Labour Court halts Uhuru order on State departments

Tuesday, August 4th, 2020 00:00 | By
Justice Makau. Photo/PD/CHARLES MATHAI

The High Court yesterday suspended the Executive Order by President Uhuru Kenyatta which placed the Judiciary and other independent bodies under various ministries and State departments.

 Justice James Makau issued the temporary order after the Law Society of Kenya (LSK) sued the Attorney General Paul Kihara and the Head of Public Service Joseph Kinyua  over the Executive Order which was issued on May 12.

“I find this is a suitable suit in which the court ought to intervene by exercising its checks and balances against the excesses of the Executive, which it has purported to use as an administrative process to extend its powers,” ruled the Judge.

According to Justice Makau, the public interest would be greatly jeopardised and compromised should the court decline to grant the interim orders preserving the suit.

The AG and the Head of the Public Service had opposed the grant of temporary orders arguing that LSK had neither alleged nor by way of adducing evidence remotely suggested infringement of either it or any person’’ infringement of the right set out in the bill of rights.

Corporate entity

The two contended that LSK was a corporate entity and it had not demonstrated in what manner it will be affected if conservatory orders sought are not issued.

The executive order which was issued in May affected the Tribunals, The Public Service Commission, Teachers Service Commission; The National Police Service Commission, the Parliamentary Service Commission, Judicial Service Commission and Independent Boundaries and electoral Commission.

Others included the Office of the Director of Public Prosecutions (DPP), Ethics and Anti-Corruption Commission (EACC), Commission on Administrative Justice (CAJ), The National Land Commission (NLC), The Office of the Controller of Budget (CoB), Commission on Revenue Allocation (CRA), Salaries and Remuneration Commission (SRC), Kenya National Commission on Human Rights and National Gender and Equality Commission.

LSK contested that the executive arm of government had given itself powers and a mandate unknown in law by purporting to restructure institutions that are outside its control and that cannot be categorized as Ministries or government departments.

Vital limits

“The executive, and any arm of the Government must be conscious of the vital limits on its authority and the Constitution’s design to respect the independence of other branches of government,” argued LSK in court documents.

Justice Makau agreed with the lawyers body saying that it had been proven that various independent offices including the Judiciary and some of its Tribunals have now been placed under   various State Departments and Ministries.

“This amounts to direct contravention of the Constitutional principles and values on Judicial Independence; the rule of law; transparency and accountability amongst others,” he said.

“Considering the facts of the subject matter; it is apparently that it is possible that the President has invoked his powers wrongfully and used administrative process to purport to restructure and re-organize independent Constitutional offices,” said the Judge.

Makau noted that LSK moved to the court for appropriate orders to prevent any further implementations of the Executive Order which  is already in force.

He further observed that the budgetary allocations for the various Ministries and Departments under which the Tribunals and various Independent Offices have been placed by virtue of the Executive Order and budgetary estimates are likely to be given and budgetary estimates.

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