This man Wako: Failure, strategist or opportunist?

The commonest error made by almost all critics of Mr Amos Wako is to underrate him. Yet Mr Amos Shitswila Wako is one of the most intelligent people and a very smart lawyer indeed.

And because people judge him by his deceptively baby-faced smile and affected moronic demeanour, he outwits them all the time.

It comes as a shock to many when they read his curriculum vitae. I doubt any lawyer in Kenya has a better resume.

A student of Alliance Boys High School, Mr Wako, 64, holds three degrees — two in law, a Bachelor and a Masters degree, and one in economics. He is also a fellow of the Chartered Institute of Arbitrators.

He has been a member of the most distinguished local, regional, continental and international law organisations and has been elected as chairman of most. He has served three different secretaries general of the United Nations as a special rapporteur on human rights.

At home, he was an accomplished legal practitioner and trial lawyer and managed, at a very young age, to clinch a partnership at the prestigious law firm of Kaplan & Stratton.

Rights abuses

In so far as lawyers go, if there is one who can befit the description “genius” in Kenya, it is Amos Wako.

No less a critic than lawyer and Imenti Central MP Gitobu Imanyara has described Mr Wako’s international reputation as a human right activist as “enviable” and his academic record as “brilliant”.

That President Moi appointed Mr Wako as Kenya’s Attorney–General is a testimony of Moi’s political genius. The appointment having been made at a time when Kenya was under international focus for human rights abuses, many thought that Mr Moi was making a mistake in taking on this reputed human rights activist as his chief law man.

As it turned out, Mr Moi knew his men and Mr Wako’s appointment was a stroke of genius. In less than a year of his appointment, Mr Wako was already being accused of operating as a Kanu youth winger.

Many people who had been to university with him were cautious in their words when he was appointed Attorney–General, even as the rest of the country cheered.

Their disquiet was voiced by a statement that was issued by Dr Gibson Kamau Kuria in July 1991 when he termed Mr Wako’s appointment “both as a great mistake and a disaster for Kenya”.

Mr Imanyara also expressed his discomfort regarding Mr Wako. In an article he wrote in the famous Nairobi Law Monthly, in June 1991, he asked why Mr Wako was active and vocal regarding human rights at International fora but silent when it came to his own country.

“One cannot overlook that activism at the international level carries no major personal risk. On the homefront, however, the situation is different. Police harassment, intimidating surveillance, jail, detention without trial and threats often accompany vocal activism,” wrote Mr Imanyara.

He seemed to suggest that Mr Wako was a coward. That when it came to local issues, he was concerned about his personal interests and would not do anything that could bring adverse consequences on himself.

The hypothesis was given credence a few days ago when Prof William Ochieng wrote asking: “Who is better than Wako?” (DN October 19, 2009).
“I understand very well Mr Wako’s dilemma, having myself worked under a Head of State,” wrote Prof Ochieng. “Every time I opened my mouth, some rugged man came along and told me to shut up.”

Despite the fact that Mr Wako is the Attorney-General of the Republic of Kenya and Section 26 of the Constitution says that in the exercise of the functions vested in him, (he) shall not be subject to the direction or control of any other person or authority, Prof Ochieng defends him and says, “Wako may not have acted in certain instances, because he never got cleared to act by his bosses, for good or for strange reasons”.

And Prof Ochieng would know better about Mr Wako fearing to act unless on the direction of the Executive. They not only both served the same master but also, in his article, he says he has known Wako “since we were little boys at Alliance High School”.

But another side of Wako that has never come to the fore is his support of the established order and his protection of the “status quo”.

Prof Ochieng says that while they were at Alliance High School, Mr Wako was a senior house prefect and then a school captain. These are positions that can only be held by a pro-establishment student, particularly in a colonial boys’ high school.

When he left university, he joined the law firm of Kaplan & Stratton where he became a partner. At that time, Kaplan & Stratton was possibly the oldest law firm in Kenya and predominantly European in its ownership. Only a pro-establishment lawyer could ascend to partnership in such a firm in those days.

So, while the likes of Dr John Khaminwa, Mr Lee Muthoga and Mr Paul Muite were fighting the establishment on issues of the rule of law, Mr Wako was senior partner in a European-dominated law firm.

In my book The Black Bar: Corruption and Political Intrigues in Kenya’s Legal Fraternity, I wrote about Mr Wako’s experiences under the establishment while he was chairman of the Law Society of Kenya between 1979 and 1981.

