When he made his recommendation to the State Department that Amos Wako be banned from travelling to the United States, the then American ambassador to Kenya, Mr. Michael Ranneberger, is reported to have written: “One can find an Attorney- General who has successfully maintained an almost perfect record of non-prosecution. He accomplishes this through the most complex of smoke and mirrors tactics, seeking to appear to desire prosecution while all along doing his utmost to protect the political elite”.
As Mr Ranneberger had terribly bad relations with the government, let us not take only his word for it.
Three years before the American ambassador spoke, the Public Accounts Committee of the Kenya National Assembly in its report on the Anglo-Leasing scandal in March 2006 stated: “While taking evidence, the committee was taken through a host of reforms that the Attorney- General intends to undertake in his department to ensure better results are realised by the government. Since the Attorney-General has been in office from 1991 to date, it is difficult to believe that he was not aware of the weaknesses of his department for the entire period. The committee finds him negligent in representing his client but keen on paperwork to shield himself.
Judicial Commission of Inquiry into the Goldenberg Affair noted the AG’s Office had filed charges in 1995 but withdrew them in 1997.
The year the High Court issued an order stopping Mr. Wako from prosecuting Prof George Saitoti for the Goldenberg scandal. “The committee found him incapable of advising his client adequately and a little too late to be charged with undertaking any meaningful reforms at the Kenya Law Office.”
And that was five years ago. So why would the Kibaki regime keep him in office? What did they intend to gain from what was considered by the National Assembly as Wako’s incompetence? Was it actually incompetence or, as the American ambassador said, were these tactics to protect politicians?
Looking at his past actions, a clear pattern emerges from Mr. Wako’s operations that indicate the US ambassador was right.
1. Always blame the police
Amos Wako blames his failure to prosecute on the police. When he appeared before the Commission of Inquiry into Post-Election Violence, Mr. Wako said he was unable to prosecute because police investigators either brought him files with reports saying there was no evidence, or the Commissioner of Police flatly refused to comply with the Attorney-General’s directive.
As had been observed by the Public Accounts Committee, Mr. Wako had preserved numerous letters on record, which he used to shield himself from blame. But the Commission of Inquiry clearly saw through this. They stated in their report: “In passing, we express our doubts about the impotence expressed by the Attorney-General in enforcing the directives given to the Commissioner of Police. As stated earlier, the Constitution makes it mandatory for the Commissioner to comply, and the consequences of breach should be obvious.”
2. If you have to prosecute, either:
(a) Drag out proceedings to the point of exhaustion
Mr. Wako’s time-tested tactic has always been to drag proceedings through the court until the public is confused. This enabled him to finally withdraw cases or mess up prosecutions without attracting public attention.
The Judicial Commission of Inquiry into the Goldenberg Affair observed: “There was also a further negative effect of creating needless delays through the chaotic situation caused by these many cases. It has been seen, for instance, that charges would be filed in 1995 only to be withdrawn in unexplained circumstances in 1997.
“In other cases, charges would be filed with some accused person but leaving out others. Eventually, the case would also be withdrawn to consolidate it with another one with the other accused persons. On the face of it, this was a pointless merry-go-round resulting in serious delays.”
Or, (b) mess up the government’s case
After the police, Mr. Wako places blame for his failures on prosecutors. Indeed, Mr. Wako’s tenure as a public prosecutor has been replete with numerous instances of lost prosecutions and Mr. Wako’s undying pleas of the need to professionalise the prosecution service.