Trail of President Ruto's legal setbacks

From the quashing of 50 appointments of Chief Administrative Secretaries to decisions on revenue mobilization measures and the universal health coverage agenda, the President’s team has been kept busy defending laws that had faced intense criticism in Parliament, only to end up losing in court.

The President's supporters are now turning their focus on the judiciary, accusing it of judicial activism.

The latest setback is the Court of Appeal’s declaration that the Finance Act 2023 is unconstitutional, null, and void. A three-judge bench held that the process leading to its enactment was flawed as it failed to consider public views on various sections.

According to Political and Governance Analyst Javas Bigambo, the opportunity to learn big lessons from the ruling must not be missed, particularly regarding how it exposes the Attorney General and the due process in passing laws by Parliament.

When he was elected, President Ruto launched an ambitious Affordable Housing plan aiming to build over 250,000 housing units every year. However, the program faced significant opposition due to the move to deduct 1.5% of the gross income of salaried workers in Kenya to fund the project’s base capital.

On 28th November 2023, the High Court declared the affordable housing levy unconstitutional, stating that it was discriminatory against salaried workers.

The government quickly moved to enact a stand-alone Affordable Housing Act, which took effect in March 2024. However, the new law is now subject to another court challenge.

On Friday, 12th July 2024, a three-judge bench comprising Justices Alfred Mabeya, Robert Limo, and Fridah Mugambi declared three health laws unconstitutional: the Social Health Insurance Act 2023, the Primary Healthcare Act 2023, and the Digital Health Act 2023.

These laws form part of President Ruto's Universal Health Coverage agenda. The judges argued that the laws were passed hurriedly without proper public participation.

"Public participation came in when the new constitution kicked in. I have been in Parliament for 12 years now, and I can assure you that there are many laws that have been passed by a majority where public participation is just a sham," says Senator Dan Maanzo.

On July 25th, the courts halted the rollout of Maisha Namba, a unique personal identification number assigned to the Maisha Card, a third-generation digital identity card.

The court also suspended the planned implementation of the National Master Population Register after the Garissa-based lobby group Haki Na Sheria challenged the rollout, citing concerns about personal data protection.

Amid anti-government protests, President William Ruto appointed a task force to conduct a forensic audit of the public debt. The High Court has since stopped the task force from executing its mandate after two petitioners argued that the President’s assignment usurped the role of the Auditor-General.

A year ago, on 3rd July 2023, the High Court quashed the appointment of 50 Chief Administrative Secretaries (CASs) appointed and sworn in by President Ruto in March 2023. It was the biggest blow in his first year in office.

The Kenya Kwanza administration subsequently passed a law in Parliament entrenching CAS offices. The President has since dropped the plan to appoint CASs due to austerity measures and public pressure to reduce government expenditure.

"When every or various decisions of the Executive are stopped by the courts by way of judgment, it brings embarrassment to the office of the President. It stops the wheels of policy formulation and implementation from running," says Governance Expert Javas Bigambo.

The growing list of the government’s legislative and policy interventions that have been overturned has escalated the frustration of some leaders within the government, who are now directing their anger at the judiciary.

For now, all eyes are on the Kenya Kwanza administration's next steps, especially with the Finance Act 2023, which has now faced a major blow at the Court of Appeal.