First off, let me just say that the nomination of AG should not be taken out of context merely because the Executive agreed on Prof. Githu Muigai. Kibaki is hardly the first President to nominate a “friend” or “ally” to the position of AG. In the US, John F. Kennedy nominated his own (inexperienced) brother Robert Kennedy who served as AG and let’s not forget Richard Nixon who appointed his Presidential Campaign Manager John Mitchell to be AG. The key issue in this nomination, to my mind, is one of merit. The next AG of the Republic of Kenya must be qualified, and extremely so given our complex legal history and forward-looking constitutional blueprint.
I think the questions Parliament need to ask themselves as they deliberate on whether to confirm Prof. Githu Muigai’s nomination as AG should all be aimed at answering the following key concern:
Does the AG nominee understand that the AG’s Chambers needs to be the voice for the rule of law in those close-door Cabinet deliberations and provide an honest appraisal of all applicable law even if the advice will constrain the Government’s pursuit of desired policies?
I find it interesting that the AG Designate is not only well-versed with constitutional law but also studied the legal history and impact of the former AG Charles Njonjo.
In Githu Muigai’s Ph.D thesis titled “Constitutional Amendments And The Constitutional Amendment Process in Kenya (1964 – 1997): A Study in the Politics of the Constitution”, he points an accusing finger at Njonjo who as AG was instrumental in coming up with major amendments to the Independence Constitution, all of which were aimed at aiding the political elite in centralising all power and authority in the imperial presidency and overcoming all forms of opposition. Muigai’s scholarly analysis also suggests that the former AG Njonjo’s amendments of the Kenya Constitution were largely informed by the dictates of power politics and not constitutonal principle. The amendments were opportunistic, manipulative and seriously eroded the sanctity of the constitution as supreme law thus rendering the observance of constitutionalism impossible.
Although the State Law Office Head has lost most of his enforcement and prosecutorial powers in the current constitution, the AG still has the same powers Njonjo had in as far as providing legal counsel and formulation of legal policies are concerned. Therefore the nonchalance surrounding the nomination for the seemingly watered-down position of AG is worrisome indeed. It is thus incumbent on Parliament as the representatives of the people to ensure that the next AG (even with his reduced powers) is not merely a political operative that will sacrifice the constitutional gains of Kenyans in order to gain the favour and good graces of his new employers.
Drawing once again from the US, former US president George Bush had his way with Congress and appointed an AG who helped the Bush Administration redefine torture to encompass all the otherwise obviously extralegal interrogation techniques being used in Guantanamo Bay. Therefore the need to scrutinise the character and integrity of any nominee to replace AG Wako cannot be overemphasised enough.
With that said, I have five remarks to make on the recent AG nomination as well as the newly re-defined position of the AG under the 2010 Constitution:
1. Good faith: I believe the AG nominee, if appointed would be well advised to start from the premise that there’s a lot of uncertainty and lack of clarity in the air especially around certain key aspects of the Constitution among Kenyans. Wako seemed to reserve his tailor-made drafting and interepretations of laws for his appointing authority and remained a master of blithe obfuscation when dealing with legislature and the Kenyan people. The clearer and more precise the next AG can be on complex legal issues that are of great concern to Kenyans, the more confidence he will be able to rebuild and necessary goodwill needed to carry out the functions of the State Law Office.
2. Moral fibre: It is indeed unique in any constitution to have a whole article let alone a whole Chapter dedicated to issues of leadership and integrity. Government’s top lawyer must be able to strike a favourable balance between the dictates of laid down laws and his own sense of fairness and justice. For instance, Kenyans do not expect the next AG if put in a situation similar to Wako during the ICC cases, to waste precious resources pursuing an ill-advised admissibility claim especially when he or she knows full well that the claim would not succeed.
3. Capable of saying “No” to those in government: Ironically, the first time the outgoing AG ever stood up and said “No” to the government was when the AG nominee was first nominated by Kibaki. The next AG of the Republic must be a person of principles able to distinguish clearly in their mind and through their advice to government what’s constitutional and legal and what’s not.
4. Reform: With the current wave of consitutionalism that has engulfed Kenya since promulgation last year, a reformist streak in the new AG wouldn’t be a bad thing.
5. International outlook: The AG nominee clearly has valuable connections to the highest councils at the United Nations, and other leading institutions as well as being a renowned scholar in the field of constitutional law. This is an added advantage as the AG often shuttles between the UN capitals of Geneva and New York as well other capitals of the world advocating Kenya’s legal position on a wide range of issues in addition to advising government on ratification of binding international instruments.
To wrap up, I quote the poignant observation made by AG nominee Githu Muigai in his doctoral thesis:
“One of the most pervasive fallacies in law is that well drafted legal documents yield good legal results. The truth is that all legal documents, constitution included can only yield the predetermined results when applied in good faith. The process is as important as the substance. The political and the legal merge.”
The legitimacy crisis alluded to in that passage is the partisan and self-serving culture that pervaded the overall constitutional process back then; a tradition that seems very much alive and well today. As Kenya.
Therefore the new AG must literally embody total fidelity to the rule of law. As principal legal adviser to the Republic of Kenya, his advisory opinions must not only be backed by a crystal-clear understanding of the law, but also tempered by the realisation that these opinions shape government policy and how the government relates with its citizens.