We may be stuck with Tobiko till 2019

Kipkoech Tanui

Mr Keriako Tobiko is past the halfway mark to be Director of Public Prosecutions, unless Parliament extricates his name from the list of three and rejects him.

If he surmounts this hurdle, someone may still go to court to have his nomination annulled, but if nothing stops him, he will be in office till 2019 because of his is one non-renewable term of eight years!

He will have the power to, "direct Inspector-General of National Police Service to investigate any information or allegation of criminal misconduct and the Inspector-General shall comply with any such direction."

In enhancing the powers of DPP to ensure he or she is not malleable or can be subjugated to any other office or interests, we also stuffed this office with all that appertains to creature comfort. We made sure we kept DPP far away from the manipulative pole of the Executive because our sad past has made us the wiser.

To give this office holder the fierce and democratic teeth reformists fought for, and to also ensure they did not feel indebted to the President or any other person, or see sacred cows everywhere, we decreed that the DPP, "shall not require the consent of any person or authority" to commence criminal proceedings. We also decided, he or she, "shall not be under the direction or control of any person or authority" so that he would not wait for anyone’s instructions, or work while looking over his shoulder. We also gave him or her the powers, while guided by public interest, to be our guardian for, "administration of Justice" and against abuse of legal process. We agreed his or her qualifications should be those of a Judge of the High Court, and also empowered the holder to, "take over and continue criminal proceedings commenced in any court (except court martial)".

There are many other sweeping powers awaiting the holder, who we must all pray will neither be weak-kneed, opportunistic and susceptible to the scent oozing from the backs of the merchants of corruption. Without a name in mind, not even Tobiko’s or Kilukumi — who almost nearly got it until Tinga ran after President Kibaki shouting Thief!... Thief! — we set the bar for the DPP’s removal very high.

ISSUES OF TRUST

We also surrendered to the fact he could only be removed if none of us could not jump the bar we set; he would only be knocked out by the usual forces: mental or physical incapacity, bankruptcy, gross misconduct, incompetence (which has to be proven beyond doubt!), and subversion of his or her powers. The drafters were gracious enough to leave out death, because its consequences are obvious.

What we need to ask ourselves is whether we can trust Tobiko with these powers and latitude, given the startling allegations so far made against him by those who claim to act in good faith, and who say they are, in the name of civic duty, warning us he is not who we think he is. And when deciding this, should an independent investigative process not have guided us? We also need to ask if it is fair to defend or pelt him with rotten eggs just because someone claimed he subverted justice or was linked to an extortionist ring.

We also should ask if it is enough to give him the job because he is Maasai moran in a suit, and would, therefore, ensure the interests of minorities are secured in job distribution. If we have been so keen to achieve this balance, why have we not demanded the same to be effected in national security organs which can be run well in Kibaki’s mother-tongue? And if it was the preserve of the minority group, did we scrutinise him against other sons and daughters from the Sengwer, Somalis, Ilchamus, Dorobo, Goans, and Wahindis etc?

Again, those who see him as their friend, even if only because of overlapping political and ethnic interests, feel they can trust he will not change till 2019, or that they will never be vulnerable to a flawed justice system in future? Why did the vetting committee decide to vote on DPP just hours after listening to claims for and against him, as well as his own defence, before allowing further investigation into claims made against him? Did they have to vote on basis of their personal whims, conclusions and hunches? By the way, how did the Francis Atwoli committee vet him and why did the principals pick his name from the list of three?

I still believe Tobiko is innocent until proven guilty and he is a good man until I see evidence to the contrary. Before I see that, I am not competent, and I believe the MPs were not, to judge him innocent or guilty, rogue or gentleman, prey or victim. But one thing I know, he was prematurely cleared because party politics and ethnic rivalries seeped in.

I also suspect a fully-fledged probe against him was terminated as efficiently and cruelly as it was claimed he did some cases that came his way. I am sure, just as the committee was split in half, for and against him, so shall the fight for and against Tobiko in Parliament.

I just wonder if at the end Tobiko would still feel it was worthwhile allowing himself to be dragged through this muddy patch because he may end up in office clean in legal terms, but lacking the confidence Kenyans wanted to see in a DPP — if he gets it! But I also know for Dr Willy Mutunga and Ms Nancy Barasa the claims against them bore the weight of paper compared to those against Ole Tobiko.