When Kenya’s supreme court declared the August 2017 elections invalid, the decision enraged President Uhuru Kenyatta who said that he would ‘deal with’ the judiciary. He has attempted to make good that threat in a number of ways, one of them being Executive Order No 1/2020, issued by him in May this year.
That decree re-structures government and includes the judiciary in a way that the Kenya Human Rights Commission says allocates the judges to a position of subservience in relation to the office of the president.
The Law Society of Kenya reacted to the executive order by lodging a petition against the Attorney General and the head of public service, asking to have that order declared unconstitutional. Pending full argument of the matter, the law society asked the court for a temporary interdict on implementation of the order.
When the matter was called last week, the law society said that the executive order proposes changes to the structure of the executive, and introduces changes to the structure of the judiciary.
Among these changes the president has placed various tribunals, constitutional commissions and other independent bodies ‘under various government departments’ so that they will be under the control and direction of these departments. Concerned that these tribunals, commissions and independent offices would lose their independence, and that their budgets and finances would be compromised, the law society urged the court to grant an order putting on hold the President’s plan in relation to the judiciary and the independent bodies that he had re-assigned.
The AG contested the interim order, saying the disputed executive order ‘enjoys the presumption of legality and constitutionality’. Moreover, the AG argued, there was no evidence that the interim order, if granted, ‘would enhance constitutional values … in the Bill of Rights’.
Judge James Makau said before he could grant the interim order, he needed to establish, among others, that the law society’s case had, at least on the face of it, a likelihood of success, and that it (the society) was likely to suffer prejudice if it were not granted.
Considering the facts of the matter, ‘it is apparent that it is possible that the President has invoked his powers wrongfully and used administrative process to purport to restructure and re-organise independent constitutional offices.’
‘It has been shown that various independent offices including the judiciary and some of its tribunals have now been placed under various state departments and ministries, which amounts to direct contravention of the constitutional principles and values on judicial independence, the rule of law, transparency and accountability amongst others.’
The judge said he was aware that, at this stage, he was not to examine the merits of the matter but, rather, had to consider whether a case had been made out on the face of it to warrant an interim order. He noted that the executive order was already in force and that the law society had come to court to ‘prevent any further implementations’. If he did not grant an interim order, budgetary allocations could be made that the court would later not be able to reverse. Various appointments and new policies were also likely to be made that would be difficult to reverse at a later stage.
The law society had argued that the executive arm of government had given itself ‘powers and a mandate unknown in law’, by purporting to restructure institutions that were outside its control. It had also argued that the judiciary, commissions and other constitutionally independent bodies had to be seen to be carrying out their functions ‘free of orders, instructions or any other intrusions’.
Given this background, if he did not grant the interim order it would ‘cause irreparable harm to the public’. Any alleged violation of the constitution was a very serious matter and an affront to constitutionalism. It set a dangerous precedent and could lead to serious harm to the country and every citizen. The law society had shown a likelihood of success and that public interest would be prejudiced if he were not to grant the order.
Apart from the judiciary, the constitutionally independent bodies which may now not be transferred to executive control, pending full argument of the matter, include the Judicial Service Commission, the Public Service Commission, the Kenya National Commission on Human Rights and the Independent Boundaries and Electoral Commission.
No date has been announced for the full hearing of the dispute.
Commenting on the May executive order, the Kenya Human Rights Commission said that in 2016, Kenyatta had issued an earlier executive order, dealing with the judiciary and the Judicial Service Commission among others. Two years later the law society won a court order declaring that the attempt to include these independent offices in the presidential executive orders was unconstitutional.
The May 2020 executive order was thus issued despite an existing court bar on such action by the president. The commission said that the rule of law required obedience to court orders, and that the president should withdraw the executive orders. Further, the commission was concerned because rather than encouraging and advising the president to comply, ‘the AG is encouraging disobedience of the orders of the high court.’
* 'A Matter of Justice', Legalbrief, 10 August 2020