Wako's reforms debate evokes memories of earlier Bomas

**Former Attorney General Amos Wako.** [Elvis Ogina, Standard]

Former Attorney General Amos Wako’s dramatic appearance at the National Dialogue Committee (NADCO) on Monday this week evoked both good and bad memories of the constitution-making process in Kenya.

The former Busia Senator was at the center of the process when former President Daniel Arap Moi first repealed section 2(a) of the old constitution in 1992 and the constitution review process that started in the year 2000.

He was in the office when the infamous Kilifi Draft otherwise referred to by his name Wako (draft) constitution was rejected by Kenyans through a referendum in 2005 after guiding politicians allied to then-President Mwai Kibaki in making far-reaching changes that watered down the draft that had been approved at the Bomas of Kenya conference in 2003.

Voters rejected the draft constitution in the 2005 referendum, largely because it would have insufficiently decentralised power an issue Kenyans could still not be grappling with today had it been passed as resolved at Bomas.

The veteran legal scholar with infectious laughter redeemed himself in 2010 when he spearheaded another process that led to the enactment of the new constitution in October.

Described as a brilliant mind by distinguished lawyer Gitobu Imanyara because of his record as a human rights lawyer with an impressive academic background, Wako also has a dark side of his career.

Lawyer Paul Mwangi who is also in the Azimio team at Bomas wrote in an opinion article saying many people who had been to university with Wako were cautious in their words when he was appointed Attorney–General, even as the rest of the country cheered because of his human rights track record at the time.

He said disquiet was voiced in a statement issued by another veteran lawyer Dr Gibson Kamau Kuria in July 1991 when he termed Wako’s appointment “both as a great mistake and a disaster for Kenya”.

Imanyara also expressed his discomfort about Wako in an article he wrote in his Nairobi Law Monthly publication, in June 1991, when asked why Wako was active and vocal regarding human rights at International fora but silent when it came to his own country.

“One cannot overlook that activism at the international level carries no major personal risk. On the home front, however, the situation is different. Police harassment, intimidating surveillance, jail, detention without trial and threats often accompany vocal activism,” wrote Imanyara.

In an extensive interview with former Constitution Review Commission of Kenya (CKRC) chairman Prof Yash Pal Ghai, that was published in The Elephant, Seema Shah recounts how Wako called and asked him to come back home to steer the process.

He was serving as a visiting professor at the University of Wisconsin in Madison, USA when he received the telephone call: “Come home", Wako told a stunned Ghai. "Are you serious?" Ghai reportedly asked his former student at the University College of Dar Es Salaam.

“Everyone wants you to come home and President Moi wants you to write the new constitution", Wako continued, an offer Ghai was reluctant to take as he consulted his lawyer friends Pheroze Nowrojee and Dr Willy Mutunga.

While the two friends advised him to visit the country and survey the environment to find out if Wako and Moi were serious, the former AG irked Ghai by announcing prematurely that he had taken the offer.

Ghai then decided to go back to his workstation at Hong Kong University but stopped in Papua New Guinea where he did a brief assignment.

By the time he arrived in Hong Kong, Wako had allegedly already announced without consulting the good old professor that he had accepted the position.

When the decorated constitutional law expert finally arrived in December 2000, it was Wako accompanied by then Langata MP Raila Odinga who met him at the airport.

The latter who currently leads the ODM party had at the time been appointed by President Moi to chair the Parliamentary Select Committee (PSC) on the constitution review process.

In his submissions to the NADCO team, Wako rooted for the creation of the office of leader of the opposition and that of Prime Cabinet Secretary.

Former Permanent Secretary and Anglo Leasing scandal whistle-blower John Githongo is among those who were not happy with Wako’s involvement in the constitution review process.

“Some in civil society groups were opposed to him. We were very sceptical of someone brought by Amos Wako,” said Githongo about Prof Ghai’s involvement in the process in an article published by The Elephant.

In the submissions at Bomas, Wako also called for the auditing of presidential election results immediately after results are released by the Independent Electoral and Boundaries Commission (IEBC) an issue that has also remained contentious.

