Amos Wako – The stealthy solicitor

Wako served undisturbed under two presidents whose political and policy outlooks were so starkly different as to be diametric. He also served with and without a Minister for Justice and Constitutional Affairs, and was AG in the single-party era as well as the multi-party democratic dispensation.

Wako was appointed AG by President Daniel arap Moi on 13 May 1991. There is consensus among observers and critics that from 1983 to 1991, the Kenya African National Union (KANU) party’s style of governance intensified in repressiveness, autocracy and corruption. Many commentators framed Wako’s appointment as a desperate ruse by the regime of the day to exploit well-regarded professionals to clean up the government’s reputation.

In this regard, Wako was also seen as a renegade who had betrayed his colleagues on the righteous reform bandwagon for a high appointment in an unpopular and abusive regime. None of his critics, therefore, was amenable to seeing, much less saying, anything positive about his appointment. Indeed, a lot of ink and airtime has been expended in portraying him as a key enabler of the single-party era’s excesses.

On the other hand, Wako had been a highly accomplished and decorated lawyer, well regarded locally, regionally and internationally. A year after completing his Bachelor of Laws at the University of East Africa, he was enrolled as an advocate of the High Court of Kenya. As he honed his skills as a legal practitioner, Wako also pursued a Bachelor of Science in Economics – specialising in international affairs – at the University of London from where he graduated in 1977. Evidently disciplined and highly motivated, Wako evinced a self-application that saw him get admitted as a fellow of the International Academy of Trial Lawyers in the same year.

In 1978, he graduated with a Master of Laws from the University of London. Again, he had pursued a specialisation in international dimensions of economic law and the law of treaties as well as comparative constitutional law. Long before the Kenyan chapter of the Chartered Institute of Arbitrators was inaugurated, he had been admitted as a fellow in 1983.

In this highly active season of his life, Wako was involved in a busy legal practice, beginning as an associate at the prestigious Kaplan & Stratton Advocates in 1969, before rising to partner in 1972. A decade later, United Nations Secretary General, Javier Perez de Cuellar, appointed him to represent Africa on the Board of the United Nations Voluntary Fund for Victims of Torture. His term was subsequently renewed by Boutros Ghali and Kofi Annan. Wako served on the Board until 2004.

In the same year, he was appointed Special Rapporteur of the United Nations Commission on Human rights on the Question of Summary or Arbitrary Executions. In this capacity, he undertook special missions to Uganda, French Guyana, Colombia, Zaire and Suriname, and visited Denmark and the Netherlands for consultations. He also held Annual Joint Hearings with the UN ad hoc Working Group of Experts on Southern Africa, which took him to London, Lusaka, Harare and Dar es Salaam. Additionally, he gave lectures in workshops in the Philippines, Zambia, Rwanda, Togo and Cameroon on international human rights and reporting mechanisms as well as international humanitarian law. He also advised many countries on setting up human rights commissions.

Such was his international profile that the government of New Zealand invited him as guest of honour for the 40th anniversary celebrations of the Universal Declaration of Human Rights.

The year of his appointment as AG also marked the end of his eight-year term as a member of the Human Rights Committee. He had been elected under the International Covenant on Civil and Political Rights and served his final year as the committee’s vice chairman.

In 1981, Wako was elected as a commissioner of the International Committee of Jurists and joined its executive committee in 1985, where he remained until 1991. Between 1984 and 1991, Wako was a member of the Churches Commission on International Affairs at the World Council of Churches. In 1991, he also undertook a number of missions on behalf of Amnesty International and between 1988 and 1990 was Deputy Secretary General of the International Bar Association and chairman of its 1990 Biannual Conference in New York.

Wako also served as Chairman of the Law Society of Kenya, Association of Professional Societies of East Africa and the Public Law Institute. He was Secretary General of the Africa Bar Association and Inter Africa Union of Lawyers, and a member of the International Advisory Panel of the World Copyright Arbitration Centre and the International Bar Association.

This was Wako’s colossal professional stature at the time of his surprise appointment to the Cabinet under Moi. A close examination of his tenure as AG, however, reveals that his appointment coincided with the beginning of welcome changes in governance. These incremental democratic and constitutional reforms gathered momentum under Moi and hit a historic crescendo under President Mwai Kibaki with the promulgation of the Constitution of Kenya 2010.

Only months after his arrival, momentous legal and political changes were launched. In December 1991, Section 2A of the Constitution, which made Kenya a de jure single-party State, was repealed. This was swiftly followed in 1992 by the permission of greater freedom of expression and association. Political prisoners were released around this time and many of them went on to contest the General Election. The multi-party Parliament of 1993 had members who had left prison hardly a year previously, steadfastly holding government to account from the Opposition benches. It also had Wako’s former Cabinet colleagues who took advantage of the emerging democratic space and left government to compete against Moi for the presidency, including the Democratic Party’s Kibaki.

