Nairobi — The Office of the Attorney General has dismissed Chief Justice David Maraga's concerns about the new Executive Order issued by President Uhuru Kenyatta, in which the Judiciary and the Judicial Service Commission were listed in a re-calibrated government structure.
In a statement sent to newsrooms, AG Paul Kihara said the Executive Order was lawfully issued.
"The Executive Order is properly and lawfully issued by His Excellency the President pursuant to Article 132 (3)(b) of the Constitution. The statement by the Chief Justice is based on a misunderstanding of the Executive Order," he said.
Kihara clarified that the President issued the Order to provide clarity on the responsibility of ministries and government departments and facilitate inter-agency linkages and liaisons among the institutions.
"There is no basis for the claim that the Executive Order purports to assign functions to the Judiciary, the Judicial Service Commission or, indeed, to any other independent constitutional organ or body," Kihara pointed out.
The order, AG noted, does not constitute any form of restructuring of any independent constitutional organ or institutions.
"The Executive Order seeks to provide clarity to ministries and government departments on their responsibility with respect to the necessary and inevitable inter-agency linkages and liaisons," he said, "This does not, by any stretch of the imagination, constitute a restructuring of any independent constitutional organ or institution."
According to the CJ however, the President cannot direct and coordinate the judicial organs like other ministries and departments under his powers vested under Article 132 of the constitution.
In his protest, the Chief Justice also asserted the autonomy of the Judicial Service Commission which he chairs affirming its independence under Article 171.
"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 coordinate the functions of ministries and government departments. The Judiciary is neither a ministry nor a government department which can be organized by an Executive Order," he said.
The Executive Order listed the Judiciary and JSC among 39 other ministries, state departments, constitutional commissions and independent offices.
The Law Society of Kenya (LSK) has threatened to file a challenge in court in 7 days, unless the Executive Order is revised to exclude the Judiciary and al other Independent offices.