The Attorney-General under the New Constitution
Open. Accountable. Responsible
The Attorney-General is a Cabinet-level office.
The AG is the legal adviser of Government.
The Attorney-General's tenure follows the cycle of a General Elections.
Prof. Githu Muigai - The Attorney General of the Republic of Kenya
Under the Old Constitution, the Attorney-General of the Republic of Kenya has been a key member of both the Executive and the Legislature (as an ex-officio member). However, the Constitution of Kenya 2010 makes no mention of the AG's membership by right or otherwise, to either House of Parliament. Under the Old Constitution, the AG was a member of the National Assembly and would be referred to as the Honourable Attorney General. Excerpts from Chapter III, Parliament, Part 1 - Composition of Parliament under the Old Constitution:
36. The Attorney-General shall be an ex officio member of the National Assembly, but he shall not be entitled to vote on any question before the Assembly.
The AG is the only Cabinet office which by law (ie., under the New Constitution) must be occupied by a person with specific technical background. Chapter Nine - The Executive, Part 4 - Other Offices, Article 156, excerpts::
156. (1) There is established the office of Attorney-General.
(3) The qualifications for appointment as Attorney-General are the same as for appointment to the office of Chief Justice.
The Attorney-General (or AG), is a member of the Cabinet - the highest executive authority in the country. Excerpts from Part 3 - The Cabinet:
152. (1) The Cabinet consists of— ....... (c) the Attorney-General; ........
The office of the AG is often referred to as the State Law Office. As a member of the Cabinet, the AG is and acts as the Principal Legal Adviser to executive authority.
(4) The Attorney-General— (a) is the principal legal adviser to the Government; (b) shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; .......
Under the New Constitution, the function of prosecutions is no longer under the AG's office. That role is now assigned to the office of the Director of Public Prosecution. This change should free the AG's office from the controversy that often accompanied Presidential directions to the office of the AG, leading to accusations that it was was lacking independence by taking instructions from an executive that could not be relied on to remain neutral. As a member of the Cabinet, the AG may take lawful instructions in writing from the President.
(4) The Attorney-General— (c) shall perform any other functions conferred on the office by ....... the President.
The fact that the AG's Office was often times regarded by the public as not being independent led to the provision that the holder of the office quit within one year of the promulgation of the New Constitution, in order for the citizens to feel that they have made a clean break with the past constitutional order and embrace a new office holder in whom they can place their confidence. Consider Article 30 in the Sixth Schedule - Transitional and Consequential Provisions, Part 6 - Miscellaneous Matters:
30. (7) ......., the Attorney-General ....... shall continue in office for a period of no more than twelve months after the effective date ........
The AG is given wide-ranging freedom to volunteer as a friend of the court (or an 'amicus curiae') to assist in the service of justice by 'offering information to assist a court in deciding a matter before it'; for example, to assist the courts to interpret the provisions in the Constitution for affirmative action i.e., "......to treat unequals appropriately unequally", (Nyanjom, 2011), or in disputes before the court, or in criminal proceedings, etc; cases in which the AG feels that public or special interests should be given due consideration by the Court:
152. (5) The Attorney-General shall have authority, with the leave of the court, to appear as a friend of the court in any civil proceedings to which the Government is not a party.
The important role of the AG can be replicated through appropriate delegation to others in order to expedite accessibility to justice by those before the courts, or those in need of the intervention of the same Courts, or to assist the Court and justice system in general to work better:
(6) The Attorney-General shall promote, protect and uphold the rule of law and defend the public interest.
(7) The powers of the Attorney-General may be exercised in person or by subordinate officers acting in accordance with general or special instructions.
Subsection (4) (a), sections (6) and (7) of Article 156, make the AG a permanent member of one key Commission and entitled to have a representative in another i.e., the JSC and SRC (ex-officio) respectively, plus direct membership into the National Security Council, and the Advisory Committee on the Power of Mercy:
171. (1) There is established the Judicial Service Commission.
(2) The Commission shall consist of— ......(e) the Attorney-General;
230. (1) There is established the Salaries and Remuneration Commission.
(2) The Salaries and Remuneration Commission consists of the following persons appointed by the President— (d) one person each nominated by—(ii) the Attorney-General; .......
(3) The Commissioners under clause (2) (d) shall have no vote.
240. (1) There is established a National Security Council.
(2) The Council consists of— ....... (f) the Attorney-General;
133. (2) There shall be an Advisory Committee on the Power of Mercy, comprising - (a) the Attorney-General;
As we noted earlier in our introduction, the New Constitution is rather quiet on the matter of the AG's direct membership to Parliament. It does however require the AG to cooperate with various committees and commissions to ensure the passing of necessary legislation on the implementation of the Constitution. Excerpts from the Sixth Schedule:
4. ....... (b) coordinate with the Attorney-General, the Commission on the Implementation of the Constitution and relevant parliamentary committees to ensure the timely introduction and passage of the legislation required by this Constitution; .......
6. ....... (b) co-ordinate with the Attorney-General and the Kenya Law Reform Commission in preparing, for tabling in Parliament, the legislation required to implement this Constitution;
Also from Chapter 18 - Transitional and Consequential Provisions:
261. (4) ...... the Attorney-General, in consultation with the Commission for the Implementation of the Constitution, shall prepare the relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified.
The holder of the office of the AG enjoys security of tenure equivalent to that of a Cabinet Secretary and thus can only be removed by the President for criminal, unconstitutional or gross misconduct as determined by a select committee of 11 members of the National Assembly, which would present its report to the Assembly for a vote (See Article 152 Clauses (6)-(10). As a member of the Cabinet, therefore, the AG's term of service comes to an end only on the appointment of a new Cabinet after a General Election.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney-General.
2. The Constitution of Kenya Revised edition 2008 (2001), National Council for Law Reporting, The Attorney-General.
2. Othieno Nyanjom (2011). "Devolution in Kenya's new Constitution". Constitution Working Paper Series No 4. Society for International Development, SID.