Attorney General’s role is public legal matters

 

For some of us mere mortals who had the misfortune of bumping into kids of corrupt public servants, either in college or at functions, one thing that we were left with is the fact that most of them appeared ignorant of the boundaries between their personal lives and government. They were the government and the government was them.

Such thinking, I am saddened to say, is back with gusto. The behaviour of pro-government people has proved that many Kenyans near or close to power are still struggling to demarcate the line between personal and public interests. They have been utterly consumed by a sycophantic spirit that stops them from reasoning beyond their noses.

Which brings me to our legal experts. Attorneys-general in Kenya getting muddled up in legal matters is nothing new. The actions of former AGs Amos Wako and Githu Muigai and the current one, Kihara Kariuki, have raised eyebrows several times for blurring the lines between fighting personal matters touching on government employees and their role as defenders of the public interest.

Personal legal matters

The judgment made in relation to the BBI recently has, once again, brought to the fore the question of who exactly the AG works for. Given the cross-over of AG’s roles between personal legal matters and official matters (call it impunity), it is important to brighten the grey areas.

The key role played by the Attorney-General’s Office is that of ‘principal legal adviser to the government’ — according to Article 156 (4a) of the Constitution. Of utmost importance is Art. 156 (6), which states: “The Attorney-General shall promote, protect and uphold the rule of law and defend the public interest.”

If Mr Kariuki did not know that BBI was a personal project and not a public project he now does, following the ruling made by the High Court a fortnight ago.

Raphael Tuju exemplifies this conundrum between what is private and what is public. He is, on one hand, a Cabinet secretary and, on the other, Jubilee Party’s secretary-general. He ought to be one or the other. He cannot be both. His ministry without portfolio does not give him the licence to choose politics (personal interests) over public service. But I digress.

Nonetheless, Mr Tuju is right to remind the Judiciary to be aware that arms of government enjoy ‘interdependence’. And it is, in fact, much more than that. Every arm of government is also independent and distinct in their roles. 

Hence, why their powers need to be separate for each to function independently of the others to enhance democracy. It is not out of character, therefore, for the Judiciary to deem BBI as a personal project. It is its role to adjudicate on cases before it. That is how constitutionalism comes alive.

Impunity

Throwing salvos and using intimidation on an arm of government because another one was not pleased that a decision did not go its way is undemocratic. While talking to the media to air grievances that should be dealt with in the Appellate Court amounts to coercion of government institutions. We ought to have moved away from the impunity of yesteryears that the 2010 constitution is rightfully and thankfully here to address.

But nothing stops the proponents of BBI from going back to the public and asking them of their participation and rewriting their point plans in accordance with the law. Time is of irrelevance if BBI’s intention will still be there. Citizens would still be around to receive it in its true legal form.

Nepotism is blinding and those appointed to government posts as family members or friends often struggle to distinguish the government from personal entities. This is the problem we seem to have in many of our agencies as all appointees wrongly believe their allegiance is to the Presidency and not the State of Kenya.

Nepotism

It is not a surprise, therefore, for the President to be given wrong advice, which sycophants thought is the right one due to their warped perception of events gauged against their loyalty to an office holder rather than the country.

Nepotism forms fertile grounds for impunity that mostly leads to State capture. The Judiciary is slowly breaking this mould and the Executive and Legislature need to follow suit. That is the only way to save Kenya. Independence of arms of government is the bedrock of any democracy.

Once a country starts to use bribes and threats, it destroys its democracy. Ours is a young one that has hardly had the opportunity to road-test its first post-independence constitution before screws started to be taken off its wheels.

For all it is worth, BBI may or may not work, but one thing is for certain: Independence of key institutions of government is sacrosanct, but whose meaning is only understood best by public servants who can distinguish personal from public interests. Attorneys-general should have the acumen of public interest at their fingertips more than most other people.    BY DAILY NATION