The place of the Solicitor General in law

The fused legal profession in Kenya has never drawn a distinction between solicitors and barristers as in England but we do have a Solicitor General in Kenya, perhaps the least appreciated legal office in the republic.

Most interestingly, since independence we have always had a Solicitor General despite there being no mention of the office in the 1962 or the 2010 Constitution.

The usefulness or otherwise of the Solicitor General can be gauged from Commonwealth countries and our African neighbours. In England, the Solicitor General must be an elected Member of Parliament. The US, Australia, New Zealand and India are some other countries with Solicitors General.

Closer home, Uganda, Malawi and Gambia are some of the African countries with Solicitor Generals with South Africa debating recently on the merits of having a Solicitor General and Tanzania abolishing the office.

Kenya's first Solicitor General was Ben Lutta who later became a judge of the Court of Appeal. Other names that mirror the importance of the office are former Chief Justice the late Kitili Mwendwa, advocate A.S.T. Aswani, retired Justices Kubo and Ringera, and now Njee Muturi.

The office has always been a stepping stone for higher aspirations in the legal hierarchy. In Kenya the office of the Solicitor General and that of the deputies is provided for under the Office of the Attorney General Act No. 49 of 2012, Laws of Kenya.

Section 9 of the Act establishes the position of the Solicitor General while section 13 underscores formation of the position of deputy and deputies.

By law the Solicitor General assists the Attorney General in the performance of the duties of the Attorney General. It must be noted that the Attorney General's docket carries perhaps the most onerous basket of duties even after the new constitution took the prosecutorial duty away from the office.

To appreciate the role of a Solicitor General it is first important to briefly highlight the duties of the Attorney General.

The Attorney General is the principal legal adviser to the Government and represents the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings.

Other duties include co-ordinating reporting obligations to international human rights treaty bodies; drafting legislative proposals for the government; and reviewing and overseeing legal matters pertaining to registration of business names, companies, partnerships, societies, marriages, adoptions, and charities

Aside from assisting the Attorney General the Solicitor General has several other duties among them to conduct, or assign and supervise all court cases, including appeals or petitions on behalf of the Attorney-General and subject to Article 234 of the Constitution, be responsible for the discipline of state counsels and other members of staff of the office.

The Office of the Attorney General Act also gives the Solicitor General power to formulate and ensure implementation of development strategies for government legal services, co-ordinating the attachment of candidates for pupilage in the office and performing such other duties as may be conferred by law or otherwise assigned to the Solicitor-General by the Attorney-General.

In addition to undertaking the duties of chairperson of the Advocates Disciplinary Tribunal, the Solicitor General performs duties of alternate chairperson of the College of Arms.

The Solicitor General is appointed by the President with the approval of the National Assembly. It is also a perquisite for appointment that that the holder of the office must be qualified to hold office of judge of superior court under the Constitution and meets the requirements threshold of Chapter Six of the Constitution.

As a state officer, the Solicitor General is not allowed to engage in any other gainful employment. The job requires the Solicitor-General to strike a sometimes delicate balance between serving the legal interests of his superiors (the President and Attorney General), the long-term interests of Kenya and his responsibility as a special officer of the court itself.

The Solicitor General's influence is felt even in private parties' suits that involve matters that are of interest to the government. He defends the laws enacted by Parliament as is currently being witnessed in the Security Laws (Amendment) Act, 2014.

It is the Solicitor General who must also decide whether to appeal or to accept the loss in cases involving the Government.

No Government lawyer wants to be told that a lost case is over and will not be appealed, so the Solicitor-General's decisions not to go forward may leave disgruntled feelings in other legal offices.

Resignation of a Solicitor General is only possible by way of a letter addressed to the President.

The President may however, remove from office the Solicitor General on ground of serious violation of the Constitution or any other law, gross misconduct, incompetency, physical incapacitation or bankruptcy.

In the event of the Attorney General becoming incapacitated or otherwise unable to perform his constitutional duties, for whatever reason, can the Solicitor General take over?

The answer to that question is a moot point. In Kenya the roles of the Solicitor General's office, which is presently occupied by Njee Muturi and his Deputy Muthoni Kimani, are vital in assisting the State legal agencies.

In times to come the contribution of Solicitor Generals will undoubtedly manifest positively and hopefully legal services in their docket will improve for the better.