Nominees:Tobiko's approval divides MPs

By MARTIN MUTUAThe future of judicial reform and implementation of the new laws hangs in the balance tomorrow when a report on three nominees to constitutional offices is tabled in Parliament.
The Constitution Implementation Oversight Committee (CIOC) meets this morning to complete the report, which will ask Parliament to endorse the three, but chairman Muhamad Abdikadir said it will not include a dissenting annex or opinion by any of its members opposed to its endorsement of Keriako Tobiko’s nomination.
Of the three, it is the nomination of Tobiko as Director of Public Prosecutions (DPP) that dominated the media last week due to the hearings by CIOC. MPs supporting Tobiko’s nomination are now threatening to block Dr Willy Mutunga and Ms Nancy Barasa, the nominees for CJ and Deputy CJ respectively, if he is blocked.
But a group opposed to Tobiko’s nomination also plans to table an amendment for his name to be axed from the CIOC report. Last week, the committee overwhelmingly approved Dr Mutunga and Ms Barasa’s names, but was split evenly across party lines over Tobiko, with 11 for and 11 against and one abstention.
ODM has a majority in the 27-member committee, but the matter was not a party issue between it and PNU, and so the voting in the committee did not reflect party allegiances. However, four ODM MPs did not attend, with two of them out of the country on other business.
Yet, even in ODM itself, MPs are split over Tobiko.
Speaking at Maranda High School in Bondo, during the institution’s Parents Teachers Association meeting, on Saturday, Finance Assistant Minister Oburu Oginga said Parliament should approve Tobiko’s nomination.
"He scored 50 per cent, and to me that is a pass. Let Parliament approve him," said Dr Oburu.
Inter-party wranglingBut Government Chief Whip (ODM) Jakoyo Midiwo, speaking separately, maintained that Tobiko’s nomination should be deferred pending further investigations.
"The new Constitution demands that public officers are beyond reproach. Kenyans demand that the Constitution they fought so hard for is respected," said the MP.
House Speaker Kenneth Marende handed over the responsibility of vetting the nominees to CIOC, taking it away from the Justice and Legal Affairs Committee that were torn by inter-party wrangling.
Impeccable sources told The Standard MPs allied to suspended Higher Education Minister William Ruto plan to move an amendment to the report to be tabled by CIOC tomorrow to have Dr Mutunga rejected by the house.
According to parliamentary practice, the Abdikadir Mohammed-led CIOC will table a report in which it is believed they resolved the three names be endorsed. Members are at liberty to amend, reject or approve the report as it is. On Sunday, sources privy to the move told The Standard Ruto will be in the House to lead the onslaught against Mutunga, and will rely on the numbers of his "foot soldiers".
Whereas Ruto has publicly questioned the nomination of Dr Mutunga, Uhuru has been silent. When contacted for comment, CIOC Chairman Abdikadir Mohammed confirmed he had heard such talk within Parliament.
"Since our deliberations were out in the open and transparent, you cannot fail to expect such moves to take place and I am not surprised that this is bound to happen," he added.
But he said in the spirit of the new laws, the panel led by Cotu Secretary General Francis Atwoli that interviewed Tobiko should have conducted deliberations in the open to avoid the current scenario.
"There have been concerns that the Atwoli selection panel conducted its deliberations in secrecy and that if they had followed the path taken by the Judicial Service Commission then those questions that came to our committee would have been addressed there," he added.
However Abdikadir pleaded with his fellow MPs to approve the names in order for the process of implementation to move forward, and within the constitutional timelines.
"If we continue creating road blocks, we shall never have this process move forward and that this is not what Kenyans want," he added.
Abdikadir further said all the nominees are fully aware of the concerns that had been raised over their character and conduct.
"The three nominees now know the concerns Kenyans have about them and it is up to them to make things happen according to the expectations of Kenyans otherwise, they will only have themselves to blame when Kenyans strike," he added.
But Justice Minister Mutula Kilonzo and Government Chief Whip Jakoyo Midiwo opposed the approval Tobiko to the position, saying questions over his integrity need to be addressed now before he can be given the job, because the office is key to addressing reforms in the Judiciary.
Mutula said the committee should have filed two separate reports, one for Mutunga and Barasa and another one on Tobiko, since the two were different arms of Government.
"On Tobiko, Parliament as you know has no investigative capacity and until the issues raised about him are thoroughly and properly investigated I cannot approve his appointment," he added.
Public scrutinyMutula supported Abdikadir on the conduct of the selection panel led by Atwoli saying the time when things used to be done in boardrooms away from public scrutiny are long gone.
"A lot of people, even those in Government are leaving in denial about the new Constitution. Time is up when things used to be done in secrecy because the new constitution demands transparency and public participation," he added.
On Saturday, Atwoli defended his team’s action in nominating Tobiko, saying the Constitution is silent on whether the vetting of the prosecutor should be public. He claimed the sentiments of CIOC’s Mohammed were meant to cast "aspersions on the Integrity of the panel that I chaired."
But Mutula described the selection process by the Atwoli-led panel as "archaic and substandard", saying it should never be witnessed again in light of the new constitutional dispensation. He noted that if Tobiko’s name is approved by the House with all the allegations hanging over his head, it would ‘contaminate’ the reform agenda in the Judiciary.
"There are allegations by a High Court Judge, a former Director of Public Prosecution and a former PS against Tobiko who has vehemently denied the claims. Not everyone can be lying and not all can be telling the truth, and that’s what we need to know," he added.
Mutula said after Tobiko —whose office is in his ministry — was challenged over his integrity, he cannot, as the minister responsible, support his approval until he is cleared of the allegations, and agreed with Gichugu MP Martha Karua on the need to delay Tobiko’s approval until the claims are investigated by the proper means and organs of State.
"The appointment of public officers is no longer a secret and those wishing to present themselves for such appointments must be prepared to go through what Dr Mutunga and Barasa experienced, or otherwise forget about it," he added.
Mutula said lumping the vetting of Mutunga and Barasa with Tobiko’s was a grave error because the Judiciary and Prosecution departments are distinct offices. "The process of vetting both Mutunga and Barasa was totally different from that of Tobiko, and I do not understand why the two were put together because that is where we went wrong," he added.
Tobiko’s endorsement Mutula, however, said Parliament must set up standard rules and procedures for vetting public officers to avoid a the "fiasco" over Tobiko’s nomination. Government Chief Whip (ODM) Jakoyo Midiwo dared the Ruto group to make good their threats on the floor of the House.
"We fully support the appointment of Dr Mutunga and Barasa and those daring to move the amendment let them do so and we shall know the anti-reformers," he added.
Jakoyo vowed to marshal members to have the names passed, saying a majority of members support Mutunga and Barasa, but oppose the approval of Tobiko. He echoed Karua’s call to delay Tobiko’s endorsement until the allegations raised are dealt with. But Midiwo’s opposite in PNU, Johnstone Muthama said the party backs the approval of the three names, and will marshal MPs to pass them.
"As far as am concerned we are going to pass the three names as a package, but the only hiccup lies with ODM who have been causing road blocks at every stage," he added.
He said Ruto had already expressed support for Mutunga over the weekend when he toured Machakos with the Vice President, and that he was not aware of the new move.