NAIROBI, Kenya, Mar 25 – The Supreme Court has allowed Attorney General Githu Muigai to be enjoined in the petitions challenging the election of Uhuru Kenyatta as president.
The court however turned down as similar request by the Law Society of Kenya to act as amicus curiae after all parties in the cases opposed the inclusion of the society.
“The State law office, the chief officer of which is the Attorney General, is the custodian of the legal instruments of the Executive branch and the recognised advisor for the State in matters of public interest. It will be improper to exclude him from such a matter.”
Justice Ojwang who read the ruling however added: “This is not the case however with the LSK as the court finds a pointer to possible conflict of interest.”
Lawyers representing Prime Minister Raila Odinga and those standing in for The African Centre for Open Governance (AFRICOG), a civil society with a separate petition had all opposed to having the AG in court as amicus curiae.
All the legal representatives for petitioners and respondents were however unanimous that the Law Society of Kenya (LSK) was a partisan player in the matter and urged judges to lock them out of the matter.
They objected on the grounds that LSK already had constituted an audit team to look into the election outcome. The learned friends were also unanimous that an affidavit filed by the LSK vice chairperson Lillian Omondi was part of the evidence of the Independent Electoral and Boundaries Commission (IEBC).
The lawyers said even though the vice chairperson wrote the affidavit in her personal capacity, such an affidavit could not be separated from her official capacity.
Muigai who was first to make his submissions said that the case was proper to accommodate the public interest. He said that he was appearing at the discretion of the court and that he would abide by the terms within which he was admitted.
“The AG cannot impose himself in any proceedings; he appears only with the leave of the court. The discretion as to the latitude of the friendship granted to the AG is with the court,” he said.
“The AG is exercising the oldest parameters of the amicus not be part of the conflict and neither support the respondents not petitioners and only to guide the court on legal questions,” he argued.
However, senior counsel George Oraro who is leading Odinga’s legal team insisted that the AG was already advising President-elect Uhuru Kenyatta and could not therefore be an independent friend of the Supreme Court.
“The AG is part of the team advising the president-elect which is the subject matter of this petition; on purely factual basis, how can he then claim to advice the court as an independent friend?” he posed.
“Unless there are peculiar facts, representation and jurisprudence showing the amicus will present what is not contained in the petitioners’ briefs, I object to the application,” Oraro submitted.
He told the court that the AG was not going to raise new issues of law that had not been raised by the petitioners.
Lawyer Kethi Kilonzo for AFRICOG also argued that issues before court did not require an interpretation of the law to warrant inclusion of the Attorney General.
All the other legal representatives for Kenyatta, William Ruto and the Independent Electoral and Boundaries Commission said they do not oppose the AG’s inclusion.
The court has also ordered that the cases be consolidated with petition 5 by Raila Odinga being known as the pilot file.
Petition number 4 by Gladwell Otieno of AFRICOG will be the second petition while the petition by three voters will be referred as the third petition.