The Attorney General – AG of Kenya is the head of the Kenya State Law Office and principal legal adviser to the Government. The AG will represent the national Government in court or other legal proceedings other than criminal ones and perform other functions conferred on the office by Parliament or the President.
The Attorney-General will be nominated and appointed by the President with the approval of the National Assembly. The qualifications for appointment are similar to those of the Chief Justice.
In the old Constitution, the AG is ex-officio Member of Parliament. In the execution of his duties, AG is assisted by the Solicitor-General, the Director of Public Prosecution and State counsel. But in the new Constitution, the Director public Prosecutions is an independent office dealing with criminal matters
The solicitor-General’s office helps the AG to organize, coordinate and manage administrative matters, the legal functions of the State Law office, formulate legal policy and ensure proper administration of the legal system, including professional legal education and human rights issues.
The ofﬁce of the Attorney General in Kenya
The AG’s ofﬁce in Kenya was inherited from the Colonial State Law Ofﬁce then called the Colonial Legal Service.
Its mandate included registration and regulation of district magistrates in Native Reserves.
During World War II the Legal Service was affected as some magistrates had military backgrounds and went to serve in the war, this necessitated the need for Special Magistrates as a wartime measure.
They operated by holding weekly court sessions around the country.
Among those who served as Kenya’s pre-independent Attorney—Generals included WC Haggard (1929), AD MacGregor (1933) and W Harragin (1934).
The ofﬁce of the Attorney-General underwent slow-grinding ‘Africanisation’ as the ﬁrst Attorney-General was himself, the last to be ‘Africanised.’
Today, the Ofﬁce of the Attorney-General and Department of Justice provides legal services to the Government and its agencies, besides ensuring that the country’s legal system provides public and private legal service deliver within the ambit the law.
Attorney General of Kenya and the old Constitution
Under the old Constitution, the Attorney-General was a key member of both the Executive and the Legislature (as an ex-officio member). However, the Constitution of Kenya 2010 makes no mention of the AG’s membership, by right or otherwise, to either House of Parliament.
Other roles of the AG include promoting, protecting, and upholding the rule of law and defending the public interest, sitting in key commissions such as the Judicial Service Commission (JSC) and the Salaries and Remuneration Commission (SRC) as an Ex—Ofﬁcio member, the National Security Council, and the Advisory Committee on the Power of Mercy.
As noted earlier, the new Constitution is rather quiet on the matter of the AG’s direct membership to Parliament. It does, however, require the AG to cooperate with various committees and commissions to ensure the passing of necessary legislation on the implementation of the Constitution.
Tenure of the Attorney General
The holder of the office of the Attorney – General enjoys security of tenure equivalent to that of a Cabinet Secretary and, thus, can only be removed by the President for criminal, unconstitutional, or gross misconduct as determined by a select committee of 11 members of the National Assembly which would present its report to the House for a vote (Article 152 clauses (6)—(10). As a member of the Cabinet, therefore, the AG’s term of service comes to an end only on the appointment of a new Cabinet after a General Election.
Attorney Generals in Kenya since Independence
Charles Mugane Njonjo (1963-1980)
He was Kenya’s first post-independence Attorney General. Born in Kabete in 1920, the son of the Ex-Senior Chief Josiah Njonjo attended Alliance High School and the prestigious Kings College Budo in Uganda.
Njonjo proceeded to Fort Hare University, South Africa, for his BA in law degree, and later Exeter University London School for a diploma course in social anthropology between 1947 and 1950.
He thereafter enrolled for a law degree at Lincoln’s Inn and graduated in 1954.
He worked at the chambers in London before returning to Kenya in 1955.
Njonjo was a Crown Counsel handling cases under Companies and Bankruptcy Ordinance in the Supreme Court as Well as serving as the assistant registrar general up to 1960.
He served as Deputy Director of Public Prosecutions before he was appointed Kenya’s Attorney General, succeeding A.M.F. Webb, QC, in 1963.
