Yesterday, after a breakfast meeting with the chairman of the Commission for the Implementation of the Constitution, I had a chat, a quick one, and a very brief one, with Mr Gichira Kibara, the brilliant secretary of Justice and Constitutional Affairs of the Government of the Republic of Kenya
I asked him if he thought the elections will be held in August or in December 2012 or if we're looking at 2013. He smiled and said that it doesn't matter when elections will be held, but that, the country was already late and that we're likely to pay the price for that lateness.
Now, 'paying the price' may sound like a vague expression, but if you were in the country in 2007 after the polls, it is an experience you wouldn't want to re-live.
As we had breakfast, Mr Kibara, had spoken about the debate about whether or not to approve Keriako Tobiko as the Director of Public Prosecutions. He had urged caution about the wished-for suspension of the approval process until the grave allegations against Mr Tobiko were investigated.
His thinking was that, well, we can get another option. He didn't say that, so I am just speculating. If the Maasai's feel that Tobiko is their son, they can get another brilliant lawyer for the job. But surely, to push Tobiko through with the allegations hanging around his neck from people like Yash Pal Ghai and Prof PLO Lumumba is not right. It's not that the duo which worked with Tobiko in 2005 are God. No. It's just that, because they can prove that the guy is a product of political patronage and has previously been anti-reform, then, we ought to be a bit careful, or the promise of a reformed Judiciary may just be that: a promise.
Back to Mr Kibara. He said that instead of the politics, Parliament should have its eyes set on the constitutional deadline of August 26 this year, by which, new DPP should be in office.
This means that the process of appointing a new DPP can only be frozen for less than two months, that is, if it has to be frozen for investigations into the grave allegations of bribery and abuse of office against Mr Tobiko to be carried out and concluded.
Mr Kibara said that come August 26, the Attorney General Amos Wako, under whose office the public prosecution falls, will have to vacate office as stipulated in the new law. If this happens without a new DPP in office, then there will be a vacuum and that will not bode well for the nation.
The AG, under Kenya’s nine-month-old Constitution will focus on giving the government legal advice. His powers as enjoyed in the repealed Constitution –some of which are still in place in this transition period.
“The process of appointment of persons to fill vacancies arising in consequence of the coming into force of this Constitution shall begin on the effective date and be finalized within one year,” said Mr Kibara quoting section 29(1) of the Transition and Consequential Clauses.
“We have to look at the implication of not having a DPP.”
He said that many people in government are afraid of losing their jobs or having their political careers dented, and that’s why there was a sense of apprehension when it came to implementing the Constitution.
“People are scared about losing their jobs and about the future of their political careers. We have to assure them that change is good for everyone, although, some sacrifices will have to be made,” Mr Kibara said as he laid out the agenda for next week’s constitutional conference to be held in Nairobi.
There has been controversy about Mr Tobiko’s approval in Parliament, with the minister of Justice, Mr Mutula Kilonzo, saying the process has to be frozen until the truth of the matter is unearthed. There are even those who want the other nominees whose names were forwarded to the President and the Prime Minister Raila Odinga considered for the job. Others want the whole process repeated, with the public involved in handling the process.
PS: I think Mr Kibara was being a little cheeky with the stuff about us not having a DPP. If Kenyans decide to eject Tobiko, after he's been appointed, then, I think, we'll have to make do without one anyway, because the law requires that he be suspended. I guess the State Law Office has the guts to go ahead with job, with or without the DPP. Am I being ignorant in thinking that way?