ANTHONY KAMUNYA LEGAL ADVICE
On Monday the 28th day of May 2012, Attorney General Githu Muigai determinedly defended the Government over the appointment of county commissioners while appearing before the Constitution Implementation Oversight Committee. During his interaction with the Committee, the AG reiterated that his client had acted within the mandate, which is well enshrined in the Constitution.
He was referring to executive authority as provided for and vested in the President in Sections 23 and 24 of the former Constitution. Those provisions are consequently fortified under Section 3 subSection 2 of the 6th schedule. He was flanked by among others the Justice and Constitutional affairs Minister Eugene Wamalwa. Together, they articulated what was clearly the Government’s and of course legal position on the matter.
Fast-forward to July and both the Attorney General and the Justice Minister are telling a totally different story. In a daring flip flop on the matter, the Justice Minister for instance has gone to the extent of declaring that the ruling by the High Court on County Commissioners should be viewed as a lesson to those who violated the Constitution.
The Attorney General on his part has declined to appeal the decision. The Government has subsequently engaged the services of private counsel, Mr Kibe Mungai to lodge an appeal against a decision, which it views as legally unsound with a high probability of success.
These developments have raised fundamental questions, which must not go unanswered. To begin with, did the AG misadvise the Government? Under Article 156 of the new Constitution, the AG is the principal legal adviser to the Government. So far there is nothing to suggest that his advice was not sought or that he did not advise the Government in the appointment of county commissioners. In fact, the Attorney General’s determined defense at the CIOC left no doubt whatsoever that he was completely seized of the matter and the Government was as a result within the realm of sound legal advice in constituting the county commissioners.
There is also no doubt that the advice was grounded in clear Constitutional provisions. It is, therefore, interesting to see the AG seeking to have his cake and eat it!
In declining to appeal the ruling in such a delicate situation that sought to nullify the actions of his client with far-reaching ramifications, the AG has failed to promote, protect and uphold the rule of law as required under Article 156 Section 6 of the Constitution.
This is a serious abdication of duty considering that not only was it against the client’s interest, but that there are very sound grounds for appealing the decision of the High Court by Justice Mumbi Ngugi .The AG ought to have pursued the matter to its logical conclusion in those circumstances! The other concern is whether the appearance of the Attorney General together with the Justice Minister before the Constitution Implementation Oversight Committee was genuine! This stems from the fact that they put up a spirited effort to defend the Government’s position at the meeting only for them to turn around and castigate the same Government they were representing.
It would seem as if the appearance and the subsequent defense was stage managed or they bowed to activism by people who always see the executive with circumspection. This was not in the best interest of the client or that of the public!