Njonjo resigned as Kenya’s attorney General in 1983 and rejoined Parliament as the new Kikuyu MP after incumbent Amos Ng’ang’a stepped down for the Attorney- General who became a disciplinarian renowned for bureaucratic efficiency and supporter of state control.
Njonjo played a pivotal role in the life of a young nation by ensuring that the colonial and conservative Constitution remained.
But he made several changes, including repealing in 1963 colonial laws that had turned the country into the Kenya colony.
He ended capital punishment for rape of a White woman by a black man.
That whites were to be judged by white judges (who had jurors and not assessors as was the case of Africans) was restructured and racially separated courts abolished in 1967.
Colonial passbooks were also replaced by identity cards.
Njonjo made his office powerful by not only being at the centre of political power and decision-making, but also by straddling the police force, legal fraternity and the Civil Service. He incorporated the Criminal Investigations Department (CID) and made it part of his chamber’s criminal prosecution.
He moved the Criminal Law (amendment) Bill 1971 that introduced the death penalty for those found guilty of robbery with violence.
He helped avert a Constitutional crisis when the ended the Change the Constitution lobby group that wanted the law amended to bar a sitting Vice President from automatically succeeding the President upon death or incapacitation.
He tabled amendments to the Marriage and Divorce Law that intended to reduce the number of unmarried women in Kenya by, among others, upholding the equality of Women in marriage.
Njonjo Was feared and loathed as his office gave him powers to initiate and end cases without being subject to higher authority.
Njonjo did not repeal oppressive laws, such as the Public Order Act that restricted Kenyans from assemblies, while the Societies Act led to the enforcement of the sedition laws on ﬂimsy grounds. Media freedom was restricted further weakening the Constitution as a guarantor of individual freedom.
There were no mechanisms of challenging the constitutionality of any legislation enacted under his watch.
Many political dissenters were detained without trial on minor offences as Njonjo retained detention laws and ensured tough prison conditions for inmates.
Kenya became a single-party dictatorship after Njonjo lobbied Parliament to amend the Constitution.
Njonjo issued “shoot on sight” orders regarding criminals to curb escalating cases of bank robberies in 1980.
Several prominent national figures were murdered during his tenure and many of the cases remain unresolved to date.
Through amendments to the Marriage and Divorce Law 1972, he refused to make adultery a criminal offence.
He opposed use of Kiswahili in Parliament, a move that was defeated in the house in 1975 when both Kiswahili and English Were declared official languages.
James Boro Karugu (1980-1981)
He was born in Chura Village, Kabete near Nairobi in 1937. James Boro Karugu went to Mang’u High school and later Ohio State University USA between 1958 and 1962 for studies in history and political science. He became barrister-at-law after graduating With a BA degree from Lincoln’s Inn London in 1964 and joined the Attorney-General’s chambers. Karugu was promoted to Senior State Counsel in 1967 before replacing John Hobbs as the Deputy Director of Public Prosecutions in 1970.
James Karugu became Kenya’s second Attorney General on April 25, 1980, after Njonjo quit to join politics. During his tenure, Karugu introduced the Land Control Act that mandated elders to handle rural land disputes, besides the Civil Procedure Act that enacted the rehearing of civil appeals in 1980. That was also the year he banned the manufacture, supply and selling of chang’aa.
Karugu re-introduced the publication of Kenya Law Reports that stalled in 1975.
Besides repealing the “shoot-on-sight” orders regarding criminals by police, he also improved the registration of births and deaths.
Frank Sandstrom was an American mariner who was accused of manslaughter for killing a Mombasa prostitute, Monica Njeri, in 1980. Mr. Justice Leslie Harris fined Sandstrom Kshs500 and Karugu was “not satisﬁed justice had been done”.
Under his watch, journalists were unlawfully arrested without suitable evidence and held beyond the permitted 48 hours.
