Prof Githu Muigai does not have what it takes to become CJ

Willy Mutunga’s term as Chief Justice ends in just a matter of weeks. Talk in the legal profession is that Prof Githu Muigai, the Attorney General, is an early candidate to replace him.

It is even rumoured that Prof Muigai commands bipartisan support; opposition leader Raila Odinga is said to be an admirer. Yet a cursory peek into Prof Githu Muigai’s record as attorney general must surely rule him out.

Notwithstanding solid academic credentials and great powers of eloquence, his performance has been so appalling he shouldn’t even get a look in. He has shown neither spine nor ability or desire to stand on principle. When he has appeared in court, his positions have been retrogressive and generally meant to undermine the Constitution.

His advice on legal matters has been inept, often letting the President sign patently unconstitutional laws that are then promptly ruled so by the courts.

Police impunity has grown under his watch and human rights violations are on the rise again. All considered, Prof Muigai must rank as one of the worst performing Attorneys General in Kenya’s history, perhaps outranked only by the hapless Mathew Guy Muli, memorably christened ‘the confused AG’ and an ‘unmitigated disaster’ by the defunct Weekly Review in a devastating cover story in April 1991.

I asked a former AG what he thought of Prof Muigai. He gave me that long withering look that one gives an inept junior and stated, simply, “Githu Muigai is a politician not an attorney general.”

In the spirit of a savvy politico, Prof Muigai has been a bit like a stealth bomber, flying silent and invisible and emerging only on occasion to curry favour by strafing the president’s opponents with colourful verbal artillery.

These are not qualities for a high judicial career. More substantively, though, Prof Muigai’s lack of a principled stand on any constitutional issue with which he has been involved must surely undermine his candidacy. When he has had a chance to protect public interest he has demurred. When the constitution is under attack, he has been invisible.

ELECTORAL ILLEGALITIES

His first outing was as amicus curiae in the 2013 presidential election petition where he successfully urged the Supreme Court to adopt backward, military-era case law from Nigeria to pervert both the law on electoral illegalities and the standard of proof in election petitions.

Saying the legal burden was “well exemplified” in these Nigerian cases, the Supreme Court agreed with Prof Muigai that a petitioner must not only prove that an electoral illegality has occurred but also that illegality has “affected the result.” In short, the petitioner must first prove an illegality has happened and, then, crucially, also show that without that illegality, someone other than declared winner would have taken the election.

On the standard of proof, the court flailed endlessly, saying first that the appropriate standard should be above a “balance of probability” but below “beyond reasonable doubt,” that is, an in-between standard between what is expected in a civil suit and that in a criminal case. A few paragraphs later, though, the judges resiled from this position, confidently asserting that in some data-specific contexts -- whatever that means -- a petitioner must provide proof beyond reasonable doubt.

On the first point -- what a petitioner needs to prove -- the Supreme Court was simply wrong: illegality is an independent ground of electoral invalidity. A fact recognized in more progressive Nigerian case-law, readily accessible to the court. The point is that if an electoral illegality has been committed, the election is invalid whether that illegality affected the result or not. On the second point - the standard of proof - the Supreme Court was incoherent:

Election results are either/or contests -- one wins or loses. There are no intermediate positions. Why then should it matter that the winning threshold is expressed in statistically exact terms -- 50 per cent plus one, for example - or in more general terms - say, simple majority vote? Numerical specificity - 50 per cent plus one - should not change the standard of proof.

And then there is Prof Muigai’s involvement in the Supreme Court’s advisory opinion on the division of revenue bill where he pitched camp with those trying to defeat devolution.

He wanted to persuade the court that the Division of Revenue Bill -- which the National Assembly had unconstitutionally passed without involvement of the Senate and then submitted to the President for assent -- was wholly within the exclusive legislative domain of the National Assembly.

He told the court that “the Senate had very little legislative competence” arguing, implausibly, that the Division of Revenue Bill was not a bill “concerning counties.” In his view, the National Assembly “represented the people of Kenya in their full range.”

