Setbacks speak of betrayal by the State Law office

The recent High Court ruling nullifying the appointment of Chief Administrative Secretaries in ministries and putting into question the legality of the appointments of several second-term Cabinet Secretaries that were not vetted on account of the fact that they had been sworn in for the previous term raises the question whether our President is such an incorrigible disrespecter of the law or he has an extremely incompetent bunch of advisors at the State Law office.

But he loses on either account because the first act of an incoming President is to swear to uphold the law under any and all circumstances before he proceeds to appoint teams to ensure he fulfils that oath.

And no team is more important than that at the State Law office, led by the Attorney-General.

Respect for the law

President Uhuru Kenyatta’s government scores really poorly on respect for the Constitution and upholding the law. A few examples will illustrate this.

The creation of the office of the Chief Administrative Secretaries in ministries raised eyebrows and controversy in Parliament because it was not provided for in law.

Their job descriptions sounded very much like those of the abolished assistant minister roles and for a while it was not clear whether they were ahead of the Principal Secretaries (former Permanent Secretaries) in the pecking order at the ministries.

This was later clarified and most Kenyans forgot and moved on. But not all of us as it emerged this week when Justice Antony Mrima ruled in a case filed by well-known public litigator Okiyah Omtatah that the CAS office was unconstitutional; that the Cabinet Secretaries appointed to serve a second term in 2018 should have been vetted afresh by the National Assembly and that principal secretaries appointed directly before being identified, interviewed and recommended for appointment by the Public Service Commission were in office illegally.

This serious legal slap rekindles the anger many feel at the adamant refusal of the President to swear 41 judges that were vetted and recommended for appointment more than two years ago.

Note that the Constitution is explicit that he has no choice but to swear these officers as they have gone through the rigorous process of interviews and vetting. So bad is this that those being interviewed for the office of Chief Justice these past two weeks have had to respond to the question of how they would deal with the President’s intransigence on this matter.

These are just two high-profile examples of a situation that speaks to the complete lack of respect for the law by one party, or extreme incompetence of another. Or could it be a situation of haughtiness deliberately appointing incompetence to avoid the embarrassment of being called out?

Attorney-General Paul Kihara Kariuki does not come across as a legal slouch at all. He was a partner at the prestigious Hamilton, Harrison and Matthews in Nairobi and then a partner from 1981 to 1986, before jointly setting up the Ndung’u Njoroge and Kwach firm, one of the first stellar local legal practices.

He has served as the director of the Kenya School of Law and the Judicial Training Institute and was also the President of the Court of Appeal. He became the AG in 2018. This is not a person that should feel beholden to the appointing authority to the extent of not standing up for what is right.

Neither is his principal assistant, Solicitor-General Ken Ogeto. A highly successful lawyer with a proven track record of serving in prestigious international tribunals like the Arusha one that handled the Rwanda genocide cases, he should be expected to have injected some spine into an office for a long time seen as a toothless adjunct to the substantive AG.

Irreducible minimums

On the face of it, one can think of no better team to give full expression to the promise of the 2010 Constitution by respectfully but firmly reminding the President that there are some irreducible minimums in the Constitution that even he cannot disregard.

Instead of doing this, the AG’s office is actually defending these illegalities in court. It is a shame.

It is often said that appointments to high political office can neuter many a brave soul and addle a brilliant mind. But it is pitiable to see the souls of men from whom so much is expected wither as they betray millions.

 [email protected], @tmshindi