Tough road ahead for Kenya's first woman Attorney General

 

Dorcas Oduor, Kenya’s first would-be woman Attorney General, faces a formidable path and multiple legal challenges should she pass today’s vetting.

Oduor’s immediate challenge will be advising the government on how to navigate the apparent void left by the rejection of Finance Bill 2024 and the subsequent felling of Finance Act 2023, leaving the government in a constitutional crisis and touching off a fierce Parliament-Judiciary clash.

Justices Kathurima M’inoti, Agnes Murgor, and John Mativo, last week found amendments to several tax laws passed in 2023—such as the Income Tax Act, Value Added Tax Act, Excise Duty Act, Retirement Benefits Act, and Export Processing Zones Act—unconstitutional because of the lack of fresh public participation.

This development will place a significant burden on Oduor’s shoulders as she must navigate the government through a brewing national crisis following protests that led to the complete withdrawal of Finance Bill 2024. The government has appealed and stated in its petition that the consequences of the three-judge high court bench ruling are grave and will lead to nothing short of a national shutdown.

Oduor is no stranger to difficult national moments which have birthed new frontiers of democracy and governance for the public having honed her skills at the State Law Office and rising to become deputy director of Public Prosecution (ODPP).

She told the Judicial Service Commission when she unsuccessfully sought the post of Court of Appeal Judge in 2022 that beyond her impressive CV, she developed a strong moral compass from her school days.

The Lwak Girls Primary School and Lwak Girls High School alumnus said that her strong principles on justice were shaped by her strong Catholic upbringing and continue to have a lasting impression.

“Lwak is a Catholic environment and it inculcated in me very deep Godly values that have shaped my philosophy and relationships with others socially and professionally and those values are the core principles and values of justice,” she said. “Those values have helped me cope with life.”

Oduor says she has a personal routine that she believes grounds her personality: Every morning, she recites the Universal Prayer, the Litany of Humility and the Prayer of St. Augustine.

“They remind me that I am a mortal person, I live for the present and I have to work on the inside of me if I want to impact other people and my community and those are the values that I have carried all along,” she says.

MPs and leaders from the Kenya Kwanza coalition have reacted strongly to recent court decisions. Their comments suggest a desire for an Attorney General who can skillfully navigate the government through its current legal predicaments by utilizing both exceptional legal expertise and brilliant tactical manoeuvring.

The Finance Bill is not all awaiting a new AG. Part of President William Ruto’s broad concessions in the face of protests was the formation of a task force to audit public debt as a means of ventilating to the public the most expensive budgetary item facing Kenyans.

Four days after the appointment of the task force, the High Court temporarily suspended its establishment pending the determination of a case filed by a Nakuru-based doctor.

Justice Lawrence Mugambi issued the order after Dr Magare Gikenyi and Eliud Matindi argued that the work of auditing public debt is a constitutionally mandated function of the Auditor General and not any task force appointed by the Executive or any other person.

The Kenya Kwanza administration is also facing a sticking issue with the nomination of ODM deputy leader Wycliffe Oparanya to the Cabinet. The Ethics and Anti-Corruption Commission (EACC) has declined to clear him on the basis that he is facing a corruption case. The DPP, however, says it has already closed the file for lack of evidence. EACC retorted that the evidence was sufficient and stuck to its guns. The battle between the two institutions has placed in doubt Oparanya’s nomination to Cabinet and opens the possibility of future legal challenges.

Some leaders such as opposition leader Raila Odinga have expressed the view that the country is on the throes of a constitutional moment and will only be steered to calm waters by constitutional changes. Others such as Senior Counsel Ahmednasir Abdullahi have vehemently disagreed. The new AG will have to midwife that national conversation.

Despite the public and private challenges faced by the government, Oduor’s three-decade career in the State Law Office and office of DPP positions her as a seasoned contender ready to hit the ground running.

Having joined the State Law Office in 1991, Oduor had a frontline seat as Kenya waded through the murky search for multi-party democracy in which opposition protests rocked the country leading to the repeal of Section 2A of the then constitution and opened Kenya to transit from a one-party state into a multi-party democracy.

She also had a ringside seat as the government under then President Daniel Moi navigated the 1997 political crisis as opposition parties demanded membership into the Electoral Commission of Kenya amidst stiff Opposition from Kanu Government stalwarts.

Oduor found herself in the deep end when she was appointed Assisting Counsel in the Akiwumi Commission of Inquiry into Land and Tribal Clashes.

In 2002, soon after President Kibaki took office, she was appointed as Assisting Counsel to the Goldenberg Commission of Inquiry—a team constituted to investigate the massive theft of public funds conducted by Moi government officials and businessman Kamlesh Pattni.

Oduor, who has since been conferred the rarefied title Senior Counsel by the Law Society of Kenya - was led in that role by Senior Counsel Dr John Khaminwa and Senior Counsel Dr Gibson Kamau Kuria.

The commission conducted a public hearing for two years as they sought to unravel the complex web that was the Goldenberg heist – one of Kenya’s most spectacular and most damning white-collar crimes.

Additionally, Oduor joined the prosecution team that prosecuted the suspects in the 1998 terrorist bombing in New York Courts.

Oduor has also been seconded to short-term projects with UN agencies, the Commonwealth, the Financial Action Task Force (FATF) and recently trained prosecutors in Zambia and Tanzania and will look to rely on the diverse contexts should she pass muster in Parliament.

Now she faces high expectations from a public recovering from the crisis spawned by the anti-finance Bill protests. Nominated Senator Hamida Ali Kibwana tweeted an embodiment of the hopes Kenyans have on Oduor: “Dorcas Oduor’s qualification and vast experience in public service is the best thing from broad-based government. This will be the country’s best AG and first woman to hold that post.”

Now the jury is out, and history will return a final verdict.