More on style, less of substance

By Emeka-Mayaka Gekara

Had he not studied law, attorney-general Paul Kihara Kariuki would probably have ended up as an actor, and would likely be a frequent show at the Kenya National Theatre or Alliance Française.

He was a decent thespian during his college days. In fact, as he told the House committee vetting him for his new job, he met his wife – Sarah – while playing the role of sheep on stage.

Son to one of the pioneer African Anglican bishops, Kariuki could have also ended up as a man of the collar – and here, his oratory skills would have come in handy. This is perhaps the reason he has been the default programme director at Judiciary events.

Outside the courtrooms, Kenyans were for treated to his oratory prowess in 2012, during the burial of former Cabinet minister and Kiambaa MP Njenga Karume. Then a judge of the Court of Appeal, Kariuki delivered a heartrending elegy for the grand old man in impeccable English. But the unusually prominent role played by Kariuki, at a political event no less, helped underline his place in the Mt Kenya power coterie. It is demonstrable that the judge has long been a favourite of the Mt Kenya power elite for a significant role in the justice system.

He was President Mwai Kibaki’s choice for Chief Justice to replace Evan Gicheru who had to retire six months after the promulgation of the Constitution in 2010. But opposition by then Prime Minister Raila Odinga, voices in the Judiciary and civil society forced President Kibaki to withdraw his preference for the man.

Brief resume

Not celebrated for any landmark decisions, Kariuki comes to his new job with the briefest resume. His predecessor Githu Muigai fared slightly better even though he is regarded as a total flop. Just like Githu, Kihara got the job on account of his ethnicity more than anything else.

Kariuki was first appointed to the Bench in 2003 following the infamous purge in the Judiciary. A deeply religious man, he is a former chancellor of the Anglican Church before his admission to the Bar.

The former President of the Court of Appeal, has long been viewed as an “establishment person”, with a propensity for style more than substance.

“The AG is not a towering jurist like his predecessors,” confided a senior lawyer who requested anonymity because of his close relationship with attorney general. “His judicial philosophy is a mystery. His jurisprudence has no intellectual rigour;  he was a very average judge,” noted the lawyer.

During vetting, some of those in the panel of the House Committee on Appointments, accused the Bible-quoting Kariuki of being a gatekeeper for the Executive and a protector of vested and narrow interests. His lawyer friend agrees:

“President Kenyatta picked Kariuki not because he was the most qualified candidate, but because he is comfortable to have around the seat of power. He is an entrenched system guy, a ‘yes’ man who will be tested severally in coming months,” said the lawyer.

Midnight Bench

In a move viewed incredibly suspiciously, Kariuki, on the eve of the October 26 repeat presidential election, assembled a bench to hear an appeal against a High Court decision that the manner of appointment of returning officers by the electoral and boundaries commission was illegal.

The practical implication of the Justice George Odunga ruling was that the returning officers would not have presided over the repeat poll – even though he stopped short of saying so himself – which would have left the country in limbo.

Lawyer Apollo Mboya has filed a petition with the Judicial Service Commission to question Kariuki’s conduct on the matter. Mboya argues that the former judge’s move was tailored to favour the Jubilee Administration and legitimise the elections.

Mboya is concerned that the Bench was made up of judges working outside Nairobi and who sat at night. That particular Bench comprised Judges Erastus Githinji, Fatuma Sichale and Martha Koome.

In his defence, Kihara said the courts were on vacation and the Appeal Court judges stationed in Kisumu (Githinji) Malindi (Koome) and Nyeri (Sichale) and happened to be in the city. The elections were happening the next day and a decision had to be reached.

According to Kariuki, the matter could not be heard by the duty bench because one of the judges could not be “traced”, forcing him to seek the services of the judges who were stationed out of Nairobi.

Lawyer George Kegoro provides what would be a balanced assessment of the man. The suits that Justice Kariuki has presided over, Kegoro says, portray him as decisive and resolute.

“For example, he assessed damages of only Sh85 in a suit against Kenya Power and Lighting for malicious prosecution.

In the same vein, the AG has been criticized for his decisions on defamation cases.

Contradicted himself

According to Kegoro, Kariuki rejected high defamation awards, saying: “I must confess that I am quite unable to understand the rationale for awarding what in my humble view are grossly exorbitant sums to Joshua Kulei, Hon Christopher Obure and Hon Nicholas Biwott respectively,” he ruled in J. P. Machira t/a Machira & Company Advocates v. Kamau Kanyanga & another [2005] eKLR. A year later, he awarded politician Martha Karua Sh4.5 million for defamation.

Kariuki takes over the State law office amid of a fierce fight between the Judiciary and a deeply wounded Executive which has come under heavy criticism for failing to comply with court orders. He has promised to repair the relationship.

The other big challenge for Kariuki is widespread corruption in the justice system, which, he has argued, emanates from lack of honesty and integrity among leaders.

His clincher is a quote from the Bible: “What does it profit a man to gain the whole world and lose his soul? That is a challenge for all of us, not just me. It is for every member who holds a position of leadership in this society.”

With his new job, lawyers and judges who know Kariuki have mixed views about his post. However, they are in agreement on what to expect of him: he is roundly seen as an individual without the spine to provide sound advice to the President, and as being too timid to express honest, contrary opinion. (