Oduor has an opportunity to redeem office of the Attorney General

The nomination of Senior Counsel Dorcas Agik Oduor for the post of Attorney General brings renewed and deserved interest in this important office.

If approved by the National Assembly, she inherits a much discredited office, which despite its immense constitutional power, has been whittled by Executive fiat and abdication of recent past officeholders.

Historically in Kenya, decorated and credible professionals are hired by the President at a time of internal revolt and international isolation to buy time to return to the old ways. This is what happened to Amos Wako in 1991 when President Daniel arap Moi harnessed his immense skills to burnish the regime’s deplorable human rights record. In no time, Wako was thrown into the deep end.

Using legal mechanics, Wako became a defender of the indefensible. Often, his legal advise was neither sought nor needed and he found himself trapped and his credibility brought to question as he strived to clean the regime’s mess.

Wako is living testimony of what happens when a competent professional joins a regime whose base instinct is political calculation and survival.

Hopefully the incoming AG will find the courage to perform her functions, a listening ear in the president, and a supportive bureaucracy in the legislature and civil service.

By sitting in the Cabinet and National Security Council, it is expected that Ms Oduor will advise the Ruto administration and its key organs to return to the rule of law, restore the Bill of Rights, rein in police brutality and withdraw the military from the cities and towns.

Parliament and the Cabinet should no longer disobey courts and enact illegal and unconstitutional laws and policies if they listen to the AG or seek her input.

Oduor has confessed a conviction for justice despite working under past undemocratic regimes. With age and energy on her side, Oduor has an historic opportunity to demonstrate courage, independence and implement her vision from day to day without Executive interference.

The AG is not intended to be a pliant mascot of the Executive. The AG must be the torchbearer for eternal vigilance in defence  of democracy. She needs to carry the public and civil society with her to redeem the office of AG from its low ratings.

In the shortest time possible, the new AG must publish a position paper for the Executive and Legislature to implement the last phases of devolution. The national government and National Assembly, continually, plot against devolution, devolved governments and the Senate in breach of Supreme Court orders, in part because the AG has been missing in action or complicit. Despite recent positive Court pronouncements, there is still no definitive place and role for public participation in public and legislative affairs.

As a defender of public and consumer interest, the incoming AG should ask the national government to make a full disclosure of Kenya’s mineral wealth, treaties and agreements. Kenya has lost many suits at international tribunals because of incompetence at the AG’s office, with fatal consequences, including loss of territorial waters.

Government sponsored laws and policies of the Executive are routinely outlawed by the High Court for breach of constitutional and statutory substance or procedure because the AG’s office is ignored.

The new AG should relook the various military and security pacts Kenya signed with the British and the USA to ensure they comply with domestic and international law. The public is entitled to a full disclosure of these pacts. Besides the national government’s legal advisor role, the AG represents the national government in foreign non-criminal proceedings, vets and interprets local and international documents, agreements and treaties. Crucially, and in relation to current events in Kenya, it is the AG’s constitutional duty to promote, protect and uphold the rule of law and defend the public interests.

David Ochami is an Advocate, High Court of Kenya