Epidemic of illegal state actions is the unsightly burden of AG’s office

The State Law Office comprises a tissue of paradoxes. For example, its spectacular visibility in high-profile litigation belies the fact that these actions invariably arise from its odious institutional negligence and sheer mediocrity.

The Attorney-General is also the principal legal adviser of the government. The government is protected against various types of legal actions by the Government Proceedings Act which is the Attorney-General’s redoubtable fortress.

It makes suing government such an onerous undertaking that only the most determined and intrepid can run the entire gamut of legal obstacles. These are supposed to afford the Attorney-General time to use every possible opportunity to advise and prepare the government in order to best serve the public interest.

What we do know now, is that the Attorney-General frequently proffers pedestrian advice to the government, seemingly under the benighted assumption that he has a professional duty to tell his client only what they want to hear, and never what is constitutionally and legally feasible. In any event, the Attorney-General is ever at hand to escort State functionaries as they promulgate repugnant policy, undertake reprehensible actions and violate the Constitution. Totally nonplussed, the same Attorney-General will be ready to lodge harebrained defences to inevitable suits, and thereafter mount appeals all the way to the Supreme Court.

Constitutional duty

Since the BBI litigation, the Attorney-General’s brief seems to have been reduced to that of frantically but vainly declaiming in court how various outraged petitioners must be resisted because they make the president look bad. This disingenuous fig-leaf ignores the fact that the Attorney-General is often a key player in conducting constitutionally offensive decisions through various processes, including Cabinet, Parliament, presidential assent and has a general duty to advise ministries, departments and agencies of government.

If the government is continuously embarrassed by court decisions nullifying various instruments and actions, surely, the Attorney-General must absorb a lot of responsibility for it because he has only one job. To blame judges and call them activist, then hound them through witch-hunts and ‘revisitings’ is to wallow in quixotic mendacity.

If a government instrument, action or decision offends the Constitution, it must surely be vacated and nullified, quickly and decisively. On one hand, the court is under an ineluctable obligation to declare such offensive government outputs null and void. On the other hand, no court has a responsibility to make government or even the president look good when faced with egregious delinquency.

The impression created by the debacle of the Attorney-General’s fairly inept approach to his constitutional duty is that politicians in the Executive are hell-bent on violating the Constitution just for kicks. Without any doubt whatsoever, politicians can be wilful and intractable, and their trade is notoriously comfortable with all sorts of seamy propositions. The Constitution deliberately assigns an inescapable common duty to govern these animal spirits and align them with national values and principles of governance.

The government’s legal adviser therefore has a cardinal obligation to shoehorn all political decisions into constitutional conformity. What the politician wants, at the end of the day, is a (constitutionally feasible) method of achieving their ends, which also makes for sound policy. What the legal counsel wants, ideally, is to ensure that every trace of illegality and unconstitutionality is purged from the politicians’ pursuits. That requires courage, as integrity invariably does.

Violations of the Constitution

Kenyans are verily anxious that at the present rate, the entire State might be declared unlawful, unconstitutional, null and void, and that the best the Attorney-General can do is lodge another sheaf of fatuous filings. Alas, a tremendous, interminable debacle! It is tempting to infer from his equanimity that there is method to the madness, and all the indolence is strategic.

Consider that the Republic is lately in the profligate habit of retaining the priciest counsel in town to assist the Honourable Attorney-General lose cases on behalf of government at public expense. Consider also the fact that this outsourcing framework enables the State Law Office draw stupendous amounts of funds, where humble and harried states counsel would ordinarily do at the cost of normal compensation.

How long must we respectfully pretend that all this litigation is not lucrative to somebody, somewhere? And what stops us from imagining that the bad or no advice, lackadaisical representation, and relentless appeals in futility aren’t just a money-printing venture for lawyers?

The public-spirited actors who want the government to correct illegalities and violations of the Constitution are not to blame. Neither are judges who do their duty. The epidemic of irregular, illegal, unlawful, unconstitutional, null and void state actions are the unsightly burden of the Attorney-General in the first instance, and of his patrons and enablers in high office in the second instance. Surely, it is time to call out this expensive travesty for what it is: unbearable, unsustainable, offensive, null and void.

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