A CONSTITUTIONAL CRITIQUE OF KENYA'S REBRANDED PROVINCIAL ADMINISTRATION SYSTEM UNDER THE 2010 CONSTITUTION

1. INTRODUCTION

The Constitution of Kenya, 2010 marked a paradigm shift from a centralized governance model to a devolved system intended to bring government services closer to the people, enhance accountability, and promote citizen participation. Central to this shift was the requirement under Article 17 of the Sixth Schedule that the national government "shall restructure the system of administration commonly known as the Provincial Administration to accord with and respect the system of devolved government."

More than a decade later, Kenya still retains a rebranded Provincial Administration system - now operating through Regional, County, and Sub-County Commissioners, and Chiefs - embedded within the Ministry of Interior and National Administration. This critique evaluates the extent to which the current structure complies with both the letter and spirit of the 2010 Constitution, particularly the objectives of devolution, and examines the legal, political, and practical implications of maintaining this parallel administrative apparatus.

2. HISTORICAL CONTEXT AND EVOLUTION

2.1 The Colonial and Post-Independence Provincial Administration

The Provincial Administration was born out of the British colonial policy of indirect rule and later institutionalized through successive post-independence governments. It comprised a rigid hierarchy of appointed officials - Provincial Commissioners (PCs), District Commissioners (DCs), District Officers (DOs), Chiefs, and Assistant Chiefs - serving as the eyes and arms of the executive, often exercising unchallenged authority over public administration, policing, land disputes, and civil registration.

2.2 The 2010 Constitutional Shift

The Constitution of Kenya, 2010 ushered in a devolved government system, creating 47 counties each with its own elected Governor, County Executive Committee, and County Assembly. The objects of devolution under Article 174 include promoting democratic and accountable exercise of power, enhancing service delivery, protecting minority and marginalized groups, and facilitating public participation in governance. Crucially, the Constitution envisioned a clear separation of national and county functions as listed in the Fourth Schedule.

In recognition of the persistence of the Provincial Administration, Article 17 of the Sixth Schedule provided a transitional pathway, obligating the national government to restructure the system to align it with the new devolved governance architecture.

3. Legal and Institutional Framework of the Current System

3.1 The National Government Coordination Act, 2013

Passed in response to Article 17, the National Government Coordination Act, 2013 is the primary statute anchoring the rebranded Provincial Administration. It establishes offices such as County Commissioners and Deputy County Commissioners, defines their roles, and assigns them responsibility for coordinating national government functions at county and sub-county levels.

While the Act purports to respect devolution, it effectively recasts the Provincial Administration within the executive arm of the national government. It creates a dual administrative presence in counties: one elected (county government) and one appointed (national administration), often leading to conflict, duplication, and confusion.

3.2 Executive Directives and Interior Ministry Guidelines

Successive Presidential Executive Orders (e.g., Executive Order No. 1 of 2013, 2016, and 2020) have reaffirmed the structure and command chain of national administrative officers. Chiefs and assistant chiefs, now classified as public servants, are recruited and regulated by the Public Service Commission (PSC), and deployed by the Ministry of Interior, further cementing their position as agents of the central executive.

4. Constitutional and Doctrinal Critique

4.1 Misalignment with Article 17 of the Sixth Schedule

The language of Article 17 - particularly the phrases "restructure" and "accord with and respect the system of devolved government" - implies a substantive transformation that would see the administration reoriented or subordinated to county structures. Instead, the national government has merely rebranded the system while preserving its vertical accountability to the Office of the President.

The failure to place these officers under the county governments, or to create joint service delivery frameworks, contradicts the clear constitutional intent to devolve power, responsibility, and resources. The national government’s retention of grassroots-level administrators amounts to administrative centralism cloaked in legal legitimacy.

4.2 Undermining the Objectives of Devolution

The continued presence of Regional and County Commissioners with coercive powers undermines:

• Article 6(2): which declares that the two levels of government are "distinct and interdependent."

• Article 174(a): which emphasizes the democratic and accountable exercise of power.

• Article 189(1): which requires the two levels of government to respect each other’s functional and institutional integrity.

By retaining centralized agents within devolved spaces, the national government perpetuates a command-and-control culture, contrary to devolution’s goal of citizen-centered service delivery.

4.3 The Role of Chiefs and Assistant Chiefs

Despite their perceived grassroots utility, the continued deployment of chiefs and assistant chiefs under the national government creates administrative friction. Many are involved in functions that counties also handle - such as public health mobilization, civic registration, or dispute resolution - without formal accountability to county leadership.

While Article 186(1) and the Fourth Schedule assign public administration functions to both levels, the unilateral exercise of those functions by national officers undermines intergovernmental cooperation and risks institutional redundancy.

5. Jurisprudence and Comparative Perspectives

5.1 Supreme Court Advisory Opinion No. 2 of 2013

Although not directly on this matter, the Supreme Court held that both levels of government are “distinct but interdependent” and must be allowed to operate without undue encroachment. Applying this to Article 17, it can be inferred that embedding national officers in county spaces, exercising functions overlapping with counties, violates constitutional autonomy.

