Old fox Wako finds his finishing kick

Attorney-General Amos Sitswila Wako is in clover.

Last week, Mr Wako was probably enjoying the subtle flavour of Lebanese cuisine while taking in the magnificent panorama of Mont Blanc mirrored on the placid surface of Lake Geneva from the luxurious Hotel President Wilson.

The AG was in the Swiss city attending a conference on human rights.

Two days later he flew to London to instruct Sir Rodney Dixon and Sir Geoffrey Nice (Queen’s Counsel), the two lawyers who are spearheading Kenya’s efforts to block the prosecution of six individuals accused of crimes against humanity at the International Criminal Court.

Then he caught a plane back home to take part in the interviewing of candidates for the Supreme Court.

That Mr Wako’s schedule is very busy was captured on Wednesday when he missed both a Cabinet meeting and the Supreme Court interviews to clarify adverse allegations against Mr Keriako Tobiko before a House committee vetting him for the post of Director of Public Prosecutions.

Mr Tobiko, the chief prosecutor, has been working under Mr Wako for the last five years.

Keen not to upset Mr Tobiko’s chances over claims that he had interfered in a land case involving an Appeal Court judge, a vintage Mr Wako nearly plunged the jury into a deep sleep by reading aloud long, boring and technical documents.

This prompted a complaint by Gichugu MP Martha Karua who asked him to only highlight the content of the document.

High spirits

“The AG wants us to fully understand the issue, but I ask him to give highlights. We may take centuries if we continue like this,” she said.

The good AG continued reading, saying he was “just concluding” as he droned on and on.

Clearly impatient, committee members were captured on TV suppressing yawns. At the end, Mr Wako described the chief prosecutor as “a reformer, competent, intelligent and efficient”.

The AG was on the panel that interviewed Mr Tobiko for the job.

Mr Wako is also a member of the Judicial Service Commission that nominated Dr Willy Mutunga for chief justice and Ms Nancy Baraza for deputy chief justice.

With hardly two months left on the job, Mr Wako, whose tenure has been highly criticised by a number of Kenyans, the United Nations and the Unites States, appears to be leaving in high spirits.

If the nominations are approved, he could walk out of his chambers having “appointed” the next chief justice, director of public prosecutions and judges of the Supreme Court.

But he would probably be the most excited by Mr Tobiko’s appointment.

In his opposition to the possible appointment, Gwasi MP John Mbadi on Thursday suggested that Mr Tobiko is Mr Wako’s alter ego.

“For me, Keriako Tobiko is another Wako. His presence in that office will mean that the Goldenberg cases will not move.”

As he charms his way out of office, Mr Wako strikes one as a remarkably busy man, pleasing both friend and foe.

For instance, he has lodged an appeal to overturn a decision by the ICC to quash an application to have Kenyan cases before it brought home.

The cases, which seem to have given Mr Wako a lifeline, involve powerful individuals close to President Kibaki like Deputy Prime Minister Uhuru Kenyatta, Head of Public Service Francis Muthaura and Eldoret North MP William Ruto.

If his appeal succeeds, Mr Wako will most certainly excite President Kibaki’s inner circle.

But the 65-year-old has been caught in a rather tricky situation over the warrants of arrest issued against Nambale MP Chris Okemo and Samuel Gichuru, the former Kenya Power & Lighting Company boss.

Authorities in Jersey have accused the pair of receiving bribes to award contracts and want them extradited to the tiny island in the English Channel to answer to the charges.

Senate seat

Both Mr Okemo and the AG hail from Nambale constituency and both are said to be interested in running for the Busia County Senate seat in next year’s General Election.

Mr Wako on Friday confirmed receiving “voluminous documents” from Jersey connected with the arrest warrants and directed Mr Tobiko to “immediately constitute a high-level team to deal with the matter”.

No doubt Mr Wako is the quintessential survivor — a sly, witty, thick-skinned and intelligent schemer who has smiled his way through 20 years at the State Law Office.

