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PRESS STATEMENT BY HON. S. AMOS WAKO, ATTORNEY GENERAL ON THE REVOCATION OF THE VISA BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA – 4TH, NOVEMBER 2009

On Monday, 26th October 2009, US Assistant Secretary of State announced that the Government of United States of America had decided "to revoke the visa of a Senior Kenyan Government official who has been obstructive to reforms." I have this afternoon received the notification that my visa to U.S.A. has been revoked.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 United States of America.

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 dejure 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 Attorney General has not in any way 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.

I am particularly delighted and proud that as a Member of the Committee of Experts, we have more or less finalized the drafting of the harmonized 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 23rd May 2008, it was:-
“… agreed that the 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 Attorney General) is not mentioned as amongst those institutions to be reformed. The target on individuals and the Office of the Attorney General is therefore an America or foreign agenda and not part of our own agreed Agenda 4.

However, let me emphasize that the Attorney General because he is a reformist Attorney General, out of his own initiative and not pushed by anybody, in 1996 called for the appointment of a Minister for Justice in order to de politicize the office and make it more professional as was intended by the Constitution; the Attorney General has called for the establishment of a Directorate of Public Prosecutions independent from the Office of the Attorney General and headed by a Director of Public Prosecutions whose security of tenure is entrenched in the Constitution. The Department of Public Prosecution has now been restructured into 8 thematic sections and developed 3 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 Attorney General remains an obstacle to effective anti-corruption efforts and thus reform.

Fortunately the Anti-Corruption and Economic Crimes Act introduces a very 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 Attorney General, 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 disclose 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 specialized training and wholly unfavourable terms and conditions of service.

Solutions have been suggested in these Reports whose implementation does not rest on the Attorney General 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 Permanent Secretary.

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 organized for two investigators from FBI to interview him in Baltimore in June 2005. The KACCinvestigators 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 up to now, we are still waiting to hear from FBI.

2. Another active participant was a citizen of the United States of America by the name of Mr. Bradley Birkenfeld. As soon  as the matter was reported in the local press in March this year, that Mr. 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 28th March 2009, I wrote to H.E. Michael Ranneberger to confirm the report as the Government was greatly interested in him as a potential suspect and/or as a crucial source of information which could not only assist the investigations but help Kenya conclude this matter satisfactorily. Ambassador Ranneberger responded immediately by letter dated 3rd April 2009 and promised to forward any information they may obtain to us to the extended possible under U.S. Law. On 22nd April, 2009, the Deputy Chief of Mission asked me to put in a formal request for Mutual Legal Assistance to obtain the information. 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 Ambassador Ranneberger wondering when I should expect to receive 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 that it is highly unlikely that that witness who is resident in the United States of America and could even be an Assistant will co-operate with either FBI or KACC.

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 relationsh)ps, cannot, because of the law in the United States of America 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 co­operation and yet the competent authorities in Kenya have been able to help the competent authorities of the United States of America 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 Attorney General 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 the Attorney General is not in charge of investigations, the Attorney General 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 Attorney General 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 3rd January 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 being committed. It is the Attorney General who was signatory, along with others, to the Cabinet Memorandum which recommended the establishment of a Special Tribunal that met international standards.

Apart from matters related to prosecution, it must be understood and appreciated that the Attorney General is an adviser and not a decision maker. I can only conclude that the revocation of my visa by the Government of United States of America was done in bad faith (mala fides) and allegedly in the interests of the Un.ited States of America and not in good faith in support of Agenda 4 reforms which I as Attorney General, and as a patriotic Kenyan, a proud African and simply as a human being, I am totally committed to playing my role to ensure that the Agenda 4 reforms are achieved and realised.

 

S. AMOS WAKO, EGH, FCIArb., SC, MP ATTORNEY-GENERAL

4th November 2009

Tags: accountability, Agenda 4, Amos Wako, Anglo leasing, Anti Corruption and Economic Crimes Act, Attorney General, Bradley Birkenfeld, Civil Service Reform, Committee of Experts, Directorate of Public Prosecutions, Dr. Merlyn Kettering, human rights, impunity, Johnnie Carson, Judicial Reform, Kenya Anti Corruption Commission, Legal Reform, Matrix of Implementation Agenda, Michael Ranneberger, multiparty democratic State, mutual legal assistance, Parliamentary Reform, police reform, President, Prime Minister, reforms, Rule of Law, Special Tribunal, The National Prosecution Policy, The Prosecutors Code of Conduct and Ethics, The Prosecutors Training and Curriculum Manual, transparency, USA, World Bank