A key concern arising from this order is the inclusion of the judiciary, independent offices and constitutional commissions in the structure of government, in a manner that allocates them subservience over the office of the President. When he took power in 2013, President Uhuru Kenyatta issued the first of the executive orders that he has since issued, regarding the organization of his government. The order designated the country into 18 ministries, themselves also divided into several state departments. The 2013 executive order soon gave rise to litigation in the High Court, based on concerns that the President had purported to assign to the Attorney General, responsibilities that the Legal Education Act assigns to a Cabinet Secretary. In the end, the High Court upheld the objection and declared that “any executive order that purports to assign... cabinet secretarial functions and powers contrary to the letter and spirit of the Constitution and the law, is invalid, null and void.” The court further held that whereas the Attorney General, is a member of the Cabinet, he is not a Cabinet Secretary and therefore cannot … perform or purport to perform the functions specifically reserved for a Cabinet Secretary under any piece of legislation.”
The High Court thus invalidated the attempt by the President to assign, through the order, responsibility over the Legal Education Act when the Parliament had assigned the same responsibility to a cabinet minister.
The next executive order, issued in 2016, listed not only the ministries that would form the government but also extended its coverage to independent entities including constitutional commissions, the judiciary and the Judicial Service Commission. This approach has been repeated in all the executive orders since then.
In 2018, the Law Society of Kenya obtained orders from the High Court declaring that the purported inclusion of these independent offices in the presidential executive orders was unconstitutional.
Thus, notwithstanding two High Court judgements, the President has carried on with the practice of issuing executive orders whose contents offend not only the Constitution but also the express orders of the High Court.
The 2020 executive order also appears to have provided the occasion for extending the internal wrangles within the Jubilee party whose senior figures have been dismissed from positions of leadership in the Parliament. The re-designation of the executive office of the Deputy President into a department within the office of the president is seen as a demotion of the Deputy President and a consolidation of the political ostracisation to which Mr. Ruto has already been subjected.
The President’s actions fit into growing concern that the country is being prepared for a referendum for the amendment of the Constitution about which the President addressed the country on Madaraka Day. On that occasion, the President cited Tom Mboya’s book “Freedom and After” and made the point about what he called “Constitution rigidity” “That the constitution cannot be useful to a country if it is an end in itself. A good constitution must be responsive to the aspirations of a nation and be a means to a greater end.
Further, “if the political architecture provided by a constitution cannot support the growth and progress of a nation, that constitution becomes a cancer to the body politik”
There has been no public discussion of what ails the country in relation to which constitutional reforms might be the remedy. While the Building Bridges Initiative, which the President supports, has purported to be the framework for a response to the country’s political challenges, the process has remained under the personal control of the President and Mr. Raila Odinga, and lacks both legitimacy and genuine participation.
The fear now is that the stage is being set for an attempt to impose on the country, the personal preferences of the President which will be presented as the genuine needs of the country. This approach cannot work and is likely to subject the country to the kind of political anxiety that it has faced in the recent past.
The KHRC would like to remind the President that since the announcement of the first case of COVID-19 in Kenya on 12th March 2020, the country’s economy and human survival has faced great peril. Citizens continue to experience significant social to economic stress, resulting from job losses and the closure of businesses. Citizens also continue to live under police violence staged as a way of enforcing the curfews that are a response to COVID -19.
In conclusion, the rule of law requires the obedience of court orders. This is what the President must now do by withdrawing the executive orders that the High Court has already passed judgement against. The KHRC is concerned that rather than encourage and advise the President to comply, the Attorney General is encouraging the disobedience of the orders of the High Court.
Secondly, there can be no constitutional amendment that is not accompanied by appropriate levels of preparatory political work. At this point in time, with the country addressing rising cases of COVID-19 and the economic ravages measures against it have caused, the national priorities are against high politics and in favour of concentrating on what is necessary for the country to survive. Further, any constitutional amendment would require prior political consultation and consensus building of an appreciable level. This has not happened and cannot now happen, given the political context and the new priorities.
Nairobi, 8th June 2020
Kenya Human Rights Commission