5.2 Lessons from Comparative Federal Systems

In federal and quasi-federal systems such as South Africa, Nigeria, and India, local administration is either:

• Wholly devolved to subnational units, or

• Jointly administered through clear cooperative governance frameworks.

Kenya’s dual-track approach - national officers in county territory with no subordination to local governments - is institutionally inefficient and politically regressive.

6. Recommendations and Way Forward

1. Amend the National Government Coordination Act to:

   • Remove county-level national officers or clearly subordinate them to county governments in non-security functions.

   • Establish joint intergovernmental administrative boards for security and coordination.

2. Gradual Transfer of Chiefs and Assistant Chiefs to county public service boards where appropriate.

3. Audit and realign functions at the sub-county level to avoid duplication and conflict.

4. Judicial interpretation of Article 17 should be sought to clarify the constitutional threshold of "restructuring" and ensure fidelity to the devolution framework.

5. Civic education and stakeholder dialogue to reconsider the value and relevance of inherited administrative models.

7. Conclusion

The rebranded Provincial Administration in Kenya, while operating within statutory and executive instruments, fails to satisfy the constitutional command under Article 17 of the Sixth Schedule. Instead of restructuring to respect devolution, the system has persisted as a vestige of centralized governance, undermining county autonomy, duplicating functions, and perpetuating top-down administration.

Unless corrected through legislative reform, intergovernmental cooperation, or judicial guidance, the dual administrative regime will continue to frustrate the realization of the transformative ideals of the 2010 Constitution.

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© 2025 | For inquiries, republication rights, or legal citations, contact INSTITUTE FOR POLICY & DIPLOMACY at instituteforpolicyanddiplomacy@gmail.com.

A CONSTITUTION UNDER SIEGE: WHY MURKOMEN’S “SHOOT TO KILL” ORDER VIOLATES THE LAW AND ENDANGERS US ALL

Introduction: When the Interior Ministry Declares War on Civilians

In an alarming statement made on 26th June, 2025 (see https://youtu.be/0FQ7x7_HH3g?si=AYkH7PHX046Dw_Bd), Kenya's Cabinet Secretary for Interior and National Administration Kipchumba Murkomen reportedly instructed police officers to shoot at anyone appearing near a police station. This utterance - authoritarian in tone, unconstitutional in spirit, and criminal in effect - marks a dark moment in Kenya’s democratic journey. It evokes memories of repressive regimes and colonial brutality, not the conduct of a Cabinet Secretary sworn to uphold the Constitution of Kenya, 2010.

The implications of such a pronouncement go beyond the immediate danger it poses to innocent citizens. It threatens to unravel the constitutional fabric that binds our democracy -the rule of law, the sanctity of life, the presumption of innocence, and due process.

The Constitutional Violations: A Systemic Breakdown of the Rule of Law

1. Right to Life (Article 26, Constitution of Kenya, 2010)

Murkomen's statement amounts to a direct incitement to extrajudicial killings, in flagrant violation of Article 26(1) of the Constitution which states:

"Every person has the right to life."

Moreover, Article 26(3) provides that a person shall not be deprived of life intentionally, except to the extent authorized by law.

Kenyan law permits the use of lethal force by police officers only under extremely limited circumstances - primarily to protect life, not to arbitrarily take it. A person merely “appearing” near a police station does not present a lethal threat warranting a death sentence without trial.

2. Right to Fair Trial (Article 50)

Kenya’s criminal justice system is anchored on the principle that every accused person is innocent until proven guilty. Article 50(2)(a) guarantees the right to a fair and public hearing before a court of law.

Murkomen’s remarks pre-empt this process by:

• Assuming guilt without investigation,
• Encouraging instant punishment (death),
• Circumventing the courts and due process.

This is not just unconstitutional- it is state-sponsored vigilantism.

3. Right to Dignity and Freedom from Cruel, Inhuman or Degrading Treatment (Article 28 and 29)

To command law enforcement officers to summarily shoot individuals on mere suspicion is a directive rooted in cruelty and impunity. It disregards:

• Human dignity (Article 28);
• Freedom from torture (Article 29(f));
• Protection from all forms of violence from public or private sources (Article 29(c)).

The Legal Framework on Use of Force: National Police Service Act and International Law

Section 61, National Police Service Act, 2011

This section provides that a police officer may use force only when non-violent means are ineffective or without promise of achieving the intended result. Firearms may be used only as a last resort, in situations such as:

• Self-defense or defense of others against imminent threat of death or serious injury;
• Preventing a particularly serious crime involving grave threat to life; and
• Arresting a person presenting such a threat.

Merely "appearing near a police station" does not satisfy any of these legal thresholds.

United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990)

As a signatory to international human rights treaties, Kenya is bound by international standards. Principle 9 of the UN Basic Principles explicitly states:

"Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury..."

Murkomen’s directive is an affront to Kenya’s international obligations under the UN Charter and the African Charter on Human and Peoples’ Rights.

Incitement to Commit a Crime: Criminal Responsibility Under the Penal Code

Section 96 of the Penal Code: Incitement to Violence

"Any person who utters, prints or publishes any words... indicating or implying that it is or might be desirable to do or omit to do any act the doing or omission of which is calculated to lead to physical injury to any person or to any class, community or body of persons is guilty of an offence..."

