The Attorney General's Role In The Masengeli Case
A couple of weeks ago, Justice Lawrence Mugambi set aside the six month jail sentence for Acting Inspector General of Police Gilbert Masengeli. Masengeli had been found guilty of contempt of court for repeatedly ignoring summons to explain the circumstances surrounding the disappearance of three individuals in Kitengela.
The Attorney General of Kenya, Dorcas Oduor, represented the Acting Inspector General. She did this because in Kenya, the Attorney General represents the government and its officials in legal matters based on several provisions in the Constitution and statutes. The AG’s role in representing public officials is grounded in legal frameworks that establish the duties and powers of the office.
- Constitutional Mandate (Article 156): Article 156 of the Constitution clearly defines the role of the Attorney General as the principal legal advisor to the government. The AG has the mandate to represent the government, including state officials, in legal proceedings. Article 156 states that the Attorney General shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings. The Acting Inspector General is a part of the national government’s executive arm.
- Government Proceedings Act: The Government Proceedings Act further clarifies the responsibility of the Attorney General to represent government institutions and officials in civil proceedings. Under this Act, legal actions taken against public officers in their official capacity fall under the purview of the AG. This ensures that the AGs office provides legal defense in civil suits involving government officials.
- The Office of The Attorney General Act: The Office of the Attorney General Act lays out the functions of the AG. This Act reinforces the AG’s responsibility to represent government ministries, departments and officials in civil matters. It also empowers the AG to provide legal advice and defend such officials in matters arising from their official duties.
- The Role of the Inspector General of Police: The Inspector General of Police is a high ranking government official responsible for the National Police Service, which is part of the executive arm of the government. When such an official is involved in litigation arising from their duties, it is within the AG’s remit to represent them to ensure that the government’s legal position is effectively defended.
This case highlights the unique position that the Attorney General holds within the government. Ms Oduor is part of the Executive while still having responsibilities towards the Judiciary. This can create a perception that the Judiciary is influenced by Executive power, undermining public confidence in the impartiality of Judicial proceedings.
The Kenyan Constitution under Article 160 explicitly guarantees the independence of the Judiciary, stating that “in the exercise of Judicial authority, the Judiciary… shall not be subject to the control or direction of any person or authority.” This means that the Attorney General can get involved in court cases, but the Judiciary retains the authority to make impartial decisions on them. The AG can function as a legal officer of the Executive, but she cannot influence the court’s decision making.
It’s also important to note that while the Attorney General is part of the Executive branch, the role often serves as a bridge between the Executive and the Judiciary, particularly when representing the government in court or providing legal advice on constitutional matters. This position at the intersection of branches underscores the importance of the independence clause because it ensures that the AG can fulfill duties to both the government and the legal system without undue influence from either side.
