The government clarified reports that the Public Seal was moved from its traditional custody of the Attorney General to the office of the Head of Public Service (HOPS).
The transition was reportedly facilitated by the National Assembly Administration Laws (Amendment) Bill, 2023, which proposed to amend the Office of the Attorney-General Act, 2012, to strip the Attorney General power to host the Seal.
According to a clause in the Bill, the Head of Public Service “shall serve at the President’s pleasure, shall be the custodian of the Public Seal, and any other instruments of State that are not in the custody of any other person”.
The national symbol, recognized in the Second Schedule of the Constitution is used to stamp critical documents to represent the government, to show they are authentic and official.
Isaac Mwaura takes U-turn on the custody of the Public Seal
Government Spokesperson Isaac Mwaura on Thursday, May 22, issued a clarification after the reported transition was met with harsh ridicule, as experts and leaders termed it a loophole to endless graft and weak legal safeguards.
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Mwaura clarified that Parliament deleted the proposal to amend the National Administration Laws (Amendment) Bill and that the Seal is still at the AG’s office.
He affirmed that the Public Seal remains with the Attorney General, in line with Section 28A of the Office of the Attorney General Act, according to Article 9 of the Constitution which outlines national symbols.
“The Public Seal is under the custody of the Attorney General as per Article 9 of the Constitution. This needs to go on record that the Public Seal is not with the Head of Public Service. That is mis/disinformation that came as a result of a process in Parliament but of course it was a proposal it was deleted it did not go through,” he said.
This was, however, contrary to his statement issued on Monday in which he defended the reported transition, arguing that it was conducted lawfully and did not infringe on national values.
“The process is anchored in legislation, which recognizes the HOPS as the appropriate holder of the seal,” Mwaura told the press.
The office of the AG has been the custodian of the public seal since Kenya was under colonial rule and has remained the tradition after gaining independence.
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Justin Muturi raises concerns
Former AG Justin Muturi had earlier said that the reported transition was made because the government wants to avoid checks and legal censure from the AG.
“If documents can be signed and bear the public seal without the AG’s legal advice, that is a serious issue. I’m sure that they are avoiding accountability by transferring such matters to the HOPS office,” Muturi told The Standard.
He added, “That tradition was upended last year when Parliament quietly passed amendments shifting the seal’s custody to the Head of Public Service, a position with no direct constitutional mandate and whose holder is neither vetted by Parliament nor subject to the same legal scrutiny as the AG.”
The former Public Service Cabinet Secretary further warned that the transition “will now create room for conducting fishy deals” and that “we should expect chaos”.
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