Why Wako should quit

By OKIYA OMTATAH OKOITI
Published November 9, 2009

Far from being a soothing statement, it was like adding salt to our festering wound to waste our very limited taxes on paid up press advertorials in which, referring to himself largely in the third person, Attorney General Sitswila Amos Wako defended his tenure by projecting himself as a reformer, and imputed malice on the part of the US Government for revoking his visa.

Presenting what is really a colourless list of achievements after two decades in absolute power, Mr Wako falsely claims credit for what others suffered personal pain, and even death, to achieve, like instituting multiparty democracy. Mr Wako misleads us further that his office is not an issue under Agenda 4 yet envisaged judicial reforms will encompass his office which is a key component of our justice establishment.

Illeism, the act of referring to oneself in the third person, has a dark history associated with absolute monarchs, dictators, and supreme egoists. It is a sign of arrogance, and it betrays a delusion of superiority. It’s okay when a mother says to her baby, ‘Mama will do X or whatever’, but it’s very weird in adult conversation.

Illeism is a symptom of narcissism, the personality trait of misplaced self-esteem. The self-absorption includes character traits concerned with self-image or ego, denoting vanity, conceit, egotism or simple selfishness that betrays elitism or an indifference to the plight of others. It takes an illeist to exhibit a smiling Mr Wako’s usual condescending attitude and reckless disregard of public opinion.

More like an obedient general lobbing grenades to decimate reformers and protect the illicit status quo than a reputed human rights attorney doing all in his power to expand the democratic space, Mr Wako has single-handedly blocked Kenyans from using the courts to expand democratic space and constitutionalism.

Even where matters are actionable and would advance the causes of democracy and justice through public interest (or impact) litigations, reformers are reluctant to go to the courts. And it is not because of the many biased judges who pack our courts to gate keep for the system; it is AG Wako’s knack for abusing the nolle prosequi that largely stops citizens from instituting private prosecutions, thus blocking reforms.

Mr Wako wields the nolle prosequi like a sword against society not as the shield it is supposed to be. He gleefully overreaches himself to protect the imperial court through executive acquittals. He hijacks and terminates public interest litigations to provide and guarantee instant and unqualified freedom for socially or politically prominent criminals.

The recent beneficiaries of Wako’s executive acquittals include: aristocrat Tom Cholmondley accused of murdering Kenya Wildlife Service Warden Simon ole Sisina; First Lady Lucy Kibaki whom KTN cameraman Clifford Derrick had sued for assault and damaging his camera; then Vice President George Saitoti; Solicitor General Wanjuki Muchemi who was facing criminal charges from Mr Apollo Mboya, a former State counsel who used to be his personal assistant; a former Trust Bank Chief Ajay Shah who was facing a KSh14 million theft case; Mr Madat Ali Chatur and two Air Force soldiers charged with evading tax amounting to millions of shillings; and Mr Maina Njenga the proscribed Mungiki sect leader acquitted when he was about to spill the beans in court.

Mr Wako did the unimaginable when he literally granted himself immunity from prosecution. He put himself practically above the law when he violated a fundamental rule of natural justice by terminating, in his own favour, a private prosecution against him by the Law Society of Kenya over the Anglo Leasing scandal.

For small fry like me, the AG has brutally abused the nolle prosequi to deny us fair trials whenever we have had strong cases and wanted them referred to the High Court for interpretation of constitutional issues. He terminated my 2008 case where I was charged for chaining myself at the Police Headquarters to protest police killing of unarmed protesters. He also dropped criminal libel charges against journalist Kamau Ngotho a day after he was allowed to challenge them in the High Court.

Mr Wako has been a key promoter of unconstitutional governance. For 18 years he has trampled upon the rights of the vulnerable, downtrodden and the helpless in society to benefit himself, friends, and the powerful.

Far from being a catalyst for change who claims to have enhanced democracy, rule of law, human rights, transparency and accountability, Mr Wako has been an insurmountable obstacle to reforms in many ways.

For me, it is the abuse of the nolle prosequi that epitomises his failure in toto as the defender of public interest in our criminal justice system. His rogue terminations of criminal proceedings to protect criminal elite in total disregard of the duty of his office to the public interest have fundamentally undermined the credibility of our criminal justice system. And since he has security of tenure he must bear full personal responsibility by vacating office immediately.

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