Samuel N. Omwenga, Esq.
Silver Spring, MD
H.E Emilio Mwai Kibaki, C.G.H, MP, President of the Republic of Kenya
Rt. Hon. Raila Amolo Odinga, E.G.H, MP, Prime Minster of the Republic of Kenya
Re: Open Letter Concerning Nomination of Keriako Tobiko As DPP
Dear Mr. President, Mr. Prime Minister:
I am compelled to write to you about the nomination of Mr. Keriako Tobiko as Deputy Public Prosecutor (DPP) for reasons that I believe are shared by most, if not all Kenyans.
Before I share those reasons, let me first express our continued appreciation for the commitment and commendable work you both have done and continue to do regarding passage and implementation of our new Constitution.
I know and have written to you before about complications that have risen along the way in connection with the implementation process, and there may as well be others in wait from those still bent on thwarting or delaying timely implementation of the Constitution but there is not a single person in the country who does not believe that the two of you have all of what it would take but your individual will and desires, to have the Constitution implemented according to schedule.
If both of you have at heart, and are guided by a desire and will to do that which is right for the country as a whole, and not merely what is good for your respective political or other less beneficial considerations as far as the country is concerned collectively, then there is not a decision or action you both can agree and undertake that would garner less than a majority or even super-majority of support from across the country.
I say this fully aware there are those who would in some cases prefer that you agree to do only that which benefits their narrow interests, which are even narrower than partisan or tribal interests, but those are few, even though in reality they are potent and often the major obstacles of reform who you therefore must be mindful at all times and thwart their efforts, if our country has a chance to implement the new Constitution and enjoy true reform.
Indeed, you have demonstrated this is an achievable objective for both of you in events leading to the ongoing vetting of candidates for the important constitutional offices, chief of among them being the Chief Justice of our new Supreme Court.
I have previously written and thanked Your Excellency for taking the bold and difficult decision to reverse yourself and allow appointment of these important officers as required under the new Constitution.
This was no doubt, not an easy decision whichever way one looks at it but neither was there losers in the outcome as those who preferred that you stick with your original decision would have everyone believe, even looking back.
Everyone is clearly a winner because of that decision, which in most people’s view reinforces what I have stated above and previously and that is, you are both, indeed, committed, and believe in the implantation of the new Constitution much to the chagrin and even disdain of those who prefer status quo.
We sincerely thank you for your quick and bold action you took at the critical time you did and so will generations to come as the beneficiaries of full implementation of this historic document that we are already witnessing and getting just a taste of what it would be like for our country when it is fully implemented.
Which brings me to the reason I am writing to both of you this time and that is, the ongoing vetting of Mr. Keriako Tobiko for appointment as DPP.
Although you have sent Mr. Tobiko’s name to Parliament for approval or rejection, following recommendation by the Public Service Commission (PSC), his nomination should be withdrawn for several reasons:
While everyone agrees the Judicial Service Commission (JSC) did a terrific job in vetting candidates for Chief Justice and Deputy Chief Justice and recommended two superb candidates for nomination in Dr. Willy Mutunga and Ms. Nancy Baraza, respectfully, PSC did not rise to the same level of credibility and thoroughness in its vetting.
For example, PSC through a special committee shortlisted, interviewed and then forwarded 3 names to you from which you were in turn to select and submit to Parliament your nominee for approval or rejection.
Unfortunately, however, the candidate you have nominated from the list recommended by PSC has a cloud over his head that most Kenyans believe going forward with his nomination and appointment is contrary to the letter and spirit of the new Constitution, particularly as regards integrity requirements under Chapter Six.
To be sure, there is no question Mr. Tobiko is academically and intellectually qualified to serve as our next Attorney General (AG); the question is whether he satisfies the requirements of Chapter Six of the Constitution.
Most Kenyans strongly believe he does not for a number of reasons, chief of them being information provided by, among others, Prof. Yash Ghai, one of the experts retained to advise the country on the new Constitution.
Prof. Ghai, according to the East African Standard Online alleges that Mr. Tobiko “engaged in a campaign to disrupt the work of the commission to prevent the drafting and adoption of the new constitution” when Tobiko was a commissioner at the Constitution of Kenya Review Commission (CKRC), including breach of confidentiality rules governing the commission.
This is a serious allegation that PSC should have investigated further, if Prof. Ghai provided it with this information as he says he did.
The fact that this does not appear to have been done is troubling at best, given the desire to completely clean the judicial system and reestablish its honor, integrity and trustworthiness to deliver justice according to the law, not according to who has the deeper wallet or even a wallet at all as we have come to know it.
If this was all the adverse information the PSC considered and overlooked or did not consider at all, a timid case may be made to go forward with the nomination of Mr. Tobiko, but there is more:
According to the same paper, Mr Philip Murgor, who Mr Tobiko succeeded as current DPP, said “there was no way Mr Tobiko would be innocent of claims of conflict of interest in handling the Anglo Leasing case involving former PS Zakayo Cheruiyot.”
Former Local Government PS Sammy Kirui, for his part, told the Constitution Implementation Oversight Committee (CIOC) that Mr. Tobiko “used proxies to demand a Sh5 million bribe from him.”
According to the paper, Mr Kirui is facing three charges in connection with the fraudulent acquisition of cemetery land but the former PS claims Mr. Tobiko “added two counts after he failed to bribe him.”
Mr. Tobiko for his part, says these allegations are false and that Mr. Murgor has an ax to grind, ostensibly ditto as to Prof. Ghai.
That may as well be the case but, Mr. President, Mr. Prime Minister, these are serious allegations which on their own weight, given the nature and character of those making the accusations, given the history of the judiciary, and particularly given JSC took the approach and has been loudly applauded for having done so and nominated someone who cannot be possibly linked to any past or existing corruption to be appointed CJ, consistent with Chapter Six of the Constitution, mandate that Mr. Tobiko’s nomination be withdrawn to avoid even the appearance of impropriety and instead nominate someone the country as a whole can say is clean and otherwise has no baggage past or present to be DPP as we embark on the critical process of cleaning and reforming the judiciary.
In the view of many, PSC should be reconstituted and start the whole process over to nominate a new candidate for AG and if that’s not agreeable to you for one reason or another, then PSC should simply send the two remaining of the original 3 finalists for the position and have you pick one of them to send to Parliament, based on who between the two is better suitable to be appointed DPP consistent with the new Constitution and in the interest of the country as a whole.
We pray for you as you continue to make this and other critical decisions you must make affecting our country’s very being and history.
Samuel N. Omwenga, Esq.