How AG’s failing in his role

On Tuesday, the High Court nullified the controversial Housing Levy to the relief of many. The three-judge Bench unanimously found that taxing only salaried workers in the formal sector is arbitrary and discriminatory and, therefore, unconstitutional. But the government has vowed to appeal the decision.

He being the government’s principal legal adviser, the Attorney-General’s role in this must be questioned. Given the number of statutes and Executive directives struck down lately, is he sleeping on the job? Or is the government a difficult client that doesn’t take legal advice? Either way, the Constitution obliges all to respect, uphold and defend it.

The AG is not merely a custodian of the Executive’s legal instruments. It is his duty, under Article 156(6) of the Constitution, to defend the public interest. Thus, for example, he participates as a ‘friend of the court’ in public interest cases where the government is not a party, such as presidential election petitions.

The AG must refrain from the out-dated practice of opposing every case filed against the government regardless of its merit and appealing decisions even where chances of success are marginal. For example, the AG twice appealed and lost the Building Bridges Initiative (BBI) case, which cost the taxpayer millions of shillings in legal fees, money that could have been better spent on providing essential services, and the judicial time clearing the case backlog.

Being the government’s lawyer and a public interest defender is a delicate act but the AG must do it.

- Mr Arori is an advocate of the High Court of Kenya. [email protected].