- It is vigorously opposed by the PSC, which calls it unconstitutional
- AG, nominated by the President, will chair the six-member board; the only other advocate is the president of the LSK
Eyes have shifted to President William Ruto and whether he will assent to a controversial and radical Bill approved by Parliament a week ago.
The Bill, which has been strongly disputed by the Public Commission Service, among other changes, seeks to grant the Attorney General’s office autonomy to select the Solicitor General.
The solicitor general defends laws enacted by Parliament. He decides whether to appeal or accept loss in cases involving the government.
As it stands currently, the President has powers to pick the solicitor general. He refers his choice to Parliament for vetting and subsequent appointment.
A key issue involving the Bill is whether the AG, nominated by the President, can be independent of the Executive.
The Executive as defined in the Constitution is the president, deputy president, Cabinet Secretaries and the AG.
The President has authority over the functions of the office holders including the AG.
The Statute Law (Miscellaneous Amendment) Bill No 68 of 2023 seeks to remove inconsistencies in the operational framework of the AG’s office in line with Article 156 of the Constitution that establishes it as an independent office.
The Bill makes changes to 17 laws which includes the office of the Attorney General Act of 2012.
It amends Sections 13, 21 and 22 of the Act.
The Bill establishes an Advisory Board chaired by the AG that will replace the Public Service commission in the employment of staff function.
The proposed Advisory Board will consist of only six members, with only two advocates, namely the Attorney General and the President of the Law Society of Kenya.
The AG will chair the board, exerting influence in appointments.
That for the Office of the Director of Public Prosecution comprises nine members, including six advocates, ensuring a broader, diverse and more cohesive expertise
This, according to the PSC, defeats the consistent critique by the AG that the PSC lacks the expertise to recruit qualified State Counsel.
PSC chairperson Anthony Muchiri who has strongly protested the Bill questioned whether the AG can maintain independence from the Executive and if the DPP be independent.
He said, “Crucially, unlike the DPP, who operates independently according to Article 157 (10) of the Constitution, the Attorney General, whose office is established under Article 156 of the Constitution is inherently integrated into the national Executive framework. There is no Constitutional provision that gives the Attorney General independence, similar to that of the DPP.”
The proposed amendments, he states, raise concerns about the redistribution of human resource management functions from the commission to the AG.
Muchiri said the Commission is mandated by the Constitution to oversee various aspects of public service management, including recruitment, disciplinary control and ensuring efficiency.
The separation of the AG's office from the commission, he argues, carries significant implications for staff and operations.
“Staff members face choices between transferring to the newly independent office or remaining under the Commission's mandate,” Muchiri said.
Additionally, the AG's authority to deploy officers to State corporations and agencies will be curtailed without prior approval from the commission.
The AG's powers to deploy state counsels to ministries, departments and agencies will also end if the Bill is assented into law.
This is because such positions are to be filled through a competitive process by the PSC.
Muchiri says the amendments completely alter the process of appointing the Solicitor General, shifting responsibility from the President to the AG, raising questions about executive and legislative authority.
Unlike the ODPP which operates independently, that of the AG is inherently integrated into that of the Executive and there is no constitutional provision that gives the office independence.
The challenge now is whether the amendments will stand the test of time without amending the constitution.
Crucially, will the President relinquish the authority to appoint the Solicitor General to the Attorney General?
When he appeared before the Justice and Legal Affairs committee, Attorney General Justin Muturi accused the PSC of overlooking his office in the appointment of deputy solicitors general, state counsels and other staff.
Notably, the amendments empower the AG with significant human resource authority previously held by the PSC.
"The State Law office is understaffed and demoralised. Whenever we want to send the State Counsels to counties to offer services to the people, the PSC always says no. The Cabinet Secretaries are requesting for counsels but then we have a limited number," Muturi said.
Lawyer Peter Wanyama said the amendment are unconstitutional urging the President not to assent to the Bill.
Wanyama said the AG's office remains under the Executive unless the Constitution is amended.
"This is an amendment which undermines the Constitution and the functions of the PSC," he stated.
"We are in fact planning to challenge the Bill in court," he said.
Lawyer Kadet Kiprono supported the amendments, saying this Bill was long overdue.
He said the AG having powers to employ its own staff is a welcome move.