Kenya: Anomalies of the position of Attorney General

As I was studying the Public Audit Bill, I was surprised to see a clause which gives the Attorney General (AG) very considerable powers over the Auditor General (AuG) as to the information he must not disclose, including information that “would unfairly prejudice the commercial interests of any body or person”. Surely, I thought, this goes against the Constitution, in trespassing upon the independence of the AuG. Does not the Constitution say that holders of independent offices are indeed independent and are “not subject to direction or control by any person or authority”? This power that the AG has given himself (for he was in charge of law drafting) is not merely egoistical, but can be used to undermine supervision of expenditure by the executive, by not only the AuG but also parliament (since parliament relies on the reports of the AuG). This would also violate constitutional values of transparency, accountability and the right to information — and give the executive further opportunities of corruption and abuse of public funds.

Another section says that the AuG may seek legal advice from the AG. Since the AG is the lawyer of and chosen by the executive, and the role of the AuG is the supervision of the executive, there is a real danger that the advice would be geared to protect the executive from scrutiny and accountability.

It is not sufficiently known that the Constitution downgraded the status and functions of the AG, because of the massive abuse of powers by almost all previous AGs since independence — systematically destroying the rule of law and undermining respect for the constitution. Under the new constitution the AG has no security of tenure (which made sense only when the AG was a public officer handling sensitive and controversial issues). Nor does the AG now have any role in the prosecution for criminal offences, to prevent its abuse by the government. The AG now is just a legal adviser to the Government and does not have monopoly of giving advice. On the positive side, the constitution imposes on the AG the obligation to “promote, protect and uphold the rule of law and defend the public interest”.

From other legislation too it becomes clear that either Githu Muigai does not understand the role of the AG, or has chosen to ignore responsibilities of that office as well as limitations on its powers. One of his first acts as AG was to draft the legislation on the office of the AG. Muigai introduced the Bill saying that the constitution required an Act on the subject — incorrectly, as it merely permits it and is not listed in the Fifth Schedule. The Act (passed by Parliament in a matter of minutes) gives the AG very considerable powers over all state organs (including state corporations and constitutional commissions). Although the AG’s role is restricted to civil matters, the Act gives him access to all documents in criminal proceedings. More importantly, the Act gives him considerable security of tenure — making him almost the holder of an independent office, contrary to the Constitution which treats the AG as an appointee of the President, and is removal at his will.

The AG is entitled, under section 29, to have access to persons, relevant records, documents and property pertaining to a civil or criminal case, “in the performance of duties of the AG”. It is unclear what the duties of the AG are in this situation, or what he is doing in a criminal case, since the AG has no authority over criminal matters. And what does it mean to have access to “persons” (brought to him forcibly?).

In another megalomaniac moment the AG inserted a provision that “All Government Ministries, Departments and State Corporations shall seek the opinion of the Attorney-General on any matter raising substantial legal or constitutional issues” (sec. 19). But the Attorney General himself or herself is not accountable to anyone — section 6 (5) says that in the exercise of the powers and performance of functions of the Office, “the Attorney General shall not be under the direction or control of any person or authority”—not even the president?

Having armed himself with such massive powers, the AG has secured impunity for himself and his staff. Section 8 (1) prevents them from suit “in respect any proceedings in a court of law” or “in the discharge of the functions of the Attorney-General under the Constitution and this Act”. The first seems somewhat superfluous and the second outrageous, a complete denial of the rule of law which the AG is obliged by the constitution to sustain. Section 8(2) goes even further; it exempt the AG and staff from persona liability “if the matter is done in good faith for executing the functions, powers or duties of the Commission [sic">” (it is unclear what Commission is being referred to, perhaps the reference to ‘the Office of the AG”). Why should the AG and his staff (all AGs have been male) be treated differently from any other civil servant? There is some irony in that the protector of the rule of law is placed above the law.

The politicisation of the AG’s role comes in substantial part from AG’s membership of the cabinet where key policies are made and scandals quashed. It is well recognised, most recently in Britain, that if the AG sits in the cabinet, he or she is likely to be influenced more by politics than the law in interpreting the law (as was the case with Blair’s AG who cleared the legal ground for the UK invasion of Iraq).

The responsibility of the AG to protect of the interests of the public must raise difficult questions for the AG when the government is pursuing policies which violate human rights. A conscientious AG would stick to the constitutional mandate to promote the rule of the law and protect people’s interests, and if unable to persuade the government to change its policy, would resign — precisely what Cameron’s AG did recently in Britain. No AG in Kenya has had enough courage to tell the president of his unlawful policy or acts, or had the integrity to resign. Given the government’s politics and propensity towards corruption, it is most likely that the present AG will just stay on.

The late distinguished British law lord, Bingham once argued that since the advice of the AG to the government is a matter of public concern, it should be made public (Blair’s AG’s was, though many months later). This is even more imperative in Kenya where the constitution places so much importance on transparency and accountability.

The refusal of the AG to respect the constitution has not only discredited him among many people but also landed him in trouble with the LSK, which petitioned the National Assembly for the AG’s removal for his refusal to defend the Republic in legal proceedings instituted by the notorious owners of Anglo-Leasing. When the AG is a respondent in court cases, submissions are often not filed, counsel do not sometimes appear, and when they do, are poorly prepared and do not seem to have been instructed by the AG. Those who have followed eviction cases will realise that the state authorities’ legal representation (especially from the AG) are scanty, show ignorance of, and sometimes contempt for, the constitution, often not answering the allegations of the evictees, or obeying court orders. The AG has defied court orders and has failed to advise the government or parastatals of their obligation to obey court orders. He has refused to enforce decisions of African human rights courts or tribunals. Like his predecessor he sees the interest of the state (which is basically an exploitative and coercive mechanism) as his interests (at least as AG).

* Prof Yash Pal Ghai is a director of the Katiba Institute.

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