Murkomen’s utterances may be construed as incitement to commit a felony (murder), and thus criminal in themselves.

Public Officials and the Burden of Restraint

It is not enough to dismiss Murkomen’s statement as political hyperbole. A Cabinet Secretary is not a talk-show pundit. The words of a senior state officer carry the force of policy, influence operational conduct, and may result in irreversible harm.

Kenya is still reeling from the wounds of police brutality, from the 2007–08 post-election violence, to the 2020 Githurai shootings, and most recently, the violent quelling of 2023 anti-tax protests. Giving security officers a blank cheque to shoot on sight is a recipe for mass atrocities and state terror.

What Next? The Case for Legal Accountability and Public Resistance

Murkomen must not be allowed to cloak his illegal pronouncement in political populism or “national security” rhetoric. He must be:

1. Compelled to retract the statement publicly and unequivocally;
2. Investigated by the National Police Oversight Authority (IPOA) for promoting unlawful use of force;
3. Held personally liable for any injuries or deaths that arise from his directive;
4. Censured by Parliament, which is obligated under Article 95 to exercise oversight over the national executive.

Conclusion: Democracy Dies in Broad Daylight, Not Darkness

What Murkomen has suggested is state-sanctioned extrajudicial execution, plain and simple. If left unchallenged, it will normalize an era where proximity to authority is treated as guilt, and suspicion as justification for death. This is the very antithesis of the Constitution of Kenya, 2010.

Let us be clear: this is not about security - it is about tyranny in uniform. And the moment to resist it is now.

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© 2025 | For inquiries, republication rights, or legal citations, contact Institute for Policy & Diplomacy at instituteforpolicyanddiplomacy@gmail.com

UNLAWFUL WAR AND EXTRAJUDICIAL EXECUTIONS: LEGAL ANALYSIS OF THE JUNE 2025 ISRAEL-U.S. STRIKES ON IRAN

I. INTRODUCTION

In June 2025, a dramatic and highly controversial military escalation occurred in the Middle East. On the night of June 12, Israel launched a coordinated set of airstrikes against Iran, targeting nuclear infrastructure at Natanz, Fordow, and Isfahan. These attacks, reportedly carried out under the codename "Operation Rising Lion," were swiftly followed by American strikes that destroyed similar installations and military facilities, marking an effective alignment between the two powers.[^1] 

Within days, multiple Iranian officials, including high-ranking members of the Islamic Revolutionary Guard Corps (IRGC) and nuclear scientists, were assassinated. As of date of this publication, among those reported killed were: 

(1) Major General Mohammad Bagheri, Chief of Staff of the Iranian Armed Forces; 

(2) Major General Gholam Ali Rashid, a senior commander at the Khatam-al-Anbiya Central Headquarters; 

(3) Brigadier General Gholamreza Mehrabi, Deputy Head of Intelligence; and 

(4) Nuclear Physicist Ahmadreza Zolfaghari Daryani. 

On June 21, Israel assassinated 

(5) Brigadier General Saeed Izadi, the Quds Force’s senior commander for Palestinian operations, in Qom.[^2]

What made these attacks particularly alarming from a legal perspective was the absence of any preceding Iranian military action against either Israel or the United States. Iran had not launched an armed attack, nor had it made an overt declaration of war. There were no new developments in Iran's nuclear program indicating weaponization or any imminent deployment of a nuclear device. Thus, the strikes appeared not as a response to aggression, but as pre-emptive or preventive attacks lacking lawful justification.

This article undertakes a comprehensive legal critique of the June 2025 strikes by Israel and the United States under international law. It examines the applicability and violations of the jus ad bellum framework under the UN Charter, the law of armed conflict (jus in bello), and international human rights law. It also considers the obligations imposed by customary international law and relevant case law, such as Nicaragua v. United States and Oil Platforms, and evaluates whether these acts amount to the international crime of aggression.

II. THE LEGAL FRAMEWORK GOVERNING USE OF FORCE AND TARGETED KILLING

To determine the legality of Israel’s and the United States’ military actions against Iran in June 2025, we must first establish the governing legal standards. International law recognizes three principal legal regimes relevant to this context: 

(1) jus ad bellum, or the law governing the resort to force; 

(2) jus in bello, or international humanitarian law (IHL), applicable in armed conflicts; and 

(3) international human rights law (IHRL), which continues to apply in both peace and war.

A. Jus ad Bellum and the United Nations Charter

The cornerstone of the international legal regime on the use of force is the United Nations Charter. Article 2(4) of the Charter provides that “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”[^3] 

There are only two exceptions to this prohibition: 

(1) when force is authorized by the United Nations Security Council under Chapter VII of the Charter, and 

(2) when it is exercised in self-defense under Article 51, which states that “nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs.”[^4]

To claim lawful self-defense, a state must demonstrate that it has suffered an armed attack or is under an imminent threat of such an attack. The International Court of Justice (ICJ) in the Nicaragua v. United States case (1986) reaffirmed that mere threats or provision of arms does not constitute an armed attack.[^5] The ICJ also noted that self-defense must be both necessary and proportionate.

