House may review law on Attorney-General’s job

MPs are mulling over the possibility of amending the Constitution to provide a procedure for the removal an Attorney-General from office.

The members of the Justice and Legal Affairs Committee are grappling with the lacuna in the Constitution which provides for the appointment of the AG but not the removal.

The AG’s office was established under Article 156 of the Constitution. Article 156 (1) says the AG shall be nominated by the President, and if approved by Parliament the nominee gets the job.

However, the office is not listed as a Constitutional Commission, neither is it defined as an Independent Office under Article 248 (2) and (3) of the Constitution. Therefore the procedure for removal in Article 251 cannot be applied.

While the AG is a member of the Cabinet, he is not a Cabinet Secretary. As such the method used to remove a CS cannot be used.

The matter was brought to the attention of Parliament following a petition filed by the Law Society of Kenya (LSK) seeking the removal of Attorney-General Githu Muigai from office on grounds of violation of the Constitution and gross professional misconduct.

Both Prof Muigai and LSK appeared before the Justice and Legal Affairs Committee on Monday.

CONTRACTS

The lawyers presented the petition to the National Assembly in June, urging the House to advise the president to start the process of kicking out the AG on the grounds provided.

Their argument is that the Prof Githu acted unconstitutionally, illegally, in a fraudulent and unprofessional manner in the London Court case of the Anglo-leasing type contracts which saw the government paying Sh1.4 billion to one of the contractors — Universal Satspace LCC of North America.

According to the lawyers, the government’s legal advisor was responsible for the loss as he failed to instruct a competent advocate with expertise in complex commercial litigation matters to represent Kenya in the London courts.

Solicitor-General Njee Muturi represented the government, but the lawyers argue in their petition that he did not have a licence to practice law in England and Wales or to appear before the courts in England which left the government without legal representation.

“He delegated the powers and instructions to the Solicitor-General while aware that he lacked the capacity and expertise and was ill-prepared to deal with such a complex matter,” the lawyers said.

The Attorney-General is also faulted for the legal opinion that the government had no other option other than paying out the Anglo-Leasing cash.