Kenya’s Quest for a Constitution: The Postponed Promise.
In the book, he says there was bad blood between Prof Ghai and Mr Tobiko and that “a number of commissioners led by… Keriako Tobiko even made plans to remove Prof Ghai, but in an amazing resolve working with Ole Kina and most delegates, we came to the defence of Prof Ghai in one of the most emotional scenes at the [National Constitutional] Conference.”
Prof Lumumba, however, disagreed with Prof Ghai’s assertion that Mr Tobiko had made false financial claims while at the commission.
Another complaint against Mr Tobiko arose from an article titled Perils in Store for Political Clergy which he co-authored with his colleague in 1998.
Published in the Daily Nation, the article was a response to a statement issued by the Catholic Church and the National Council of Churches of Kenya (NCCK) pointing out weaknesses in the constitutional reform process, then under way, as contained in the Constitution of Kenya Review Act, to which they then suggested improvements.
The statement by the religious leaders had identified as a main problem the view that the Act did not accord Kenyans sufficient opportunity to influence the final draft constitution.
Reviewing the legislation underpinning the reform church leaders concluded that, “According to the Act, the Kenyan people do not play any role at the decisive stages in the process.
Indeed, the only role they play in this process is to present their views to the Commission. The absence of participation and ownership at such critical stages is likely to undermine the legitimacy of the process.”
The church statement triggered a response from President Moi who, in a public rally in Eldoret, told the Catholic Church in particular to stop daydreaming that a church-led Philippine-style revolution would succeed in Kenya.
The article by Mr Tobiko appeared a week later. It was a well reasoned intellectual exposition, designed to match the intellectual output with which the church statement had been delivered.
Mr Tobiko asserted that by demanding to be consulted in constitutional reforms church leaders were playing politics since, according to him, constitutional reforms were outside the religious affairs purview for which the church was responsible.
“The frequent demands by these religious orders to be consulted in matters essentially political suggests that these religious orders perceive themselves as being critical in the political process of this country.”
Mr Tobiko then concluded: “It is submitted that the church in this country has no such political influence.”
He made a long argument justifying political retaliation to which the church had exposed itself by demanding constitutional reforms which, as shown, he characterised as politics.
He proposed that “no Kenyan should be surprised when leaders of certain religious orders face physical attack or nuns are raped or religious places of worship are destroyed” because, according to him, these were legitimate means of political expression.
He added, “At base, it is absolutely legitimate and politically prudent to treat any religious body that espouses prejudiced political support as a political entity and not as a religious one.
“Such a political religious body must suffer the full force of political retaliation.”
According to Mr Tobiko, “the massacres that took place inside churches during the Rwanda civil war are a macabre illustration of what happens when religious leaders take sides in political conflicts.”
They also expressed the view that “Bosnia provides another example of the consequence of religious partisanship.”
He analysed the church in Kenya, and made the finding that contrary to its belief the church was not as important as it thought it was and that it was only a representation of partisan ethnic interests.
Mr Tobiko laid down new rules of engagement that would henceforth be followed in the manner of doing politics:
“From now on, partisan religious orders must agree to face a more robust response from opposing political and ethnic interests.”
He predicted that “the murky waters in which political duels are conducted will definitely prove to be too rough for these religious orders.
“By the time they accept the wisdom of neutrality, many lives would have been lost and religious places desecrated.”
He concluded with a frightening wish: “Perhaps this needs to happen for religion to be restored to its rightful place in society.”
This piece of intolerant writing was placed before the parliamentary committee as evidence that Mr Tobiko had engaged in hate speech and was therefore unsuitable for appointment.
His conduct while in office as the Director of Public Prosecutions was also a source of complaints against Mr Tobiko.
One such complaint was brought by a former permanent secretary, Sammy Kirui, who is facing a criminal charge for corruption.
Mr Kirui claimed that Mr Tobiko had, through proxies, tried to extort Sh5 million from him in exchange for which Mr Tobiko would exercise leniency in relation to the case facing him in court and that when he failed to deliver the money demanded, the DPP had added to the charges that the accused faced in court.
There was also a complaint by Justice Moijo ole Keiwua, a judge of Appeal, that Mr Tobiko had falsely and maliciously instigated complaints against the judge, which led to removal of proceedings against him before a tribunal established by the President.
According to the judge, the removal was part of a complicated dispute over property involving a former member of Parliament, Stephen ole Ntutu, for whom Mr Tobiko had acted as an advocate while in private practice.
Justice Keiwua claimed that when he was appointed DPP, Mr Tobiko used his new position to meddle in the case, leading to Mr Ntutu’s acquittal.
The former DPP, Philip Murgor, who was Mr Tobiko’s predecessor in office, informed the committee that he had been removed from office because of his zealous prosecution of the Anglo Leasing cases and that his removal was a well thought-out plan which also involved the removal of a magistrate before whom he was prosecuting these cases so as to disable their prosecution.
The unstated complaint by Mr Murgor was that he believed Mr Tobiko had been appointed because he was considered pliable by the establishment and would not carry out the threat of prosecuting them for the Anglo Leasing scandals.
Mr Murgor concluded that if Mr Tobiko were appointed to the new office for which he had applied, the Anglo Leasing cases would never be prosecuted.
Mr Tobiko has denied all the allegations against him, which he said were motivated by malice. And just as he has critics, he also has supporters, including a large number of villagers.
His retiring boss Attorney-General Amos Wako also supported him, although Mr Tobiko had deflected much of the criticism for his own failings towards the AG.