Attorney General Githu Muigai disowns Kenya Defence Forces Bill as opinion divided on contentious proposals

Attorney General Githu Muigai has distanced himself from the controversial Kenya Defence Forces (KDF) Amendment Bill, which proposes to give the military a role in civilian operations among other provisions.

Prof Muigai, the government’s chief legal advisor, said the Bill is an initiative of KDF, a parliamentary committee and the Ministry of Defence. He said the Bill is owned by the parent ministry and he has “nothing useful to say” about it and advised that inquiries on its content should be directed to those who initiated it and who now own it.

The Leader of Majority in the National Assembly Aden Duale has in the past defended the Bill saying it had been taken through stakeholders forums including constitutional bodies and the office of the AG.

“The content of the Bill is owned by KDF and the parent ministry. They are the ones who know what they sought to achieve through the proposed changes,” Muigai told The Standard on Sunday.

Asked if he was involved in drafting the changes, the AG said: “I am saying the content is owned by the parent ministry who initiated the process through a parliamentary committee and who can defend it. I have nothing useful to say.”

Under Article 156 of the Constitution and Office of the Attorney General Act, 2012, the AG is mandated to advise the government ministries, departments, constitutional commissions and state corporations on legislative and other legal matters.

He is also mandated to advise the government “on all matters relating to the Constitution, international law, human rights, consumer protection and legal aid.” The same law mandates him with drafting legislative proposals for the government and advising the government and its agencies on “legislative and other legal matters.”

We remain in the dark

Commission on Implementation of Constitution (CIC) chairman Charles Nyachae, also said he has not seen the published Bill and he cannot therefore authoritatively comment.

Mr Nyachae, however, admitted that his commission gave views on the proposed amendments when they were presented through the Miscellaneous Amendment Bill. He said he cannot know whether the input of the commission was factored in the published bill.

“For the moment, we remain in the dark as to whether our input was considered because we haven’t seen the published Bill. Once you have the published Bill, we can discuss and I will tell what our proposals were in the matters raised,” Nyachae said.

Law Society of Kenya chairman Eric Mutua, however, says the AG “cannot run away from this.” He said technically, the AG owns all the Bills generated from parent ministries because they are developed with assistance of legal counsels drawn from his office.

He exempted KDF because they have their own lawyers independent of the AG and complete with military ranks. Mr Mutua nevertheless said KDF cannot possibly develop a law independent of its parent ministry (defence) which enjoys the services of legal counsels from AG chambers.

“He is being evasive. I do not think the office of the AG can at any particular time avoid taking responsibility over Bills which are generated by the ministries. It clearly falls within its docket. He cannot run away from this,” Mutua said yesterday.

President Uhuru Kenyatta’s advisor on constitutional and legal affairs Abdikadir Mohamed also said he had not yet seen the Bill. He too said only the parent ministry is best suited to comment on the Bill and the contents. “Policy comes from the ministry, not the presidency. And then it’s taken up by the AG, CIC, Kenya Law Reform Commission and Parliament. I will be lying if I told you that I have seen the Bill,” he said.

The Bill has caused hue and cry among critics who view it as efforts to militarise the Kenyan state. Civil society groups among them Coalition for Constitution Implementation (CCI) have called for its withdrawal.

“The proposal of the Bill that bars the public and lawmakers from scrutinising the budgetary allocations and military spending contravenes Article 201 of the Constitution of Kenya 2010 (Principles of Public Finance) that states that there shall be openness and accountability, including public participation in financial matters and also contravenes Article 239 (5) that states that the national security organs are subordinate to the civilian authority,” a statement from CCI said. The group noted the Bill proposes KDF holds a separate account from that of the Ministry of Defence. This they said would set pace for corruption and misuse of resources.

Other provisions queried include one that proposes to abolish requirement for the KDF to advertise slots per counties and provisions which insulate the government from liability regarding compensation to families of KDF personnel who suffer disabilities or death in training. The Bill gives Chief of Defence Forces authority to deploy the army in civilian operations. It creates an auxiliary reserve force comprising Kenya Wildlife Service, Kenya Forest Service (KFS) and National Youth Service (NYS) to serve alongside the KDF.

“I have just published it. The minister and the government will defend the Bill before the committee of Parliament. MPs have powers to amend, reject or pass the Bill. People should not just make noise. MPs should wait for their turn to make their contribution,” Duale said when the matter was first raised.

Political interference

Yesterday, Dagoretti South MP Dennis Waweru asked critics to hold their horses and let parliamentarians do their work. He said the best interests of everyone will be catered for when the Bill is being passed.

“This is the confusion in Kenya. The Bill has barely been published and everyone is up in arms. People must give us the space to consider what is presented before us, as the people’s representatives. The laws we pass must serve the greatest good of the greatest majority,” Mr Waweru, also the Central and Nairobi Parliamentary caucus chairman, said.

But Kabondo Kasipul MP Sylvance Osele said the Bill, if passed, could worsen the security situation.

“Kenya Police are well trained but hardly perform well due to political interference and unnecessary deployment of KDF. This trend creates confusion. KDF should only handle matters to do with external aggression,” he said.