How courts have persistently frustrated Ruto

President William Ruto. [PCS, Standard]

With tough political biceps nurtured over decades, President William Ruto has lately engaged the Judiciary in several arm wrestling duels, with a succession of jibes at unnamed judges he calls corrupt.

But seasoned legal practitioners have been steadfast in battling the intimidation, rallying to block the implementation of government directives they perceive to be inconsistent with the law.

School fees via e-Citizen

Last week, the High Court temporarily suspended a government plan to have parents pay school fees for their children through the e-citizen platform.

Following a recent directive by Treasury CS Njuguna Ndung'u to onboard all government services on the eCitizen platform, Education CS Belio Kipsang on January 31 released a circular directing all principals to ensure all fees are paid through the platform.

Nakuru surgeon Magare Gikenyi went to court seeking to suspend the move, terming it illegal, devoid of public participation and therefore "arrived at capriciously” and “whimsically."

Justice Chacha Mwita granted the prayers.  “It is hereby ordered that an interim conservatory order is hereby issued suspending the Circular or letter by Principal Secretary (Belio Kipsang), Ministry of Education dated 31st January 2024 requiring parents, guardians, and or students to pay fees and or any other levies for all government learning institutions through eCitizen platform or any digital platform,” read the order. 

Police to Haiti

The controversial deployment of police to Haiti, which Ruto promised in 2023, was blocked by the High Court on January 26. The court argued that this action would be unconstitutional as the National Security Council lacks the legal authority to send police outside Kenya. It could, however, have sufficed if the Council had sought to send the military for the peacekeeping mission, funded by the US.

Kenya had volunteered to lead a multinational security force in the Caribbean nation which has for long been in the stranglehold of street gangs. These gangs have wreaked havoc for years, even killing former president Jovenel Moïse in 2021.

Kenya was to send 1000 officers, a move which generated considerable uproar within Kenya. Further, the Kenyan courts elucidated its objection, saying that the government is only able to deploy police officers to another country “if a reciprocal agreement exists between Kenya and the host nation”.

While positive about the president’s intention, High Court judge Chacha Mwita, in his ruling, said the promised deployment “contravenes the constitution and the law and is therefore unconstitutional, illegal and invalid.”

In an interview during the Italy-Africa summit in Rome, Ruto said that the mission was well on course. "The mission is a bigger calling to humanity," he said as other countries such as Jamaica, Antigua and Barbuda, Suriname, Belize, Bahamas and Mongolia also committed to sending troops to Haiti to bolster its security.

SHIF

In November 2023, following incessant rallies by the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU), the High Court halted the implementation of the much-debated Social Health Insurance Fund Act 2023, the Primary Health Care Act 2023 and the Digital Health Act 2023 until the hearing and determination of a case challenging their legality.

Ruto had said the rollout of this universal health coverage would be in January 2024, but the damper came when courts quashed its implementation.

“Those who have gone to court are conmen and crooks. They want to continue stealing public resources but we will not allow it. The programme will go on with or without court orders,” he said.

On Friday, January 19, the Court of Appeal lifted an order blocking the implementation of the Social Health Insurance Fund (SHIF).

Despite the judges lifting the order that blocked the rollout following an application at the court for a temporary suspension of the High Court directive, the determination of the case was still pending. The three- Social Health Insurance Act, 2023, Primary Health Care Act, 2023 and Digital Health Act, 2023 - came in to replace the National Health Insurance Fund (NHIF).

Housing Levy

The levy, which was one of the main bones of contention in the Finance Act 2023, also suffered a blow when, on January 26, the Court of Appeal stopped the government from collecting money for the affordable housing scheme. The High Court declared this levy unconstitutional in November 2023, saying that the 1.5 per cent monthly deductions on formal workers’ payslips every month were unfair and needed to halt.

In a quick rejoinder, Ruto said he would do everything to ensure his pet project was not frustrated, and that the plan to build 200,000 affordable houses every year and to employ millions of Kenyan youth went on smoothly.

“We will appeal the case so that we continue with the programme and create jobs for millions of Kenyan youths,” he said.

