Kenya: The tribal factor in the Attorney General nomination

By nominating Professor Githu Muigai to the office of the attorney general (AG), President Mwai Kibaki has accomplished something of a rarity for a meek but sleek politician: he has flipped the finger at Kenyans and flipped the finger at Kikuyu lawyers and all Kenyan women lawyers.

The position of Kenya’s attorney general was held by the venerable Charles Mugane Njonjo from our country’s independence through 1979. James Karugu, another lawyer from central Kenya, took over in April 1980 and was succeeded by Joseph Kamere from the same region as well. Amos Wako took over the portfolio in 1991 from the only other non-Kikuyu AG, Mathew Guy Muli, and clung to it in good times and bad times until this August when the new constitution forced him to exit – smiling.

President Kibaki nominated Githu Muigai to succeed Wako and he has already taken office.

What is wrong with this picture? First, it’s wrong to have public officers serving this long in any office.

Second, when I implored Kibaki recently to lead in ending tribalism in Kenya and asked our brothers and sisters from central to do the same thing, a blogger commented on my efforts as being a waste of time for, according to him, Kibaki is the most tribal president we have ever had.

I don’t know about all that but Kibaki has done nothing except propagate this belief among many citizens with his nomination of Muigai as the AG. Surely, he could have found an equally, if not more, qualified Kenyan from other tribes instead of returning the portfolio to a fellow Kikuyu.

Again, before I hear this from someone, let me hasten to add that there is nothing tribal in saying what I am saying. I would still say so, if it was a fellow Kisii doing the same thing.

But why did the president nominate yet another Kikuyu to be the AG? It was not as if the president was unaware of what that would suggest. He was, in my humble view, flipping the finger at all of us. After all, he is the president and is serving the last months of his last term.

In other words, he and his advisers must have told themselves: ‘We can do this; what is anybody going to do about it?’ The timid Kenyans that we are, we must accept that as the reality and move on, so the belief goes. They may have a point, but change is coming where these will be truly attitudes of the past.

But beyond Kenyans as a whole, the president has flipped an even bigger finger at two specific groups: the first one is the rest of his brethren from central. After his earlier botched attempt to install Muigai, only to be foiled by Prime Minister Raila Odinga, Kibaki should have altogether let go the idea of installing Deputy Prime Minister Uhuru Kenyatta’s cousin as the AG. If he and his advisers believed so strongly that a Kikuyu must be appointed to the position, then he should have at least identified and appointed one from among the many other Kikuyu lawyers in the country, rather than the man he clearly failed to ram through the process last time.

Instead, Kibaki has chose to return to the same man, which can only mean he has concluded this is the only qualified Kikuyu lawyer in the country fit for nomination and appointment to the position of AG. To those who think otherwise, especially my learned Kikuyu friends, the president is flipping the finger at all of you. Again, the question he and his advisers must have asked and answered in the negative is: what are you going to do about it?

Women have not fared any better in Kibaki’s thinking and calculations. With the new constitution, which Kibaki gets partial credit for helping get passed, the role of women in government is greatly encouraged and, in fact, mandated. Kibaki would have acted by the letter and spirit of the constitution by appointing a woman as our first woman AG.

Instead, Kibaki has remained true to tradition and practice in appointing yet another man to this important position, which can only mean he concluded there was no qualified woman. To those who think otherwise, especially my learned sister friends, the president is flipping the finger at all of you too. Same question they have asked and answered in the negative: what are you going to do about it? Kibaki is, after all, the president and is serving his last months of his presidency.

All this is sad but true, I believe.

I know the question running in some of your minds is: where is Raila in all of this? Didn’t the president make these nominations upon consultation with the PM? From what I can tell by merely putting two and two together, and not based on any first-hand or second-hand information, Raila has not objected to the appointment of Githu Muigai because he does not have a legal basis to do so.

The PM was successful in thwarting Kibaki’s efforts the last time he attempted to illegally nominate and appoint Muigai and other allies to the various constitutional offices because Kibaki was clearly acting in violation of the constitution and the public was not going to stand for that flagrant abuse of power, unlike in the past.

In this case, however, we are told the president consulted the PM before re-nominating Muigai. The constitutional requirement of consultation was therefore satisfied, unlike the last time. The requisite consultations having occurred, the PM either had to agree with the nomination, or object to it. One can only conclude that the PM did not object because he could only do so based on a sound legal ground and one which Kibaki could ignore only at his own peril. I see none this time around.

Muigai is, for all I know, well qualified to be the AG. None of what I say here is legal basis to oppose his appointment. What I say here, however, is a moral basis to oppose his appointment, which would have been counter-productive for the PM, given the fragile coalition government we have.

Besides, if the PM doesn’t really care about the appointment, he can show Muigai the door once he is elected president – if Kenyans give him the nod as expected, given that the AG does not have security of tenure. In other words, Raila comes out of this the statesman he is; why pick up fights that don’t improve the situation but could make it worse instead? As Kenney Rogers sings in the ‘Gambler’, you have to know when to count them and when to fold them. There are some battles not worth fighting.

Knowing how some of my readers misread what I say, let me reiterate that what I say is merely an expression of an opinion and has nothing to do with the PM’s thinking. Mine is simply an analysis, based on publicly available information. I say this because many times we express an opinion and people automatically jump to ascribe same views upon those we support, forgetting or ignoring the fact that the two are not always the same.

In sum, Kibaki’s nomination of Githu Muigai goes to confirm what I have been saying all along, that is, ending tribalism in Kenya is a tall order. But I still have faith we shall slay the ugly animal sooner than later. And, yes, I still have faith that Kibaki and our brothers and sisters from central have a big role to play in this effort. I continue to urge them to do just that.

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* Samuel N. Omwenga is a Washington DC-based Kenyan lawyer.
* Please send comments to editor[at]pambazuka[dot]org or comment online at Pambazuka News.