Kenya has two Attorneys-General. One is the de facto Attorney-General. He acts and is seen by ordinary Kenyans as the custodian and enforcer of the law of the land. He is the people’s AG. He speaks for Kenyans and looks after the public good. The other is the de jure AG – the AG according to the law. He is the Executive’s AG and watches its back.
Kenya’s two AGs are Eric Mutua,chairman of the Law Society of Kenya, and Githu Muigai. These two gentlemen represent two powerful and at times antagonistic constituencies. The former represents the people, Wanjiku and the subjects. The latter represents the rulers, the master and the lords!
Mutua’s national profile has lately skyrocketed at the expense of Githu’s. But it is not a case where the former has usurped the power and space of the latter. No! It is a simple case in which one answers the public call to duty while the other ignores every such plea!
Githu sleeps on the job, and sleeps soundly, while Mutua toils and toils hard for the public. Because of the shift in their public performance, it is Mutua rather than Githu that ordinary Kenyans see as their saviour in matters of governance and law.
Githu as AG isn’t visible. Whether it is his pronouncement of a national issue or defending the government’s policies, Githu has been low key. Identifying a single, meaningful achievement of his tenure – no matter how mundane – is a torturous and unfruitful exercise.
In a country where corruption is killing the body politic, Githu fumbles. In a country where extra-judicial killing is treasured, Githu nods in approval. In a country that cries for a strong and reformist Judiciary, Githu spares no effort to shut it down. In every instance where a constitutional commission tries to implement its mandate, Githu spares no effort to declare that its actions are out of order. In a country where the basic human rights of ethnic and religious minorities are abused by the State, Githu characterises State abuses and transgressions as welcome and much-needed efforts in fighting terrorists.
Githu is both the conductor and the cheerleader for a new choir in town that is singing songs in praise of Anglo-Leasing. Githu – without blinking an eye – disowned his own legal opinion on the standard gauge railway project when he realised the direction of the political wind had changed.
He unsuccessfully and dishonestly argued in court that a commission he sits in should be disbanded just because he was directed to do so! In all litigations on the Constitution and the Bill of Rights, Githu’s blanket policy is to oppose no matter the public good. Githu is the shining knight in armour of the national government to destroy devolution.
Every time he appears as a friend of the court,Githu argues the case as the enemy of the people.
The defining feature of Githu’s tenure is the worrisome trend of an avalanche of five to 10-page legal opinions authored by the AG attached to every multi-billion-shilling scam. Such legal opinion is then waved in support or in opposition to a given scam depending on one’s motive. Why the AG should personally monopolise authorship of such routine legal opinions remains a lasting national conundrum.
It is these gaping voids in governance that Mutua has gleefully filled. He speaks for Kenyans when it matters. He has gone to court to stop the Anglo-Leasing payments. He is challenging the validity of the standard gauge railway project.
The Law Society contests every corruption scandal. Mutua participates in every court case that seeks to entrench good governance and the rule of law.
These are our two AGs.
Senior Counsel Ahmednasir Abdullahi is the publisher, Nairobi Law Monthly
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