Kenyans have in the past few weeks witnessed a myriad of lamentations from the Chief Justice decrying attempts by the executive to undermine the judiciary. The executive in quick rejoinder dispatched the Attorney General armed with a rebuttal to set the record straight on a number of issues raised by the Chief Justice. Key among these issues is the failure by the president to appoint forty one judges competitively recruited by the Judicial Service Commission and wanton disobedience of court orders by the executive. The Attorney General has consequently come under sharp criticism with some sections of the public condemning his attitude in addressing the concerns aired by the Chief Justice.
The Law Society of Kenya (LSK) notably came out hammer and tongs accusing the Attorney General of ill-advising and aiding the executive in a manner that interferes with judicial independence and access to justice. It is against this backdrop that the LSK backed by the Senior Counsel Committee proposes to expel the AG, Paul Kihara Kariuki and Solicitor General, Ken Ogeto from the society and expunge their names from the Roll of Advocates. The AG has reiterated that the failure to appoint the judges is as a result of integrity questions on some of the shortlisted applicants which the executive cannot overlook. Of particular concern to many is the fact that AG Kariuki sat in the Judicial Service Commission that vetted and approved the nominees.
The Office of the Attorney General is established under Article 156 of the Constitution of Kenya, 2010. The AG is nominated and appointed by the president with approval of parliament. He serves as the principal legal advisor to the government and represents the government in legal proceedings other than criminal proceedings. The constitution obligates the AG to promote, protect and uphold the rule of law and defend the public interest. It is imperative to note that the Attorney General’s office thus places the holder in an intricate position portending a delicate balance of competing interests.
Paula K. Maquire in, ‘The Attorney General: Political Loyalty v. Professional Responsibility – The Ethical Challenge in Serving Three Masters’1 asserts that the Attorney General represents a tripartite set of interests in the performance of his lawyering functions. There are the interests of the particular client (head of state), the broader interests of the State, and the interests of the public which often are in conflict with one another. As a result, the Attorney General’s office is responsive to all three branches of government in fulfilling his various responsibilities, comparable to serving the proverbial “three masters” -the President, the legislature and the Judiciary.2 It is from these competing interests that the complexities arise in the office of the AG.
A “political officer” charged with legal duties The constitution clearly sets out the qualifications for the office of the AG. Scholars nevertheless assert that by virtue of him/her being a political appointee, it is primarily important that the appointee be a person in whom the President may place total confidence. It would seem that loyalty is a key consideration in the selection of the AG not only in Kenya but also in perceived progressive jurisdictions such as the United States. Historically, it is so common a tendency to appoint friends and supporters to be attorneys general.
As the first AG of post-independence Kenya, Charles Njonjo’s powerful seventeen-year tenure is greatly attributed to his perceived loyalty and closeness to both Presidents Kenyatta and Moi. His loyalty to president Moi would make him a proponent of unpopular ideals advanced by his boss such as supporting the apartheid regime in South Africa.3 Similarly, US presidents have traditionally appointed close acquaintances such as campaign managers to be attorneys general of the United States. President John F. Kennedy appointed his brother Robert Kennedy as AG albeit being widely criticized as being unqualified for the job.4 President Donald Trump’s tenure perhaps symbolizes the modern day entanglement of an Attorney General. Sally Yates, who was acting Attorney General at the onset of Trump’s presidency was fired after she declined to defend Trump’s executive order banning refugees from entry into the United States. She advanced two reasons for her refusal; first, she considered it unwise since the order was not consistent with the institution’s solemn obligation to always seek justice and stand for what is right. Second, she thought it unlawful.5
Interestingly, upon his confirmation as Attorney General, Jeff Sessions in a rejoinder expressed support for the executive order terming it lawful and consistent with core principles of the Constitution. A former senator, Sessions’s nomination as Attorney General was seen as a reward for his endorsement of President Trump’s 2016 campaign.
“The only reason I gave him the job,” Trump said, “was because I felt loyalty. He was an original supporter. He was on the campaign sessions’s decision to recuse himself from the Mueller investigation whose focus is on the alleged Russian interference in the 2016 US election, marked the beginning of a strained relationship with Trump culminating in his resignation as Attorney General. He was replaced with Matthew Whitaker, who had openly opposed the Mueller investigation in acting capacity. Fast forward to December 2018, William P. Barr, a Republican lawyer and former Attorney General was nominated by Trump and is the current Attorney General.
Initially viewed as being highly qualified and experienced to steer the Department of Justice, Barr has since been labelled an enabler and accomplice of systematic political interference threatening the constitutionally safeguarded principle of equality before the law. In an apparent demonstration of his loyalty to the president over the nation, Barr’s short tenure has been marred by whimsical application of the law and unprecedented political interference at the Department of Justice designed to protect cronies in bad books with the law.
Barr’s intervention in the case of Roger Stone, a Trump crony, saw him manipulate his junior staff to review the recommended seven to nine years prison term for a lesser sentence for Stone who had been convicted for among other felonies witness tampering and obstruction of justice. The conviction had been blasted by President Trump in a series of tweets terming it ‘a horrible miscarriage of justice’. This intervention in the Stone case prompted the withdrawal of four prosecutors, resignation of a US attorney and a cautionary warning from a federal judge on the independence of the courts.7 In yet another brazen attempt to politicize the justice department, Barr recently wrote to the congress requesting emergency powers. The proposal sought to empower the Attorney General to petition individual judges at the district court level to indefinitely suspend certain court proceedings thereby giving his department wide discretion to delay court appearances of certain arrested individuals. Observers view this as an attempt of using the office of the Attorney General to circumvent constitutional protections that guarantee a speedy public trial.8 Congress has since rejected the proposal.
Despite the inevitable intricacies, pundits and legal observers have pointed out that the role of the attorney general is diversely defined by its occupants. Whereas some have served as close political allies of the president, others have acted primarily as defenders of the rule of law.9 The Attorney General must therefore stay alive to the fact that the office he holds is not political, but strictly legal and should at all times strive to uphold the rule of law and resist all attempts to undermine it from whatever quarter. Suffice to say, the Attorney General’s recent performance portends a threat to the rule of law which he undertook to safeguard. He should be tactfully judicious so that his advancement of presidential policies is not detrimental to the rule of law.
Senator Patrick Leahy, former Chairman of the United States Senate Judiciary Committee quips:
Both the President and the Nation are best served by an Attorney General who gives sound advice and takes responsible action, without regard to political considerations — not one who develops legalistic loopholes to serve the ends of a particular administration. The Attorney General cannot interpret our laws to mean whatever the current President wants them to mean. The Attorney General is supposed to represent all of the American people, not just one of them.10
Isahi M. Fred is an Advocate trainee at the Kenya School of Law and can be reached at: email@example.com