The AG is one of the few senior public officers retained from the Moi regime to have lasted so long under President Kibaki.

His transition was smooth, and he retained his reputation for never doing anything to annoy his political masters, especially when it came to prosecuting masterminds of mega-corruption and other crimes.

His tenure has been characterised by non-prosecution of high-profile corruption cases and lack of reforms. He is one of the top Kenyan public officers banned from travelling to the US.

In recently leaked diplomatic cables, immediate former US ambassador Michael Ranneberger said Mr Wako has been a stumbling block in the fight against impunity.

And when UN rapporteur Prof Philip Alston came to town in 2009, he used the most unflattering words to describe Mr Wako’s record.

“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 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.

And Prof Alston is not alone in his criticism. “As the chief public prosecutor, Mr Wako seems to have been more of a rogue lawyer than an innocent servant out of his depth,” says the February 2011 issue of the Nairobi Law Monthly.

The handling of the post-election violence cases at the ICC was seen as an indictment of Mr Wako’s prosecution team as well as of the lack of independence of sitting judges.

This week Justice Philip Waki, who chaired the commission that investigated the post-election violence, said he had given a secret list of suspects to Kofi Annan instead of President Kibaki “to beat impunity”.

The judge, who was being interviewed for a Supreme Court position, was answering Mr Wako who asked him why his team decided not to include everything in the report handed to the Head of State, especially “the famous envelope”.

“The commission did not want to be like some previous commissions whose reports were never acted on by the Executive, hence we had to devise an approach to deal with impunity,” Justice Waki said.

On more than one occasion his sharp legal mind has come to President Kibaki’s rescue, most notably during the drafting of the power-sharing agreement with Mr Raila Odinga that helped halt the 2007 post-election violence.

During that period, President Kibaki seemed to be relying largely on the advice of lawyer-politicians in his camp like Ms Karua and Kiraitu Murungi.

But when it came to the actual drafting and signing of the National Accord, he turned to Mr Wako, who came up with a deal that is widely seen to favour the President’s side of government.

Mr Wako outwitted ODM lawyers by ensuring that the architecture of the coalition assumed that Mr Odinga’s ODM was going into coalition with an existing PNU government — a crucial detail that would come into play whenever the threat of dissolving the coalition was raised.

Ababu Namwamba, the ODM parliamentary group secretary, has said this put their party in a vulnerable situation.

If the party decided to pull out of the coalition, President Kibaki’s PNU “would continue ruling as if nothing happened”.

This argument has been contested before, but it illustrates Mr Wako’s ingenuity.

Humble pie

But the same Wako in February angered PNU and forced President Kibaki to eat humble pie when the chief legal adviser “pleaded guilty” to the claim that the Head of State’s initial nominations to the post of CJ, DPP and Director of Budget were unconstitutional.

Mr Wako also “rescued” a few months for himself in office. Had the nominees gone through, he would have been replaced by Prof Githu Muigai.

At the height of the conflict, Mr Wako dispatched a State counsel to inform a constitutional court that the nominations were improper.

At the heart of this uncharacteristic “rebellion” was said to be Mr Wako’s discomfort with the move to replace him before his term expires in August.

This was unusual for an Attorney- General who distinguished himself for toeing the line and doing the bidding of his bosses whom he has served loyally and effectively.

Mr Wako has said he would like to be remembered as a constitutional and legal reformer.

“I became Attorney-General in 1991, a volatile period at the height of the clamour for multiparty democracy, and by December the same year, I moved constitutional amendments which opened the doors for multi- party democracy,” he said in a recent interview.

He moved amendments to repeal Section 2a to allow multiparty democracy and also terminated sedition charges facing Moi detainees like Gitobu Imanyara.

Cynics say Mr Wako surrendered his intellect to the service of his master of eight years but is clearly signing off the best way he knows: Protecting his interests against all odds with his crystal ball focused on the future.