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Has the Supreme Court Of Kenya Become A JURISPESA As Its Ruling Opens A War Front With The Sovereignty Of The People Of Kenya

BY Steve Biko Wafula · October 31, 2024 03:10 pm

KEY POINTS

The Supreme Court’s reasoning that no specific procedural rules exist for public participation is a disturbing departure from established constitutional interpretation. The law is meant to be clear, enforceable, and, above all, adaptable. It does not require procedural technicalities to be effective; its principles alone should be enough to compel compliance. 

KEY TAKEAWAYS

Article 10(2) of the Constitution enshrines the values of transparency, accountability, and participation, yet this ruling appears to contradict those values. The Court has, in essence, permitted Parliament to act without regard for these guiding principles, allowing legislative convenience to overshadow democratic participation. 

The Supreme Court’s recent decision on the Finance Act 2023 has struck a painful nerve among Kenyans, provoking widespread frustration and dismay. This ruling, which asserts that public participation in the Act was constitutionally sufficient, is deeply troubling. By affirming that Parliament has no obligation to explain its decisions on public input, the Court has turned what should be a safeguard of democracy into a token gesture, hollow and ineffective. Instead of respecting public participation as a critical component of legislative action, this judgment relegates it to a mere formality, undermining the foundational principle that government authority is derived from the people.

It is disheartening to see the Supreme Court take a stance that fundamentally weakens the role of public participation. Participation was never meant to be a ceremonial process; it was intended as a real and substantive engagement with the people. However, this ruling sets a low bar for what counts as public input, leaving Parliament with nearly unchecked authority to implement measures that may lack popular support. Instead of a mechanism for accountability, public participation has now become an easily circumvented formality, threatening to turn Kenya’s democracy into an illusion.

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For a Court meant to uphold the Constitution, this decision is more than a disappointment—it is a betrayal. The Kenyan people have long relied on the judiciary as a guardian against the overreach of other government branches. But this ruling, by permitting Parliament to disregard public input, seems to favor legislative convenience over constitutional principles. Parliament now possesses leeway to impose financial burdens without genuine scrutiny, which is especially alarming in a time of economic hardship for many Kenyans. The judiciary’s duty is to safeguard public participation as a shield for the people. However, this judgment appears to abandon that duty.

The lack of transparency underscored by this ruling is a troubling signal. For a constitutional process meant to involve citizens directly, public participation now carries no assurances of integrity. If Parliament can disregard public views without justification, what is left of accountability? This judicial decision not only weakens public input but also erodes the people’s trust in a fair and just legislative process. By making public participation discretionary, the Supreme Court has granted Parliament a troubling level of control over legislative transparency and accountability, a step backward for the progress of Kenya’s democratic values.

Such a judgment is a direct affront to the principles enshrined in the Constitution. Article 1(1) states clearly that all sovereign power belongs to the people of Kenya and shall only be exercised in accordance with this Constitution. This foundational article reinforces that government is by and for the people, yet this ruling suggests otherwise, as though legislative actions may occur in a vacuum of accountability. If public views can be ignored without reason, the Constitution’s mandate is hollowed out, reducing citizens’ sovereignty to a mere pretense.

The Supreme Court’s reasoning that no specific procedural rules exist for public participation is a disturbing departure from established constitutional interpretation. The law is meant to be clear, enforceable, and, above all, adaptable. It does not require procedural technicalities to be effective; its principles alone should be enough to compel compliance. Yet, by this reasoning, the Court has opened the door for Parliament to avoid its duty to the people, failing to protect public participation as a meaningful component of the legislative process.

Allowing Parliament to dismiss public input without consequence is an invitation to abuse. The Constitution’s values of transparency and inclusivity seem now to be mere ideals, unprotected by the institution charged with upholding them. The judiciary’s role is to interpret and enforce the Constitution in a way that upholds the spirit of the law, yet this judgment does the opposite. It seems to provide an excuse for inaction rather than a commitment to the constitutional principles of democracy and the rule of law.

At a time when Kenyans are grappling with rising costs and economic pressures, this ruling could not have come at a worse moment. The Finance Act’s tax provisions and fiscal policies directly impact the public, and to see the judiciary disregard the people’s input on such critical issues is disheartening. This decision feels like a betrayal from an institution that should be defending the people’s rights and welfare. By empowering Parliament to implement financial measures with limited public accountability, the Court has placed additional burdens on already struggling Kenyans, undermining the essence of governance by consent.

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This ruling is a grim reminder of what happens when judicial restraint is mistaken for impartiality. The Constitution charges the judiciary with the responsibility to be a check on power, not to bow to it. A judgment that allows Parliament to evade accountability is a failure of this duty, allowing the people to bear the consequences of unchecked legislative actions. The Court’s failure to uphold this essential principle of public engagement risks creating a dangerous precedent that undermines the entire structure of checks and balances that the Constitution seeks to preserve.