B. Jus in Bello (International Humanitarian Law)

IHL governs the conduct of hostilities during armed conflict and is primarily codified in the four Geneva Conventions of 1949 and their Additional Protocols. Fundamental principles include: 

✓distinction (between combatants and civilians);

✓proportionality (prohibiting attacks that cause excessive civilian harm relative to anticipated military advantage); and 

✓military necessity. 

IHL only applies when a situation qualifies as an armed conflict under international law.[^6]

C. International Human Rights Law (IHRL)

In situations where there is no armed conflict, IHRL applies. The International Covenant on Civil and Political Rights (ICCPR), to which the United States and Iran are parties (though Israel has signed but not ratified it), recognizes in Article 6 the right to life and prohibits arbitrary deprivation of life.[^7] The United Nations Human Rights Committee has consistently stated that targeted killings outside armed conflict are presumed unlawful under the ICCPR unless they meet strict criteria of necessity and proportionality, and unless the individual poses an imminent threat.[^8]

D. The Crime of Aggression under the Rome Statute

Although Israel and the United States are not parties to the Rome Statute of the International Criminal Court (ICC), the Rome Statute’s definition of the crime of aggression is instructive. Article 8 defines aggression as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”[^9] This definition reflects customary international law and reinforces the illegality of the unauthorized use of force against another sovereign state.

III. LEGAL ANALYSIS OF THE JUNE 2025 STRIKES

A. Violation of Article 2(4) of the UN Charter

Israel’s initial strikes on Iran in June 2025 were not conducted in response to any identifiable armed attack. Iran had not launched missiles at Israeli or American assets, nor had it threatened imminent hostilities. At most, Israeli and American intelligence agencies claimed that Iran’s nuclear facilities had resumed uranium enrichment at levels close to weapons-grade - something Iran denied, and which was not corroborated by the International Atomic Energy Agency (IAEA) as of May 2025.[^10]

Without a clear act of aggression by Iran, the Israeli and U.S. actions constituted a violation of Article 2(4) of the UN Charter. These were not defensive acts but offensive operations aimed at degrading Iran’s military capacity. In Oil Platforms (Iran v. United States), the ICJ held that military force used without direct evidence of an armed attack cannot be justified under Article 51.[^11] That precedent is clearly applicable here.

B. No Justification for Preemptive or Preventive Self-Defense

Some states, including Israel and the United States, have advocated for an expanded doctrine of anticipatory self-defense. This includes the right to use force preemptively to avert an imminent attack. However, even this controversial doctrine, rooted in the 19th-century Caroline case, requires that the threat be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”[^12] There is no public evidence that Iran posed such an imminent threat.

Even more tenuous is the doctrine of preventive self-defense, which seeks to justify the use of force based on speculative future threats, such as the possibility of Iran developing a nuclear weapon in the coming years. This doctrine has no basis in the UN Charter and has been repeatedly rejected by the majority of the international legal community.[^13] The June 2025 strikes appear to fall squarely into this discredited category.

C. Assassinations of Iranian Officials as Extrajudicial Killings

The targeted killings of high-ranking Iranian officials, such as Major General Bagheri and Brigadier General Izadi, occurred outside any lawful armed conflict. These individuals were located within sovereign Iranian territory, were not engaged in combat, and were not shown to pose an imminent threat. Under IHRL, and specifically Article 6 of the ICCPR, their killings constitute extrajudicial executions.[^14]

According to the 2010 Report of the UN Special Rapporteur on Extrajudicial Killings, “in cases outside armed conflict, where international human rights law continues to apply, targeted killings are only legal if they meet the standards of necessity, proportionality, and imminent threat.”[^15] 

None of these criteria were satisfied in the June 2025 assassinations. The operation lacked transparency, independent oversight, or post-strike review mechanisms. Furthermore, these officials could have been subject to arrest or non-lethal containment if they were truly perceived as threats.

D. Illegality of Strikes on Nuclear Infrastructure

The Israeli and U.S. attacks on Iran’s nuclear facilities - Natanz, Fordow, and Isfahan - pose significant challenges under both IHL and customary international law. While dual-use infrastructure may be lawful targets during armed conflict, the key criterion is that such sites must make an “effective contribution to military action” and that their destruction must offer “a definite military advantage.”[^16]

In the absence of an ongoing armed conflict and given that Iran’s nuclear program was under IAEA supervision, these conditions were not met. The strikes undermined international non-proliferation frameworks and set a dangerous precedent for unilateral military action against civilian infrastructure. 

The ICJ, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996), noted that attacks on nuclear installations must be approached with extreme caution due to the humanitarian and environmental consequences.[^17]

E. Customary Law and the Crime of Aggression

The cumulative nature, scale, and intent of the June 2025 operations - launched without Security Council authorization and absent any armed attack - meet the threshold of the crime of aggression as articulated in Article 8 bis of the Rome Statute. 

While jurisdictional barriers may prevent formal prosecution at the ICC, the acts remain illegal under customary international law. Furthermore, these actions undermine global norms on the non-use of force and risk creating precedents for lawless, discretionary violence among states.

