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AG on the spot after series of case losses

By Nancy Gitonga
Monday, June 14th, 2021 10:02 | 5 mins read
Attorney General
Attorney General Kihara Kariuki: PHOTO/courtesy

Attorney-General Paul Kariuki Kihara, as the principal legal adviser to the Government, is on the spot following numerous cases the government has lost.

In the last two years, the Government has lost nearly 10 major cases brought before law courts including the Building Bridges Initiative (BBI), the Nairobi Metropolitan Services (NMS), the appointment of the Chief Administrative Secretaries (CAS) among others.

These rulings, according to legal experts, point to the fact that the AG is either overwhelmed or not giving the best legal opinions on such key matters.

“The reason these judgments against President Uhuru Kenyatta and his government are coming in fast and furious is not necessarily because the cases were solid, but because either the defence was weak or there was no defence at all from the AG. So, they were essentially a one-sided story, and in an adversarial system like ours, the courts award those who prosecute their cases robustly,” a senior government official, who declined to be named due to the sensitivity of the matter told the People Daily.

According to the official, who is also a lawyer by profession, the success or failure of a case is essentially determined by the robustness of the opposing party’s case.

“The AG is solely to blame for either putting up a weak defence or lack of it,” the official intimated. However, Law Society of Kenya (LSK) President Nelson Havi absolved the AG from any blame insisting that the cases presented before courts have always been strong that any judge would not hesitate to rule against the government.

“It is not about the AG but the facts presented have always been strong. Look at the recent judgment on BBI, it was about the constitution. Whether it was the AG Kihara or somebody else, the judgment would still have gone the same way, “ Havi who successfully petitioned the High Court on president Uhuru’s executive order on independent offices said.

Leader of Majority in the National Assembly Amos Kimunya blamed the courts for having a hidden agenda against the government.

“It is an open secret that the Judiciary has opened a war against President Uhuru’s government. The rulings have been suspect,” Kimunya said.

The job is not easy as former Attorney General Githu Muigai put it in a past interview. He said the work of an AG is to advise but whether the advice is taken is a different thing. However, when the action boomerangs then he is duty bound to defend the government.

The recent decision by the High Court to overturn an order by President Uhuru Kenyatta seeking to place Independent offices under his authority has again exposed the strained relationship between the Judiciary and the Executive.

The Thursday judgement by Justice James Makau is not the first case that the courts, in the last two years, are seen to be attacking the integrity of President Uhuru Kenyatta. In another case on May 27, the High Court, in a judgment by three judges, declared the President’s June 2018 parastatal appointments unconstitutional.

The three judges made the declaration that the appointments by the Head of the State, which featured key political losers and former government officials, were made in an opaque manner, therefore, invalidating them.

Office illegally Some of the prominent names in the appointments were Retired Chief of Defence Forces Gen Julius Karangi, former Kenya National Union of Teachers (Knut) chairman Mudzo Nzili, former Mombasa gubernatorial candidate Suleiman Shahbal, former governors Benjamin Cheboi (Baringo), Doyo Godana (Isiolo) among other individuals.

In April, the President’s administration was dealt another heavy blow after High Court Judge Antony Mrima also declared the position of Chief Administrative Officer (CAS) initiated in 2017 unconstitutional.

Justice Mrima held that Cabinet Secretaries, who continued to serve without being vetted in 2017 were in office illegally, adding that any Principal Secretary (PS) not competitively recruited by the Public Service Commission (PSC) is in office illegally.

The decision came after human rights activist Okiya Omtatah moved to court challenging the appointment of the officers and creation of the office of the CAS.

On January 26, President Kenyatta announced the creation of the CAS position in every ministry in his second term as the Head of State.

President Uhuru’s war with the Judiciary can be traced back to 2017 when the Supreme Court annulled the presidential election on grounds that the process was unconstitutional.

One of President Uhuru’s legacy project, the BBI, suffered a major blow in May 2021, when a five-judge bench composed of Justices Joel Ngugi, George Odunga, Chacha Mwita, Teresia Matheka and Jairus Ngaa also stopped the BBI’s ‘reggae’.

This is after the judges declared the BBI process, which was initiated by the President, as unconstitutional, null and void putting an end to the proposed constitutional amendments.

The President, angered by the decision on Madaraka day asked: “Our Constitution is not a yoke around our necks, rather it is a mighty sword that can break the chains that limit us.

The moral foundations of Justice demand that the Judiciary bears the burden of choice and the consequences thereof; especially where the burden of judicial choices is proposed to be carried by the people.”

The President added: “If BBI were to be stopped, who carries the burden of choice? On whose shoulders will ethnic majoritarianism rest? And who will carry the burden of losing 30 percent of our national budget every five years due to the toxic politics that BBI seeks to resolve?”

According to constitutional lawyer Henry Kurauka, the Judiciary must accept that it is part of the Government. “Since Government is a complex structural creature, courts ought to be diligent in making orders so as not to create absurdities, administrative challenges and interference with statutory duties of other organs,” he said.

He said the doctrines of separation of powers and checks and balances must be observed by organs of Government. “Recent court decisions will worsen the poor relationship between the Judiciary and the Executive. Many government plans and actions have been nullified by courts. BBI and appointments are good examples,” he said adding that the AG appeared overwhelmed with his work.

“The Executive is not getting the best legal opinions on key matters. For instance, the AG should have enlisted the current BBI Appeal team to defend the government in the High Court.

The AG, whose qualifications for appointment are the same as for appointment to the office of Chief Justice, is expected to represent the national government in legal proceedings to which the national government is a party, other than criminal proceedings.

Following the law Under Article 156 of the Constitution, the AG is expected to ensure that the rule of law is promoted, protected and upheld to defend the public interest.

The Courts make decisions based on how robustly both parties prosecute their cases. The AG is either putting up weak defence or there is completely no defence at all.

Efforts to get a comment from the Attorney General’s office were futile as calls were not answered. Constitutional lawyer Danstan Omari said the ripple effect of the orders escalates the strained relationship between the two arms of government at a time when everything is being done to mend the frosty relationship.

Omari added that since the Handshake between the President and Opposition leader Raila Odinga in 2018 so many illegal decisions have been made leading to the several litigations in court challenging their legality which has led to the same being declared unconstitutional by the courts.

On the question whether the courts decisions are halting or frustrating the President Uhuru’s administration projects, the lawyer says that “the constitution is clear that any government project or appointment must be done within the law.”

On his part, lawyer Shadrack Wambui says the standoff between the two arms of government has been occasioned largely because President Kenyatta is not obeying any orders issued by the courts.

“There is a feeling that the President has disobeyed even the latest order by the court over Kenya Meat Commission (KMC) being controlled by Kenya Defence Forces (KDF). What we can see is that the President has defiantly opted to disobey the court orders,” said Wambui.

Nancy Gitonga

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