Chief Justice Maraga faults State House on Executive Order
Irene Githinji @gitshee
The Executive Order No.1 of 2020 signed by President Uhuru Kenyatta on Wednesday has re-ignited the rivalry between the Executive and the Judiciary, with Chief Justice David Maraga accusing State House of interfering with his turf.
Justice Maraga sounded offended at what he interpreted as an attempt by the Executive “to assign” the Judiciary functions.
The order, dated May 11, 2020, is titled ‘The Organisation of Government’ and regularises changes in government.
But yesterday Maraga issued a statement regarding the Order, which State House said authorises the President to direct and coordinate functions of ministries and government departments.
“The Order cannot ‘restructure’ or ‘assign functions’ to other co-equal and co-substantial arms of government and independent commissions,” said Maraga, adding that the Judiciary is neither a ministry nor a government department to be subjected to an Executive Order.
“While the Executive Order has no legal effect as the Constitution is clear about creation of the Judiciary and 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 Judicial Service Commission (JSC) are independent organs which are neither assigned functions nor derive authority from the Executive branch of Government,” Maraga said.
According to the manner in which the Judiciary operates, Maraga said the institution cannot be subject of an Executive Order made pursuant to Article 132(3)(b).
He said the Article only empowers the President to direct and coordinate functions of ministries and government departments.
But in a swift rejoinder Attorney-General Paul Kihara denied any efforts by the Executive to interfere with the independence and operations of the Judiciary. He said the President had a constitutional duty to “ensure and build synergies between all arms of government”.
“There is obvious interdependence between the various arms of Government, constitutional commissions and independent offices but respective independence remains,” said the Attorney General.
“It is constitutional duty of the President, as Head of State and Government, to define for ministries and government departments such responsibilities and mechanisms for fostering policy coordination and building synergies between all arms of Government,” said the AG.
The latest Executive Order seems to have re-opened old wounds between the two arms of government which have had an uneasy relationship for a long time. It would be remembered that a similar Order in 2014 triggered acrimony between President Kenyatta and then Chief Justice Willy Mutunga, who also accused the Executive of trying to interference with the independence of the Judiciary.
Maraga, who is the President of the Supreme Court, was last year at war with the Executive following a decision by the National Treasury to cut the Judiciary budget, a move, he said, almost crippled the administration of justice.
Moreover, the CJ and Uhuru are caught up in a long-standing stalemate and silent mind-game over refusal by the President to appoint over 40 judges to the Court of Appeal as well as the Environment and Land Court over claims of integrity touching on some of the nominees.
The JSC has moved to court to challenge the President’s decision and despite securing a ruling that the Head of State had no role in the appointment judges, the AG, who incidentally is a member of the JSC that approved the appointments, appealed the order.
The President and the CJ also differed over the 2017 presidential election petition when the Supreme Court nullified Uhuru’s victory, prompting the famous “we shall revisit” statement from the Head of State.
Maraga has cited an independent, well-equipped Judiciary with both infrastructure and manpower, as well as construction of courts in every county across the country, as part of his desired legacy.
He has accused the Executive of frustrating his efforts to achieve the dream as well as showing disrespect for his office.
But yesterday, Kihara indicated that Uhuru had made similar orders in the past.
The Head of State has always pointed out that the Executive, Judiciary, and Legislature were independent arms of government that operate in an environment of mutual respect and cooperation.
Undermine other arms
“It would be recalled that the President has been issuing executive orders of similar fashion since 2013. Since then there has never been any evidence that issuance of Executive Orders has undermined independence of any arm of Government, constitutional commissions or independent offices,” added the AG.
He explained that there is no provision in the Order with express or implicit purport of “restructuring” the Judiciary, JSC or any other independent constitutional organ, outside the purview of the National Executive.
The AG said the functions of the Judiciary, JSC and all independent constitutional organs are clearly set out and the Order reiterates their roles.
“The statement by CJ is premised on a misunderstanding of the Executive Order, nothing in the Order is intended to undermine any independent arms of government or institutions or to cause any confusion to members of the public,” said Kihara.
In his statement, the CJ stated that institutional independence be clarified in all official government publications and orders.
“This will serve to avoid confusion among members of the public as well as foster constitutional letter and spirit of separation of powers. It will also avoid unwittingly undermining of the other independent arms of government and institutions,” said Maraga.
To this end, the CJ said it is obvious that the Order only applies to and is only capable of applying to the Executive arm of government.
“I want to believe that this was an inadvertent error and that the Office of the President will promptly issue a correction,” the CJ said.