• On Thursday, Chief Justice David Maraga released a statement faulting the President for including them in the executive order.
• The LSK says its unlawful for the President to reorganise the Judiciary, which is an independent institution
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The Law Society of Kenya wants the Executive Order No. 1, 2020, reviewed within the next seven days to exclude the Judiciary and its tribunals.
In a letter to Attorney General Kihara Kariuki, the LSK says it will challenge the order in court if the changes sought are not effected.
"The society will accordingly proceed to court to challenge the executive order upon expiry of seven days from today if the executive order will not have been revised to exclude the Judiciary and its tribunals, commissions and independent offices,” the letter reads.
On Thursday, Chief Justice David Maraga made lodged similar complaints in a statement that faulted President Uhuru Kenyatta for including them in the Executive order. In a rejoinder, however, AG Kariuki said the CJ misinterpreted the order. He said no law was violated and the independence of the Judiciary was not undermined.
But the LSK, through its president Nelson Havi and in support of the CJ's position, says President Kenyatta has no powers to make such orders, adding that it impairs the independence of the highlighted institutions.
The LSK says Chapter 15 of the Constitution enumerates independent commissions and offices and stipulates that they are not subject to direction or control by any person in authority.
“It is, therefore, unconstitutional for the President to purport to organise government and set out the Judiciary, commissions and independent offices as institutions under or functions of ministries, government departments and other constitutional bodies,” Havi says.
He claims some judges and magistrates are reasonably perceived to be pro-Executive and often decide matters in its favour, thus eroding public confidence in the Judiciary.
Havi also cites laxity by the Office of the Director of Public Prosecutions to prosecute government officials and other individuals considered to be sacred cows of the Executive. He adds that the fidelity of the ODPP and the AG to the Constitution and the rule of law is negated by the controls manifest on the executive order.
“The line between the commissions and the Executive continues to be blurred and appointment to and decisions by the commission are skewed towards the Executive, a confirmation that they act on the direction or control of the President,” the letter reads.
Havi says they have demonstrated how the order has not only violated the Constitution but further undermined the performance of the functions of the three categories of institutions.
"Your conduct insofar as obedience of court orders is concerned is indicative of the stranglehold of the Executive and impact of these executive orders. We need not exhaustively enumerate the number of court orders that have been disobeyed by the Executive whilst you turn a blind eye,” the society says.
The LSK has also taken a swipe at the Jubilee administration for disobeying court orders and distinguishing itself by contempt.
“We shall, nonetheless, not relent on our quest for justice because it is only a court of law that is mandated to determine legal disputes,” it says.