This archive report was first published on 6 June 2020.
On June 6, 2020, President Uhuru Kenyatta signed Executive Order No. 1 of 2020, sparking controversy over its implications for independent commissions, the Judiciary, and devolution.
While many have focused on the reorganization of the presidency, the order's most problematic aspects lie in its seeming encroachment on independent commissions, the Judiciary, and devolution.
According to Ken Opalo, the drafters of the Constitution are to blame for creating independent commissions and institutions whose functions still rely on the Executive, specifically the Treasury and the Public Service Commission (PSC).
Opalo argues that as long as the President controls the disbursement of funds and staffing of these commissions, they will remain under the thumb of the Executive.
He suggests that independent offices should automatically disburse their funding once their budgets are approved by Parliament, and personnel should be appointed by the Judicial Service Commission (JSC) with the consent of the Senate.
The order also raises concerns about the Judiciary, with the Chief Justice stating that the Judiciary is a co-equal branch of government that does not answer to the Executive branch.
Opalo criticizes the order for attempting to place the Judiciary under the presidency, calling it 'the height of intellectual dishonesty'.
Regarding the Nairobi Metropolitan Services (NMS), Opalo argues that the President cannot create executive organs without the implicit consent of Parliament and that NMS can only exist with the explicit approval of the National Assembly through the budgeting process.
He also warns that the President cannot create executive offices in contravention of the spirit of the Constitution, citing the example of creating a 'council' to substitute for Parliament or a tribunal within the Executive to substitute for the Judiciary.
Opalo concludes that the NMS has the potential to help ensure effective coordination among counties, but as currently constituted, it appears to be primarily targeted at neutering the county of Nairobi.
He urges Kenyans to be aware of the governance challenges afflicting Nairobi County and to ensure that it does not become just another department in the Office of the President.
As President Kenyatta prepares to retire in two years, Opalo asks whether he wants his administration to be remembered for having started the process of killing devolution.
