Introduction
The concept of separation of powers in constitutional democracies distinguishes the legislative, executive, and judicial branches.[1] Traditionally, legislatures pass laws, which are then enforced by the executive branch.[2] However, recent events in global politics have shown that executive orders (EOs) are more than just administrative commands; in reality, they function as laws. This article will demonstrate that executive orders possess legislative authority and impact governance and public policy in the same way as legislation[3], using examples from the current U.S. President Donald Trump and Kenyan President William Ruto. Furthermore, this paper will analyze Executive orders that went through the parliamentary process to become law and those that did not go through parliament but operate as law in Kenya. This will help us distinguish the theoretical nature of executive orders from their complementary nature.
Understanding Executive Orders
An executive order is a directive issued by the head of state, such as the President of Kenya or the United States, to oversee government agencies and enforce the law.[4] Despite not being approved by legislatures, these directives frequently have legal standing, requiring government agencies to act and even influencing people’s rights.[5] Legal experts argue that executive orders function within the parameters of existing laws, as they derive their authority from the Constitution or enabling legislation.[6] However, history has shown that executive orders have occasionally gone beyond administrative measures to influence national policy in ways indistinguishable from legislative acts.[7]
President Trump and Executive Orders
One of the most notable examples of executive orders acting as the law comes from former U.S. President Donald Trump. In 2017, he issued Executive Order 13769, also known as the “Muslim Ban,” which restricted entry into the United States from several countries with large Muslim populations.[8] This order altered immigration policy without congressional approval [9], and its immediate implementation led to travelers being detained at airports and a flurry of legal battles, demonstrating its tangible legal impact. [10] In 2025, Trump signed an executive order deploying military personnel to the U.S.-Mexico border and reintroducing the “Remain in Mexico” policy.[11]This directive shaped national immigration policy without congressional consent, exemplifying the executive branch’s ability to enforce policies with the weight of law.
A noteworthy instance is Trump’s 2025 executive order, which mandated the defunding of educational institutions that promoted critical race theory (CRT) and certain gender ideologies. Public schools were pressured to alter their curricula or face the risk of losing government funding. Essentially, this directive operated like a law, circumventing the traditional legislative process to regulate educational content (Brown, 2026). By employing executive orders in this manner, Trump illustrated that they could wield the force of law, enabling the president to unilaterally shape public policy.[12]
President Ruto and Executive Orders
Kenyan President William Ruto provides another compelling example of how executive orders function as law. In 2023, Ruto issued Executive Order No. 1, which reorganized the government by assigning and redistributing functions among ministries and state departments. Although presented as an administrative measure, this order dictated how government agencies would operate, affecting governance without parliamentary involvement. Similarly, in 2024, Ruto issued Executive Order No. 3, altering the management of state corporations, including stipulating terms for board members. This directive had immediate legal consequences, affecting public institutions and demonstrating the far-reaching impact of executive decisions. Although the High Court later suspended the order, its initial implementation underscored how executive orders can reshape governance just as statutory laws do.[13]
Analysis
This section aims to analyze Executive Orders in Kenya that became law through the parliamentary process and those that did not go through parliament yet operate as law in practice and they negatively affected constitutional provisions.
The president of Kenya has the executive authority to issue directives to facilitate government operations however these directives must align with the constitution and not contravene existing laws.[14] In Kenya, presidents have many times issued Executive Orders that have negatively affected constitutional provisions yet they are operating as law without undergoing the parliamentary process.[15]
For example, Executive Order Number 1 of 2018 was issued by His Excellency former President of the Republic of Kenya, President Uhuru Kenyatta, which reorganized government ministries, departments, and agencies.[16]. These directives overstepped their legal limits. The constitution requires such directives to be consistent with constitutional provisions in a manner that upholds crucial principles embodied in the constitution such as the rule of law, democracy, and accountability to the people of Kenya.[17] This order reduced the autonomy of independent agencies by placing them under ministerial supervision. This undermines democracy by concentrating too much power within the executive thereby infringing Article 129(2).[18] Moreover, the significant principle of public participation as outlined under Article 10 was grossly infringed as public participation did not take place.[19] Restructuring key institutions without involving the public or the parliament weakens public accountability. No successful legal battle overturned this order which means it remains in force.
Executive Order Number 2 of 2018 is a significant example of an Executive Order that overstepped legal boundaries. This executive order required all state suppliers to disclose the details of their contracts[20]. While the intention behind this directive, to promote transparency, was commendable, it infringed upon the rights to privacy and commercial confidentiality[21].
It is essential to give credit where it is due. Whilst many Executive Orders violate constitutional provisions yet operate as law without undergoing a parliamentary process, few Executive orders have undergone the parliamentary process and operate as law. For example, Executive Order No.2 of 2020. Former Kenyan President, his excellency Uhuru Kenyatta, in response to the COVID 19 pandemic issued this order. [22]This order established the National Emergency Response Committee, whose task was to coordinate Kenya’s preparedness and the function of response fell to this committee. Following the establishment of the National Emergency Committee, the government realized that inorder to successfully handle the issues posed by the pandemic, legislative measures were required. As a result, the Tax Laws (Amendment) Bil was written and submitted to parliament. [23]In order to protect Kenyans from the financial effects of the pandemic, the bill suggested various tax relief measures. These measures were approved by parliament and signed into law by President Kenyatta on April 2, 2020.
