Court Quashes President Kenyatta’s Order Placing Judiciary, Independent Offices Under Executive

President Uhuru Kenyatta [Photo/Courtesy]

The High Court in Nairobi has quashed an Executive Order issued by President Uhuru Kenyatta last year reoganising the Judiciary and other independent offices.

In the Executive Order No. 1 of 2020 dated January 14, 2020, the Head of State had placed Judiciary, Tribunals, Commissions, and Independent Offices under the Executive.

The Law Society of Kenya moved to court to challenge the reorganisation that also affected state departments and ministries.

In court documents, LSK argued that Executive Order titled ‘The Organization of Government’ can impair the independence of the Judiciary, commissions and independent offices.

In a ruling delivered on Thursday, Justice James Makau agreed with the petitioners and declared the Executive Order unconstitutional, null and void.

“An order of Judicial Review by way of an Order of CERTIORARI be and is HEREBY granted pursuant to Article 23 (3) (f) to remove into the Court for purposes of quashing portions of the Executive Order Number 1 of 2020 issued on 14th January 2020 (Revised) May 2020 that purports to organize the government and set out the Judiciary, and its Tribunals, Commissions and Independent offices as institutions under the functions of ministries and JUDGMENT IN CONSTITUTIONAL PETITION NO. 203 OF 2020 Page 41 of 42 government departments and other constitutional bodies, specifically Paragraphs (1), (3), (5), (7), (10), (11), (16), (18), (21), (22), (27), and (28),” the judgment reads.

Read: Court Declares Appointment of 128 Kenyans to State Parastatals Unconstitutional

Other institutions that the President had sought to reorganize include the Ethics and Anti-corruption Commission, Judicial Service Commission and the Kenya  National Commission on Human Rights.

Others are Public Service Commission, the Teachers Service Commission, the National Police Service Commission, Parliamentary Service Commission, the Office Directorate of Public Prosecutions, the National Land Commission, the Office of the Controller of Budget, among others.

In the petition, LSK counsels argued that the order flouts the doctrine of separation of powers and further interfering with the institutional and structural independence of the judicial arm of government and various constitutional independent offices.

“The executive order is unconstitutional because the Executive arm of government cannot restructure or assign functions to its co-equal and independent commissions,” the court documents read.

Read Also: BBI Secretariat to Appeal Ruling Declaring Bill Unconstitutional

LSK added, “the Judiciary and other independent commissions cannot be categorised and are not established as ministries or government departments.”

The Office of the Attorney General and Head of Public Service Joseph Kinyua were listed as respondents in the case.

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Written by Wycliffe Nyamasege


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