Wako: The day I escaped in Kikwete's car

By Oscar Obonyo

Outgoing Attorney General Amos Wako, has for the first time, lifted the lid on some of the deep Government and personal secrets he has guarded jealously over the last two decades he has served as chief legal advisor to Presidents Moi and Kibaki.

In a candid interview with The Standard On Sunday, two days before he leaves office, Wako talks on his association and deals with Moi and Kibaki, frustrations under Kanu hawks of the 1990s.

Attorney General Amos Wako

And, most recently, on the day he fled from hostile parliamentary colleagues by sneaking into a visiting Head of State’s car.

"I did not want to engage in arguments with them. I got out of Kikwete’s car at the airport, from where I called my driver to come and pick me up."

"Kikwete was the first to leave, and I could not wait for my car."

But it is the bullying at the hands of President Jakaya Kikwete and former United Nations Secretary General Kofi Annan, following the botched 2007 presidential election, that remains etched in the mind of one of the continent’s most decorated lawyers.

As the country burnt, leaving about 1,200 people dead and thousands more maimed and homeless, four men gathered at the President’s Harambee House office agonising over how to end the mayhem and resolve the political stalemate.

Searching for ‘the truth’

The man who celebrated his 66th birthday last month recalls being herded into a tension-packed room and bombarded with questions.

Of course, he had been in this room countless times in the course of duty, but this day it was different.

Four men – Mwai Kibaki, Raila Odinga, Kikwete and Annan were peering at him, searching for ‘the truth’. The talks had hit a deadlock with neither Kibaki nor Raila giving in to the demands of the other. Nonetheless, a few generalities had been agreed upon, including formation of a shared Government. Even then the two leaders could not agree on how to operationalise the deal legally.

"Kikwete and Annan wanted my legal advice on whether an Act of Parliament was enough to underpin the MoU into the Constitution," recalls Wako.

Not sure of the President’s stand on the matter, the AG sought a moment to whisper with his boss. But Kikwete and Annan rejected the idea, demanding he speaks his mind before them.

Feeling harassed, Wako tried to shoot a few leading questions to everybody, hopping President Kibaki would pick the signal by giving a leading response.

"You see, I was in a fix and I needed to gauge his take on the matter, before giving my honest opinion. But the Tanzanian President would hear none of this. He ordered that I give them a straight answer," recounts Wako.

The AG gave his boss one lengthy look and on reading his body language, advised accordingly.

The National Accord needed to be entrenched into the Constitution, and not as an Act of Parliament.

"There was a sigh of relief in the room as those present had probably expected me to blindly take the rigid position that had been publicly espoused by PNU allied legislators, who wanted to hear nothing of the power-sharing deal," says Wako.

With Wako giving the pact a nod, the deal was as good as sealed. Raila’s legal advisor, James Orengo, was not expected to give a contrary opinion. This is because Raila’s ODM was by this time outside Government and trying to get in following Kibaki’s announcement of the initial half Cabinet.

Orengo was called in immediately after Wako and on agreeing with the AG, the two were tasked to draw up the relevant legislation within three hours.

But for his role in persuading Kibaki to append his signature to the document, the AG was considered a pariah by the PNU brigade, who gathered at Harambee House for the historic breakthrough announcement by President Kikwete and Dr Annan.

To avoid the hostility and questioning from embittered colleagues, particularly from members of the President’s party, who represented his side at the Serena Hotel talks, Wako jumped into Kikwete’s official car as he left for the airport back to Dar es Salaam. He needed to cool off.

Asked why the President’s men and women were baying for his blood yet ODM loyalists and constitutional experts have pointed out that Raila’s party was shortchanged in the deal, Wako blames it on the Orange team.

"I have been blamed for allegedly playing mischief in ensuring President Kibaki’s retention of executive authority. That was for ODM to ensure a better deal at the bargaining table, otherwise my business was to entrench, appropriately, the agreed deal between the two into our Constitution," he reacts.

As the interview proceeds on a settee in his office, one of the AG’s phones rings. And although he has been ignoring all calls, including beeps, he returns to his desk. It turns out it is the hotline – a direct line from one of the principals.

Non-judgmental character

After the brief chat, which from the mention of ‘files’, ‘Bills’, ‘Parliament’, I gather it is about the Constitution implementation. Indeed, Wako is so engrossed in the exercise even in his last hours at Sheria House.

