The High Court m issued orders suspending the implementation of Executive Order No. 2 of 2023, which transferred the custody of Kenya’s Public Seal from the Office of the Attorney General to the Chief of staff.
The orders were issued pending further orders of the court in a constitutional petition filed by Katiba Institute.
In his ruling Justice Chacha Mwita said that the petition raised fundamental constitutional and legal matters of great public importance.
” A conservatory Order is HEREBY ISSUED restraining or stopping implementation of Executive Order No. 2 of 2023 to the extent that it purports to reorganize government and transfer the PUBLIC SEAL from the custody of the Office of the Attorney General to the Head of Public Service in the Executive Office of the President, until further orders of the Court,” ruled the court.
The petitioner, Katiba Institute, a constitutional watchdog contends that the Executive Order is unconstitutional and violates democratic ideals which advocates for separation of power.
The Public Seal is one of the national symbols established under Article 9 of the Constitution.
It is used to authenticate official documents, agreements and treaties on behalf of the government.
Under Section 28 of the Office of the Attorney General Act, custody of the Public Seal is expressly conferred upon the Attorney-General, Kenya’s principal legal adviser to the government and a constitutional office established under Article 156.
Despite this clear legal framework says katiba, President William Ruto’s Executive Order, issued in 2023, directed that the Public Seal be placed under the custody of the chief of staff.
According to the petitioner, the move effectively eliminates the requirement for the Attorney General to provide legal advice and approval before executive actions become legally binding on all State organs.
“The transfer of the public seal through an executive order against the explicit provisions of the Constitution and the Office of the Attorney General Act portrays the characteristics and nature of an aristocratic and despotic government bereft of virtue,” read the court documents.
Katiba Institute said the President’s directive came after the National Assembly rejected an attempt to legislate the same change.
A provision in the National Government Administration Laws (Amendment) Bill, 2023 specifically Clause 8(7)(d) had proposed that the Public Seal be held by the Head of Public Service.
However, this clause was struck out by Parliament following recommendations from the Justice and Legal Affairs Committee (JLAC).
“Unlike the Attorney-General, who enjoys security of tenure and whose functions are stipulated in the Constitution and statute, the Head of Public Service serves at the discretion of the President and is thus subject to the control and direction of the President,” argued the agency.
The petitioner argued that the move violates article 94 which bars any person or body other than Parliament from exercising legislative powers or making provisions that have the force of law.
They also contend that the transfer is in contravention of article 156 which outlines the functions and independence of the Attorney General and Undermines article 232 which mandates adherence to values and principles of public service, including transparency, accountability, and integrity.
“Placing the public seal under the custody of the Head of Public Service through Executive Order No. 2 of 2023 is not backed by any legal basis. On the contrary, it is a clear show that the President thinks himself above the very laws whose execution he swore to command faithfully,” read the court documents.
Justice Mwita ordered all parties to expedite the exchange of legal documents. Respondents have seven days to file their responses to both the petition and the application.
Katiba Institute will then have an additional seven days to respond with any supplementary affidavit and written submissions, capped at ten pages. The respondents will subsequently have the same time to reply.
The case will be mentioned for further directions on July 2, 2025.
In the petition the Attorney General and Felix Koskey head of public service have been sued
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