President Uhuru Kenyatta yesterday dropped Attorney General Githu Muigai and demoted Solicitor General Njee Muturi in changes that ultimately target the Supreme Court and the Judiciary in general.
Githu was replaced by Appeal Court President Mwangi Kihara while Njee's position was taken by lawyer Kennedy Ogetto, who was part of Uhuru's ICC legal team.
But it is the nomination of three members to the Judicial Service Commission that signaled the President's intention to live up to his threat to revisit the Judiciary.
He nominated former Agriculture Cabinet Secretary Felix Koskei, former National Assembly clerk Patrick Gichohi and former Kenyatta University Vice-Chancellor Prof Olive Mugenda.
Gichohi is a nominee of the Public Service Commission to replace Margaret Kobia, who is set to join Cabinet as Secretary for Public Service.
The 11-member commission is responsible for hiring and firing judges and other judiciary staff. It comprises the Chief Justice David Maraga (chair), Deputy CJ Philomena Mbete Mwilu, Justice Smokin Wanjala representing the Supreme Court; Justice Mohamed Warsame representing the Court of Appeal; Justice Aggrey Muchelule representing (High Court) and Emily Ominde (magistrate) representing the Kenya Judges and Magistrates Association.
Others are Prof Tom Ojienda representing the Law Society of Kenya; and the three being replaced, Attorney-General (Githu Muigai); Prof. Margaret Kobia representing the Public Service Commission; Mercy Mwara Deche and Kinpgetich Bett representing the public appointed by the President with the approval of the National Assembly.
The Judiciary Chief Registrar Ann Amadi is the Secretary to the Commission.
After the Supreme Court annulled his election on September 1, Uhuru referred to the judges as “Wakora” (crooks) and promised “to revisit the Court” after the repeat election.
The three nominees will join the new AG on the JSC, and the balance could easily be tilted if the State has a hand in the election of the other members.
“I've always said we have a problem with our Judiciary. We shall respect the ruling, but we will revisit this agenda because we have to respect the will of the people,” Uhuru said at the time.
The composition of the JSC is crucial. It is the employer of judges and the one that receives petitions and recommends to the President to constitute a tribunal upon finding sufficient grounds.
In yesterday's appointment, the President changed his legal team in what insiders said was strengthening of his advisory structure in preparation for his final term takeoff. He dispatched his Senior Adviser on Constitutional and Legal Affairs, Abdikadir Mohammed, to South Korea as ambassador.
The Judiciary, the third arm of government, is supposed to be independent but its authority has been under systematic erosion in recent days, with court orders being frustrated by Executive agencies. As a result, this week, lawyers are staging a “Yellow Ribbon” protest and boycott of the courts.
Insiders say the nominations have an eye on succession politics in the Judiciary, especially the Supreme Court.
The President did not give reasons why Githu, who stood next to him as he announced it, had resigned.
“I have today received with regret the resignation of Professor Githu Muigai from the office of Attorney General effective the date of the appointment of his successor,” Uhuru said.
He thanked him for his service to the nation.
Confidential sources however said the President has been intending to make changes at the State Law Office since 2016. Githu and Njee, Uhuru’s former Personal Assistant, are said to have been barely coping and not in tandem. At many times, the government’s actions have been called out by the courts for being unconstitutional, which legal analysts put down to bad legal advice or disregard by the Executive.
Some sources say Githu had been unhappy for some time as “his counsel was often ignored or not sought” over key matters. He is said to have wanted to leave, with an eye on succeeding Willy Mutunga as Chief Justice when he retired in 2012. He was visibly frustrated during the last Presidential petition, when, as amicus curiae, his brief was manifestly restricted by the Supreme Court.
During his tenure, Githu faced severe criticism from his peers, who attempted to impeach and dishonour him over the controversial payment of Sh1.4 billion to Anglo Leasing in 2014. In 2016, Githu beat a hasty retreat after his appeal against a High Court decision striking out an Act of Parliament that required the JSC to submit three names to the President from which to select a Chief Justice suffered a barrage of criticism from professional colleagues.
Lawyer Allen Gichuhi, who is contesting for the Law Society of Kenya presidency, described Justice Kihara as an excellent lawyer and a gentleman.
“Justice Kihara has been in the Court of Appeal and an able Judge. Am sure he is going to bring such brilliant ideas into the system. Professor Githu was my lecturer and also a very astute and able lawyer,” Gichuhi told the Star yesterday.
Njee, who was demoted from Solicitor General to the lowly deputy Chief of Staff under Nzioka Waita, has been close to the President for over 20 years, tracing back to his days in Kanu. The former PA and President’s gatekeeper reportedly fell out with his boss over his failure to manage the annulled election.
Ogetto, on the other hand, has served as Uhuru's lawyer for many years and was part of his Kenyan defence team at the International Criminal Court together with Muigai. He was also part of Uhuru's defence team during the 2013 and the 2017 presidential election petitions at the Supreme Court.
The changes complete the overhaul of the prosecution and investigative arms of the State, following the removal of former Director of Criminal Investigations Ndegwa Muhoro and Director of Public Prosecutions Keriako Tobiko, who was nominated to Cabinet as Secretary for Environment. Sources say Ethics and anti-Corruption deputy CEO Michael Mubea is poised to succeed Tobiko.
Yesterday National Assembly Speaker Justin Muturi told the committee on Legal Affairs to vet the nominees within 14 days.
“Given the critical role played by the JSC, it is advisable that the relevant Committee expeditiously proceeds to notify the nominees and the public, commence the approval hearings after the seven-day notification period, and table a Report on or before Tuesday, February 27, 2018, to enable the House to consider the matter within the statutory timelines," the Speaker said.