AG’s circular delayed publication of Supreme Court vacancies

Solicitor General Njee Muturi consults with Attorney General Githu Muigai. [PHOTO: BONIFACE OKENDO/STANDARD]

A 2013 circular by Attorney General Githu Muigai requiring his office to approve all legal notices before publication caused the stand-off over publication of Supreme Court vacancies last week.

In letters obtained by The Standard on Sunday, Chief State Counsel L.M. Murila cited Githu’s circular dated May 20, 2013 in advising Government Printer S.N. Migwi to refuse to publish the Gazette Notice declaring a vacancy in the Office of the Deputy Chief Justice.

The circumstances leading to Murila’s advice to Migwi are quite intriguing and offer insights into controversy around the contested retirement of Deputy Chief Justice Kalpana Rawal and judge Philip Tunoi.

The drama began on Friday, May 27, when the Court of Appeal turned down the duo’s appeal against retirement at the age of 70. On that day, the two judges obtained a stay order of the Court of Appeal ruling before a single judge.

The following day, May 28, the JSC through its Chief Registrar Anne Amadi wrote to the Government Printer requiring him to publish a special gazette notice declaring vacancies in the two offices.

The JSC’s letter of May 28 appears to have been received the day before, if a stamp on them is anything to go by.

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Rather than publish or respond to the Judicial Service Commission (JSC), the Government Printer wrote to Solicitor General Njee Muturi five days later on June 2, alerting him of Amadi’s letter and attaching it. He also alerted Muturi that the notice did not have the signature of Chief Justice Willy Mutunga.

Muturi did not respond. It was not until June 15, a day after the Supreme Court recused itself from hearing Tunoi and Rawal’s appeal that Murila, writing on behalf of the AG, responded to Migwi’s letter of June 2.

“Please note that all Gazette Notices must be signed by the authorised person before they are published in the Gazette in accordance with the provisions of paragraph D of the circular of the Attorney General on proposed legislation,” Murila’s letter reads.

“We therefore advise that you do not publish the unsigned Gazette Notice on declaration of vacancy in the Office of the Deputy Chief Justice of the Republic of Kenya.”

By this time and in a letter dated June 14, the day Supreme Court refused to hear the appeals, the JSC had written another letter through its registrar Frida Mokaya, requiring the Government Printer to publish notices of the two vacancies.

The Supreme Court finalised reading its judgment late in the evening on June 14. Somehow, Mokaya was able to dispatch a letter to the Government Printer and it was marked received on the same day. The JSC wanted the notices to be published in a special gazette notice for the following day.

Notably, however, the JSC sent, on two occasions, notices to Government Printer declaring vacancy on the position of DCJ and Supreme Court judge before the Supreme Court pronounced itself on the matter, raising question as to whether the JSC itself was privy to the outcome of the ruling.

It is probably owing to Murila’s letter that Mokaya wrote back on the same day (June 15), attaching fresh notices responsive of the AG office’s concerns.

“Enclosed please find Gazette Notice duly signed by the Chief Registrar of the Judiciary for the position of Chief Justice of Kenya.

“Enclosed please find Gazette Notices duly signed by the Chief Justice for the positions of Deputy Chief Justice and Supreme Court Judge of the Judiciary,” the two separate letters by Mokaya read.

She asked the Government Printer to publish the notices in a special gazette notice of that day, June 15. That did not happen, prompting JSC’s lawyer Mansur Issa to write another letter to the Government Printer threatening legal action.

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“Despite the urgency and the public interest involved, you have since delayed, frustrated and unlawfully refused to publish the notices in a special edition of the Kenya Gazette. It is manifestly clear that you are working at the behest of and on instructions of people who are determined to subvert the constitution and frustrate the inevitable transition in the Supreme Court,” Mansur wrote.

“Our instructions are to demand immediate Gazettement of the said notices in the Special Edition. Please note that if the notices are not published in the Special Edition we shall proceed to the court of law to compel you to gazette the notices and have you declared unfit to hold public office.”

It was a day of high-octane drama, with the JSC turning the heat on the AG, who sits in the commission, to clear the notices for publication. Still, the notices were not published.

It was not until Friday June 17 that the notices were published in the ordinary edition of the Kenya Gazette. By the time, the Supreme Court had fully dispensed with Tunoi and Rawal’s appeal and refused to issue a stay order.

According to the AG’s circular cited in the letter declining the original notice of vacancy in DCJ’s office, the notice ought to have been signed by the “authorised person.” The notice submitted by Amadi, though written “Willy Mutunga, Chief Justice and President of the Supreme Court of Kenya” was not signed by the CJ.

“Where a notice is to appear in the main Gazette (Gazette Notice) once has been approved by the Legislative Drafting Department, further notices in the same or substantially similar form need not be submitted for clearance and, upon signature, may be sent directly to the Government Printer for publication,” Section D of the AG’s circular cited by Murila says.

According to the circular, all legal notices appearing in the Gazette “must be cleared with the Legislative Drafting Department (of the office of the AG) before submission to the Cabinet Secretaries, or other appropriate authority concerned, for signature”. It cannot be cleared after the signature.

Because of the circular governors have been complaining of delays in publication of their notices.