Kenya: Blow for Kenyatta as High Court Quashes Executive Order

The High Court has quashed an executive order issued by President Uhuru Kenyatta last year that sought to place the Judiciary, commissions and independent offices under ministries and government departments.

The Law Society of Kenya (LSK) then filed a case challenging the legality of Executive Order 1 of 2020, arguing that the Executive arm of government cannot restructure or assign functions to other arms and independent commissions.

Now, Justice James Makau of the High Court has said that it was unconstitutional for Mr Kenyatta to purport to organise government and set out the Judiciary, commissions and independent offices as institutions under or functions of ministries. According to the Judge, the Head of State has no power to transfer functions of constitutionally established institutions.

“I find that the petitioner has demonstrated that the intended restructures of the Judiciary, an arm of government, by the Executive arm of the government and placing various tribunals and Judicial Service Commission under various ministries and State departments is a threat to judicial independence,” the Judge said.

Justice Makau noted that in the reorganisation, it was clear that the offices adopted under various departments and ministries will be overrun by respective ministries and departments in charge and that budgetary allocations and financial desires, among others, shall be done in line with direction and criteria to be set by respective ministries and departments involved.

The commissions affected by the order include the Judicial Service Commission, Teachers Service Commission, Parliamentary Service Commission and Commission of Administrative Justice, among others.

The Judge said the executive order constitutes administrative action as it amounts to implementing administrative policies, which fully require full adherence to the spirit and letter of the applicable laws.

“I find the executive order purporting to re-organise the government structures, including independent commissions, is illegal and unconstitutional in so far as any amendment or restructuring to independent commissions are concerned, as it should be carried out by way of a referendum,” the Judge said.

LSK had argued that if the order is allowed, the Judiciary will be perceived to be an appendage of the Executive.

But Solicitor General Kennedy Ogeto, representing the State, had argued that LSK has misrepresented facts as the order was meant to inform the public on the catalogue of government services and which office, department or ministry was responsible for the same.

On the issue of separation of powers, Mr Ogeto said each arm of the government may have distinct roles and functions but that they are interdependent and ought to work with other arms and organs.

Mr Ogeto said the LSK has failed to demonstrate how the order had infringed on the constitutional and statutory mandate of independent commissions, tribunals and state organs.

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