Keriako Tobiko, the nominee to be Kenya’s first independent and powerful chief prosecutor, is facing his most difficult assignment to date: securing parliament’s approval.
For more than three hours Tuesday afternoon, members of parliament interviewed Tobiko, who has served under the Attorney General as head of prosecutions for five years. In contrast, the Constitutional Implementation Oversight Committee interviewed within the same time both the nominees for Chief Justice and Deputy Chief Justice. In addition to the Tuesday session, the Committee recalled Tobiko Wednesday, after spending the entire morning listening to people elaborate on the allegations of bribery, perjury, and abuse of office they had leveled against Tobiko in writing to the Committee.
Tobiko topped the list of candidates for the post of Director of Public Prosecutions in interviews done last month. The constitution, which was passed in August last year, moved the prosecution powers from under the Attorney General to a separate and independent office. This is intended to remove the conflict of the Attorney General being legal advisor to the government as well as the chief prosecutor. Under the old constitution, the Attorney General enjoyed security of tenure, but only one of the five holders of that office in independent Kenya have used that security to act in the public interest. Tobiko has served under the Attorney General since May 2005 as Director of Public Prosecutions.
On Tuesday, the Committee questioned Tobiko on the events relating to the International Criminal Court (ICC) proceedings against six prominent Kenyans. The government is challenging the ICC jurisdiction in relation to post-election violence after the December 2007 botched poll, and he was asked what he did in his capacity as Director of Public Prosecutions to bring accountability to the perpetrators of that violence that wrenched Kenya between December 2007 and February 2008. Tobiko confidently answered that there are about 700 cases in court, of which 300 have been concluded. Of those 300 cases, just about half saw perpetrators convicted. Tobiko also said that there are 3,500 cases under investigation.
Tobiko did not categorize the crimes being tried or the cases being investigated. Considering the proceedings at the ICC, none of the cases in Kenyan courts are for crimes against humanity. In all likelihood, they are cases of individuals being tried for less grievous crimes.
Another issue Tobiko faced, together with his boss Attorney General Amos Wako, was why they seemed to conducted weak prosecutions when it came to the rich and powerful. Of particular concern to the parliamentary Committee was a corruption case against ICC suspect William Ruto. In April, Ruto was acquitted of a corruption case, primarily because the complainant was never called to testify, so there was no evidence against him.
When Tobiko and Wako were asked why the prosecution never called the complainant, a former finance manager of the Kenya Pipeline Company, they said the police never took a statement from her, so the prosecution could not call her as a witness. At one point, Eseli Simiyu, a member of the Committee, said he was “shocked” prosecutors cannot call witnesses. Another member, Martha Karua, a former Justice Minister and aspiring presidential candidate, noted that where the police or prosecution fails to call a witness, magistrates also have the power to order them to court, so the failing was not just at the Attorney General’s office.
As for the allegations of bribery, perjury, and abuse of office, Tobiko denied all of them. The allegations are serious, particularly as they come from prominent individuals who testified in public on live TV, either in person or through their lawyer.
In one case, a former top civil servant, Sammy Kirui, claimed Tobiko offered to get a corruption case against him dropped if Kirui paid five million shillings. Kirui said that Tobiko did not make this offer directly but through intermediaries he named and who sent him short text messages. Kirui told the committee that the intermediaries told him if he refused, then he would face additional counts of corruption instead the single one he had been charged with. Kirui says he refused and claimed two other counts were added to his case. Kirui gave the committee copies of the short text messages as well as the mobile numbers of the intermediaries who contacted him.
In a separate allegation, a Court of Appeal judge, Moijo Ole Keiwa, claimed through his lawyer that the prosecution at the direction of Tobiko failed to call key witnesses in a land dispute case involving the Masai Mara area, giving advantage to one party.
After hearing both sides of the two separate allegations, the parliamentary Committee said it will verify the facts independently before reaching any conclusion. To do so, it sought and received the authority of the Speaker of the National Assembly to table a report on the nominees in parliament on Tuesday, June 14, postponing the original June 8 deadline.
Given the past practice of officials facing corruption allegations being appointed to sensitive positions, the current constitution now prohibits people who face such allegations from serving in public office. The allegations against Tobiko are certainly a test of this new constitutional standard and parliament, as well as Tobiko.