Paul Kihara Kariuki: The tale of ex-judge's chequered tenure as Attorney-General


Former Attorney-General Kihara Kariuki. PHOTO | NMG

After four and half years as the country’s seventh Attorney-General, retired judge Paul Kihara Kariuki handed over the reins at State Law Office to Justin Muturi.

Mr Kariuki’s tenure, having taken over as the government's chief legal adviser from Prof Githu Muigai in 2018, had many highs and lows.

Notably, the relationship between the Judiciary and the Executive was strained. The irony is that the relationship had been widely expected to improve with the retired Court of Appeal at the State Law Office. But under his term, it deteriorated.

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The relationship worsened when former President Uhuru Kenyatta refused to swear in 41 judges as recommended by the Judicial Service Commission (JSC). Then Chief Justice (CJ) David Maraga was forced to call several press conferences to protest the decision by the President declining to swear in the judges.

The former CJ also bitterly complained over what he termed as disobedience of court orders by the Executive. Justice Maraga, who has since retired, also complained over the reduction of the Judiciary budget

In defence of his boss, Mr Kariuki fired back accusing Justice Maraga of breaching established norms of government and direct lines of communication, which exist between the offices of CJ, AG and the President.

He maintained that the Executive remained committed to implementing all court orders, to the extent lawfully practicable, save for instances where there are appropriate stay orders and pending appeals.

“The statements (by the CJ) demonstrate that the honourable Chief Justice has failed to cultivate the spirit of constructive consultation and has instead resorted to grandstanding and populist brinkmanship, with the Executive as his bogeyman,” he said.

Mr Kariuki was not pleased by CJ move and said he was setting tone for judges and magistrate over matters that are either currently or would in the near future, end up before courts, for determination.

“As a judge of the Supreme Court, the CJ is also revealing his disposition and prejudices over certain constitutional and legal issues that may end up before the Supreme Court for determination,” he said.

The judges were eventually sworn in although President Kenyatta left out six of them over integrity issues. The six were sworn into office when President William Ruto came into office after promising to do so during the campaigns.

Towards the end of President Kenyatta’s term, Mr Kariuki was part of the team that defended the push to amend the Constitution through a popular initiative known as the Building Bridges Initiative (BBI). The bid was first shot down by a bench of five judges of the High Court and upheld by the Court of Appeal.

The matter was escalated to the Supreme Court and although Mr Kariuki and proponents of BBI lost the bid to amend the Constitution, the judges agreed with him on some aspects, including the determination that a sitting President cannot be sued for his actions or omissions while in office.

The judges of the apex court ruled that the President enjoys immunity against prosecution over his actions or omissions as he discharges his official functions.

When several petitions were filed challenging the election of President Ruto after the August 9 General Election, Mr Kariuki said he would not oppose the cases.

This was a departure from the norm as his predecessors in 2013 and 2017, opposed all petitions that sought to nullify election results in each case.

As he walked out of Sheria House premises on Friday after handing over to Mr Muturi, Mr Kariuki said he was proud of his achievements after ‘making great strides towards achieving a satisfactory legal service delivery to Kenyans’.

“I consider our nation’s justice and legal services sector institutional framework robust,” Mr Kariuki said.

Mr Kariuki said during his tenure in office, the State Law office managed to conclude 4,541 cases filed against the national government, gave 3,119 legal opinions to ministries, department and agencies and approved 252 procurement contracts.

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