The Dirt On Tobiko And Why Parliament Must Reject His Nomination

Political compromise and horse trading main culprit in this new move to derail reforms

A Kumekucha informant attending the proceedings grilling Keriako Tobiko for the post of DPP last week noticed a curious thing. There was a sheet of paper that Hon Ababu Namwamba was holding even as he fielded his questions and it had the Kumekucha logo clearly across the top meaning that it was a print out from an article in this blog. This is the article the legislator was reading and referring from. Yes, this blog revealed Tobiko's evil ways almost 4 years ago.
Seeing this at County hall, my informant was upbeat and confident that all would be well and that the committee would reject Tobiko. It was not to be because as you read this the man already has a foot through the door to his new office. The devil is in the details, they say and Kenyans are about to get a very nasty surprise if parliament gives the green light to the nomination of this man to the brand new and extremely powerful position of Director of Public Prosecution DPP. Many Kenyans don’t realize it but this is one of the most powerful legal offices created by the new Constitution and enjoys security of tenure apart from being totally independent unlike in the previous constitution.

If you read the information that was on the piece of paper that Ababu was holding you and understand the contents, then you will get very scared. Mainly because a man who was involved in such a dirty deal should be the subject of a long overdue KACC investigation and not a candidate for an extremely sensitive post under the new constitution. Indeed the post in question is much more sensitive than that of the chief justice and their deputy.

The truth is that Tobiko was appointed to the old post of Deputy Public Prosecutor (also DPP) mainly to frustrate all and any new Anglo Leasing cases, a job that he has done extremely well. Clearly the biggest strength of this man is using technicalities to stall justice. We can therefore expect technicalities to be used to frustrate the spirit and letter of the new constitution at every turn. It is therefore not too difficult to figure out why some very powerful people in Kenya (masters and promoters of impunity) are so determined to have Tobiko in office. And they may just have their way. We have a fighting chance of stopping it if enough Kenyans can contact their MPs with a simple message “we are watching you.”

What Prof Yash Pal Ghai Said About Tobiko;
“…Now that Keriako Tobiko has emerged as the front runner, I believe I have a responsibility to share my knowledge of him publicly – my private communication to the nominating committee having made no impact.

My knowledge of Tobiko is based largely on his performance as a commissioner of the CKRC. Under their oath, commissioners were to exercise their responsibilities “without fear, favour, bias, affection, ill will, or prejudice”, and without “influence by any political party, religious society or any organisation or person which may have nominated me for the appointment”. This oath, and the Code of Conduct, Tobiko repeatedly violated.

Tobiko was the leader of commissioners who on the basis of lies waged a campaign to get rid of me. He led the group which went to see President Moi, widely believed to urge him to remove me. This did much to discredit the commission, but the very publicity meant that his plot fizzled out.

He constantly reported to the President and some ministers, in clear breach of confidentiality and impartiality. He engaged in a campaign to disrupt the work of the commission to prevent the drafting and adoption of the new constitution.

A drafter prepared a mock up of a draft constitution, with a view to presenting the possible architecture of the constitution for discussion by the commission. Tobiko somehow wormed his way into my office and removed it. Tearing away the front page (with its explanation of the purpose of the document), he made several copies, one delivered to President Moi and others distributed to the media. He told them that I had secretly prepared the constitution on my own. This story appeared prominently in the media, but fortunately was rapidly discredited as the front page was shown to them.

During procedures to remove the first Secretary of the commission, for dishonesty and failure to perform his functions, Tobiko took the secretary into hiding and removed his phone to prevent the commission from contacting him. It was only when pressure was brought on him by his political masters that the Secretary emerged – and resigned.

When the commission was about to start preparing the draft constitution after consulting the people, Tobiko objected, saying that people had not been consulted! However, apart from a handful of commissioners who joined him in the boycott or sabotage of the process, the commission completed the draft. Tobiko’s sole contribution was to take copies of our confidential papers and pass them on to persons who were not authorized to receive copies of them. Although a lawyer with a good degree, his intellectual contribution was negligible. I personally have no recollection of a single idea or proposal about the constitution that he made.