“When Amos Wako succeeded Gautama as chairman in 1979, relations between Njonjo (then Attorney–General) and the African lawyers were at the lowest ebb. Njonjo then decreed that he would no longer meet the council of the LSK, but would allow their representations to be forwarded by its chairman (Amos Wako). That placed Wako in a very vulnerable position. He continuously found himself personally answerable to Njonjo. Njonjo would send messages to him and his vice –chairman Muthoga, saying: “Tell those two boys I’m going to detain them if they don’t shut up”.

“At other times, Njonjo would summon all the partners of the white law firm of Kaplan & Stratton, where Mr Wako had been granted a partnership. He would challenge Wako in front of them, threatening to detain him and advising the partners to vote him out of the firm. The pressure was too much for Wako and he begun to temper his statements and to co-operate with Njonjo.”

Even before he was appointed Attorney-General on May 13, 1991, Mr Wako was an accomplished pro-government lawyer by his own right.

In 1991, the International Bar Association had planned to hold its 23rd biennial conference in Nairobi. But as the dates for the conference drew near, Kenya’s reputation as a human rights abuser got worse.

With international protests piling against the Moi regime, the IBA cancelled Nairobi as the venue and moved the conference to New York. Mr Wako, then still a practising lawyer, protested vehemently against the IBA decision and swore not to attend the New York conference.

Then, upon what many believed to be prodding from the government, he changed his mind and travelled to New York where he gave an address that was in defence of the government.

“IBA must learn to operate in the real world,” he told the New York conference. “The Third World, and, in particular, African nations are complex societies… An approach which springs from holier than thou, moralistic postures or condescending paternalistic attitudes is bound to be counterproductive.”

One of the issues raised by the IBA was the continued detention of political activists in Kenya without trial. On this issue, Mr Wako was to have a chance of expressing his human rights convictions when the Law Society of Kenya held its annual general meeting in March 1991.

A recommendation was tabled calling on the government to repeal all detention laws. When the lawyers were asked to vote in support of the recommendation, Mr Wako abstained.

It was also in 1991 that Mr Wako was accused of being one of the conspirators who wanted Mr Muite and the council of the Law Society of Kenya jailed for their political positions against Mr Moi’s government.

It was stated in an affidavit by one of the members of the council of the LSK that the contempt of court prosecution of Mr Muite and his fellow council members was “conceived, initiated and financed by Amos Wako and Mutula Kilonzo”.

Mr Justice Aaron Ringera, then also a practising lawyer, was one of the conspirators.

For his work in support of the government, Mr Wako had been appointed a director of Kenya Airways and decorated by President Moi by being appointed an Elder of the Burning Spear (EBS).

It is in this background that Mr Wako became the Attorney-General of the Republic of Kenya.

Fallen Angel

Before he had completed two years as Attorney-General, Mr Wako was baptised by the Kenya Human Rights Commission “The Fallen Angel”. His fall from grace had been complete in just a couple of years of his appointment.

On July 2, 1991, in his maiden speech to the National Assembly where he sits as an ex-officio member, Mr Wako urged the members of the Assembly to accord President Moi the highest respect, both in word and deed. He then proceeded to state the following damning words.

“Mr Speaker Sir, a characteristic of the rule of law is that no man, save for the President, is above the law”.

Legal activists were outraged. Dr Kuria, his former classmate at the University of East Africa in Dar-es-Salaam, said: “The speech… demonstrates….. that his grasp of legal principles and Kenyan politics is no better than those of his two immediate predecessors and that the government which appointed him expects him to be a better salesman of the very merchandise the two attempted to sell both within and without Kenya without success.”

At the time, Kenya was in the middle of the political crisis surrounding the re-introduction of multiparty politics. An ugly side of that crisis was the politically instigated ethnic clashes in Rift Valley Province.

Mr Wako ignored the crimes that were being committed. No meaningful person was ever nor has ever been charged with the murders, arson or incitement that accompanied the mayhem.

Instead, as was observed by Africa Watch, a respected international human rights organisation, Mr Wako prosecuted the victims caught carrying weapons in self-defence more than he did the perpetrators.

In their report titled Divide and Rule: State-Sponsored Ethnic Violence in Kenya, for November 1993, the organisation said: “When asked about this imbalance, Attorney-General Amos Wako told Africa Watch; ‘Anyone with a weapon is arrested. It doesn’t matter which group.’ In practice, however, hundreds of armed Kalenjin warriors have wreaked havoc and destruction on other ethnic communities without being arrested or charged for their actions.”

