NAIROBI, Kenya, Oct 10 – Fresh controversy is brewing between the Attorney General’s office and the Commission for the Implementation of the Constitution (CIC) over the proposed amendment of the new supreme law.
Days after the CIC released their quarterly report detailing the setbacks faced in the process of implementing the new constitution, AG Prof Githu Muigai has hit out at the commission, accusing it of usurping powers and roles it does not have as far as the new constitution is concerned.
“I am concerned that the CIC appears to have arrogated to itself the role of interpretation of the law in general and the Constitution in particular, which role is vested in the Supreme Court,” the AG said in a statement sent from his office on Monday.
In the statement, the AG who took office last month is also worried that the Charles Nyachae-led commission is also trying to take over his duties as principal legal advisor to the government of Kenya.
“The CIC appears to have arrogated to itself the role of legal advisor to the Government, which role is vested in the Attorney General and the role of drafting legislation which is vested in the Kenya Law Reform Commission and the AG’s department of Legislative Drafting,” the AG protests.
Animosity between the two legal bodies stems from their divergent opinions on whether the date of the next General election should be amended in the new Constitution.
The new Constitution stipulates that a General Election shall be held on the second Tuesday of August after every five year electoral term, effectively setting stage for the next general election to be held on August 14 next year.
A number of legislators are opposed to this provision and have called for an amendment of the new constitution, an opinion shared by the Cabinet led by coalition partners President Mwai Kibaki and Prime Minister Raila Odinga.
While the CIC advises against any attempt to alter the new Constitution, Prof Muigai who advises the government on legal matters insists on a cautionary approach to amending the Constitution.
“While this remains my position, it would be naïve and unnecessarily dogmatic to be opposed to any and every change to this living document, which is the Constitution,” Prof Muigai said.
And in an apparent indicator that the AG is not after all opposed to the proposed amendment, he adds that “there may be a clear case on the need for an amendment in circumstances where the amendment creates greater certainty on a legitimate constitutional goal.”
He cites an example in the current context on the need to achieve the gender balance or where opinion from eminent constitutional lawyers and experts is divided on the correct interpretation of the date of the next general elections.
In my mind -the AG says -amendments to address such instances should not be adjudged as premature and unconstitutional.
“I assure you once again that such amendments will not lead us to inadvertently rewrite the Constitution,” he observes and assures that “contrary to views expressed in the CIC Quarterly Report, the AG’s Chambers driven by values of team work continues to advise the Government in a professional, impartial and responsible manner so guided by the need to achieve Constitutional certainty and stability in a rapid evolution.”
And to ensure the CIC sticks to its mandate, the AG urges the CIC to recognise and appreciate the special mandate of the Kenya Law Reform Commission and the Department of Legislative Drafting of the AG’s chambers in their unique expertise.
The Supreme Court which is chaired by Chief Justice Willy Mutunga will have their first sitting this week and it is widely expected that the controversy surrounding the election date will be first on the judge’s agenda.