November 19, 2018

The burden that Attorney General Paul Kihara inherits

By Derrick Makhandia

When outgoing Attorney General Githu Muigai was handing over his office to Paul Kihara, he stated, “Every objective historian will say I and my team made every best effort here.”

In my opinion, the AG has two major duties for which his best effort should be measured.

The AG as a legal advisor
His role as a legal advisor to government goes hand in hand with his constitutional duty to promote, protect and uphold the rule of law and defend the public interest.

He ought to give advice founded on constitutional soundness. Therefore, the performance indicator of an Attorney General should be weighed against the government’s adherence to the law.

This theory assumes that any action with questionable legal consequences ought to have been approved by the office of the Attorney General.

The AG as a government advocate
The other view, albeit largely academic and possibly flaunted by legal practitioners, holds that the AG’s biggest duty is act as the government lawyer. He has a duty to present and defend the government in court zealously, diligently and professionally.

This may seem more difficult due to the government’s penchant of making unsound, politically motivated legal decisions but in truth, this is the easier part.

Firstly, the lawyer is not responsible for their client’s actions especially before their duty to defend that particular action arose. Secondly, this duty calls for the lawyer’s competence as a trial/litigation attorney which the former AG exuded in abundance.

The burden of being a government advisor

The difficult part lies in his advisory role for the following reasons:

Firstly, advice is not binding. A lawyer may advise his client but as long as he has no enforcement powers, their advice, no matter how compelling merely becomes a persuasive prod in a marketplace full of political push. Ultimately, the government (client) makes the ultimate decision whether or not to follow up on the advice.

Secondly, advice is only given where the advisor has knowledge of the recipient’s likelihood to act on something worth advising on. This knowledge can be voluntarily given or presumed in the two ways.

Voluntary advisory
The government can voluntarily reach out to its advisor when it intends to undertake an action that raises complex legal issues. Unfortunately, this is only theoretically practical due to the largeness of government and the fact that some duty bearers have their own legal advisors who they either trust more or may be biased.

AG Muigai raised this point during an interview when he said, in verbatim, “The Attorney General’s office gives advice (emphasis added) when it is sought.”

Proactive advisory
What if advice isn’t sought when it clearly ought to be sought?
The advisor should make the presumption that the advice will be necessary if he foresees his client’s likelihood to carry out an act that raises fundamental legal issues.

Take Miguna Miguna’s second deportation for instance. No neutral legal practitioner will support a government’s blatant disobedience to court orders. No matter how unsound an order may seem, lawyers will find ways to challenge them within the judicial framework regardless.

As an advisor, the AG ought to have advised the government before Miguna came back into the country that he should be allowed in due to the court order that invalidated his first deportation. In legal sense, he was to be reinstated to a position he was before he was deported.

We, however, cannot know if such advice was given proactively by the AG’s office. What we can presume, however, given Muigai’s professional and academic bulk, is that if any advice was sought or given prior to any questionable action, it must have been well researched, thought of, rational and grounded in especially the Constitution.

What many legal optimists would like to believe is that either his advice was not sought or it was dismissed. I, for sure, am persuaded to give him a benefit of doubt.

So, what should an AG do when his advice is ignored?

This should be Justice Kihara’s biggest worry. I do not question his ability to defend the government in court. He has been there for years and definitely knows the ropes. His biggest test will be in defending actions he either advised against or would have advised against had his opinion been sought.

When conflict arises between two duties, that is, (1) to represent the court in legal proceedings, and, (2) to promote, protect and uphold the rule of law and defend the public interest, he should reflect on the very premise of the Constitution – that sovereignty belongs to the people.

He owes us a duty to advise the government on what is just and what is right, and if the government merely intends to use him as its mouthpiece in court, he must resign and come out clean. He should be deaf to political noise. After all, the history that will be remembered will be that written by objectivists. And that history, will absolve him.

The writer is Derrick Makhandia, a Program Officer at Mzalendo Trust.

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