The High Court overturned a decree issued last year by President Uhuru Kenyatta, reorganizing the government and placing independent institutions under the control of the attorney general and cabinet secretaries.
Judge James Makau said it was unconstitutional for the president to claim to restructure and reorganize independent offices.
According to the judge, the President does not have the power to transfer the functions of constitutionally established institutions.
“I find that the Applicant has demonstrated that the envisaged restructurings of the judiciary, a branch of government, by the executive branch of government and the placement of various courts and the Judicial Services Commission (JSC) under various ministries and departments of the ‘State pose a threat to independence justice,’ said Judge Makau.
The judge noted that such a reorganization would see independent institutions overtaken by respective ministries and departments, including on budget allocations, among others.
The Law Society of Kenya (LSK) seized the court to challenge the opinion published in the gazette on May 11, 2020, arguing that the functions of the judiciary cannot be restructured or assigned by decree.
The committees allegedly affected by the order include the JSC, the Teachers’ Services Commission, the Parliamentary Services Commission and the Administrative Justice Commission, among others.
Justice Makau said that an executive decree constitutes administrative action to implement policies, which require full compliance with the spirit and letter of applicable laws.
“I find the executive decree purporting to reorganize government structures, including independent commissions, to be illegal and unconstitutional as far as any amendment or restructuring of independent commissions is concerned, as it should be done by referendum,” said the Minister. judge.
LSK had argued that if allowed, the judiciary would have been seen as an appendage of the executive.
But Solicitor General Kennedy Ogeto countered by saying the LSK misrepresented the facts because the order was intended to educate the public about the catalog of government services and which office, department or ministry was responsible for it.
On the issue of the separation of powers, Mr. Ogeto said that each branch of government may have distinct roles and functions but is interdependent and must coordinate and work with other branches and bodies.
Mr Ogeto said LSK had failed to demonstrate how the ordinance violated the constitutional and statutory mandate of independent state commissions, tribunals and bodies.