Githu and Tobiko tell of hurdles

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Attorney General Githu Muigai (right) and Director of Public Prosecution Keriako Tobiko (left) during a press conference at the State Law Office on January 24, 2012. Photo/WILLIAM OERI 

By  BILLY MUIRURI bmuiruri@ke.nationmedia.com AND PAMELA CHEPKEMEI pjepkemei@ke.nationmedia.com
Posted  Sunday, July 29  2012 at  23:30

The government’s top lawyer on Sunday spoke of frustrations barely a year after taking office. Attorney-General Githu Muigai said he was not being consulted by ministers and some heads of state corporations, which often results in conflicting and unconstitutional decisions being made by the officers.

“The State Law office is finding itself fire fighting arising from such decisions yet it is supposed to give advice that avoids actionable decisions,” he said. Director of Public Prosecutions Keriako Tobiko also expressed his displeasure at the spate of court rulings which were ignoring the public good.

Referring to the recent ruling that lifted the ban on the Mombasa republican Council (MRC) and the freeing of suspected terrorists on bail, Mr Tobiko said the courts should protect both the spirit and letter of the law.

“Although bail is a constitutional right, that right is neither absolute nor unconditional. The courts in granting bail should strike a balance between the rights of an accused against the wider interest of the public including in particular safety and security,” he said.

The AG spoke following a chain of court decisions that have overturned several appointments by senior government officials, including the President.

Some of the decisions, such as the appointment of county commissioners by the Office of the President, sparked public outrage amid claims the government was flouting the Constitution. However, it later emerged that the AG was not consulted by the acting Internal Security minister Yussuf Haji and Head of Public Service Francis Kimemia.

The High Court declared the appointments illegal and Prof Muigai advised against appealing, but Mr Haji is challenging the ruling.

“In an ideal situation, ministries and state corporations are supposed to consult the AG’s office before making constitutional and legal decisions. Unfortunately, we are looped into matters when a decision has turned into a judicial matter,” said Prof Muigai.

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Lack of consultation, he said, was painting the government in bad light sparking claims that senior officers were not working in harmony.

Prof Muigai was named AG in August last year to succeed Mr Amos Wako who served for 20 years.

However, he down-played reports that the Judiciary was at war with the Executive, saying these were only “teething transitional problems”.

It is not only in public appointments that the courts have slammed the doors shut on the Executive. Last week, the High Court lifted the ban on MRC saying the order was too punitive and the group had not been given a chance to seek formal registration as a political entity.

The secessionist Coast group was banned in 2010 alongside 32 others by former Internal Security minister George Saitoti citing national safety.

Prof Muigai said there was a growing misconception that fighting government positions or decisions is the best demonstration of judicial independence.

“In a democracy, the scope of judicial action is limited to ensure the executive complies with the law. It does not extend to second guessing policy and administrative decisions that lie exclusively with the executive arm of the government,” he said.

In the MRC case, he agreed with Mr Tobiko that the court did not consider legitimate constitutional concerns of the government. The AG plans to appeal.

Prof Muigai warned that the vetting of judicial officers could motivate some to rule against the government simply to be as anti-executive to increase their chances of remaining in office.

“This, I fear, would make someone stop for a moment during vetting as they would not want to be seen like they are victimising a judge who ruled against the State,” he said.