The High Court of Kenya has struck down President William Ruto’s Executive Order No. 3 of 2024, declaring it unconstitutional and a direct threat to the independence of the Public Service Commission (PSC).
In a landmark judgment delivered virtually from the Milimani Law Courts, Justice Lawrence Mugambi ruled that the order, which sought to regulate the management and terms of service for staff and board members of state corporations, illegally usurps the PSC’s constitutional mandate and undermines the principle of separation of powers enshrined in kenya’s 2010 Constitution.
The Executive Order, issued in May 2024 through Gazette Notice No. 6265, directed all boards of state corporations and Cabinet Secretaries to implement new guidelines on management and terms of service.
The Law Society of Kenya (LSK), which filed the petition, argued that the order encroached on the PSC’s exclusive constitutional role and violated the Statutory Instruments Act by being promulgated without public participation or Parliamentary approval.
“This is, without any hesitation, a direct infringement of the Constitution and is therefore unconstitutional,” Justice Mugambi emphasized.
The judge further explained that the President’s executive powers cannot override the Constitution:
“The fact that these guidelines were issued as an Executive Order under the hand of the President cannot cure their unconstitutionality. Even in exercise of executive functions, the President must act in line with the Constitution or as authorized by national legislation,” he ruled.
The court highlighted that Sections 5(3) and 27(c) of the State Corporations Act, relied upon to justify the Executive Order, conflict with Article 234(2) of the Constitution, which vests the PSC with authority over the establishment, appointment, and terms of service for public officers.
Justice Mugambi warned that allowing such provisions to operate would erode the independence of constitutional commissions and weaken the merit, professionalism, and impartiality of public service.
“Permitting nibbling of its constitutionally protected mandate will increasingly weaken the Public Service Commission and leave it exposed to external interference,” he stated.
“The framers of the Constitution intended the PSC to operate as a bulwark protecting merit, professionalism, and impartiality in public service.”
The Court issued a series of declarations and orders, including quashing Executive Order No. 3 of 2024 and the accompanying Guidelines on Management and Terms of Service.
It also declared Sections 5(3) and 27(c) of the State Corporations Act unconstitutional, affirmed that State Corporations and Public Universities are subject to the PSC’s constitutional mandate, and ruled that the National Treasury and other bodies cannot exercise powers vested in the Salaries and Remuneration Commission under Article 230 of the Constitution.
“This being a public interest litigation, I make no orders as to costs,” Justice Mugambi added.