After a spirited chase of over three months for this interview, we got it on Friday– at 7am. Even then, from the look in his eyes, it seems he wants to discontinue it for "other pressing matters".

"That was the PM – my brother – and I am just reminded, I have to leave soon for Parliament," he announces.

"Is that so? Please allow a few more minutes. Otherwise, why do you refer to the PM as your brother?" "I mean he is much closer to me, by biological age, among the two principals. And of course that makes me freer with him than the President," he explains. And prodded over his working relations with President Kibaki, the outgoing AG says Kibaki is probably the most misunderstood politician.

"I regard and refer to him as ‘Kibaki the intellectual’. It is always an illuminating experience interacting with the President privately," says Wako.

The President, he observes, is an alert and a calculating politician, who knows what he wants.

This observation of Kibaki is indeed curious, as there has been the notion that the President is a laidback politician. Apparently that is the faÁade he wants to project and one that gets his opponents underestimating him.

And on Vice-President, Kalonzo Musyoka, Wako describes him as a professional colleague whom he has known for a long time.

"He did his pupilage at Kaplan and Stratton law firm where I was a senior partner."

Separately, Wako describes retired President Moi as a pleasurable boss he loved working with. Describing him as a man "who kept his word", Wako says he and Moi had a few deals they kept under wraps.

One such moment was in 1991 when Moi called him at a location, which he won’t disclose, on the eve of the Kakamega Agricultural Show of Kenya and advised him to prepare a legislation repealing section 2A of the Constitution.

Even as Kanu operatives spoke against multi-party democracy at rallies, Wako and Moi cheered on. And when, later that year, he declared the return to multi-party politics during Kanu delegates’ conference at Kasarani Gymnasium, there were protests and disbelief by some diehard supporters.

But the smiling Wako, who sat pensively in the crowd, was ready with the relevant Bill, which he presented to the House the following week.

Indeed Wako had a curious relationship with Moi.

To him, he says, the President was a father figure. His appointment was even more dramatic. It came through while he was en route to Brussels from Kinshasa, Zaire, on a United Nations assignment.

He was investigating the Lubumbashi mass killings.

"I was not consulted about the job. My initial thought was to decline, since I was climbing fast within the United Nations establishment. I knew it was going to interfere with my international progression," he says.

Besides, he had to make a major financial sacrifice – in terms of remuneration as opposed to the high-profile UN engagements. On second thought, however, he grabbed the opportunity to make a contribution to his country.

But soon, Wako would encounter the marauding all-powerful Kanu party hawks, most of who regarded him disdainfully as a Kanu employee, and publicly contradicted his positions on issues.

The parliamentary group was particularly notorious as it often rejected Bills he had prepared at public rallies and during press conferences.

Initially, he could not bear the frustrating moments and wanted to quit. This was after one Bill he had worked so hard on was mutilated by MPs.

The last that remained of it was trashed by the Kanu parliamentary group, which ordered him to withdraw it.

The outgoing AG also remembers a second case, while working on the Constitution of Kenya Review Act, July 1997. He invited two representatives from each parliamentary political party at County Hall, only for Kanu Cabinet ministers to force the AG to call it off.

The other incident involves the President’s New Year message in January 2002 in Nakuru where he announced the Government’s plan to appoint external experts to help draft of a new Constitution. But an excited Wako danced himself lame before the main dance.

He embarked on a globe trotting assignment, which took him to Europe to scout for the best legal minds. When he returned, Kanu operatives told him Kenya was not in a constitutional crisis. The idea was shelved and Wako had to leak his wounds in the eyes of international peers.

When it became impossible to overhaul the entire Constitution, Wako embarked on discreet measures of realising his dream through piecemeal amendments. This worked momentarily and he even succeeded to sneak in a pro-poor clause requiring that the poor be offered free legal aid.

He further set up 17 task forces but even these were frustrated when a Cabinet colleague claimed President Museveni’s intelligence team had penetrated the committees. Soon the Finance PS was asked to stop funding the committees. Still, Wako says he smiled on. But come 2007 and he was decided on resigning after the General Election.

For a soft landing, Wako had successfully staged a fruitful campaign and gotten elected as member of the United Nations’ International Law Commission – one of the only five UN top organs. But the bloody events of 2007, he says, meant he stays on.