Conclusion
The examples set forth by Trump and Ruto demonstrate that executive orders, although theoretically separate from legislated statutes, perform a legislative role in several significant ways. Firstly, they come with immediate enforcement mechanisms, compelling government agencies to adhere to them without necessitating new statutes. Secondly, they influence public policy independently of legislative input, as evident in areas such as immigration restrictions, directives for education funding, and government restructuring. Finally, they are often subject to legal challenges in court, much like enacted laws, which underscores their legal significance.[24]
Despite the technical distinction between executive orders and legislated statutes, their effects prove that they operate as laws in practice. Trump’s immigration and education directives, as well as Ruto’s governance restructures, highlight the broad authority executive orders wield over policy and governance. While courts and legislatures can challenge or overturn them, their immediate and far-reaching impact cannot be denied. Executive orders are not merely administrative tools; they are, in every practical sense, laws in all but name.
[1] Cambodian Center for Human Rights, ‘CCHR Institutions Series Volume 1 – The Separation of Powers and the Rule of Law’ (June 2011) < https://www.a4id.org/wp-content/uploads/2016/04/The-Separation-of-Powers-and-the-Rule-of-Law-.pdf> accessed [1 February 2025].
[2] A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan 1959).
[3] Stephen Gardbaum, ‘Separation of Powers and Executive Lawmaking’ (2016) 24 International Journal of Constitutional Law 146.
[4] Constitution of Kenya, Article 132(3).
[5] William Howell, Power without Persuasion: The Politics of Direct Presidential Action (Princeton University Press 2003).
[6] Youngstown Sheet & Tube Co. v. Sawyer 343 US 579 (1952).
[7] Richard Neustadt, Presidential Power and the Modern Presidents (Free Press 1990).
[8] Trump v Hawaii 138 S Ct 2392 (2018).
[9] Trump v Hawaii 138 S Ct 2392 (2018).
[10] Shirin Sinnar, ‘Through the Looking Glass Darkly: The Supreme Court’s Muslim Travel Ban Decision’ Just Security, https://www.justsecurity.org/74373/through-the-looking-glas s-darkly-the-supreme-courts-muslim-travel-ban-decision/ accessed 2 February 2025.
[11] Executive Order 13993 (2025).
[12] Andrew Ujifusa, ‘Title IX, School Choice, Indoctrination: How Trump Took on Schools in Week 2’ Education Week (2 January 2025) <https://www.edweek.org/policy-politics/title-ix-school-choice-indoctrination-how-trump-took-on-schools-in-week-2/2025/01 accessed 2 February 2025.
[13] Standard Media Group. “Court Suspends Ruto’s Directive on Management of State-Owned Firms.” The Standard, 2 February 2025, https://www.standardmedia.co.ke/article/2001496688/court-suspends-rutos-directive-on-management-of-state-owned-firms.
[14] Constitution of Kenya, article 132(4)(a).
[15] Waikwa Wanyoike, “Executive Disorder: Unpacking Illegal Presidential Directives” The Elephant, 13 July 2017 — https://www.theelephant.info/analysis/2017/07/13/executive-disorder-unpacking-illegal-presidential-directives/.
[16] Executive Order No. 1 of 2018 – Reorganisation of the Government of the Republic of Kenya, available at https://dc.sourceafrica.net/documents/118364-Executive-Order-No-1-of-2018-Reorganisation-of.html.
[17] Constitution of Kenya, article 129.
[18] Constitution of Kenya, article 129(1).
[19] Constitution of Kenya, article 10.
[20] Executive Order No. 2 of 2018 – Procurement of Public Goods, Works and Services by Public Entities, available at https://dc.sourceafrica.net/documents/118382-Executive-Order-No-2-of-2018-Procurement-of.html.
[21] Constitution of Kenya, article 31.
[22] Executive Order No. 2 of 2020-National Emergency Response Committee on Coronavirus(28 February 2020)available at https://www.theelephant.info/documents/executive-order-no-2-of-2020-national-emergency-response-committee-on-coronavirus/
[23] Tax Laws(Amendment)(No 2)Act, 2020(No 22 of 2020).
[24] Tushnet, M. (1999). Taking the Constitution Away from the Courts. Princeton University Press. http://www.jstor.org/stable/j.ctt7spsn.
Very insightful!!!! A must read
Kazi safi sana Silas.
Very elaborate.
My take on executive powers is this:
EOs are essential especially where statutes would take a long time to legislate. They are however, often misused .
Kazi mzuri wakili.
Keep on mentoring us.
A must read!
Very insightful
Interesting read,