Lawyers Term Uhuru’s Executive Order Unconstitutional

  • President Uhuru Kenyatta addresses a virtual summit of THE Organization of the African, Caribbean and Pacific States OACPS on Wednesday, June 3, 2020
    President Uhuru Kenyatta addresses a virtual summit of THE Organization of the African, Caribbean and Pacific States OACPS on Wednesday, June 3, 2020
    PSCU
  • Lawyers have pointed out glaring errors in President Uhuru Kenyatta's Executive Order No. 1 of 2020, arguing that it is unlawful and unconstitutional.

    Kenyatta, on Wednesday, June 3 restructured the government, stipulating roles and duties of the Executive and the Judiciary. 

    In a letter dated June 4, the Law Society of Kenya under its President Nelson Havi stated that Kenyatta had vividly interfered with the sovereignty of the Judiciary, constitutional commissions and independent offices. 

    File photo of Law Society of Kenya President Nelson Havi.
    File photo of Law Society of Kenya President Nelson Havi.
    Daily Nation

    The letter was addressed to the Attorney General Paul Kihara Kariuki, who on the very same day, differed with Chief Justice David Maraga on the legality of the order.

    "It will be a dereliction of duty if we were to remain mum on the President's evident violation of the constitution. Of great concern is the manner in which previous orders and the current one have dealt with independent offices.

    "As per the constitution, the Judiciary under the Chief Justice and other independent offices are not subject to direction or control by any person or authority. The AG's office, Director of Public Prosecutions (DPP) offices are independent offices and cannot be under the control of the President," Havi wrote.

    LSK further raised concern over Judicial officials who are aligned with the Executive and are being used to manipulate the constitution in favour of the government. Havi pointed fingers at DPP Noordin Haji, who he accused of having made decisions that contravene the law while acting under Kenyatta's directives.

    "It is a fact that there are judges and magistrates who are reasonably perceived to be pro-Executive and often decide matters in which the Executive is concerned in favour of the Executive. This erodes public confidence in the Judiciary.

    "The AG and ODPP have in the recent past acted on the direction of the President. This is exemplified in the blatant disobedience of Court orders. Appointments to and decisions by Commissions are skewed towards the Executive, a confirmation that they act on the direction or control of the President," Havi stated.

    Chief Justice David Maraga, on Thursday, June 4, raised similar concerns as LSK. 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 which defines the creation of JSC and 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.

    Attorney General Paul Kihara responded to Maraga's sentiments defending Kenyatta against accusations that he had undermined independent institutions. Kihara added that the CJ may have misunderstood the document.

     "There is no provision in the Executive Order with the express purport of 'restructuring' the Judiciary, the Judicial Service Commission or any other independent constitutional organ or institution, outside the purview of the National Executive.

    "Nothing in the order is intended to undermine any independent arms of the government or institutions, or to cause any confusion to members of the public," the AG noted.

    Chief Justice David Maraga during a court session in 2017.
    Chief Justice David Maraga during a court session in 2017.