Chief Justice David Maraga has taken to task the executive arm of state over the latest Executive Order by President Uhuru Kenyatta on the organization of government.
The order which authorizes the president to direct and coordinate the functions of ministries and government departments according to Maraga has erroneously listed functions that include those of the judiciary, the Chief Justice and the Judicial Service Commission.
The Chief Justice maintains that his office alongside JSC is part of Judiciary and cannot be assigned functions by the executive as they derive their mandate directly from the constitution of Kenya.
The order issued by the President Wednesday evening spells out changes in the structure of government.
Read related: Executive Order on the organization of government.
In a statement to newsrooms Thursday morning, Maraga says the order cannot restructure or assign functions to the other co-equal and co-substantial arms of government and independent commissions.
“The manner in which the judiciary operates cannot be the subject of an Executive Order made pursuant to Article 132(3)(b) which empowers the President to: “direct and co-ordinate the functions of ministries and government departments.” The Judiciary is neither a ministry nor a government department which can be “organised” by an Executive Order made pursuant to that provision” the CJ says.
Similarly, Maraga says the Executive order cannot restructure or assign functions to JSC or its chairman.
Maraga notes that it was obvious that the order only applies to and is indeed only capable of applying to the Executive branch of government….while calling for a review of May 11, 2020 order.
“While the Executive Order has no legal effect as the Constitution is clear about the creation of the Judiciary and the JSC and their authority and functions, it is important that the public understands, for the sake of our constitutional democracy, that both the Judiciary and the JSC are independent organs which are neither assigned functions nor derive authority from the Executive branch of government,” he says.
The CJ says he believes it was an inadvertent error and that the office of the president will promptly issue a correction.
“It is imperative that this institutional independence is made clear in all official government publications and orders. This will serve to avoid confusion among members of the public as well as foster the constitutional letter and spirit of separation of powers. It will also avoid the unwitting undermining of the other independent arms of government and institutions”.