‘I have fought for change from within’
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By Amos Wako I have this afternoon received the notification that my visa to USA has been revoked. Let me state that S Amos Wako has not been engaged in "corrupt actions which have adversely affected the national interests of the United States of America" or at all. Although I am totally indifferent to the revocation of the visa and I have no desire to visit United States of America, nevertheless; in view of the reasons given, which are defamatory, it is my intention to seek legal advice with a view of instituting legal proceedings in the US. I want to state categorically that I have consistently as Attorney General, even in the most difficult of times, I consistently kept the fire of reform from within the Government. I oversaw the transition from a de jure one party State to a multiparty democratic State (December 1991); a change of Government from one political party to another through free and fair election (December 2002) and to the Grand Coalition Government (2008). During the period, I initiated an ambitious Legal Reform Programme by appointing over 17 task forces which resulted in re drafting of many areas of law resulted in many legislations which have already been enacted, some of which before the National Assembly and some before Cabinet awaiting approval and publication, the enacted legislations have all enhanced democracy, the Rule of Law, Human Rights, Transparency and Accountability. The AG has not obstructed or stifled reforms under Agenda 4 and if anything he has facilitated the said Agenda. I am pleased to state that only yesterday, as a member of the Task Force on Police Reforms we handed over the Report of the Task Force to the President and Prime Minister. As a Member of the Committee of Experts, we have more or less finalised the drafting of the harmonised new Constitution and the Report, which will be published shortly. Are these the activities of a man who is accused of being anti-reform? In the Statement of Principles on Long Term Issues and Solutions (popularly referred to as Agenda 4) signed by all parties on May 23, 2008, it was: "...agreed that institutional reforms should include, inter alia, the following components: Police Reform; Parliamentary Reform; Judicial Reform; and Civil Service Reform: This is also reflected in the "Matrix of Implementation Agenda". First the focus of Agenda 4 is "institutional reforms:. Secondly the State Law Office (Office of the AG) is not mentioned as among those institutions to be reformed. The target on individuals and the Office of the AG is therefore an America or foreign agenda and not part of our agreed Agenda 4. Let me emphasise that the Attorney General because he is a reformist AG, out of his own initiative and not pushed by anybody, in 1996 called for the appointment of a Minister for Justice in order to depoliticise the office and make it more professional as was intended by the Constitution; the AG has called for establishment of a Directorate of Public Prosecutions independent from the Office of the AG and headed by a Director of Public Prosecutions whose security of tenure is entrenched in the Constitution. The Department has now been restructured into eight thematic sections and developed three key policy documents making Kenya, the only country in the region to have formulated the following documents: (i) The National Prosecution Policy; (ii) The Prosecutors Code of Conduct and Ethics; and (iii) The Prosecutors Training and Curriculum Manual. Secretary Carson and Ambassador Ranneberger have at various times stated that the Office of the AG remains an obstacle to effective anti-corruption efforts and thus reform. Factors and difficulties Fortunately the Anti-Corruption and Economic Crimes Act introduces a transparent process in the investigation and prosecution of corruption cases which requires that any investigation carried out, the decision on those investigations by Kenya Anti-Corruption Commission and the AG, the reasons for those decisions and the state of prosecutions be set out in Quarterly and Yearly Reports and tabled in Parliament. An analysis of these Reports also discloses the factors and difficulties faced by the Prosecution Department, which include and not limited to: inadequacy in investigations showing cogent and sufficient evidence to sustain criminal prosecutions, • numerous constitutional applications, injunctions by the courts to stop investigations and prosecutions; • the slow pace of trials and prosecutions; • inadequate professional and support staff; • lack of specialised training and wholly unfavourable terms and conditions of service. Solutions have been suggested in these Reports whose implementation does not rest on the AG alone. The analysis will also show that the Attorney General is a reformer and not an obstacle. In spite of these great handicaps, the Attorney General has prosecuted and continues to prosecute high-ranking officials of the Government and Chief Executives of the