Without a judiciary willing to stand as a bulwark against overreach, Kenya’s democratic future becomes increasingly uncertain. The Constitution was crafted to protect citizens from the concentration of power in any one branch of government, yet this ruling threatens to dismantle that safeguard. If Parliament can bypass meaningful public engagement with impunity, it will weaken the democratic foundations that protect Kenya from authoritarianism. A judiciary that shirks its role as a check on power is a judiciary that fails in its constitutional mandate, leaving the people vulnerable.

Article 10(2) of the Constitution enshrines the values of transparency, accountability, and participation, yet this ruling appears to contradict those values. The Court has, in essence, permitted Parliament to act without regard for these guiding principles, allowing legislative convenience to overshadow democratic participation. This disregard for the Constitution’s fundamental tenets sets a dangerous precedent, sending a message that public opinion can be treated as inconsequential, disposable, and optional.

The implications of this ruling go far beyond the Finance Act; it is a step back for democracy as a whole. By reducing public participation to a hollow formality, the Court risks eroding the people’s faith in the legislative process and, by extension, in democratic governance. When public opinion is silenced in favor of political expediency, democracy suffers. The Constitution is clear: government power is derived from the people, and it must be exercised in a manner that respects their input, not disregards it.

One of the judiciary’s fundamental roles is to ensure that each branch of government remains within its constitutional boundaries. Yet, by allowing Parliament to sideline the public’s views without justification, this ruling encourages the legislative overreach the Constitution is designed to prevent. Article 159(1) grants judicial authority as a responsibility from the people, emphasizing that it must be exercised to promote constitutional principles. This judgment, however, suggests that expediency and legislative comfort are of higher priority than fulfilling the Court’s duty to the people.

By enabling Parliament to impose financial obligations on citizens without meaningful oversight, the Court has disregarded the practical impact of its decision on Kenyans’ lives. This judgment dismisses the genuine concerns of the people affected by legislative decisions, a profound dereliction of judicial duty. The judiciary’s role as a check on power exists to protect the public from overreach, yet this decision effectively abandons that protection, leaving citizens vulnerable to unregulated fiscal policies.

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This judgment is not just a setback; it is a regressive shift for Kenya’s democratic progress. For months, Kenyans have fought for transparency, accountability, and financial discipline, only to see these principles undermined in a single stroke. The Court has given Parliament a blank check, effectively greenlighting legislative actions without public restraint. This ruling weakens Kenya’s democratic institutions, risking the erosion of hard-won rights and freedoms.

The Constitution envisions a government that serves its people, respects their views, and operates transparently. This ruling, however, endorses a model of governance where the people’s voice can be disregarded, unheeded, and unheard. This is not the democracy Kenyans have strived for; it is a retreat into a past where citizens have no meaningful say in the policies that shape their lives. By allowing Parliament to sideline public opinion with no explanation, the Court has compromised the democratic ideals that should guide Kenyan governance.

Without a judiciary willing to hold the other branches accountable, the balance of power that underpins the Constitution risks collapse. A judgment that favors legislative convenience over public accountability is a dangerous path, undermining the democratic foundations that protect Kenya from unchecked power. If the Court cannot defend constitutional principles, then it leaves the people without the protections that are their constitutional right.

For those Kenyans who participated in the public input process, this ruling feels like a betrayal. The Court has disregarded their voices, and by doing so, it has weakened the very notion of participatory governance. At a time when the people are struggling under the weight of economic challenges, they need a judiciary that stands with them, not one that diminishes their role in governance.

The Court’s decision on the Finance Act 2023 may go down as a pivotal moment, but not for the reasons the justices might hope. It will be remembered as a turning point that exposed the judiciary’s willingness to compromise democratic safeguards in favor of legislative expediency. By making public participation an optional gesture, the Court has endangered Kenya’s democracy, setting the nation on a troubling path.

Kenya’s Constitution is a pact with its people, a promise that they will have a say in the laws that govern them. This ruling undermines that promise, risking the very fabric of democratic governance. As Kenyans continue to advocate for their rights, the Supreme Court must remember that its authority is derived from the people—and its duty is to uphold, not weaken, their role in the democratic process.

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Steve Biko is the CEO OF Soko Directory and the founder of Hidalgo Group of Companies. Steve is currently developing his career in law, finance, entrepreneurship and digital consultancy; and has been implementing consultancy assignments for client organizations comprising of trainings besides capacity building in entrepreneurial matters. He can be reached on: +254 20 510 1124 or Email: info@sokodirectory.com

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