Another low with repercussions was the Andrew Muthemba treason case. Karugu was accused of introducing evidence to the Special Branch and defence lawyers that could have implicated his predecessor, Charles Njonjo.
The case was “rushed” and thus thrown out due to what was perceived as Karugu’s “unprofessional competence.”
James Karugu resigned after one year and went into private practice in 1981- going down in history as the shortest stint for an Attorney General.
Joseph Kamau Kamere (1981-1983)
He was born on July 7, 1926 in Githunguri, Kiambu. He attended Githunguri Independent School in 1938 and Premier College Nairobi where he studied shorthand and typing between 1944 and 1946.
Kamere was employed as an interpreter and crime statistician at the East African High Court Where he worked for six years up to 1952.
After two years at Adam’s College, South Africa, Kamere was expelled and had to complete his studies at London University from 1954 to 1961.
Upon his return, Kamere Worked as the Nakuru and Eldoret resident magistrate for four years before he was appointed State Counsel at the Attorney- General’s chambers. He worked for three years up to 1968, eventually opening his own law firm in 1969.
Joseph Kamere succeeded James Karugu June 6, 1981 as the first Attorney General to be sourced from a private practice.
Kamere introduced the Statute Law (Miscellaneous Amendment Act) 1981 that increased the number of Puisine Judges from 19 to 24 to speed up the hearing of cases.
Kamere also set up the Law Review Commission that came up with the Succession Law on inheritance.
Under Kamere’s 20—month tenure, the Criminal Law Bill enacted the Criminal Procedure Code in which the Evidence Act stipulated a three—year jail term for giving Wrong statements to the police. Kamere also introduced the Banking Act on “client conﬁdentiality” with a Kshs20, 000 fine or a year in jail for contravening it.
Joseph Kamere’s undoing was his arrogance. During his maiden speech, he told MPs that they were “heavily laden in election debts. You do not sleep properly, but I have no such Worries.” That put him on a collision course and he had problems pushing Bills in the house. Most were defective, anyway, forcing members to call for a debate into his competence as “he was not being knowledgeable of the law” as Attorney-General.
His time was complicated by myriad business related court cases, including one instance Where he was advanced Kshs3 million by the Bank of Baroda (Where he had, no account) that was facing irregular exchange control violations.
President Daniel arap Moi relieved him of his duties in January 1983.
Mathew Guy Muli (1983 – 1991)
He was born in Kangundo, Machakos, in 1929. From Machakos Boys, Guy Muli Went to Alliance High School before proceeding to Makerere University College Where he graduated in the ‘Class of ‘52. He was employed as High Court interpreter and librarian and served as a court clerk before resigning in 1956.
Guy Muli enrolled at Lincoln’s inn London and graduated in 1961. Upon his return, He was absorbed as a legal advisor, East African Community Organisation, where he was also deputy secretary in 1962.
He became High Court judge in 1979 and termed the appointment as “unexpected and welcome.” Mathew Guy Muli became Kenya’s fourth Attorney General in January 1983.
Muli decentralised the Department of Public Trustees from the Attorney—General’s Chambers, thus ensuring the registration of births and deaths were done separately.
He introduced new legislations on building bylaws that made them friendly to the disabled, besides the Constitution of Kenya Amendment Bill that rendered capital offences punishable by death and non-bailable.
It was in Muli’s time that the Council for Higher Education was created in 1985 and the Perpetuities and Acceleration Bill sped up succession cases.
It was also during Muli’s tenure that the Privileges and Immunities Act was reviewed and the Extra Mural Penal Employment System introduced.
Mathew Guy Muli was moved from the Attorney—General’s office and appointed a judge of the Court of Appeal in 1991.
Mathew Guy Muli’s time was marred by political interference during the single-party rule.
He employed legal dictatorship to silence political dissenters. Many were detained during the Mwakenya Trials of 1987 while others were jailed on sedition and treason charges.
