A few months ago President Uhuru Kenyatta made subtle changes within the structure of government, including the name of his office from The Presidency to the Executive Office of the President.
Executive Order No. 1 of 2020 caused a stir with some commentators interpreting the changes to the Deputy President officer had been downgraded and tucked under the Executive Office of the President.
“This innocent looking nomenclature change has huge legal implications… President denotes singularity of power … The presidency is shared power,” city lawyer Donald Kipkorir wrote on Twitter.
With President Uhuru’s arrangement, his deputy Dr. William Ruto would not get any portfolio and had to wait to be assigned duties. While Ruto did not appoint his staff, and his accounting officer was the State House Comptroller, William Ruto only lost his glamour.
The issue brought a lot of contestation hence triggering activists and the Law Society of Kenya to take the President to Court.
Fast forward, on Monday 3th August Deputy President William Ruto had all the reasons to smile as the High Court suspended the implementation of the President’s Executive Order that placed his office under the office of President Uhuru Kenyatta.
The executive order also placed constitutional commissions and independent bodies under the control of the Attorney-General and Cabinet Secretaries.
Justice James Makau said it was possible the President invoked his powers wrongfully and used the administrative process to restructure and re-organize independent constitutional offices.
According to the judge, the petitioner – the Law Society of Kenya (LSK), showed that public interest would be interfered with if the interim order were not issued pending hearing and determination of its case.
The case before the court is challenging the legality of the President’s action.
“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,” said Justice Makau.
The High Court Judge said such implementation would lead to a direct contravention of constitutional principles and values on judicial independence, transparency, accountability, and the rule of law.
He said failure to suspend the order would have rendered the petition nugatory as the Executive Order was already in force, and would see various key irreversible decisions made.
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Other decisions the Justice Makau said were likely to be issued under the President’s order were these concerning budgetary allocations for various ministries and departments.
“Budgetary estimates have also been given or are likely to be given and the court shall not be in a position to reverse the same upon hearing the petition. Various appointments to the tribunals and independent offices are likely to be made, among others,” Justice Makau said.
The Judge added that any alleged violation of the Constitution by an individual is a serious issue and an affront to constitutionalism, and sets a dangerous precedent in the violation of the Constitution.
If not looked into, the court said, the violation could result in serious harm to the country and her citizens.
