Branded as an embodiment in Kenya of the phenomenon of impunity, the AG is required to leave office in the next 12 months as required by new constitution

Amos Shitswila Wako is trying to outwit Kenyans yet again. When interviewed by journalists as he cast his vote in the referendum last Wednesday, he spoke of himself as the person who brought reforms that gave birth to a new Kenya.

With the passing of the new constitution, he said, a great weight will have been lifted from his shoulders, and he would be available to serve Kenyans in another capacity if called upon to do so.

His dream has come true

The impression Mr. Wako is trying to create is that he has spent the last 20 years since his appointment fighting to help Kenyans get reforms and a new constitution. And that finally it appears Kenyans have made his dream come true.

I have written about Mr. Wako countless times since he was appointed in 1991, and I have never had a good word to say about him. I will not start now. And though it is considered unAfrican to step on a man when he is down, it would be unjust and immoral to let Mr Wako whitewash himself as he leaves office in the next 12 months as required by the new constitution.

The most eloquent summary of his tenure as Attorney General was delivered by Prof Philip Alston, the United Nations Special Rapporteur on Extrajudicial Executions. He said of Mr Wako in February 2009:

“He is the chief obstacle to prosecuting anyone in authority for extra judicial executions. 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 that 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.”

Post-election violence

Prof Alston concluded that “the resignation of the Attorney-General is an essential first step to restoring the integrity of the office and ending its role in promoting impunity in Kenya”. Mr. Wako responded to this criticism and denied that he had promoted imputnity.

A few months before, in October 2008, Justice Philip Waki published the Report of the Commission of Inquiry into Post- Election violence. He said the following of Mr. Wako: “In view of the lack of any visible prosecution against perpetrators of politically related violence, the perception has pervaded for sometime now that the Attorney-General cannot act effectively or at all to deal with such perpetrators and this, in our view, has promoted the sense of impunity and emboldened those who peddled their trade of violence during elections in periods to continue doing so.”

Mr. Wako again responded by saying he has always been ready to prosecute as long as he was presented with evidence that would stand up to scrutiny in a court of law. What he is doing now is not new. People who have been in power and have abused peoples’ rights often try to manipulate transitional periods in order to whitewash their bad past. This phenomenon is so real that as a part of transitional justice, some countries create commissions to investigate the past and specifically recreate historical memory of past abuses.

Guatemala, after concluding 34 years of civil war in 1996 in which over 200,000 people lost their lives, formed the Guatemala Commission for Historical Clarification to prevent a manipulation of the historical memory of the abuses. Spain and Colombia have done the same.

Our own Truth Justice and Reconciliation Act says in Sections 5(1) (a) that the Commission must establish “an accurate, complete and historical record of violations and abuses of human rights and economic rights inflicted on persons by the State, public institutions and holders of public office both serving and retired.”

If we keep quiet and allow Mr. Wako to ease himself out of office, and heroically step aside in order to grant us an opportunity to take the reform agenda forward, we shall only be setting the stage to be abused yet again by other AGs and high-ranking government officials.

We have already forgotten Charles Njonjo under whose tenure our independence Constitution was altered in maNy ways and not always for the better. It has taken us over four decades, many billions of shillings and much innocent blood to undo the damage Mr. Njonjo did to our constitutional structures and institutions.

We have forgotten Justice Mathew Guy Muli who, as I observe in my book “The Black Bar”, turned the holder into a Kanu youth winger by using his constitutional powers to assist the Executive in the suppression of dissent.

Lest it ever be forgotten, let us remember the following about Mr Wako.

Let the record indicate that when he was appointed AG, he had the most distinguished legal career as a private practitioner and impeccable international academic credentials. But he used none of his clout or knowledge to assist Kenyans live under the rule of law.

Let the record indicate that though Kenya has undergone tribal clashes and pre-and post-election violence in 1992, 1997 and 2007-8 in which hundreds have died and several hundred thousand were displaced from their homes, Mr Wako has never prosecuted any significant suspect of these crimes. And the few insignificant prosecutions he started, he lost.

Let the record indicate that Mr. Wako assisted President Moi in clamping down on multiparty activists from 1991 and discharged his duties of prosecution on philosophical parity with the Moi dictatorship and often on the latter’s instructions.

Let the record indicate that in the year 1992, Mr Wako attempted to assist Mr. Moi rig Kenya’s first multiparty elections by amending the National Assembly and Presidential Elections Act to deny the opposition adequate time to campaign. He deleted the words “a period not less than twenty one days” and inserted “a period of not more than twenty one days” when he knew only Parliament had power to amend the substance of the law.

Let the record indicate that despite prosecutions going on over the last 15 years, Mr. Wako has never concluded any corruption case against the suspects of the Goldenberg saga. Indeed, that he has never procured any conviction against any significant corruption suspect in Kenya.

Let the record indicate that despite reports of hundreds of extra judicial killings in Kenya in the last five years, Mr Wako has never prosecuted any person for the murders.

Let the record indicate that he continually denied that anyone was ever tortured in Nyayo House or elsewhere and frustrated and continues to frustrate those who seek justice against these tortures. One victim, Wallace Gichere, a journalist who was crippled in both legs when the police threw him out of the window of his third floor flat, staged a hunger strike outside the Attorney-General’s Chambers before Mr. Wako agreed that he should be compensated.

And let the record indicate that despite his knowledge of and expertise in international human rights, Kenya continues to be criticised and castigated by international human rights organisations for inadequate and late reporting on the status of human rights in the country, contrary to what is required of it by many treaties the country has signed and ratified.

The moment has finally come for Mr. Wako to go. It has been a moment long and eagerly awaited by reformers. We have amended a constitution to remove him from office.

We must tell Mr. Wako the truth clearly and publicly so that all those others sitting in public office, or aspiring to, may also hear. Using the words of Oliver Cromwell as he dismissed the English House of Commons on April 20, 1653, we must tell Amos Wako: “It is a high time for us to put an end to your sitting in this place. . . .Take away that shining smile there, and lock up the doors.
In the name of God, go!”