AG has failed us, Kenya deserves legal services from the best minds 

The International Court of Justice decided against Kenya in the maritime boundary dispute with Somalia. The BBI appeal has slowly but surely wended its sinuous way into the Supreme Court, prolonging political suspense all around. Former Chief Justice, Willy Mutunga, announced on Mashujaa Day that he will be travelling to Canada to accompany my exiled friend, Miguna Miguna, back to his motherland.

A fortnight ago or thereabouts, Fred Matiang’i announced the launch of a steering committee mandated to ensure that the Presidential Task force on Review of Power Purchase Agreements completes its work in the six months allotted. Finally, the courts continue to nullify and quash legislative, policy and administrative instruments of the Executive with an astonishing regularity.

These apparently disparate events all touch on the legal affairs of government, and highlight the State Law Office’s public impact. The Office of the Attorney-General and Department of Justice is where the Attorney and solicitor General have their chambers and is the organisation which conducts the legal affairs of the government and of the people, in the name of the Republic of Kenya. Litigation of cases by and against government, the negotiation, conclusion and implementation of treaties, contracts, agreements and other arrangements as well as the custody of records and instruments pertinent to these matters, all fall under the purview of this momentous institution.

Such chambers, then, are the address from which our commitments, obligations and undertakings are administered, claims by and against us conducted, and their fiscal, constitutional, legal and political implications evaluated. This is why all the way to Githu Muigai, Kenya’s Attorneys-General have been visible, influential personages of unfailing gravitas, who inspired a measure of public confidence. With their presence and activity, they coordinated with all State ministries, departments and agencies to ensure that government legal affairs were ship-shape.

Although government has announced its position and reasons regarding the maritime delimitation dispute, discourse among legal professionals indicates profound scepticism about the quality of legal counsel that animated our representation in the litigation and relevant diplomatic efforts.

The government’s representation in the captivating BBI legal drama before the constitutional court, and the Court of Appeal thereafter, was dour and lacklustre in comparison with the scintillating and motivated performance of mostly volunteer advocates for the petitioners and subsequent respondents.

The travails of Miguna Miguna, that defiant, patriotic and subversive firebrand, were entirely instigated and compounded through successive episodes of coordinated impunity, recklessly perpetrated by State security apparatus under the direction of a determined Executive. Not only did government disregard over a dozen orders of the High Court; it also bombed Miguna’s house, abducted, confined, sedated and finally removed him from the country in a most extraordinarily unlawful way. Ever since, Kenya has been disgracefully desperate to prevent Miguna from entering his own country.

Intractable chaos and mediocrity

Perennially astronomical cost of electric power perennially defies rational explanation, given that the country is abundantly endowed with hydroelectric and geothermal power. The irrationality arises from airtight agreements committing the national power company to buy unreasonably expensive power from thermal producers, thus escalating the overall power prices.

These one-sided pacts run for terms spanning decades, and often involve shadowy foreign companies. The agreements also oblige the government to submit to foreign jurisdictions for dispute resolution and inflict arbitrary and onerous penalties and interests for all manner of equally arbitrary infractions.

Finally, the mystifying abundance of unconstitutional policy and administrative decisions of the Jubilee administration suggests that this government is wholly bereft of legal advice. Various statutes, appointments, policy and administrative measures have recently been vacated for want of constitutional compliance with alarming regularity.

The Office of the Attorney-General declares its mission as "Providing public legal services and promoting a just, democratic and corruption-free nation,” while the department of justice crows about “Facilitating the realisation of good governance and respect for the rule of law and promotion of human rights and upholding of ethics and integrity.” These lofty mandates are ostensibly pursued by departments and divisions such as Legal, International Law, Government Transactions, Legislative Drafting, Legal Advisory and Research and Civil Litigation. Yet the dismal evidence on the ground suggest that word and deed are far from reconciled.

The undeniable propensity of the State Law Office to commit the government and the republic to improvident and opaque arrangements is now part of a corrupt, treacherous and negligent tradition in government that must stop. Official secrecy is often deployed to conceal the embarrassing indiscretions of inept, compromised and reckless functionaries who have tethered the country to onerous and opaque schemes, exacerbating our already unbearable burdens. The capacity to extend quality legal services from a detached professional vantage has been overwhelmed by venal external political and bureaucratic incentives within ministries, departments and agencies.

This sense of intractable chaos and mediocrity must be the reason for the attorney-General’s curiously inert aspect as well as the solicitor-general’s chronic shell-shock. They must redeem themselves and relieve the nation by diligently ministering to the veritably fetid Augean stables festering all around them. Good luck, then.

The writer is an advocate of the High Court and a former State House speech writer. @EricNgeno