By Paul Ogemba
The divide between Attorney-General Prof Githu Muigai and Solicitor-General Njee Muturi is widening as each seems to be pushing an agenda parallel to that of the other.
Muturi is, structurally, a junior officer in Githu’s State Law Office, but his actions in the past have revealed a man close to the instruments of power and one who is not bothered about overshadowing his boss in many roles and at several state functions.
The supremacy battle is further enhanced by Githu’s apparent appetite for the position of Chief Justice, which has been left vacant following Dr Willy Mutunga’s early retirement. On the other hand, Muturi is said to be in line to take over the AG’s position if Prof Muigai moves on.
“The rift between Prof Muigai and Muturi is not imaginary; each seems to be reading from a different scripts when it comes to functions of the State Law office,” said a state counsel at the AG’s office who wished not to be named.
According to the state counsel, Muturi has been taking up roles which traditionally belong to the AG. On his part, Githu on many occasions appears to be reluctant to question the solicitor’s actions, and that the cold war between the two has at times contributed to the President’s and Jubilee administration’s blunders in implementing the Constitution and following due legal processes.
This is informed by the fact that Muturi is so close to President Uhuru Kenyatta and has the ears of senior figures within the Jubilee government, unlike Githu, who is a carryover from retired president Mwai Kibaki’s regime.
For several years, Muturi was President Kenyatta’s personal assistant and political confidant when he was Kanu chairman and leader of Opposition. The two continued to work together when President Kenyatta was a Cabinet Minister in the Coalition government and later on in the National Alliance Party (TNA).
“Muturi has not hidden that fact that he and the President are close and his actions within the State Law Office suggest he is up to something bigger. Unlike his predecessor, who liked taking the back seat and let things roll, Muturi is a hand on man who likes for everyone to feel his presence and authority,” said our source.
The state counsel added that most officers within the AG’s Office find it strange that Muturi has become more prominent within the government than his boss. Githu, on the other hand, is viewed as a neutral who descended to the AG’s position not because of political connections but due to his reach understanding of law and many years of active practice.
This was reiterated by the state counsel, who said AG is a professional who understands his role and would speak out his mind which at times doesn’t go well with the Jubilee administration.
According to lawyer Demas Kiprono, the Solicitor-General should only be the face
of the Attorney-General in defending cases against the government filed in court.
“He should be the AG’s chief litigator and should not act on his own motion. If the solicitor-general is engaging in functions that are outside his job description, then he should do so under the instructions of the Attorney-General, otherwise he will be assuming powers which are not assigned to him,” says Kiprono.
The solicitor-general’s job description is similar to that of a principal secretary in a ministry – being the accounting officer. Muturi’s duties include organising, co-coordinating and managing the administrative and legal functions of the office.
However, the active roles Muturi has been playing in legislations show a man who is keen to overshadow his boss and be been seen as the face of the state law office.
Soon after the Judicial Service Commission recommended to the president to appoint a tribunal to investigate former Supreme Court Judge Philip Tunoi over allegations of receiving Sh200 million bribe from Nairobi governor Dr Evans Kidero, it was Muturi who took the active role of advising the President which at one point nearly led to confusion and scuttling of the process even before it begun.
First, the president through Chief of Staff and Head of Public Service Joseph Kinyua issued a statement rejecting the JSC recommendation to suspend Justice Tunoi and declined to appoint a tribunal. President Kenyatta argued that suspending the Judge would occasion a constitutional crisis and advised that they await the outcome of an appeal by Judge Tunoi against his retirement age.
Prof Muigai distanced himself from the decision, and came out to clarify that he had offered his advice to the president to suspend the judge and appoint a tribunal as per the JSC recommendations.
To counter the embarrassment caused, and due to intense pressure, the President beat a retreat and suspended the judge two days later, and appointed a tribunal, just before the constitutional deadline. The tribunal’s swearing in would reveal more divide between the AG and the solicitor-general. Unlike the routine practice where Githu would have witnessed the swearing in of members of the tribunal, it was Muturi who accompanied Retired Chief Justice Willy Mutunga in the ceremony.
The apparent confusion did not escape the attention of activist Okiya Omatah, who then sued the President for failing to follow the law, and Githu for failing to advice him correctly.
“There was an anomaly in the process of appointing the tribunal since the AG failed to advice the president appropriately. This was despite opinions from prominent law scholars,” said Omtatah.
In other instances, it is Muturi who has been the face of government in enacting legislations to drive the Jubilee government’s agenda. During the passage of the controversial security laws, Prof Muigai is said to have kept his distance and advised the government against including some controversial clauses, which were later struck out by the court for being unconstitutional.
The active role played by Muturi have, too, not escaped attention of some lawmakers, who claimed it was the solicitor-general who helped in crafting, arranging meetings with the President and lobbying MPs to pass the bill.
It then did not appear strange when Muturi witnessed as the President assented to the Bill at State House alongside National Assembly Speaker Justin Muturi and Leader of Majority Aden Duale. This was a break from the past where the AG himself witnesses the signing of bills.
“Muturi was all over Parliament trying to ensure the Bill passed. He became the face of the state law office, eclipsing his boss Prof Muigai,” Mombasa Senator Hassan Omar was quoted saying.
When the security law was challenged in court, Prof Muigai did not actively participate in defending the government as he normally does in high profile cases against the government. In his place was Muturi.
The solicitor-general has been blamed for some unpopular decisions made by the government, leaving the AG’s office embarrassed and at pains to justify those decisions.
For instance, when the Justice Queen’s Bench Division Commercial Court in England ordered the government to pay $12,366,816 (Sh1.4 billion) to Universal Satspace (North America) LLC for the dubious Anglo-Leasing contract scandal, the Law Society of Kenya blamed Muturi for doing nothing to stop the payment despite being the one who represented the government in the court proceedings.
“Having been with the president for many years, it is like he is getting trusted with several key state decisions more than Prof Muigai. In fact, Muturi gets consulted more on legal affairs more than the AG,” said the state counsel.
Some analysts have been of the opinion that it is the President’s men who are pushing for Githu’s bid for the Chief Justice position to allow Muturi take control of the State Law office and officially assume the role of chief government adviser, which he has still been doing unofficially.
Despite the simmering differences between the two, Prof Muigai and Muturi have maintained that there is no bad blood between them and that each is performing their constitutional duties. However, with the race for the CJ now open, it remains to be seen if Githu will succeed to pave the way for Muturi to succeed him.