In later years, when a Judicial Commission of Inquiry named suspects of the many crimes committed in this period, Mr Wako ignored the report.

Instead, Mr Wako assisted the government in its crackdown on the opposition. A common method adopted by Mr Wako, last used against Kenyatta by the colonial government, was to charge political agitators away from the capital even when the alleged crimes were committed in the city.

Such fate befell the editors of the government-bashing Society magazine in 1992. They were arrested in Nairobi on charges of sedition but taken to Mombasa where they were charged.

It was estimated that between 1991 and 1993, when the clamour for multiparty democracy was at the highest, the government confiscated more than 300,000 publications. Mr Wako defended the States actions as legal.

But even then, it was difficult to judge Amos Wako because his actions were deceptive. When he became Attorney-General, he withdrew sedition cases filed against several government critics. This dumbfounded his critics and many were still confused when he started cracking down on the dissidents.

What, however, removed all doubts regarding the ethical morality of Mr Wako was his attempt in 1992 to help President Moi steal the election. On November 3, 1992, the Electoral Commission of Kenya surprised the opposition with an election date that gave them barely a month to prepare.

But to everyone’s knowledge, the law gave at least 21 days for parties to nominate their candidates and another 21 days for campaigns. Lawyers for the opposition checked the laws again to confirm this general knowledge but discovered to their utter horror that Mr Wako had amended the electoral laws without going through Parliament.

Using powers granted to the Attorney-General by the Revision of Laws Act to rectify clerical or typographical errors in the laws, Mr Wako had published a legal notice removing the words “ a period not less than twenty-one days” and replaced them with the words “a period not more than twenty-one days”.

When confronted, Wako said his actions were legal and refused to revoke the legal notice despite a very clear warning in the section of law that he was using that said he was not allowed to alter or amend the substance of the law.

The judge who heard the case, Mr Justice Tom Mbaluto, castigated Wako in his ruling on November 12, 1992 and said “the Attorney General’s actions can only be construed to have been a misuse, if not an abuse of the powers conferred upon his office”.

All these things happened before the Goldenberg saga and other corruption scandals that rocked the Moi regime. Mr Wako has been the Attorney-General during the most corrupt years of the country’s history. Not a single grand corruption perpetrator has been convicted.

By the time President Kibaki came to power, Mr Wako had served Mr Moi for 11 years. There was no doubt that Mr Wako would be one of those forced out by the new government made up of the opposition figures he had been persecuting.

Even Mr Wako must have thought that this was the end of the road for him.

It has been seven years and Wako has survived the Kibaki administration’s radical surgeries. He has survived the reign of two of his erstwhile critics, Mr Kiraitu Murungi and Ms Martha Karua, when they sat as minister for Justice. His friend, Mutula Kilonzo, is now minister for Justice. In this respect, Mr Wako is the ultimate survivor.

The Attorney General played with the king-size egos of both Mr Kiraitu and Ms Karua. He let them usurp the powers of the Attorney-General’s office as they indulged in power plays.

Realising that a new AG would likely fight for his turf and reduce the Ministry of Justice into the political shell it otherwise is, it was not in the interest of Mr Kiraitu and Ms Karua to fight for the removal of Amos Wako.

For President Kibaki, he was besieged by Western Province political interests led by then Vice -President Michael Wamalwa, now deceased. Mr Kibaki owed Mr Wamalwa a heavy political debt and Mr Wamalwa had political interests in retaining Mr Wako. If he let Wako go, the position was definitely going to go to someone outside Western Province.

Today, President Kibaki retains Mr Wako for two reasons. First, because his removal will start some serious lobbying and fighting for the position from all provinces and political interests.

And we all know how decisive President Kibaki is and how much he loves such controversial situations.

Secondly, Mr Wako is a proven product — tested and passed. With all the international pressure for reforms and for people to be arrested and charged with corruption and post-election violence, the political establishment needs Mr Wako. He is the only guarantee that regardless of all the clamouring and threats from Western countries, nothing will happen to rock the status quo.

Indeed, the retention of Mr Wako may be the only thing that all the competing political interests in Kenya are agreed upon.

No one wants to gamble with a strong and conscientious Attorney-General. And should he leave office, Amos Wako will likely be replaced with another lawyer doing the bidding for the establishment and the status quo.