The functions of the Commission for the implementation are to monitor, facilitate, coordinate and oversee the development of the legislation and administrative procedures required to implement the Constitution. It is also required to oversee the proper implementation of the devolution process and to protect the sovereignty of the people of Kenya, to secure observance by all state organs of the democratic values and principles and promote constitutionalism.
The constitution is very clear that in the implementation and execution of these functions they are required to work hand in hand with the Attorney General to consult and agree on various matters on the implementation the Constitution.
The Attorney General is the chief legal adviser of the government and is required to promote, protect and uphold the rule of law and defend public interest. The office of the Attorney General is a much more weakened one from the previous one as the establishment of the office of the Director of Public Prosecutions and the Ombudsman's have eaten into what used to be the functions of the powerful office. The current AG has no security of tenure and can be dismissed by the President any time. He serves the President and the Government of the day.
However, despite his precarious and weakened position,Professor Githu Muigai has come into the office at a momentous epoch in the history of this country when Kenya is in the middle of implementing a new Constitution and faces the first General elections under the new Constitution.
He has the onus of steering this country at a very crucial time— if he messes up, he sends the country to the dogs. Any wrong legal advice to the Government can be very costly. The one question Kenyans may be asking themselves is— Is Prof.Githu Muigai a safe pair of hands to steer the country to safety like Charles Njonjo did back in 1978 when President Jomo Kenyatta died?
It is for this reason, if nothing else, that Prof. Muigai must accept criticism of his duties and actions, however unfair. He must not describe such criticisms as unprofessional, malicious, baseless, mischievous and unfounded. His reaction to the Charles Nyachae-led Commission statement was astounding and baffling.
The CIC in its end year address had simply said that the AG has expressed his willingness to subjugate his opinions to those of other organs of government, even where those organs may be acting in breach of the new Constitution. The CIC went on to say that the AG’s recent interpretation of the Constitution had proved not to be serving the public interest, but was purely implementing the directives of the Executive regardless of whether or not they were promoting constitutionalism.
What l understood the CIC to be doing was informing Kenyans that their AG was not on the right path as far as the implementation of the Constitution was concerned.
All what the AG needed to do was to tell us what he has done in 100 days and refute the CIC’s allegations. It doesn't help his case to dismiss the CIC as meddling in the affairs of the AG and whose functions were that of a page boy or flower girl as far as the implementation of the Constitution was concerned. What Kenyans want to see in the new year is the Attorney -general and CIC working together implementing the new Constitution with utmost honesty, diligence and in good time and above all inculcate the culture of Constitutionalism in Kenya.
James Aggrey Mwamu is the vice president of the East Africa Law Society.
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