As Prof Githu Muigai, 58, made his graceful exit as the country’s sixth Attorney-General on Wednesday, he left it to history to judge his tenure.
“I am not going to use this function to defend my record, but just to say this: Every objective historian will say I and my team made every best effort here,” he told journalists at Sheria House, Nairobi, as he handed over to his successor, Justice Paul Kihara.
Most members of his team at the State Law Office were his students at the University of Nairobi.
At 64, Justice Kihara is taking over as the oldest entrant to an office that has been the nerve centre of political power-play and litigation; a balance that Prof Muigai tried to maintain during his seven-year tenure.
FRIEND OF THE COURT
But Prof Muigai did not have the sweeping powers enjoyed by his predecessors – Charles Njonjo, James Karugu, Kamau Kamere, Matthew Guy Muli and Amos Wako – after the prosecutorial powers were whittled down by the 2010 Constitution.
But Prof Muigai did not have the sweeping powers enjoyed by his predecessors – Charles Njonjo, James Karugu, Kamau Kamere, Matthew Guy Muli and Amos Wako – after the prosecutorial powers were whittled down by the 2010 Constitution.
This saw the creation of the Office of the Director of Public Prosecutions and the AG was left with a single-track docket: principal legal adviser to the government and as the national government lawyer in court.
For that, Prof Muigai – than any other AG in history – was conspicuously present in courts either representing the government or as a “friend of the court.”
When he took over, Prof Muigai had promised to ensure that the multibillion-shilling Anglo Leasing and Goldenberg cases lodged during the Moi and Kibaki administrations were concluded.
ANGLO LEASING
The two cases had soiled the reputation of the State Law Office, which dithered on both the prosecution and investigations.
By the time Prof Muigai left, the Anglo Leasing case was still in court while Justice Joseph Mutava had cleared controversial businessman Kamlesh Pattni.
The judge was later suspended after a tribunal appointed by President Uhuru Kenyatta unanimously recommended his removal for letting Mr Pattni off the hook in a controversial judgment.
ICC CASES
Prof Muigai, a PhD holder in public law from the University of Nairobi, was appointed by former President Kibaki during a tricky transition from the old to the new Constitution and he was the one to deal with the legal issues that emerged out of the violent conflict that followed the December 2007 elections.
The International Criminal Court (ICC) had named senior State officers as suspects in the skirmishes after the election.
These were then Head of Public Service Francis Muthaura, then Deputy Prime Minister Uhuru Kenyatta, former Police Commissioner Hussein Ali, form Tinderet MP Henry Kosgey, then Eldoret North MP William Ruto, and former radio journalist Joshua arap Sang.
Prof Muigai at first fought a battle to have the cases heard locally and appointed a committee to advise the government on the way forward.
While ICC Prosecutor Fatou Bensouda, and her predecessor, Mr Louis Ocampo, always criticised the government for lack of cooperation, Prof Muigai was always at hand to reply.
PETITIONS
Whether, he cooperated with the court depends on whom you ask, but the ICC ruled that Kenya failed to cooperate with the court in the case against President Kenyatta and referred the matter to the Assembly of State Parties for action.
But Prof Muigai’s performance at the ICC and his defence was the real mark of a man who loved courtroom battles.
Locally, he appeared in court more than any other AG before him in the various petitions and cases touching on the presidency.
He also went on record as having warned ODM leader Raila Odinga of dire consequences if he went ahead and took an “oath of office” as the “people’s president”.
HAND OVER
There were other ground-breaking cases in which Prof Muigai appeared at the Supreme Court as a friend of the court.
There were other ground-breaking cases in which Prof Muigai appeared at the Supreme Court as a friend of the court.
One such case was when the Supreme Court was asked to establish the constitutionality of the death penalty.
Like Mr Njonjo and Mr Wako, Prof Muigai had a chance to serve two governments and manage a transition.
But while Mr Njonjo entrenched the one-man rule during his reign, that was not so for Prof Muigai who gave his office an academic touch – and left some respect to an office that had for years lost ground.
But his was navigation through political turbulence, and Justice Kihara takes over from him as the coxswain.