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January 17, 2019

Executive Orders are as old as the Magna Carta

Magna Carta – Latin for “Great Charter” – also known as the Great Charter of the Liberties of England, was originally proclaimed in Latin by King John at Runnymede, on the bank of the Thames, near Windsor, England, on June 15, 1215.

Being the first document imposed upon a King of England by a group of his subjects in an attempt to limit his powers by law and to protect their rights and civil liberties, it required King John to proclaim certain fundamental liberties and accept that his authority wouldn’t be exercised arbitrarily. In other words, Magna Carta was the first democratic instrument issued by a reigning sovereign through the popular will of his people.

By the second half of the 19th century, however, nearly all of its clauses had been repealed in their original form. The Famous English jurist, Lord Denning, referred to Magna Carta as, “The greatest constitutional document of all times – the foundation of the freedom of the individual against arbitrary authority of the despot.”

In practice, however, Magna Carta did not generally limit the power of the kings of England in the medieval period. But it later inspired constitutional and libertarian developments around the world, including the enactment of the United States constitution.

One can plausibly argue that without Magna Carta there would hardly have been constitutionalism and Parliamentary democracy in England, in particular, and in the English Commonwealth, in general.

Ironically, the United Kingdom has a constitutional system of government without a written constitution. This means that a sovereign doesn’t require a written constitution to act constitutionally. Conversely, even those purportedly governing under written constitutions don’t necessarily act constitutionally.

Constitutionalism isn’t about blind or robotic adherence to, or enforcement of laws no matter how retrogressive they might be. If that were to be the case, then we would be demanding that the President and other institutions of state should be applying and enforcing the autocratic Chiefs’ Authority Act and other relics of the colonial past, many of which, as bizarre as it might sound, are still in our statute books.

In a constitutional democracy, power is distributed and limited by a system of laws that must be obeyed by those in positions of power and authority.

Whether those laws are written, codified or unwritten is immaterial. Its primary objective is to bring accountability and transparency in governance. It’s intended to reduce – if it cannot eliminate – arbitrariness and the culture of impunity.

Unfortunately, Kenyans are very forgetful. We have conveniently refused to remember that thousands of our fellow citizens suffered, were brutalised, dehumanised or died when those in authority believed they were enforcing legitimate laws against sedition.

Courts of law – and many of the judges still serving in our judiciary – convicted and incarcerated thousands of innocent civilians to long custodial sentences. Many others were hanged or detained without trial.

Tens of thousands of Kenyans have been subjected to punitive, cruel, unusual and inhumane treatments through purportedly “legal” processes.

Although we often referred to those courts as “Kangaroo Courts,” they were actual courts presided over by judges and magistrates wearing ugly wigs and long gowns, as they continue to do!

This illustrates the point that those shouting: “We must follow the legal process” aren’t just naïve; they are also amnesiac. In Kenya, 'following the legal process' often means 'surrendering to the old institutional alligators of impunity.' Looters, money launderers, drug dealers, land grabbers – name them – love the Kenyan police, prosecutors and courts.

It is, after all, the Kenyan Judiciary that has cleaned, cleansed and offered us corruption oligarchs as our political saviours. In numerous judgments, the judiciary has essentially declared those who looted trillions of shillings through the Goldenberg, Anglo Leasing, Triton, Lagos and Tokyo Embassies, Kazi Kwa Vijana (jobs for youth), and other scams as hardworking businessmen who used their brains to make a buck.

Most Kenyans don’t rely on Parliament and the Judiciary for accountability of its public figures. Instead of demanding accountability, most Kenyans want to partake in corrupt deals.

They jeer at those who haven’t been involved. “It is pragmatism,” they claim. Kenyans are no longer bothered with the lofty concept of justice.

They know that justice isn’t possible under the prevailing circumstances. Cynicism has become a national culture; money the most valued religion.

How do we get justice when the police are unable or unwilling to investigate crimes that have been committed even in their presence and the Judiciary refuse to convict all major perpetrators charged, even with evidence as high as Mount Kilimanjaro in front of them?

Sections 129 to 135 of the Constitution of Kenya 2010 must have been envisioned with the current conundrum in mind. These sections recognise that although executive authority is derived from the people, it vests on the President of the Republic to be exercised in accordance with the constitution.

It must also be exercised in a manner compatible with the principle of service to the people of Kenya and for their well-being and benefit.

Those with the knee-jerk reaction to Presidential Executive Orders, because they are more familiar with our previous mongrel system where decisions were made in an opaque and convoluted manner, should brush up on their reading on our new system of government.

Presidential Executive Orders and Directives cannot be declared illegal through ignorance. To determine the legality of an order, all one needs to do is conduct an enquiry on the type of executive order or directive, what it is intended for and why it has been issued.

If an executive order is founded under sections 129 to 135 of the constitution, and it is compatible with the principle of service to the people and for their well-being and benefit – like the revocation of titles to grabbed public land in Lamu county – then such an order cannot be illegal or unconstitutional merely because the President refused to cajole looters by sending them to their co-conspirators in the Judiciary.

The United States of America, which is the best known democratic Presidential system, adopted the use of Presidential Executive Orders and directives since the founding of the federation as the preferred route for Presidents, especially when necessitated by political, economic, military or security considerations. It is also legitimately exercised to circumvent the gridlock and filibuster in Congress.

In fact, America’s most innovative Presidents have relied on the exercise of executive orders to address their country’s most pressing needs: Franklin D Roosevelt issued a record 3,728 Executive Orders (290.71 per year); Woodrow Wilson had 1,803 Executive Orders (225 per year); John FKennedy, 214 Executive Orders (75 per year); and Jimmy Carter, 320 Executive Orders (80 per year).

Even President Barack Obama has issued 184 Executive Orders to date, which is an average of 34 per year. To initiate the novel “President’s Advisory Council on Doing Business in Africa” on August 5, 2014, President Obama didn’t go to Congress or the Supreme Court for approval of his first pro-African policy initiative; he exercised Executive Authority.


Mr. Miguna Miguna is a lawyer and author of Peeling Back the Mask: A Quest for Justice in Kenya and Kidneys for the King: Deforming the Status Quo in Kenya.

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