Attorney General under national executive

Amendments to the Office of the Attorney-General Act, 2012, under the Statute Law (Miscellaneous Amendments) Bill, 2023, approved by the National Assembly on March 20, await presidential assent.

They grant the AG significant human resource powers held by the Public Service Commission (PSC), particularly recruitment and appointment, promotion and discipline of the solicitor-general, deputy solicitors-general, state counsel and other staff within the Office of the AG.

A key consideration is whether the AG can maintain independence from the national executive, akin to the Director of Public Prosecutions (DPP).

The national executive, as defined by the Constitution, includes the President, Deputy President, Cabinet secretaries (CSs) and, notably, the AG.

The President holds the constitutional authority to direct and coordinate the functions of the national executive — including the Office of the AG.

Unlike the DPP, who operates independently according to Article 157(10) of the Constitution, the AG, whose office is established under Art. 156, is inherently integrated into the national executive framework with no constitutional provision for such independence.

This integration precludes complete autonomy from the Executive, as the AG and CSs are individually and collectively accountable to the President for their actions and functions.

The proposed amendments seek to redistribute human resource management functions from the PSC to the AG, facilitated by an advisory board.

Autonomous office

This challenges the PSC’s constitutional mandate of setting norms and standards for the management of human resources in the public service under Art. 234 — including establishment and abolition of offices in the public service; appointments to the public service and confirmation of appointments; and ensuring the public service is efficient and effective.

After delinking, all staff of the Office of the AG will initially remain seconded from the PSC until the office is officially designated as a public service for pension purposes.

Subsequently, the PSC will oversee the transfer of service of all the staff members to the newly independent Office of the AG.

State counsel, apart from those within the Office of the AG, will require approval from the PSC for deployment elsewhere.

Staff assigned to the AG will have to choose between transferring to the autonomous Office of the AG or remaining under the PSC’s mandate.

State counsel seconded to other agencies will have to choose between returning to the Office of the AG or accepting full-time positions in the current organisations as their secondment ends upon the delinking.

The AG will lose the authority to second officers to state agencies without PSC’s approval as these entities fall within its jurisdiction.

The AG’s ability to deploy state counsel to ministries, departments and agencies (MDAs) will immediately terminate as positions within MDAs are mandated to be filled through competitive recruitment processes by the PSC.

Financial implications

The Office of the AG will operate akin to a private law firm, responding to ministry directives through legal officers appointed by the commission.

The establishment of a pension scheme for the Office of the AG and creation of legal departments within ministries will carry significant financial implications that might necessitate the generation of “a money bill” for the government.

Notably, the proposed amendment strips the President of the authority to appoint the Solicitor-General, transferring this responsibility to the AG based on recommendations of the advisory board.

This shift alters the Solicitor-General’s status from a presidential appointee, a la Principal Secretary, to an ordinary public officer appointed by the AG.

Moreover, the proposed changes alter the recruitment process for the position of the Solicitor-General, diminishing the President’s and the National Assembly’s role.

Comparatively, the advisory board for the ODPP comprises nine members, including six advocates, but the proposed one for the AG consists of only six members, with only two advocates, namely the AG and the President of the Law Society of Kenya, defeating the consistent critique by the AG that the PSC lacked the expertise to recruit qualified state counsel.

And unlike the advisory board for the ODPP, which advises the ODPP collectively, the AG would chair his own, potentially exerting influence.

The looming challenge is whether the amendments will not require amending the Constitution.

Mr Muchiri is the chairperson, Public Service Commission (PSC)