IT was bound to happen sooner or later. Many feared the controversially appointed director of public prosecutions, Keriako Tobiko, the unvetted and opaquely appointed police commissioner, Mathew Iteere, and the voluble but empty Kenya Anti-Corruption Commission chairman, PLO Lumumba, were ill-equipped to implement the new Constitution. Their most recent public utterances and theatrics confirm this. 
Lumumba is an excellent actor and public speaker, and he has several times presided over exciting press conferences where he has declared that he would unleash ‘high voltage’ files within days. Each time, he has ended up doing nothing. He excelled himself recently, leading demonstrations against the minister for lands, James Orengo, when what he should have been doing was investigating corruption allegations at the lands ministry and forwarding ironclad evidence to the DPP. PLO should know his job is not about theatrical performance. What we need are first-rate investigations that lead to successful prosecutions.
PLO’s next unfortunate move was promising amnesty to looters, plunderers and economic saboteurs. That isn’t part of his job description, and in any case, such amnesty can only be justified after perpetrators have been charged. Amnesty can only be in exchange for a guilty plea, restitution, punitive interest, full and complete disclosure and an honest apology.
The silly idea that one can steal Sh50 billion then be let off with a slap on the wrist is a big joke! Does it not matter for how long the theft denied Kenyans basic services? Does it not matter how much the thief has capitalised on his ill-gotten gains?
Recently, we have been reading horrid stories of how heartless thieves have stolen hundreds of billions of shillings meant for education, water, roads, medical services, housing and food.
Hundreds of billions have apparently disappeared from the Treasury through crafty ‘accounting’ and ‘typing errors’. Tens of billions have evaporated through ‘secret’ National Security Intelligence Service accounts.
And there are credible reports that assets worth thousands of billions of shillings, ostensibly belonging to Muammar Gaddafi – including the Laico Grand Regency hotel, Oilibya and other lucrative oil interests, are actually in the hands of ‘lords of impunity’ here in Kenya.
Apparently, even the alleged ‘Chinese’ company, Pan African Network Group Ltd, to which the Communications Commission of Kenya has just controversially awarded a lucrative digital distribution licence – only days after the company was registered – is not ‘Chinese’ after all, but in fact belongs to local interests.
It’s just like the mysterious ‘foreign’ companies given hundreds of acres of fertile agricultural land at the Coast, and the dubious ‘foreign’ company given land at Jomo Kenyatta International Airport – all belong to the same ‘high and mighty’ among us.
Keen analysts are also raising questions about Uhuru Kenyatta’s trillion-shilling-plus budget, when the past nine years have seen the worst plunder of public funds by the ‘merchants of impunity’.
No one could have carried out such brazen thefts without the connivance of top government officials, including in the NSIS, the police and the state law office, yet no criminal kingpin has been charged. Tobiko, Lumumba, Iteere and CID director Ndegwa Muhoro have done absolutely nothing about these cases.
Tobiko has no training or experience in criminal law. He specialised in trademark and patents, an arcane area of intellectual property law that prepares lawyers for teaching, research and drafting trademark and patents agreements. Such training ill-equips someone to be DPP in a developing country where the justice system has never really worked.
Tobiko’s more than five years at the state law office exemplify why suitability, competence and integrity are core values in public officers. If an individual lacks relevant experience, training, reform credentials, innovation, good leadership qualities and courage, it doesn’t matter how well managed the institution is. That’s why the Constitution dedicates a whole chapter to leadership and integrity!
During Tobiko’s time, our public institutions suffered runaway corruption, ineptitude, lack of independence, personal inertia, institutional lethargy and a status-quo mentality. Tobiko never successfully prosecuted any major or known criminal.
Instead, an avalanche of mega-corruption cases and human rights abuses spiralled out of control – Anglo Leasing, Triton, Ken-Ren, Grand Regency, the Standard Group attack, the extra-judicial killings of suspected Mungiki members and the carnage of post-election violence. Tobiko failed to prosecute any major perpetrator – even those caught on live television committing heinous crimes!
Recently, we were told Tobiko had ‘seconded’ some prosecutors to Iteere to assist with the ‘investigation’ of the Mercy Keino case. Later, the media reported Iteere announcing he had sent the file to Tobiko for ‘further directions’. Then Tobiko was reported to have ‘instructed’ Iteere to do further ‘investigations’. What is this run-around? It was the clearest demonstration yet that neither gentleman is familiar with our new governance and system of justice structures.
Art. 245(4)(a)(b) and (c) provides that “no person may give direction to the Inspector General with respect to the investigation of any particular offence or offences; the enforcement of the law against any particular person or persons; or the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.”
The police have the exclusive mandate to investigate criminal offences. They also have near-exclusive arrest powers (exceptions being powers donated to other bodies like KACC or bylaw or regulatory enforcers).
If the police have reasonable grounds to believe a crime has been committed, they are required to arrest and charge the suspects and take them to court. Thereafter, the DPP prepares the case. He can present evidence and argue the case if he believes he has enough evidence to sustain a trial.
The police remain involved in case of further investigations, witness interviews, alibis and service of summons and court orders. The DPP’s mandate thus comes only after a suspect has been arrested by the police and charged in court. He has no arrest powers. He has no power to determine whether or not someone has committed a crime. He has no power to decide whether someone should be arrested. His job is to decide whether the evidence in the police file is enough to initiate prosecution. If not, he can ask for further investigation.
If an accused person presents an alibi, the DPP must investigate this and notify the defendant and the court of the results. And, unlike under the old Constitution, the DPP can only discontinue criminal proceedings after the close of the prosecutor’s case, and only with the court’s permission. The era of the sneaky nolle prosequi is over!
With the lines of authority between the police and the prosecution thus clearly demarcated, the manner in which Tobiko and Iteere continue to mismanage and mishandle the Mercy Keino case cannot be tolerated.
Why are the police seeking the DPP’s direction in the case? After all, the police routinely arrest and charge other offenders without his assistance. During the recent demonstrations led by Okiya Omtata, for example, the demonstrators were arrested as they headed for State House. Iteere didn’t stop to ask Tobiko for advice.
The same happens frequently with police shootings of suspected criminals. They don’t hold their fire to seek directions from Tobiko. Why is this bizarre practice only engaged in when big-shots, suspected drug barons and merchants of impunity are somehow connected to apparent crimes?
Many people now think Iteere, Tobiko and Lumumba were actually hired to do nothing, and that both Tobiko’s five-year and Amos Wako’s unprecedented 20-year survival are proof that lethargy, inertia, patronage and sycophancy are the only insurance for senior public officers in Kenya.
But that’s not all that should worry us. Another troubling situation is emerging, with the composition of the top echelons of government violating the Constitution (where are the Constitutional Implementation Commission and the Constitution Implementation Oversight Committee?).
How can we justify having the heads of the military (the top three ranks being occupied by officers from the same county), police, intelligence, CID, administrative police, solicitor-general, the entire top echelons of the ministries of finance, defence, internal security, justice, energy, transport, communications and foreign affairs, the Cabinet office, more than 20 PSs, more than half the CEOs in state corporations, district commissioners etc all hailing from the same ethnic group?
Now we are told even the yet-to-be-appointed attorney-general must be a particular person from the same community. That’s constructing a national tragedy! National cohesion and reconciliation has become a big joke. Is Mzalendo Kibunja listening?
I call upon Tobiko, Iteere and Lumumba to take their work seriously and discharge their constitutional duties in strict conformity with the Constitution. Otherwise, some patriotic Kenyan might just soon seek the intervention of the court to ensure full compliance.
The writer is the Prime Minister’s advisor on coalition affairs. The views expressed here are his own
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