State Corporations. In recent times, the Attorney General has obtained over 68 convictions which include 4 former Chief Executives of Corporations and a former PS. In addition to the foregoing, let me also state that successful investigation and subsequent prosecutions in these mega corruption cases depends on the Mutual Legal Assistance we get from foreign competent authorities. In the Anglo Leasing-type of cases for example, which Secretary Carson and the American Ambassador are fond of quoting, the assistance of the competent authorities of the United States of America is critical. I will give you two such examples related to Anglo Leasing Type cases and typical example related to other corruption cases: (1.) One of the principal actors and suspects in a number of Anglo Leasing cases is a citizen of the United States of America by the name of Dr Merlyn Kettering. In June 2005, FBI organised for two investigators from FBI to interview who is resident in the United States of America and could even be an Assistant will co-operate with either FBI or KACC. The KACC investigators went but Dr Kettering was left at Baltimore. The Investigators agreed with FBI that FBI would maintain surveillance on Dr Kettering, secure his co-operation and notify KACC on a date to travel and interview him. From June 2005, we are still waiting to hear from FBI. The question to be asked is how does Secretary Carson expect us to successfully investigate and prosecute Anglo Leasing-type of cases when FBI, with whom we have good working relationships, cannot, because of the law in the US secure the co-operation of key suspects and/or witnesses in the Anglo Leasing-type of cases. There are other cases involving corruption where the competent authorities of the United States of America have been unable to secure the co-operation and yet the competent authorities in Kenya have been able to help the competent authorities of the US when they have been asked to help. This is already a case of double standards where the bigger and more competent brother is demanding more from the younger brother, than he the bigger brother can deliver. The AG is a prosecutor and not an investigator and has to rely completely on the investigative arms of Government who do not come under his portfolio. Since he is not in charge of prosecutions, the AG cannot be accused of impunity unless you can demonstrate that investigation files reached his desk with sufficient evidence and he refused or declined to prosecute. In post-election cases, such files have reached the AG were prosecuted. There are currently before various courts, 104 cases involving 684 persons. 83 cases have been concluded involving 264 persons. We recently obtained a conviction in a murder case. Let it not be forgotten that it was the Attorney General who on January 3, 2009, became the first official to issue a warning that if the unprecedented violence that had broken out was not immediately stopped, crimes against humanity were in danger of him in Baltimore in June 2005. (2.) Another active participant was a citizen of the US by the name of Mr Bradley Birkenfeld. As soon as the matter was reported in the local press in March, that Bradley is prepared to tell all that he knows about the Anglo Leasing-type of contracts since he was alleged to have signed some of the contracts, on March 28, I wrote to Ranneberger to confirm the report as the Government was interested in him as a potential suspect and/or as a crucial source of information which could not only assist the investigation but help Kenya conclude this matter satisfactorily. Ranneberger responded by letter dated April 3rd and promised to forward any information they may obtain to us to the extended possible under US Law. On April 22nd, the Deputy Chief of Mission asked me to put in a formal request for Mutual Legal Assistance to obtain the information. Highly unlikely By letter dated 30th April, I put in a formal request for Mutual Legal Assistance for information. By letter dated 20th August 2009 I sent a reminder to Ranneberger wondering when I should expect the information and reminding him that without the assistance of foreign competent authorities, it would be difficult to successfully investigate and prosecute Anglo Leasing-type of cases. There is another investigation involving a World Bank project in which FBI have admitted it is highly unlikely that witness being committed. It is the AG who was signatory, along with others, to the Cabinet Memorandum which recommended the establishment of a Special Tribunal that met international standards. Apart from prosecution, it must be understood and appreciated that the AG is an adviser and not a decision maker. I can only conclude that revocation of my visa by the US was done in bad faith (mala fides) and allegedly in the interests of the US and not in good faith in support of Agenda 4 reforms which as AG, patriotic Kenyan, proud African and simply as a human being, am totally committed to playing my role to ensure Agenda 4 reforms are achieved and realised.