Attorney-General Amos Wako must have had a cheeky laugh after President Kibaki withdrew the contentious list of nominee’s to key constitutional office.
The surprise move was dictated by the fact the nominations would be thrown out by the courts after the A-G, the government’s chief legal advisor, supported the argument of the plantiffs.
At the heart of this uncharacteristic ‘rebellion’ is said to be Mr Wako’s discomfort with the move to replace him before his contract expires in August.
On Monday, a State Counsel told the constitutional court that the nominations were improper.
“The Attorney-General’s position is and has been (the) Judicial Service Commission was not involved in the appointment of the Chief Justice as required under the Constitution,” said Ms Wanjiku Mbiyu.
That was the same argument adopted a fortnight ago when Justice Daniel Musinga declared the appointments unconstitutional. Mr Wako did not defend the government position.
Mr Wako has effectively turned his back on President Kibaki at a critical time in the battle for supremacy in the coalition.
This is unusual of an Attorney-General who distinguished himself for toeing the line and doing the bidding of his bosses. He has served two presidents. As Mr Wako prepares to make his final exit after two decades at Sheria House, he will be leaving having taken revenge on a president he otherwise served loyally and effectively.
The A-G is one of the few senior public officers inherited from the Moi regime to have been retained for so long by President Kibaki.
He made a smooth transition and 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 against Kenyans.
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 advise of lawyer-politicians in his camp such as Ms Martha Karua and Mr Kiraitu Murungi.
But when it came to the actual drafting and signing of the National Accord, he turned to Mr Wako.
The point was that there was an incumbent President in place flanked by none other than then government’s chief legal advisor.
Two, 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.
Mr Ababu Namwamba, chairman of the House legal affairs committee, says this put ODM 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.
Mr Wako has said that he would want to be remembered as constitutional and legal reformer.
“I became Attorney-General in 1991, a volatile period at the height for the clamour for multi-party 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 for multi-party democracy and also terminated sedition charges facing then Moi detainees such as Mr Gitobu Imanyara.
His tenure has been criticised for non-prosecution of high profile corruption cases and lack of reforms in the State Law Office.
“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 edition of the Nairobi Law Monthly.
In recently leaked diplomatic cables, US ambassador Michael Ranneberger said Mr Wako has been a stumbling block in the fight against impunity. In fact, Mr Wako is one of the top public officers banned from travelling to the US.
Cynics say Mr Wako did not turn against his masters of eight years, he just signed off the best way he knows: Protecting his interest at all odds.