Of the many things the Attorney-General has wiggled out of, none is bound to be more challenging than the current situation that he finds himself in. The Law Society of Kenya has filed criminal proceedings against Amos Wako regarding the Anglo-leasing scam. The charges were filed in the Chief Magistrates Court at Nairobi but the Attorney-General immediately entered a nolle prosequi in the case. This effectively terminate the proceedings. The society however wishes to take the matter to a higher court.

The move by the society does obviously stand out for being daring and attractive from a media perspective. It is a good public relations move by a society that is finding it difficult to re-define itself in a rapidly changing nation. It evokes memories of the turbulent 90’s when the society was the “last man standing” against the powerful Kanu regime. 

But this is not the 90’s. Then we were excited by such dare-devil moves because they tore the veil of the might and invisibility that the ruling party then enjoyed. The challenge of the apparent infallibility of government then was important in itself as it emboldened every one and galvanized them towards liberation from an autocratic and dictatorial regime.

They want to hear that he was tried and convicted

Today, we are more interested in concrete results. Magic shows and mock fights don’t work anymore. People don’t want to hear what is going to be done. They want to see it done. They don’t want to hear that so and so was charged. They want to hear that he was tried and convicted. The Moi government was so full of dazzling moves and dumbfounding twists that we have had enough drama for a life time. 

The critical question in respect of the move by the LSK in whether it is a legally sound and seriously thought out litigation or is it a magic show? Does the Law Society have a genuine case they can win in court or are they engaging in the antiques of yester-years in search of the glory it enjoyed them? Let us first consider the law governing this scenario.

 Any Kenyan who believes that a crime has been committed may appear before a magistrate and lodge a complaint thereof with him. The magistrate will then consider the complaint and decide whether it discloses the offence or not. If the magistrate is of the opinion that it does not, he shall dismiss the complaint. 

This is the first hurdle of the society. It must have a legally sustainable case. It must have documents and witnesses about the complaint. That we know that Anglo-Leasing was a security contract whose details still remain shadowy. We await to see what else the LSK lawyers have other than we already read in the newspapers.

This brings in the second variable, a willing magistrate. It will take quite some daring for a magistrate to commence a criminal proceeding against the Attorney-General of the Republic and three cabinet ministers. Only magistrates in Italy have been known to be so daring. Recently though we have seen a more daring magistracy building up in Kenya and there is a fair chance that the LSK may be successful on this one.

The third complication is of course that all prosecutions in Kenya, whether commenced by the police or the courts on a complaint, belong to the Attorney-General’s office. It is the duty of the holder of that office to decide who to prosecute and who not to. So the Attorney-General would be perfectly within his rights to terminate criminal suit the court starts against him. Indeed, the Constitution says that in the performance of his duty in deciding on prosecutions, the Attorney-General shall not be subject to the direction or control of any person or authority. Such authority would include the Judiciary and unless the courts can interpret the Constitution such as to obtain the power to direct the Attorney-General, the LSK has clearly lost on this ground. 

Attorney-General is defending himself in a criminal trial that he is entitled to terminate

But say that Wako does not relent and allows the prosecution of himself to take place. Would you be convinced that an honest criminal trial is being conducted and that the result will be as per the justice of the case? Would you buy the story that Kenya has advanced so much that the Attorney-General is defending himself in a criminal trial that he is constitutionally entitled to terminate without giving reasons to anybody and yet he thinks it’s important that he be tried? How many people will not believe that it is a magic show?

And pardon me for not having begun by telling you that no person can be charged with the offence of abuse of office without the prior consent of the Attorney-General. Section 101 (3) of the Penal Code Cap 63 which the society is using states very clearly: “A prosecution for any offence under this section or either sections 99 and 100 shall not be instituted except by or with the sanction of the Attorney-General.””

The one point which the society will likely win is that the powers of the Attorney-General under the Constitution to terminate cases cannot be delegated to officers subordinate to him. Section 26 of the Constitution subsection (6) states that the powers of the Attorney-General to take over and discontinue cases shall be exercised by him to the exclusion of any person or authority. Amos Wako will have to show his hand and sign that nolle prosequi. But after that he may be safe.

The only way then that a proper trial of Amos Wako can take place is if, after the complaint is admitted, Wako stops being the Attorney-General until the case is over. And therein lies the highest hurdle. “The Attorney-General may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of the body or mind or any other cause) or for misbehavior, and shall not be removed except in accordance with this section.” I am quoting from the Constitution of the Republic of Kenya.

The Constitution then says that to even be suspended from office, first the question of his removal shall be placed before the President and he is of the opinion that the question should be investigated. Then the President shall appoint a tribunal, then and only then may the President suspend the Attorney-General. So, unless the LSK can present to the President a strong and weighty case for the investigation and removal of Amos Wako, they will invariably also lose on this ground as Wako will continue to exercise his immense constitutional powers to terminate any case against him.

So now that you know the scenario, and the variables facing the LSK, you make the verdict. Is the Law Society of Kenya’s criminal case against Attorney-General Amos Wako a dazzling magic show?