President Kenyatta should hastily move to delink the State Law office from the department of justice. Having a Attorney General who performs cabinet secretarial duties is legally inapposite.
By gatuyu t.j
In recent government reorganization, President Uhuru Kenyatta moved the state Department of Planning and Statistics from the Ministry of Devolution back to the National Treasury. That was an appropriate move. It will centralise the planning and financial management affairs in the country and promote policy efficiency.
What else President Kenyatta needs to do is remove the Department of Justice from the Attorney General’s office and move it to a substantive ministry.
The office of the Attorney General is established under Article 156 of the Constitution as supplemented by the Office of the Attorney General Act 2012. The Attorney General main roles are acting as the principal government lawyer, promoting the rule of law and being a defender of public interest.
However, through the Executive Order No.2 of 2013, the President additionally tasked the Attorney General with discharging the functions of a Cabinet Secretary in relation to the Department of Justice. This means the Attorney General, just like other cabinet secretaries, is responsible for providing policy co-ordination and oversight with regard to various state institutions under the department. Some of these include the Copyright Board, Council of Legal Education, Kenya Law Reform Commission, Kenya School of Law, among others.
Having the Attorney General exercising policy control over state institutions is not a good policy control measure and portends a case of conflict. For how can the Attorney General be expected to offer an independent advice to institutions he superintends? The office of the Attorney General is contemplated to be independent, impartial and sound legal adviser to the national government. It should therefore be devoid of any conflict of interest as is the current set up.
The courts have asserted as much. In the case of George Bala v Attorney General  eKLR, the court held that the Attorney General, although a member of the Cabinet, he is not a Cabinet Secretary and therefore cannot, perform or purport to perform, the functions specifically reserved for a Cabinet Secretary.
The genesis of the case was that the petitioner was dissatisfied with the Attorney General making Regulations mandated to be made by the Cabinet Secretary under various statutes such as the Companies Act, Insolvency Act, Copyright Act, Legal Education Act, among others.
The court observed this was a case of Attorney General performing Cabinet Secretarial duties, while the Cabinet Secretary and the Attorney General are constitutionally supposed to be separate and distinct and thus one person cannot hold the two positions concurrently.
To remedy the effects of this judgement, the Attorney General’s office has embarked on a marathon of generating legislative proposals to substitute Cabinet Secretary with Attorney General in statutes of agencies that Attorney General oversees. This is still a defeatist move and a case of short termism.
It will present a predicament, when the president may in future decides to move an agency within the department of justice, such as Copyright Board, to other ministries. This will compel legislative amendments to revert the powers of making regulations and other policy acts back to a cabinet secretary. It is unhelpful whirlwind.
The best way out is for the president to create a ministry for justice and appoint a substantive Cabinet secretary. The holder of the office of the Attorney General should be left concentrate with core duties of streamlining the functions of the state law office to turn it into a state of the art law firm.
The State Law office has huge mandate including representing the National Government in court and any other legal proceedings. It needs to perform well and reduce the cost taxpayers incur when government agencies outsource for legal services. It needs to create efficiency in service delivery and offer reliable advice to all government agencies.
Therefore, independence of this office needs to be assured. The Attorney General should be freed from ministerial duties as was asserted by the court and policy decisions should be headed by a cabinet secretary. As the new Attorney General takes over from Githu Muigai, we hope the president will review the issue and move the department of justice. This will certainly free the Kihara Kariuki to streamline state law office and deter further legal hurdles.