'Integrity arm' of State given prominence in new Kenyan decision

18 June 2021 · Carmel Rickard

On Valentine’s Day, 2020, Kenya’s President Uhuru Kenyatta issued an executive order than brought him no red roses from the country’s human rights bodies. In fact, the order – purporting to ‘re-organise’ government and put various judicial bodies and independent commissions under other state departments and ministries – was the subject of a constitutional challenge brought by the law society of Kenya. Now the high court has decided the petition, and declared that the executive order was unconstitutional and invalid.

Read judgment

With recent decisions from certain African jurisdictions that appear to inhibit the rule of law, this judgment has come as a welcome relief. It concerns an executive order, issued by Kenya’s President Uhuru Kenyatta in January 2020, that purported to ‘organise the government’ and as part of this ‘organisation’, to ‘restructure the judiciary’, putting the judicial arm of government under the supervision of other ministries of government and state departments.

The law society of Kenya (LSK) objected to the planned reshuffle of the judicial arm and it brought a constitutional petition, with the judicial service commission as an interested party, against the attorney general (AG) and the head of the public service.

Replying on behalf of the AG, the solicitor general said there was no case to be answered because Kenyatta’s order did not provide that any independent office would be subject to the control of any ministry on behalf of the presidency. In fact, so went the argument, the LSK had brought a fallacious claim, ‘intended to mislead the court’.

Referendum

Judge James Makau, who heard the case, noted that among the bodies said by the KLS to have been ‘organised’ and ‘restructured’ by the President’s executive order, were the Public Service Commission, the National Police Service Commission, the Judicial Service Commission, the Commission on Administrative Justice, the Kenya National Commission on Human Rights and the National Gender and Equality commission.

He said it was clear from what the constitution said about the powers and functions of the President, that he had ‘no power to transfer functions of constitutionally established institutions.’ As Kenya’s constitution had been enacted via a referendum, it was ‘the direct expression of [the] people’s will.’

In turn, this meant that ‘all state organs, in exercising their delegated powers must bow to the will of the people as clearly expressed in the constitution.’ Further, the constitution made clear that every person was obliged to ‘respect, uphold and defend’ the constitution and that no one ‘may claim or exercise state authority except as authorised’ by the constitution itself.

‘Overrun’

It ‘clearly follows that every person including the President of the Republic of Kenya has an obligation to respect, uphold and defend the constitution.’

The judge said that placing the tribunal and constitutionally independent commissions under various other departments and ministries meant there was a clear intention to have them ‘overrun’ by these ministries and departments in relation to budgetary allocations and finances, and that they would have to follow the direction and criteria of their respective ministries and departments. He made it quite clear that he did not agree with the solicitor general that this was not the intention behind the executive order.

The constitution was the source of the independence of the various commissions and they were to make the decisions appropriate to them without any influence from ‘those to whom the decision-making power is not given.’

Executive order

The only way to ‘restructure, re-organise or amend’ any of the independent commissions was by way of a referendum, the court held; it could not be done by gazetting an executive order.

Judge Makau formally declared that the executive order was unconstitutional, null and void, with costs in favour of the LSK.

But besides the outcome, namely, to grant the petition and find the President’s executive order unconstitutional, there is another interesting feature to this judgment.

‘Integrity branch’

This second significant aspect of the decision was the judge’s quoting, with approval, the growing view among legal scholars and jurists, that there is a ‘fourth branch’ of government, namely the ‘integrity branch’. This ‘fourth branch’ is also sometimes known as the ‘democracy branch’, or simply, referring to the bodies of which it is made up, ‘constitutional watchdogs’.

Although Judge Makau deals with writers who hold that the ‘integrity branch’ can be found in the constitution of Kenya, scholars in other jurisdictions are reaching the same conclusion about constitutions elsewhere too.

The bodies that make up the ‘integrity branch’ are intended to be independent from other arms of government, and, according to the writers quoted by Judge Makau, ‘the framers of the [Kenyan] Constitution must have deliberately intended that certain government functions be separated from the familiar arms of government, in order to promote transparency, fairness and objectivity’.

Fourth arm

He goes on to find that in Kenya, all the independent offices and commissions created by the constitution ‘are to be viewed as a fourth arm of the government … ultimately independent of government.’

He also quotes an earlier decision of Kenya’s supreme court in which the judges said that the ‘independence clause’ relating to commissions and other independent offices established under Kenya’s constitution, was intended to provide a safeguard against undue interference with the commissions.

The clause was specially added to the constitution ‘in the light of regrettable memories of an all-powerful Presidency that, since Independence in 1963, had emasculated other arms of government, even as it irreparably trespassed upon the fundamental rights and freedoms of the individual,’ the supreme court said.

‘People’s watchdogs’

The independence commissions – among them the very commissions that the current president had wanted to move to a subordinate position under other government departments – were intended to serve as ‘people’s watchdogs’, the supreme court held.

Given the political pressures on judges in a number of African countries at the moment, the result must be particularly welcomed as an example of a court maintaining the constitutional integrity of the judiciary and independent commissions.

‘A matter of justice’, Legalbrief, 15 June 2021

Carmel Rickard

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