Muturi's rollercoaster ride through legal system ends on a sour note as AG

Former Attorney General Justin Muturi. [File, Standard]

Justin Bedan Njoka Muturi is one of the few people, if not the only one, who has worked in all three branches of government in Kenya.

He has served as a Chief Magistrate, Speaker of the National Assembly, and Attorney General.

Former presidents of the Law Society of Kenya (LSK) have mixed views on his performance. Nelson Havi called Muturi a good leader but not as outstanding as his predecessors Amos Wako and Prof. Githu Muigai.

Eric Theuri noted that while it's hard to judge Muturi's overall performance without knowing all his advice to President William Ruto, his public advice, like on the housing levy, was commendable.

“The problem is that this job is largely about advice. Unless you see the kind of advice you have given, the problem we see is decisions that appear to be unconstitutional. It becomes difficult to assess because you will not know whether it is out of lack of advice, being ignored, or wrong advice. He tried because there has been a big challenge at the office as recruitment, discipline, and promotions are done by public service commission,” said Mr Theuri.

At the same time, Theuri said that Muturi’s push to have his office hire state counsel was a plus. Nevertheless, he said, a streak of cases lost by the government would dent his scorecard.

When former AG Justin Muturi witnessed as President William Ruto handed over copies of the Appropriations Bill to former Treasury CS Njuguna Ndungu after he signed it into law at State House, Nairobi. [PCS]

"On the Housing Levy, he gave the right advice that it is a shared function and Senate should have been involved. It shows that he was a well-grounded person in his operations. If you judge him out of the decisions against the governments, you can judge him as not doing well as an AG,” he said.

Havi, in an interview with The Standard, said Muturi did better than his predecessor, Justice Kihara Kariuki, but not as excellent as Githu and Wako. He stated that the two were exemplary in their performance as AGs. But he also said that Muturi had been a steady hand since the government came into power.

“Truth be told, the formative two years of Ruto’s government had been full of turmoil but I think with all fairness, the boat has sailed considerably well under Justin Muturi. I would not pinpoint any grievous issue. I think he served very well as an AG,” said Havi.

Former LSK Nairobi branch president Charles Kanjama also said it would be hard to rate Muturi's impact. “Without more information as to the nature of advisory he has provided to the Executive, it is difficult to gauge. But regarding court work, his officers have been engaging competently,” said Mr Kanjama.

Kenya has had eight Attorneys General (AGs) so far. Charles Mugane Njonjo was the first indigenous AG, serving from 1963 to 1979. He was also the second longest-serving AG. He was succeeded by James Karugu (1980), Joseph Kamwere (1981-1983), and Mathew Guy Muli (1983-1991).

Wako holds the record as the longest-serving AG, with a 20-year term starting in 1991 under President Daniel arap Moi and continuing under Mwai Kibaki until 2011. He played a key role in birthing the 2010 Constitution.

Githu, who served as AG from 2011 to April 2, 2018, was the third longest-serving AG. Unlike his predecessors, he personally defended the government in major cases and was well-known for his presence in court. His involvement in the 2013 presidential election petition before the Supreme Court, where he represented the government as 'amicus curiae' (friend of the court), made him particularly memorable.

After Githu, former Court of Appeal Judge Kihara Kariuki became AG on April 2, 2018. Unlike his predecessor, Kihara managed the AG's office from Sheria House and had a more hands-off approach in court. When legal challenges arose, his deputy, then Solicitor General Ken Ogeto, often represented the AG’s office in court.

Kihara's tenure was marked by controversy over the appointment of six judges recommended by the Judicial Service Commission to President Uhuru Kenyatta. Despite court orders to appoint the judges, Kihara resisted. As a result, the LSK targeted Kihara and Ogeto, seeking to move a motion to expel them on July 23, 2020. But the High Court intervened.

On June 12, 2020, Nelson Havi, Carolyne Kamende, Diana Omwansa, Herine Kabita, Roseline Odede, Aluso Ingati, Caroline Mutheu, Faith Odhiambo, Bernhard Ngetich, Beth Michoma, Esther Anga’wa, Ndinda Kinyili, and Riziki Emukule signed a document proposing the expulsion of Kihara and Ogeto. This followed a meeting held on May 11, 2020.

