AG Muigai: There is no legal basis for a transition govt

In this interactive series, we invite our readers to send in questions to select public figures.

Answers will be published in the next print and online editions.

This week, Attorney-General Githu Muigai responds to your questions

1. As the chief government legal adviser and as a commissioner at the Judicial Service Commission what is your opinion on the sustained attacks on the Judiciary, more so after the recent landmark ruling by the Supreme Court that nullified the presidential election result? Is this not a violation of the independence of the Judiciary?

Andrew Maranga Ratemo, Malindi

The Judiciary is an independent arm of government not subject to control or direction by any person or authority in the discharge of its judicial function.

The institutional independence of the Judiciary, like all other arms of government, does not, however, serve to insulate it from constructive criticism particularly where it relates to the development of jurisprudence on matters of great public interest such as electoral processes.

The Constitution contains various mechanisms for dissatisfied parties to complain about individual judges or courts.

2. Sir, you promised to deal with pyramid claim victims once and for all.

But many years have passed without any action yet in other countries the masterminds of pyramid schemes are punished severely and forced to refund the loot to the rightful owners.

How comes no one has been convicted by the Government of Kenya yet the people behind the schemes are well known, including some former and current MPs?

John Nyaga, Ruiru

The National Assembly commissioned a Taskforce on Pyramid Schemes, which delivered its report on June 24, 2009.

The report made various recommendations some of which included the setting up of a Pyramid Scheme Information Centre and a Standing Committee under then Ministry of Co-operative Development and Marketing comprising relevant government ministries/agencies and private sector.

It also recommended the formation of a Judicial Commission to undertake further investigations.

The taskforce also recommended the institution of criminal proceedings by the Attorney-General of all directors/officials who were engaged in pyramid scheme activities.

Since the promulgation of the Constitution my office is no longer vested with prosecutorial powers, and the matter now lies with the Director of Public Prosecutions (DPP). 

In 2012, Parliament enacted The Prohibition of Pyramid Schemes Act, which outlaws the participation, recruitment or introduction of members to such a scheme aimed at enriching illicitly.

A person convicted of engaging in such schemes is liable to a fine of Sh10 million or a jail term of 10 years.

3. Kindly clarify to the nation the right position on the issue of temporary incumbency in the Office of the President with specifics on law, powers and privileges thereof.

Josphat Kinoti, Meru

The Constitution under Article 134 is absolutely clear that from the date a General Election is declared, to the date the incumbent president is re-elected or a new one is sworn in, the incumbent president remains in office.

There is therefore no vacuum in the Executive merely because an election is under way, no matter how many times the election may be repeated.

In any event, the integrity of the constitutional order cannot be substituted by any other form or arrangement of government as this would violate the express provision of Article 3(2) of the Constitution.

For the avoidance of doubt, there is no constitutional basis for a caretaker government or a transition government.

4. What is your opinion on the Supreme Court majority ruling that the irregularities, though perceived by many as technicalities, formed the cornerstone in the annulment of the presidential election and to what extent does the ruling impact on sovereignty of Kenyan voters?

Josphat Kinoti, Meru

The Attorney-General has appeared before the Supreme Court in both election petitions, in 2013 and 2017.

In the 2013 decision a unanimous court of six judges set the standard for setting aside an electoral result together with the evidential burden for doing so.

I believe the 2013 decision had stated the jurisprudence correctly.

The 2017 decision, which is decision of a divided court (4-2) departs from the previous jurisprudence of the court by substantially lowering the standard of proof and shifting the burden of proof in electoral disputes. 

I believe that the new ruling by the court alters the jurisprudence as to the circumstances in which an election of a president-elect will be invalidated.

It goes further than any court in the commonwealth has ever decided on such an issue.

In my opinion, it creates a problematic jurisprudence if it is to be applied in respect of all future elections, and if it, as it should, be binding on all inferior courts that are expecting to finalise pending election petitions. 

5. Sir, there is the problem of retired teachers of 1997. What is the legal position on the release of their rightful dues?

Ronald Karanja

The High Court in Nakuru (HCCC 65 of 2006) ordered and directed the Teachers Service Commission to liaise with the Pensions Department and calculate the pensions of the retired teachers based on what they would have earned had their salaries been enhanced in accordance with the 1997 agreement between the teachers union and the Government. Several appeals against the order by the High Court were filed by the government but were not successful.

The government through the Director of Pensions is complying with the court judgement.

The Director of Pensions has been paying pensions to the retired teachers according to the year they retired and is constantly reporting to the court on progress.

Teachers who retired in 1997, 1998 and some who retired in 1999 have been paid the re-calculated pensions directly into their bank accounts.

The process is still ongoing until all affected retired teachers are paid their pension.

6. Most universities in Kenya, particularly Kenyatta University, have discontinued over 2,000 students from studying mainly because of alleged exam malpractices. Doesn’t such an action violate Kenyans right to access education? Can’t your office advise the universities on alternative disciplinary mechanisms rather than discontinuation, which in every respect destroys a student’s life?

