LSK says Uhuru’s new Executive Order is illegal, to file petition in court

NAIROBI, Kenya Jun 5 – The Law Society of Kenya has threatened to move to court to challenge President Uhuru Kenyatta’s new Executive Order, No 1 of 2020, for violating the Constitution by including the Judiciary and other Independent Offices in the pecking order.

In a letter addressed to Attorney General Kihara Kariuki, LSK President Nelson Havi said the society will file a petition in seven days unless the Executive Order is not withdrawn.

“The Judiciary, Commissions and independent offices are not to be under the control of the President. The lines between commissions and the Executive continues to be blurred,” Havi said, accusing the Executive of seeking to control the Judiciary.

He went on to say that “It is unconstitutional for the President to purport to organize the government and set out the Judiciary, Commissions and Independent offices as institutions under or functions of ministries government departments and other constitutional bodies. He has no such powers.”

While accusing the office of the Attorney General and the Office of the Director of Public Prosecutions (ODPP) for being notorious in advancing the Executive’s agenda albeit unconstitutionally in many occasions, Havi said the independence of the institutions must be respected.

“It is a fact that there are Judges and Magistrates who are reasonably perceived to be pro Executive and often decide matters in which the Executive is concerned in favour of the Executive. They labor under the erroneous notion that they are under the control of the Executive. This erodes public confidence in the Judiciary,” he said.

The LSK in 2018 also moved to court to challenge President Kenyatta’s Executive order which placed 20 constitutional commissions under direct control of the office of the AG and Cabinet Secretaries.

Havi’s letter follows a protest from Chief Justice David Maraga who said the Executive Order undermines the autonomy of his office by seeking to direct its functions.

“I want to believe that this was an inadvertent error and that the office of the President will promptly issue a correction,” Maraga said in his protest letter.

The AG has however, defended the President’s action, saying the Executive Order was issued within the law.

“Nothing in the Executive Order is intended to undermine any independent arns of government institutions or to cause any confusion to the public,” the AG said in a statement on Thursday.

Besides the Judiciary and the JSC, the Executive order listed other 39 ministries, state departments, constitutional commissions and independent offices.

The new Executive Order has also elicited mixed reactions after abolishing what was known as the Executive Office of the Deputy President, which is now under the Executive Office of the President.

Under the previous order, the two offices were under the Presidency.