Recently newspapers have reported the concerns of largely anonymous lawyers on the tenure of Prof Githu Muigai as Attorney General. Three major concerns have been expressed.
First, that Prof Muigai’s tenure is irregular allegedly because he should be re-nominated and re-appointed as Attorney General by President Uhuru Kenyatta. The second concern is that the Constitution does not provide on how and when the Attorney General should vacate office. The third concern is that because the AG does not enjoy security of tenure, the role of the AG under Article 156(6) as protector of the rule of law and defender of public interest may be compromised or curtailed in day-to-day running of government.
Undoubtedly, these concerns are both weighty and legitimate and therefore deserve greater reflection and understanding because no question should be raised about the legality and propriety of the chief government adviser’s tenure of office. In my view some of these concerns arise from misunderstanding of the new constitutional dispensation and the dual-system of government (National Government and the 47 County Governments).
In accordance with Section 31(7) of the Sixth Schedule of the Constitution of Kenya, 2010 the long-serving Attorney General Amos Wako vacated office in August, 2011. Thereafter, in accordance with Section 29 of the Sixth Schedule Prof Githu Muigai was appointed as AG by President Mwai Kibaki after consultation with Prime Minister Raila Odinga and with the approval of the National Assembly.
In short, Prof Muigai is serving as Attorney General in accordance with the new Constitution. Further the appointment of Prof Muigai was in accordance with Article 156(2) read with Section 29 of the Sixth Schedule of the Constitution.
It is important to underscore three features of the office of Attorney General under the new Constitution vis-a-vis the position under the former Constitution. First, under the new Constitution the Attorney General is a member of the Cabinet by right but in the former Constitution the AG was a public servant who was a de facto member of the Cabinet. Secondly, whereas under the former Constitution the Attorney General represented the Government in both civil and criminal proceedings, under the new Constitution the A-G represents the National Government in civil proceedings only.
He does not represent County Governments in civil proceedings and the Director of Public Prosecutions exercises the State powers of prosecution under the new Constitution. Thirdly, under the former Constitution the Attorney General enjoyed security of tenure but this is not the case under the new Constitution.
It bears noting here that the real reason for the AG’s security of tenure under the former Constitution was because he exercised the State’s power of prosecution. The necessity for security of tenure has now been obviated by the creation of the office of Director of Public Prosecution whose holder enjoys security of tenure.
Viewed against this backdrop, the concerns about the tenure of Prof Muigai’s tenure as AG are much ado about nothing. True, under Article 152(1) of the Constitution the AG is a member of the Cabinet but that does not make him a Cabinet Secretary or make his office the equivalent of the office of Cabinet Secretary. Like Cabinet Secretaries, the AG holds office at the pleasure of the President. If and when a Cabinet Secretary or the AG loses the pleasure of the President then the holder is dismissed and a replacement appointed in accordance with the law.
In real terms upon assuming power, President Uhuru Kenyatta had to options in respect of Prof Muigai’s tenure as AG. He could dismiss Prof Muigai or let him remain in office as AG. To dismiss Prof Muigai, the President must undertake a positive act of dismissal pursuant to his powers under Article 132(2)(b) of the Constitution. However to retain Prof Muigai in office the President is not enjoined to perform any positive act – he simply lets the status quo remain. In short Prof Muigai is lawfully in office precisely because President Kenyatta has not dismissed him pursuant to Article 132(2)(b) of the Constitution.
In view of the foregoing, after the Jubilee Government came to power in April, 2013 there was no legal requirement for President Kenyatta to re-nominate Prof Muigai as AG and his name re-submitted for vetting and approval by the National Assembly. There is no gainsaying that vetting and approval by the National Assembly is a one-off event which remains valid unless and until the dismissal of the particular State officer by the President.
Therefore the concern about how and when the AG should vacate office is spurious in view of Article 132(2)(b) which empowers the President to dismiss the AG as well as Cabinet Secretaries and other State or Public Officers appointed by him.
The concern about the nexus between the AG’s role as promoter and protector of the rule of law and defender of public interest vis-à-vis the exigencies of his role as principal legal adviser to the government raises a profound issue in my view. At the conceptual level promotion and protection of the Rule of Law could well be necessary to be exercised against the Government itself and the State of which the AG is an integral part. In real terms Articles 152(1) and 156(4) requires the AG to be a part of Government yet Article 156(6) enjoins him to promote, protect and uphold the rule of law and defend the public interest.
The role envisaged by Article 156(6) presumes that the AG will objectively and honestly discern when he or she is part of Government and when he should act in independently of it in order to defend public interest. In practice this may not be easy hence there is legitimate concern that Article 156 does not provide for an effective mechanism for the protection of the rule of law and defence of public interest when the government is the protagonist. Hence, if nothing else, the bubbling controversy over the legality of Prof Muigai’s tenure as AG is welcome for drawing attention to the inadequate legal mechanism for protecting public interest in the new constitutional dispensation.
The writer is a constitutional law practitioner based in Nairobi (firstname.lastname@example.org)