It’s time Wako stepped aside as the attorney-general

What you need to know:

  • In the fullness of time, history will decide how low or high he should be ranked.
  • The lowest point in our country’s development is politicians’ complete disregard for the law.

Most Kenyans do not know of any attorney-general apart from Mr Amos Wako.

In the fullness of time, history will decide how low or high he should be ranked. But we have no contract with history, so we must demand that he stand down now because he no longer serves this country’s interest.

Mr Wako has been AG since the change from one-party dictatorship in the early 1990s. Under his watch, Kenya has witnessed its lowest moments, most of it courtesy of absence of leadership. We have sunk so low because Mr Wako has abdicated his duties.

The AG’s office, like most modern politico-legal symbols, is traced to ancient England. In the 14th Century, the Crown by Letters in Patent appointed some people to represent it in courts.

Later in 1452, the office was given the name of that of the AG, which has stood to date, having been adopted by all countries — from Albania to Zimbabwe.

In Britain, the AG has since acquired the roles of legal adviser to the government, ministerial duties of criminal prosecutions and civil litigations on behalf of the crown, and guardian of public interest.

These roles have been adopted by most civilised countries, the only difference being the holder’s independence and integrity.

In Kenya, the office is established by Sections 26 and 109 of the Constitution. By them, the AG has security of tenure and independence.

He is the Government’s principal legal adviser and ultimate authority in criminal prosecutions and investigations. Other statutes give him overall authority in civil matters on behalf of the State.

The Constitution states that he may be removed only on the recommendation of a tribunal which finds him guilty of either inability to perform his duties or misbehaviour.

Except for the two convictions, the AG can stay in office for as long as he lives. But are we stuck with Mr Wako till the rupture, or his death, whichever comes first?

As shown above, Mr Wako’s duties, in addition to advising the Government and being in charge of criminal prosecution and civil litigation, is as a guardian of public interest. He, therefore, has to draw a fine line between his duties to the government of the day and the public.

As the government is elected by the people, prudence demands that his loyalty be to them. But has Mr Wako acquitted himself?

As the AG, Mr Wako has seen Kenya go through legal and political upheavals.

The Electoral Commission and Parliament have played handmaiden to the Executive, we have been holding sham elections, the Judiciary has been assaulted by the Executive, police have killed or caused suspects to vanish without due process, phoney and toxic goods are imported and the Government has been having deals with non-existent companies.

Mr Wako did not stand up against these subversions, or at least he was not seen or heard to do so. As the Government’s principal legal adviser, he has to make sure we pass Bills and set up organisations that enhance our legal system.

However, time and again, we have seen laws being enacted or organisations established that are later nullified by the High Court for violating the Constitution or other laws.

If he cannot be diligent in drafting Bills and establishing public organisations that comply with the law, why should we let Mr Wako continue to be office?

The lowest point in our country’s development is politicians’ complete disregard for the law. They treat court orders and summonses with contempt. We have offices and structures established by law and Mr Wako sees them being violated without any censure. At times, he sides with the violators.

When Mrs Jacinta Mwatela was “sacked” as the Central Bank deputy governor, for instance, the AG blatantly misled the country that her office does not enjoy security of tenure.

When he decided to be a poodle to President George W. Bush, Alberto Gonzales, the first US Latino AG, used his office to expand the president’s powers to wage war on terror, including justifying torture.

Americans ran out of patience with Mr Gonzales and he had to resign. He was replaced by Michael Mukasey who vowed to reinstate integrity to the office.

Mr Wako may not be infirmed or guilty of misbehaviour, but his stay in office has been too long, yet he cannot be said to be serving any useful purpose.

If we cannot have the President serve more than two five-year terms, the CBK governor more than two four-year terms or the Armed Forces chief more than six years, why should we have Mr Wako serve forever? Isn’t he a mortal like any other Kenyan?

Kenya may not be at war, but it is not at peace either. The country may not be a failed state yet, but it is not an emerging economy either. But the system seems to be deliberately creating this vegetative state of neither life nor death.

Proper and transparent legal system and structures as well as respect for the rule of law will unlock our national and individual potential.

Mr Wako has stymied it and he must step aside now. If he refuses to do so, President Kibaki should abolish the AG’s office, just as the AG has proclaimed that he has the power to abolish any public office.