It is not Amos Wako per se, but the institution of the State Law Office that is a problem. Hassan Omar Hassan, Charles Nyachae, and all those that are welcoming the imminent departure of Amos Wako from the Attorney-General's Chambers with undisguised glee have it all wrong. As Michael Joseph, the former Safaricom CEO would have put it, it is a peculiarly Kenyan habit to lay the blame on the individual rather than on the system that permits him to be as he is. Mr Wako's departure has been constitutionalised and he has no choice in the matter, but until the State Law Office is reformed to reflect the reforming transition that Kenya finds itself in today, it is irrelevant who the next Attorney-General is: the temptations of the post may overwhelm even the most liberal, reformist person to occupy that position.
In the absence of a real debate regarding the proper place of the State Law Office in the government of Kenya, Mr Hassan and Mr Nyachae have directed their ire at a man. They and their fellow-travellers may have no clue as to what the place of the A-G is and this may inform their intemperate statements regarding the person of one Amos Wako. Their failure to express clearly what they want the State Law Office to do informs their arguments: that Mr Wako is the embodiment of impunity. What they may be unwilling to admit is that they do not know - nobody does - what the A-G is and what he should do when it comes to the reform agenda as espoused by them.
The Constitution prescribes the powers and functions of the Attorney-General. In addition to being the principal legal advisor of the government, the A-G will also perform functions that may be assigned to him by the president or by national legislation. To date, it is the State Law Office that oversees the registration of businesses, partnerships and companies (both private and public); marriages; and manages the estates of persons who die intestate until a court rules on the distribution of the estates. No one, to my knowledge, has challenged the manner in which the State Law Office has discharged its functions in these areas. It is only in the area of political controversy that the A-G, and the State Law Office, have taken flak.
It is here that reforms will be needed. The recent controversy regarding the publication of the Independent Electoral and Boundaries Bill, and later its assent by the President, demonstrate what the challenges are. Mr Nyachae and certain members of civil society, have accused the Attorney-General of stymieing the process, engendering delay and threatening the implementation of the Constitution. The impression being created is that Amos Wako is the Colossus standing in the way of the implementation of the Constitution and that his imminent departure will open the floodgates of law-writing, and implementation will move at much faster pace. This, however, completely ignores the history of the office of the A-G. Few are willing to remember the odious impacts that previous A-Gs had on the government of Kenya, most notably Mr Charles Njonjo and Justice Matthew Guy Muli. Who could forget Mr Njonjo's declaration that even contemplating the death of Jomo Kenyatta constituted treason, a crime that carries the death penalty?
Merely hoping that the next A-G will be a reformer without addressing the structure of the State Law Office is being too generous on the good sense or generous spirit of the next Attorney-General. Institutions should be greater than the men and women who head them, and so it should be with the Attorney-General of Kenya. Until an honest assessment of the proper role of the office is conducted, it is only a matter of time before greater controversy is generated as we seek to implement one of the most liberal Constitutions in modern times. The A-G should be the symbol of the rule of law, offering opinions to the government that are not only backed by a proper understanding of the law, but also tempered by the realisation that such opinions shape government policy and ow the government relates with its citizens. The reformist credentials of the A-G should not be the only criteria used to judge him or to appoint him. If they are, then we may as well appoint a poodle to the post.