A good way to understand the office of the Attorney-General is to look at it as a big law firm for the government. All the legal work the government is involved in comes to this firm where it is attended to by the principal legal adviser, the AG, and his officers. Under the law firm, all civil cases involving the government are handled.
The AG’s office files defences in any cases filed against the government and argues the government’s case. Similarly, any claims the government has against any person are handled by this office. It is also under this law firm that all criminal prosecutions are undertaken. As it is the duty of the government to enforce law and order, these government lawyers take criminal cases to courts of law and seek to have the suspects punished for the transgressions complained of.
It is the latter obligation that makes the AG the second most powerful man in the republic after the President. It can be said of the AG that he is the one who puts people in jail. An AG can be a very powerful tool in any government. He can be used to intimidate opponents of the Executive by dragging them to court and charging them with offences. He can also be used to reward friends of the government by having criminal cases against them withdrawn or by refusing to act on complaints against them.
A good constitution, therefore, tries to procure and secure an AG who will carry out his work professionally without being influenced by other people. Under the current Constitution, Section 26 gives the AG power to institute criminal proceedings against anyone and also the power to terminate any criminal proceedings. He is supposed to make these decisions based on his legal opinion on the guilt of the person, the availability of evidence and the public interest in prosecuting the person or terminating his case. In making these decisions, the AG shall not be subject to the direction or control of any person or authority.
Section 26 has over the years failed to procure or secure an independent AG. From Charles Njonjo to Amos Wako, each AG is appointed by the President in his sole and absolute discretion. Though the appointee is given the protection he needs to be independent, there is no system of ensuring that he has the integrity, courage and strength of character to want to exercise that independence.
Secondly, the AG is involved in so many other duties that his judgment is wont to be clouded by extraneous considerations.
The AG is an ex-officio member of the National Assembly and sits in the Cabinet. His professional judgments are often coloured by his political interactions. To protect the public from abuse from this office, the new Constitution has separated the criminal prosecution functions of the AG from his other obligations. This was done by creating the position of Director of Public Prosecution (DPP). This is the person who shall be exercising the State powers of prosecution vested in the AG.
The AG will no longer have power to prosecute anyone. The AG has been left with representing the government in civil cases. He will also act as a legal adviser to the government; giving legal opinions to the various organs and institutions of government. He shall also perform any functions allocated to him by Parliament or President.
The AG will continue to be nominated by the President but with the approval of Parliament, but the President will not have control over the DPP. The officer’s nomination and selection will be done entirely by Parliament. The President will merely appoint him or her. The protection of the DPP has also been increased. Although the AG could previously not be removed from office unless by the recommendation of a tribunal, the President could start the proceedings on his own motion. Even a strong AG would have to content with a President intent on removing him.
Under the new system, the President only appoints a t4ribunal upon the recommendation of the Public Service Commission. Any person who desires the removal of the DPP may present a petition to the Public Service Commission which, if it considers the petition has reasonable grounds of complaints, will forward it to the President to appoint a tribunal.
A further protection of the public is that the DPP can only serve one term of eight years after appointment. People who stay in one office for too long tend to forget why they were appointed in the first place. They also become “survivors”, playing to extend their terms indefinitely. The DFPP will not have search an option. In a manner of speaking, the government now has two law firms. One firm, under the AG, shall deal with civil cases, legal opinions, international treaties, legislative drafting. The second law firm, under the DPP, Kenyans can expect a more just handling of criminal cases, where the law will apply equally to all.