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Another blow to Uhuru as court strips AG of ministerial powers

By Kamau Muthoni | Dec 4th 2021 | 3 min read

AG Kihara Kariuki. [File, Standard]

President Uhuru Kenyatta breached the Constitution by assigning the Attorney General roles that ought to be undertaken by a Cabinet Secretary for Justice and Constitutional Affairs, the High Court has ruled.

In yet another verdict indicting the Head of State, the court found that although the AG is part of the Cabinet, he cannot carry out roles designated for a Cabinet Secretary.

Justice James Makau found that the president’s failure to assign a minister to be in charge of legal education, Kenya School of Law (KSL), Kenya National Human Rights Commission (KNHRC), Victim Protection Agency, Judicial Service Commission (JSC), and law reforms is against the Constitution.

“I find the actions and inactions of the President are in effect an egregious affront to the Constitution, necessitating the intervention as sought in the petition,” said Justice Makau.

The court, therefore, directed the president to appoint, designate and/or assign a sitting Cabinet Secretary, not being the AG, for the implementation and administration of the said Acts of Parliament.

The case was filed by the Law Society of Kenya (LSK) against AG Kihara Kariuki. The LSK argued that Uhuru breached the law by assigning the retired justice the roles last year.

According to LSK, Uhuru last year signed executive order no 1 of 2018, conferring Justice Kihara powers to oversee six government agencies.

This, the lobby argued, was against the Constitution, as the AG cannot exercise executive power. At the same time, LSK asserted that the commissions and agencies put under him are independent.

“The said decision of the President of the Republic of Kenya is highly unconstitutional; it purports to assign executive authority to the Attorney General who is not the Cabinet Secretary,” argued LSK.

Solicitor General Ken Ogeto, on behalf of the AG, opposed the case. He argued that the president has powers to assign any person sitting in the Cabinet.  

According to Ogeto, the Constitution does not stipulate the role of CSs, instead, it is only the president who has all the powers to decide who does what.

He added that under the principle of separation of powers, courts have no authority to force the president to assign a CS a role.

“The role and function of individual Cabinet Secretary is defined by the President upon whom the executive authority at the national level is ultimately vested,” replied Ogeto.

He also argued that although Parliament created the office of the Attorney General, it was silent on what specific functions the holder of that office should carry.

He added, “It is the President who, subject to the consistency with the enabling Act, can assign a specific Cabinet Secretary such roles. The President can assign responsibilities to both the Attorney General and Cabinet Secretary.”

Justice Makau however ruled that Parliament was specific that a CS should take up the responsibilities that the President assigned to Kihara. 

He found that there was nowhere in the Constitution and Acts of Parliament where an AG is given powers to act as a CS.

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