Arap Moitaleel Kiplangat, Narok

The Constitution does provide that every person has a right to education, however, with rights comes responsibilities, and should a person abuse that right, it can be taken away from them.

As students get admitted into learning institutions, they sign a code of conduct and agree to be bound by such codes of conduct.

To this end, universities have in place Disciplinary Committees to deal with exam malpractices.

Penalties for such malpractices are also laid out and, I believe, are within the students’ knowledge.

Bearing in mind ripple effect of consequences attached to exam malpractices, as long as the procedure is followed and fair administration is observed, then the Disciplinary Committees so established are empowered to act in accordance to the regulations laid out.

7. Is there a possibility that someone could be called to account for the billions of shillings spent in a repeat election if the opposition makes good its threat on the conduct of the same on October 26?

Joseph Mwangi, Nairobi

A fresh election is a constitutional imperative under Article 140(3) of the Constitution in a situation where the Supreme Court determines the election of the President elect to be invalid as in this case.

Accordingly, expending public money, expressly approved under Chapter 12 of the Constitution and in accordance with the Public Finance Management Act is the ultimate price of democracy.

8. Lately there has been a lot of talk around secession. How legally difficult or easy can this be?

Joseph Mwangi, Nairobi

Our Constitution provides that Kenya is one sovereign indivisible nation.

Secession would involve altering the territorial boundaries of the Republic of Kenya, which must involve a referendum in terms of Article 225 of the Constitution.

The Constitution of Kenya recognises that the territory of Kenya may be altered, this implies that the territory may either increase or decrease.

Either way, the only way to alter the territory of Kenya whether by secession or otherwise is to ensure that a referendum is conducted.

9. Your critics often see you and your office as an extension of the ruling party and not the head of judicious legal practice. What is you take on this?

Benard Nyang’ondi, Mombasa

The office of the Attorney-General requires that the holder of that office advises the government of the day on all legal matters, defend and protect the rule of law and the public interest.

The holder of the office is expected to undertake the job to the highest professional and ethical standards consistent with the oath of office.

It is untrue to suggest that in the numerous assignments conducted by my office, we have in any way aligned the mandate of the office with that of the ruling party.

On the contrary, even my worst critics concede that there have been sustained efforts to professionalise the mandate of the office.

This is manifest in the level of professional representation before the Supreme Court, national courts, international courts and tribunals and the quality of legal opinions to government ministries and departments, which courts have upheld on numerous occasions.

10. What are you doing to ensure that the majority and minority in government uphold the rule of law?

Stephen Koome, Nairobi

The role of the Attorney-General is largely advisory and we work very closely with government ministries and departments to ensure that there is strict adherence to the law.

We work very closely with Parliament, which includes both the government and opposition in the drafting of bills and we render opinions on many issues before it.

Our work doesn’t discriminate between the various institutions.

11. After the Supreme Court ruling, the President openly expressed his displeasure and allegedly used words that were unwarranted towards the head of an independent Arm of Government. Many feel you failed to advice the president accordingly. What is your reaction?

Komen Moris, Eldoret

I am not familiar with that matter and as such I would not want to comment on something not within my knowledge.

12. The bribery case against Justice (rtd) Tunoi brought to the fore the fear of many about integrity of our judicial officers.

After the Supreme Court ruling on the election petition, the political class mounted attacks on the judges both in the majority ruling and those who dissented.

It seems we are back to the days when ‘why hire a lawyer, when you can buy a judge!’ was the order of the day. What is your taken on this?

Komen Moris, Eldoret

Corruption remains a problem in many public institutions including the Judiciary, however, it is my considered opinion that allegations of bribery in the Judiciary must be approached on a case to case basis based on a specific allegation raised in each case rather than a generalised condemnation of the institution.

In the last 20 years, there have been two major processes to remove corrupt and incompetent judges from the judiciary.

This process is ongoing. The JSC is proactive in investigating cases and taking appropriate disciplinary steps regarding cases of corruption.

Indeed in the course of this year one judge has been removed on the recommendation of a judicial panel.

13. To what extent have you engaged private advocates to represent your office in cases in courts since your appointment in 2011 and how did you settle on the lawyers that you picked?

Githuku Mungai, Nairobi

The Attorney-General has the exclusive mandate to represent the national government in court or in any other legal proceedings to which the national government is a party, be it in national courts or international courts.

Given the capacity constraints at the Office, the Attorney-General from time to time outsources the legal services to private counsel.

Where this happens the Attorney-General considers competence, value for money and the development of local capacity to handle complex matters in future. 

14. Would you consider taking up the office of Chief Justice should it fall vacant?

Wafula Bukembe, Nambale

Presently, all my energies are focused on my current job.

15. Around the time during the referendum campaigns for the 2010 Constitution there was a talk that the document was not 100 percent perfect and that Kenyans, through a referendum, would be given a chance to participate perfecting it after the promulgation. Is this issue still on or has been shelved permanently?

Francis Njuguna, Kibichoi

The constitution itself recognised that it was not perfect and gave two procedures for amending it.

