Parliament’s Historic Vetting of Constitutional Office Nominees And Lessons Learned

15 Jun

I watched earlier this afternoon live the somewhat contentious debate in Parliament regarding the CIOC report on the nomination of Dr. Willy Mutunga, Ms. Nancy Baraza and Mr. Keriako Tobiko as Chief Justice, Deputy Chief Justice and Director of Public Prosecutions, respectfully, and have the following observations:

We are first of all witnessing history in all of these happenings since passage of the new Constitution so, as Hon. James Orengo and Hon. Abdikadir reminded the members, the debate about these nominations was historic and so was the vote on the motion to approve the nominations.

Our children and their offspring will never know, other than reading in history books, that our Parliament was once before just rubber stamp for what the President wanted done.

That’s all changed now and so much the better for our country.

Having said that, however, the debate and vote on the nominees has revealed something of a surprise to me and that is, Parliament is proceeding with the exercise of its newly reconstituted powers without aligning its procedural rules with the new Constitution, with the net outcome being its voting and approving of Mr. Tobiko can be persuasively argued to be at least inconsistent with the new Constitution.

More specifically, in proceeding to approve the nomination of Mr. Tobiko in the manner it has, Parliament has essentially defied the requirements of Chapter Six of the Constitution, for all practical purposes and intent.

First, it goes without saying, and one need not be a genius to conclude it is a mistake to bundle three candidates in one basket and ask Parliament to accept none or reject all.

This just does not make sense at all, unless, of course, it was the specifically intended that way, in which case the latter would have been and has turned out to be a brilliant scheme, if rejecting or approving all three candidates as bundle was the objective.

Either way, this procedure of vetting and voting on the nominees in Parliament was inappropriate and amounts to the same thing as the tactics past presidents utilized in shoving down our collective throats, people the public did not want serving in these important positions, less worse only in the appreciable and saving difference those previously appointed by fiat were wholly unqualified in every respect, in comparison, including academically and intellectually.

But this need not be; we have certainly reached a point in our maturing democracy where thoroughly vetting candidates for these important offices, indeed, to all offices should not be something to shy away from, regardless of how much we admire the individuals in question, or how stellar their resumes may otherwise be.

The allegations raised about Mr. Tobiko may or may not be true.

However, by confirming Mr. Tobiko without even as much as interrogating the evidence put forth as to these allegations, Parliament has essentially said it’s okay to serve with a cloud hanging over your head regarding your integrity, which is clearly in contravention of Chapter Six of the Constitution.

Second, even though it’s understandable and, indeed, it is desirable that CIOC be vested with complete authority, other than the final up or down vote, of guiding Parliament in the process of vetting of nominees, among other things, the manner in which the committee handled these nominations leaves a lot to be desired.

Having been evenly divided—and I have something to say below about the one member who abstained—the best thing CIOC should have done, given these circumstances, was to unbundle the nominees, with the Speaker’s approval, if necessary, send the two nominees with a majority support (Mutunga and Baraza) to the full house for an up or down vote but seek further vetting of Mr. Tobiko.

It could not have taken but a day or two to investigate the allegations made against Mr. Tobiko and, if upon such investigation the committee concluded there is nothing to the allegations, then the committee would have forwarded his name with its findings to the full house for approval or rejection, complete with its own findings as to the allegations.

Parliament would then have had an informed vote about Mr. Tobiko.

It would have been that simple but Parliament chose a path that leaves us with either a very clean DPP with nothing to be concerned about his integrity, as he embarks on the important task of leading the fight against corruption and impunity, or he is not and therefore setting the stage to second-guess him on everything he does from the day is sworn to the day he completely dispels such a concern, which may not be possible at all.

Third, no member of a committee should ever be allowed to abstain on a vote; that’s an abdication of responsibility.

A perfect example of this, is the 11-11 tie in the committee vote on the nominees, which was the result of one member abstaining. Had the member voted either way, the committee would have either rejected the nominees or approved and sent to the full house a report less confusing as to what it meant or said as it did.

