Give us a Minority with a Credible Reputation For DPP

Friday, 10 June 2011 21:28 BY GODWIN MURUNGA

On May 19^th, I received an email from one Eleazer Wanjiru who introduced herself as being ‘from one of the small networks within the larger civil society body.’ The email, copied to Prof. Yash Pal Ghai warned us not to voice any opposition to Keriako Tobiko’s nomination as DPP because some MPs had a dossier on Willy Mutunga which they would release ‘based on what we say about their guy (Tobiko).’
This email seemed provoked by Prof. Yash Pal Ghai’s piece in The Star of May 17^th 2011 which questioned Tobiko’s suitability as a DPP given that he repeatedly violated his oath and code of conduct as commissioner in the Constitution of Kenya Review Commission. The Atwoli Committee should have known this given that PLO Lumumba had in 2008 published similar sentiments about Tobiko in his study Kenya’s Quest for a Constitution: The Postponed Promise.
On Thursday May 19^th, The Star gave a more direct hint about this so-called dossier on Mutunga in a page 2 story which reported that a legislator tasked to read a hard hitting statement sourced from the court against Willy Mutunga had declined to participate. The headline of the Weekend Star confirmed that this dossier was about ‘Mutunga divorce.’
When confronted with this at the interviews by the CIOC, Mutunga was upfront. Mutunga invited all Kenyans to inspect him before approving his appointment as CJ. He was ready to answer any and all questions. A similar thing happened with Nancy Barasa. She was candid about all questions including those that touched on her divorce and her thesis on homosexuality. Both Mutunga and Barasa acquitted themselves with credit and demonstrated what leadership ought to become in the new Kenya.
Contrary to expectations, it is the religious ‘leaders’ and their acolytes who must hold their hands in shame. From their presentations on Monday, 6^th June, it seemed they knew the nominees well. As it turned out, their accusations directed at Willy and Nancy were a fine example of misinformed propaganda and fear-mongering. And while Kenyans should protect the right of the religious leaders to say what they wish, it certainly merits mention that the sacredness of religion in Kenya and the humility that ought to inform actions of religious leaders is nowadays constantly sacrificed on the altar of a fundamentalist notion of morality.
What is most intriguing is that our religious leaders, in their misplaced moral crusade did not have anything to say about the appointment of Keriako Tobiko. Whatever else one can say about Tobiko's brilliance as Amos Wako puts it, the one thing that does not seem to go with Tobiko is his reformist consistency and ability to deliver justice to all and at all times. There is nothing wrong with Tobiko being heavily linked to KANU and NARC politicians. However, there is evidence that he has been extremely lacklustre in prosecuting people of high political office.
While no Kenyan has raised a question about Willy or Nancy’s professional conduct, all the questions directed at Tobiko touch on professional conduct. Whether these questions refer directly to Tobiko’s action or inaction or whether they are through the acts of his associates, the fact remains that in the public domain, Tobiko is guilty by association of acts that impinge on the delivery of justice. Further, Tobiko’s association with characters whom Kenyans judge as anti-reform and corrupt will not end when he is appointed DPP. Given the new weight associated with this office, these associations will become a bigger problem. It was therefore inappropriate for members of the CIOC to question people who came to provide evidence against Tobiko. The CIOC should investigate the claims reported by members of the public and find out the truth, not doubt those claims before investigating them.
It did not help matters that it is Amos Wako who came to the defence of Keriako Tobiko. If I were Tobiko, I wouldn’t make reference to Wako as a referee. Wako has bad a history in the delivery of justice and that history is the equivalent of Kenya’s negative experience with authoritarian and corrupt leadership of the last twenty –five or so years. Wako is as much implicated in Tobiko’s failure as prosecutor as much as Tobiko is implicated in Wako’s failures of the last few years. Wako cannot be trusted when he recommends Tobiko as a reformist.
Finally, it must be noted that the attempt by special interest groups to influence Tobiko’s appointment indicates the desperation for this appointment. The fact is that Kenya is ready to embrace a minority; but it is not ready to embrace a tainted minority who will compromise the office or the delivery of justice. If we must have a minority, let us have one whose record is reputable.

Godfrey Murunga is a lecturer at Kenyatta University.