David Maraga, the Chief Justice has expressed his displeasure at the latest Executive Order by President Uhuru Kenyatta.
Maraga faulted Uhuru’s Executive Order, in particular, placing the Judicial Service Commission under a state department.
The CJ said the JSC is part of the Judiciary, a government branch that can’t be assigned functions by the executive.
In the order signed on May 11, the President assigned functions and institutions among ministries and state departments, superseding the Executive Order No. 1 of 2018 (Revised) issued in July 2018.
It contained portfolio responsibilities and changes made in the structure of government. Uhuru specified functions of the constitutional commissions, independent offices, the Judiciary and Parliament.
But Maraga in a statement on Thursday said the order cannot restructure or assign functions to the other co-equal and co-substantial arms of government and independent commissions.
“An Executive Order cannot restructure or assign functions of the judiciary or the chief Justice,” Maraga said.
Maraga said the manner in which the Judiciary operates cannot be the subject of an Executive Order.
“The Judiciary is neither a ministry nor a government which can be organised by an executive order made,” he said.
“An Executive Order cannot restructure or assign functions to the JSC or its chairman. The constitution directly creates the JSC and assign it functions and powers in articles 171-173 of the Constitution.”
However, the Judiciary has always been mentioned in other Executive Orders.
Maraga said it was obvious that the order only applies to and is indeed only capable of applying to the Executive branch of government.
“I want to believe that this was an inadvertent error and that the office of the president will promptly issue a correction,” he said.
The Chief Justice said that both the Judiciary and the JSC are independent organs which are neither assigned functions nor derive authority from the Executive.
“It is imperative that the institutional independence be made clear in all official government publications and orders. This will serve to avoid confusion among the public as well as foster the constitutional spirit of separation of powers,” he said.
“It will also avoid the unwitting undermining of the other independent arms of government.”
In the latest order, the Nairobi Metropolitan Service was put under the Office of the President.
The Presidency title was also changed to the Executive Office of the President.
