Nyachae and Githu clash over new laws

A war of words has erupted between the commission charged with implementing the Constitution and the Attorney General.

The Commission for the Implementation of the Constitutions (CIC) accused Attorney General Githu Muigai of disregarding Article 261 of the Constitution, which requires him to consult the commission before tabling Bills in Parliament.

“These violations present a major challenge to the legislation process,” Mr Nyachae said at a press conference on Thursday.

He added: “As the primary advisor to the government and having taken an oath of office to obey, respect and uphold the Constitution, the AG needs to be at the forefront in advising adherence to the Constitution in letter and spirit.”

He accused the AG of subjugating his opinions to those of other organs of the government, “even where those organs maybe acting in breach of the constitution”.

Contacted, Prof Muigai termed the allegations as “preposterous”.

“I refuse to be drawn into turf wars. I intend to discharge my constitutional mandate and to remain focused on the substance not form,” said the AG in a phone interview.

Mr Nyachae said the AG’s recent interpretation of the Constitution had proved to be “purely as the implementer of Executive directives regardless of whether or not they promote constitutionalism”.

“His failure to discharge his advisory role faithfully will result in the Executive violating mandatory constitutional provisions that may consequently delay and derail the implementation process,” he said.

Advise government

However, Prof Muigai said it was “absolutely outrageous” to say he had knowledge of advice given between his office and another, unless the correspondence had been copied to them.

“My role is to advise the government and all its bodies in confidence. That is part of the well know tradition of a lawyer and his client,” he said.

Mr Nyachae’s latest tiff with Prof Muigai arose from the President Kibaki’s submission of nominees to the Ethics and Anti-Corruption Commission by to Parliament.

CIC says it had written to the President, Prime Minister Raila Odinga and Speaker Kenneth Marende to express concern that the names were submitted before the House outside the mandatory period as per the Ethics and Anti-Corruption Commission Act.

The Act gives the President powers to extend the period by 21 days.

“If this was not done, then it is our view that any consequential process would, by reason of the violation of the Act, render the process and any resultant appointment a nullity and open to legal challenge,” he said.

Prof Muigai said CIC had been mandated to coordinate and ensure that all organs responsible for the implementation of the Constitution were working together to meet the deadlines.

“It has not been mandated to draft any laws. That remains the responsibility of my office and the Kenya Law Reform Commission working with various ministries,” he said.

And he revealed that as at Thursday, the Ministry of Local Government had submitted to them the Bills on devolution.

“We shall ensure that we ask for their input,” he said.