Samuel N. Omwenga, Esq.
Silver Spring, MD
ALL Honorable Members of Parliament
Parliament of the Republic of Kenya
Re: Open Letter Concerning Nomination of Mr. Keriako Tobiko As DPP
Dear Hon. Members of Parliament:
I am compelled to write to you about the nomination of Mr. Keriako Tobiko as Deputy Public Prosecutor (DPP) for reasons below that I believe are shared by most, if not all Kenyans.
As members of Parliament, you have the unique role under our new Constitution of acting both as representatives of your individual constituencies, as well as providing real checks and balance against the other branches of government.
In other words, unlike in the past when your votes did not really matter as long as the President wanted things done a certain way, this has changed under the new Constitution which gives you real and significant authority to check the president or the judiciary’s exercise of their respective powers.
With this authority also comes the responsibility and expectation that you as both individuals and as body, use that authority to promote the interests of the people first, and yours or your respective parties’ interests last, if at all.
It of course goes without saying it is never a good thing to use the authority vested in you by the people for personal gain.
It is with this in mind, that I write to you in behalf of all Kenyans and urge you to reject the nomination of Mr. Keriako Tobiko as Deputy Public Prosecutor (DPP).
Although Mr. Tobiko’s name was sent to you for approval or rejection by the President upon consultation with the Prime Minister, and following recommendation by the Public Service Commission (PSC) which, through a special nomination panel, shortlisted and interviewed qualified candidates who applied for the position, Mr. Tobiko’s nomination should nonetheless be rejected 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, even with the use of a special panel, did not rise to the same level of credibility and thoroughness in its vetting of the candidates.
For example, PSC forwarded to the president the names of 3 individuals, who were selected as finalists through this process for further consideration and nomination.
However, one of the individuals, Mr. Keriako Tobiko, has a cloud over his head that most Kenyans believe appointing him as DPP will be contrary to the letter and spirit of the new Constitution, particularly taking into account integrity requirements under Chapter Six.
It is the view of most Kenyans that PSC, through the special committee that vetted the candidates who applied, should not have recommended a person with such a cloud and the president should have certainly not forwarded Mr. Tobiko’s name for approval under these circumstances that have only come to light, after the interview and after the names were already forwarded to you for approval.
To be sure, there is no question Mr. Tobiko is academically and intellectually qualified to serve as our DPP; 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 among 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 he 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 at least investigated further, if Prof. Ghai provided it with this information as he says he did.
You certainly cannot have someone appointed to an office he did not want established to begin with, if Prof. Ghai allegation is true; it just makes no sense and thus the reason PSC should have at least vetted Mr. Tobiko more about this question and at best even included a vetted explanation why the nomination should go forward and considered, despite Prof. Ghai’s allegation.
The fact that this does not appear to have been done is troubling at best, given the desire to completely clean our judiciary system and reestablish its honor, integrity and trustworthiness in delivering 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 special PSC commission 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 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 and ostensibly ditto as to Prof. Ghai.
That may as well be the case but, Honorable Members of Parliament, 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, consistent with Chapter Six of the Constitution, who cannot be linked to any past or existing corruption to be appointed Chief Justice, CIOC should have at the minimum investigated these charges before clearing Mr. Tobiko’s name for a vote.
Having not done so, and the committee having essentially punted and sent Mr. Tobiko’s name to the floor on an evenly divided vote, you now as a full house have a choice of approving a candidate with a cloud over his head to hold this security tenured and critical position in the fight to end corruption and impunity, or reject it and give the president and the prime minister the opportunity to either have Mr. Tobiko vetted afresh, or submit a new nominee.
Rejection of the candidate is in most people’s view, the best and only option.
On a related issue, most of us know and have expressed concern about complications that have intermittently arisen in connection with implementation of the new Constitution, and there may as well be others in wait from those still bent on thwarting or delaying timely implementation of the Constitution, but we have faith and confidence a majority of you will in the end do the right thing in making sure the Constitution is implemented fully and according to schedule.
We pray for you as you individually or collectively decide on how to vote on whether to approve or reject the DPP nominee as well as for all other important deliberations, decisions, and votes you must undertake in the future that equally affect our country’s progress and development.
Samuel N. Omwenga, Esq.