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BBI seeks to make AG powerful minister

By David Ochami | December 1st 2020

Attorney-General Kihara Kariuki. [File, Standard]

The Constitution of Kenya (Amendment) Bill 2020 created by the Building Bridges Initiative (BBI) seeks to amend Article 156 of the 2010 Constitution to enable the Attorney General to sit in the Cabinet as Justice Cabinet secretary.

The Bill proposes to amend Article 156 to clarify that as a member of the Cabinet, the Attorney General may be assigned by the president to perform functions of a CS.

Lack of clarity on the AG’s ministerial role in the Cabinet since 2010 has stalled implementation of several State policies and Acts of Parliament, especially, since 2013 when the AG was assigned Cabinet secretary authority by the president which was, successfully, contested in court in 2017.

Under Article 152 of the 2010 Constitution, the AG is a member of the Cabinet whose functions, under Article 156, include being the principal legal adviser of the Government and representing the government in proceedings (other than criminal proceedings) it is party to.

Article 156 also says the AG “shall perform any other functions conferred on the office by an Act of Parliament or by the President.”

These constitutional provisions have not provided the adequate ground to enable the AG to perform ministerial functions assigned by the president even by way of an Executive Order.

The AG’s powers were further hamstrung by the fact that the National Assembly has not, since 2010, enacted a statute to confer additional powers or explain how in spite of being appointed differently, could also serve as a CS.

The proposed Bill seeks to cure this gap through a constitutional amendment.

The Bill also proposes to amend Article 97 to enable the AG who, alongside other members of the Cabinet, are not elected legislators and the Official Leader of Opposition to become ex-officio members of the National Assembly.

Subject of competition

Under the 2010 Constitution, the AG and the Cabinet which is chosen from outside the Legislature are not MPs. Only the speaker of the National Assembly under the 2010 Constitution is an ex officio member of the National Assembly.

Under Article 156, the authority of the AG to sit in Parliament as an ex officio Member of Parliament, which was created by the independence Constitution was removed in 2010.

Even before the 2010 Constitution the AG’s powers as the chief legal adviser and Cabinet member or member of the Executive were subject of competition by the Office of Director or Public Prosecution (ODPP).

For close to ten years the extradition of former Cabinet Minister Chris Okemo and former Kenya Power Managing Director Samuel Gichuru has been delayed by the contest of who between the AG and DPP has the constitutional and legal authority, under the Extradition Act, to launch extradition proceedings in Kenyan courts.

On March 2, 2018, the Court of Appeal ruled that despite the powers of the DPP under Article 157 (6) to prosecute crimes, extradition proceedings, though being of criminal nature, were special proceedings of international relations dimension that could only be performed by the Executive and in this case the AG.

Article 152(1)(c) of the 2010 Constitution makes the AG a member of the Cabinet but does not indicate whether the holder of that post can also be assigned express Cabinet Secretary functions.

President Uhuru Kenyatta attempted to cure that lacuna by assigning Cabinet secretary functions through Executive Order Number 2 of 2013 in which he assigned the justice and constitutional portfolio to the AG.

The AG acted as the Justice Cabinet secretary, without opposition until 2017 when a citizen, successfully, challenged the Executive Order in the High Court.

The High Court in the matter of George Bala versus the Attorney General 2017 ruled that assigning the AG the functions of Justice Cabinet Secretary in this manner was unconstitutional and outlawed the part of the Executive Order that purported to do so.

The petitioner contended that although the two served in the Cabinet, by law their appointment was separate and distinct, as Cabinet secretaries take a special oath and the Constitution does not contemplate the AG serving simultaneously as a Cabinet secretary.

Setting terms of reference

On January 23, 2017, Justice Odunga held that, although he is a member of the Cabinet, the AG is not a CS and cannot, therefore, purport to exercise the power of a CS without the authority of a statute, parliamentary vetting/appointment and oath required of the office under the 2010 Constitution.

Odunga’s ruling dealt a blow to the implementation of the National Coroners Service Act 2017.

No sooner had the National Coroners Service Bill been signed into law on June 21, 2017, and a commencement date included for July 7, 2017, than the new Act, inevitably, ran into the legal hurdle regarding which CS would be responsible for implementing various aspects of the statute, including appointment and setting terms of reference or operation and service of the Coroner General and the National Coroners Service Act as stated at Section 9(1) and 11 (2) of the Act.

Since 2013, the government has not had a CS for Justice. In this case, the AG who sits in the Cabinet was designated the “Justice” portfolio through Executive Order No 2/2013.

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