Court Scraps Uhuru’s Executive Order On Independent Commissions

The High Court on Monday August 3 suspended an Executive Order by President Uhuru Kenyatta which placed independent constitutional bodies under the direct control of the Attorney General and Cabinet Secretaries.

The Executive Order dated May 11, 2020 would have seen tribunals and independent offices lose their independence and be subjected to respective departments and ministries unless court intervenes.

Over 20 commissions would have been affected by the order. They include Public Service Commission, Parliamentary Service Commission, Judicial Service Commission, Ethics and Anti Corruption Commission, Controller of Budget, Teachers Service Commission among others.

In suspending the order, Justice James Makau revealed the possibility of the President invoking his powers wrongfully and using administrative process to purport to restructure and re-organise independent constitutional offices.

“It has been shown that various independent offices including the Judiciary and some of its tribunals have now been placed under various state departments and ministries, which amount to direct contravention of the constitution,” he said

The judge observed that various key irreversible decisions will be made if the court does not intervene, among them being budgetary allocations for the various ministries and departments under which the tribunals and various independent offices have been placed by virtue of the Executive Order .

“I find this is a suitable case in which court ought to intervene by exercising its checks and balance against the excesses of the executive which it has purported to use administrative process to extend its powers,” he added.

Makau noted that public interest would be greatly compromised should the court decline to grant the interim orders.

The case was filed in court by the Law Society of Kenya.

It sued the office of the Attorney General and Head of Public Service Joseph Kinyua. The Judicial Service Commission was listed as an interested part.

LSK was aggrieved that the executive arm of the government has given itself powers and a mandate unknown in law by purporting to restructure institutions that are outside its control.

It said the effect of the executive order is that it contained portfolio responsibility and changes made in the structure of government.