By Jerameel Kevins Owuor Odhiambo
Worth Noting:
- In this paper I highlighted the essential role of the Attorney General, still hold that the office holder of Attorney General office should by all means work within the province of the law.
- Tarrying from the same to suit the interest of the master who appointing him or her is a travesty and a sincere act of contravening of the law. The law binds all and sundry and no one is above it.
- If it were that there are folks above the law we could have a banana republic as it is the case in Equatorial Guinea and our neighbours from Uganda.
Congratulations on making it to the Attorney General position in this republic Mr Justin Muturi. From a qualification lense you deserve the seat, from other fronts a lot of question marks can be raised which are damn valid. Nevertheless you have one step into the office only awaiting approval by parliamentarians. It was just the other day to be specific 9th April 2022 when you did sign an agreement and joined the Kenya Kwanza Alliance team. This is after ditching your plan of becoming or rather vying for presidency. That was a very wise decision in fact I believe that you ate the head of a chicken before making that wise move.
In fact if you had proceeded with your initial plans you could have now been in the political oblivion ask your friend Kalonzo Musyoka, Martha Karua, Raila Odinga and company. They are chewing life from the opposition view point. After all that has been their place since 2013. After joining Kenya Kwanza it was evident you were going to be a Cabinet member by all means. Thus, it comes as no surprise that you were appointed to be the Attorney General of the Republic of Kenya. This position is coveted in the legal circles however it seems more political than legal. Maybe, it is a perfect blend of the two, who knows? It is certain that you will be vetted and approved by the National Assembly hence you will become the eighth Attorney General.
Enough of unnecessary accolades, you are getting into a position or office which has performed very poorly in the past so many years. In fact that office inspires no hope at all not even a dint of the same. Should I remind you that by virtue that you are appointed by a politician you will make some legally unsound decisions but politically correct? Your predecessors have done this in the past, so I won’t be surprised if you follow suit. I expect that to happen soonest if not now or even today. By the river, since the history of this republic we are yet to find an Attorney General who adheres strictly and solely on the law and the law alone.
In my award winning paper ‘Offending the law: Resuscitating the Spirit of Bill Barr: Spotlight on the Office of the Attorney General; Kenyan Case Study’ I argue as follows:
In the beginning the law said, ‘let there be the Office of the Attorney General’ lo and behold and it was so. The office has been in existence as a creature of the law ever since and it is to live up to the standards set by the law; failure to which it presents war between the potter and the clay. Can clay dictate what a potter should use it for? Can clay as well resist what the shape the potter wants it to be? In his wisdom David Sharice posited that; The Department of Justice must be non-partisan and uphold the rule of law. Likewise, the leader of that department-the Attorney General- must always be independent and focused on doing the right thing, regardless of the politics.
In this paper I highlighted the essential role of the Attorney General, still hold that the office holder of Attorney General office should by all means work within the province of the law. Tarrying from the same to suit the interest of the master who appointing him or her is a travesty and a sincere act of contravening of the law. The law binds all and sundry and no one is above it. If it were that there are folks above the law we could have a banana republic as it is the case in Equatorial Guinea and our neighbours from Uganda.
The roles of Attorney General as per the Constitution in Kenya include but not limited to: being the principal legal advisor of the government of the day, representing the national government in court and performing any other functions conferred on the office by an act of Parliament or by the President. A cursory glance at the official website of the Attorney General goes hand in hand with the provision of the Constitution. Pursuant to the website the roles of the Attorney General include but not limited to; the Government’s principal legal advisor, responsible for representing the national Government in court or any other legal proceedings to which the national Government is a party (other than criminal proceedings) and for performing any other functions conferred to the Office by an Act of Parliament or by the President; discharges the functions of a Cabinet Secretary in relation to the Department of Justice and therefore, is responsible for the promotion of human rights and implementation of the Constitution, access to justice including through the promotion of legal aid, good governance, anti-corruption strategies, ethics and integrity, legal education and law reform, among others; provides policy, coordination, and oversight with regard to various legal sector institutions and therefore has a broader cross-cutting mandate to support the strengthening of legal sector institutions; the Attorney General is also the promoter of the rule of law and defender of the public interest.
The website of the State Law office provides that the functions of the Attorney General include; representing the national Government in court or in any other legal proceedings to which the national Government is a party undertaking civil litigation, arbitration, and alternative dispute resolution on behalf of the Government; reviewing and overseeing legal matters pertaining to Public Trustee and administration of estates and trusts; negotiating, drafting and vetting local and international instruments, treaties and agreements involving the Government and its Institutions; adjudicating complaints made against practicing advocates, firms of Advocates, a member or employee thereof and where necessary ensuring that disciplinary action is taken; undertaking drafting of bills, subsidiary legislation, notices of appointment to state corporations, constitutional and public offices, and review of laws; reviewing and overseeing legal matters pertaining to the registration of companies, business names, societies, adoptions, and marriages.
The Office also provides policy on the administration of justice; legal policy management; legal aid and advisory services; political parties’ policy management; elections policy management; anti-corruption strategies; integrity and Ethics and Constitutional Affairs. The Mission of the Office of Attorney General is to facilitate the realization of good governance and respect for the rule of law through the provision of public legal services, protection and promotion of human rights and upholding of ethics and integrity.
These roles have been painted in black and white I still wonder how folks who have had this position in the past have circumvented the law to suit the rulers demands. Come one we deserve better from you. Even as we do so we have to lower and manage our expectations you might just be as bad as Paul Kihara. As the Attorney General we expect that you tell the government the truth at all times and not to make the law to be a doormat for some and some kind of deity for some. This situational ethics in application of law is what we don’t need at all. Make the Constitution to be your solace and defend your decisions based on the same for after all we do have a progressive state with a progressive and transformative Constitution. In some cases we expect you to appear in court don’t be like Kihara Paul kindly.
Paul Kihara led in mutilation and strangling of the Constitution, there are several case laws to the same effect. Perhaps it might be better to note that he did misadvise the President not once but numerously. With the key of them being the 41 judges case whom the President had issues with some of them. Thank God all of them at the moment were sworn in save for one advocate who died before getting sworn in. For the period that Paul Kihara was in office the government lost almost all cases in which it was sued. Am yet to get a case in which the Attorney General case was successful. Paul Kihara ensured the President way was sure and not the Constitution. Thank heavens that right now he isn’t in that office.
As the AG, the relation between the Judiciary and Executive is something you should be keen on checking. This is because you have a seat in Judicial Service Commission which is an instrumental Constitutional Commission in protecting the place of the Constitution. Please, preserve, obey, protect and defend the Constitution of Kenya and uphold the sovereignty of the people of Kenya.
The writer, Jerameel Kevins Owuor is a law student at University of Nairobi, Parklands Campus.
Fredrick Kipchumba Chelimo 
Jerameel Kevins Owuor Odhiambo