Courtesy of The Standard
There have been several complaints especially from civil society against the recently appointed Attorney General. Indeed, blogosphere and the media are awash with news about complaints by the civil society about the AG’s sudden change to become an alleged defender against that which is against public interest. This is as a result of, first, the failed appeal against the controversial Justice Ombija decision issuing warrants against the Sudanese President Mr. El Bashir where the AG chest-thumping insisted on the illegality of the decision and promised to appeal the decision saying that the President was immune from prosecution. Second was a recent announcement by the AG that the State would cover the defense costs of the ‘Ocampo 6’– persons accused of being the main perpetrators of the 2007/2008 post election violence, and who are currently anxiously awaiting the verdict of the International Criminal Court, which is set to decide in the next month whether the charges against the accused will be confirmed therefore committing them to full trial. Third, is as a result of the recent spat or so-called turf war that pitted the AG against the Chair of the Constitutional Implementation Commission.
Quoting the “STAR” newspaper, civil society “seem to believe that the AG has been 'excessively' been defending the Executive and are worried that the eloquent former Law professor might end up to be a carbon copy of his predecessor Amos "the Smiling AG' Wako!”
It important at this point to first relook the exact role of the AG as outlined in the Constitution. Article 156 establishes the office of the Attorney general as an independent office – acting as the principal legal advisor to the government, represent the national government in court or in any other legal proceedings to which the national government is a party, and shall perform other functions as conferred to the office by an Act of parliament or by the President (Article 156 (4). Another very important feature that is in line with the spirit of the constitution is the fact that the AG shall promote, protect and uphold the rule of law and defend public interest.
Looking at the few months that Prof. Githu has been in office, I tend to side with him as a legal advisor to government and its official legal representative in filing an appeal against a decision in which the government clearly has interest. Further, the spat, tough unnecessary, recently witnessed between him and Mr. Nyachae the CIC chair is in my opinion normal. History is rife with many episodes all over the world where Constitutional office holders have had such turf wars. The difference between the many witnessed turf wars has been how these have been handled eventually. The spirit of the implementation of the constitution calls for a lot of cooperation and concerted effort from all stake holders to drive the process. Neither the CIC nor the office of the AG has exclusive capacity to fully drive the process. The moment such spats turn to be impediments and complete obstacles to the implementation process, then it becomes a problem.
However, where the AG goes wrong in my opinion is closely related to the spirit mentioned above that ought to guide him in the exercise of his functions. Announcing support to the defence of persons who have been individually accused in their personal capacities for bearing greatest responsibility for the post election violence goes against this spirit. A continuous war of words with the CIC, which threatens to derail the implementation process, to the extent of referring the CIC as being too temporary to deserve his respect and time is also against the spirit.
We appreciate the kind of pressure that comes with being appointed with impeccable credentials, from the civil society i.e. The Law Society of Kenya, and joining a government that cares little about public opinion and outcry as its principal defender. The El Bashir case comes out as one such issue. Public Interest has been for a long time in support of the ICC process and this is something the AG is fully aware of. However, considering the fact that as a lawyer for government he takes instructions and litigates on its behalf however absurd the issues may be, this certainly posses a great challenge to the integrity of Prof. Githu Muigai the man – if at all we are sure where his loyalties lie.
Something that ought to be pointed out to the AG is that there have been many examples of persons who even while in governments with ridiculous policies, some very autocratic, have stood out as persons of integrity and gained a lot of respect even while still in the same governments. The beauty of having an independent office is the ability to make decisions fully backed by the Constitution, as opposed to conforming at the expense of personal integrity and public interest.
The former AG Mr. Amos Wako was on many occasions accused of sycophancy due to his stances that faced thorough criticism from the civil society and public at large. His ability to serve successive governments and survive where many of his colleagues failed was credited to his ability to “Kiss Ass” (forgive my language). However even he, in whom we had no faith at all stood up against status quo during the unconstitutional nominations of CJ, AG and DPP by President Kibaki. Indeed they say that when swimming in the ocean you cannot be afraid of the rain and this may probably have driven Wako to oppose the President (the fact that his time was up). However, whatever the reasons, it goes down in history that Amos Wako, then Attorney General of the Republic of Kenya, stood up and defended the constitution and public interest when all desperately needed him and the office he represented to do so.
What say you Mr. Hon. Attorney General?!
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