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AG Muturi walking tight rope as tenure starts on a losing streak

 Attorney General Justin Muturi. [Boniface Okendo, Standard]

Attorney General Justin Muturi has begun his tenure at the State Law office on a losing streak after failing to help the government fix major cases affecting its operations.

Just like his predecessors who faced backlash over the handling of highly contested government decisions, Muturi is facing the pressure of being on the hot seat just seven months after taking over from Kihara Kariuki.

As the principal legal advisor to the government, the AG is at the centre of any policy, legal and executive decisions by the president and members of the Executive.

Under Article 156 of the Constitution, the AG is supposed to represent the national government in court or in any other legal proceedings to which the national government is a party.

When President William Ruto’s appointment of 50 Chief Administrative Secretaries, the establishment of the Shakahola Commission of Inquiry and the lifting of the ban on genetically modified organisms (GMO) foods landed in court, the focus turned on Muturi to help Ruto achieve his mission.

Mr Muturi’s first attempt to help the president in lifting the orders the court had issued against the three major decisions failed as he gets to learn the tough terrain walked by his predecessors who were occasionally accused of misadvising the president.

Whereas some analysts argue that it is too early to judge Muturi’s performance by the three ongoing cases, some are of the opinion that he should have put up a stellar fight to help the Kenya Kwanza government lift the court orders.

Former East Africa Law Society President, James Mwamu, stated that being an AG is no walk in the park as the officeholder has to juggle between being professional and playing to the gallery of the president.

“Sometimes we need to sympathise with the AG because he is someone walking between a rock and a hard place. He has to play with the whims of the government and at the same time be someone who can come out and refuse some decision which goes against the law,” said Mwamu.

GMO missteps

Mr Muturi suffered the first setback when his attempt to overturn a High Court ruling stopping the government from importing GMO foods was dismissed by the Court of Appeal.

High Court Judge Mugure Thande in November last year suspended the government's decision to lift the ban on GMO foods, and stopped the Ministry of Agriculture and the Ministry of Trade and Industry from allowing the importation of such foodstuffs into the country.

 The ban on GMO was imposed in 2012. [iStockphoto]

She issued the orders following a petition by Kenya Peasants League, lawyer Paul Mwangi, Bio-safety Association of Kenya, Kenya University Biotechnology Consortium and Association of Kenya Feeds Manufacturers arguing that President Ruto lifted the ban on October 3 last year without considering public safety and health.

According to the petitioners, the ban on GMO imposed in 2012 was to remain in force until such a time when there would be sufficient information, data and knowledge demonstrating that GMO foods are not a danger to public health.

Aggrieved by the High Court ruling, Muturi moved to the Court of Appeal to overturn the ruling and help the government import the GMOs to boost the country’s food basket.

But Muturi suffered a huge loss when Appellate Judges Mohamed Warsame, Abida Ali-Aroni and John Mativo dismissed his application on the grounds that he had not convinced them that Kenyans would suffer if the orders issued by High Court are not lifted.

The judges ruled that the AG had not explained how his appeal against the orders by the lower court would be rendered useless if the Court of Appeal did not intervene.

CAS controversy

Then came President William Ruto’s appointment of 50 Chief Administrative Secretaries (CASs) on March 16 in his bid to enhance service delivery in his administration.

This prompted a flurry of petitions by Law Society of Kenya, Katiba Institute and UK-based activist Eliud Karanja Matindi arguing that the appointments were irregular and went beyond the 23 CAS positions which were advertised. Justice Hedwig Ong’udi then issued an order stopping the CASs from assuming office, drawing salaries or benefits pending the determination of the suits.

LSK and the lobby group, through lawyer Dan Okemwa, filed the urgent suit arguing that the CASs were illegally sworn into office by President Ruto when some of the positions they were appointed to do not exist.

The petitioners argued that the president’s unilateral decision to create 27 positions creates doubts about the suitability of some of the candidates who were not qualified but only appointed as political rewards.

Almost three months after the orders were issued; the AG’s attempts to have the CASs assume office have been futile as both the High Court and the Court of Appeal have dismissed his applications.

Muturi argued that although the main concern was the cost of the officials in government, the Public Service Commission (PSC) and Parliament had not informed the Executive that taxpayers could not shoulder the cost of the nominees being in office.

However, a bench of three judges comprising Justices Kanyi Kimondo, Hedwig Ong’undi and Alnashir Visram still declined to lift the orders and told the AG to wait for their final verdict on the petitions.

Shakahola deaths

Before the dust could settle, the AG was confronted again with the president’s appointment of the Judicial Commission of Inquiry into the Shakahola cult deaths where more than 250 bodies have been exhumed from the Kilifi forest.

 Paul Makenzi at Shanzu Law Courts on June 2, 2023. [Omondi Onyango, Standard]

President Ruto, irked by the cult activities, established the commission chaired by Justice Jessie Lesiit with Justice (Rtd) Mary Kasango, Eric Gumbo, Catherine Mutua, Jonathan Lodompui, Frank Njenga, Dr Wanyama Musiambu and Albert Musasia as members.

Lawyer Kioko Kilukumi was to be the lead counsel assisted by Vivian Janet Nyambeki and Bahati Mwamuye, with Oliver Kipchumba Karori and Rachel Maina as joint secretaries.

However, former Prime Minister Raila Odinga’s Azimio la Umoja Coalition managed to obtain a court order stopping the commission from carrying out its activities arguing that the president usurped powers of among others the Director of Public Prosecution, Judiciary and Parliament.

Lawyer Paul Mwangi for the petitioner argued that the President hijacked the criminal justice system and that it is illegal for the President to appoint judges without reference to Chief Justice Martha Koome.

As the norm, Mr Muturi came to the defence of the president and filed an application to lift the orders. The AG argued that the petition was defective for including President Ruto as a party when the Supreme Court had clearly stated that a sitting president cannot be sued in person.

However, Justice Lawrence Mugambi dismissed the AG’s bid to lift the orders and suspended the commission of inquiry on grounds that the opposition coalition had raised weighty constitutional issues which must first be determined.

Justice Mugambi told the AG to hold his horses pending determination of the suit, adding that it will be no use for the commission to start work when institutions like the Kenya National Commission on Human Rights had raised concerns that the commission would be doing its work.

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