Dorcas Oduor vows to address unconstitutional bills if confirmed as Attorney General

Attorney General nominee Dorcas Oduor has outlined steps she will take to handle bills that have been declared unconstitutional by the courts, while they have emanated from the Executive.

This follows a concern raised by Suna East Member of Parliament Junet Mohammed, during her appearance before the Committee on Appointments on Friday.

Junet questioned Oduor about the approach she would take to enhance the quality of legislation originating from the executive branch, following instances where bills, some involving the Office of the Attorney General, have been ruled unconstitutional by the courts.

“There are bills that have passed through this house that have been declared unconstitutional by the court. Some of these bills emanated from the executive with the participation of the Office of the Attorney General. What will you do to improve the quality of legislation, coming from the executive, if you are approved and you become the Attorney General? So that the issues of courts declaring laws enacted by Parliament as unconstitutional becomes a thing of the past?” Junet posed.

In her response, Oduor acknowledged the challenge and emphasised the role of the courts in such rulings. She highlighted that it is within the court's purview to declare a bill unconstitutional as part of their duties.

“About bills going to parliament and the government losing or courts declaring bills or legislation unconstitutional. First and foremost, it is the work of the courts to do that. That is one of the duties they've been given, and if they do it, they are not doing a wrong thing,” she said.

Oduor explained that many recent bills have aimed to align with the 2010 Constitution, introducing new legal concepts that can be challenging for both the executive and judiciary.

“We should ask ourselves, why then the notoriety that most legislations that we have come up with of late have been to comply or to operationalise the 2010 Constitution. Most of the contents of those bills contain new jurisprudence. Not only to the executive but even to the judiciary. I take it as a testing time. We are testing the constitution through bills and legislation,” she said.

She acknowledged the ongoing legal debates and uncertainties, noting that the process of legal development can be volatile.

“Honorable Speaker and Honorable Members, a testament to this is that even in the Court of Appeal, there are issues that they have not agreed on. They have not given direction. It is a good thing for us to test a new legislation. It will be volatile for some time, but after some time when we have matured with the 2010 Constitution, then the law will be settled,” Oduor added.

However, Oduor emphasised that, if appointed as Attorney General, she would implement a thorough review process to understand why certain bills are declared unconstitutional. She also committed to ensuring that future bills comply with constitutional requirements.

“But that having been said, it is a concern if bills are declared unconstitutional when the Honorable Attorney General has contributed to them. What I'll do is find out why they have been declared unconstitutional. Number two, I'll make sure that as the Attorney General, I advise that wherever we come up with a bill, it meets the constitutional requirements as provided,” Oduor said.