In 2002, he was at hand to oversee the first transition of governments through an election between rival parties when the Opposition coalition, National Rainbow Coalition (NARC), trounced the ruling party, KANU. In 2008, he oversaw the transition from NARC to the Government of National Unity, whose creation he had also overseen through the National Accord following a post-election crisis. Finally, Wako oversaw the transition from the old Constitution and promulgation of the new, which ushered in a progressive, rights-based, citizen-centred democratic dispensation.

Wako had drafted the proposed new Constitution based on the Constitution of Kenya Bill of 2005 as drafted by the National Constitutional Conference and amended by the National Assembly. The draft eventually came to be known as the Wako Draft, which became the foremost casualty of the tumultuous fractures that beset NARC as one faction mobilised vehement opposition, leading to the government’s resounding defeat in the ensuing referendum.

Kenyans generally felt that a lot of the reforms Wako steered to dismantle the one-party regime were long overdue. For this reason, their gradual and incremental pace was never going to placate a nation impatient for change. Although the AG prevailed in the Herculean task of coaxing the KANU system to embrace changes that were certain to ultimately retire it, the milestones were never quite enough. His achievements were diminished by popular expectations.

A major milestone in this arc of change was the shift to multipartism in 1991. KANU retained power in the General Election a year later, but only by the skin of its teeth. Violent tribal clashes, police brutality and abuse of State resources were cited as the principal explanations, but the statistics tell a different story – the Opposition’s fission into disparate rival factions destroyed any chances of overthrowing Moi, who scraped by with only a third of the vote.

For the second onslaught, reformers demanded the expansion of democratic space through greater freedom of assembly and expression, as well as the enhancement of electoral integrity and credibility. These demands culminated in the famous Inter-Parties Parliamentary Group reforms package that significantly levelled the playing ground in the 1997 contest, which Moi won again albeit with an even weaker lead against a more divided Opposition.

As 2002 approached, the question of whether Moi would accept term limits preoccupied Kenyans and international observers. The other concerns were whether, having retired, he would countenance the electoral defeat of his anointed successor. In the end, the answer to both was affirmative, and Kibaki, by then a veteran Oppositionist, took over government with a very strong mandate. Once more, Wako was at hand to counsel Moi to restrain KANU and graciously exit.

To everyone’s surprise, Wako retained his place in government. No doubt Kibaki was fully aware of the AG’s sterling contributions to the creation of the enabling conditions leading to his presidential triumph. This thesis is supported by Kibaki’s well-known attitude towards his predecessor’s approach to government and is further buttressed by the purge that ensued of powerful officials perceived to have been enablers of KANU’s worst excesses. That a highly visible member of government like Wako survived suggests that his reformist credentials were well recognised.

In addition to his vast local and international experience, and admirable track record of overseeing incremental institutional reform, Wako was unflappable in the face of daunting political power and possessed prodigious diplomatic nous to enable him to get on the good side of every player he interacted with. Wako also had inexhaustible patience and stamina, enabling him to endure daunting obstacles and patiently negotiate his way around arduous complications of bureaucracy, political intrigue and resistance.

As he settled in, Kibaki resolutely initiated key institutional changes to align bureaucratic delivery with his vision for government and deliver on the raft of transformative commitments his NARC campaign had made. The milestone feats Wako accomplished in Kibaki’s first term include the preparation and negotiations around the Wako Draft and the legal framework for the 2005 referendum. Kibaki’s pledge to put a constitutional review proposal to a referendum only materialised three years after he took office, and failed spectacularly – while Wako could weave compromises around conflicting interests among competing groups, he was sorely ill-equipped for the unprecedented fractiousness of intra-administration animosity that buffeted the new President’s first term.

The schism precipitated by claims of a dishonoured power-sharing pact tested the fragile unity of NARC and threatened the effectiveness and resolve of the administration. The debacle at the plebiscite was a warning signal that the foundation of Kenyan nationhood and the principles underlying the State, as expressed politically, were no longer adequate, and would easily unravel in the face of unbridled contestation.

It was understood, post-referendum, that unfinished business had been deferred to the 2007 General Election. A triumphant ‘No’ faction – spearheaded by Raila Odinga, the man who had more or less paved the way for Kibaki’s triumph at the ballot in 2002 – mobilised under the electoral symbol of an orange and brought together diverse interest groups that were against the draft Constitution. On the other hand was the government side which, smarting from the shocking humiliation at the referendum, rallied around the Government of National Unity that had replaced the NARC administration. By election time in 2007, the orange group had splintered into the Orange Democratic Movement (ODM) party and the ODM-Kenya party. Meanwhile, the Government of National Unity had formed a last-minute alliance to beget the Party of National Unity (PNU).

The mains contention was a Kibaki-Odinga rivalry expressed electorally. The stakes were stratospheric – ODM was eager to replicate its referendum coup and take over national power, and PNU gave its all to avenge its shameful rout. The election was close, and there was no institutional mechanism to manage the volcanic upheaval that exploded following the declaration of Kibaki as the winner. As Odinga dug in with demands for a repeat election, Kibaki named his first Cabinet. Wako was on the list and he immediately embarked on back-channel mediations while identifying possible neutral umpires to settle the bitter contest over presidential power.

