AG, human rights lobby clash over ARA director

Attorney General Justin Muturi.  [Elvis Ogina, Standard]

Attorney General Justin Muturi has clashed with a human rights body on whether the Assets Recovery Agency (ARA) director should be competitively recruited or simply appointed. 

Commission for Human Rights and Justice (CHRJ) argues that the position ought to be advertised. 

According to CHRJ, applicants who qualify in the first stage should be interviewed and vetted as the law requires for public office holders before the one with the highest score is appointed to the position.

The lobby claimed that Colonel (Rtd) Caren Mate’s appointment by Muturi skipped all the steps after ARA’s first director Muthoni Kimani left. 

There was no advertisement and interviews were not done. 

“The facts as set out in the petition are that the interested party (Mate) was arbitrarily appointed, sworn into office without going through the stages of appointment of state or public officer. What the petitioner is questioning is procedure used in appointing the interested party into office,” said CHRJ lawyer Maurice Makan.

The AG in his final submissions before High Court judge Lawrence Mugambi stated that he has powers to appoint any person who fits to head the office.

According to him, the commission does not raise issues about Mate’s qualifications, nor does it contest that the law allowed him to recruit Muthoni’s successor.

“In the context of the petitioner’s claim, we opine and submit that it is grounded on the wrong principles because the petitioner has not provided evidence or even made an allegation that the interested party herein does not possess any of the relevant qualifications per the requirements of the Act,” argued Muturi.

He asserted that Section 53(2) of the Proceeds of Crime and Anti-Money Laundering Act provides that the AG should appoint a competent person to be the helm of the agency.

For a person to be appointed ARA director, Muturi stated, the person must hold a degree in law, economics or finance from a recognised university; have at least 15 years working experience in a relevant field, five of which shall have been at senior management level.

 State Counsel Thande Kuria filed the submissions on behalf of the AG.

Further, he argued that the case amounted to a labour dispute and not a constitutional one, hence should have been filed before the Employment and Labour Relations Court.

“Your Lordship, the instant petition has been filed in the High Court. The issue for determination and the main question of the interpretation clearly falls within the ambit of the Employment and Labour Relations Court. The jurisdiction to hear and determine labour matters is donated to the said Court by virtue of the provisions of Article 162(2)(a) and Section 12 of the Employment and Labour Relations Court Act,” said Thande.

Mate was recruited to head the agency after Muthoni’s exit in April 2021.

The rights lobby argued that ARA, which was formerly under the AG’s office is an independent agency that should have a board as directed by High Court judge Patrick Otieno.

In an earlier case, Justice Otieno had agreed with the view that ARA is independent from the AG’s office.

“I do take the view that in amending the Act to remove its description as a semi-autonomous body under the office of the Attorney General and creating a body corporate, Parliament was deliberately removing the agency from the control as extension of the office of the Attorney General and creating a wholly independent body able of being funded, budgeted for, oversighted and run independent of the office of the Attorney General. The financial oversight imposed by section 54D leave no doubt that the agency is wholly divorced of operations of the office of the Attorney General,” argued Justice Otieno.

He was of the view that the AG should ensure that the current law is amended to have a board in place as an oversight mechanism. The judge said that the agency’s boss should not be the only person to run the institution.