Monday, August 29, 2011

Wako: I ensured coalition talks didn’t collapse



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HEZRON NJOROGE  | NATION Mr Amos Wako, Kenya’s longest serving Attorney General.
HEZRON NJOROGE | NATION Mr Amos Wako, Kenya’s longest serving Attorney General. 
By MUGUMO MUNENE mmunene@ke.nationmedia.com
Posted  Sunday, August 28  2011 at  22:00
IN SUMMARY
  • In the second part of the series on former Attorney General Amos Wako, we bring you insights into his role in the formation of the Grand Coalition Government and his greatest regrets in his two-decade reign at the State Law Office
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Mr Amos Wako says he saved the day in 2008 when talks between PNU and ODM in the midst of post-election violence were headed for collapse.
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Hardliners behind President Kibaki and his rival in the disputed elections, Raila Odinga, were becoming obstructionist, so mediator Kofi Annan decided that the impasse was enough.
The former UN secretary-general opted to bypass the appointed negotiators and deal directly with President Kibaki and Mr Odinga.
He called a meeting on February 28 and made it clear that only five participants would attend: President Kibaki and Mr Odinga, Tanzanian President Jakaya Kikwete (then chair of the AU), former Tanzanian President Benjamin Mkapa (member of the Panel of Eminent African Personalities), and himself.
The dispute was whether the proposed office of Prime Minister would wield executive powers and if it would require a constitutional amendment.
President Kibaki’s PNU negotiators insisted that an ordinary Act of Parliament would suffice while Mr Odinga’s ODM representatives said any power-sharing deal not anchored in the Constitution would be open to manipulation.
The importance of the term ‘supervise’ in the agreement was the scope of powers this gave the PM.
In an interview published under the titlePrisoner of Peace, Mr Annan described how President Kibaki read the draft law that would establish the coalition government.
“Kibaki read it very carefully — he must have read it twice. And then I said, ‘I also want you to go through the text of the Act. There are a lot of brackets, which your people couldn’t remove; it doesn’t make sense to me and I think we can remove them here — between the five of us.’ So we got to work! We went through paragraph by paragraph — some we dropped, some we didn’t. And then we got to the constitution issue, and I said, ‘You haven’t dealt with the Prime Minister issue’, and he said ‘No, the constitution says it’s difficult’, and I said ‘We brought a lawyer in, and Mr President I think it can be done.’ And he asked for Amos Wako,” writes Mr Annan.
An important point here is that when it came to crunch time, President Kibaki asked for the ‘outsider’, Mr Wako, rather than the lawyer-politicians such as Ms Martha Karua, Mr Kiraitu Murungi and Mr Mutula Kilonzo, who were key in his negotiating team.
It was Mr wako who gave the opinion that it was okay to anchor the proposed government arrangement in the Constitution — in a departure from what the PNU negotiators had proposed.
Although Mr Wako is categorical about how he played that role, Mr Annan’s account paints the picture of a man reluctant to take a firm lead.
“I had said [to the Attorney General], ‘Look, you agree with this proposal...that this is the neat option.’ He had started by arguing the government option; I had said, ‘It’s no good; you know that this is better.’ We had gone back and forth. Anyway, he had come to see me and I had asked him, ‘Can you propose this?’ and he’d said, ‘I can’t but if I’m placed in a situation where I’m asked if this will work, I will say, “yes”.’ So that was the situation we had at the President’s office,” writes Mr Annan.
In a wide-ranging interview, Mr Wako says that the negotiations marked some of his most difficult days in his 20-year career.
Greatest regret
His greatest regret was that the retired President Moi Cabinet rejected the constitutional overhaul that he had proposed in 1992, about a year after he assumed office.

“If the Constitution I drafted in 1992 or even substantial portions of it had been accepted and enacted at the time, the history of Kenya would have been different. We have taken a long time in discussing the process of review, lost lives and resources that could have been channelled to economic and social development. Where would we be today? Maybe like Malaysia and Korea,” Mr Wako told the Nation.
In the proposals was the position of an executive PM, an allowance for multiparty politics, the expansion of the Judicial Service Commission, the establishment of a Supreme Court and that the President should not be an MP.
He also tried to restore the function of the Electoral Commission of Kenya which had been illegally passed on to civil servants.
“The Cabinet met and said that we should only limit ourselves to constitutional amendments that relate to the elections. The ECK had up to then been confined to determining boundaries. The rest of the functions had been unlawfully and unconstitutionally delegated to an official under the AG called the Supervisor of Elections. The Provincial Administration provided the retuning officers. I thought this was wrong with a multi-party democracy. It was extremely critical that we have an independent electoral commission,” he noted.

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