Article 156 of the Constitution of Kenya and the Office of the Attorney General Act set out the Constitutional role and functions of the Attorney General in Kenya.
The President nominates the Attorney-General and appoints them with the approval of the National Assembly.
While executing the functions conferred by the Constitution and the Office of the Attorney-General Act, the Attorney-General should provide efficient and professional legal services to the Government and the public for the purpose of facilitating, promoting and monitoring the rule of law, the protection of human rights and democracy.
The Functions of the Attorney-General in Kenya
According to Article 156, the Attorney General in Kenya is the principal legal advisor for the national government. They are responsible for representing the national Government in court or any other legal proceedings to which the national Government is a party (other than criminal proceedings).
The Attorney General in Kenya may perform any other functions conferred to the Office by an Act of Parliament or by the President. The Attorney General is also the promoter of the rule of law and defender of the public interest.
Pursuant to Executive Order No.2 of 2013, the Attorney General in Kenya now discharges the functions of a Cabinet Secretary in relation to the Department of Justice. Therefore, it is the role and function of the Attorney General in Kenya to promote:
- human rights and implement the Constitution,
- access to justice including through promoting of legal aid,
- good governance,
- anti-corruption strategies,
- ethics and integrity,
- legal education and law reform, among others.
The Attorney General in Kenya also provides policy, coordination and oversight for various legal sector institutions. Therefore, they have a broader cross-cutting mandate to support the strengthening of legal sector institutions.
In addition to the functions under Article 156 of the Constitution, the role and functions of the Attorney General in Kenya are to—
- advise Government Ministries, Departments, Constitutional Commissions and State Corporations on legislative and other legal matters;
- advise the Government on all matters relating to the Constitution, international law, human rights, consumer protection and legal aid;
- negotiate, draft, vet and interpret local and international documents, agreements and treaties for and on behalf of the Government and its agencies;
- coordinate reporting obligations to international human rights treaty bodies to which Kenya is a member or on any matter which member States are required to report;
- draft legislative proposals for the Government and advise the Government and its agencies on legislative and other legal matters;
- review and oversee legal matters pertaining to the registration of companies, partnerships, business names, societies, adoptions, marriages, charities, chattels, hire purchase and coat of arms;
- review and oversee legal matters pertaining to the administration of estates and trusts;
- in consultation with the Law Society of Kenya, advise the Government on the regulation of the legal profession;
- represent the national Government in all civil and constitutional matters in accordance with the Government Proceedings Act (Cap. 40);
- represent the Government in matters before foreign courts and tribunals; and
- perform any function as may be necessary for the effective discharge of the duties and the exercise of the powers of the Attorney-General in Kenya.
These additional functions of the Attorney General in Kenya are under Section 5 of the Office of the Attorney-General Act, 2012.
Powers of the Attorney-General in Kenya
The Attorney-General shall, by virtue of their office, be the titular head of the bar and shall take precedence in court in all matters whenever they appear in accordance with the Advocates Act (Cap. 16).
The Attorney-General should, in discharging their functions under Article 156 of the Constitution have the power to—
- with leave of the court or tribunal, appear at any stage of proceedings, appeal, execution or any incidental proceedings before any court or tribunal;
- require any officer in the public service to furnish any information in relation to any matter which is the subject of legal inquiry;
- summon any officer in the public service to explain any matter which is the subject of litigation by or against the Government; and
- issue directions to any officer performing legal services functions in any Government Ministry.
The Attorney-General should—
- establish such directorates, divisions, sections or units in the Office as may be necessary;
- establish such county or regional offices as may be necessary;
- supervise the formulation of policies and plans of the Office; and
- perform any other action necessary in the administrative interests of the Office.
The Attorney-General may, upon request, appear and advise on any legal matter in any committee of Parliament.
In the exercise of the powers and performance of functions of the Office, the Attorney-General in Kenya should not be under the direction or control of any person or authority.
Summary of the mandate of the Attorney General in Kenya
In summary, the mandate of the State Law Office and the Department of Justice is to:
- promote the rule of law and public participation;
- support the Government’s investment in socio-economic development;
- promote transparency, accountability, ethics and integrity;
- spearhead policy, legal and institutional reforms;
- promote economic governance and empowerment;
- promote, fulfil and protect human rights;
- undertake administrative management;
- capacity building; and
- enhance access to justice.
Executive Order No.1 of 2016 changed the name of the Office of Attorney General and the Department of Justice to State Law Office and the Department of Justice.
For more about the Office of the Attorney General in Kenya, visit statelaw.go.ke.
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