DPP: Why team wants Tobiko probed further

By Martin Mutua and David Ochami

Parliamentary Committee members vetting judicial nominees tied on the vote on Keriako Tobiko, then compromised to leave his fate to the House after one of them abstained.

This means Tobiko is through one more hurdle, but his fate is to be decided by the committee of the full House, which is also likely to be bound and torn by political and ethnic considerations as it happened in the committee. Parliament is set to receive and debate the names on Tuesday.

Nancy Barasa (nominee for post of deputy Chief Justice) during vetting earlier in the week.

But what was even more curious was the fact that the 11-aside vote was possible in the 27-member committee because two members stayed away, those remaining voted along the PNU-ODM party lines, and one member abstained. It was carried out in secret ballot, two members are abroad, and two others stayed away.

But in the vote cast hurriedly and mired in politics, which came on the morning after startling accusations were made against Tobiko, members of Constitution Implementation Oversight Committee overwhelmingly endorsed the other two other nominees — Willy Mutunga and Nancy Barasa.

Separately, other sources held the committee would, in its report, recommend further investigations on Tobiko. But Cotu secretary general, Francis Atwoli, who led the initial closed-door vetting of Tobiko, defended the nominee arguing he was the most qualified. "You know Kenyans sometimes like to engage in trivialities to pull down those who are rising. Let Tobiko get the job and we move on with reforms," he said.

"None of the claims against Tobiko came up before the committee, but even if they did, so far none of the accusers has provided concrete evidence to disqualify him," he told The Standard.

Tobiko survived despite earlier indications that the decision on whether the accusations against his interference with cases, manipulation of witnesses, abuse of office, and soliciting of bribes, through intermediaries, would be subjected to further investigations before a decision is taken if his name should be taken to Parliament. But Thursday it appeared the MPs chose to do one before the other.

One member said this would entail involvement of SMS log probe by the State to verify if Tobiko was in contact with his alleged intermediaries in Sh5 million bribe mission as claimed by former Commission of Kenya and ex-Telkom director Sammy Kirui on Wednesday.

It was also reported with ODM MPs backing Tobiko and PNU rejecting, and with some MPs outside claiming the nominee was a victim of choreographed mudslinging, the stakes rose.

Professional misconduct

Last evening, Mohamed Abdikadir who chaired the vetting committee, announced the vote count and added: "All names have been approved for Parliament." He said in spite of the deadlock on the DPP nominee 23 members agreed to recommend his name for approval of Parliament, with a report on all allegations of professional misconduct leveled against the nominee.

The Mandera Central MP said the vote in support and opposition to the candidates was bipartisan. "What gave me gratitude on all the issues is that the voting was not along party lines," he said.

The trickiest issue that could have influenced the voting is believed to have been a threat by some MPs that the three names had to be submitted together, three-piece-style, or they would reject them if Tobiko’s name was missing.

Another wing of the team is said to have insisted Mutunga’s and Barasa’s nomination be separated from Tobiko’s because they had convinced members on the issue of their moral and family values.

Sources within Parliament revealed the voting pattern defied the approval President Kibaki and Prime Minister Raila Odinga had given Tobiko, because the President’s side seemed to have changed positions.

ODM has 14 MPs in the committee while PNU, to which the chairman belongs, has 13. Two MPs, Charles Onyancha (Bonchari, ODM) and Joseph Nkaissery (Kajiado Central, ODM) did not vote because they abroad. Julius Murgor (Kapenguria, ODM) and Benedict Gunda Fondo (Bahari, ODM) did not show up.

CIOC is the committee that took over the vetting of the nominees following the internal wrangles in House Committee on Justice and the failure by ODM and PNU to agree on a composition of an ad hoc committee Kibaki and Raila agreed to set up.

Among CIOC members is Budalang’i MP, Ababu Namwamba, whose leadership of Justice committee is under contention.

It is said the committee chose secret ballot, despite having vetted the nominees live on television to demonstrate the process was transparent, to ‘protect’ members who wanted to vote with their conscience.

Decide fate

"Whereas there was no disagreement to endorsement for the nominees for the CJ and his deputy, there were obvious disagreement with regard to Tobiko. We decided a vote is what would decide his fate," said a source.

Sources further said the committee reprimanded the Atwoli panel for the manner it carried out its process. "The committee resolved that had the Atwoli panel carried out open interviews, the problems we encountered on Tobiko would not have arisen," said another member. The sources further hailed JSC for the way they vetted Mutunga and Barasa.

Earlier in the day, about a dozen MPs allied to Eldoret North MP William Ruto, whose defeated land fraud case a witness told the Abdikadir committee was weakened because prosecution did not call a key witness, threatened to derail parliamentary vote on the nominees if Tobiko’s investigation was delayed.

Gichugu MP, Martha Karua, is said to have led the side seeking further investigations on Tobiko. She was quoted arguing the committee ought to have conducted thorough investigation on the allegations, including the cell phone messages allegedly sent by proxies demanding bribes on Tobiko’s behalf.

She failed to prevail on a group that reasoned that there was a sense of urgency to bring the names to Parliament.

An MP who sits on the CIOC said last evening that Tobiko’s supporters within the committee wanted the allegations rejected on the basis they were not supported by evidence.

John Mbadi of Gwassi, who also sits on the CIOC, said he voted against Tobiko because "he does not represent the change we require."

He said he remains opposed to the DPP nominee and will vote against him on Tuesday. "Some members felt that Tobiko does not represent change and appointing him to this office is like allowing Attorney General Amos Wako to continue in office," said another MP.

Another member said Tobiko’s opponents wanted his approval delayed for further investigation to avoid a scandal similar to the one that engulfed the Truth Justice and Reconciliation TJRC over its suspended Chairman Bethwel Kiplagat.

And another CIOC member told The Standard that Tobiko’s opponents also felt that the Anglo-Leasing corruption cases would be in jeopardy if Tobiko were approved to lead public prosecutions.