LAW · LAWYERS · LAW MAKERS · LAW KEEPERS · LAW BREAKERS

The office of the Attorney-General has an interesting history. Legal historians trace it back to 1315 when the King of England began appointing lawyers to deal with the business of the monarchy before the courts. As the king was also the protector of the people, he was regarded as the parens patriae, the “parent of the nation”, meaning he was the guardian of the public interest. His attorneys, therefore, carried with them a similar duty to the public. The AG became not only the legal representative of the king, but also the attorney for the people.

When we evaluate Mr. Amos Wako’s performance over the last 20 years, we must begin by fully understanding the duty that comes with the office of the AG. And we must begin from the fact that Mr. Wako was our lawyer, with the duty to represent us in all legal matters and to protect our interests in them.

The powers of the AG are not different from those of any private advocate. Any duly instructed advocate can legally commit the client in any transaction, and the client cannot escape liability by renouncing the advocate’s authority.

Since an advocate has such drastic powers, he is also placed under very strict duties, the most fundamental being that he must be totally faithful to his client. He must not do any act that compromises the interest of his client and must, in fact, pursue every available legal avenue to protect the client’s interest. Similarly, the AG must never do anything to compromise the interests of the people and must, in fact, fight to protect these interests. He must be faithful to the people and their government.

What we are trying to evaluate now is whether Mr. Wako was a faithful lawyer to the people of Kenya. Did he protect our interests? Did he pursue every legal mechanism to advance our cause? Was Mr Wako a genuine parens patriae? The reaction of the public on his tenure shows that the people were not satisfied with his service, and did not regard him as an honest advocate of the public interest.

In the referendum carried out on August 4, 2010, the people voted to sack Mr. Wako by decreeing that he vacates his office within 12 months of the promulgation of the new Constitution. The other public servant to suffer this embarrassing termination of service by public sovereign decree was Chief Justice Evans Gicheru, who was given six months to vacate office.

Mr. Wako does not view it this way because he really never saw himself as the parens patriae. He has never regarded himself as the attorney for the people. In his mind, the AG is appointed by the president so that he can serve the presidency. The best way to determine who Mr. Wako really served is by looking at who were the beneficiaries of his tenure. Is there any way in which the public can be said to have benefited from his tenure? In what ways was Mr. Wako the parens patriae?

I cannot see any way in which Mr. Wako can claim to have fought for or protected the public interest. He may have his explanations and excuses about his failings but he cannot claim to have delivered anything to the people. And it is impossible to identify any tangible benefit obtained by the public from Mr. Wako’s tenure at the AG’s office.

All official evaluations of Mr Wako’s performance are damning.

In October 2005, the Report of the Judicial Commission of Inquiry into the Goldenberg Affair stated as follows: “We did not receive any evidence to show that the Attorney-General moved to order police investigations into the affair. We can only conclude that no such action was undertaken … the record shows the reluctance on the part of the Attorney-General’s officers and counsels for the accused persons to proceed.”

In March 2006, the Public Accounts Committee of the Kenya National Assembly, in its report on the Anglo-Leasing scandal, said: “The committee finds that whereas the provisions of the procurement regulation empower the Attorney- General to participate in all stages, he has not done so in practice.”

Paul Mwangi is a lawyer