Chief Justice David Maraga on Thursday, June 4, responded to an Executive order by President Uhuru Kenyatta that virtually restructured the government.
In a statement seen by Kenyans.co.ke, the Chief Justice opined that the changes could not be effected on the Judiciary.
"The order cannot restructure or assign functions to other co-equal and co-substantial arms of government and independent commissions. An executive order cannot restructure or assign functions to the Judiciary or the Chief Justice," the CJ stated.
"Pursuant to Article 132 (3) (b) which empowers the president to: "direct and co-ordinate the functions of ministries and government departments."
"The Judiciary is neither a ministry nor a government department which can be organised by an Executive Order made pursuant to that provision," the statement explained.
Maraga, who is the chairman of the Judicial Service Commission (JSC), further stated that the body derived its functions and powers in Articles 171-173 of the constitution.
"While the Executive Order has no legal effect as the constitution is clear about the creation of the judiciary and the JSC and their authority and functions, it is important that the public understands for the sake of our constitutional democracy,
"It is therefore obvious that the Order only applies and is, indeed, only capable of applying to the Executive branch of the government, I want to believe that this was an inadvertent error and that the office of the president will promptly issue a correction," he added.
The Chief Justice further explained that the independence of the Judiciary was paramount for democracy to be upheld.
"It is imperative that this institutional independence be made clear in all official government publications and orders. This will serve to avoid confusion among members of the public as well as foster the constitutional letter and spirit of separation of powers.
"It will also avoid the unwitting undermining of other independent arms of government and institutions," he noted.
President Uhuru Kenyatta issued an Executive Order on June 3, where he made changes in the organisation of the government.
The new executive order also added the Nairobi Metropolitan Service as a public office making Nairobi now officially under President Kenyatta. NMS will receive funding for the execution of its mandate from the head of state's office.
