Githu will make a fine AG and Kibaki was within his rights to select him

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By MURITHI MUTIGA
Posted  Saturday, August 27  2011 at  15:54

IN SUMMARY

• Seriously: Only the most ungenerous critic would argue that Prof Muigai, one of the finest courtroom lawyers the nation has, is not qualified for the post

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Before he took up the rather more difficult job of trying to slay the dragon of corruption, Patrick Lumumba was best known as a masterful orator.

One of his favourite quotes was that Kenyans should not go after big problems with the wrong solutions.

It is not wise to try and kill a mosquito with a sledge hammer, he cautioned. Events in the past week, especially the reaction to the nomination of the Attorney-General, raise new questions about the nature of the presidential system created by the new Constitution.

The nomination of Prof Githu Muigai was met with vociferous criticism online from some who argued the President was wrong to nominate a new AG without allowing “public participation”.

This despite the fact that the new Constitution states fairly explicitly that the President “shall nominate and, with the approval of the National Assembly, appoint” the Attorney-General and Cabinet Secretaries.

Some argue that the requirement for “public participation” should be interpreted to mean that the President will have to advertise and fill competitively positions such as Attorney-General and Cabinet Secretary.

That may sound good on paper but in practice will yield a cumbersome and inefficient government.

The new Constitution raises the bar considerably for the candidate who will assume the presidency after 2012. One will have to secure the support of more than half of the voting public.

The president must seek votes across the nation, because they need the backing of a significant number of voters in half the counties. Surely an elected representative with such a broad mandate should have, contingent to parliamentary approval, a free hand to pick the core team that they will use to deliver on their campaign promises.

The president will need to appoint senior officials that share his or her ideological leanings, their vision for the country and their ideas on how to take the nation forward.

That’s what happens in every mature democracy, including the American one from which much of the Kenyan Constitution is borrowed. Creating a weak and ineffective presidency to replace the overbearing and unaccountable presidency of old will be to wield an axe at a mosquito.

The president should have some latitude in senior executive appointments.

We must avoid situations, say, where a new president determined to follow through on infrastructure projects to link the country to South Sudan advertises the position of Finance Secretary and the successful candidate turns out to be Michael Joseph, who recently branded the project a giant “white elephant”.

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Prof Githu Muigai is amply qualified to be the new Attorney-General. Under the new Constitution, the AG is essentially the chief legal adviser to the President and the government. He does not enjoy security of tenure and can be appointed and fired at will.

He does not have, like the old AG, the power to initiate prosecutions or to investigate any public official. Those powers now vest in the office of the Director of Public Prosecutions.

Only the most ungenerous critic would argue that Prof Muigai, one of the finest courtroom lawyers the nation has, is not qualified for the post. I happened to have watched the professor in action at a United Nations conference, which he attended in his position as a UN rapporteur on racism, last year.

One of the things that struck me, apart from his lucid presentation, was the fact that he was glued to his i-Pad through most of the breaks. It’s a small point but the more public officials we have that are savvy and attuned to modern ways the better.

In conversations later, I was struck by his capacity to debate animatedly yet respectfully with Kenyans in that city and the ability to communicate without resorting to legalese that you would expect from a man who I was surprised to learn started his working life as a journalist at the Nation.

A discussion on a working paper he had prepared proposing reforms of the Tourism ministry left me in little doubt that he has the energy and ideas to breathe some fresh life into public service. I can only wish him every luck in his new job.

mmutiga@ke.nationmedia.com