Court suspends Uhuru’s Executive Order on independent commissions

By JOSEPH WANGUI

The High Court has suspended implementation of President Uhuru Kenyatta’s Executive Order that placed constitutional commissions and independent bodies under the control of the Attorney-General and Cabinet Secretaries.

Justice James Makau said Monday that it was possible the President invoked his powers wrongfully and used the administrative process to restructure and re-organise independent constitutional offices.

The judge also said the petitioner, the Law Society of Kenya (LSK), demonstrated that public interest would be prejudiced if the interim order were not issued pending hearing and determination of its case.

The case is challenging the legality of the President’s decision.

“It has been shown that various independent offices including the Judiciary and some of its tribunals have now been placed under various State Departments and Ministries,” stated Justice Makau.

INDEPENDENCE

The Executive Order of May 11 affected more than 20 commissions by putting them under respective departments and ministries.

Justice Makau said such placement amounts to direct contravention of constitutional principles and values on judicial independence, the rule of law, transparency and accountability among others.

In his view, failure to suspend implementation of the President’s decision would have rendered the petition nugatory as the Executive Order was already in force, and would see various key irreversible decisions made.

Among the decisions the judge said were likely to be made by virtue of the Executive Order were those concerning budgetary allocations for the various ministries and departments under which the tribunals and  independent offices were placed.

“Budgetary estimates have also been given or are likely to be given and the court shall not be in a position to reverse the same upon hearing the petition. Various appointments to the tribunals and independent offices are likely to be made, among others,” Justice Makau said.

PUBLIC INTEREST

The court added that ministry and department manuals and policies could also be affected.

“Public interest lies in favour of preserving and protecting values and interest. I find this is a suitable suit in which the court ought to intervene by exercising its checks and balances against the excesses of the Executive, which administrative processes to extend its powers.”

The judge further said that public interest risked being jeopardised and compromised had the court declined to grant the interim orders, which he said would “avert irreparable harm to the public”.

He stated that any alleged violation of the Constitution by any individual is a serious matter and an affront to constitutionalism, and sets a dangerous precedent in the violation of the Constitution.

If not checked, the court said, the violation could result in serious harm to the country and every citizen.

The judge issued orders against implementation of the President’s directive with respect to the Public Service Commission, Teachers Service Commission, National Police Service Commission, Parliamentary Service Commission and Judicial Service Commission.

Also excluded was the Independent Electoral and Boundaries Commission, the office of the Director of Public Prosecution, the Ethics and Anti-corruption Commission, the Commission on Administrative Justice and the National Land Commission.

Others are the office of the Controller of Budget, Commission on Revenue Allocation, Salaries and Remuneration Commission, Kenya National Commission on Human Rights and the National Gender and Equality Commission.

LSK’S CASE

In challenging the Executive Order, the LSK said the re-organisation offended the doctrine of separation of powers and interfered with the institutional and structural independence of the judicial arm of government.

Led by its CEO Mercy Wambua, the society said the move also interfered with the independence of the  constitutional offices.

But Attorney-General Kihara Kariuki  and Head of Public Service Joseph Kinyua opposed the petition, saying the Executive Order enjoys the presumption of legality and constitutionality.

They added that the LSK is a corporate entity and had not demonstrated in what manner it would be affected if conservatory orders sought were not issued.

Further, they argued there was no evidence that the grant of the conservatory orders would enhance constitutional values and objects specific to the rights and freedoms in the Bill of Rights.

“There is no allegation that previous executive orders have been the basis for usurpation of constitutional roles or functions or independent offices, constitutional commissions, tribunals and other arms of government,” they noted.

They described the LSK application as speculative, moot and bad in law.

The JSC, which was listed as an interested party, opted not to participate in the proceedings and said it would file any responses and submissions.