IV. IMPLICATIONS AND RECOMMENDATIONS

The June 2025 strikes by Israel and the United States represent one of the most serious contemporary breaches of the international legal order governing war and peace. 

These acts of aggression, masked under the rhetoric of self-defense, have undermined the fundamental principle that force must be used only as a last resort and in strict compliance with international law.

Consequently, there are several urgent steps that the international community must consider. 

(a). The United Nations General Assembly should convene an emergency session under the “Uniting for Peace” resolution to debate the legality of the strikes and adopt a resolution condemning the use of force against Iran. 

(b). Iran or a third-party state could request an advisory opinion from the ICJ regarding the legality of the June 2025 actions. 

(c). States parties to the Rome Statute could initiate a referral to the ICC Prosecutor to open a preliminary examination, especially if Iranian territory suffered grave violations that amount to crimes under international law.

(d). The international community should reaffirm the narrow and well-established criteria for self-defense, and resist the normalization of preventive war doctrines. International legal mechanisms - such as the Security Council, the ICJ, and human rights treaty bodies - must be strengthened to hold violators accountable and prevent the erosion of the Charter system.

V. CONCLUSION

The June 2025 attacks by Israel and the United States against Iran lack any credible legal justification under the UN Charter, international humanitarian law, or international human rights law. They were neither acts of self-defense nor proportionate responses to armed aggression. Instead, they were preventive strikes rooted in geopolitical strategy and speculation, not in law. 

The targeted assassinations of Iranian officials and destruction of nuclear infrastructure amount to grave violations of sovereignty, extrajudicial executions, and possibly the crime of aggression under customary law. 

Only a robust legal and institutional response can prevent these violations from becoming a dangerous new norm in international relations.

References

[^1]: The Guardian, “A Week of War That Left Iran Stunned and Bloodied,” June 20, 2025. 

[^2]: AP News, “U.S. Strikes Iranian Nuclear Sites, Joins Israeli Offensive,” June 22, 2025. 

[^3]: United Nations Charter, Article 2(4). 

[^4]: United Nations Charter, Article 51. [^5]: International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Judgment, ICJ Reports 1986. 

[^6]: Geneva Conventions of 1949 and Additional Protocols I and II. 

[^7]: International Covenant on Civil and Political Rights (ICCPR), Article 6. 

[^8]: UN Human Rights Committee, General Comment No. 36, 2018. 

[^9]: Rome Statute of the International Criminal Court, Article 8 bis. 

[^10]: The Times, “Does Iran Have Nuclear Weapons? Why the U.S. Is Attacking Now,” June 2025. 

[^11]: ICJ, Oil Platforms (Iran v. United States), Judgment, ICJ Reports 2003. 

[^12]: Correspondence between Webster and Ashburton, Caroline Incident (1837). 

[^13]: UNGA, Resolution 3314 (XXIX), 1974, Definition of Aggression. 

[^14]: ICCPR, Article 6(1); General Comment No. 36. 

[^15]: UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report A/HRC/14/24/Add.6 (2010). 

[^16]: Additional Protocol I, Article 52(2). 

[^17]: ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996.

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Author's Bio: Teddy Okello is an Advocate of the High Court of Kenya, Certified Professional Mediator, Commissioner for Oaths,  and Founder of The Institute for Policy and Diplomacy, Nairobi, Kenya. His work and writings focuses on review, critique and development of national and regional frameworks for governance, finance, health, infrastructure, climate change/sustainable development, international trade, peace and security and geopolitics. Tel: +254715310677. Email: instituteforpolicyanddiplomacy@gmail.com. 

THE PUBLIC SEAL CONTROVERSY: WHAT THE KOSKEI AFFAIR REVEALS ABOUT POWER, LAW, AND ACCOUNTABILITY IN KENYA’S PRESIDENCY

SUMMARY OF THE CASE - Nairobi High Court Petition E017 of 2025: Katiba Institute & Others v Attorney General & 9 Others

Petition E017 of 2025, filed by Katiba Institute and others, challenges the alleged unlawful transfer of the Public Seal of the Republic of Kenya from the Attorney General to Felix Koskei, Chief of Staff and Head of Public Service, pursuant to Executive Order No. 2 of 2023. On June 13, 2025, the High Court issued a conservatory order suspending implementation of the Executive Order, pending further proceedings. The matter is currently pending before Justice Chacha Mwita, with the next court mention scheduled for July 2, 2025, to determine subsequent directions, including a possible full hearing.

As of the latest information, no final judgment has been delivered, and no appeal has been filed with the Court of Appeal. The case remains active at the High Court, where it continues to test the limits of executive power, constitutional custodianship, and institutional accountability in Kenya’s governance structure.

1. INTRODUCTION

On the face of it, the allegation that Felix Koskei, the Chief of Staff at State House and Head of Public Service, illegally took possession of the Public Seal of the Republic of Kenya might seem like a procedural anomaly, a minor infraction of protocol. But under closer scrutiny, this development represents something far more dangerous: a profound challenge to Kenya’s constitutional order, a test of the judiciary’s independence, and a potential watershed moment in the country’s governance culture.

