Wednesday, August 24, 2011

Githu to succeed Wako


By Martin Mutua


Parliament is the only obstacle to Githu Muigai becoming Kenya’s sixth Attorney General.
The appointment of Prof Muigai, a constitutional lawyer who teaches law at the University of Nairobi, did not surprise.
He had been tipped for the job and sources at the Prime Minister Raila Odinga’s office had earlier indicated he had no objection to the appointment.
Apart from serving as a commissioner on the now defunct Constitution of Kenya Review Commission under Yash Pal Ghai, Muigai also played a major role in arguing the case filed by former Mau Mau freedom fighters against the British Government.
Outgoing AG Amos Wako (right) with nominated successor, Prof Githu Muigai. Photo: File/Standard
President Kibaki and Prime Minister Raila Odinga appeared to have horse-traded for the last three constitutional appointments to try to beat the Friday do-by-date.
Should he pass parliamentary vetting, Muigai will become the sixth Attorney General since the country attained independence in 1963.
Those who served before him include Charles Njonjo (1963-1980), James Karugu (1980-1981), Joseph Kamere (1981-1983), and Mathew Guy Muli (1983-1991). Wako (1991-2011) is the longest serving Attorney General.
The two principals picked the constitutional lawyer to replace Wako, who has been at the helm of the State Law Office for 20 year.
The ‘Smiling Wako’ attended his last Cabinet meeting on Tuesday. The new Constitution set the timeline for Wako and the former Chief Justice, Evan Gicheru, to leave office.  Gicheru’s term ended in February.  Wako’s was the next, having been set at one year after the promulgation of the new Constitution, which falls on Friday.
On Tuesday, the President and the Prime Minister also named Agnes Nangira as the Controller of Budget, and Edward R Ouko as the Auditor General.
Sources told The Standard that the two principals resolved to horse- trade, with the PM bagging the positions of Controller of Budget, and that of Auditor General, and the President taking the Attorney General.
It will be recalled that President Kibaki had earlier appointed Muigai to the same position, alongside lawyer Kioko Kilukumi as Director of Public Prosecution, and Justice Alnashir Visram as Chief Justice.
The move elicited outrage from Members of Parliament who threw out the President’s nominations. They faulted the Head of State for violating the new Constitution, which demands the appointments be transparent and consultative.
The President was forced to withdraw the nominations, which then saw a fresh process undertaken through the leadership of the Judicial Service Commission.
Following the new process, long time-law lecturer Willy Mutunga was picked as the Chief Justice, while Keriako Tobiko was appointed Director of Public Prosecutions.
Muigai is the only one to have survived out of the four initial Kibaki nominees.
Sources told The Standard that Muigai’s appointment had been delayed to allow Wako to conclude the publication of the last two constitutional Bills.
“The two principals had agreed on the person to replace Wako, but they were waiting for the conclusion of the constitutional Bills since they did not want to disrupt the process by naming the new Attorney General,” the sources in the Office of the President added.
In the implementation of the new Constitution, the Attorney General handles the Bills before they go to Parliament. The AG also directs the publication of the Bills by the Government Printer.
The new Attorney General, unlike in the past, does not have prosecutorial powers, which have been given to the Director of Public Prosecutions.
But according to the International Crimes Act, the Attorney General is the link between the Government and the International Criminal Court.
The Constitution makes the AG a nominee of the President, but Parliament must approve the appointment.
The AG, who also has no security of tenure, remains the chief legal advisor to the Government. His work entails representing the Government in court, or in any other legal proceedings to which the Government is a party, other than criminal proceedings.
He shall also perform any other functions conferred on the office of by an Act of Parliament or by the President.
The AG, according to the new Constitution, also shall have authority with the leave of the court, to appear as a friend of the court in any civil proceedings to which the Government is not a party.
The AG is also mandated to promote, protect, uphold the rule of law, and defend the public interest.
Subordinate officers acting in accordance with general or special instructions may exercise in person the powers of Attorney-General according with the Constitution.

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