Why AG Githu Muigai was barred from defending Uhuru, Ruto

High Court Judge Isaac Lenaola. He has dismissed an objection filed by AG Githu Muigai to defend President Uhuru Kenyatta and his deputy in a private case. [PHOTO: FILE/STANDARD]

NAIROBI, KENYA: Isaac Aluoch Polo Aluochier is a political activist who is occasionally involved in tussles with the Government and State officers. Soon after the March 2013 general elections, Aluochier filed a petition at the High Court challenging the Presidency of Uhuru Kenyatta and his deputy William Ruto.

According to him, the two should not have been nominated for election to the highest offices on the basis that they had previously violated the Constitution and should have been barred from the nominations.

His argument was that between August 27, 2010 and August 2011, both Uhuru and Ruto held double positions as cabinet ministers and officials of political parties contrary to Article 77(2) of the Constitution. The article provides that any appointed State officer shall not hold office in a political  party.

The petitioner argued that the two should have then been disciplined for contravening the law. And under Articles 75(2) and (3), the disciplinary action would have ensured they were not cleared to run for the seats of President and and Deputy President. He has actually asked the court to declare that the two should not be holding State offices.

Though the petition was against Uhuru and Ruto in their private capacities, the Attoney General Prof Githu Muigai joined the suit to defend them.

On October 20 last year, Aluochier who acts in person in the cases, filed an application seeking determination by the court on whether the AG could defend the two leaders in a private case.

He made a strong argument that under Article 156(6) of the Constitution, the AG can only represent the Government and the public in civil proceedings and not individuals sued in their private capacities. He noted that there was no provision under the Office of the Attorney-General Act allowing him to represent individuals in court.

“He could only join the case as anamicus curiae (friend of the court) and not in any other capacity. His purported representation of Uhuru and Ruto should be declared unlawful and his appointment as legal counsel be struck off the record,” said the petitioner.

However, the AG, through Senior Deputy Chief Litigation Counsel Stela Munyi filed an objection to the application, saying he could represent the two respondents.

COURT ABUSE

Ms Munyi argued that under Article 156(6) of the Constitution, the Attorney-General has a wide mandate to promote, protect and uphold the rule of law and defend the public interest. It is within his discretion to determine when and to whom to offer his legal services in cases of public interest.  She argued that where any proceedings may affect the rights, property or profits of Government, then he had the power to intervene as a counsel, even where a public officer had been sued in a private capacity.

“Since the issues raised in the petition revolve around constitutionalism, rule of law and public interest, the private and official capacities of Uhuru and Ruto were fused and the AG could properly defend them,” she said. She said the petition was an abuse of court process and the court lacks jurisdiction to determine it because the issues raised have been litigated on and finalised in another petition in Mombasa.

Article 156(4), of the Constitution states that the AG is the principal legal adviser to the Government, shall represent the National government in court or in any other legal proceedings to which it’s a party, other than criminal proceedings and shall perform any other functions conferred on the office by an Act of Parliament or by the President.

THE VERDICT

Article 156 (5) says the AG shall have authority, with the leave of  the court to appear as a friend of the court in any civil  proceedings to which the Government is not a party. And Article 156(6)says the AG shall promote, protect and uphold the rule of law and defend the public interest.

But presiding judge Isaac Lenaola dismissed the objection by the AG. “The proceedings before me are not against the National government because the respondents by whatever measure and whatever significance and importance of their respective offices, cannot be “the government,” said Lenaola.

He added: “In the Kenyan context, the two levels of Government; national and devolved, form the Government of Kenya and the Constitution deliberately limited the role of the Attorney General to legal proceedings involving the National government, whereas the devolved governments are left to seek their own legal representatives. But it must be noted that his advice as opposed to representation is to “the Government” in the wider context as defined above,”Judge Lenaola noted that both Uhuru and Ruto had been sued because of holding offices in political parties and in the Cabinet.

“Ms Munyi has argued that there is “public interest” involved in the present petition and since the AG is enjoined to uphold the public interest, then he should be allowed to appear and defend the respondents.  I disagree. The question of “advise”, “legal representation” and “public interest” cannot be lumped together because the Constitution has demarcated them as such.  Whereas the AG is enjoined to uphold the public interest in the discharge of his mandate, the Constitution specifically limited his role as “advocate” and one cannot properly import public interest as a basis for legal representation,” the judge summed it up.

He added: “The respondents are presently part of Government but the actions complained of really turn on their past (principally as officials of political parties and at the same time, ministers in Government).  I do not see how those actions can be termed as actions of the National government to attract representation in court by the Attorney General,”

Lenaola further pointed out that even at the International Criminal Court (ICC), both Uhuru and Ruto were bieng tried as individuals and not as part of Government.

“They are, in those proceedings, represented by private legal counsel and not the Attorney General.

The judge therefore dismissed the objection by the AG. He ordered that the President and his deputy be served with notices for mention of the case and they could appoint private lawyers to represent them in the proceedings.

The case will be mentioned on August 29.