Riddle of solicitor-general’s key role and AG’s lack of firm input

The peripheral role played by the attorney-general in crafting and passing of the security laws has raised eyebrows, even as opposition to the changes continues in court.

When the Security Laws (Amendment) Bill, which has since been assented to by the President, was first brought before the National Assembly two-and-a-half weeks ago, it was apparent AG Githu Muigai, the government’s chief legal adviser, had been overshadowed by Solicitor-General Njee Muturi, his junior in the State Law Office. 

Sources familiar with the intrigues said Mr Muturi played a key role in various meetings, including high-profile ones with the President at State House, and in lobbying for the passage of the law. 

“Njee (Mr Muturi) was all over Parliament running up and down to ensure the Bill sailed through,” Mombasa Senator Hassan Omar said.

The solicitor-general, Mr Omar claimed, had, for all intents and purposes, eclipsed Prof Muigai to become the legal face of the law in public and in private.

While the AG sits in the National Assembly, the solicitor-general does not, but Mr Muturi was within the precincts of Parliament following the proceedings on TV.

CHARM-OFFENSIVE

And days before the acrimonious passage of the laws, Mr Muturi was in charm-offensive mode, granting media interviews on the amendments. To cap it all, it was the solicitor-general who was standing next to the President, alongside House Speaker Justin Muturi, Majority Leader Aden Duale and other officials when the President assented to the law on December 19.

But the solicitor-general has dismissed suggestions that he is overshadowing his boss. He told the Sunday Nation that the formulation and passage of the Bill, now an Act of Parliament, was a joint effort between the State Law Office and the Parliamentary Administration and National Security Committee chaired by Turkana East MP Asman Kamama. He explained that he had only been sent as a representative of the State Law Office.

“It was a joint effort with the committee in order to find ways to fight insecurity. We all do different things. This is a decision we made (with the AG),” Mr Muturi said. He added: “I was sitting with the committee and he (Prof Muigai) was attending another meeting.”

Even then, lack of the AG’s high-profile participation, at least in public, has raised eyebrows. This is even more so since the passage of the controversial amendments. Last Wednesday, Mr Muturi appeared in the High Court to defend the government in a case filed by the opposition Cord against the security laws.

In such high-profile cases, it is often the AG himself who appears and, in his absence, Deputy Solicitor-General Muthoni Kimani or a senior state counsel.  

Earlier that day, it was Mr Muturi, and not Prof Muigai, who accompanied the Chief of Staff and Head of Civil Service Joseph Kinyua, Interior Principal Secretary Monica Juma and Foreign PS Karanja Kibicho in a meeting in Nairobi to brief diplomats on the law after some, particularly the US, spoke out against it.  For some observers, the State Law Office, which is under the AG, is experiencing odd circumstances, with the solicitor-general appearing to overshadow his boss. 

ROLE NOT SURPRISING

According to Ugenya MP David Ochieng (ODM), Mr Muturi’s role is not surprising.

“He was actually whipping Jubilee MPs and seemed very agitated when Cord appeared to overwhelm the government side. Not even once did the AG appear. But one must recognise that Njee has been the President’s personal assistant so he is more than just a solicitor-general,” said Mr Ochieng’.

Before his appointment to the position of solicitor-general last year, Mr Muturi had for long served as President Kenyatta’s personal assistant and political confidant in Kanu and later in TNA. He was picked from a shortlist of 16 applicants for the position to replace Mr Wanjuki Muchemi.

The solicitor-general’s job description is similar to that of a principal secretary in a ministry: being the accounting officer at the AG’s Office. Mr Muturi’s duties include organising, co-coordinating and managing the administrative and legal functions of the office.

For lawyer James Mwamu, the solicitor-general has become the face of the State Law Office. “In my view, Mr Muturi is the substantive attorney-general. It is becoming apparent that Prof Muigai is rarely consulted. Rather, the President listens more to the solicitor-general for legal advice, though the position is not in the constitution,” said Mr Mwamu.

He said Prof Muigai needs to come out and state his position on the security laws given that he is the principal legal adviser to the government. “Mr Muturi has, for long, been at the forefront, including in the making of some unpopular legal decisions by the President. It is time Prof Muigai came out and played his constitutional role,” said Mr Mwamu.

The solicitor-general has traditionally played a behind-the-scenes role with the AG being more prominent. 

STAND FIRM

Senator Omar, a lawyer by profession, agrees with Mr Mwamu that there is more than meets the eye regarding the true situation at the State Law Office.

 “Many people say the President makes reference to Mr Njee and Mr Abdikadir Mohammed (a presidential adviser on constitutional and legislative issues). It is partly because the President and Mr Njee built a relationship outside before they got into government,” said Mr Omar.

The Mombasa Senator added: “He (Mr Muturi) acts like the President’s personal assistant who hardly questions the decisions of his boss. A professional adviser would be expected to stand firm.”

Prof Muigai could not be reached for comment. However, an official at the AG’s office, who is conversant with the goings- on but requested to speak in confidence, said Prof Muigai is always candid in his advice during private meetings — sometimes to the dislike of some powerful individuals. 

“Outside, he will defend the government as any public official would be expected to. But within the government, his views do not sometimes sit easy with the powers-that-be,” he said. 

Being a carry-over from the Mwai Kibaki administration has also not made things smooth for Prof Muigai. His role in defending the government at the International Criminal Court has, however, been appreciated within Jubilee.