Former LSK CEO Mercy Wambua had included the expulsion issue as agenda item 12. The council's goal was to pressure the two to ensure that Uhuru complied with court orders regarding the judges' appointments.

The council had additional grievances beyond the judges' appointments. They also wanted Kihara to issue a gazette notice allowing lawyers to operate during curfew hours due to the Covid-19 pandemic.

They gave Kihara and Ogeto seven days to respond in writing to the expulsion notice.

In response, the former judge and AG argued in court that the meeting called by Havi’s team amounted to mob justice.

Muturi then became the eighth Attorney General on September 27, 2022.  He left the office having served one year and 10 months in office. Muturi also opted for the manager style of leadership.

Besides Murugu, he is the second AG with the shortest time in office.

Currently, President Ruto faces numerous legal battles, with Muturi having been his key legal advisor. Muturi played a crucial role in advising on policy, legal, and executive decisions for the president and the Executive branch.

Under Article 156 of the Constitution, the Attorney General is required to represent the national government in court and other legal proceedings.

Prime Cabinet Secretary Musalia Mudavadi and former Attorney General Justin Muturi attended UNICEF's 2024 Global Operations and Finance Meeting held in Movernpick Hotel and Residence, Westlands on April 22, 2024. [PCS, Standard]

When President Ruto’s appointments of 50 Chief Administrative Secretaries, the establishment of the Shakahola Commission of Inquiry, and the lifting of the ban on genetically modified organisms foods were challenged in court, Muturi was expected to assist Ruto.

But the government lost both cases.

The other defining case during Muturi's tenure was the Finance Act 2023. In this instance, he had Githu lead the defense. The High Court ruled that the Housing Levy, meant to fund President Ruto’s flagship project, was unconstitutional.

The case is now at the Court of Appeal, which has suspended the High Court's judgment.

Former East Africa Law Society President James Mwamu had earlier said that being Attorney General is challenging, requiring a balance between professional duties and political pressures from the president.

“Sometimes we need to sympathise with the AG because he is someone walking between a rock and a hard place. He has to play with the whims of the government and at the same time be someone who can come out and refuse some decision which goes against the law,” said Mwamu.

The AG’s office faced a setback when the Court of Appeal rejected its attempt to overturn the High Court ruling blocking the import of GMO foods.

In November last year, High Court Judge Mugure Thande had suspended the government's decision to lift the GMO food ban. She also halted the Ministry of Agriculture and the Ministry of Trade and Industry from allowing the import of GMO foods.

This ruling followed a petition by the Kenya Peasants League, lawyer Paul Mwangi, the Bio-safety Association of Kenya, the Kenya University Biotechnology Consortium, and the Association of Kenya Feeds Manufacturers. They argued that President Ruto lifted the ban on October 3 last year without adequate consideration of public safety and health.

The petitioners maintained that the 2012 ban on GMOs should remain until there is enough evidence showing that GMO foods are safe for public health.

Aggrieved by the High Court ruling, Muturi appealed to the Court of Appeal to overturn it and allow the import of GMOs to boost the country’s food supply.

But Appellate Judges Mohamed Warsame, Abida Ali-Aroni, and John Mativo dismissed his application. The judges found that Muturi failed to demonstrate how lifting the High Court’s orders would prevent harm to Kenyans.

The judges ruled that the AG did not show how his appeal would be rendered ineffective if the Court of Appeal did not intervene.

Then came Ruto’s appointment of 50 CASs on March 16 to improve service delivery in his administration.

This prompted a flurry of petitions by Law Society of Kenya, Katiba Institute and UK-based activist Eliud Karanja Matindi. They argued that the appointments were irregular and exceeded the 23 CAS positions that had been advertised. Justice Hedwig Ong’udi then issued an order preventing the CASs from assuming office or receiving salaries and benefits while the cases were being resolved.