The Law Society of Kenya (LSK) then filed a case contesting the legality of Executive Order 1 of 2020, arguing that the executive branch of government could not delegate any restructuring or functions to other arms and independent commissions .
Now, High Court Judge James Makau has stated that it is unconstitutional for Mr Kenyatta to purport to organize government and to represent the judiciary, commissions and independent offices as institutions or functions of ministries. According to the judge, the head of state is not empowered to delegate functions from constitutional institutions.
“I note that the petitioner has demonstrated that the intended restructuring of the judiciary, a government arm, by the executive arm of the Government and the subordination of different tribunals and the Judicial Service Commission under different ministries and government departments is a threat to the independence of the judiciary, “said the judge.
Judiciary Makau noted that it was clear during the restructuring that the Offices that are accepted under different departments and ministries are overrun by the respective responsible ministries and departments and that, among other things, budget allocations and financial requests are made in accordance with the instructions and criteria set by the respective ministries and departments involved.
To those affected by the order These commissions include the Judicial Service Commission, the Teacher Service Commission, the Parliamentary Service Commission and the Administrative Commission ative Justice, among others.
The judge said that the implementing regulation is an administrative measure as it amounts to implementing administrative directives that require full compliance of the spirit and wording of the law in force.
“I find the executive order purporting to reorganize government structures, including independent commissions, to be illegal and unconstitutional in terms of changing or restructuring independent commissions which should be carried out by means of a referendum, “said the judge.
LSK had argued that if the order is approved, the judiciary will be perceived as an appendage to the executive branch.
But Attorney General Kennedy Ogeto, who had argued the state that LSK misrepresented facts because the order was supposed to inform the public about the catalog of government services and which office, department or ministry was responsible for it.
On the issue of separation of powers, Mr. Ogeto eac said the government arm can have different roles and functions, but that he is interdependent and should work with other weapons and organs.
Mr Ogeto said the LSK had not proven that the order violated the constitution and legal mandate of independent commissions, Courts and state bodies.