Out goes Wako but what awaits his successor?

By Beauttah Omanga and Vitalis Kimutai

In a week’s time Kenya will have a new Attorney General as the curtain comes down on the career of the ever-smiling Amos Wako.

Outgoing Attorney General Amos Wako.

The incoming AG, who will also double up as Government’s chief legal advisor, has a full in-tray waiting. Top on the priority list would be the passage of crucial Bills which is the most daunting of the tasks the new appointee to be named any time now by the President and Prime Minister has to wriggle through.

He or she will be expected to play a critical role in ensuring a smooth handover by President Kibaki, paving the way for Kenya’s fourth President and the first under the new Constitution.

Wako will take credit for helping the country get a new Constitution but he leaves behind serious challenges facing the enactment of the crucial Bills required to implement the Constitution.

Apart from the Bills, the incoming AG will also take on the task of interpreting grey areas in the Constitution, including making a decision on the exact dates the next elections will be held.

"He or she comes to office at a time when the Executive and Legislature are active on issues of devolution and he will be a key player in offering the required advice and legal opinion on the process," said Vice-President Kalonzo Musyoka.

The new holder of the office will entirely be looked upon to provide legal assistance in rebuilding the new republic in line with the new Constitution. "Constitution implementation will remain a big challenge over the next four years for the new AG and the country," says Justice minister Mutula Kilonzo.

End to delays

He or she will be expected to help Kenya by having in place laws that would take the country higher by ensuring timely and acceptable Constitutional Bills and end to delays and blame games in the implementation process.

Mutula argues the AG should have been appointed last year adding this would have made many issues like handling of the International Criminal Court cases at The Hague easier for the country.

Kalonzo said under the current constitutional dispensation, the role of AG will be that of legal advisor to the Executive.

He said although AG’s prosecutorial duties have been taken over by the Director of Public Prosecution, he or she will still have the big challenge of advising the President and officers under the Executive arm of government.

He argued the next AG would also be required to give a legal opinion on constitutional implementation, especially on devolution.

Principals faulted

Gichugu MP Martha Karua faulted the President and Prime Minister Raila Odinga for failing to pick Wako’s replacement earlier. Karua, a former Justice minister said the two Principals were dilly-dallying on the matter when timelines for implementing the Constitution were drawing nearer.

She said the process should be hastened to ensure implementation timelines were met to avoid confusion and crises.

Karua said the new should AG take charge of the construction of the new Kenya through Bills and their legislation.

Lawyers interviewed among them, Mr James Mwamu and Ms Priscilla Nyokabi, argued the next General Election will be a litmus test to the new AG as the electoral laws are expected to pass through his or her office ahead of actualisation for a flawless electoral process.

He or she will be required to guide the country’s political class on the fate of aspirants who will miss the Presidency with some already interpreting the law in a manner skewed to suit their interests.

"The AG must ensure the law is abided by to restore order in political parties and curb last-minute defections by candidates," said Nyokabi, a director at Kituo Cha Sheria.

Political cold

According to her, politicians picked as running mates of presidential candidates upon losing their bid, automatically proceed to a ‘political cold’ for five years. "The law is clear that you can not run for two offices at the same time. Those who want to gun for the presidency must calculate well ahead of next year,’’ advised Nyokabi.

Mwamu said the recent spat between the AG, the Constitution Implementation Commission and the Justice minister was uncalled for. He said he expects the incoming AG to move with speed, co-operate with the CIC, which is headed by Mr Charles Nyachae and the parliamentary committee on implementation to beat the deadlines.

"The law is clear that the AG can not afford to work in isolation. He has no choice but to work in tandem with the CIC," said Mwamu who is Vice-President of the East Africa Law Society.

He said duties of the AG should not be just generating Bills to beat deadlines but ensuring wider consultations ahead of their drafting.

Mwamu said the new AG must be "a man or woman of great legal understanding, sound credibility, and one beyond reproach so that he or she can be banked on by the two political competing interests in next year’s general election."

Nyokabi argued before the new AG comes in, Wako should be asked to ensure all important Bills are passed before he leaves office.

The Bills that deserve urgent attention, Nyokabi says, include the Elections Bill, Political Parties’ Bill, Kenya National Commission Bill, Gender, Ethics and Integrity Commission.

Work overtime

"The remaining days before Wako leaves office are enough since Parliament is ready to work overtime. The country should not rush the process of hiring a new AG merely because of the August 27 deadline," argued Nyokabi.

She contends the two Principals should invite applications from qualified Kenyans and then pass them over to the vetting team led by Cotu Secretary General Francis Atwoli.

"Just like the Chief Justice, his deputy and Director of Public Prosecutions went though public vetting, the next AG too should be vetted. The holder of that office must have the support of all Kenyans to avoid suspicion as has been the case with Wako," advised Nyokabi.

Kibaki and Raila have been undecided on whom to nominate as Wako’s successor. Civil society groups led by Mr Ndung’u Wainaina explained the new Constitution did away with the Office of Ombudsman (Public Defender) and vested its powers in the AG’s office.

"Other than advising the government, the new AG will have additional powers and responsibility of ensuring public interest, basic human rights and rule of law are protected and any infringement punished," added Wainaina.

"We must guard against temptation to hire people who lack convincing record of independence and professionalism. We urge the Principals to open up the process to genuine and effective public participation. They must resist temptation to use this important position to trade-off between themselves and appoint their cronies,’’ Wainaina told The Standard.