The Head of Public Service Felix Koskei and Attorney General Dorcas Oduor have been sued over the Public Seal.
A human rights lobby filed the case yesterday before Justice Chacha Mwita, arguing that the Seal was illegally moved from the AG to the hands of Koskei through an Executive order.
Katiba Institute claims that Executive Order No 2 of 2023 remains operational despite its clear violation of the Constitution and the separation of powers.
“The transfer of the seal from the Office of the Attorney-General to the Office of the President effectively centralizes the power to approve and seal important national agreements without the Attorney General’s approval,” lawyer Kevin Walumbe told the court.
“Further, it removes the need for the Attorney-General to give legal advice and approval before Executive actions are made legally binding on all State organs.”
The court heard that the Seal, which is fixed on critical documents, agreements and treaties to give them legality, a symbol of the government’s authority.
“Once affixed with the public seal, documents gain legal authority and are binding on all organs of the State. The rationale for making the Attorney General the custodian of the Public Seal was to ensure the Attorney General’s approval in key decisions relating to public matters prior in an aim to avoid improper use,” Walumbe argued.
Katiba said President William Ruto bypassed Parliament through the Executive order. According to the lobby, the move is an usurpation of the powers conferred on the AG and the House’s powers to make laws.
“Parliament rejected a proposal to legalise the action through legislation,” Walumbe said.
An omnibus Bill, the National Government Administration Laws (Amendment) Bill, 2023, was tabled in the National Assembly, and was being considered by the Justice and Legal Affairs Committee.
However, former AG Justin Muturi said the Bill did not originate from the Cabinet. He also distanced himself from the proposed law.
This year, his successor asserted that the Seal had not left her office. Nevertheless, Katiba argued that a President’s appointee should not take over AG’s roles.
“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 Walumbe.
Katiba’s head of litigation, Emily Kinama, asserted that no law supports the decision to have Koskei keep the Seal.
Katiba wants the court to freeze the implementation of the Executive order.
According to her, the order violates the constitution and Kenyans’ rights. According to her, the court should intervene as Parliament declined to pass the law that would have shifted the seal to the State House.
She said that Parliament had already ruled that the transfer was illegal and a violation of the law.
Nevertheless, she said that Ruto’s administration was hell bent to transfer the seal, hence, came upon with the idea of an executive order.
“The administrative actions of the President, in as much as they purport to divest the Office of the Attorney-General of the custody of the public seal, are a continuing violation that this Honourable Court must stop. The impugned parts of Executive Order No. 2 of 2023 remain fully operational unless quashed by the Court.”
By Kamau Muthoni