The affordable housing programme was introduced by former president Uhuru Kenyatta after his 2017 re-election as part of a four-pillar manifesto, alongside food security, affordable healthcare and manufacturing.

President William Ruto during the Commissioning of Naivasha Special Economic Zone sub-station in Naivasha, Nakuru county on January 13, 2024. [Kipsang Joseph, Standard]

It was meant to create liveable spaces for an urban population growing exponentially, “Increased urbanisation and low affordability for housing units is growing the annual housing deficit,” the Boma Yangu website reads.

“At least 22 per cent of Kenyans live in cities, and the urban population is growing at a rate of 4.2% every year. With this level of growth, Kenya requires approximately 200,000 new housing units annually to meet demand, yet only 50,000 homes are built, leaving the housing deficit growing by 150,000 units per year.”

The government had started making collections in July 2023 towards the project in the form of the housing levy, going ahead to vilify those who were calling for its suspension and labelling judicial officers acting to stop it as corrupt.

“It is not possible that we respect the Judiciary while a few individuals who are beneficiaries of corruption are using corrupt judicial officials to block our development projects,” Ruto said.

Observers have noted that Ruto could be conflicting himself in calling the courts corrupt when it was the same Judiciary that confirmed his victory in the 2022 elections. At the time, he was elated at the decision and praised the courts.

The first blow to this project- if the early objection to the proposal in The Finance Bill is to be overlooked- came hot on the heels of an order to stop deductions towards the Social Healthcare Insurance Fund when, within a week, courts temporarily halted the deduction of the housing levy from workers’ payslips and also quashed the 2.57% towards the SHIF.

Privatisation

In a push for privatisation, where the government sought to return lethargic state-owned companies to profitability, 11 entities were earmarked in 2023.

These are the Kenya Literature Bureau (KLB), National Oil Corporation of Kenya (NOCK), Kenya Seed Company Limited (KSC), Kenyatta International Convention Centre (KICC), Mwea Rice Mills Ltd (MRM), Western Kenya Rice Mills Ltd (WKRM), Kenya Pipeline Company Limited (KPC), New Kenya Cooperative Creameries Limited (NKCC), Numerical Machining Complex Limited (NMC), Vehicle Manufacturers Limited (KVM), and the Rivatex East Africa Limited (REAL).

This move was aimed at helping in the government’s efforts for fiscal consolidation and spurring economic development, including raising of additional revenue and reducing the demand for government resources among many demanding and competing needs.

But on December 4, High Court Judge Chacha Mwita suspended this privatisation drive, considering an application by the opposition.

The last privatisation of a state owned company in Kenya was witnessed 14 years ago.

Advocates’ take

As The Judiciary consistently thwarted efforts to impose unconstitutional directives, the president trained his guns on it, promising to deal with the rogue elements therein.

Law Society of Kenya president Eric Theuri led lawyers in support of Kenya’s judges as they made public pronouncements against the blanket condemnation of legal practitioners.

“The Law Society will be organizing a countrywide peaceful demonstration where we will read and affirm the oath that every one of the Advocates of the High Court took to protect the rule of law, the independence of The Judiciary and The Constitution we have,” he said ahead of one of the protests.

Jackson Lungwe, an Advocate of the High Court of Kenya, says that while many could blame the president’s legal team for misleading him, the buck stops with the president and chances are it is he who disregards counsel.

“He could be consulting them but ultimately he is the final decision maker. So despite their advice, he could be having a different view, and which ultimately prevails. There is no deliberate intention from courts to thwart his intentions. He is just not following the constitution; his directives often conflict with express and mandatory dictates of the constitution. He needs to be deliberate about abiding by the constitution,” Mr Lungwe says.

Lungwe makes an example of a lack of public participation in making decisions that have ramifications on people. He says that public participation is no longer a preserve of the legal society but a provision of the common man, a requirement every person knows about.

“His is a deliberate refusal to abide by the law, a clear lack of intent to do so. It is a failure to appreciate the law,” he says.

Macharia Munene, a professor of history and international relations, has also been critical of what he has termed the president’s insistence on getting things done his way, with little regard to expert opinion.