PHOTO/STEPHEN MUDIARI Keriako Tobiko during the vetting by MPs at County Hall in Nairobi on June 7, 2011.
By ALPHONCE SHIUNDU (ashiundu@ke.nationmedia.com) and OLIVER MATHENGE (omathenge@ke.nationmedia.com)
Posted Monday, June 13 2011 at 12:58
Posted Monday, June 13 2011 at 12:58
Justice Minister Mutula Kilonzo wants the pending parliamentary approval of Mr Keriako Tobiko as the Director of Public Prosecution suspended. The minister said the process should only proceed after all the weighty allegations against Mr Tobiko are investigated and the truth ascertained.
“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,” Mr Kilonzo told Nation Media Group’s Q-FM in an interview.
He added: “If he (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’ve worked with him and I know him. I know he’d love to have his name cleared from all these allegations.”
“If you Kenyans love him that much, I have no problem. But I will wait. The country can wait for three to four months for the truth to be unearthed.”
The minister urged Parliament’s Constitutional Implementation Oversight Committee not to close the file on Mr Tobiko without telling Kenyans what the truth is.
The minister urged Parliament’s Constitutional Implementation Oversight Committee not to close the file on Mr Tobiko without telling Kenyans what the truth is.
“The questions raised are very crucial. The truth is Parliament has no means or even capacity to investigate the questions raised in the committee,” Mr Kilonzo noted saying the Executive through the National Security Intelligence Service and the police ought to take up the matter.
“Until these questions are answered exhaustively, and the public gets an explanation, then I can’t support his nomination. I will not agree with (Mr) Tobiko’s name if it is brought to Parliament tomorrow (on Tuesday). If they don’t want to initiate investigations, I will oppose it.”
Tenure
The office of the DPP has an eight-year security of tenure, meaning, it is one of the few offices whose independence is key in the clean-up of the judiciary, Mr Kilonzo said.
“If you’re getting a change of clothes; you can’t change the shirt and leave the dirty pants intact. If the CJ is new, the pants are the DPP,” he added. “I beg, plead and pray that the public listens carefully. The position of the DPP is important than even that of the Chief Justice. Even if you look at the Hague Judges, they depend on Ocampo’s evidence. Is it possible for the judges at the ICC to come to Kenya and collect evidence?”
The minister said the process that led to the nomination of Mr Tobiko was opaque and “unconstitutional” because it did not allow public participation.
He said that the panel led by Mr Francis Atwoli, the secretary general of the Central Organisation of Trade Unions, was “still in denial about the change of the Constitution” and that was why it had conducted the nominations behind closed doors contrary to Article 10 of the Constitution.
“You can’t sit in the boardroom, take tea, and laugh around and then when you walk out, you tell the people that you’ve agreed,” Mr Kilonzo said of the nomination process led by Mr Atwoli.
“I don’t care how brilliant Tobiko is. I know he’s smart. I don’t care how handsome he is or how moral he is. But unless you involve the people of Kenya in the process as enshrined in the Constitution, then the process is flawed.”
But even with that, the minister said that if Parliament approves the nominee, then it would have sown the “seeds of distrust” in the judiciary.
He added that Mr Atwoli should stop insisting on Mr Tobiko’s competence because Kenyans did not have the chance to scrutinise the other applicants.
“You don’t tell us that he’s the best, yet we weren’t involved,” he posed.
“Kenyans want a prosecutor whom they can trust. But if you select someone, against whom permanent secretaries have issues with, saying that they sent emissaries to collect money. We can’t know who’s telling the truth, so who will you trust?” Mr Kilonzo posed.
Civil society
At the same time, civil society groups are threatening to take legal action and block Keriako Tobiko from taking office if Parliament approves his name on Tuesday as Kenya’s Director of Public Prosecutions.
The groups on Monday said they expect Parliament not to debate Mr Tobiko’s appointment terming as flawed the process that led to his nomination.
And if the courts fail to meet their demands, the groups say that they will start the process of removing Mr Tobiko from office as stipulated in the Constitution.
“We have collected all the evidence that support the allegations brought forth and we will be moving to court if Parliament does not consider our petition. And if the courts fail, we will start the process of removing him from office,” Kenya Human Rights Commission executive director Ms Muthoni Wanyeki said on Monday.
She was speaking when the groups launched a petition to be presented to Parliament justifying why Mr Tobiko should not take office.
The activists also said they have received further allegations on Mr Tobiko that “must be investigated before he is approved to take office”.
The civil society groups claim that the panel that selected Mr Tobiko was not properly constituted and locked out Kenyans from the process therefore violating Article 10 of the Constitution which calls for public participation.
They also accuse the Parliamentary committee that vetted the nominations of failing to uphold Chapter 6 of the Constitution on integrity and leadership.
The nomination of Mr Tobiko has been embroiled in controversy after questions started emerging on his integrity and competence. The Chief Public Prosecutor has however dismissed the allegation saying he was ready to face his accusers and clear his name.
Parliament is on Tuesday expected to debate the report by the Constitution Implementation Oversight Committee which on Thursday approved Mr Tobiko and Chief Justice and Deputy Chief Justice nominees Dr Willy Mutunga and Ms Nancy Baraza respectively.
The debate on the three names is expected to take a political and regional twist as has been demonstrated by public utterances made by various politicians.
Those supporting Mr Tobiko have demanded that his accusers produce evidence of the allegations brought forward to prove that they are not involved in witch-hunt.
Additional reporting by Paul Nabiswa
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