Nairobi — The Government's chief legal adviser on Thursday fell short of declaring that Lang'ata MP Raila Odinga cannot be prosecuted again for his alleged role in the 1982 abortive coup.
And Amos Wako outlined five reasons why any attempt to prosecute Raila for treason would be nothing short of a legal quagmire.
With that announcement, the Attorney General who has the last word on public prosecutions may have effectively closed the argument on whether or not Raila can and should stand trial for acts of treason allegedly committed almost quarter a century ago.
"I am aware that there have been calls to prosecute Raila and the calls were uttered at political meetings in the context of the on-going political campaigns. I am aware of the book (upon which such calls have been made) but I have not had time to read it. When time comes, I will have to look at five considerations," Wako told journalists on Thursday.
The AG said he would first have to consider provisions of the Penal Code, under which treason falls. He hinted at a bar in terms of time limitation, which stood at two years on the offence of treason.
Quoting from the law, the AG referred to Section 45 (1) of the Penal Code, which he said clearly stated that nobody would be prosecuted for the offence of treason unless the prosecution was brought within two years from the date the offence was committed.
"The exception," he said, "is if there were a proven act which proves and shows it was part of what they were doing to kill or injure the President."
Wako was addressing the reporters after opening a peer review workshop on policy documents affecting public prosecutions at a Nairobi hotel.
He further said that in accordance with the law, the book - Raila Odinga: An Enigma in Kenyan Politics - did not amount to a confession that would be admissible in a court of law as evidence.
"A confession can only be admissible if it is done before a magistrate. The book does not amount to a confession admissible in a court of law."
Without the confession, he added, there were a number of requirements needed to prove the offence.
"There must be corroborative evidence which is admissible in a court of law," he explained.
Wako also pointed out that since the contents of the book were in the public domain, the same might have been within the knowledge of intelligence officers at that time.
"It may have been within the knowledge of the hawk-eyed intelligence agencies at that time and the issue considered at that time and, because of certain requirements of proof, found not to warrant prosecution."
The AG said he would also have to consider whether there was any additional evidence and whether there was a witness prepared to give evidence in a court of law. Another issue that would feature would be whether the trial would be in the public interest.
Charged with treason
Raila has dismissed those calling for his arrest, saying they had not read his biography. He challenged the Government to take whatever action it deemed fit, saying he could not be intimidated.
However, the Government's chief legal adviser left very little doubt that any chances Raila - a politician who elicits so much love and hate almost on a similar scale could be prosecuted were very remote.
It is, however, worth noting that Raila had been charged with treason soon after the 1982 coup attempt, according to his biography. He was, among others, detained at Kamiti Maximum Security Prison as a capital remand prisoner awaiting a death sentence if found guilty.
Raila's case was prosecuted by Sharad Rao, the Deputy Public Prosecutor, before Chief Magistrate Abdul Rauf.
The biography adds that when they first appeared before Rauf, Rao said investigations were incomplete and requested a two-week adjournment. That became the pattern.
What saved Raila then was a legal technicality and the arrival of Desmond Da Silva, a Queen's Counsel from the United Kingdom, to take over his defence, says the book.
On Thursday, pressed by reporters if he would take any action against the MP, the AG declined to give a definite answer, choosing to elaborate on the legal considerations instead.
Wako was speaking against a background of growing calls by mainly pro-Government functionaries that Raila be charged with treason following dramatic revelations about his role in the abortive coup in his biography launched last week.
In the book, Nigerian author Dr Babafemi Badejo says that in his interviews, Raila "neither admitted nor confirmed a role in planning of the coup attempt."
However, Badejo says Raila facilitated the acquisition of a house on Ngong Road, which was used as a command centre by the plotters.
He is also reported to have closely monitored the unfolding events and was outside the Voice of Kenya (VOK) offices when mutinous soldiers raided the studio. He was arrested on August 11, a day ahead of his planned escape from the country.
In late September, he was charged with treason alongside two others.
According to the biography, Raila's friends in the UK decided that a higher profile representation was needed for his and his co-accused.
The friends raised money and hired Da Silva to represent Raila. When Da Silva appeared, he asked for a two-week adjournment as he examined the committal bundles.
It was then that the Government realised the evidence it had gathered would not stand scrutiny before court.
"When Da Silva got involved, the Kenyan Government entered a nolle prosequi as the State no longer wanted to prosecute," the biography says.
As a civilian, Raila could not be tried by a court-martial. But under the Criminal Procedure Code, when the offence is treason, the evidence of an accomplice must be corroborated by an independent witness.
Since there were no such witnesses, Chief Justice AH Simpson advised the then AG and Moi against prosecution.
Recalling his arrest and detention in a previous interview, Raila was emphatic that his survival was not an act of magnanimity by President Moi.
"I spent six weeks in custody before I was charged. I was interrogated, tortured and moved to various police stations."