President Uhuru’s Executive Order NO.1 of 2020 kicks up a debate

President Uhuru Kenyatta converses with his deputy William Ruto during the 57th Madaraka Day Celebrations at State House Gardens, Nairobi on June 01, 2020. (PCSU, Standard)

President Uhuru Kenyatta on Wednesday evening issued an Executive Order NO.1 of 2020 – Organization of Government which has elicited debate amongst lawyers, with some arguing that he has abolished the "sharing aspect" of the presidency with his deputy William Ruto.

The Executive Order issued on Wednesday will supersede a prior one of 2018, which was issued by the Office of the President. It did not escape notice that  Executive Order No. 1 of  2018 was issued by "The Presidency" hence the debate.

The 2018 Executive Order also named the officeholders and functions of The Presidency while the 2020  one presents the same under The Executive Office of The President. This could be a matter of semantics but, all the same, a debate is up in the air.

“In exercise of the powers conferred by Article 132 (3) (b) of the Constitution, as read with all other enabling Laws, I, Uhuru Kenyatta, President and Commander-in-Chief of the Kenya Defence Forces, order and direct: that this Order supersedes Executive Order No. 1 of 2018 (Revised) issued in July 2018,” reads the document, on its preamble.

According to lawyer Donald Kipkorir; the order will massively affect the operation of the office of Deputy President. For instance, he argues that the budget earlier channelled to that office will be a thing of the past, and hiring of employees will be a reserve of the Head of Civil Service Joseph Kinyua.

“Just like that, President Uhuru Kenyatta abolishes the Presidency and Office of the Deputy President! ... We now have Office of the President .... Joseph Kinyua will be in charge of recruitment and dismissals in the new structure in the Office of the President. What exciting times,” he posted on his Twitter page.

Added the lawyer: “In the new Executive Order, President Uhuru Kenyatta changes his office from “Presidency” to “President”. This innocent looking nomenclature change has huge legal implications ... President denotes singularity of power in rem ... The presidency is shared power ... Offices of Deputy.”

Vocal lawyer Ahmednasir Abdullahi, however, said the order was being misinterpreted. He argued that the term “Presidency” implying Offices of President and Deputy President working as a unit is alien.

“The leading legal commentary on the executive order issued today by H.E Uhuru are advanced on Twitter by laymen with zero legal education. The constitution talks of The President. The Deputy President...etc. The "presidency" is a "constitutional heresy,” he posted on his Twitter page.

Abdullahi’s sentiments were echoed by Makueni Senator Mutula Kilonzo who told KTN News in a short interview that the term is a political shadow crafted to give an impression that the President and Deputy President are almost two centres of power.

“The term presidency was used very loosely because it is not a term that is known in law. It was political because there is nothing called the Presidency. It creates the impression as if the presidency is something that someone is holding with another person. You can only have one president. I think this is why the clashes in Jubilee government have happened because of the misconstruction of the word presidency,” said Mutula.

According to Sen. Mutula, President Uhuru’s order falls squarely within the confines of the law and his action is to reaffirm the spirit of Kenyan Constitution.

“The president is simply re-iterating that he is the boss and all the others fall under him. And he is no restating something that is not new, it is in the Constitution,” he said.

Sen. Mutula argued that the President has restated the principle office and how it looks on the Constitution.

He said: “The Deputy President falls under the Executive President and acts as the assistant and of the President and acts on instruction of the President.

The executive order also brought the Nairobi Metropolitan Service under the Executive Office of The President, indicating Uhuru's resolve to ensure the city runs smoothly.