NULL AND VOID

Court declares Uhuru Executive Order unconstitutional

LSK had challenge the order saying the President did not have the powers to organise the government

In Summary
  • The court found that it is unconstitutional for President Uhuru Kenyatta to purpose to organise government.
  • The said decisions made by tribunals must be made without any influence from those the decision-making power is not given.

 

President Uhuru Kenyatta. FILE
President Uhuru Kenyatta. FILE
Image: FILE

The High Court on Thursday declared unconstitutional presidential Executive Order 1 which restructured the Judiciary and various tribunals and put them under state departments.

Justice James Makau, in his decision declared the executive order as null and void and contrary to Articles 10,27 (1),47,159,160,161,169,171,172,173, and 249 of the Constitution.

Makau found that it is unconstitutional for President Uhuru Kenyatta to purpose to organise government and set out Judiciary commissions and independent offices.

"I find that the implementation of the executive order is unconstitutional and illegal," he ruled.

"A declaration is issued that Executive Order number 1 of 2020 issued on January 14, 2020, purporting to organise the government and restructure the Judiciary is unconstitutional," the judge ruled.

In the case, the Law Society of Kenya moved to court to challenge the order saying the President did not have the powers to organise the government and set out the Judiciary, commissions, and independent office as institutions under the functions of ministries, government department and other constitutional bodies.

“I find the Executive Order, has not conformed to the Constitution and as such the constitution must overrule the order,” reads the judgment.

The judge further ruled that making such orders by the Executive constitutes administrative action as it amounts to implementing administrative policies, which require full adherence to the spirit and letter of the applicable laws.

According to the judge, Article 249 of the Constitution is the source of the independence of the various commissions in terms of appointment, operations, and security, adding that the independence of decision-making is the core of the matter.

The said decisions made by tribunals must be made without any influence from those the decision-making power is not given.

"I find by upholding such an amendment, the Judiciary—an arm of government—will be perceived by the public as a whole, to be an appendage of the Executive which in effect is unconstitutional, as it would usurp the powers of an independent constitutional commission and or interfere with the independence of the Judiciary and other commissions provided for by the constitution,” Justice Makau said.

LSK argued that the restructuring and placing of the various tribunals and Judicial Service Commission under various ministries and state departments is a threat to the judicial financial independence and therefore contrary to the Constitution.

According to the LSK, tribunals that ought to be under the Judiciary have been assigned to various government departments and ministries.

The lawyers’ body also asserted that the Judiciary, which is one of the three arms of government, has been lowered to the level of a ministry or a department.

LSK chief executive Mercy Wambua in her supporting affidavit, argued that the President can only interfere with the functions of various ministries, but should keep off the Judiciary and the Legislature.

“It is 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,” Wambua said.

Head of Public Service Joseph Kinyua and Attorney General Kihara Kariuki were named as respondents.

“The above restructuring of the Judiciary and placing of the various tribunals and the Judicial Service Commission under various ministries and state departments is a threat to judicial functions and financial independence,” LSK said.

 

-Edited by SKanyara