Affidavit in Support of Tobiko Removal from Cabinet

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By Blamuel Njururi – Kenya Confidential Editor-in-Chief, Nairobi – February 4, 2018

In February when I petitioned Parliament not to approve the nomination of Keriako Tobiko as Environment and Forestry Cabinet Secretary, National Assembly Speaker Justin Muturi told me  my petition was not tabled because it had not been “authenticated” by a Commissioner of Oaths. That was a misleading answer because the one that lacked a supporting affidavit had reached Parliament on February 5, 2018 but I submitted another petition replete with an affidavit on the closing date February 7, 2018 on advice from the same Speaker.

Later I received a letter from the National Assembly Clerk  that said inter alia; “Reference is made to your petition dated 5th February, 2018 on above subject matter… We have reviewed your submission against the provisions of the aforementioned laws and advise that it does not comply with the provisions of section 6 (9) of the Public Appointments (Parliament Approval) Act 2011 as it is not a written statement on oath.”

The letter was dated 6th February 2018, a day before the closing of public petitions. It is difficult to understand why the Clerk was in such a hurry to protect nominee Keriako Tobiko and could not wait to see all petitions by the end of advertised period clearly stating petition should be received on or before Wednesday 7th February 2018, at 5.00 pm. The law does not restrict the number of petitions one can submit and in any case, I explained I  was substituting the earlier one.

I handed my new petition dated February 7, 2018, to the Speakers Secretary who was with the Clerk’s secretary at 3.30 pm, after I was escorted to the office by the head of reception on explaining to him it was to replace the earlier one. A matter I explained to the secretary who refused to sign receipt saying in Kiswahili; “Tukisaini mnatushitaki (when we sign you sue us). It is not clear whether she was acting on Speakers’ or Clerk’s instruction.

This time round, I have taken the trouble to scrutinize every loophole in terms of the relevant Constitutional provisions, supporting laws, clauses and applicable judgements to provide a water tight case. Should Parliament find it fit to frustrate the integrity benchmark and the current vigiour against Corruption the matter will be interesting to watch at other options open to Kenya citizens seeking good democratic government.

REPUBLIC OF KENYA

IN THE MATTER OF PETITION TO THE NATIONAL ASSEMBLY FOR REMOVAL OF MR KERIAKO TOBIK0 AS CABINET SECRETARY UNDER ARTICLE 152(d) OF THE KENYA CONSTITUTION PURSUANT TO ARTICLES 37, 94(1)-(4), 95(2), (5) (a) & (b) AND 119(1) OF THE CONSTITUTION

AFFIDAVIT IN SUPPORT OF PETITION

I, BLAMUEL NJURURI, a Kenyan adult resident in Nairobi County and of P. O Box 50932 – 00200 – Nairobi do make oath and state as follows:-

