Law Opinion by Lawyer Dan Mwangi

Lawyer Dan Mwangi.

FLIP FLOP BY THE AG AND THE  JUSTICE MINISTER IS WORRYING.

On Monday the 28^th day of May 2012, Attorney General Githu Muigai determinedly defended the government over the appointment of county commissioners while appearing before the Constitution Implementation Oversight Committee. During his interaction with the Committee, the AG reiterated that his client had acted within the mandate which is well enshrined in the constitution. He was referring to executive authority as provided for and vested in the president in sections 23 and 24 of the former constitution. Those provisions are consequently fortified under section 3 subsection 2 of the 6^th schedule. He was flanked by among others the Justice and Constitutional affairs Minister Eugene Wamalwa .Together, they articulated what was clearly the government’s and of course legal position on the matter.

Fast forward to July and both the Attorney General and the Justice Minister are telling a totally different story. In a daring flip flop on the matter, the Justice Minister for instance has gone to the extent of declaring that the ruling by the High Court on County Commissioners should be viewed as a lesson to those who violated the constitution. The Attorney General on his part has declined to appeal the decision. The government has subsequently engaged the services of private counsel, Mr.Kibe Mungai to lodge an appeal against a decision which it views as legally unsound with a high probability of success.

These developments have raised fundamental questions which must not go unanswered. To begin with, did the AG misadvise the government? Under article 156 of the new constitution, the AG is the principal legal adviser to the government. So far there is nothing to suggest that his advice was not sought or that he did not advise the government in the appointment of county commissioners. In fact, the Attorney General’s determined defense at the CIOC left no doubt whatsoever that he was completely seized of the matter and the government was as a result within the realm of sound legal advice in constituting the county commissioners.

There is also no doubt that the advice was grounded in clear constitutional provisions. It is therefore interesting to see the AG seeking to have his cake and eat it! In declining to appeal the ruling in such a delicate situation that sought to nullify the actions of his client with far reaching ramifications, the AG has failed to promote, protect and uphold the rule of law as required under article 156 section 6 of the constitution.

This is a serious abdication of duty considering that not only was it against the client’s interest but that there are very sound grounds of appealing the decision of the High Court by Justice Mumbi Ngugi .The AG ought to have  pursued the matter to its logical conclusion in those circumstances!

The other concern is whether the appearance of the Attorney General together with the Justice Minister before the Constitution Implementation Oversight Committee was genuine! This stems from the fact that they put up a spirited effort to defend the government’s position at the meeting only for them to turn around and castigate the same government they were representing .It would seem as if the appearance and the subsequent defense was stage managed or they bowed to activism by people who always see the executive with circumspection. This was not in the best interest of the client or that of the public!

Public officials must be prepared to carry collective responsibility especially matters concerning departments where they are actively involved in shaping the decisions of the government. The actions of the Attorney General and the Justice Minister have ultimately put the government in a very awkward position! The government was clearly embarrassed and suffered exposure to public ridicule. As if to rub salt on a festering wound, the Attorney General proceeded to expose the government once more when the matter came before court in an application against the appeal. He sought to contradict his client on the question of hiring a private counsel to lodge the appeal. This brings us to another issue that has dominated the public debate; whether the government can hire a private lawyer to represent it in court proceedings.

Article 156 of the new constitution provides answers to this question. Under Article 156(4) (a), the Attorney General is mandated to be the principal legal advisor to the government. It is noteworthy that the section does not talk about the AG being the only legal advisor to the government whether by himself or through delegation for instance to state law office counsel. What this means in clear terms is that nothing stops the government from engaging the services of private counsel if it deems it necessary.

Subsection 4 part b of the said article provides that the Attorney General shall represent the national government in court or in any other proceedings to which the national government is a party, other than criminal proceedings. This section has been misinterpreted in various quarters to read that it is only the Attorney General who is mandated by the constitution to represent government in court proceedings. It’s this misconception which has laid the basis for claiming that the government was wrong in engaging the services of private counsel to lodge an appeal on its behalf. This is far from the truth! The use of the word shall in the beginning of the section is simply intended to compel the Attorney General to carry out his duties without absconding. The converse would have been to use the word may which of course would have left the AG with the discretion of deciding when to represent the government and when not to.

The writer is a lawyer

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