Wako under fire as impunity spreads tentacles

Ever-smiling Attorney-General Amos Wako rarely speaks in public.

Friend and foe agree that he has a way of smiling through the roughest of storms that periodically whirl through his chambers.

Because he has been in office since May 13, 1991, AG looks like the initials of his first name. Today, he is the most senior public official carried over from Daniel arap Moi’s Kanu administration, which he served for 11 years before it was swept aside by the Narc juggernaut that rolled into power in the 2002 General Election.

Even in the most unfavourable of times, Mr Wako, whose functions and tenure are secured by the Constitution, has weathered severe criticism from the corridors of the courts to the floor of Parliament.

The latest salvo fired on Thursday came, ironically, from the man who succeeded Mr Wako at the UN Office on Extrajudicial, Summary or Arbitrary Executions, Prof Philip Alston.

The Sunday Nation has repeatedly tried to reach Mr Wako to interview him about his performance, but he has always responded with a message that he was tied up in official duties.

When Prof Alston called on him to resign, the AG said on telephone that he was on official business in the Gulf state of Bahrain.

Chief obstacle

“While I was unable to meet with the AG, I did meet with the Director of Public Prosecutions. The exchange, reproduced in full in the Waki Commission report, between Justice Waki and the AG, provides a vivid illustration of the latter’s role as the chief obstacle to prosecuting anyone in authority for extrajudicial executions,” Prof Alston said.

“He has presided for a great many years over a system that is clearly bankrupt in relation to dealing with police killings and has done nothing to ensure that the system is reformed. Public statements lamenting the system’s shortcomings have been utterly unsupported by any real action. In brief, Mr Wako is the embodiment in Kenya of the phenomenon of impunity,” he said.

It was not the first time that an inquiry had arrived at such a finding, although Prof Alston’s is probably the most blistering.

Since 2003, at least three inquiries conducted by senior judges and another by Parliament have all found Mr Wako’s performance wanting.

The Waki and Kriegler teams apportioned significant blame to the AG for the climate that led the country to the brink of civil war following the disputed December 27, 2007 presidential election.

In their reports, the two teams separately wondered why the AG had not done anything over the years to address the election-related violence that has recurred in the country since 1992.

The Kriegler team in particular identified nine crimes committed during the campaigns, from vote buying and selling, to sexist tactics against women to wanton use of state resources to campaign, all of which could have been prosecuted under existing laws but were not.

“Nobody would have dreamt of seriously acting against people in high places, or even highish (sic) places. The Attorney-General certainly didn’t lie awake at night worrying about all those crimes being committed with not a finger being lifted to stop them,” the Kriegler team wrote.

During a hearing by the Waki Commission, former LSK chairman Ahmednasir Abdullahi asked Mr Wako what he had done to fight impunity.

The AG responded that after the Akiwumi report on election-related violence in 1998, he had directed the commissioner of police to investigate all persons whom the commission had identified as suspects. The Constitution gives the AG powers to order such investigations.

Following the order, the director of the CID forwarded to the AG 70 files on February 19, 2001. From those 70 files, the AG ordered further investigations into 40 cases. From those 40 files, 18 investigation files were returned to him on October 1, 2001.

“The investigations are therefore still continuing in a number of cases. I assure the public that when I get an investigation file with sufficient evidence, provable in a court of law, prosecution will ensue as a matter of course,” Mr Wako promised at the time.

What became of those investigations? On August 25, 2008, Mr Wako listed before the Waki commission the reasons for what he himself called “this unsatisfactory state of affairs”.

The Waki team, after listening to Mr Wako, laid a portion of the blame for the culture of impunity on his doorstep.

“In view of the lack of any visible prosecution against perpetrators of politically related violence, the perception has pervaded for sometime now that the AG cannot act effectively or at all to deal with such perpetrators and this, in our view, has promoted the sense of impunity and emboldened those who peddle their trade of violence during the election periods, to continue doing so,” the Waki Commission said in its report.

In 2003, the public demanded the resignation of Chief Justice Bernard Chunga at the beginning of the Kibaki administration.

Mr Justice Chunga resisted public pressure to resign only to bow out after President Kibaki named a tribunal to investigate his conduct.

Mr Chunga was bearing a public burden for inefficiencies in the Judiciary although he left the Judiciary with his integrity intact as only a tribunal set up after the constitutional order would have proven him guilty.

The other aspect of a dysfunctional Judiciary as widely viewed then was the prosecution of cases, most memorably the Goldenberg scandal, in which a staggering Sh160 billion was siphoned off from public coffers to private bank accounts over three years.

The State Law Office did not successfully prosecute any suspects over the scandal. There were, however, separate efforts in 1993 and 1994 by the Law Society of Kenya and Lang’ata MP Raila Odinga, now Prime Minister, to privately prosecute the cases, which Mr Wako terminated on grounds that he would institute his own prosecutions.

From 1994 when the AG started the prosecution, he did not win a conviction against any of the suspects he had identified until he terminated the cases in February 2003 to pave way for the Goldenberg inquiry chaired by Court of Appeal judge Samuel Bosire. And when Mr Wako appeared before the Bosire commission looking into the Anglo Leasing scandal, he waxed lyrical.

“The Goldenberg affair became, in the words of that British dramatist and novelist, Dodd Smith, ‘the dear octopus, whose tentacles we never quite escape,’” the AG said.

“Kenyans want to escape from this octopus so that Kenya can be a vibrant state with a free and democratic system of government that enshrines good governance and the rule of law, and where there is an equitable framework of economic growth and equitable access to national resources. The tentacles of the octopus have to be cut.”

He did not explain why for nine years he had not slain the “octopus”.

But in an opening statement to the same commission, the then LSK chairman Ahmednasir Abdullahi said the inquiry had come about partly because of the failure of the AG’s office to conclusively deal with the multi-billion shilling scandal over a decade and the growing public frustration to know the truth and have those who stole from state coffers nailed.

“The role played by the office of the AG, which in a way led to the formation of this Commission of Inquiry, must in our view be appreciated, addressed and investigated,” Mr Abdullahi said.

At the conclusion of the inquiry that lasted two years, the Bosire commission wrote: “Evidently the AG was spurred into action by the private prosecutions. But even after charging the suspects whom it had selected, the AG’s office appears to have proceeded with the cases in a most haphazard and lethargic fashion. We received evidence which shows that the records were always available in the various government offices for all to see. But interestingly we did not receive any evidence to show that the AG moved to order police investigations into the affair.”

The Bosire commission found that the charges in all the nine cases filed by the AG were brought against the same people and the prosecution conducted in such a convoluted manner that it was impossible to proceed to a logical conclusion.

“There was also a further negative effect of creating needless delays through the chaotic situation caused by these many cases. In other cases, a charge would be filed with some accused persons but leaving out others. Eventually, the case would also be withdrawn to consolidate it with another one with the other accused persons,” the Bosire team found. “On the face of it this was a pointless merry-go-round resulting in serious delay.”

The commissioners stopped short of casting aspersions on the AG.

“There is no cogent evidence however to enable us to state with any degree of certainty whether these actions and omissions were designed or coincidental. They could have been caused through sheer negligence and inattention. They could also have been part of an orchestrated cover-up intended to aid and abet the culprits of the Goldenberg scam or to subvert the cause of justice,” they wrote.