The High Court has quashed the Head of State's Executive Order No. 3 of 2024, dealing a blow to President William Ruto.
The order, which sought to introduce new guidelines on the management of State corporations, was halted by Justice Chacha Mwita, marking a huge setback for the Executive in the attempt to seize control over governance and human resources in parastatals.
In the ruling, the court determined that the President's order violates Article 234(2) of the Constitution, which exclusively vests the powers of public service management in the Public Service Commission (PSC).
Since Article 234(2) vests exclusive authority for managing human resources in the public sector in the PSC, the court asserted that any legislation or executive action that undermines this mandate is void.
Not only did the court annul the Executive Order, but specific sections of the enabling legislation, including the State Corporations Act (Cap. 446), were also declared unconstitutional.
“The President cannot exercise powers that are constitutionally vested in the Public Service Commission,” Justice Mwita said. “Sections 5(3) and 27(c) of the State Corporations Act, to the extent that they confer such powers, are unconstitutional, null, and void," Justice Mwita stated in her ruling.
Ruto's Executive Order No. 3 was issued on May 24, 2024, through a gazette notice and was intended to place the Office of the President at the heart of governance oversight for State Corporations.
The new guidelines shone a spotlight on key areas, including board appointments, terms of service and staff management, all of which would be overseen directly by Ruto's office.
Predictably, the changes drew sharp opposition from constitutional bodies, particularly the Public Service Commission and the Law Society of Kenya (LSK), which successfully filed a petition opposing the orders.
LSK particularly argued that the guidelines attempted to establish a parallel public service structure outside the constitutional framework of the PSC, effectively threatening the independence and autonomy of the commission.
The High Court agreed with LSK's position, emphasising that the PSC acts as a necessary bulwark to ensure the public service operates under principles of merit, professionalism and impartiality as per Article 232.
Effectively, the judgment takes the Executive and Parliament back to the drawing board, as the two arms will have to review and align all legislation, including the State Corporations Act, to respect the powers of constitutional commissions such as the PSC.
