The Principals are about to make a decision on the appointment of the Director of Public Prosecutions (DPP): just as important as the appointment of the Chief Justice. In fact the persistence of impunity depends more on the DPP’s decisions than on the CJ’s judgments.
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 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?
Yash Pal Gai
About the Author
The arch patron of impunity has seen a CJ and D/CJ of his choice can’t be appointed after the PM put his foot down. Now he sees how he can circumvent the system by white washing the former DPP thru’ the JSC nomination. Note that the principal witness in the Ruto land scam who was appointed to a top position by Ruto was not called by the DPP to testify. Though things will not be as rosy for him as in the past, Tibieko, if uncheked can try to defeat the course of justice. Imagine what he can do if the ICC were to refer the PEV cases back to Kenya based of blatant lies by the govt about a soon to be reformed judiciary and police, and the already ‘ongoing’ investigations by the present PNU police set-up! In that case I wouldn’t be surprised if the PEV mayhem turns out to be a creation of the media and the human rights groups as all wiynesses will vanish into thin air and graves!
kmmohan. thanks for seeing through the white wash. Kenyans have been duped so badly. we get a good CJ and deputy but they may turn out to be adiminstrators. lets wait and see what the supreme court and other courts bring. Tobiko is kilukumi’s close friend ally. it was just a casee of the arch patron replacing one with the other. Wako made sure the selecting panel had no controversial people all Yes Men. tobiko covered for Atwoli when he burnt his wifes car after a disagreement. The next DPP will be more powerful than the AG. Ruto’s comments on Mutunga’s earing are just to muddy waters so that people focus on his anti-mutunga remarks and debate on the earring while Tobiko sails through. In the past, the Dpp was used to frustrate justice and with Ruto’s man Tobiko in the office, PEV cases and any other scandles are gone with the wind. Tobiko’s wife is Rutos cousin. PLO lumumba cannot touch anyone without the DPP’s cooperation. Please Kenyans wake up and focus on the DPP nominee before it is too late. the dpp nomination was rushed and announced together with the CJs so that the focus would not be on Tobiko. Stage two was to critisize Mutunga, and voila Tobiko sails through. We are entering an age of high polical intrigues.
Keraiko is Kibaki’s bootlicker and will not improve the prosecutor’s office.
Keriako Tobiko is a nut-case a person who cannot make any descision on his own.He must ask his Boss (Wako) He is the Most Corrupt Prosecutor, Primitive ,arrogant , foolish,and above all the man lacks Juridicial tempo.Keriako has been proved before and the easy going Prosecutor doest fit any govt job in a New &modern Kenya.If He is left untouched The next govt must remove him regardless tenor which is invalid with such a failed prosecutor miserably in Kenya.
I don’t personally know Mr. Tobiko but I find this article by Prof. Gai too personal and almost malicious. I mean, Mr. Tobiko just like the good Prof. is no angel, but why are we so quick in joining the Professor in meting out “mob justice” to Mr. Tobiko? Let’s hear Mr. Tobiko’s side of the story before we crucify him! Bwana Tobiko speak up!
Tobiko on the spot
Eliud Biegon, Kapsabet. 1 comment collapsed
Collapse Expand If Prof Yash Pal Ghai, a valiant and honest participant in Kenya’s reform process, gave this information to the Atwoli led committee and it was not acted on, then we have to question the credibility of that committee as well as our principals for ratifying Keriako’s name. These are indeed weighty accusations that border directly in Tobiko’s ability to prosecute the very critical role of DPP. For the uninformed, the DPP is more like the guardian of public interest in law. He must be proactive, consistent, public-spirited, knowledgeable, very independent minded, and of demonstrable integrity. If Tobiko was among the gang in CKRC that made life had for reformers (we always heard these romours in public fora), then he does not deserve to be our DPP. Remember Kenyans that Tobiko was given his job, after Philip Murgor (another fearless, public-spirited man) was sacked for stepping on the toes of purveyers of impunity. I remember Tobiko answering back to Murgor (after Murgor had attempted to warn him about these lords of impunity) “Do not teach me how to do my job”. I, therefore, with all due respect to him observe that Mr. Keriako Tobiko does not deserve to hold the office of the DPP in a Kenya that so seriously needs reforms and reformers. integrity. If Tobiko was among the gang in CKRC that made life had for reformers (we always heard these romours in public fora), then he does not deserve to be our DPP. Remember Kenyans that Tobiko was given his job, after Philip Murgor (another fearless, public-spirited man) was sacked for stepping on the toes of purveyers of impunity. I remember Tobiko answering back to Murgor (after Murgor had attempted to warn him about these lords of impunity) “Do not teach me how to do my job”. I, therefore, with all due respect to him observe that Mr. Keriako Tobiko does not deserve to hold the office of the DPP in a Kenya that so seriously needs reforms and reformers.
Prof Yash Pal Ghai is one of the most respectable kenyans of all time.The allegations raised about the integrity of Tobiko Keriako are very serious.If mr Tobiko is appointed DPP it appears like we will live with impunity for 8 more years when his term ends..Kenya cannot afford to make this kind of mistake.
can CIOC ask Keriako Tobiko if he took a bribe from Jimmy Angwenyi to tamper with a case where Jimmy Angwenyi killed a youth during 2007 general elections? the widow has not seen justice for almost five years now and keriako says he has not seen the file to date.
dennis kirioba
its too late for keriako’s critics,please leave him alone ,am confident that he will redeem his image. Prof. be sincere, you wanted the job but it was meant for Tobiko this time round.