President Ruto's Executive Order 1 of 2023 sparked a constitutional firestorm by transferring custody of Kenya's Public Seal from the Attorney General to the Chief of Staff and Head of the Public Service.
On January 6, 2023, President William Ruto released an executive order (Number 1 of 2023) for the organisation of government, setting the stage on one of the many controversies in the Kenya Kwanza administration. At the time, it was slightly over three months after being sworn in as President on September 13, 2022.
Among the orders contained in the 73-page document, was that the Chief of Staff and Head of the Public Service, Felix Koskei, would be the “custodian of the Kenya Public Seal and other instruments of the State for national posterity”.
The Executive Order facilitated the transfer of the public seal even before the government attempted to regularise the move through the National Assembly Administration Laws (Amendment) Bill, 2023, which was resisted by the parliamentary committee of Justice and Legal Affairs.
As government spokesperson Isaac Mwaura struggles with clear public communication on who is the custodian of the seal, observers say the move is an attempt to concrete power at State House, control politics and clip the powers of the Attorney-General.
“Article 156(4)(a) of the Constitution designates the Attorney-General as the government’s principal legal adviser, and the Office of the Attorney General Act grants the AG custody of the public seal. Removing this function undermines the AG’s constitutional independence, weakens her authority, and risks creating legal ambiguities and executive overreach,” says Constitutional lawyer Evans Ogada.
Speaking to the Nation, Mr Ogada said the Ruto administration diluted the powers of the AG and that the transition of the seal to Head of Public Service (HoPS) – the President's principal aide — was a threat to the checks and balances.
“The transfer of the public seal from the Office of the Attorney-General to the Head of Public Service via the Executive Order violates Kenya’s Constitution and laws. This move appears to consolidate control within the Executive (particularly State House), and threatens the checks and balances intended by the Constitution,” said Mr Ogada, a public law lecturer.
Although the proposal to amend the Office of the Attorney-General Act to regularise the transfer of the seal from the custody of the AG to the HoPS failed in Parliament in 2024, last week Mr Mwaura confirmed that the transfer had actually happened.
Initially, Mr Mwaura had admitted that the “transfer of custody of the Public Seal from the office of the Attorney General to the Office of the Head of Public Service was conducted in accordance with the law”, only for him to abandon that explanation two days later and state that “the seal is held by the Attorney-General”.
According to lawyer Ogada, the “denials of the transfer, despite evidence, raise concerns about transparency and rule of law”.
“To uphold institutional integrity, the Executive must return the public seal to the AG’s office, preserving its autonomy and preventing arbitrary executive actions. Failure to do so may prompt legal challenges and further erode public trust,” he stated.
Former National Assembly Speaker and Cabinet Secretary Justin Muturi believes the transfer was mischievous and an attempt to avoid accountability.
“I think it is mischievous and an attempt to avoid scrutiny and accountability. My honest opinion is that President Ruto is really nostalgic about the imperial presidency,” said Mr Muturi.
And since the seal is used to stamp critical government documents to show they are authentic and official, it is not lost to observers how a flurry of gazette notices was issued speedily during the impeachment of Rigathi Gachagua as Deputy President and the removal of nominated senator Gloria Orwoba.
The seal is also used to validate public agreements signed by the government for or on behalf of Kenya.
Mr Gachagua’s impeachment was announced by Senate Speaker Amason Kingi through a gazette notice released on the night of October 17, 2024, barely one hour after the senators upheld the ouster.
Later on October 31 after the High Court lifted the order stopping Mr Gachagua’s replacement, Kenyans were served with four gazette notices and late-night invites as government operatives moved to seal Mr Gachagua’s removal and have Prof Kithure Kindiki sworn in.
In the case of Senator Orwoba, a gazette notice announcing a vacancy in her seat was published on May 21, 2025 hours after the Speaker received a letter from the Registrar of Political Parties communicating the decision of the UDA party disciplinary committee to expel her.
According to Kirinyaga Woman Representative Njeri Maina, an ally of Mr Gachagua, who is also a lawyer, so sensitive is the public seal that if in the wrong hands and misused, it would be used to take loans on behalf of the Kenyan people, sell and or lease or transfer national assets and enter into unfair trade agreements on behalf of Kenya.
Section 28 of the Attorney General Act states that “the Attorney-General shall have custody of the public seal of the Republic of Kenya”. In section 28A(2)and (3) provide that “the seal of the Office shall be kept in the custody of the Attorney-General or such person as the Attorney-General may authorise in that regard. The seal of the Office shall be used in accordance with the orders of the Attorney-General”.
The National Assembly Departmental Committee on Justice and Legal Affairs, in a report dated February 2024, had observed that there was no satisfactory justification for transferring the public seal from the custody of the AG to HoPS.
The committee noted that since the Attorney General was the principal legal advisor to the government, he should remain as the custodian of the public seal.
Speaker of the National Assembly Moses Wetang’ula further noted that the changes contained in the National Assembly Administration Laws (Amendment) Bill, 2023 related to significant constitutional and legal matters.
“In seeking to alter the role of government bodies and officials, the Bill affects the independence of the bodies and existing checks and balances within the government. Any change proposed to the functions of entities such as the Assumption of the Office of President Committee, the National Security Council and the office of the Attorney General may infringe upon their constitutional and statutory mandates,” Mr Wetang’ula had stated.
Lawyer Kibe Mungai, while speaking to the Nation pointed out that the role of the Attorney General is to defend the public interest.
He said the appointment of the government principal legal advisor is not for any person but there are qualifications.
“The Attorney General has moral and constitutional responsibility as the custodian of public interest, hence responsible for the public seal,” he said, adding that the AG is obligated to use the public seal in accordance with the law.
Mr Mungai said the Head of Public services is like a personal assistant to the President and in his view, moving the public seal to his office is avoiding accountability.
