AG: Free justice system from Executive

August 25, 2008 12:00 am

, NAIROBI, August 25 – Attorney General Amos Wako wants the entire criminal justice system de-linked from the Executive arm of government.

In his submission at the Justice Philip Waki Commission of Inquiry into Post-Election Violence (CIPEV), Wako said the Justice system was ‘weak because it lacks independence’.

“Lack of independence in the criminal justice system was greatly hampering justice” he said.

He is proposing the establishment of the Directorate of Criminal Investigations under an Act of Parliament, de-linking it from the Police Department and giving its head security of tenure.

“This is the only way to improve the criminal justice system. We need an autonomous Criminal Investigations Department (CID),” he said.

The CID as currently constituted falls under the Commissioner of Police although its director is an appointee of the President for a three year term.

Wako told the commission the department operates under very limited resources.

“We need to have a security of tenure for the CID Director and even the Commissioner of Police. This way, we can be assured of proper investigations,” he said.

Wako said he had made the recommendations to the government but could not divulge the progress of its implementation, if any.

He cited the Directorate of the National Security Intelligence Service and the Kenya Anti-Corruption Commission (KACC) which were established under Acts of Parliament.

“Holders of these two offices are totally independent and enjoy security of tenure. They can not be manipulated by politically-correct individuals,” he said of the NSIS and KACC.

He said lack of security of tenure for the Police Commissioner and the CID Director subjects them to what he termed ‘undue interference from individuals’.

The Police Commissioner is equally a Presidential appointee and serves a period of three years in office.

It is at the discretion of the President to extend the term or terminate it midway.

“There can not be sufficient and proper investigations if we do not have autonomous investigative arms. Without autonomy, such important offices will always lack sufficient resources,” he said, citing the Director of Public Prosecutions (DPP) as another that required autonomy.

To demonstrate lack of sufficient capacity in the country’s investigative arms, Wako said only 20 arson cases had been prosecuted out of 56,000 reported in the Rift Valley.

“Whenever I ask the Commissioner of Police about this, I am always informed that the could-be arsonists can not be traced.” He told the Inquiry.

“I have been given a very long list of some 1,100 suspects said to be in hiding since the post election violence period. These are the people thought to have committed arson,” he said.

Lawyer Ahmednassir Abdulahi challenged the AG to tell the commission why it has taken him too long-17 years to be precise, to realize the problem facing the country’s investigative arms.

Wako has been in office since 1991 when he was appointed as the government’s legal advisor.

There was a light moment at the commission when lawyer Ahmednassir reminded the AG that he was the longest serving senior government official.

“I could be the longest, but I had not thought about it in that context of counting the years I have served, but certainly I could be,” the ever-smiling AG said as he struggled to counter accusation after the other on alleged failure by his office to carry out prosecutions of the post election violence.

At one point, the AG said all the questions regarding the number of cases prosecuted so far, should be directed to the Commissioner of Police.

“I only recommend on files that are put before me and I cannot be keeping up-to-date data as to which cases have gone to court and which ones have not. Those are the questions that can be answered by the commissioner himself,” he said to the amusement of lawyers and participants at the public hearings.

The Akiwumi report on investigations of the tribal clashes also dominated debate at the public hearings, with the AG being put to task to explain why no prosecution had been instituted 10 years since the report was handed to the then President Daniel Toroitich Arap Moi.

Lawyer Mbuthi Gathenji took him to task, and demanded to know the progress of prosecutions and/or investigations after the report that was compiled by three Court of Appeal judges.

In his presentation, Wako had tabled the Akiwumi report and another document titled ‘Government Comments on the Report’ as exhibits.

While insisting the second document was authored by the government, Wako could not disclose who had penned it only saying, ‘it is a government document.’

“This document is unsigned and undated, can you tell this Commission who the author of this document is because you say you did not play part in producing it?” Gathenji posed.

Wako caused more laughter at the commission when he said he did not even bother to read the document because doing so could easily amount to manipulating his work as the principle legal advisor to the government.

He told the commission the document sought to absolve from blame some of the people mentioned as culprits of the ethnic clashes ‘and that is why I chose to ignore it’.


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