BY DONALD KIPKORIR
What Wako did in court may have looked triumphant in the fleet of time, but its echo of undermining the office of the AG as Government\’s Principal Legal Adviser may come to haunt us in the fullness of time
Nearly half of Kenyans have known only Amos Wako as their Attorney General. Though he has been in office for more than 20 years, there is nothing remarkable or memorable about his tenure beside lost and stolen legal and constitutional moments.
If Wako were true to his oath of office, Kenya’s constitutional and legal reforms would have come a decade earlier.
Yet now, as the curtains come down on his tenure, Wako wants to take the high road. It is too late for him to try to re-write his legacy. His open opposition and hostility to the recent constitutional nominations by the President was at the minimum, an attempt to conjure a Houdini act on Kenyans. The magic trick must fail.
To understand Wako’s actions, we need to go back to history. The office of the Attorney General is attributed to the appointment of Laurence Del Brok as the attornitus regis (King’s Attorney) by King Henry III in 1243. But the office as it is now in most countries began in 1461 when John Herbert, England’s Attorney General was summoned to appear for the first time before the House of Lords to advise on matters of law.
Since then, the office of Attorney General became both a judicial and political office.
As set out in our Constitution, the duties of the Attorney General include being principal legal adviser to the Government and representing the Government in legal proceedings in court. What do these twin roles mean?
As principal legal adviser, the AG is to be faithful to the letter and spirit of the law to see to it that the Government adheres to the rule of law. The basic structure of rule of law is that the three arms of government, viz. Executive, Legislature and Judiciary are left to work without interference. The AG is to give his advice to the various arms and departments of Government without fear or favour but demonstrate consistency in application of the law.
Later, the role of the AG has developed in many countries to include being parens patriae; the guardian of public interest. Again, the concept "public interest" is nebulous as it could mean anything to any society or nation-state depending on their culture and state of development. But what is common to all is that public interest of a defined group of people or nation-state is that which is generally accepted as being in their good. That people enjoy certain level of security in their lives and environment is said to be in public interest. That there are no killings, robberies, environmental pollution, or destruction of private property are said to be in public interest. That court orders are obeyed and implemented is in public interest. That elections to elective offices of the Presidency, Parliament and Local Authorities are transparent and legitimate are in public interest. The AG is obligated to protect these.
The office of the Attorney General is prestigious, but demanding on the body and conscience. Being convergence of law and politics, the occupant has to tap onto all his talents to remain faithful to the oath of office. The AG sits in the Cabinet and therefore a member of the Executive and yet, he is asked of to protect the public from the excesses of the Executive. Many occupants of this office across the ages have lamented that it is like working in hell. All other ministers are only answerable to the President or sovereign.
Being a member of the Cabinet, the AG is bound by collective responsibility of the Government. The Head of Government is the President. Can therefore the AG contradict the President’s publicly stated position on any issue? If the President has announced nominations to any public office, can the AG countermand? Can the AG go to court and take a position hostile to that of the President?
I opine that the AG cannot disown the President in public or in court without bringing the AG’s office to disrepute.
The AG advises the Government in private especially if it is one that is contrary to the Government’s expectation.
What options does Wako have if his position on any subject contradicts that of the President or indeed of any minister? He ought to advice them in private. And if the President refuses his advice, the AG must as a matter of principle resign. It is the only high road he can take. I have tried finding one example of any country where the AG has taken a public position contrary to that of the Government that nominated him and I could not get. I realised that Wako may actually have scored a first as an AG gone delinquent.
Wako may have scored high in popularity ratings with a large swathe of public for the position he took in opposing the four nominations.
However, his act though popular, may actually undermine the very constitution he was purporting to protect. As principal legal adviser to the Government and its lead litigation counsel, in going to court and filing pleadings against the Government he represents, he committed a cardinal sin in advocate/client relationship.
The Government is the AG’s main client, and the public interest second. Which lawyer can go to court and take a position hostile to his client? Only a rogue one.
What Wako did in court may have looked triumphant in the fleet of time, but its echo of undermining the office of the AG as Government’s principal legal adviser may come to haunt us in the fullness of time.
Wako’s last act rings hollow through his 20-year tenure. The most honourable thing he can do is tender his resignation. To hold on until August when he is no longer trusted by the person who inherited him maybe symptomatic of moral and intellectual vacuity. And to remain in office when the President will no longer call him for advice is public fraud, as we will be paying him a salary for services not rendered. Fare thee well Amos.
(Donald Kipkorir is an advocate of the High Court of Kenya. This article was first published on the Standard on Sunday)