July 20, 2017
The Hon. Prof. Githu Muigai, EGH, SC; Attorney General of the Republic of Kenya
Office of the Attorney General and Department of Justice
RE: PETITION TO OFFICE OF THE ATTORNEY GENERAL AND DEPARTMENT OF JUSTICE TO ACT IN PUBLIC INTEREST AND PROMOTE, PROTECT, AND UPHOLD THE RULE OF LAW WITH RESPECT TO COMMENCEMENT OF THE PUBLIC BENEFIT ORGANIZATIONS ACT, 2013 AND ADVISE THE GOVERNMENT APPROPRIATELY ON HOW TO LAWFULLY TRANSITION THE OUTDATED NON-GOVERNMENTAL ORGANIZATIONS COORDINATION ACT TO PUBLIC BENEFIT ORGANIZATIONS ACT
The Civil Society Reference Group (CSRG) petitions the A.G’s office pursuant to Article 37 of the Bill of Rights as guaranteed in the Constitution as a holder of a State Office.
The petition stems from the glaring failure of this office to appropriately advise the National Government, in particular the Ministry of Devolution and Planning and that of Interior and Coordination of National Government to respect the law as directed by the High Court (Justices Joshua Odunga on October 31, 2016 and John Mativo on May 12, 2017 respectively) that they commence the Public Benefit Organizations Act, 2013 within 14 days and 30 days respectively.
Sir, you recall that on September 9, 2016, the Cabinet Secretary for Devolution and Planning Mwangi Kiunjuri wrote to your office after a series of consultative meetings with stakeholders and civil society representatives instructing that your office gazettes a commencement date for the Public Benefit Organizations Act, a law that was assented to by retired President Mwai Kibaki on January 14, 2013 just before his term came to an end.
But rather than act with speed as had been directed by the CS who was required under the law to choose the appointed date for the coming in to force of the law, your office connived with the NGO Coordination Bureau specifically with the Chief Executive Officer Fazul Mahamed alias Mahamed Yusuf to sponsor and file a case challenging the gazettement of the PBO Act.
Later, on October 31, 2016 after Justice Joseph Onguto sitting in the High Court in Nairobi delivered a judgement on Petition No. 351 of 2015, in which Trusted Society for Human Rights Alliance had sued the Ministry of Devolution and National Planning directing that the law be commenced within 14 days, the A.G’s office watched as the Ministry and the Chief of Staff and Head of the Public Service Joseph Kinyua engaged in underhand manouevres to undermine justice by transferring the NGO Coordination docket from the Ministry of Devolution and Planning to that of Interior and Coordination of National Government. Convinced that the aim of the transfer of the docket was designed to defeat the course of justice, and to protect the Chief Executive Officer of the NGO Board Fazul Mahamed, the plaintiffs moved to the High Court again, this time around citing the CS for Devolution and Planning and your office for contempt of court.
Ruling on May 12, 2017 on Petition No. 351 of 2015 and the subsequent contempt of court case that arose after the government failed to obey the court’s directive to commence the Act, Justice Mativo directed ruled that the minister for Interior should now follow the court’s directive or be jailed personally. Again, as in the previous instance, your office kept a studious silence as the late CS for Interior disregarded the new court directives as 30-days window lapsed on June 19 without commencement of the law, despite the fact that it is your (the A.G’s) office that represented the government in the case!
Once again, your office, established under Article 156 of the Constitution as the principal legal advisor to the Government and legal representative in all cases in which the Government is a party, and which office is charged with the onerous functions of promoting, protecting and upholding the rule of law, failed to act and advise the relevant Ministry and departments to respect the court directives.
The instances cited are not the only ones in which your office has failed to act in public interest. You are aware that in November 2016, the Commission on Administrative Justice (CAJ), a Constitutional Commission to boot, recommended that the Chief Executive Officer of the NGO Coordination Board Fazul Mahamed be dismissed from office for using a fake degree certificate to secure the job. The Commission also recommended that he be surcharged for all the more than Ksh 8.5 million he had earned cumulatively as salary from when he was irregularly appointed.
To date, you have kept a studious silence on the matter, even after the Ethics and Anti-Corruption Commission (EACC) published in the Gazette Notice its findings confirming that indeed, Fazul Mahamed used forged academic papers to get employed as the CEO of the NGO Board despite the fact that your office is the clearing house for all gazette notices!
Recently, apparently acting out interests that are only known to you personally, your office sprang into action when the Cabinet Secretary for Education, Science and Technology sought to reconstitute various University Councils, including that of the University of Nairobi. In your (the A.G’s) legal opinion which was published and publicised in a cross section of the print and electronic media nationally, you faulted and overruled the Education Cabinet Secretary for appointing new members to the UoN Council even “before cases related to their tenure are heard and determined”. Through a letter dated June 28, 2017 A.G’s office said that even though Matiang’i has powers to appoint members of Councils through Section 36 of the Universities Act, due procedure must be followed. In the said letter, A.G is quoted to have written thus:
“The corresponding power regarding the removal of council members must be in accordance with the University of Nairobi Charter (2012), the Letter of Interim Authority and the State Corporations Act,” But even as you seem to have gone out of your way to proffer such sound advisory, it did not occur to you that similar cases, including refusal by the CEO of the NGO Coordination Board to reinstate staff he dismissed illegally have not merited your attention even after the Industrial and Labour Relations court directed that they be reinstated unconditionally!
It is against these acts of commission and omission that we petition your(A.G’s) office to wake up to the constitutional calling of his position as a State officer and discharge your mandate in a manner that respects, protects and upholds the rule of law, and such related values of public service as high standards of professionalism, responsive, effective, impartial, and equitable provision of services as well as accountability for administrative acts of omission and commission that have become the hallmark of your tenure as the current Attorney General of Kenya.
We further wish to remind you of the requirements of Chapter Six of the Constitution that demands of all State and public officers that any authority assigned to a State Officer “is a public trust to be exercised in a manner that is consistent with purposes and objects of the Constitution” and brings honour to the nation, dignity to the office and inspires public confidence in the integrity of the office. Such purposes and objects of the Constitution are to be found in Article 10 of the Constitution that speak to the national values and principles of governance such as the rule of law, respect for human rights, accountability to the public, non-discrimination and social justice.
The Civil Society Reference Group (CSRG) is a network of Public Benefit Organizations (PBOs within the meaning of the Public Benefit Organizations Act, 2013 whose aim is to promote the establishment and realization of an enabling legal, operational and regulatory environment for local, national and international Public Benefit Organizations (PBOs) based and working in Kenya and the region. The Reference Group is thus committed to a vision of an enabling environment for effective civil society sector in Kenya that promotes ethical standards through self-regulation. Our Mission, therefore, is to catalyse collaborative relationships between different levels of Government, the public and other state actors and to protect and enhance an independent and effective civil society voice and agency in the public interest.
It is our hope that the Office of the Attorney General will rediscover and take up its rightful role in the promotion, protection and upholding of the rule of law, and advise the relevant Government ministries on the imperative to obey court orders, and more importantly, move with speed to commence the Public Benefit Organizations Act as was directed by the court on October 31, 2016 and again on May 12, 2017.