The case, brought before the High Court, alleges that Koskei appropriated the Public Seal from the Attorney General (AG), whose office is constitutionally mandated to safeguard it. This isn’t merely about a symbolic emblem. The Public Seal is a legal instrument that authenticates the exercise of sovereign authority. It is one of the most significant artifacts of a republic, akin to a national signature, and its unlawful removal or misuse has grave implications.

In this article, we explore what is at stake, not just for Felix Koskei, but for the architecture of Kenyan constitutionalism and the preservation of democratic accountability in an increasingly powerful Executive.

2. THE ROLE OF THE PUBLIC SEAL IN KENYA’S CONSTITUTIONAL FRAMEWORK

To appreciate the seriousness of the allegation, one must understand what the Public Seal represents. In constitutional democracies, a public seal is used to signify the state’s assent to documents of national importance. In Kenya, it is affixed to instruments of state — including international treaties, key presidential appointments, and state proclamations — in accordance with legal and constitutional provisions.

The Constitution of Kenya, 2010, vests the custodianship of the Public Seal in the Office of the Attorney General. It is a responsibility that symbolizes the AG’s central role in ensuring the legality and formality of executive decisions.

Any unauthorized removal or use of the seal amounts to a breach of constitutional procedure. It potentially renders affected instruments legally void, casting doubt on their legitimacy and creating a legal minefield for both domestic and international actors who rely on the authenticity of Kenya’s official acts.

3. FELIX KOSKEI: THE MAN AT THE HEART OF THE STORM

Felix Koskei is no stranger to the corridors of power. As Chief of Staff and Head of Public Service, he holds one of the most influential offices in the land. Reporting directly to the President, Koskei manages the machinery of government and serves as the nexus between the Executive and the bureaucracy.

A former Cabinet Secretary for Agriculture under President Uhuru Kenyatta’s first administration, Koskei is regarded by insiders as a methodical, quiet power broker with strong ties to the presidency. His reemergence as Chief of Staff under President William Ruto was read by many as a strategic consolidation of the President’s control over State House.

But power comes with scrutiny. The allegation that he usurped the constitutional function of the Attorney General by taking custody of the Public Seal opens a Pandora’s box of legal, political, and ethical concerns.

4. THE ALLEGATIONS: AN OVERVIEW OF THE LEGAL CHALLENGE

According to pleadings submitted in court, Koskei is alleged to have “illegally removed the Public Seal from the custody of the Attorney General” and transported it to State House. The move, it is argued, was done without any enabling law, gazette notice, or constitutional amendment.

The petitioners argue that this act amounts to executive overreach and poses a direct threat to the rule of law. By taking control of the seal, Koskei would effectively gain power to affix it to any document - including appointments, dismissals, or treaties - without the formal review or legal advice of the AG’s office.

The implications are chilling. If left unchallenged, this could pave the way for unchecked presidential powers executed through proxies, bypassing constitutional safeguards. The courts are now called upon to decide whether this action constitutes a usurpation of power or falls within the remit of administrative prerogative.

5. SEPARATION OF POWERS AND EXECUTIVE OVERREACH

Kenya’s Constitution enshrines a separation of powers between the Executive, Legislature, and Judiciary. This design seeks to prevent the concentration of power in one arm of government and to ensure checks and balances.

The allegation against Koskei strikes at the heart of this doctrine. It suggests a deliberate consolidation of power within the Executive - specifically, within the presidency - and an erosion of institutional independence. If the Public Seal can be relocated from the AG’s office to State House at the will of a presidential appointee, what stops similar moves in other vital areas of governance?

This is how democratic backsliding begins - not through dramatic coups, but through incremental violations of the rules that bind government power.

6. THE ATTORNEY GENERAL’S CONSTITUTIONAL ROLE

Under Article 156 of the Constitution, the Attorney General is the principal legal adviser to the government. The AG is mandated to uphold the rule of law and ensure that every action by the state is legally sound.

The custodianship of the Public Seal is a reflection of this function. It ensures that every document bearing the President’s authority has been reviewed and cleared through proper legal channels. Stripping the AG of this role not only diminishes the office but also creates a dangerous precedent of sidelining legal oversight in state affairs.

The controversy reveals a deeper tension in Kenyan governance: the push-and-pull between legal procedure and political expediency.

7. STATE HOUSE AND THE SHADOW OF IMPUNITY

State House, as the apex of executive power in Kenya, has long been accused of operating above the law. From procurement scandals to constitutional violations, successive administrations have often used State House as a shield from accountability.

The Koskei incident risks reinforcing this perception. It raises the question: Can a presidential aide, however senior, override constitutional roles simply because they serve at the pleasure of the President? And if the courts fail to draw a line, what does that mean for the rest of the constitutional order?

Koskei may be acting with presidential backing, but if his actions are found to be illegal, it would also place President Ruto in the spotlight - as the ultimate authorizer of a violation of constitutional protocol.

8. POLITICAL SYMBOLISM AND THE STRUGGLE FOR INSTITUTIONAL INTEGRITY

Symbols matter in governance. The Public Seal, like the national flag or coat of arms, is not just a physical item - it is a manifestation of state legitimacy. Who controls it is a statement about who holds power in the republic.

