Attorney General office on the spot over Ruto's series of court defeats

For a man ever keen to shake off any similarities with his predecessor, President William Ruto, however, seems to be walking down the same path as former President Uhuru Kenyatta.

Although different, they share a lot, including an uncanny bad fortune in the courtroom.

Dr Ruto has recently suffered a series of court defeats, placing the State Law Office, led by Attorney General Justin Muturi, under increased scrutiny.

Much of the focus stems from the advice the AG’s office offers the president, who has struggled to defend his programmes when subjected to the legal test.

Friday was a bad day for Ruto’s legal team, which suffered three blows in the hands of the Judiciary, an arm of government with which the Head of State has been at war over perceived corruption.

The Court of Appeal declined to suspend orders barring collection of the controversial housing tax, as the High Court stopped the deployment of police officers to gang-ravaged Haiti and also declined to strike out a case challenging Kenya Kwanza’s majority status in the National Assembly.

The High Court last November declared the housing tax illegal as it discriminated against salaried Kenyans, among other violations.

Ruto had bulldozed the said tax through Parliament despite an almost unanimous rejection during a public participation exercise. The signs were always clear that the unpopular tax would face legal hurdles, given that a similar initiative by former President Uhuru Kenyatta was also defeated in court. 

In the case involving the deployment of police officers to Haiti, Justice Chacha Mwita found that the National Security Council lacked the mandate to deploy police officers outside the country unless in defence of the country during an emergency.

As he filed his case in court last October, Thirdway Alliance party leader Ekuru Aukot argued that Haiti was not a “reciprocating country” owing to its lack of a government and that the Caribbean nation had not requested assistance in fighting its marauding gangs.

In media interviews and on X (formerly Twitter), Aukot predicted the nullification of Kenya’s decision to send 1,000 police officers to Haiti as a simple matter of law. And he would follow it up Friday amid reports that the government would be seeking to appeal the decision, terming it “misguided”.

“We advise the government to accept the ruling by the High Court. However, should the government insist on appealing such a great and reasoned decision, then we as Thirdeayers are more than ready to defend Kenya’s sovereignty from Western imperialist interests and uphold the CoK2010 (Constitution),” Dr Aukot posted on X.

Lawyer Waiwa Wanyoike also reacted to a statement by Government Spokesperson Isaac Mwaura about the planned appeal.

“I think GoK makes a strategic and tactical mistake when its first instinct is to argue and fight this decision. In many ways, this is a relatively good outcome for GoK and especially the Executive. Further litigation is not the solution here,” Wanyoike said on X.

It remains to be seen what the appeals court will decide on both cases, but that has not stopped questions over whether the president has access to legal advice that would help him avoid embarrassment in court. 

Since his ascension to office, Ruto has lost other cases, including his appointment of Chief Administrative Secretaries (CASs)

While reacting to a report that suggested that Ruto would defy the housing tax ruling, the Kenya Human Rights Commission, a civil society group, questioned whether the president had “sound legal advisors.”

Such questions abounded during Uhuru’s tenure, who always lost several court cases challenging unconstitutional policies.

Perhaps the most memorable is the Building Bridges Initiative constitutional amendment push that was nullified right from the High Court to the Supreme Court.

In 2015, the High Court declared some sections of the Security Laws (Amendment) Act, 2014, forced through rowdy sittings in Parliament, unconstitutional.

Other cases Uhuru’s government lost include the appointment of CASs, the transfer of Nairobi County functions to the Nairobi Metropolitan Services and Uhuru’s refusal to appoint 40 judges, among others.

The spotlight was similarly cast on Uhuru’s legal advisors as well as the former president himself for ignoring counsel and for good reason. 

Ruto suffers no shortage of legal advice. He is surrounded by professors of law and practitioners with many years under their belt.

Muturi, for instance, has previously served as the National Assembly Speaker, a Member of Parliament and a magistrate. In recent months, reports have suggested that the AG has been sidelined.

With access to this many professionals, constitutional lawyer Ben Sihanya believes that Ruto could be ignoring their counsel.

“He decides what he wants and moves on with it, caring little about whether it violates the Constitution,” Prof Sihanya argues. “In case he is getting advice, then it is from sycophants who offer a veneer to his unconstitutional decisions. In the unlikely event that he is getting it from professionals, then he is disregarding them and it reflects in court.” 

Lawyer Bernhard Ngetich, a candidate in the race for the Law Society of Kenya presidency, concurs.

“He is either receiving bad advice or he ignores sound advice,” says Ngetich.