Why Choice of Tobiko as DPP is a Faux Pax

Impunity has been a major concern of Kenyans. Why should wananchi be tried, and convicted of crimes whether major or petty (and sentenced to severe terms of imprisonment), while the prominent, wealthy and well connected walk free however grave their offences? Repeatedly severe action is promised against those who have looted, raped, grabbed land, taken bribes or even committed murder, but nothing happens. Files are lost, reports are suppressed, witnesses disappear or recant, judges make incomprehensible decisions – all leading to wickedness going unpunished. From the Wagalla massacre to the latest piece of land grabbing the story is the same.

The causes have been identified. Apart from a certain moral decay, a culture of impunity among the ruling classes, the institutions have simply not been up to the task. When they have not been co-opted, they have been intimidated. A major culprit has been the Attorney-General. In theory independent, but in reality a tool of the government of the day, Attorneys-General have been propagators of impunity – and its beneficiaries.

The Constitutional solution includes abandoning the Attorney-General as a way to ensure justice. Although the office will still have a general responsibility for promoting the rule of law, the AG is to be mostly just the government’s lawyer, appointed - with National Assembly approval - and dismissible by the President.

Responsibilities for prosecution are now to be exercised by the DPP. Now this office it is to be truly independent. The DPP cannot be controlled by the AG. Appointment is to involve the President, but the President cannot dismiss the person. The DPP cannot even have a second term – just one term of 8 years. The DPP is not to need anyone’s permission to prosecute a case. And must not be under anyone’s control.

In the past the AG has been able to withdraw prosecutions at will, even those started by others: the ancient, much abused, nolle prosequi. Now taking over a prosecution started by anyone else is to be a power of the DPP. And he or she must not stop any prosecution without the approval of the court.

The DPP needs to be a person of solid legal knowledge, especially in the area of criminal law. Even more he or she must have independence of mind, strength of character and without any “skeleton in the cupboard” which might be used to undermine that independence. Like any other state officer, the DPP must satisfy Chapter 6 on Integrity.

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 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 becomes 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?

By Yash Pal Ghai