Puzzle Of High Court Delay In Suit On Tobiko

The appointment of Keriako Tobiko as the Director of Public Prosecutions received considerable publicity because of the importance of the office to the rule of law and the ending of impunity and the fact that many people (including me) raised serious objections to his appointment. When all attempts to question his qualifications for the post and the deficiencies in the procedure for appointment failed (before the nominating panel, the Principals, and Parliament), some groups (whom I assisted with an affidavit) filed a petition to the High Court. The petition was filed in June 2011, but due to various adjournments despite its constitutional importance, the case was not heard until October.

The hearings were concluded in early November 2011. Now nearly eleven months since the filling of the case, the three judge bench has not given its decision. This is both puzzling (as the legal issues were not complicated and much of the evidence of the petitioners was not challenged) and worrying. The establishment of the independence of the office of the DPP and the removal of any prosecutorial powers from the Attorney General were seen as critical to the ending of impunity, fair enforcement of the criminal law and the safeguarding of the constitution. Wako and his predecessors had totally abused their role as prosecutor.

There were some fundamental problems with the appointment of Tobiko. The Panel which nominated him was established without any proper consultations, and included Wako, a long time friend and colleague of Tobiko, and described by Professor Alston the UN Special Representative on extrajudicial killings as the “embodiment of impunity”. Also included was the PS for security in President’s Office, with clear partisan interest in prosecution matters, and Akide, chair of the Law Society whose appointment was queried by many members of the Law Society itself. Akide said later publicly that the committee had dismissed my complaints incriminating Tobiko simply because he and I were deemed to be on bad terms (so much for due process from the leader of the LSK!). This line was later taken by some MPs when the matter reached the National Assembly, who has refused to consider the truth of my complaints.

At least Wako and one of the Principals knew of Tobiko’s attempts to disrupt the CKRC and Bomas processes, and his steadfast opposition to constitutional reform. Considerable evidence was presented to the parliamentary oversight committee (including by PLO Lumumba, a high court judge, a former DPP, and myself) of this, and of abuses of prosecutorial power by Tobiko. Although many members of that committee expressed their opinion that -- in view of very serious allegations with considerable plausibility -- the committee must investigate them before deciding, the committee proceeded very speedily to a vote, in which it was evenly divided. The Committee Chair, and the Speaker, ignored the rule whereby in the event of even vote, the motion is lost. The National Assembly therefore voted as if the committee recommendation was in favour of the appointment, in breach of its own rules.

The National Assembly did not distinguish itself in other ways either. When KJPT (representing a cross section of civil society organizations) tried to present a petition, the National Assembly refused to accept it unless it was sponsored by an MP (those who were approached refused), contrary to Art. 119 of the Constitution. There seems to have been almost no discussion in the CIOC and on the floor of the House of the reasons underlying constitutional reform and in particular that regarding the office of the DPP; nor of any national values and principles (yet the appointment was made as part of implementation of the Constitution). On the contrary that distinguished parliamentarian and minister, Ntimama and some of his colleagues had earlier warned the PM that if he vetoed Tobiko, not a single Masaai would vote for him. There were numerous allegations that a large sum of money had changed hands to secure the appointment (alas, not an unusual feature of the Bunge, dubbed by an MP as the largest auction house in the country).

It is because all these measures to apply the principles and rules of the constitution to the appointment of the DPP had failed, that some groups sought the assistance of the judiciary, which has been given very considerable responsibilities and powers to safeguard the rule of law and safeguard constitutional value which include integrity, transparency, participation and due process. In an almost identical case in South Africa the Supreme Court of Appeal had unanimously invalidated President Zuma’s appointment of the DPP.

I write this article principally because of the failure of the judges in this case to uphold constitutional principles of integrity, of justice which the constitution says “shall not be denied”, and the protection and principles of “the purpose and principle of this constitution”. By taking such a long time to decide on a matter which has crucial implications for the continuation of impunity and abuse of power, the judges have enabled Tobiko to exercise the powers of the DPP when people are crying for justice and fairness—and instances of corruptions have increased manifold. The Constitution has provided for a major reform and strengthening of the judiciary as the ultimate safeguard for the people. In this case at least the judges have failed to safeguard the constitution and uphold justice by their delay.

Yash Ghai, a former Chair of the CKRC