Wako: Ready to call it a day?

Is Attorney-General Amos Wako preparing to leave office? Interviews by the Sunday Nation found that after 18 years at the helm at the State Law Office, Mr Wako may soon call it a day.

Sources in legal circles have indicated that the AG intends to leave office in May next year “after overseeing the present reform agenda’’. But the ever-smiling lawyer last Thursday maintained that he would not resign. At least not yet, he said, and not at the behest of foreigners levelling accusations against him.

At a press conference where he told off the US Government for withdrawing his visa, Mr Wako said he would not bow to pressure from outside to leave office. He said he was a reformist and would only go home after ensuring that the reform agenda was concluded. But according to Law Society of Kenya chairman Okong’o Omogeni, the travel ban slapped on Mr Wako by the United States had made his functions untenable, and it was time for changes at the AG’s office.

“It’s a wake-up call to the government to really examine the reasons advanced by the American Government. The visa ban makes his position almost untenable. As an advisor to the government he needs free movement to be able to discharge his functions,” Mr Omogeni told the Sunday Nation.

Hard choices

“The time has come for the government to make hard choices and to care for its international reputation,” he said. In what would be a radical change from the past, LSK proposes that every new government appoint a new AG. The lawyers propose that the law be amended so that the appointment of the AG is subjected to parliamentary approval “to achieve wide and bipartisan acceptance’’.

“It’s easy to remove somebody ... but how do you appoint someone who doesn’t have partisan interests? The office should be professional and politically non-partisan,” the LSK chairman said. “I would have, for an insurance ... an amendment to the Constitution to give assurance that we are going to get the right kind of person for that job to serve posterity.”

He referred to the US system where the president nominates the AG and awaits congressional approval before appointing them to office. But Mr Wako’s confidantes with whom the Sunday Nation spoke said he is likely to stay on until May, the month that marks the 19th anniversary of his appointment.

Lawyers are proposing changes in the law to ensure that the next holder of the office is a person who does not wield too much power. International Commission of Jurists (ICJ) Kenya chairman Wilfred Nderitu said Mr Wako has been more of a politician than a lawyer. “It might even be better if the AG does not sit in Cabinet. I’d like to see an AG who has less powers in terms of terminating cases,” Mr Nderitu said.

The Constitution gives the AG powers to determine whether to prosecute a case and further powers to terminate a case at any stage before judgment is delivered. The law does not lay out parameters for the AG to use in that function. Mr Nderitu hopes that Mr Wako’s successor will be picked on the basis of integrity rather than expediency where politicians look to see whether “this is someone who can serve their interests’’.

The ICJ boss agrees with Mr Wako that the office of Director of Public Prosecutions should be delinked from that of the AG and the holder given a constitutional tenure of office. Other than on his own volition, an AG can only be removed from office if the President appoints a tribunal to investigate his conduct and if he is then found guilty of misconduct.

The tribunal could then recommend his sacking to the President, who could either take their advice or reject it. But Section 109 (4) of the Constitution says Parliament may set a retirement age for the AG. Since the clause was placed in the Constitution, Parliament has never set an age limit, which can be done through an Act of Parliament. LSK proposes that the AG’s age limit be 70 years, according to Mr Omogeni.

Mr Wako, who has said he looks to the East for spiritual nourishment, told the Sunday Nation soon after UN special rapporteur on human rights Philip Alston issued a blistering attack on his office that he had been to the Himalaya mountains to meditate. He spoke of a conspiracy to edge him out of the office he has occupied for close to two decades but said he was determined to see the constitution review come to a close before his departure.

Sources familiar with discussions in the corridors of power say that grand coalition partners ODM and PNU are consulting on who should succeed the 64-year-old Wako. It is understood that powerful men from both parties have been considering cutting a deal in which one partner nominates the candidate for the AG’s office and the other a successor to Chief Justice Evan Gicheru, should either leave office.

At the top of the list of those touted for the AG’s job is Lands minister James Orengo. Mr Orengo has a respected record for championing change and is a respected lawyer. “Orengo’s name has been floated although there are those who consider the political implications given that he entered the national psyche more as a politician than a lawyer,” our source said.