Defiance of Court Orders: A Litmus Test for Attorney General Dorcas Oduor

The new Attorney General of Kenya, Dorcas Oduor, faced a significant challenge that could define her tenure. The acting Inspector-General of Police, Gilbert Masengeli, failed to appear in court to provide details on the whereabouts of three individuals believed to be in police custody. The High Court had ordered Masengeli to explain the location of Jamil Longton Hashim, his brother Aslam Longton, and activist Bob Michemi Njagi, who were abducted on August 19, 2024, in Kitengela, Kajiado County.

The failure to comply with the court order highlights a troubling trend of defiance by government officials, a pattern that has persisted under President William Ruto’s administration. On January 3, 2024, President Ruto publicly declared his intention to disregard court rulings he deemed obstructive, particularly those issued by what he described as “corrupt” judges. This statement marked a significant shift in the executive’s stance towards the judiciary, setting a precedent that has been followed by various state officers.

The President’s directives, including ordering the Roads Principal Secretary to continue construction on a disputed road despite an active court order, exemplify this defiance. This disregard for judicial authority has sparked public concern and criticism, with many observers questioning the impact on the rule of law.

Diana Gichengo, the national coordinator of The Institute for Social Accountability (TISA), criticized President Ruto’s stance, arguing that such defiance undermines the judiciary and the rule of law. Chief Justice Martha Koome also condemned the administration’s blatant disregard for court orders, though a subsequent meeting between the President and the Chief Justice aimed to ease tensions.

Attorney General Dorcas Oduor, appointed on August 20, 2024, faces the difficult task of navigating this fraught landscape. As Kenya’s first female Attorney General, Oduor’s appointment was seen as a move towards meritocracy and a renewed emphasis on legal integrity. Her initial statements emphasized the importance of obeying court orders to uphold the rule of law. Oduor’s position is now tested by the executive’s continued disregard for judicial authority.

The historical context of Kenya’s struggle with court order compliance is notable. Former Chief Justice David Maraga criticized President Uhuru Kenyatta’s administration for its repeated failures to adhere to court rulings, including the non-appointment of judges and the handling of deported lawyer Miguna Miguna’s case. These instances of defiance, coupled with ongoing issues like the non-restoration of Maj Gen. P. Kariuki’s rank, illustrate a broader pattern of governmental resistance to judicial directives.

The judiciary’s independence is crucial for maintaining a fair and just society. The rule of law, which ensures that all individuals and institutions, including the government, are subject to and accountable under the law, is fundamental to democratic governance. In Kenya, however, recent events have raised concerns about the erosion of this principle. The World Justice Project Index of 2023 ranked Kenya poorly in terms of rule of law, reflecting challenges in governance and legal integrity.

The new Attorney General’s ability to restore respect for judicial authority will be a significant test of her effectiveness. If Oduor can assert the necessity of obeying court orders and work towards reinforcing the judiciary’s role, she may help mitigate the ongoing tensions between the executive and the judiciary. Her leadership could be pivotal in restoring public confidence in Kenya’s legal system and ensuring that the rule of law prevails over political and executive interests.

Ultimately, the respect for court orders is not merely a matter of legal obligation but a cornerstone of democratic governance and societal trust. As Attorney General Oduor navigates this challenging environment, her actions will be closely scrutinized, and her success in upholding the rule of law will be a defining aspect of her legacy.