The Attorney-General -
(a) is the principal legal advisor to the Government;
(b) shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; and
(c) shall perform any other functions conferred on the office by an Act of Parliament or by the President.
Art 156 (4), Constitution of Kenya
A fiction is being broadcast that the Attorney-General serves the people of Kenya. Nothing could be more inaccurate than to presume that the role of the A-G is to serve the people of Kenya. He serves the national government and his duties revolve around serving the interests of the national government, protecting it sometimes, even, from the people of Kenya. His duties are not assigned to him by the people of Kenya, but by the Constitution, Acts of Parliament and by the president himself. In some instances the duties of the A-G will coincide with the protection of the public interest, but for the most part, the A-G will be protecting the interests of national institutions such as the Executive, Parliament and the Judiciary whenever and wherever they are parties to civil suits in courts or other tribunals. The President shall also assign such additional duties as he may deem fit, such as legislative drafting, preparation of contracts and offering legal advice on international agreements and treaties.
Therefore, the principal role of the A-G is to act as a legal advisor to the government, not to act as the defender of the national interest. This is why the opprobrium that has been heaped upon the State Law Office by those who perceive it as having betrayed the public trust is misplaced. The concept of an independent A-G misses the fact that the A-G serves, or served, the national government, particularly the Office of the President. As an ex officio Member of Parliament, the A-G was not an elected representative, nor a nominated one, but appointed by the President to offer advice to the government. The criticism levelled against the State Law Office should therefore, have revolved around the quality of the legal advice that it gave the government (or shall give in the future) and not on whether the public interest was served by such advice.
While Kenyans must be concerned about the person who shall occupy the Office of the Attorney-General, this concern must be logical. What we want is an A-G who is eminently qualified and who understands the role that he will play in national governance. Ultimately, though, the President will nominate only such a person who will be able to serve him best. In other words, the President will only nominate a person who will enable him to govern effectively. The President, after all, is elected and he must serve the public interest. To do so, he must receive the best advice, include legal advice, from those who serve him, including the A-G. Those calling for the appointment of an independent A-G are proposing a recipe for disaster and they forget that a lawyer and his client do not have an ordinary relationship. What they should be calling for is for an honourable person to serve as A-G. They should be calling for a lawyer who espouses the best of the profession, and not a lose cannon incapable of offering sound legal services. It will be disastrous if the next A-G had an independent policy divorced completely from the needs of government. In the history of the legal profession, lawyers serve the interests of their clients, protecting their legal rights and advising them on their legal positions. Where a lawyer fundamentally differs with his client, he withdraws his services, or in some circumstances, applies to the court to withdraw as counsel. This is the quality that we will be looking for in the next A-G: if his client refuses to heed his advice and insists on pursuing a path that endangers the public interest, then he must resign.