Given its conflicting message, an amendment was promptly adopted that striped the report of its recommendation for Mr. Tobiko to be further investigated before taking office, which (the recommendation) in by itself made no sense.

How do you say to someone, “you are hired but before you assume office, I need to investigate to make sure you are not all these bad things I am told you are?” Doesn’t common sense dictate this is something you need to do before extending the offer of employment?

Yet, this is precisely what CIOC recommended, namely, approve Mr. Tobiko but let’s investigate him further after you approve him to determine if the allegations made about him are true or not.

Again, it is understandable time is of the essence in approving these nominees but one cannot ignore provisions of the very Constitution we are trying to implement just because there is a deadline to meet; yes, deadlines must be adhered to in implementing the Constitution but not at the expense of the quality of what is produced in the process.

A few days’ delay would not in the end make a difference, if such delay removes the doubts over Mr. Tobiko’s appointment as DPP.

Third, the committee should not have submitted its report when it was so evenly divided with one member abstaining. The member should have been forced to vote one way or another and have the committee take whichever position called for by his or her vote.

That’s what being a committee voter means in an important committee such as COIC; you exercise your right to vote one way or the other and let the chips fall where you wish they fall, abstaining only means you are afraid and can’t take a position because you wish not to be associated with it, one way or the other, which in turn defeats the whole purpose of you being there as a member of that committee.

I was, however, not sure how to react other than being genuinely surprised when the abstaining member, Hon. Rachel Shebesh, disclosed in parliament she was the abstaining vote and offered the reason was because she “had no reason to vote for or against” Mr. Tobiko and was thus counting on the rider recommending further investigation in the final vote.

The rider was, of course, promptly stripped from the report as surely Hon. Shebesh should have anticipated; or did she not?

Hon. Shebesh did say after the amendment was introduced, that she will vote “no” against Tobiko but as she has now found out, if she did not anticipate this in committee, her one vote on the floor almost means nothing especially on a voice vote like the one done in the final vote unlike in committee where the vote of each member counts more than on the floor.

Had Shebesh cast her “no” vote in committee, we’ll have likely had an outcome more consistent with the Constitution than what we have now, especially as it regards to further vetting of Mr. Tobiko to confirm or reject the allegations made against him.

She did not and therefore hers may as well be the historic vote that confirmed Mr. Tobiko as is.

Third, the voice vote taken on this historic vote was inappropriate. I cannot think of something more undemocratic than a voice vote. I know it’s a stable and favorite in almost all parliamentary schemes but it is nonetheless undemocratic.

Members should be forced to take a yes or no vote and be counted as to which, especially on an important vote such as this, rather than having everyone hiding under a voice vote they cannot be held accountable to, unless they are on the record one way or the other.

Finally, but not least, Parliament having approved these nominees, the nominees are all but certain to be appointed by the president.

That being the case, I congratulate Dr. Mutunga and Ms. Baraza and wish them well as they embark on this historic journey of reforming the judiciary.

I also congratulate and accept the nomination of Mr. Tobiko, with reservation, only because of the concerns that have been made against him that even he would agree would be better for everyone if cleared before he assumes office.

All is not lost, though.

Now that he has been approved for nomination, and assuming the president goes forward and appoints him as DPP as is expected, Mr. Tobiko will serve himself and the country well and remove any doubts as to his commitment to ending corruption and impunity by taking the fight against corruption and impunity to those some believe are quietly and behind the scenes, heavily pushing for his appointment in hopes he spares them the might of government power in punishing these evils, if and when brought to bear.

In sum, save for those who for obvious reasons wish he does not succeed or if he does, to do so negligibly, we all hope and pray that Mr. Tobiko is successful in carrying forth his duties and responsibilities notwithstanding the manner in which he has been nominated.

In other words, let Mr. Tobiko prove his critics wrong by doing the job we expect our DPP to do, consistent with the Constitution and our desire to rid the country of corruption and impunity.

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Posted by on June 15, 2011 in Politics


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