By allegedly taking the seal, Koskei may have sent a message - intentional or otherwise - that legal niceties can be set aside when political interests demand it. This undermines efforts to build institutional trust, particularly at a time when public confidence in government is already fragile.

Kenya’s institutions have made significant strides since 2010, but they remain vulnerable to elite capture. This controversy is a litmus test of whether those institutions can withstand political pressure.

9. WHAT THIS MEANS FOR THE RULE OF LAW IN KENYA

At its core, this case is about the rule of law - the idea that no one, not even the President or his Chief of Staff, is above the Constitution. The casual disregard for constitutional procedures, if proven, would not only taint the Office of the President but also encourage other state officers to flout the law with impunity.

Already, some civil society actors have warned that failure to act decisively will open the door to other forms of administrative lawlessness - including illegal appointments, procurement violations, and constitutional amendments by stealth.

The rule of law is not self-executing. It requires vigilance, judicial courage, and public demand. This case may well become a defining moment in Kenya’s post-2010 legal order.

10. COMPARATIVE REFLECTIONS: PUBLIC SEALS IN OTHER JURISDICTIONS

Globally, the use and custodianship of national seals is tightly regulated. In the United States, the Great Seal is maintained by the Department of State and its use is governed by strict protocol. In the UK, the Great Seal is held by the Lord Chancellor and is affixed only in ceremonial acts authorized by the Crown.

In both cases, the common denominator is legal oversight. Political appointees do not have free rein to access or apply the seal. This is not merely a matter of tradition but a guardrail against authoritarianism.

Kenya must learn from these systems. If political aides can casually override legal structures, the sanctity of constitutional democracy begins to erode.

11. THE JUDICIARY’S TEST: INDEPENDENCE OR CAPITULATION?

The ball is now in the Judiciary’s court. Will the judges rise to the occasion and reaffirm the supremacy of the Constitution, or will they bow to political pressure? The integrity of the entire legal system rests on this decision.

Kenyans will be watching closely. This case, though seemingly technical, has become a referendum on judicial independence. It could also embolden or dissuade future challenges to executive excesses, depending on the outcome.

The Judiciary must be reminded: history judges the courageous, not the compliant.

12. CONSTITUTIONAL REMEDIES AND THE WAY FORWARD

If the court finds Koskei’s actions unlawful, it must go beyond mere declarations. There must be consequences - including sanctions, possible criminal investigation, and restoration of the Public Seal to the lawful custodian.

Parliament must also act. A clearer statutory framework should be enacted to regulate the use and custody of national symbols, ensuring they cannot be appropriated by political operatives.

Civil society and legal scholars must sustain the debate and push for greater accountability. The public seal controversy is not just about one man - it’s about who we are as a nation.

13. CONCLUSION: THE CRISIS OF LEGITIMACY IN KENYA’S ADMINISTRATIVE ORDER

Felix Koskei’s alleged appropriation of the Public Seal may seem like a bureaucratic footnote. But it is anything but. It is a mirror reflecting the deeper malaise afflicting Kenya’s governance - the erosion of constitutionalism, the weaponization of political appointments, and the fragility of legal safeguards.

At stake is the credibility of the Executive, the authority of the Attorney General, the independence of the Judiciary, and the faith of the people in the rule of law.

This moment demands clarity, courage, and commitment. Anything less would be a betrayal of the constitutional promise that Kenya made to itself in 2010: that all power shall be exercised lawfully, and all symbols of state - including its Public Seal - shall serve the republic, not individuals.

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Author's Bio: Teddy Okello is an Advocate of the High Court of Kenya and Program Lead at the Institute for Policy and Diplomacy, Nairobi, Kenya. His work focuses on review, critique and development of national and regional frameworks for governance, finance, health, infrastructure, climate change, international trade, peace and security and geopolitics. Tel: +254715310677. 

FROM AID TO TRADE: IS CHINA REDEFINING ECONOMIC PARTNERSHIPS IN AFRICA?

INTRODUCTION

For decades, China’s engagement with Africa was characterized by large-scale infrastructure loans, resource-backed financing, and diplomatic overtures framed as "win-win" cooperation. 

However, recent shifts in global trade dynamics - particularly the tentative U.S.-China Tariff Deal announced by The White House in June 2025 - have prompted Beijing to recalibrate its African strategy. The deal, which reduces U.S. tariffs on Chinese goods to 55 %, signals a potential easing of trade tensions but also compels China to diversify its economic partnerships beyond traditional Western markets.

Against this backdrop, Africa is emerging as a critical theater for China’s evolving economic statecraft. No longer content with being Africa’s largest creditor, China is increasingly positioning itself as the continent’s premier trade and investment partner, leveraging manufacturing relocations, digital infrastructure, and green energy projects to secure long-term influence. 

This op-ed examines whether China’s pivot from aid-driven diplomacy to trade-centric engagement represents a genuine redefinition of Africa’s economic future - or simply a repackaging of neo-colonial extractivism.

