Githu Is Wrong On The Role Of Nyachae Team

An unfortunate row has persisted between the Constitution Implementation Committee and the Attorney General over the implementation of the constitution. Although each office insists it has its eyes on the ball, it is obvious their dispute is beginning to undermine the public good they all want to serve. An amicable solution is needed urgently failing which some straight interpretation by the court may be necessary.

The Attorney-General is the principal legal advisor of advise the government. The advice is expected to be in the interest of the public and not the person of the executive, the authority to which the AG is answerable. It has to protect and advance the public interest and promote the rule of law.

The Commission on the Implementation of the Constitution is charged with monitoring, facilitating and overseeing the development of legislation and administrative procedures required to implement the new constitution; and to coordinate the preparation and tabling of legislation in Parliament.

Now let us look at how the two have acquitted themselves and if the charges of impeding the implementation of the Constitution leveled against the AG by the Charles Nyachae–led CIC have any merit. Going by the information in the public domain, the AG seems to be mighty wrong. The CIC must be commended for holding out for the public in defence of the constitution.

Prof Muigai’s argument that the CIC’s role is only “advisory” and that he is not supervised by the CIC has no basis as far as the implementation of the constitution is concerned. That oversight (supervisory) function has been conferred on the CIC and the COIC by the Constitution until it is they are disbanded. But that supervision does not extent to the performance of the rest of his duties as AG under the constitution. The AG must learn to live with those shackles imposed on him in the drafting of the legislation to give effect to the constitution, which is a shared duty with the Law Reform Commission and the CIOC.

It is precisely because of this malleable nature of the office of the Attorney General and the propensity of its past occupants to act against the spirit of the law that the CIC was created to safeguard the process of implementing the new constitution. It is shocking that Prof Muigai should want to perpetuate that legacy of dodgy adherence to the rule of law. What is the AG’s interest in frustrating the implementation of the constitution?

There is no doubt that Prof Muigai is a brilliant advocate. But so are the members of the CIC whose job is to scour every proposed legislation to ensure it complies with the constitution in letter, spirit and timelines. The processes required to generate the content are supposed to be public spirited and the result of broad consultation. But the government has already smuggled legislation to the house, sidestepping the public participation, without public input. This happened under Amos Wako’s time and continues under Prof Muigai’s tenure. So why should the public trust that the AG is taking care of their best interests?

Purely on the basis of past experience, I would think the public has every reason to be very vigilant in this legislative process. Prof Muigai’s reputation as custodian of public interest and rule of law has unfortunately been soiled by two major instances. He pleaded ignorance over the illegal Syokimau demolitions, which were carried out under his watch. His pleas that his opinion had not been sought makes you wonder whether he had to wait to be consulted or was duty bound to render his legal advice as required by law.

Then followed the appeal he lodged against the High Court’s order to the government to arrest Sudanese President Omar el Bashir should he step in Kenya. His intervention cast him as a lapdog of the executive more than a custodian of the rule of law. He appealed in a matter that was purely criminal when the constitution permits him to only appear in civil matters. Moreover, his appeal was not intended to defend of the rule of law, which he is obliged to side with, but to bolster impunity, which can be rated as abuse of his office.

The fact that several legislation required to give force to the constitution are behind their deadlines, and therefore casting doubts on their legality, should be a source of worry to the AG. Yet he has not demonstrated any alacrity in ensuring the government, which he claims to advice in confidence, is hurrying to comply. Instead he is abating the abrogation of the constitution by sidestepping the mandatory participation of the public and the CIC in the drafting and preparation of the legislation for presentation in Parliament.

The CIC, which is the time-keeper and overseer, is right in blowing the whistle. It is not proper for any of the institutions engaged in the exercise to engage in finger pointing or score points against each other. But it is wrong for the AG to claim superiority over the other players that is not conferred on him by law.

In my view the CIC should not cede any ground. Its protests on the manner in which the Judicature Act was prepared are patently justified. The constitution does not give the minister or the AG any authority to draft legislation and present to Cabinet or Parliament for passage without the participation of the CIC. Due process must be followed in the preparation and submission of proposed legislation otherwise it will be null and void. As the courts have already ruled in the matter of the unilateral appointments of the Chief Justice and other state officers by the President without consultation with the Prime Minister, similarly, legislation that circumvents the crucial CIC should be declared null and void.

All in all, it would appear that the Attorney general has overreached himself and is guilty of attempted power grab. The pretentious assertion that his office is not answerable to the CIC is an abuse of the people’s will as expressed in the constitution – that of popular public participation.

The Attorney general should step back and reflect on his actions. If he is honest, he will find that his actions are ill informed. He will do well to avoid the path of his predecessor and redeem himself. Old mischief will not succeed under the new constitution. The urgent process of implementing the constitution should not be distracted by small impediments as his resistance to play by the rules because such conduct will definitely invite moves to remove him from office.