President William Ruto's appointment of Director of Public Prosecution Noordin Haji as the new head of the National Intelligence Service (NIS) has set in motion the battle for his successor.
Seasoned criminal lawyers and senior figures at the Office of the Director of Public Prosecution are angling to take over from Haji whose eight-year contract was cut short when the President made him the chief spymaster.
Under Article 157 of the Constitution and the ODPP Act, the president is supposed to constitute a panel which will advertise the vacancy, conduct interviews and forward the name of the nominated candidate to the National Assembly for vetting before a formal appointment.
The Constitution provides that those seeking appointment to the office of DPP must have the same qualifications required for appointment as a High Court judge. This means the candidates must have ten years of experience as a superior court judge, professionally qualified magistrate, or at least ten years of experience as a distinguished academic or legal practitioner.
According to lawyer Duncan Okatch, players in the criminal justice system are expecting a change in recruitment of the new DPP to make the office professional.
"We want a DPP who is professional, someone who can go to court and argue cases. It should be a person who has had experience in litigating and have the feel of what is involved and not just a person who sits in the office," said Okatch.
He added that lawyers want to see an independent DPP who only approves strong cases with high chances of success to end the culture of the office being used to settle political and personal scores like what happened during Haji's tenure when people were dragged to court for political reasons.
Even before the Public Service Commission advertises the vacancy, several high-profile names have propped up as Haji's possible successors.
Deputy DPP and the Secretary of Public Prosecution Dorcas Oduor leads the senior figures at the DPP's office who are likely to take over from Haji should she declare her interest in the position.
Ms Oduor is a career prosecutor who began her journey at the Attorney General's office and was among the pioneers of the new autonomous prosecution office after it was created by the 2010 constitution.
This will however not be the first time she will be applying to be the top prosecutor having gone through the interviews in 2018 but lost to Haji who became her boss.
Other senior prosecutors who could succeed Haji are Victor Mule, Alloys Kemo who is the Deputy Director in charge of prosecution training and Emily Kamau who is in charge of the DPP's Inspectorate, Quality and Assurance.
Also on the list are Jacinta Nyamosi, the Deputy Director in charge of offences, and Grace Murungi who is the head of international and emerging crimes. Others are Mr Jacob Ondari, Mr Alexander Muteti and Mr Nicholas Mutuku. Lawyer Kioko Kilukumi is sworn in as the lead counsel to Shakahola Commission of Inquiry at the Milimani Law courts on May 9, 2023. [Jenipher Wachie, Standard]
Outside the prosecution's office, several top criminal lawyers are mooted as possible candidates to succeed Haji, among them is Senior Counsel Kioko Kilukumi, an accomplished criminal lawyer who narrowly missed out on being the top prosecutor after being appointed by late former President Mwai Kibaki in 2011. Kilukumi was knocked out after the High Court declared the appointment unconstitutional.
The setback did not dampen his spirit to be one of the country's top and finest criminal lawyers, an experience he has nurtured for over 30 years in legal practice.
Kilukumi has a Bachelor of Law Degree from the University of Nairobi. He started his career at Kaplan and Straton Advocates in 1990 before moving to Swaziland as a public prosecutor and returned to the country in 1996 to establish his law firm.
Kilukumi is considered one of President Ruto's trusted lawyers having represented him in criminal cases including when the president was charged for allegedly selling Ngong forest land when he was Minister for Agriculture. Kilukumi also represented Ruto at the Supreme Court during the presidential election petition last year.
Just like Kilukumi, lawyer Katwa Kigen is another president's lawyer who could be angling for the DPP's position.
Katwa is an accomplished criminal lawyer who has had a stellar career and is among the team that represented the president during his trial at the International Criminal Court for crimes against humanity emanating from the 2007 post-election violence.
With 27 years of legal experience, Katwa has represented both the lowly and mighty in criminal cases with high success rates.
Senior Counsel Taib Ali Taib who was appointed as a special prosecutor in high-profile corruption cases could also be in line to succeed Haji due to his experience in the criminal justice system.
Lawyer Demas Kiprono stated that whoever ends up being the next DPP must ensure the office is independent and resist attempts by the executive to control it.
"We want someone who will adhere to the rule of law and be able to use public resources to effectively prosecute cases. He must also be independent of executive pressure," said Kiprono.
According to legal experts, the DPP's office is one of the hottest seats in the country given the power they have in determining the freedom of a person by approving their prosecution and that there should be no mistake in having the right candidate.
Before the 2010 Constitution, the holder of the office was a presidential appointee who served under the Attorney General's office.
Some notable persons to have held the position were former Chief Justice Bernard Chunga who held the position from 1988 to 1999 and Senior Counsel Philip Murgor who made history as the shortest-serving DPP, from 2003 to 2005.
Former Environment Cabinet Secretary Keriako Tobiko was the longest-serving DPP having been first appointed by President Kibaki in 2005 to become the first DPP under the 2010 constitution when he was formally appointed in 2011.
In the last recruitment in 2018, Haji emerged as the best among ten candidates who had been shortlisted by the recruiting panel.
The candidates included Ms Oduor, former Independent Electoral and Boundaries Commission Commissioner Thomas Letangule, Nicholas Mutuku, Daniel Keiwua, James Warui, Lucy Kambuni, Jacob Ondari, Patrick Gumo and Abdulqadir Ramadhan.
According to the ODPP Act, the search for Haji's replacement will start with the president constituting a selection panel comprising of representatives from his office, the office of the Attorney General, the Public Service Commission and the Kenya National Commission on Human Rights.
Other members of the panel will be drawn from the Law Society of Kenya, trade unions and the Ethics and Anti-Corruption Commission.
Once the panel is constituted, they will advertise for the position, shortlist candidates and forward three names to the president who will select one and forward it to the National Assembly for vetting and approval before making the formal appointment.
