The High Court has issued conservatory orders halting the implementation of the controversial transfer of the Public Seal from the Attorney General to the Head of Public Service.
Justice Chacha Mwita delivered the ruling on Thursday, June 12, stating that the transfer raised fundamental constitutional and legal issues of public importance that must be fully heard before any action is taken.
“A conservatory order is hereby issued restraining or stopping implementation of Executive Order No. 2 of 2023 to the extent that it purports to reorganise government and transfer the Public Seal from the custody of the Office of the Attorney General to the Head of Public Service in the Executive Office of the President, until further orders of the Court,” the judge ruled.
The court decision came barely 24 hours after lobby group Katiba Institute filed a petition on Wednesday. In the petition, they argued that Executive Order No. 2 of 2023 remained operational despite clearly violating the Constitution and the doctrine of separation of powers.
Executive Order No. 2 of 2023 outlines the organisational structure of the Kenyan government, specifying the roles and responsibilities of various Ministries, State Departments, and Agencies.
In their petition, Katiba Institute argued that President William Ruto bypassed Parliament through the Executive Order, in what they termed a blatant power grab.
The transition of the Public Seal from the traditional custody of the Attorney General to the office of the Head of Public Service (HOPS) was facilitated by the National Assembly Administration Laws (Amendment) Bill, 2023. The bill proposed to amend the Office of the Attorney-General Act, 2012, effectively stripping the Attorney General of the authority to host the Seal.
Following a review of the petition, the High Court concluded that there were sufficient grounds to issue conservatory orders.
“This matter coming up for directions on the Notice of Motion and Petition… I am satisfied that the petition raises fundamental constitutional and legal matters of great public importance,” Justice Mwita stated in his written directive.
By issuing the conservatory orders, the High Court effectively blocked any implementation of the executive directive, specifically the transfer of the Public Seal, pending further court directions.
The Court also gave the petitioner seven days to file supplementary affidavits and written submissions not exceeding ten pages. The respondents will then have seven days to submit their responses.
The Public Seal plays a crucial role as a national symbol and a tool for authenticating official government documents. The Seal consists of the coat of arms of Kenya set on a grayscale background featuring two lions, a symbol of protection, holding spears and a traditional East African shield.
It serves as a mark of authenticity for key government documents, ensuring their legitimacy and official status. It is affixed to documents to confirm that they have been issued or approved by the state.
As a national symbol, it represents the authority of the Kenyan state and is a formal marker of sovereignty.
