Why Attorney General's office is on the spot

Attorney General Kihara Kariuki.

Photo credit: Dennis Onsongo | Nation Media Group




Under the colonial law dispensation introduced to Kenya with the English common law traditions, the office of the attorney general was one of the most respected. It gave the Crown independent advice on government policies and its advice was taken as the gospel truth. It conveyed professional and detached advice that was seldom faulted.

In the colonial set-up, the governor, as the queen’s representative in the colony, knew that whenever he justified his policies on the advice of Her Majesty’s Attorney General, he could get away with it.

At independence, Charles Mugane Njonjo, the self-acclaimed “Duke of Kabeteshire”, became attorney general and the office changed overnight. He saw his role not just as the continuation of the functions of the colonial office holder but also the personal legal spokesperson of the President. His word was law. His edicts were never questioned in the courts or any public or private office.

Second Liberation

 When he spoke, he spoke as the “titular head of the Bar“and it was misconduct for an advocate to contradict him publicly. He was the chief public prosecutor, the chief civil legal adviser in all government-related court actions and his directives were never subject to judicial interpretation. He was an essential component of the imperial presidency that would later become the chief object of the reforms associated with the Second Liberation.

It fell on the crafty Amos Wako, who declared that “no man except the President” was above the law, to include the office in the reform process by convincing President Moi that it would serve the unpopular President’s best interests by appearing to be on the side of reformers.

 It worked, for when the constitution limited the term of presidential office to two terms the office of the attorney general was able to argue that the previous two odd decades Moi was in power were not applicable in the calculation of the two terms. 

Wako was such a central player in the reform process that he preserved all the power and influence of the office by calculated and conscious induction of senior lawyers from the private practice to handle government briefs without accusations of conflict of interest. The office was infiltrated by cartels and entrepreneurs who were no longer answerable to the AG but to external players in the executive and the boardrooms of corporate entities.

 Counsel acting for the State Law Office could be ignored or blackmailed into either not appearing in court for hearings or to deliberately support causes that were detrimental to state interests. The Attorney General lost control of his office to these actors who had access to the offices of high and mighty. That is the dilemma any individual accepting to serve as AG must be prepared to face.

Under Article 156 of the constitution, the attorney general is nominated by the President, and with the approval of the National Assembly, appointed by the President. He is the principal legal adviser to the government.

The constitution requires him to promote, protect and uphold the rule of law and defend the public interest. In practice, he is seen and heard justifying, not public interest, but the interests of the government of the day. His office is seen as the citadel of impunity.

 Accusations

Court judgments and judicial pronouncements routinely criticize his decisions or his lack of decisions. The criticism is corporate to the office but the holder cannot escape accusations of failed leadership

The AG sits in the cabinet and therefore whenever he speaks, he is presumed to be representing cabinet and therefore the president’s wishes and not the dictates of the constitution. It is no longer being a Kihara Kariuki, Githu Muigai or Amos Wako.

The loss of respect for the office is a reflection of the people’s attitude and lack of respect to government policies. The office needs reform, it needs an injection of accountability medicine. The holder needs to undergo the same process of appointment that the holder of the office of chief justice is subjected to. He needs to hold office for a single, limited term of a maximum ten years and he should not sit in the cabinet.

The writer is an Advocate and a former Member of Parliament.