A Kofi Annan-led team of eminent persons was finally selected to mediate the dispute. The final settlement, reached after months of gruelling adversarial encounters, was a National Accord. This memorandum was the settlement that set out a roadmap towards implementation of specific reforms to right the wrongs that had precipitated the post-election crisis and stabilise Kenya’s democracy. It was enacted by Parliament as the National Accord and Reconciliation Act 2008, and subsequently entrenched in the Constitution by a parliamentary amendment. Among other things, the Act provided for the formation of a coalition government, and creation of the positions of Prime Minister and deputy prime ministers.

Wako played an active, visible role in all this and subsequently, the four-step agenda to implement far-reaching reforms had to be shepherded through the legislative process. In particularly, the so-called Agenda 4 provided the opportunity to undertake a wide raft of institutional changes, including the creation of what came to be known as Agenda 4 commissions to investigate and make recommendations on the electoral system, post-election violence and historical injustices. The Kriegler Commission (the Independent Review Commission), the Waki Commission (Commission of Inquiry into Post-Election Violence) and the Truth, Justice and Reconciliation Commission affected developments in the country tremendously.

In April 2008, the coalition government was finally inaugurated, with Kibaki as President for his last term and Odinga as Prime Minister. Uhuru Kenyatta and Musalia Mudavadi were Odinga’s deputies and Wako remained as Attorney General. It had become clear that the National Accord, Agenda 4 commission recommendations and the Kenya National Vision 2030, as well as other factors, made constitutional change imperative if Kenya was to acquire a new lease of life as a peaceful, prosperous, united and stable nation.

The work of constitution making was therefore a fundamental deliverable of the coalition government. Wako oversaw the assembling of the Committee of Experts, among whom he sat, that spearheaded the patient collecting of views from a diversity of individuals and interest groups throughout the country, before collating a final report that informed the drafting of the Constitution. The harmonised draft that came out of this process was published and thereafter submitted to the Parliamentary Select Committee and the National Assembly. Again, Wako, as an ex officio member of the National Assembly, was at hand to shepherd the draft through the legislative turbine. After Parliament’s affirmative vote, the draft was published as the proposed new constitution, which was subjected to a referendum on 4 August 2010.

Despite a fiery campaign by a ‘No’ coalition, the proposed document was approved by 6,092,593 voters who made up 66.9 per cent of the total vote. On 27 August 2010, therefore, Wako flanked President Kibaki as he delivered a legacy-shaping document whose transformational impact reverberates in every part of Kenya to date.

This culmination was especially dramatic in Wako’s case as the Constitution he had painstakingly midwifed after several false starts dictated that he must retire within a year. His two-decade crusade of reform nevertheless went on. Within a year he was required to draw up bills for passage in Parliament in order to give effect to the new Constitution. In the process, he was also expected to effect the constitutional and statutory frameworks necessary to create institutions required by the Constitution.

Wako’s admirable career was not without blemishes. The KANU government in particular executed, or condoned, the perpetration of the most scandalous corruption rackets in the country’s history. At the same time, there were egregious violations of human rights and democratic freedoms committed by the State and its agents. While formally in the clear in many cases, it has been widely agreed that Wako could have done more to counsel the government to do the right thing, or at least avoid or prevent the wrong things.

The Goldenberg scandal, in which the government paid more than KES 50 billion to dubious entities in an outrageous export compensation scheme whose hallmarks were fraud, forgery, deception and plain theft, is a case in point. Although the chain of responsibility pointed towards abuse of office at the highest levels of government, Kenyans were frustrated by the absence of intervention or other involvement by Wako.

Similarly, the notorious Anglo Leasing scandal, in which government paid a fortune for goods not delivered and services not rendered to companies not existent did not reflect favourably on Wako. State officers entered these transactions and created binding instruments under circumstances that painted the AG as having been complicit, oblivious or otherwise negligent in his duties. As a result, he endured immense local and international opprobrium. The United States of America went to the extent of publicly designating him and sanctioning him in various ways allegedly for “aiding and benefiting from significant corruption”.

Moreover, alleged cases of extra-judicial killings, abductions and torture caused a local and international uproar, with human rights advocates accusing the government of incorporating units within the security services to conduct these outrages. Again, there was frustration at Wako’s allegedly lacklustre interventions to steer government policy towards more enlightened practices.

A notorious and equally celebrated attribute of Wako is his perennial grin. Also legendary are his work rate, his voracious appetite for reading and a painstaking attention to minute details.

Born in July 1945, Wako was accustomed to power by his upbringing, learning to hold his own with formidable authority figures at an early age. Raised by the redoubtable patriarch Daniel Wako, a noted pioneer educationist and public figure, Wako was a senior prefect and later school captain at Alliance High School under the legendary disciplinarian and fabled schoolmaster, Edward Carey Francis. What would later serve him well as his key strengths were already well developed before he joined university – it is clear that by the time he entered government service as Attorney General, he was more than prepared for the huge task that lay ahead.

In the 2013 General Election, the first under a devolved system of government, Wako contested the Busia County Senate seat and won, becoming the first senator for the county. He successfully defended the seat in 2017.

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