He later became DPP, as a member of the system that has perpetuated impunity (most recently Ruto’s acquittal in the land case). Is he a suitable person to be appointed to the new more powerful office designed to eradicate this evil?”

CIVIL SOCIETY STATEMENT ON THE PROCESS OF VETTING FOR THE CHIEF JUSTICE, DEPUTY CHIEF JUSTICE AND DIRECTOR OF PUBLIC PROSECUTIONS JUNE 8 2011: We have come together as a group of Kenyan civil society organisations to express our views and concerns on the process of vetting the nominees for Chief Justice (CJ), Deputy Chief Justice (DCJ) and Director of Public prosecutions (DPP). While we have no problem with the outcome of the vetting for the CJ and Deputy CJ, the situation of the nominee for DPP, Mr. Keriako Tobiko is radically different. A series of disconcerting objections have been raised, which cannot be brushed aside in the apparent rush to arrive at a political compromise. They require thorough inquiry.

Approving this nomination without a thorough inquiry risks subjecting him to unrelenting contestation and opposition and hobbling him as DPP. More importantly, it also risks compromising the transition to greater accountability in Kenya. Concerns have been raised on many issues: on the process of Tobiko's nomination, which was opaque and did not meet the constitutional requirements of transparency and public participation in governance; on his track record as a prosecutor, which is appalling; on his integrity, which has been seriously impugned by, among others, Prof. Yash Ghai. A former Permanent Secretary has accused him of abusing his office and attempting extortion and bribery. He has been accused of facilitating an illegal land transfer and of sabotaging the prosecution of a case involving a former client in the same matter, while neglecting to declare his interests. Furthermore, he has in the past published extreme and anti-reformist opinions which, if he still clings to them, would show him to be unfit to occupy an office which is central to the implementation of the new constitution. These and other disturbing allegations are in the public domain.

As such, the COIC must make every effort to get to the bottom of them before making any recommendation on Mr. Tobiko's candidacy. Any attempt to engage in unprincipled political horse-trading at the expense of a rigorous search for the truth in these charges and others will be rejected and opposed by all legal and constitutional means. Kenyans have not come so far in order to compromise on the possibility of real change at this critical point in our history. The COIC must be aware; Kenyans are watching each one of you and will judge you according to your actions on this issue. In our opinion, the multiplicity of deeply troubling allegations from a variety of sources, -that seem to be increasing - would tend to indicate that Mr. Tobiko is very likely highly unsuitable for the office of DPP. However, the impression is gaining ground that those who have an interest in the confirmation of the candidature of Tobiko have no interest in the faithful implementation of the new constitution.

The aim seems to be to ensure that an individual with no apparent interest in, or appetite for, prosecuting serious crimes effectively, occupies the position of DPP, which is a centrepiece in the fight against impunity for crimes against humanity and massive corruption. An examination of his record indicates that perpetrators of serious crimes would have as little to fear from Tobiko Keriako as DPP under the new constitution, as they have had to fear from him to date. Specifically, the following objections- which urgently need clarification and investigation- have been raised to Mr. Tobiko's candidacy, among others:-

1) The Process:
The process leading to the identification of Tobiko as a candidate was not transparent in keeping with the values and requirements of the new constitution; as a result Kenyans have no idea how it was conducted, on what basis he was chosen as the best candidate, nor what criteria were used to select him. The Minister for Justice Mutula Kilonzo publicly criticized the decision to hold interviews in private. Has the COIC asked the panel for all information on the process, including selection criteria and all scores of all candidates? Have open questions on the integrity of process been answered? Have the reports which we are informed were prepared by the National Security and Intelligence Services on candidates been acquired where available? If there were any adverse findings did the selection panel make any attempt to address them during the interview process? What were the results?