The first procedure is through Parliamentary Initiative and there have been numerous attempts to make amendments to the Constitution, for example the two thirds gender rule.

But none of these parliamentary initiatives have seen the light of day, as the threshold is high, in that, it has to be passed by two-thirds of all members of parliament. 

The second, is through Popular Initiative. Under the popular initiative, amendments may be proposed by a petition signed by at least one million registered voters.

DRAFT BILL

The petition takes the form of general suggestions or formulated draft bill by the promoters.

The signatures and the draft bill shall then be presented to the Independent Electoral and Boundaries Commission (IEBC) for verification.

If IEBC is satisfied that the one million signatures threshold has been attained, it shall then submit the draft bill to each county assembly for consideration.

If the draft bill is approved by a majority of the county assemblies – at least 24 county assemblies, it shall be introduced to parliament.

The Bill would pass if supported by the majority of members in both houses.

REFERENDUM

However, if parliament fails to pass the bill, Article 257 (10) provides that the Bill shall then be submitted to the people for referendum.

This is what Coalition for Reform and Democracy (CORD) and the Council of Governors attempted to do in 2014, where they had proposed amendments on provisions of the constitution dealing devolution, land, security, electoral system and inclusivity in government while the Council of Governors wanted to increase funds for the county governments, dubbed ‘Pesa Mashinani’.

The referendum process is to amend the articles of the Constitution that relate to the supremacy of the Constitution, the territory of Kenya, the sovereignty of the people, the national values and principles of governance referred to in Article 10 (2) (a) to (d), the Bill of Rights, the term of office of the President, the independence of the judiciary and the commissions and independent offices to which Chapter Fifteen applies, the functions of parliament; the objects, principles and structure of devolved government; or Chapter 16of the Constitution.

In my opinion the dialogue as to whether the constitution should be changed is still in the court of public opinion and therefore nothing has been shelved as nothing has been commenced.

16. The Kenyan constitution is costing a lot when it comes to appointing of women MCAs in their hundreds, which I find unreasonable. For how long will the taxpayer continue being burdened by this constitutional provision?

Githuku Mungai, Nairobi

The constitution requires that not more than two-thirds of the members of any county assembly or county executive committee shall be of the same gender.

Where the same is not met through elections, top up through nominations must be done.

We need civic education to sensitize Kenyans so as to elect women leaders so as to reduce the burden arising from the top up.

17. How comes your office prepared Bills that the courts later said were inconsistent with the Constitution?

An example was the Security Laws (Amendment) Act, parts of which the High Court declared unconstitutional.

Is it because you were in a hurry to have them passed? Were you playing to the political whims at the expense of legal reasoning or it was a 50-50 situation that could be read either way?

John Momanyi, Nairobi

After the 2010 Constitution, the business of drafting legislation shifted to the National Assembly and the Senate.

All these laws that are complained of were drafted by the relevant parliamentary committees themselves.

The Office of the Attorney-General and Parliament are strengthening the working relationship surrounding the drafting of laws so that we have a cooperative process that improves the quality of drafting and the laws.

18. Jubilee Party wants to have some judges removed from office. They plan to use petitions, motions through Parliament or even a Commission of Inquiry. What is the possibility of these working considering judges enjoy tenure of office and do not act for the executive?

Leo Odhiambo, Rarieda

Article 159 of the Constitution establishes the judiciary and vests in it judicial authority under 159(1).

The independence of the judiciary as an arm of government is protected by Article 160 of the Constitution, which provides that the exercise of judicial authority by the judiciary shall be subject only to the constitution and the law and shall not be subject to the control or direction of any person or authority.

JUDGES
The Constitution is clear on the process of removing a judge of a superior court.

It sets out the grounds for the removal of a judge, which include inability to perform the functions of the office arising from mental or physical incapacity; a breach of the code of conduct prescribed for judges of the superior courts by an Act of Parliament; bankruptcy; incompetence or gross misconduct or misbehaviour.

The removal of a judge maybe initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission.

The Judicial Service Commission shall consider the petition and, if it is satisfied that the petition discloses a ground for removal it will send the petition to the President.

TRIBUNAL

The President shall, will 14 days after receiving the petition, suspend the judge from office and, acting in accordance with the recommendation of the Judicial Service Commission in the case of the Chief Justice, appoint a tribunal consisting of the Speaker of the National Assembly, as chairperson, three superior court judges from common-law jurisdictions, one advocate of 15 years standing, two other persons with experience in public affairs; or in the case of a judge other than the Chief Justice, appoint a tribunal consisting of a chairperson and three other members from among persons who hold or have held office as a judge of a superior court, or who are qualified to be appointed as such but who, in either case, have not been members of the Judicial Service Commission at any time within the immediately preceding three years.

The tribunal then inquires into the matter and makes recommendations to the President.

The judge who is the subject of an inquiry may lodge an appeal to the Supreme Court upon receipt of the tribunal’s recommendations, effectively halting any action the President would have taken until after the appeal is heard and determined.

Thereafter, the president is bound by the Supreme Court’s decision.

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