The High Court has quashed an Executive Order issued last year by President Uhuru Kenyatta, re-organising the government and placing independent institutions under the control of the Attorney-General and Cabinet secretaries.
Justice James Makau said it was unconstitutional for the President to purport to restructure and re-organise independent offices.
According to the judge, the President 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 (JSC) under various ministries and State departments is a threat to judicial independence,” said Justice Makau.
The judge noted such reorganisation would see independent institutions overrun by respective ministries and departments including on budgetary allocations, among others.
The Law Society of Kenya (LSK) moved to court to challenge the gazette notice published on May 11, 2020, arguing that the functions of the Judiciary cannot be restructured or assigned through an Executive Order.
Commissions that would have been affected by the order include JSC, Teachers Service Commission, Parliamentary Service Commission and Commission of Administrative Justice, among others.
Justice Makau said an Executive Order constitutes administrative action to implement policies, which 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 is concerned, as it should be carried out by way of a referendum,” the judge said.
LSK had argued that if allowed, the Judiciary would have been perceived to be an appendage of the Executive.
But Solicitor-General Kennedy Ogeto countered saying the LSK had 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 are interdependent and ought to coordinate and work with other arms and organs.
Mr Ogeto said LSK has failed to demonstrate how the order infringed on the constitutional and statutory mandate of independent commissions, tribunals and State organs.