Will solicitor-general weather latest storm?

The fate of long-serving powerful solicitor-general Wanjuki Muchemi hangs in the balance with only two months to go on his third three-year contract term.

Mr Muchemi’s nine-year tenure at the State Law Office comes to an end in May, but the Sunday Nation has learnt that he is lobbying for a contract extension that will likely see him through to the end of President Kibaki’s term.

However, Mr Muchemi is up against equally powerful forces who are stridently opposed to the extension and are pushing for a fresh face to push forward the reform process at the SLO.

“Since he joined government the same time with the President, he feels that they should retire together. But some other people feel he should give way to new blood,” said a confidential source at the State Law Office.

Mr Muchemi did not honour a personal promise he made to the Sunday Nation three weeks ago for a face-to-face interview, even though he still promised to do so as late as Friday.

Nonetheless, Mr Muchemi occupies one of the most powerful offices in the land but one whose functions are least understood by many Kenyans.

The SG is the chief accounting officer at the State Law Office. Put differently, the SG is the equivalent of a permanent secretary only with a different title.

Under him are different departments such as that of the Registrar General, Public Trustee, Parliamentary Drafting and the Treaties and Agreements which handles all government agreements including commercial contracts.

Though it falls under the office of the Attorney-General, historically occupants of the office of the SG end up wielding enormous clout mainly due to political patronage and the attention the office draws from the powers that be.

When Kanu was defeated by Narc in the 2002 General Election, one of the areas it targeted for early reforms was the Judiciary which, in time, had acted more like an appendage of the Executive rather than the independent body it was supposed to be.

One of the first steps the then Justice and Constitutional Affairs minister Kiraitu Murungi took to penetrate the entrenched corruption networks in the Judiciary was to remove the auditing function from the SG and give it to the permanent secretary in his ministry.

In May 2003, the then SG, Mr Julius Kandie, was appointed Kenya’s Ambassador to Vienna, Austria, and Mr Muchemi, who replaced him, promptly saw to it that the auditing functions were restored to his office.

Like his predecessors, Mr Muchemi’s term has not been without controversy. He has had highly publicised differences with some of the senior officials at the SLO. Only recently he had a spat with his boss, Attorney-General Prof Githu Muigai, over redeployment of four state counsel to the ministry of Foreign Affairs.

The AG transferred the four officials on request by the Foreign Affairs ministry only for Mr Muchemi to decline to pay their salaries. He argued that they had “proceeded on transfer without official release,” and said the Foreign ministry should pay their salaries.

In a terse response to a human resource officer who stopped the salaries on orders from Mr Muchemi, the AG wrote that “I consider this an act of gross insubordination and demand its immediate withdrawal and an apology rendered to me forthwith”.

He continued: “As long as I serve in the Office of the Attorney-General, I have no intention to cede my constitutional authority to you or any other person save as I may from time to time direct in writing.” The issue is yet to be resolved.

Explaining the tough tone he adopted, a close confidant of the AG said he is racing against time to initiate meaningful reforms within the State Law Office before the next General Election.

Under the new Constitution, the AG does not enjoy security of tenure and serves at the pleasure of the President. “He is hoping that whatever reforms he will initiate will convince the next government to retain him,” said our source who has known both Prof Muigai and Mr Muchemi for a long time.

Mr Muchemi’s current tiff with his boss calls to mind the turf wars he fought with former director of public prosecutions Philip Murgor which sometimes bordered on the personal.

Although both were appointed in May 2003 as part of the team Narc was depending on to carry out the much needed reforms, it was soon evident that the two could not work together.

Over the three-year period he was in charge of public prosecutions, Mr Murgor repeatedly accused Mr Muchemi of undermining him. He complained that he was encroaching into his professional territory, interfering with the staffing at the office of the DPP and undermining investigations into sensitive cases.

In several letters seen by the Sunday Nation, Mr Murgor complained that Mr Muchemi was irregularly giving officials under him duties he had not sanctioned and refusing to release funds for some of the reform programmes he had initiated.

In October 2004, he complained to the then AG Amos Wako that Mr Muchemi was trying to subvert him by introducing a new organisational structure which would have effectively placed the office of the DPP under the office of the Solicitor General.

“The solicitor general has persisted in usurping and undermining my authority as the Head of Department. He has continued to directly appoint my officers to attend seminars without notifying or clearing with me,” Mr Murgor complained.

He was protesting at a decision by Mr Muchemi to send Mr Oriri Onyango, then assistant DPP, to accompany anti-narcotics police investigators to the Netherlands without involving him. Mr Murgor contends this was meant to interfere with investigations.

“By this time the prosecution and the investigation of the case is already in a shambles. The investigations file is yet to be received. As matters stand the presence of Oriri in the prosecution is simply meant to rubberstamp a fundamentally flawed process.”

On the other hand, in October 2004, Mr Murgor complained that Mr Muchemi had declined to facilitate a trip to Switzerland for a state counsel who was at the time investigating the Anglo Leasing scandal that touched on the careers of some of the powerful individuals around President Kibaki.

At the height of their wars in 2004, Mr Murgor wrote bitterly to President Kibaki. “I have to contend with the total sabotage of my department’s reform and restructuring programmes by the serving Solicitor General.”

Mr Murgor was edged out in May 2005. But turf wars continued between Mr Muchemi and Mr Murgor’s successor, Mr Keriako Tobiko. In October 2005, Mr Tobiko complained that Mr Muchemi had sent Mr Onyango to an international conference without consulting him.

“I take the unilateral decision by your office to nominate an officer from my department without any prior consultation with or reference to me not only as an act of gross discourtesy but also as an attempt to interfere with the ability of this department to discharge its professional functions,” he wrote to Mr Muchemi.

In February 2008, Mr Muchemi was once again in the news after he fired his personal assistant, Mr Apollo Mboya. Mr Muchemi claimed insubordination but Mr Mboya said the move was ethnically motivated.

Recently the Nairobi Law Monthly magazine accused Mr Muchemi with other senior officials of KenGen Company of irregularly approving a geothermal drilling contract for a Chinese company.

Although documents seen by the Sunday Nation indicate that KenGen did not consult the SLO during the negotiations as required by law, Mr Muchemi nonetheless gave his go-ahead. Prior to this, he had been accused of a conflict of interest in a case between Kenya Pipeline Company and Triple A, a company involved in the Triton oil scandal, where the two parties were accusing each other of contract violation.

Letters in our possession indicate that Mr Muchemi referred the matter to arbitration against the advice of KPC lawyers who had argued that an arbitrator could not sit in judgment over a case that had assumed a criminal nature.

Despite the controversies, Mr Muchemi will likely cite the rather surprise ranking of the SLO as the best government department in performance contracting evaluation for the public service in the 2010 as one of his greatest achievements.

The previous year the SLO had ranked second last in the ratings and together with the Judiciary in general, was seen by most Kenyans as a den of corruption and masters of red tape.

In another life, Mr Muchemi has dabbled in politics. In the 2002 General Election, he lost the Tetu Narc parliamentary nomination to Nobel laureate Prof Wangari Maathai.