The publication of Executive Order 1 of 2020 on Wednesday triggered mixed reactions, with President Uhuru Kenyatta’s allies praising it as a good move in the current political environment and his critics raising fears that the President was emasculating other State arms, potentially creating an imperial presidency.
While the President has published other Executive orders in his seven-year reign, the Wednesday one rattled many, with the Judiciary and independent commissions, which were placed under the office of the Attorney-General, publicly protesting.
Coming hot on the heels of the President’s recent political conquests that have seen him assume an iron grip over the ruling Jubilee Party Parliament, there are growing fears that Mr Kenyatta is laying the ground “to succeed himself”.
And with his Jubilee Party almost becoming a monolith after signing co-operation agreements with Kanu and working on others with Nasa and other smaller parties, President Kenyatta is being accused of seeking a Kanu-style rule.
Already, he has been accused of killing the opposition with the famous March 2018 handshake with ODM leader Raila Odinga as there isn’t much opposition to his policies, nor are there much checks and balances. Anything the President wants, he gets, his critics argue.
Former Mandera Senator Billow Kerrow on Thursday questioned the timing of the latest Executive order, noting that it is not just about clipping Deputy President William Ruto’s wings, and that it portends something ominous for the country.
“Parliament has been subdued, wholly. Political parties have surrendered and embraced unflinching loyalty. Judiciary whimpers under the radar, dodging hostile ‘acquisition’. It can’t be all about clipping the wings of an ‘errant’ assistant. It’s a bigger picture ... sounds ominous,” Mr Kerrow tweeted.
Chief Justice David Maraga has already faulted the order and said that the Judiciary, the Judicial Service Commission and independent commissions draw their mandate directly from the Constitution, and therefore do not take directives from the Executive.
“I want to believe this was an inadvertent error, and that the Office of the President will promptly issue a correction,” Justice Maraga said in a statement.
It is not clear why Justice Maraga faulted the order since the Judiciary and independent commissions have been included in previous Executive orders.
The Law Society of Kenya supports the position adopted by the Chief Justice, describing the contents of the order as an unconstitutional attempt by the President to purport to reorganise the government and set the Judiciary and independent commissions as institutions under ministries.
“Whereas the Constitution is clear on the establishment and functions of these three categories of institutions, the making of the executive order impairs the independence of the institutions,” LSK said in a letter to Attorney-General Kihara Kariuki.
There is, however, nowhere in the latest Executive order where the Judiciary has been listed as a function of a ministry.
University of Nairobi law lecturer Wamitu Ndegwa argues that the law recognises Executive orders so long as they are not inconsistent with the Constitution and statutes, adding that CJ Maraga should explain the inconsistency of the order.
“The Judiciary should show what part of the substance of the order is inconsistent with the Constitution,” Dr Ndegwa said, arguing that although the Judiciary enjoys constitutional independence, this is not absolute.
He argues that Parliament regularly assigns and reorganises functions of various courts through statutes, citing the example of the Environment and Land Court Act, Employment and Labour Relations Act, Supreme Court Act and the High Court Organisation and Administration Act.
“Even private persons, by contracts, assign functions between courts and arbitrators. These statutes were made by Parliament, not the Judiciary,” he says.
From the changes in Jubilee, where the President and his loyalists forced changes to the National Management Committee, and the ongoing purge in Parliament, critics are questioning the President’s motives.
Just as the Jubilee was having a purge of its own, the opposition coalition borrowed a leaf. ODM, the dominant player in the opposition, engineered a reorganisation of the minority side in the National Assembly in what is seen as part of preparations to implement the Building Bridges Initiative (BBI), and succession politics.
At least 10 MPs were forcibly removed from the committees because of their alleged association with the DP, including Kiminini MP Chris Wamalwa, who was sacked as the Deputy Minority Whip after he publicly endorsed DP Ruto’s presidential ambitions.
In the same vein, Bungoma Senator Moses Wetang’ula is on the verge of losing the control of Ford-Kenya after renegade National Executive Committee officials accused him of incompetence, underlining the polarised political environment in the country.
Signs that all is not well played out on Tuesday during the Jubilee National Assembly Parliamentary Group meeting at State House. According to sources, the meeting took a record 18 minutes, with only three speakers on record — the President, his deputy, and Secretary-General Raphael Tuju.
Mr Tuju was the first to speak and took about a minute. The DP took about three minutes while the President spent much of the remaining time talking at the lawmakers.
While the MPs had hoped that the PG would provide them an opportunity to speak freely over the issues that have bedevilled the party, the President did not offer one.
“What the President is doing is amassing power,” says Nairobi lawyer Aggrey Mwamu, noting that this could claw back the gains of the struggle to decentralise State power through the 2010 Constitution.
“It is easy to dismiss the Executive order, but we should be wary because it will not be good in the long run. Its implementation will have far-reaching effects in the public service and the rule of law,” he said.
Mr Mwamu added that the manner in which the order has been thrust into the public domain creates an impression that it’s the President’s word, and thus obedience to the order will be a critical component of its implementation.
“We are going to have a powerful public administration system as a result of implementing the order,” he added.
Lawyer Adrian Kamotho agrees with Mr Mwamu, saying the President’s ultimate aim is to take the country back to the pre-2010 days.
“If we have all other arms of government muzzled, the alternative is an Executive monolith,” he said, adding that Kenyans wanted the principle of separation of powers entrenched.
“They endorsed the 2010 Constitution because they did not want an individual making weighty national decisions at a whim and without the possibility of recourse,” he said.
Political analyst Herman Manyora argues that the import of the latest actions by the President is that there is a push by the State to suspend democracy and make political contests less competitive.
“To actualise the Handshake, vanquish the DP and deliver on the President’s legacy, we may have to suspend democracy for a while,” said Mr Manyora, a Linguistics lecturer at the University of Nairobi.