Defending Kanu regime human rights violations Githu’s biggest headache

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Attorney General Githu Muigai. Photo/FILE 

By BILLY MUIRURI bmuiruri@ke.nationmedia.com
Posted  Sunday, September 2  2012 at  23:30

IN SUMMARY

• While the State Law Office is supposed to defend the government, the cases have been found to be “undefendable violations of human rights.”
• The AG asserted that most of the awards by the courts were indeed moderate and his office was exploring a formula to settle the others out of court.

Attorney-General Githu Muigai is in a dilemma over human rights violations committed by the Kanu regime.

The AG has been forced to “needlessly defend” the government against victims of torture who have sued the State for compensation.

While the State Law Office is supposed to defend the government, the cases have been found to be “undefendable violations of human rights.”

In an exclusive interview with the Nation in the week he marked exactly a year in office, the Attorney General said there was no point in appealing the judgments already delivered by courts.

“They (torture cases) have been very difficult to defend. We believe that majority of the actions complained of, which were carried out by State agents, were downright illegal,” said Prof Muigai.

The AG asserted that most of the awards by the courts were indeed moderate and his office was exploring a formula to settle the others out of court. “By this, we want to bring this dark chapter in our country to an end,” he said.

The AG has no regrets on some of the decisions he had taken especially those that had a political impact because he looked at the issues from a purely legal perspective.

For example, on his opinion that ICC suspects were not required to resign from their government jobs, Prof Muigai said: “What I had said then was that the decision as to what the suspects would do after they were indicted was a political one for them to take.”

He said the decision on what would happen once the charges were confirmed was one taken by the government through the appointing authority.

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“In this event, the suspects exercised their option to step down and then it was not necessary for appointing authority to take decision,” he said.

Early this year, Deputy Prime Minister Uhuru Kenyatta, former head of Public Service Francis Muthaura and former Postmaster General Hussein Ali yielded to pressure and vacated office after the charges were confirmed. (Mr Kenyatta resigned as Finance minister.)

They had held on to their positions even after being named among the top six suspects responsible for the post-election violence in 2008.

The following are excerpts from the interview.

You have been a scholar and now you are a public servant. How has it been working as the AG since you were appointed a year ago?

It has been challenging, but rewarding. The shift is not as radical as it sounds. The skills that a lawyer requires to render legal advice are the same in both fields.

I have had a once-in-a-lifetime opportunity to be part of the Constitution implementation team, the team planning the first elections under the new Constitution and the team planning the transition to a new administration in March 2013.

What would you consider as the major achievement(s) of your office so far?

We have helped to draft and to shepherd through the National Assembly very many Bills (44 Bills and 24 Acts from August 2010 to date), key among them the Bills on the Constitutional Implementation — those that had March and August deadlines.

Secondly, we are involved in major constitutional litigation intended to interpret key provisions of the Constitution. I believe the courts found our contribution very useful.

Thirdly, we have rendered major legal opinion to many government ministries in a diverse range of areas and we believe that we are steadily realising our goal of becoming the leading law firm in the region.

What would you say are the most challenging aspects of working as the Attorney General especially in the transition period?

There are huge expectations from everywhere — the public, the media, civil society and politicians as to what the AG’s office should be doing. The new Constitution has drastically changed things.

We are busier than it has ever been, despite the Directorate of Public Prosecutions having become an independent institution. Therefore, there is a challenge in attracting and retaining good professionals in the AG’s Office due to competition with other better paying public institutions, especially the Judiciary and other independent commissions.

Section 156 of the Constitution does not provide for security of tenure for the AG. How does this impact on your work?

Not significantly. The AG must command the professional respect of the government of the day that he has to advise and the framers of the Constitution did not believe that the office of chief legal adviser to government should be occupied by a careerist.

I think this is right. They should execute this mandate as long as he enjoys the confidence of those who have to rely on his advice and judgment. On the other hand, it is important to develop a culture of respect for the independence and autonomy of constitutional offices.

The AG no longer has prosecutorial powers. As a legal practitioner during the earlier dispensation (the old constitution), what is your take on the fundamental differences?

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In the public mind, AG’s office was associated with prosecutions. The truth is that these were a very small part of what the office did.

Much of the AG’s office work is in areas such as the Department of Treaties and Agreements, which provides thorough and considered legal advice to government ministries, State-owned corporations, negotiates on financial agreements and other bilateral matters of concern to the government, and negotiates, drafts and vets local and international documents, agreements and treaties for and on behalf of government ministries/departments and State corporations.

You formed a panel of eminent lawyers on the ICC cases that somehow recommended Kenya should not pursue deferral of the cases. How has your office responded to the panel’s recommendations?

Their report had numerous proposals including that the government should continue cooperating with the ICC in terms of the provisions of the Rome Statute.

We are still on this path. As a State party whose citizens are before the ICC, Kenya continues to watch the proceedings with keen interest. We all want justice both for the victims and the suspects.

Recent developments show you have “agreed” with the Judiciary on some things such as respect for court orders. What would you say is your office’s relationship with the reforming Judiciary?

I am a member of the Judicial Service Commission by virtue of my office. I have, in that capacity, been a member of the team that has oversight over judicial reforms. My working relationship with the Chief Justice is excellent.

Where would you say you disagree with the way the judicial reforms are going on?

The Judiciary needs to develop a jurisprudence that is both progressive and practical. It is keen to distance itself from its history of lethargy, corruption and ineptness.

In doing this, there are a few cases where decisions have created the impression that the court has swung too far in the opposite direction.

However, on the whole, I am satisfied that we are moving in the right direction, what with the crop of new judges who are well-trained and work ethic has drastically improved.

Soon I am optimistic the Judiciary will find a stable middle ground from which to grow a jurisprudence addressing the very complex legal and political issues the new Constitution has posed.

You have been at loggerheads with Charles Nyachae-led Constitution Implementation Commission (CIC) where he has accused you of being “an impediment to the reform process”. Where do you think the conflict arises from and what should be done?

If I were an impediment to the constitutional implementation initiative, it would have been quite clear to Kenyans by now as none of the Bills would have been enacted. My commitment to constitutional and legal reforms in Kenya over the last 20 years is in public domain. The many students of law I have taught can attest to this fact.

I cannot speak for CIC. I cannot tell why they would make such grave allegations. I believe that there was, before I came to this office, and continues to be a genuine difference of opinion as to the true scope of the mandate of CIC.

My view has been that CIC has an important and critical role in the implementation of the Constitution and in particular, in assisting the legislation set out in the Sixth schedule. I do not, however, believe that CIC has a veto in these matters.

Several executive appointments have been overturned by courts and the AG’s office blamed. Just where are things not done right?

The AG’s office offers advice when it is sought. Appointment of individuals to the various offices is the responsibility of the appointing authority. Where the authorities have sought our advice we have given it, where they have not we have only heard about it later. The AG’s office cannot assume responsibility in those situations.

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There are sentiments about the Judiciary moving too fast on the reform highway while the Executive is still dragging its feet. There are fears the precedents set by the Judiciary could delay elections. Comment.

It is not true. The Judiciary has set a good pace. The rest of government, including the Executive, and Legislature are catching up and will catch up. It would be untrue to say the Executive is slowing down reforms. It has set up independent commissions and facilitates them to operate.

What are you striving to do to leave a worthy legacy at the State Law Office?

It will be in the team that I put together and the reforms that we are making in the management and administration of the office to improve our standards, both in advising government and representing it. I yearn for a free, fair and transparent elections and seamless transition to a new administration in 2013.