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Wednesday, June 15, 2011

WHY TOBIKO’S NOMINATION IS BAD FOR JUDICIAL REFORMS

By Miguna Miguna 

Five years is a very long time. The Constitution provides that Kenyans must appraise the performance of their leaders every five years. The president, deputy president, senators, members of the national assembly, governors, members of the county assemblies, mayors – virtually all elected leaders – must apply for new contracts every five years. There are no exceptions. 

When state officers apply for appointment or election to new offices, the applicants’ suitability isn’t predicated solely on their academic qualifications. Basic academic qualifications are a prerequisite for consideration. It’s what gets one shortlisted. Those applying for the extension of their terms face an added hurdle: they must prove that, on a balance of probabilities, they have performed well above average. In simple terms, only those who score 65% or more should be considered. That means their competence and integrity during the preceding five years are above reproach. 

If there are serious questions on their integrity or competence, it’s considered fatal. 

For serving state officers – appointed or elected – a whiff of impropriety would disqualify one from continuing in the same office. State jobs aren’t rights; they are privileges. Once the privilege has been granted, one must demonstrate continued suitability through actual performance.

The directorate of public prosecutions is an extremely important office. It’s the DPP who will prioritize cases, decide which ones are prosecuted, which ones are discontinued and which ones are concluded. At times, the director will be required to order investigations or further investigations in cases where the police – for whatever reasons – might not want to commence or continue investigations.

A director of prosecutions can imperil the entire reform process by ensuring that serious cases of graft and other criminality aren’t dealt with; or are prosecuted slowly or sloppily, thereby resulting in miscarriages of justice. A DPP is capable of botching prosecutions by refusing to present credible and unimpeachable evidence before the courts. S/he can also deliberately refuse to call key witnesses to testify (like happened in the Ruto case). A DPP might also deliberately refuse to prepare witnesses, leading to inconsistent and contradictory testimonies, rendering most, if not all, of it no probative value. 

Because criminal cases must be proved beyond any reasonable doubt, an unethical DPP can use various strategies and tactics to ensure that known criminals are acquitted, thereby undermining the administration of justice.

Without diligently prosecution, the courts (no matter how efficient) cannot address issues of organized crime - corruption, piracy, money laundering, drug smuggling and gun running - which have become global problems. Anyone who has served - even for one month - as DPP without any tangible record of meticulously and successfully prosecuted cases of such crimes in Kenya cannot produce positive results even in a hundred years. Effective prosecutions require focused leadership, courage and unimpeachable integrity. Does Tobiko have what it takes?

A person who has served as DPP for five years should be able to catalogue prosecutorial successes on these crimes. Drafting administrative and policy manuals are important. But they are meaningless if they don’t result in convictions and custodial sentences for criminals. How many cases of serious crime has Tobiko successfully prosecuted during the past five years? Has Tobiko prosecuted one major case of corruption in the past five years? Has he appeared in court even once to argue any serious case? If not, why?

In assessing one’s performance, attention must be drawn to the core responsibilities of the office one occupies. Has one consistently, competently, diligently and ethically discharged his/her duties well? A mediocre or below average performance wouldn’t warrant an extension or renewal of one’s tenure. When assessing Keraiko Tobiko’s record, it’s imperative that we separate irrelevant from relevant considerations. 

Yes, the Constitution requires that cultural and regional diversity be considered alongside gender, youth and disability. However, these considerations don’t reside in one individual. There are qualified lawyers from other minority communities. Moreover, Tobiko isn’t the only qualified Maasai lawyer; is he?

Tobiko’s excellent academic performance more than twenty years ago isn’t in doubt. But those are 20-year old academic records. However, what Kenyans are interested in is the content of his character and his exceptional contributions in the fields of human rights, constitutional law, criminal law and reform credentials. Apparently, he has either no record or a very dismal one on these. 

Chapter 6 of the Constitution clearly provides that a ‘state officer’ must meet basic requirements on ‘integrity’ and ‘leadership;’ nothing about ‘excellent’ grades in high school or university. Selection should be based on personal integrity, competence, honesty, selfless service and accountability to the public for decisions and actions.