2) How was Prof. Ghai's complaint handled by the selection panel?
Apart from the process, the public needs to understand if or how the selection panel chose to handle a complaint submitted to it by Prof. Yash Ghai, former Chair of the CKRC, in which he made serious allegations against Mr. Tobiko's character, integrity and independence e.g. repeatedly breaching confidentiality to report CKRC proceedings to the Moi government and receiving illegal allowances as a Commissioner. Has COIC been able to satisfy themselves that these allegations were properly dealt with by the selection panel? If not, what does the COIC intend to do about it?

3) Mr. Tobiko's Integrity and impartiality
Mr. Tobiko is accused of facilitating the illegal transfer of 4,000 acres of land in Maasai Mara. This land was confirmed by a ministerial report to have been illegally acquired. When named Deputy Director of Public Prosecutions he took over the prosecution of the same case in which he had acted for his former client, now the accused. He allegedly failed to declare a conflict of interest and recuse himself. Worse, he was accused of abuse of office and of compromising the cases to the extent that then Chief Magistrate ole Keuwa reportedly appealed to the Attorney General about Tobiko's interference and the danger of accusations of malicious prosecution. Complainants also appealed on Tobiko's alleged perversion of the prosecution. In its special Report of March 2006, (on page 42) the Public Accounts Committee notes that the appointment of Keriako Tobiko as Director of Public Prosecutions frustrated the progress of one of the Anglo Leasing cases; on the Forensic Science laboratory. The PAC notes that Mr Keriako, again, laboured under an undeclared conflict of interest, having acted as Chief Defence counsel in the matter, for Mr. Zakayo Cheruiyot among others.

Surprisingly, Mr. Tobiko yesterday to the COIC professed ignorance of an important report on a process that received wide international attention in major media outlets around the world. At the very least, it indicates a level of disregard of parliament and its proceedings, which should give the COIC pause for thought in terms of Tobiko's likely respect for constitutionalism, or his honesty. On the same issue, in an opinion piece in the Sunday Nation on March 1st 1998, Tobiko and another basically approve of and threaten to incite violent consequences to clerics who strayed away from the narrow religious bounds prescribed by Tobiko and engaged in politics by publicly commenting on the lack of meaningful participation in the then constitutional reform process. Is he committed to defending and upholding the constitution with these past attitudes? Do his actions indicate that he still holds them?

4) Mr Tobiko's Competence
Through incompetence, laxity or worse, Mr. Tobiko has been responsible for the failure of several key cases, among them the fraud case against William Ruto; the failure to appeal in time against the decision to quash sections of the report of the Goldenberg commission's report referring to George Saitoti, and prohibiting the Attorney General from pressing criminal charges against Saitoti in the Goldenberg affair. Most tellingly, the intervention of the ICC in Kenya is the ultimate indictment of Kenya's judicial and prosecutorial services. What more does the COIC need to consider arriving at the conclusion that very few, if any, individuals, who have been involved in the leadership of these institutions to date is qualified to lead them into the new dispensation? Promises of reform failed to convince the Pre-Trial chamber of the ICC, why should they convince us?

5) Mr. Tobiko's readiness to own his failures
Mr. Tobiko responds to the above criticism by laying blame either at the police's door or the Attorney General's or others. Thus he claims that it was the Attorney General and not he, who presided over the shambolic state of affairs in the prosecutorial services; it is the police, and not he, who failed to produce key witnesses in the Ruto fraud case and others. Mr. Tobiko is shirking his moral and professional responsibility. Passing the buck between institutions has for too long been used to hoodwink Kenyans. It should be a tactic of the past, those who use it belong to the past. In general, Mr. Tobiko did not respond to all the committee's questions and was often evasive. In conclusion, the committee must find that the selection of the shortlist of persons for appointment as DPP was carried out with so much opacity that it cannot be relied on to produce the country's next DPP. The selected candidate, Keriako Tobiko, suffers too many moral and professional afflictions to be relied on as the next DPP, and cannot therefore be confirmed to this office.

Nairobi, June 8, 2011.

Very latest developments in this story: Gladwell Otieno, Ghai and NGOs headed to court to block Tobiko

Earlier development in this story: ODM in new move to block debate on Tobiko