Court quashes Uhuru’s independent offices restructuring order

President Uhuru Kenyatta. PHOTO | JEFF ANGOTE | NMG

By SAM KIPLAGAT
More by this Author

Summary

• Ruling on a petition by the Law Society of Kenya (LSK), Justice James Makau said the President acted unconstitutionally by attempting to transfer, to restructure the functions of independent offices.
• President Kenyatta in an Executive Order dated May 11, 2020, had spelled out restructures that would have affected the operations of more than 20 commissions.

The High Court has blocked President Uhuru Kenyatta from placing constitutional commissions and independent organisations under the control of the Attorney-General and Cabinet secretaries.

Ruling on a petition by the Law Society of Kenya (LSK), Justice James Makau said the President acted unconstitutionally by attempting to transfer, to restructure the functions of independent offices including the Judiciary.

President Kenyatta in an Executive Order dated May 11, 2020, had spelled out restructures that would have affected the operations of more than 20 commissions by putting them under respective departments and ministries.

The Public Service Commission(PSC), Teachers Service Commission(TSC), National Police Service Commission(NPSC), Parliamentary Service Commission(PSC), and Judicial Service Commission(JSC) are among those that would have been affected by the Presidential order.

Justice Makau said such restructures would have compromised their independence.

“I find that the petitioner has demonstrated that the intended restructure of the Judiciary, an arm of government, by the Executive arm of the government and placing various tribunals and Judicial Service Commission under various ministries and state departments is a threat to judicial independence,” he said.

He added that the Executive order constitutes administrative action as it amounts to implementing administrative policies, which fully require full adherence to the spirit and letter of the applicable laws.

“I find the Executive Order … is illegal and unconstitutional, in so far as any amendment or restructuring to independent commissions is concerned, as it should be carried out by way of a referendum,” Justice Makau said.