GAPS

No way! Muturi rejects petition to remove AG Kihara Kariuki

Speaker says gap in law gives President express powers to remove Attorney General

In Summary

•House was petitioned to remove the AG for the late Appeals bench that allowed the 2017 poll re-run.

Attorney General Paul Kihara Kariuki
Attorney General Paul Kihara Kariuki
Image: FILE

The National Assembly has declined a petition seeking the removal of Attorney General Kihara Kariuki citing lack of authority to handle the matter.

Speaker Justin Muturi told MPs on Tuesday that there was a gap in the law in regard to the removal of the Attorney General.

“To the extent that there is a lacuna in law on the removal of the Attorney General, the matter is not within the authority of the National Assembly,” Muturi said.

The move may come as a blow to MUHURI board chairman Khelef Khalifa who had petitioned the House to initiate the process of Kihara’s removal.

He wanted the AG out of office on account of his alleged conduct relating to the re-run of the 2017 Presidential election.

His grounds were that the AG disregarded the law in the empanelling of a three-judge bench of the Court of Appeal that overturned a High court decision and allowed the 2017 presidential election re-run.

Speaker Muturi told MPs that attempts to remove the Attorney General failed in the case of former AG Githu Muigai.

But Khelef said he did not expect the speaker to reject the motion saying the AG acted irresponsibly in empanneling the bench to hear a case at night.

“This was against the law. It is only the Chief Justice that has that power to authorise any bench to sit beyond 6 o’clock,” he said.

“I am shocked that the Constitution gives the public the powers to petition Parliament and the first response is that they have no power to impeach. This is wrong since Parliament has all the power to change laws – even amend the Constitution, impeach any minister including the President,” Khelef said.

The rights lobbyst argued that the development shows the country is sliding to where things were before the new Constitution.

“This is dangerous for the country as people might not approach the courts any more. I will ask my lawyers if we can take this Parliament to court,” he said.

LSK failed in the attempt after the Justice and Legal Affairs committee (JLAC) concluded that the AG’s office is not listed as a consititutional commission or an independent office.

The committee held that the procedure for removal as spelled in Article 251 of the Constitution cannot be used to remove the AG.

“While the Attorney General is a member of the Cabinet under Article152 (2) of the Constitution, he is not a Cabinet Secretary and therefore the process of removal of a Cabinet Secretary cannot apply in this case,” the committee concluded.

JLAC also held that the Office of the Attorney General Act has made provision for the grounds for removal but does not set out the procedure for removal.

It concluded that the AG can only be removed by the President in line with powers provided by the Constitution.

“The committee recommended that the law be amended to provide express provisions on the procedure for the removal of the Attorney General,” Muturi said.

A bill published to amend the said provisions collapsed at the end of the 11th parliament having not been concluded within the term of the said House.

Muturi said the Clerk of the National Assembly Michael Sialai had written to the petitioner informing him of the House’s inability to process the petition.

“The letter highlighted the lack of express provisions in the Constitution, ordinary legislation and the National Assembly Standing Orders on the manner in which the process of removing the Attorney-General from office may be initiated and how a binding recommendation for such removal may be made by any person or body,” he said.

Khalifa, Muturi reported, did not agree that Parliament can argue that it was unable to act on the petition due to the existing gap in the law.

The speaker said only a Member of Parliament or a committee could introduce legislation for consideration and debate.

“The Departmental Committee on Justice and Legal Affairs may wish to consider reviewing the Act to provide for the procedure for removal of the Attorney General,” he said.