The court disagreed and held that a bill with “provisions that deal with the equitable sharing of revenue” would “certainly affect the functioning of county government.” It noted that improper design of such a bill would inevitably make it hard for counties “to exercise their powers” and “discharge their functions.”
Then there is Prof Muigai’s performance at the ICC. He saw his role there as that of defending the interests of the accused rather than pursuing the interests of the republic.

Though these cases eventually collapsed, it was not because the accused were found innocent but because there was so little evidence to go on, arising from blatant witness tampering and intimidation. The presiding judge, Chile Eboe-Osuji, could well have declared a mistrial. He lamented that these cases were characterized by “troubling incidences of witness interference and intolerable political meddling”.

Most witnesses, in fact, had recanted their testimony. Some disappeared, perhaps dead. The government claimed to be co-operating with the ICC but mostly, aided by Prof Muigai, it was doing all it could to collapse the cases.

CYNICAL AND DISINGENUOUS

When he turned up at The Hague, part of Prof Muigai’s argument - cynical and disingenuous in equal measure - was that his office could not effect the ICC’s witness summons if the witnesses themselves did not wish to testify. That is the kind of nonsense that gives lawyers a bad name. Court summons are not optional: a witness summoned by a court must turn up. Period.

The AG deflected the ICC’s enquiry by hiding behind the hypothetical question whether President Obama or some other head of state could be summoned. The truth is that the kind of witnesses the ICC had in mind here were not in the diplomatic category.

The ICC has since asked that three Kenyans - Walter Barasa, Paul Gicheru and Philip Kipkoech Bett – be handed over for “witness tampering”. Githu now argues “Kenya’s position” is that since “the charges against the three suspects are crimes that fall within Kenya’s normal criminal justice jurisdiction” they are cases that can be “effectively prosecuted and adjudicated domestically.”

Is it an accident that Prof Muigai said this barely a week after President Uhuru Kenyatta had declared that no other Kenyan would ever be surrendered to the ICC? Don’t hold your breath, none of these three men is ever likely to be indicted in Kenya, not even if the ICC prosecutor, Fatou Bensouda, hands over all the evidence of tampering that she now holds. Is Prof Muigai giving or receiving advice from the President in this case?

His record on other matters is no better. On constitutional questions, he has spectacularly failed to give proper advice. Last year, Prof Yash Ghai (left) chronicled Prof Muigai’s failures: Disrespect for the Constitution through deliberate accumulation of powers he does not have and immunizing his officers from law suits; failing to effectively defend Kenya’s interests in the suit filed by the crooks behind Anglo-Leasing and then advising the government to pay them once Kenya lost the case.

UNCONSTITUTIONAL LAWS

Ghai also lists eviction cases involving the AG’s office that were incompetently defended and court orders that were disobeyed. Too many times, the AG’s has misadvised the government – on the appointment of the Justice Tunoi tribunal and on the president’s duty to obey court orders, including scandalously, the president’s decision, after the Garissa attack, to send police recruits - whose recruitment the court had ruled unlawful - for training.

In addition, the president routinely signs unconstitutional laws, presumably on Githu’s advice: the first Division of Revenue Bill; the eight provisions of the Security Law Amendment Act (SLAA) and the recent amendments to the Judicial Service Act which have just been thrown out by the court.

On human rights issues, Prof Ghai says that the Attorney General has refused to enforce decisions of African human rights courts or tribunals.

Based on this record, Prof Muigai does not have what it takes to be the chief justice. As the Supreme Court of Canada has said, a judge - and more so the chief justice - is “the pillar of our entire justice system.” The public expects a chief justice to be “virtually irreproachable”, to have the courage of his convictions and to stand on principle even when contrary winds blow.

Prof Muigai has fallen desperately short of that lofty standard in the way that he has run the office of Attorney General.

Mr Maina is a constitutional lawyer. [email protected]