Judicial nominees put on the public scale

By Martin Mutua and David Ochami

Kenyans tasted bittersweet fruit of public hearing, American-style, as integrity, moral standing and suitability of those nominated for top three judicial jobs were discussed live on television.

But the whole-day session was just a precursor to today’s hearing, when the nominees will publicly defend themselves against the questions raised by those who appeared before the vetting team.

It was also the day when the first three applicants for the Supreme Court’s five available positions, given that the first two are to be taken by Chief Justice and deputy, were interviewed publicly by Judicial Service Commission. The three were Justices Phillip Nyamu Waki and Emmanuel Okelo O’kubasu and University of Nairobi’s Dean of the School of Law Prof James Otieno Odek.

Nominated MP Millie Odhiambo during the vetting of judicial nominees in Nairobi, on Monday. Photo: Mbugua Kibera/Standard

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The televised vetting session by Parliamentary Committee on Implementation of the Constitution (CIOC) ended up with a tug-of-war between the church — which raised moral issues on the nominee for CJ Dr Willy Mutunga and Deputy CJ Nancy Barasa — and the civil society that fought for the two nominees.

Mutunga and Barasa, going by the protestations by church groups, will today have to defend themselves against claims they tolerate gay and lesbian groups, either through their published works perceived to be zealously defensive of human rights, or associations with groups agitating for their accommodation.

They will also have to respond to accusations their personal lives, which consist of broken relationships, may make them unsuitable as role model for Kenyan youths.

But for Mutunga specifically, he will have to respond to fears raised by the Church on Monday that his ear stud sets a bad example for the youth and puts to question his morality and probably even sexual orientation.

Bitter as they are, the claims and perceptions the nominees will have to battle confirms that vetting, which is now the route for high public offices under the new Constitution, can be both unsettling and discomforting for the nominees because the line between private and public life can be so thin as to be missed.

But the nominee for Director of Public Prosecution Mr Keriako Tobiko was not having it easy either, as his former boss at the defunct Constitution of Kenya Review Commission Prof Yash Pal Ghai came forward to accuse him of having played the role of a Kanu mole in the review sittings, and generally working for the downfall of the review process.

Ghai expressed fear this was the wrong man for the sensitive position of DPP, whose powers have been enhanced by the Constitution.

The turbulent start of Tobiko’s vetting was enhanced later by Africog Executive Director Gladwell Otieno, who argued he should not be trusted with the implementation of reforms in the Judiciary. But it was not a completely bad day for Tobiko as some groups, largely calling themselves community-based, minority and pastoralist groups pitched for his confirmation; to the point CIOC chairman Abdikadir Mohammed ruled his Maasai roots have to be considered against the twin issues of integrity and moral factor. This was because of pressure of time and the fact that the teams lining up to push Tobiko’s case were repeating themselves.

Credibility queried

On Monday was the public’s last opportunity to have their say on the three nominees, the first two having been nominated after public interviews by the JSC.

Bishop David Oginde of Christ is the Answer Ministries, who preaches mainly at Nairobi Pentecostal Church, Valley Road, Fr Ferdinand Lugonzo, representing Kenya Episcopal Conference, and psychologist Olga Karani of Kenya Christian Women of Kenya led the onslaught against Mutunga and Barasa, arguing they have been associated with matters to do with homosexuals, which churches oppose.

They poked holes in the credibility of the nominees, arguing they were unfit to lead Kenya’s judicial and prosecutorial authorities.

But several presenters, including International Commission of Jurists and one of the few surviving Mau Mau veterans Gitu Kahengeri eloquently pitched a case for them arguing they were reformists who should take charge of Kenya’s troubled Judiciary.

A section of members of the Civil Society supported Mutunga and Barasa arguing they carried the promise of for reforming Kenya’s rotten Judiciary and taking it to the next level. They included International Commission of Jurists Executive Director George Kegoro, Bunge la Mwananchi President Dina Simbiri, women representative Juliet Makokha, Kenya Anti-Rape Organisation founder Fatma Anyanzwa and Ms Gladwell Otieno, among others.

The religious leaders were also put on their defence by CIOC members who demanded answers from their presentations as to factual and non-hearsay reasons they were opposed to the two.

Ghai accused Tobiko of bearing a record of professional misconduct, including fostering "atrocious abuse" of court processes and lacking intellectual depth and discipline. He argued Tobiko was a man who was only nominated for the post of DPP under the old Constitution to "ensure he does not prosecute people in high places."

Ghai said Tobiko "ensured (Eldoret North MP William) Ruto was acquitted" in a recent land corruption matter and was inclined to abuse immense investigation and prosecutorial powers now vested in the DPP’s office, for which he was nominated by a vetting team chaired by Cotu Secretary General Francis Atwoli.

Ghai, a law professor, lawyer Peter Waiyaki and Mr Okoch Mondo, a Christian and former English teacher, refused to budge when subjected to pressure to concede that the processes through which Mutunga, Barasa and Tobiko were picked were neither unconstitutional, nor deep enough to conform to the Supreme Law.

Waiyaki and Mondo argued Tobiko’s selection was opaque and clandestine, while JSC did not probe Mutunga’s and Barasa’s core beliefs and how they could shape Kenya’s jurisprudence, probably negatively, in future.

Pro-gay jurisprudence

Waiyaki said not enough questions were asked of Mutunga’s and Barasa’s beliefs on abortion, homosexuality, tax records or whether they abuse alcohol and their employees.

The former University of Nairobi Christian Union leader, who is pro-life, declared Mutunga and Barasa would generate pro-gay and anti-life jurisprudence and pander to the pro-gay and abortion lobbies if confirmed.

Mutunga’s opponents described him as a "godless purveyor of gay rights and moral ambiguity", even though he professes Islam. Waiyaki claimed Mutunga has abetted gay rights and facilitated operations of same-sex conduct against the "traditional family values" of most Kenyans adding that he and Barasa could exploit "grey areas" in the new charter to promote "minority morality" against utilitarian values. Barasa was depicted as an intolerant advocate of abortion and same-sex relations.

Ghai described Tobiko as "totally lacking in principle and integrity" and a dishonest defender of the status quo under the Moi regime. He said apart from providing "not a single idea" in his days at CKRC, Tobiko allegedly stole and leaked draft documents and made secret visits to retired President Moi’s State House to undermine Ghai. He said Tobiko had also been entangled in a land scandal in Narok.

He argued Tobiko tainted himself by mishandling graft case against Ruto and Anglo Leasing suspects. As Prosecutor, Ghai claimed, Tobiko had prosecuted and terminated cases against suspects he had defended as a private lawyer, raising serious questions of conflict of interest.

Ms Otieno said had Tobiko, who had been DPP for several years, done his work properly, the International Criminal Court would not have taken over Kenya’s post-election violence cases. She accused him of being used to shield "big shots" in the Judiciary, including Goldenberg suspects.

Simbiri told the committee Barasa would give the Judiciary a new and better name and gave a breakdown of situations when Mutunga visited and gave free legal aid and other forms of support for women arrested for flimsy reasons.