  1. THAT I am the author of the petition to which this affidavit is annexed and, therefore, competent to make and swear this affidavit.
  2. THAT during Parliamentary vetting of his suitability for appointment to the position of Cabinet Secretary for Environment and Forests, Mr Keriako Tobiko failed to disclose his involvement in aiding and defending irregular and illegal acquisition of thousands of acres of Maasai Mau Forest and Maasai Mara National Reserve land to the Parliamentary Vetting Committee.
  3. THAT Mr Keriako Tobiko through his Law Firm, M/S Tobiko and Associates, defended irregular and illegal acquisition of thousands of acres of Maasai Mau forest land by one Livingstone Kunini ole Ntutu – Title NAROK/CIS/MARA/OLOLULUNGA (Parcel 9678) which was part of the Gazetted Maasai Mau Forest land – information he withheld from the vetting committee even as he admitted he had interest in Maasai Mau Forest having worked with Maasai Communities earlier in his legal career.
  4. THAT Mr Keriako Tobiko aided forest land grabbing even after Narok County Council, as custodian of public land, informed him Parcel 9678 was an integral part of the Forest that was irregularly hived from Maasai Mau Forest Title Narok/CIS/Mara/Ololulunga/9470, Parcel 9470 in 1999 by his client.
  5. THAT when confronted with queries on potential conflict of interest during his vetting, Mr Keriako Tobiko informed the Vetting Committee that “on issues touching on Mau Forest he will address the matter in accordance with the provisions of the Law not withstanding the fact that he hails from the Maasai Community that has an interest in the Mau Forest”. He cleverly evaded the issue, thereby, failing to take advantage of the vetting opportunity to expound on his earlier involvement in Maasai Mau forest matters that have had disastrous environmental implications and social discontent punctuated with emotional public demonstrations and deaths caused by floods in Narok. (Attached hereto and marked ‘‘BN 1a BN 1b and BN 1c’’ Photographs of Maasai community members demonstrating National Reserve grabbing by Mr Tobiko’s client Livingstone Kunini ole Ntutu taken by the Petitioner in 2006)
  6. THAT during the said vetting and especially with regards to his suitability for the Cabinet Secretary position, Mr Keriako Tobiko told the Vetting Committee that his service at “the Public Law Institute allowed him to take charge of pastoralists legal program and engage with indigenous communities (Maasai) on Land Tenure, Land Rights and Natural Resources. Also as practicing advocate between 1993 and 2005, he dealt with complex land cases, environmental litigations some of which have informed Constitutional landmark jurisprudence.”
  7. THAT by making that statement as above, Mr. Kariako Tobiko failed to specifically disclose to the Vetting Committee that was the period he was defending cases over irregular Maasai Mau Forest and Maasai Mara National Reserve land acquisitions in Courts involving his client Livingstone Kunini ole Ntutu, whose family ended up with almost the entire forest land – a community Natural Heritage for Posterity. (Attached hereto and marked ‘‘BN 2’’ extracts Report of the Ndung’u Commission of Inquiry on Illegal and Irregular Allocation of Public Land exposing how professionals among them lawyers facilitated illegal transactions).BN 2
  8. THAT Mr Keriako Tobiko’s failure to make full disclosure placed the Parliamentary Vetting Committee at great disadvantage of proper assessment of his involvement in irregular forest land acquisitions that had the capacity to trigger massive destruction of Water Towers and subsequent environmental degradation being experienced now in Kenya vis-à-vis his appointment as Environment and Forestry Cabinet Secretary or a member of the Cabinet within the meaning of Article 152(2) of the Constitution by dint of the concept of collective responsibility of the cabinet.
  9. THAT immediately upon his assumption of office as Cabinet Secretary for Environment and Forests, Mr. Tobiko embarked on a purge of senior staff at the ministry that has since been described by Parliamentary Departmental Committee on Environment and Natural Resources as having been done “illegally and unprocedurally” following suspension of top Kenya Forest Service (KFS) officers “without regard to the KFS Human Resource Manual, the State Corporations Act, (Cap. 446) and the Forest Conservation and Management Act, 2016.” (Attached hereto and marked “BN 3” Parliamentary Departmental Committee on Environment and Natural Resources Report.)BN 3
  10. THAT Emilio Mugo who is the Chief Conservator of Forests, Boniface Simiyu who is the Deputy Chief Conservator of Forests, Plantations and Enterprise, Francis Kariuki who is the Assistant Chief Conservator of Forests (Eastern Conservancy) Embu and Cosmas Ikiugu who is the Assistant Chief Conservator of Forests (Central Highlands) officers named are the senior officers affected by the illegal purge aforesaid.
  11. THAT curiously the officers in charge of Maasai Mau Forest in Narok that has suffered the worst deforestation in the country were selectively saved from the illegal purge initiated by Mr. Tabiko upon his assumption of office as Cabinet Secretary for Environment and Forests.
  12. THAT the selective and/or illegal purge as aforesaid starkly contradicts Mr Tobiko’s pledge to the Parliamentary Vetting Committee on “Corruption at the Ministry and Conflict of Interest” over Mau Forest issues. (Attached hereto and marked “BN 4” Report of Committee on appointments on the Vetting of nine Cabinet Secretary Nominees for Appointment to position of Cabinet Secretary: 3.6 Mr Keriako Tobiko: Part on Corruption at the Ministry and Conflict of Interest, Section 35.) BN 4
  13. THAT it is clear beyond peradventure that Mr Keriako Tobiko is in breach of public trust envisaged by Chapter 6 on Leadership and Integrity, Article 75(1) of the Constitution in addition to his own assurance to the Vetting Committee that “regardless of the sensitivity of (Mau Forest) issue, he will serve the interest of the Nation and will discharge his duties and make decisions based on evidence and prevailing law,” a pledge he immediately embarked on dishonoring evidenced in the suspension of senior officers of Kenya Forest Service who were sent home “illegally and unprocedurally” and “without regard to the KFS Human Resource Manual, the State Corporations Act, (Cap. 446) and the Forest Conservation and Management Act, 2016”or given natural justice opportunity of being heard before they were condemned – some were sent home without letters – a violation of assumption of innocence and a dictum Advocates of High Court of Kenya are familiar with. (Attached hereto and marked “BN 5” National Assembly Departmental Committee on Environment and Natural Resources, Report on the Inquiry into Forest Resources Management and Logging Activities in Kenya 5.0 – Committee Recommendations- Kenya Forest Service – part f 23 – Page 49)BN 5
  14. THAT as a Director of Public Prosecutions, Mr Keriako Tobiko violated the Constitution Chapter Nine, Part 4, Article 157 the office Director of Public Prosecutions. That, in Section 11 states; In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. (Attached hereto and marked “BN 6” and “BN 7” letters in support of Mr Tobiko negligence on malicious arrest, detention and trial. Mr Tobiko failed to prevent and avoid abuse of legal process even when police refused to forward case file and report on investigations before arrest and prosecution – in order for DPP to give consent for prosecution. BN 6BN 7
  1. THAT Mr Tobiko failed in his Constitutional obligation and subjected citizens accused maliciously to face trial until they were finally acquitted after 4 painful years. (Attached hereto and marked “BN 8” Judgment in which the Petitioner, who with a young couple were acquitted after a malicious trial that lasted from November 2013 to November 2017.B 8

The letter from the Clerk of the National Assembly rejecting the wrong Petition dated February 5, 3018 and ignoring one dated February 7, 2018, is nothing short of mischief if not an inexplicable conspiracy hatched to protect Tobiko, which Corruption investigators and Courts of Law can rule upon.

The conspiracy theory can be supported by my communication with Speaker Muturi as captured on my mobile phone.

Below is an affidavit done on February 7, 2018 that accompanied by new Petition.

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