It is legal rubbish to say that if the Attorney-General “were in private practice, he could have been deregistered because it is a grave issue for a lawyer to go against his client.” Lawyer Evans Monari pronounced this. (Standard on Sunday, 27 February 2011)
It was in support of the PNU brigade’s ‘anger’ against Wako for his submissions in Court that the President’s nominations were unconstitutional. They complain that it undermined the President’s stance that he had acted constitutionally. The PNU brigade have benefited continuously for fifty years of undemocratic and authoritarian rule in Kenya. Their first reaction to any challenge is that laws can be disregarded. Because that is what they have been doing since the Republic was established in 1964. It is good that we can see them doing this openly. For the more they disregard the changes that have taken place in Kenya, the more they convince everybody that they are not fit to rule or hold office in the new Kenya.
Monari’s unfortunate remarks in that vein were wrong. He erred in telling Kenyans that Wako’s client is the President. The client of the Attorney-General is the people of Kenya. That client requires him to deal with the client’s elected managers, the Government of Kenya. We should not confuse the managers with the owners. That is why those managers have to go back every 5 years to the general election, where the owners may or may not re-elect them.
The situation was made worse by the association of Monari’s remarks with his office as a council member of the Law Society of Kenya. His authority as an officer of the LSK was being used to legitimize his personal partisan views. He made his remarks even though he knew that the LSK had also joined the same court proceedings as the A-G to likewise challenge the nominations. So, Monari was doing to his ‘boss’ (the LSK), exactly what he was condemning Wako for having done to his ‘boss’ (the President) : undermining the boss’s stance. So much for consistency. Or seriousness.
These types of knee jerk political utterances were big in the Kenyatta and Moi eras. Such outbursts brought political favour and money to loyalists. They sustained political usefulness. This is why these old KANU hands return to these old KANU practices. Someone told the brigade there was a new Kenya, new Kenyans and a new Constitution. They said, ‘Yes, yes, we know. We can deal with these things.’ So it has increased the money it dishes around, buys more people with more money, and blocks the new constitution by announcing nominations first, and then seeing what opponents can do.
Well, the opponents did a lot. The nominations failed. And were seen to have failed. More importantly, the scheming failed, and was seen to be scheming, and a failure. Then, when dignified persons reconsidered matters and withdrew, undignified persons talked loosely of teaching lessons to the A-G, and caused grievous bodily harm to tables.
Such remarks should not be made by members of an independent-minded legal profession. Monari is free to hold and air any views. But not while being held out as an LSK official with the authority of the LSK, which he did not have.
Here is part of the job description in the Constitution of Kenya, Art.156 : “The Attorney-General shall promote, protect and uphold the rule of law and defend the public interest.” He is not there to uphold any parochial interest. He is also bound by Art.10 in all his duties to observe the national values and principles of governance, relevantly, of “(a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people.”
If these are disregarded, the other provisions, (whether Art.156 or S.24(2), Sixth Schedule, or any other law), are not lawfully invoked. That is why the A-G cannot please his ‘client’ at the expense of national unity, sharing of power, rule of law, gender requirements, democracy or participation of the people in governance.
To suggest, as Monari does, that by reason of observing all these provisions of the Constitution Wako should be ‘deregistered’ as an advocate, is the sort of advice that lawyers laugh at loudly at coffee time. To imply, as Monari does, that, instead, Wako should give advice that pleases the President is not laughable. It is dangerous. It takes us back to the dark days when that happened too often, with terrible consequences to Kenya. Roll on 2012.
The writer is a lawyer