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.

To be appointed, Mr Orengo would have to resign as MP and Lands minister. Another person who has been touted for the office is Solicitor General Wanjuki Muchemi. Mr Muchemi is viewed by lawyers in private and public practice as the “power behind the throne”. As Solicitor General, Mr Muchemi is in charge of all matters administrative and financial at the State Law Office and is rumoured to be eying his boss’s seat should it become vacant.

It is well known within legal circles that Mr Muchemi enjoys close relations with State House, and there are those who view that as an advantage when it comes to replacing Mr Wako. Though he is vastly experienced, having practised law for decades, Mr Muchemi’s hand is seen in the many decisions that have attracted an unfavourable assessment from those who have examined the successes and failures of the State Law Office.

The other key player in the State Law Office is Director of Public Prosecution Keriako Tobiko, the man who takes up court cases on behalf of the AG. Mr Tobiko has been in office since 2005 when the previous holder, Philip Murgor, was removed. Mr Tobiko took office and got into a quagmire.

He had been the lead defence lawyer representing former Kuresoi MP Zakayo Cheruiyot in an Anglo Leasing related case. The State ended up hiring private lawyers to prosecute the cases to avoid a conflict of interest. Mr Cheruiyot, the last Internal Security PS in the Moi administration, is charged alongside John Alao, a former finance secretary in the President’s Office, in connection with procurement of equipment for a CID forensic laboratory.

Mr Tobiko had already filed documents for the defence and applied to the High Court to defer the case by the time he was appointed DPP in mid-2005. Another candidate on the list for the powerful office of the AG, according to our sources, is Mr Murgor. He left the office in the heat of a controversy surrounding Mr Tom Cholmondeley, the scion of British colonial aristocracy.

Mr Murgor alleged that he had been pushed out by powerful forces over the changes he had proposed as director of public prosecutions. Specifically, he seemed to have fallen out with police headquarters over proposals that the role of prosecution cases should be taken up by lawyers under him rather than police officers.

Special rapporteur

Another candidate whose name has been mentioned is law professor Githu Muigai, who was appointed in March the UN special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance. Prof Muigai also sat in the now defunct Constitution of Kenya Review Commission whose mandate ended following the constitutional referendum in November 2005.

Incidentally, Prof Muigai’s name is also mentioned as possible CJ. Another former CKRC commissioner, Mr Mutakha Kangu, who is the head of the Department of Public Law at Moi University, is said to have featured on the list of possible candidates.

Yet another name that came up during interviews by the Sunday Nation with lawyers who are close to government's thinking, is that of Mr Kathurima M’Inoti, a member of the ICJ and the chairman of the Kenya Law Reform Commission. ODM stalwarts are also said to be considering forwarding the name of Mr Donald Kipkorir.