MPS assent to AG Muturi's delinking from PSC, as return of CAS position inches closer

President William Ruto could soon get his wish after the National Assembly approved a Bill that seeks to legalise the CAS position. [PCS, Standard]

A parliamentary committee has approved a request by Attorney General Justin Muturi for his office to be delinked from the Public Service Commission (PSC). This means the AG can now employ and retain enough state counsel.

According to a report by the Justice and Legal Affairs Committee (JLAC), the House team agreed that there was need to amend the Attorney General Act 2012 as contained in the Statute Law (Miscellaneous Amendments) to provide for the autonomy of the office and its powers to recruit, appoint, promote and discipline its officers.

Last month Muturi protested what he termed as  side-stepping by government in key decision-making and failure by PSC to recruit and retain enough state counsels- a development that the AG blamed for government loss of court cases on several occasions.

Appearing before the committee earlier in February, Muturi explained that the Office of the Attorney General (OAG) had lost 130 senior state counsel between January 2015 and December 2023 on account of poor remuneration and lack of career progression.

“This committee recommends that the House approves the provisions of the bill relating to the Office of the Attorney General act 2012 with amendments to provide for the autonomy of the office and its powers to recruit, appoint, promote and discipline officers,” reads the report that will now be debated on the floor of the House.

The report has also recommended that the powers that will be transferred to the AG be subjected to an appropriate advisory board to ensure adherence to established human resource principles and standards required within the public service.

And to substantiate its recommendation for the delinking of the AG’s office from PSC, the Committee noted that the AG was involved in international legal matters, constitutional litigation and infrastructural projects which “strain the office's resources and capacity.”

The Tharaka Nithi MP George Murugara-led committee also observed that the office of the Auditor General was operating on less than half of its approved staff, translating to an increased workload and compromised service quality.

The committee based its decision on the fact that there is a remuneration disparity between state counsel at the OAG and their counterparts in other public legal sector institutions which, it said, ultimately contributes to low morale and loss of experienced staff.

 “The OAG & Department of Justice (DOJ) faces limitations in recruitment, promotion, and management of staff, partly due to its classification as a state department within the executive branch. The Constitution grants Parliament a wide legislative mandate that allows prescribing the manner in which certain categories of public officers may be recruited, appointed and promoted. The amendments proposed with regard to the Office of the Attorney-General Act, 2012 (No. 49 of 2012) are therefore before the House for consideration and enactment, if the House so decides,” added the report.

Meanwhile, the return of the positions of the Cabinet Administrative Secretaries (CASs) has inched closer after the Justice and Legal Affairs committee approved their establishment, underscoring their importance.

The team recommended that the positions be introduced but capped at 22. It sought to have the appointments made by the President on recommendation by PSC in an exercise that takes into consideration regional and gender balance.

In its report on the National Government Administration Laws (Amendments) Bill, 2024, JLAC explained that the functions and designation of the office of the CAS will be streamlined to avoid conflict of roles with Principal Secretary in the state departments. It further noted that the decision to cap the CASs at 22 was to comply with the number of appointees provided for by the constitution.

The committee also proposed amendments to the Bill which will hinder the CASs from handling any parliamentary matters unlike in an earlier proposal where they would act as liaisons with Parliament and county governments on matters of concurrent mandate.

Rarieda MP Otiende Amollo however recorded a dissenting opinion in the report, noting that the CAS functions were a duplication of those designated to Cabinet Secretaries and Principal Secretaries.

“That even the courts have pronounced themselves on the unconstitutionality of the office of the CAS as was determined. That the Constitution under Article 152(1)(d) limits the number of Cabinet Secretaries to twenty-two. Consequently, the proposal to introduce an uncapped number of CASS is indeed an affront to the Constitution and would occasion additional expense on public finances and pose an unnecessary burden on Kenyan taxpayers,”read the report.

The report and Bill by JLAC will both be considered by the House from next week.