He argued that firms that supply election voting technology should be obliged to open their servers for auditing as soon as results are announced.

Voting technology in Kenya was made more transparent and secure in the reforms that were introduced after the nullification of the 2017 presidential elections to build trust and credibility but demands for more changes still persist.

The former AG thinks that such credibility challenges can be dealt with if all the data can be accessible to every person after the declaration of results.

In a past interview with The Standard, Prof Ghai lamented that politicians tried all they could to sabotage the constitution-making process at the tail end of the Bomas conference in 2003 because the draft was giving power to the people.

Some senior politicians, many of them from President Kibaki’s Mt Kenya region pushed against the final product because it created room for a powerful office of Prime Minister and very independent devolved governments.

With Wako serving as the country’s top legal advisor, President Kibaki moved to court in 2003, where the constitution-making process was declared unconstitutional.

Prof Ghai said it was clear at the time that the government was hijacking the process after the Bomas made many progressive changes Kenyans had desired for long.

It was telling that the AG remained largely silent as Ghai and his commissioners came under siege from the politicians while making every effort to rush the process to its logical conclusion.

In his presentation at Bomas, the committee did not task Wako to explain why he led the process of mutilating the Bomas draft when the PSC and the CKRC retreated to Mombasa for approval of the final document before the 2005 referendum.

At a meeting that was held at the Sand & Sand Hotel in Kilifi, the PSC, then chaired by the then Energy Minister Simeon Nyachae brought back a powerful office of the president, put the Prime Minister under the executive and retained the then-much hated provincial administration among other proposals that Kenyans had rejected at Bomas.

At that time, President Kibaki had replaced Prof Ghai who had returned to his teaching job in Hong Kong after concluding his work with Commissioner Abida Ali Aroni.

She took charge of the remaining process that culminated in the 2005 referendum that was overwhelmingly rejected by Kenyans.

This week, Wako also raised issues concerning the management of elections by IEBC, insisting that political parties be allowed to nominate commissioners.

“The top two or three political parties should be allowed to nominate one each while the rest of the parties can produce one commissioner,” said Wako, who was the AG when the Inter-Parties Parliamentary Group approved such an arrangement before the 2007 presidential elections.

The Azimio side at the talks appears to agree with Wako’s proposal but the Kenya Kwanza team led by Leader of Majority Kimani Ichung’wah argues that it will create a partisan commission.

Apart from the IPPG Act, Wako was involved in many amendments of the Elections Act while serving both as the AG and later as Senator for Busia County.

Six years ago, while serving as the joint Legal Affairs and Human Rights Committee and ICT, committee chairman in the Senate, Wako failed to create consensus between Jubilee and Cord coalition MPs as they bickered over amending election laws.

Wako told The House that CORD and Jubilee senators had decided to vote along party lines and consequently, presented a report that had two sides, one passed by majority of Jubilee members and annexures by CORD members who had opposed the amendments.

The Bill was seeking to amend a number of election laws, but the focus was mainly on section 44 of the Elections Act, which covered the identification, registration and transmission of results electronically.

Some provisions in the law proposed by Jubilee MPs envisaged vesting the authority of boundaries review on the National Assembly but the clauses were rejected by six CORD senators including Hassan Omar who is now a member of NADCO team and supported by 10 from Jubilee.

Another bone of contention is the proposal by Azimio that more stringent measures be entrenched to improve party discipline for MPs to stop party hoping when they are promised goodies by the president, citing what happened to some ODM and Jubilee MPs.

Again Wako appeared to agree with Azimio’s argument, saying Kenya is a multi-party democracy and anything that undermines that tenet should be unacceptable.

“Sovereignty rests with the people on the basis of that they elect their leaders and so any false pretence to shift after elections is a deception to voters in this country,” said Wako.

He submitted that the late Tom Mboya was right when he said any politicians who resigned had to go back to the people instead of running to tribunals to buy time which is impunity of the highest order.

“It is a gross abuse of the system and so we should make it easier for the institutions that deal with such matters to make quick decisions rather than being taken rounds through courts and tribunals,” he added.