Is it the President or AG who’s above the law?

By LUKOYE ATWOLI
Sunday Nation 15 November 2009

In 1991, newly appointed Attorney-General Amos Wako stood on the floor of Parliament and proclaimed that “a characteristic of the rule of law is that no man, save for the President, is above the law”.

All analysts and academics who have studied Mr Wako’s career as Attorney-General have focused on this statement as an indication of his subservience to the whims of a corrupt Executive and evidence of his complicity in subverting the will of the people.

What is lost in this analysis is the more fundamental implication of the statement as regards the position of Mr Wako in this scheme of things. In his usual cheeky manner, the man was laying down new law by fiat, destroying in one fell swoop the principle of equality of all under the law.

If, indeed, it were true that the President was above the law, why did Daniel arap Moi not make the proclamation himself? How could a person subject to the law purport to unilaterally amend it without recourse to the originators of the same law, and confer immunity to another individual? What was the source of Mr Wako’s authority in proclaiming the President to be “above the law”?

After a close examination of this statement and reviewing the subsequent events, it is difficult not to conclude that the AG’s words had nothing to do with the person or office of the President. In his brief opening remarks at the height of the struggle for political pluralism, he was informing Parliament that he, the Attorney-General, was technically above (or beyond) the law.

In one fell swoop he had arrogated to himself the roles of Parliament, the Executive and even the Judiciary, and would henceforth be beyond the reach of any of these organs of the State.

In Kenya, the AG is a member of the Executive at the same level as a minister of government. He is also an ex-officio Member of Parliament, and sits in the Judicial Service Commission that determines who becomes a judge in Kenya. He also sits on many independent commissions set up with varying mandates, the latest being the Committee of Experts tasked with coming up with a draft constitution.

The AG enjoys security of tenure and cannot be removed except through the recommendations of a tribunal and the concurrence of the President. It is almost impossible to successfully prosecute him for any act he commits, whether as a private individual or as the AG, since he wields the all-powerful weapon known in legalese as nolle prosequi.

He has indeed used this weapon in the past for his own protection and the protection of others. In principle, therefore, the AG is the most powerful individual in Kenya, the only one who is truly “above the law”. It is therefore my considered opinion that the entire struggle for democratisation of the Kenyan state has been misguided and focused on the wrong objectives and individuals.

Allure of power

After singing “Moi must go” for over a decade and a half, he eventually “went”, and soon after this the reform train hit another snag as the erstwhile reformists discovered the true allure of absolute power. It is my conviction that if we seek true reforms in the political architecture of the state, we must train our sights on the State Law Office, and specifically trim the outlandish powers wielded by the Attorney-General.

It is jarring against any conception of “democracy” for one individual to wield so much power without any checks and balances on the functions of the office. It is an indictment on our lawyer activists that they have been unable to see or articulate the enormous problems posed to the integrity of the State by the person and office of the AG until the US government declared him an obstacle in the push for reforms.

Prof Philip Alston, the UN special rapporteur on extra-judicial killings, had earlier described the AG as “the embodiment in Kenya of the phenomenon of impunity”. All these years political and human rights activists have been barking up the wrong tree accusing the President of wielding too much power and exercising it to the detriment of the nation when the real problem lay hidden in plain sight.

The recent revocation of the AG’s visa to the US has resulted in closer scrutiny of his office, revealing the unexamined and unrestricted powers wielded by the holder. Whether or not Mr Wako eventually steps down from office, the reform movement must change tack and create more credible institutions to replace this one-man government in the name of the Kenyan AG.

Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine. www.lukoyeatwoli.com