Muli also made prejudicial statements to judges before they made rulings, thus influencing verdicts.
Most ridiculous of all, Guy Muli tabled a Bill in Parliament that enacted among others, the removal of his own tenure of office and that of judges in the Judiciary in 1987.
Amos S. Wako (1991 – 2011)
He was born in Bukhayo, Busia District, 1945. Amos Wako went to Ingotse Intermediate School from 1956 to 1959 and Alliance High School from 1960 to 1965. He obtained his degree in law from University College, Dar—es—Salaam, Tanzania, before earning a bachelor of science in economics and a masters in international affairs from the University of London.
From 1978 to 1980 he was the secretary— general of the African Bar Association and for two years up to 1981, he served as the chair of the Law Society of Kenya.
His stellar career saw him sit on the UN Board of Trustees of Voluntary Fund for Victims of Torture from 1982 to 1985 and the UN Human Rights Committee six years later.
Amos Wako, who boasted a reputable academic, professional and legal career, said he was “dumb-founded” when he was appointed Attorney General on May 13, 1991, a position he held until August 2001 as the 2010 Constitution demanded after serving as Attorney General for 20 years.
Amos Wako’s 20~year tenure is the longest of any Attorney-General in Kenya.
He reversed the abolition of the tenure of office for the Attorney-General and High Court judges in 1991.
Other positive enactments included the Children’s Act Bill 1992 that made it mandatory for all children to access universal primary education.
Tax payers lost billions of shillings in Wako’s time and he tabled the Anti—Corruption Bill that created the Kenya Anti-Corruption Commission in 1991 while the Pharmacies and Poison’s Act 1992 created the National Quality Control Laboratory for free testing of drugs and medical equipment for the public.
Marital rape, jail terms for HIV rapists were made crimes by Wako, who also imposed a punitive Kshs1 million fine to curb drug trafficking.
The Statute Law (Miscellaneous Amendment Bill) enacted the Defamation Act that created financial parameters for damages to be awarded in libel cases.
Wako was Attorney General at the height of clamour for political pluralism in Kenya. He was accused of criminalising dissent in what went down as “judicial tyranny”.
His partisanship was evident when he amended the law governing nomination of parliamentary, civic and presidential elections by reducing days for nomination to 21. That in effect, meant opposition parties were left with little time to put their houses in order. The law seemed to favour Kanu, the ruling party.
The Preservation of Public Security Act ensured all detention laws remained in force and was effectively used against opposition leaders. Even though Section 2(A) that allowed multiparty politics was enacted in his time.
The worst politically instigated ethnic clashes of 1992 happened in Wako’s tenure. No one has ever been found culpable. The Goldenberg Scandal that saw Kenya lose own Kshs60 billion in ﬁctitious export of diamonds, was perpetrated in his time. No one has ever been jailed for it.
Prof Githu Muigai (2011-to date)
He was born in Nairobi on January 31, 1960. Between 1974 and 1979, Githu Muigai went to Githiga Secondary School and Meru School, where he was the best student. He graduated with a law degree in 1984 from the University of Nairobi, where he was the best law student from ﬁrst to fourth year.
He earned a masters in International Relations from Columbia University School of Law in 1986 and a doctorate in public law from the University of Nairobi where he studied between 1995 and 2001.
Until his appointment as Attorney-General in September 2011, Prof Githu Muigai was a partner in Mohammed Muigai Advocates and an associate professor of law at the University of Nairobi.
Prof Githu Muigai lobbied the Supreme Court to uphold the election of Uhuru Kenyatta as President when he served as amicus curiae (friend of the court) during the petition hearing lodged by runner-up candidate Raila Odinga.
The Supreme Court dismissed the petition, thus averting a Constitutional and election crisis in Kenya.
Prof Githu‘s role as Amicus curiae was seen in some quarters as favouring a fronted position to beneﬁt the President-elect. He was also accused of frustrating the drafting of bills meant to anchor the 2010 Constitution.