Tuesday, June 28, 2011



By Jerry Okungu

Nairobi, Kenya

June 15, 2011

The world over, those who seek public offices must stand the rigours of public scrutiny. When their characters and integrity are questioned or doubted, whether false or not, more often than not they opt to decline the job.

A few years ago, Garry Hart an American presidential candidate dropped out of the race because someone had accused him of promiscuity. He didn’t have to wait for a hearing to deny claims.

At another time another American sitting president, Richard Nixon resigned from office rather than wait to be impeached by the Senate. He had been accused of masterminding the Water Gate break-in at the headquarters of the Democratic Party.

In Kenya, it is the first time we are experimenting with vetting public officials. It is important that we get it right the first time so that a positive precedent can be set. We cannot carry out public hearings and vetting by constitutional offices based on advertised merit then bend backwards and introduce mundane issues such as minority tribes and political party memberships. We cannot even think of rewarding thieves and corrupt officials, people who have taken this country to the cleaners just to earn their communities’ political backing at the next elections.

Looking at the people so far vetted to occupy the positions of Chief Justice, Deputy Chief Justice and the five Supreme Court judges, one can see that obviously Kenya stands a better chance of rebuilding the reputation of its judiciary system. However, a strong a credible judiciary without an equally credible prosecution office is obviously a non-starter. It is the reason why for the last 20 years, corruption, graft and theft of public funds have flourished in the country. We had an attorney general who would do anything in his powers to protect the Executive at the expense of the poor and dying public.

Kiraiko Tobiko did not apply for the DPP as a Maasai or as a representative of the minority tribes. If that were the case, he didn’t have to hand in his colourful CV. He applied for the job as an individual Kenyan and as an individual Kenyan, he should either have got that job or not.

Charges against Tobiko are weighty indeed. They cannot be taken lightly. Senior and credible Kenyans have publicly accused him of his short comings.

If he has had connections with the KANU regime, chances are, he will not be the right person to prosecute cases that Amos Wako failed to prosecute for 20 years when KANU held sway. And remember, during the referendum debate the bulk of the water melons were KANU diehards who feared that a new constitution would not auger well for their past dealings.

However, the most damning of all was the fact that Kiraiko Tobiko is alleged to have used proxies to solicit a bribe of Ksh 5 million from one Mr. Sammy Kirui, a former permanent secretary in Local Government Ministry.

When you have a sitting judge, a sitting KACC Chief Executive and a respected scholar like Yashpal Ghai accusing one individual, the best that a vetting committee can do is to defer the matter for more in-depth investigations. You cannot as a Parliamentary Committee or even Parliament just gloss over those allegations and wish them away.

The truth of the matter is that Kiraiko Tobiko’s character is tainted beyond redemption. Kenyans will not trust him to address the many challenges that have dogged the prosecution of known criminals in this country.

Looked at another way, it was the height of hypocrisy and an affront to the public when the same committee that picked Willy Mutunga, Nancy Baraza, Njoki Ndungu, Smokin Wanjala, Jackton Ojwang, Philip Tunio and Mohamed Ibrahim could actually pick Tobiko for the DPP job knowing full well the concerns of the public. More importantly, knowing that Kiraiko Tobiko had not delivered tangible results since he joined the State Law office in 2005

Watching the debate in Parliament that sought to approve the three nominations, one could not help but notice a very high level of mediocrity, deep rooted selfishness and allegiance to the tribe or the so called minority tribes otherwise known as the marginalized. These traits derailed an otherwise crucial debate that should have been conducted with more decorum.

Only an immoral parliament, only an immoral society can sweep such serious allegations against a person about to hold a very important office that will impact on 40 million Kenyans. Dispensing with justice is no laughing matter.

Having said that, Kenyans of good will must salute Hon Mutula Kilonzo, Martha Karua, Millie Odhiambo, Boni Khalwale and Hon Mbandi for refusing to be swayed by the majority in the House. They stood their ground and opposed Tobiko’s approval before further investigations.

In approving Tobiko’s appointment, Parliament has failed Kenyans and in the process given impunity, graft and bad governance thumbs up. Now we must wait for another eight years to reform the prosecution unless Tobiko is thrown out through another legal court process.