AG Kihara Kariuki on the spot yet again after string of losses
Last Friday’s judgement by the Court of Appeal on the fate of the Building Bridges Initiative has shone the spotlight on the Attorney-General and Solicitor-General over their roles as the President’s legal advisers.
Lawyers and political analysts are now questioning whether the two, AG Kihara Kariuki and his Solicitor-General Ken Ogeto, have been providing President Uhuru Kenyatta with the right advice following a streak of losses that the government has suffered in courts over the years.
The Court of Appeal on Friday upheld the High Court decision that declared the entire BBI process unconstitutional in one of the many decisions by the courts that have gone against President Uhuru.
Sources within the government intimated to People Daily that pressure is mounting on President Uhuru to re-examine the quality of legal advice he receives from the State Law office.
“It should also be observed that while anti-BBI forces engaged relatively young advocates who presented a well-coordinated and harmonious assault on the BBI, the opposing side had much experienced lawyers whose arguments were relatively disjointed,” a Senior Counsel told People Daily.
Senior Counsel, who has represented the government in previous landmark cases, including the 2017 presidential petition in the Supreme Court, says one could easily tell during the BBI hearings that the State, through the office of AG, was not well prepared on the case.
Senior Counsel also questions why courts have previously made some judgments in which the government has not been represented.
“In such instances, is it a deliberate action by the AG not to represent the government or is it an act of omission?
At what stage is the office of the AG made aware of the decisions before they are pronounced by the President?” he quipped.
Lawyers and political analysts are now of the opinion that either the President ignores the advice he receives from the AG’s office or the advice is misleading.
“I really pity the two gentlemen (Kariuki and Ogeto) because theirs is a delicate job that requires them to balance between politics and law.
Handling a situation that requires balancing between legal imperatives and political objectives is very difficult,” says Gad Awuonda, one of the lawyers who was part of the Committee of Experts that drafted the 2010 Constitution.
Awuonda says for one to be appointed an AG, the person needs to be well balanced in political and legal terms, like Amos Wako, the Busia Senator.
“Such an individual ought to have alternative plans that can withstand both political and legal challenges.
In most cases, a lawyer would offer a politician advice, but the latter would feel that the advice inhibits his political agenda or objective,” he says.
Deliberate action
The Court of Appeal, in a seven-judge bench, dealt a blow to President Uhuru and ODM leader Raila Odinga by upholding the High Court decision declaring the Building Bridges Initiative Constitutional Amendment Bill (2020) illegal.
Judges issued a permanent injunction restraining the electoral agency from processing the Bill or subjecting it to a referendum.
On April 20, the government was dealt a blow after the High Court ruled that the Office of Chief Administrative Secretary is unconstitutional.
According to Justice Antony Mrima, however, the law was not followed in creating the positions. Judge also ruled that the Cabinet Secretaries and Permanent Secretaries, who continued to serve without vetting in 2017 are in office illegally.
Judge, however, suspended the coming into force of the judgment for 30 days for the AG to give a report on the matter.
Commenting on the issue, Prof Munene Macharia of USIU-Africa says Kariuki and Ogeto are men who have found themselves in a fix.
“They may be giving the correct legal advice to a President who is out to initiate what he considers to enhance good governance for the public good. On one hand, you do not need to tie the hands of the President, while on the other, he needs to act in accordance with the Constitution,” says Prof Macharia.
He says many are the times the office of the AG finds itself in a dilemma over following the Constitution to the letter or letting the President implement what the government considers to be aimed at enhancing service delivery and good governance.
On June 9, the High Court made yet another landmark ruling in which it quashed an Executive Order issued by the President last year, reorganising the government and placing independent institutions under the control of the Attorney-General and Cabinet Secretaries.
Justice James Makau said it was unconstitutional for the President to purport to restructure and reorganise independent offices. According to Justice Makau, the President has no powers to transfer functions of constitutionally established institutions.
On June 18, 2020, the High Court had declared the Deed of Transfer of Functions executed between the National Government and Nairobi City County Government as “vague and irregular”.
Justice Hellen Wasilwa had ruled the transfer of functions had not been approved by the County Assembly, therefore making the hand-over illegal. Court, however, lifted the orders later, after the Government regularised the transfer by involving the County Assembly.
President, on the Attorney General’s advice, had refused to appoint the 41 Judges citing integrity issues with some of them.
Six nominees
Judicial Service Commission in July, 2019, interviewed, recruited, and recommended 41 people for appointment as judges to the Court of Appeal, the Employment and Labour Relations Court and the Environment and Land Court. One of the nominees, however, died last year in a road accident.
Matter was taken to court and the High Court ruled that the failure to appoint the said judges was unconstitutional.
The President, however, refused to gazette or appoint the recommended judges until on June 3, 2021 when he appointed 34 judges and rejected six nominees.
Matter on the partial list is still pending in court. On March 11, the High Court ruled that appointment of tribunal members by the President violates the Constitution.
Justice Anthony Mrima held that tribunals are subordinate courts falling under the Judicial Service Commission.
He directed Parliament and the Attorney General to file an affidavit in six months on progress made in correcting the situation.
In December last year, the High Court declared the government directive to quarantine members of the public in various facilities without an order of magistrate and at their own cost as unconstitutional.
