Executive orders are powerful directives issued by the Executive arm of the government.
They are a regular feature of the exercise of presidential powers in presidential systems of government such as our own. In the United States, for instance, President Barack Obama signed a total of 276 Executive orders during his tenure, according to the Federal Register. President Donald Trump signed 18 within 12 days of his presidency. President Uhuru Kenyatta has up to now signed fewer than 10 in his six years in power. Some Executive orders are controversial, some are procedural, and some simply reverse orders signed by former presidents.
In the hierarchy of legal force, therefore, such orders rank below the Constitution or statute. The latest EO by
Uhuru styled ‘Framework for Coordination and Implementation of National Government Development Programmes and Projects’ has drawn interest and reaction from ordinary Kenyans and commentators.
The powers, mandates and authority of the President of Kenya are spelt out in detail in the Constitution. They include the core function of directing and coordinating ministries and state departments. In the discharge of this and other functions, the President is assisted by the Deputy President, as the principal assistant, and the Cabinet.
By Executive Order 1, 2019, President Kenyatta established a Cabinet committee on coordination and implementation chaired by the Interior Cabinet Secretary, to coordinate the implementation of the Big Four agenda and the Third Medium Term Plan projects. Three other structures were established by the EO, cascading all the way to the county level.
Two important questions arise from the EO. First, whether the delegation of coordination authority of the President is constitutionally permissible and second, whether the coordination and implementation committee supplants the role ordinarily belonging to the DP.
CONSTITUTIONALITY
The President’s authority to organise the Cabinet in a manner that achieves maximum efficiency in aid of delivery of national development objectives is unquestionable.The economic loss occasioned by poor coordination, wastage and duplication in government is without a doubt astronomical. Equally, inefficiencies in delivery of government priorities requires little elaboration.
Nothing, therefore, precludes the President from directing the re-orientation of the Cabinet to make it deliver optimally in the national interest.
If the intention, therefore, is to streamline service delivery, one should find very little reason to agitate against the EO.
Further and more pertinently, if the purpose is to depoliticise development priorities, the EO will be warmly received. Indeed, in CS Fred Matiang’i — the now Chair of the Coordination and Implementation Committee — based on his past performance, the country will find an apolitical, objective and energetic state officer. Depoliticising development is important in a country in which often, development choices are informed by access to political power. This committee, therefore, has the real chance of reversing skewed public sector priorities in favour of equitable development in line with Vision 2030.
THE RISK
Concern may be raised about the extent to which the coordination framework has sought to leverage upon the existing provincial administration system. Another concern relates to integration of county institutions in the framework
While the National Coordination Act has reconceptualised the system of the provincial administration as urged upon by the Constitution, history has shown that extending the scope of administrative officers beyond the security docket is always fraught with risk. Consequently, it is hoped that the Executive order and the implementation thereof does not unwittingly weaponise the former provincial administration into an agent for executing nefarious political purposes. If this later scenario were to unfold, rather than operate on the cutting edge of efficiency in service delivery, the provincial administration will be the bleeding edge of political fragmentation.
A cardinal principle embodied in Article 189 of the Constitution is the need for the two levels of government to accord respect to their functional and institutional integrity.
This means the Regional and County Implementation and Coordination committees must find ways of engaging effectively with county institutions for the avoidance of conflict. Failure to achieve this comity will disturb the intended efficiency.
ON WHITTLING DOWN DP’S ROLE
Sections of commentators have erroneously suggested that the Executive Order seeks to water down the DP’s role. Nothing in the EO is basis for this determination. The constitutional roles of the DP are to deputise the President; act as President in the latter’s absence; succeed him in the event of vacancy in the Office of the President; or undertake such other functions as may be donated by the President in writing.
To the best of my knowledge, the coordination role has never been donated to the Deputy President under this administration.
He thus cannot be said to have lost what he never had.
Sing’Oei is a legal adviser at the
Deputy President’s office. Views
expressed here are personal