Attorney General Amos Wako Is Incompetent

The Attorney General, Amos Wako came in for especially strong criticism. The AG was not involved in negotiations for the contracts as required by the Financial Regulations; neither did he make any efforts to demand his involvement as the chief legal government advisor. The PAC noted the AG’s assertion that in the 2 specific contracts given to Anglo Leasing and Finance Limited. The legal opinions he gave were meant “to assure the investor or the person giving rights under the contract that the agreement has complied with the provisions of Kenyan Law. A legal opinion therefore is a statement of comfort to the investor that the contract is legally enforceable under Kenyan law.”

The Attorney General had completely dropped the ball! The PAC actually accused the AG, of abdicating his responsibilities, wryly commenting that “The Attorney General has taken an unbalanced and partisan view of his role in Government contracts. He feels obliged to protect the interests of the foreign investors but not those of the Government for which he is the advisor.”

The Attorney General gave two legal opinions that are now available. In the first, dated 15 June 2001, the AG through his Chief State Counsel Dan Ameyo, gave the go ahead to the Forensic Laboratory contract (together with a vehicles contract for Silverson Establishment), in such terms as to ensure that the contract was shielded from parliamentary scrutiny. The AG’s legal opinion was that the GOK was in some form of rental agreement and that his office did “not consider this as a loan or credit within the meaning of the External Loans and Credits Act (Cap. 422).”

In the other legal opinion he gave with respect to the Passports contract, the Attorney General on 15, December 2003 wrote: “in my opinion each Promissory Note constitutes an unconditional promise made by the Government of Kenya, engaging to pay on demand, at a fixed and determinable future time the sum stated in each Promissory Note to the order of Anglo Leasing and Finance Limited. Each Promissory Note is valid binding and enforceable in accordance with its specific terms.”

It is apparent, and was so to the PAC, that the Attorney General Amos Wako, saw his function in these transactions as merely to provide a pro forma legal opinion to satisfy those contracting with the government in accordance with international norms. The PAC was concerned that the AG did not in the contracts under scrutiny analyse the contract terms in order to protect the government from possible abuse. Furthermore, the PAC accepted the AG’s testimony that his office did not have the capacity to undertake a statutory verification of entities transacting with the Government, and no effort seems forthcoming to save the situation, and as resignation of Mr. Wako or his dismissal does not appear to be on the cards, it falls on Kenyans to ask Mr. Wako a question or two. What is the AG’s legal opinion on the validity of the promissory notes and indeed the 18 contracts? This is germane as the GOK is currently in litigation in Kenya and abroad with inter alia Universal Satspace and Nedemar Technologies BVI.

Since June 2004, there has been a determined effort to avoid discussion of the irrevocable promissory notes. Indeed, there has been no official comment on their fate, until Hon. Amos Kimunya, Minister for Finance discussed them perfunctorily on the Newsline Television talk-show on February 1, 2007. The entire affair has also seen cover up allegations, chiefly made by now exiled PS for Governance and Ethics, John Githongo.

John Githongo’s dossier details a series of attempts to stall his enquiry and cover-up
the Anglo Leasing scandal. He states that he was counseled “to go slow”, by the Minister for Justice and Constitutional Affairs, Kiraitu Murungi, the Minister for Finance, David Mwiraria, and the Director of the Kenya Anti Corruption Commission, Justice Aaron Ringera. They have each denied this, but the PAC believed the evidence of John Githongo (exiled PS for Governance & Ethics) and disbelieved that of Kiraitu Murungi, who was dropped as Minister for Justice and Constitutional Affairs after the government defeat at the constitutional referendum of 22nd November 2005, the date of Githongo’s dossier. He served as Minister for Energy for a couple of months until February 2006, when the President accepted his resignation because of the Githongo complaint. Mr. Murungi rejoined the cabinet on November 16, 2006, a week after KACC recommended closure of the file containing Githongo’s complaint against him; and two
months before the Attorney General accepted KACC’s recommendation, on January 15, 2007.

In another twist, it has become apparent that the contracts entered into by the government may not be as easily disavowed as the Government claims. At present at least two of the contracts are the subject of litigation. In the Project Nexus litigation Kenya government assets in Holland are exposed to attachment by Nedemar Technologies BVI (incorporated in St. Vincent and the Grenadines Islands); while Universal Satspace (North America) briefly shut down Internet access to nearly 400 Post Offices around the country, before a new provider (Safaricom) was Contracted.

The position of these claimants against the GOK is that they have valid and enforceable contractual rights, partly because the AG and other high level GOK officials bound the
government to pay for their services. More cases are likely to be instigated against the GOK. All of them should be very closely watched, to ensure they are not knobbled by the devious minds that seem to populate our justice and law and order sector.

At the risk of being repetitive, the commitment by Government was made by way of issuing irrevocable promissory notes. On the passport contract alone, the Government is
committed to spend Euros 31.89 million equivalent to Ksh 2.8 billion shillings (exchange rates Euro 1 to Ksh 89). The commitment is in the form of irrevocable promissory notes which were given to Anglo Leasing and Finance Limited on 4th December 2003. The Promissory Notes were signed by the PS Finance.

The Attorney General signed each of the promissory notes and gave a legal opinion on December 15, 2003, confirming their binding nature on the Government of Kenya. The fact is that the irrevocable promissory notes are sovereign paper, and because they have been signed by GOK officials, they cannot be disavowed as easily as the new Minister for Finance recently claimed on Kenyan television. It is not beyond the realm of possibility that at some point someone will come knocking demanding payment on the strength of these securities. What will the Government tell us then?

Extract from Illegally binding The story of the missing Promissory Notes