KITUO CHA SHERIA BLOG

Kituo cha Sheria (hereinafter referred to as “KITUO”) is the oldest legal non-governmental organization in Kenya. Its mission is to provide general legal education to the Kenyan people through the delivery of civic education programmes, legal aid, and strategic public interest litigation as well as monitoring the implementation by the State, of the constitutional provisions on human and peoples’ rights through regular research and reporting.

On the 3^rd June 2020 the President issued Executive Order No. 1 of 2020 in exercise of powers conferred on him under Article 132(3) (b) of the Constitution which mandates the President to direct and co-ordinate the functions of ministries and government departments.

The Executive Order No. 1 of 2020 is designed to include the Judiciary, Commissions and Independent Offices as government organs to be organized as set out in the order and further as institutions under or functions of ministries, government departments and other constitutional bodies. Like government ministries and government departments, the Judiciary, Commissions and Independent Offices are placed under the control and direction of the President. 

We are gravely concerned that the inclusion of the Judiciary, Commissions and Independent offices in the Executive Order, suggests and or creates the impression that these institutions, like government ministries or government departments are under the control or direction of the President.

To the extent Executive Order No. 1 of 2020 purports to empower the President to order and direct the organization of government and thus include the Judiciary, Commissions and Independent offices as some of the functions to be organized, it contravenes the principles of separation of powers and institutional independence.

The doctrine of separation of power contemplates an environment of separation of functions, independence and autonomy of institutions and separation of persons where a state organ does not assume control of more than one arm of Government. The spirit and vision behind separation of powers is that there be checks and balances, and that no single person or institution should have a monopoly of power.

KITUO affirms that Article 160 of the Constitution clearly provides that the Judiciary shall be subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority, including the Executive as the Executive Order purports.

Article 161 (2) (a) of the Constitution, on the other hand, states that the head of the Judiciary is the Chief Justice. It prescribes that the Chief Justice is the chairperson of the Judicial Service Commission as stipulated by Article 171.

Article 249(2) of the Constitution guarantees institutional independence by stating that the Commissions and the holders of Independent Offices are subject to the Constitution and the law and are independent and not subject to direction or control by any person or authority.

KITUO takes cognizant of the fact that ordinary citizens including its clients approach the court, commissions and independent offices seeking justice and services and the impression that the offices are under the control of the Executive will erode the general public confidence in the institutions.

We take the view that for effective delivery of justice and services the judiciary, commissions and independent offices need to enjoy public trust and their authority need to be accepted by the general public. If the general public believe that the decisions of the judiciary, commissions and independent offices are unfair and influenced in any way, then their decisions will lose legitimacy and respect hence undermining the rule of law and the confidence that they can access justice.

It is within this background that we, therefore, assert that the President has no power to coordinate or direct the Judiciary, Commissions and Independent Offices to include: the Judiciary; the Kenya National Human Rights and Equality Commission; the National Land Commission; the Independent Electoral and Boundaries Commission; the Parliamentary Service Commission; the Judicial Service Commission; the Commission on Revenue Allocation; the Public Service Commission; the Salaries and Remuneration Commission; the Teachers Service Commission; the National Police Service Commission; the Auditor-General; the Controller of Budget; and the Director of Public Prosecutions.

KITUO stresses that the issuance of Executive Order No. 1 of 2020 exemplifies a departure from the basic principles of separation of powers and undermines the independence of the Judiciary, Commissions and Independent Offices as guaranteed by the Constitution.

KITUO, therefore, recommends that the Government nullifies and or withdraws the Executive Order No.1 of 2020 for being unconstitutional.

We finally wish to reaffirm our commitment to promote constitutionalism, the implementation of the Constitution and the rule of law and justice to all the citizens of Kenya.

BY:

Mr. Justus Munyithya- Chairman, BoD

Dr. Annette Mbogoh- ED/ Secretary, BoD