I have no problem with Prof Makau Mutua's endorsement of Betty Murungi as Kenya's next Attorney-General (Why Betty Murungi should be the next attorney-general, Sunday Nation, July 24, 2011), but I have a problem in the manner he describes the A-G's role in governance. He states that "the A-G will be the principal legal advisor to the state. In that position, the A-G will play a key role in the reform of the state. That's why the next A-G must be someone who understands - and fully internalises - the principles, values and diktats of the new Constitution." Prof Mutua is right regarding the need for the next A-G to be wedded fully to the principles that underpin the Constitution, but he is wrong regarding the role the next A-G will play in reforming the state.
It is in the A-G's job description in the Constitution that his role is defined. As the principal advisor to the government (not the State, as Prof Mutua alleges), the A-G is duty-bound to offer the three arms of government the best advice he can regarding the discharge of their duties and their place in the implementation of the Constitution and how to exercise their powers. The Constitution does not compel state officers to obey the advice of the A-G; it merely states that A-G shall be their principal legal advisor. What they choose to do with that advice is for them to decide. If the next A-G were to heed Prof Mutua's call there will be a high turn-over of A-Gs as numerous situations will arise where the A-G's advise is ignored, leaving him only with the choice of resigning in protest.
Amos Wako's twenty-year tenure is being held up as an example of a failed reign. He is accused, even by Prof Mutua, of being the epitome of impunity. This is a debate that Mr Wako's supporters will lose, especially given the failed or lucklustre prosecution of perpetrators of grand corruption such as the Goldenberg scam, the Triton scam and the Anglo-Leasing scam. But, Mr Wako's remit extended beyond public prosecution. As the principal legal advisor to both President Moi's and President Kibaki's governments, Mr Wako has advised the two presidents on numerous occasions on diverse subjects, from foreign relations to commercial transactions. No one has done an assessment of the quality of advice the A-G has offered the government in this period and whether this advice has had a salutary effect on the operations of the government or whether it has been responsible for the decline of the power and effectiveness of government.
In the implementation of the Constitution, the role of the A-G is set to grow. In addition to being an outstanding legal practitioner, the next A-G must demonstrate political skills to rival those of the politicians and state officers he will be advising. If the A-G takes the position that only his advice should be heeded regarding the manner in which the Constitution is implemented, he will be an abject failure and will no doubt lose his job faster than he could say 'impunity'.
The government is being reformed, but this reform will not occur in a day, a month or a year. It will be an on-going long term process and the A-G must be capable of adapting to changing circumstances and compromising when necessary. His advice must enable the three arms of government to function at their best. If his advice is progressive, and if it is presented in the most politically advantageous manner, it will be accepted and respected. If it is delivered in a manner that suggests that it is the only viable advice the government is to receive, it will be ignored, or worse still, challenged.
We must be cautious whom we allow to be appointed the next A-G. International respect is not the only unique selling point for the A-G's qualification; after all, the Wako that is being lampooned by all and sundry, enjoyed a similar international reputation when he was appointed. The A-G must be able to persuade the government, especially the President and the Members of Parliament, that the advice he is giving them is not only good for the nation, but good for them too. It is the only way the A-G can be effective in progressively reforming the state.
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