HENRY MAKHAKARA WASILWA
KENYA NATIONAL ASSURANCE HOUSE,
9TH FLOOR,
JOMO KENYATTA HIGHWAY
POST OFFICE BOX 4253,
TELEPHONE 254 57 2021469
0721245562/0733703735

Koigi’s piece on the Attorney General n the press on Monday the 30th May 2005 sent my political hormones into extreme overdrive. The last time that happened to me, the Twin Towers in New York had been felled by a pilot who the Americans told the world were Arabs. There is this attractive (See Newsweek October 2003) conspiracy theory about a self inflicted blow to the heart of the American defence that is supposed to have been inspired American defence contractors who thought the President was a little sluggish in increasing defence spending on their little military toys called smart bombs. Each costs 2 billion US $. To provoke some energy in the Washington ranks, Americans were treated to the most horrific tragedy of the century yet those who sponsored the whole scheme did it purely to scare the federal Government to buy their military products. I have always hoped that this is just imagination and only a theory but you never know.

Honourable Koigi thinks that if you sacked Amos Wako today large quantities of Kenya’s problems would disappear with Tsitswila’s departure at Sheria House. I do not have a care in the world about Amos Wako nor the quality of his tenure whilst he served as AG but it shakes me out of my skin when Koigi constructs falsehoods out of mal-digested facts and distortions of our real problems.

I state with the authority of the Constitution that The Attorney General is simply an organ of the executive branch of government, the other branches being the Legislature and the Judiciary. The executive branch of government has the President; the Cabinet the, Civil service the police and the Attorney General chambers

As a check against abuse and excessive use of power, the three branches are largely independent in Kenya.

There is however an institutional or operational overlap, for example when the cabinet which is part of the executive, also makes Law through subsidiary legislation under Statutory powers made for instance. the "Michuki Rules" or Rules regulating interest rates ( Minister of Finance through the Governor of the CBK, or when the Chief Justice as part of the Judiciary makes Rules for the Practice of Courts or the remuneration of Lawyers yet he is not the Legislature. This overlaps have a utilitative purpose; it saves time and expense.

Calling for the dismissal of the AG as a panacea to the myriad of problems befuddling Kenya is as deficient in its understanding of the separation of powers as it is brazen in its disregard for common sense.

The AG does not mete out Justice. He has no such role duty or obligation. Even he had such a commodity for discretionary distribution, the process of its dispensation would not be described by the word “meted”. Justice is so intrinsic a Human Right that its enjoyment by a citizen is independent of and not predicated upon the latitude or discretion of an AG or any other public servant. In any event, Justice is guaranteed by a Social Contract and it is a natural right. Human persons are only entrusted to see to its enjoyment.

If he were to abuse such a privilege various legal instruments would stop the AG. In the early 80’s when the AG attempted to unfairly prosecute Stephen Mureithi, formerly a Special Branch Officer, another Branch of Government designed to check abuse of executive power stopped the offending Prosecution. Lawyers will recall the case of The Commissioner of the Metropolitan Police exparte Blackburn in which the powers of the State to curtail the liberty of the subject through arbitrary arrests and prosecutions was halted by the High Court in England. Now we have the instrument of Prohibition which is available to a persons who feel aggrieved by a decision that he or she thinks is made against one without jurisdiction or in excess of jurisdiction and is even available where the decision sought to be inhibited is proved to be actuated by improper motive, purpose collateral to Justice, or is contaminated by an ulterior motive. In This instance, Courts will generally issue an Order to prohibit the intended decision, and if it is already made, the Court will quash such a decision by an Order called Certiorari. One is also able to compel a public officer or a Public duty to do its duty by the instrument of Mandamus.

Koigi allows the subjectivity of his analysis to generate falsehoods such as “Wako ..presided over the transformation of houses of justices into kangaroo Courts

Whether in the Kenyatta regime, the Moi era or the present Kibaki incumbency, the architects of dictatorship would never be an AG. Never ! The AG may just be a cog in the wheel of a rogue government entrenching itself by monolithism and other schemes to aggregate power to itself but the moment an AG attempts to inspire a scheme to germinate such dictatorship that gravitates around the AG, the presidency would notice and respond ruthlessly. If you doubt my thesis, ask one Sir Charles Njonjo.

The only single component or organ of the executive Branch of Government that can directly institutionalize dictatorship is the Presidency itself and thus far there is no tangible evidence to displace the hardcore fact that this presidency has done three critical things that in themselves deflect the centrality and aggregation of political power.

Firstly Cabinet portfolios have been permitted their full constitutional text and substance containing a full cocktail of financial, administrative and operational authority, power, and latitude..
The trickle down effect of such devolution and sharing of executive authority is transmitted through to the Civil Service, the Disciplined Forces, the State Corporations and other agencies of government.
I doubt very much if there is a cabinet Minister out there who is unable to exercise his or her Constitutional mandate because the AG has advised Kibaki to aggregated power to himself?. Honourable Koigi do you know of any?

Secondly, this particular presidency and the Government in general has, (though it could do better), has deliberately set aside an admirable quantity of the national budget by way of devolved funding to Constituencies and by this scheme, local communities through which local communities and not the president or his cabinet now possess and exercise financial authority over nearly 21 billion Kenya shillings over 5 years. That various community leaders abuse this financial authority does not take away from the executive’s resolve to devolve and share power with regions and communities.

Thirdly, through direct allocation of national resources to Local Authorities, localized power is deflected away from the presidency and the executive branch of government.

In a direct way therefore, this government has been able to impact positively on the triad of poverty disease and ignorance. There is room for improvement though

There however is a very critical and emergent need for an immediate moral regeneration in our community. This will be the largest most critical factor in reversing social and economic decay. It will reconstitute and firm up desecrated social values. In turn this will be reflected in the quality of persons occupying positions of trust and leadership. Inexorably the quality of distribution of national resources will no longer depend on whether one supports a powerful PM or Presidency but on a self driven pursuit of fairness and equity amongst leaders. This innate trait will flow from inside the leaders it will not be imposed by a constitution a constitution will only capture and record for reference those positive manifestations of good governance. No amount of constitutional reform of whatever nature will ever be surrogate for moral firmity in the community who consume such constitutional dispensation.

I will explain; Not too long ago before their social values were replaced and contaminated by those from Falcon Crest or the Bold and the Beautiful and other TV generated social values, a Bukusu would irreversibly seal the act of selling his land to another person with a mere handshake and an infectious smile. He would probably get a few heads of cattle in exchange. No paper no MOU no contract in lofty prose would record the event! Yet one hardly heard of disagreements afterwards despite the absence of MOU’s

At present, a casual glance of the civil registry at the High Court in Bungoma reveals that 75% of the cases filed involve people who sold land and then changed their minds. In most, if not all, are documentary exhibits containing exquisitely drafted agreements of sale drawn by all sorts of elegant lawyers. The documentary record of a sale transaction does not seem to guarantee completion of the transaction.

The lesson here is that it is not the nature or quality of the documentary agreement of sale that ensures and guarantees satisfactory completion and enjoyment of proprietary rights. It was always the integrity of the contracting parties that ensured completion.

Constitutional reform or sacking an AG will never guarantee the output that Koigi deludes himself with. Think moral regeneration. Start with yourself and encourage everybody at the family level, community and regional level. The aggregate effect of such regeneration of values on most of our “social” or “economic” problems can be of atomic proportions. The considered conclusions the “Earth Summit” at Rio de Janeiro and Jo’burg recently on this issue cannot be wrong. can they, Honorable Koigi?


Henry Makhakara Wasilwa