Attorney General nominee Dorcas Oduor vows to address legal challenges in gov't Bills

Appearing before the Committee on Appointments, Oduor said that if approved, she would investigate why these bills were halted and advise on the way forward to ensure such documents meet constitutional requirements.

This comes after MPs raised concerns about why bills and policies are declared unconstitutional despite having the AG’s input. In the past year, the courts have nullified the Finance Act 2023, the Social Health Insurance Fund (SHIF), the Housing Levy, among others.

“It is the work of the courts to do that as it is their role. We should ask ourselves about the notoriety. I believe most legislations we have come up with lately have been to comply with or operationalize the 2010 Constitution."

"Most of the contents of these bills contain new jurisprudence not only for the executive but also for the Judiciary. I take it as a testing time. It is a good thing for us to test; it will be volatile, but after some time, then the law will be settled,” she said.

“It is a concern if bills are being declared unconstitutional when the AG has contributed. If approved, I will find out why they have been found unconstitutional, and I will also advise that whenever we come up with a bill, it meets the constitutional requirements.”

On the issue of public participation, which has been the determining factor for courts to declare many legislations unconstitutional, the nominee promised to work on a framework that provides guidelines and regulations for involving the public’s views.

“Public participation should be meaningful and impactful. As to what it should be is also a gray area. I think it’s one area where we have not come up with parameters on what public participation is. I think there’s a need for a policy to give guidelines and regulations on what public participation is. It might require a policy and then regulation because Kenyans must be given an opportunity to say what they want to see in terms of public participation. It’s an area that needs urgent attention,” she pointed out.

During the session, Kathiani MP Robert Mbui questioned why agencies such as the Office of the Director of Public Prosecutions (ODPP) keep withdrawing high-profile graft cases. Further, he wondered if the ODPP is used as a tool for political witch-hunting.

Oduor, who previously worked as the Secretary of Public Prosecutions at ODPP, said that public officers who don’t follow the law are criminals who should be prosecuted.

“As far as I’m concerned, public officers act in good faith, are required to follow the Constitution, to act in the public interest and the interest of the administration of justice. Whoever does the opposite is not a public officer; they are a criminal,” the nominee responded.

The nominee was also pressed to respond to why the Ethics and Anti-Corruption Commission (EACC) cannot bar a nominee before vetting but can only provide an opinion which will be considered by the vetting committee. In response, Oduor said that the issue needs to be reexamined to assess its effectiveness.

“This issue of vetting is also murky because even at the office of ODPP, we get requests to clear people from different agencies and have been wondering in what capacity we will do that. So I don’t want to comment on why EACC is giving an opinion but would want to say the whole procedure of vetting needs to be reexamined so that what we do is impactful and informs decision-making,” she said.