Attorney General and PSC in bitter war over hiring of state lawyers

The Office of the Attorney-General and the Public Service Commission (PSC) are embroiled in a bitter war over the appointment of Deputy Attorneys-General and State Counsel, according to correspondence sent to Parliament and seen by the Nation.

At the heart of the fallout between the state's two critical institutions in the conduct of government affairs is the Statute Law (Miscellaneous Amendments) Bill 2023, which is currently before Parliament.

The bill seeks, among other things, to amend sections 13 and 21 of the Office of the Attorney General Act to give the Attorney General plenary power to appoint Deputy Attorneys General and State Counsel.

This effectively removes the PSC from any role in the appointment of the officers.

In doing so, the bill seeks to make the AG's office as independent as the Office of the Director of Public Prosecutions (ODPP) in the recruitment of its staff.

But the PSC, in a memorandum on the Bill currently undergoing public participation before the Justice and Legal Affairs Committee (JLAC) of the National Assembly, says the proposed amendments are unconstitutional, in what is likely to fuel the war of words between the two state institutions.

This comes as Attorney General Justin Muturi, while appearing before the JLAC, accused the PSC of overlooking his office in the appointment of deputy attorneys general.

Mr Muturi, the immediate former Speaker of the National Assembly, also accused the PSC of failing to properly remunerate, retain and employ enough State lawyers, saying this was the reason the government was losing cases in court, leaving taxpayers with huge bills.

"The State Law Office is understaffed and demoralized. Whenever we want to send the attorneys to the counties to provide services to the people, the PSC says no. The ministries ask for lawyers, but then we have a limited number," said Mr Muturi.

Mr Muturi added that "the link with the PSC in employing officers has never worked well with the Attorney General's office.

The Attorney General told the JLAC, chaired by Tharaka Member of Parliament George Murugara, that although the PSC recommended that the Attorney General's Office should have 1,066 officers, it currently has only 523 officers, including the Solicitor General.

Mr Muturi further faulted the PSC, accusing it of recruiting deputy attorneys-general "without the consent of the Attorney-General and posting them elsewhere".

He revealed that his predecessor Kihara Kariuki and immediate past Solicitor-General Kennedy Ogeto wrote to the PSC several times to increase the number of officers but received no response.

"This is why the government is losing many cases. We need the ability to hire ourselves. A well-motivated staff in the Office of the Attorney General will enable the government to deal with treaties, some of which are complex and technically worded to the disadvantage of poor countries," he said.

However, PSC CEO Dr Simon Rotich says that "contrary to what is stated in the Bill, Article 156 of the Constitution does not establish the Office of the Attorney General as an independent office.

The PSC argues that this is contrary to the constitutional provision attached to the Office of the Director of Public Prosecutions (ODPP) in Article 157.The article states that the DPP shall not be subject to the direction and control of any person or authority in the exercise of his powers or functions, and that "there are no similar constitutional provisions in respect of the Attorney-General."

"It is not clear how the involvement of the PSC in the recruitment, appointment or promotion of Deputy Attorneys General and State Counsel creates inconsistencies in the operational framework of the Office of the Attorney General," Dr Rotich said in a memorandum to Parliament.

He added: "The amendment could create a domino effect for other ministries and agencies to seek legislation to empower them to recruit staff for their offices.

The PSC argues that the Attorney General, who is supported by necessary staff to carry out his functions as determined by the PSC in the exercise of its powers, is a member of the Cabinet just like Cabinet Secretaries and therefore not listed as one of the independent constitutional offices.

This is even as Dr Rotich warned that giving the Attorney General the sole and unfettered power to appoint, promote and determine the conditions of service of the officers "inherently creates room for abuse of power".

Like the ODPP Act, the bill proposes the establishment of an advisory board that will be responsible for the recruitment of deputy attorneys general and state counsel away from the prying eyes of the PSC.

It also seeks to remove the PSC from determining the conditions of service of the officers.

"The Attorney-General may appoint such Deputy Solicitors-General as he may deem necessary for the proper and efficient discharge of the functions of the office," reads the proposed clause to amend Section 13 of the Act.

The bill also proposes that "the Attorney General may appoint such number of State Counsel as may be necessary for the proper and efficient discharge of the functions of the office.

"Currently, the Act provides that the Attorney-General, in consultation with the PSC, may appoint such Deputy Attorneys-General as the Attorney-General considers necessary for the proper and efficient discharge of the functions of the Office.

With respect to the appointment of States Counsel, the Act provides that the Attorney-General may, in consultation with and on the recommendation of the PSC, appoint such States Counsel as may be necessary for the proper and efficient discharge of the functions of the office.

The Bill also seeks to amend Section 22 of the Act to provide that "States Counsel appointed under this Act shall serve on such terms and conditions as the Attorney-General, on the advice of the Salaries and Remuneration Commission, may determine".

The terms and conditions of service in the Office of the Attorney General are such that State Counsel serve on such terms and conditions as the Attorney General, on the advice of the SRC and the PSC, may determine.

While pushing for the changes, Mr Muturi argues that the state needs enough competent and well-paid officers to enable the country to properly deal with technical international agreements on oil and gas, carbon trading and climate change, among others.

The shortage of such officers means that Kenyans are deprived of essential services such as marriage registration, among others.

Mr Muturi told the committee that the situation is made worse when, for example, the other government agencies - Parliament, the Judiciary, ODPP and "even PSC itself" - recruit, they poach from the State Legal Service "because they offer better remuneration packages." 

But the PSC notes that the functions of the Attorney General, as the chief legal advisor to the government, do not operate in isolation or independently of the executive arm of government. 

"The office of the Attorney General cannot, therefore, be delinked and removed from the jurisdiction of the Commission."