THE HISTORICAL CONTEXT: CHINA’S AID-FIRST APPROACH IN AFRICA

1. The Belt and Road Initiative (BRI) and Infrastructure Diplomacy

Since the early 2000s, China’s engagement in Africa has been dominated by concessional loans and infrastructure projects under the Belt and Road Initiative (BRI). From railways in Kenya to ports in Djibouti, these projects were often financed through resource-backed loans, locking African nations into long-term debt dependencies (Brautigam, 2020). 

By 2023, China accounted for nearly 20% of Africa’s total external debt, with countries like Zambia and Angola facing severe repayment crises (World Bank, 2024).

2. The Limits of Debt-Driven Development

The sustainability of China’s aid-heavy model came under scrutiny as multiple African countries struggled with debt distress. Zambia’s 2020 default and Ethiopia’s debt restructuring negotiations exposed the risks of over-reliance on Chinese financing (Financial Times, 2024). 

Critics argued that China’s approach mirrored colonial-era extraction, where infrastructure investments primarily facilitated resource exports rather than industrial self-sufficiency (Carmody, 2021).

THE SHIFT: FROM LOANS TO TRADE AND INVESTMENT

1. The U.S.-China Tariff Deal and Its Implications for Africa

The White House’s June 2025 announcement of a partial tariff rollback (10%-50%) on Chinese goods has marked a turning point. While easing U.S.-China trade tensions, the deal also reinforced Beijing’s need to secure alternative markets amid lingering Western skepticism (Politico, 2025). Africa, with its growing consumer base and untapped manufacturing potential, became an attractive destination for Chinese firms seeking to bypass U.S. and EU trade barriers.

2. Manufacturing Relocations and Special Economic Zones (SEZs)

China is increasingly shifting low-end manufacturing to Africa to reduce costs and circumvent Western tariffs. Ethiopia’s Hawassa Industrial Park, Nigeria’s Lekki Free Trade Zone, and Tanzania’s Bagamoyo SEZ exemplify this trend (Brookings, 2025). These zones, often backed by Chinese state-owned enterprises (SOEs), aim to transform Africa into a global manufacturing hub - while ensuring Chinese firms retain control over supply chains.

3. Digital Expansion: Huawei, 5G, and the "Digital Silk Road"

Beyond physical infrastructure, China is deepening its footprint in Africa’s digital economy. Huawei’s dominance in African telecom networks and the rollout of 5G infrastructure underscore Beijing’s strategy of embedding Chinese technology standards across the continent (CSIS, 2024). This digital leverage grants China long-term influence over Africa’s data governance and cybersecurity policies.

IS THIS A TRUE PARTNERSHIP OR A NEW FORM OF DEPENDENCY?

1. Trade Imbalances and the Raw Materials Dilemma

Despite rhetoric of mutual benefit, Africa’s trade relationship with China remains skewed. In 2024, over 70% of African exports to China were raw materials (oil, minerals, timber), while Chinese exports to Africa were dominated by manufactured goods (UNCTAD, 2025). This imbalance perpetuates Africa’s role as a supplier of cheap commodities rather than an industrial peer.

2. Local Backlash and Debt Diplomacy Concerns

Some African governments are pushing back against perceived Chinese overreach. Kenya’s renegotiation of its Railway Debt and Ghana’s suspension of BRI projects reflect growing skepticism (Reuters, 2025). Meanwhile, the U.S. and EU are countering China’s influence through initiatives like the Global Gateway and Prosper Africa, offering alternative financing with stricter transparency clauses (European Commission, 2025).

CONCLUSION: A SUSTAINABLE MODEL OR STRATEGIC ADAPTATION?

China’s pivot from aid to trade in Africa is not purely altruistic - it is a calculated response to global economic pressures, including the U.S.-China tariff deal. While increased Chinese investment could spur industrialization, Africa must negotiate from a position of strength to avoid replicating past dependencies. The coming decade will determine whether this shift marks a genuine transformation in Africa’s economic trajectory or merely a more sophisticated iteration of extractive engagement.

References

Brautigam, D. (2020). The Dragon’s Gift: The Real Story of China in Africa. Oxford University Press.

Brookings Institution. (2025). China’s SEZs in Africa: Industrialization or Exploitation?

Carmody, P. (2021). The New Scramble for Africa. Polity Press.

CSIS. (2024). Huawei in Africa: Digital Colonialism or Development Opportunity?

European Commission. (2025). Global Gateway: Europe’s Answer to the BRI.

Financial Times. (2024). Zambia’s Debt Crisis and the China Factor.

Politico. (2025). U.S.-China Tariff Deal: What It Means for Global Trade.

Reuters. (2025). African Nations Rethink Chinese Debt Amid Economic Strains.

UNCTAD. (2025). Africa-China Trade Dynamics: Trends and Imbalances.

World Bank. (2024). Africa’s Debt Sustainability in the Shadow of Chinese Loans.

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Author's Bio: Teddy Okello is an Advocate of the High Court of Kenya, Certified Professional Mediator, Commissioner for Oaths, and Founder of The Institute for Policy and Diplomacy, Nairobi, Kenya. His work and writings focuses on review, critique and development of national and regional frameworks for governance, finance, health, infrastructure, climate change/sustainable development, international trade, peace and security and geopolitics. His contacts are: Phone +254715310677. Email: instituteforpolicyanddiplomacy@gmail.com.