So, how does Tobiko score on leadership and integrity? 

At University, Tobiko didn’t excel in criminal or constitutional law. There isn’t any record of his human rights credentials. He isn’t known as a brilliant litigator in these core areas. He hasn’t published in these areas either. Although a commissioner of the defunct CKRC process under Prof. Yash Pal Ghai, both Ghai and Dr. PLO Lumumba (who served as the CKRC Secretary), have gone on record challenging his integrity and competence. A former DPP, Philip Murgor, has also cautioned that appointing Tobiko would ensure that the Anglo-Leasing cases are never prosecuted.

Before taking up the position of DPP in 2005, Tobiko defended one of the chief architects of Anglo-Leasing. Earlier this year, his position was designated as ‘Chief Public Prosecutor’. As both DPP and CPP, Tobiko was directly responsible for the prosecution of Anglo-Leasing cases. But he never did. 

His appointment as DPP raised serious conflicts of interest issues. To the Anglo-Leasing suspects, Tobiko’s appointment was a God-send. They would argue persuasively – individually and collectively - that since Tobiko had acted for one of them, they would suffer ‘serious prejudice’ if prosecuted. They would accuse the prosecution of having access to and using ‘privileged’ information to the detriment of the accused. 

Unlike before when the ‘final’ decision resided with the Attorney General; this time, the DPP has the exclusive mandate over all prosecutions. If Tobiko is appointed – even for one minute – he will have the ultimate authority over all criminal cases. 
The Constitution doesn’t allow fake or real ‘Chinese Walls’ to be erected between the DPP and any prosecution. The Constitution guarantees each person the right to a fair trial. Therefore, Tobiko’s appointment (if it happens) will ensure that all Anglo-Leasing cases are lost. Was this the real motive for his nomination? Was Tobiko the Trojan Horse for the ‘merchants of impunity’ all along? Was Kioko Kilukumi’s earlier nomination a mere ruse?

Tobiko hasn’t explained why he should be absolved of the recent orchestrated acquittal of William Ruto over fraud charges. Why hasn’t Hellen Njue and Willian Ruto been charged with obstruction of justice? Didn’t Ruto commit a crime when he gave a job to Njue (a key witness in his criminal case?) Didn’t Njue commit a crime when she accepted a job from an accused persin in a case where she was both the key witness and principal complainant?

More recently, Tobiko accompanied the Ocampo 6 to The Hague, as their supporter. He was with Wanjiku Muchemi, the Solicitor General, and Amos Wako, the AG. He didn’t do so as a representative of the victims. Given the government’s assertions that it is prepared to prosecute all PEV perpetrators, including the Ocampo 6; does any reasonable person expect Tobiko to charge and prosecute the Ocampo 6?

Tobiko has been strongly defended and supported by Amos Wako, William Ruto, Joshua Kutuny, Kazungu Kambi, Kalonzo Musyoka, Isaac Ruto, Charles Keter, Luka Kigen and David Koech. Are those paragons of integrity in Kenya?

Compare them to those who have raised questions about Tobiko: Prof. Yash Pal Ghai, PLO Lumumba, Philip Murgor and a Court of Appeal’s Judge, Moijo ole Keiwua. Can any of Tobiko’s defenders hold a candle before Prof Ghai? Are there Kenyans who still trust Wako, the man Prof Philip Alston described as the ‘the embodiment of impunity in Kenya?’

A former PS, Sammy Kirui might not have a lot of credibility among Kenyans, but the issues he brought forth cannot be ignored. No sensible person can accuse Prof Ghai of malice, vendetta or that his claims are frivolous. There seemed no vexation about PLO Lumumba’s testimony about Tobiko. 

We are supposed to choose a DPP for the country; not for any parochial, ethnic or political interests. The DPP – whoever s/he is – must be imbued with unimpeachable competence and integrity. Clearly, given the serious questions many Kenyans have raised about Tobiko, he doesn’t meet the requirements prescribed by the Constitution. Therefore, the process of nominating a DPP must begin afresh.

Mr Miguna is the PM’s adviser on coalition affairs. The views expressed here are his own.

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