Detached policies: Why Kenyans' bid for citizen-friendly laws falters

President William Ruto addresses faithful during an interdenominational service in Teso South, Busia, on January 21, 2024. [Benjamin Sakwa, Standard]

In the 2010 Constitution, sovereign power is explicitly placed in the hands of the people. But the exercise of this formidable authority has drifted away from the heartbeat of the people’s needs.

Enshrined in Article One of the Constitution, the delegation of sovereign power to key state organs, notably Parliament and the Executive, is meant to echo the desires and welfare of the populace.

However, recent legislative and policy decisions, including the housing levy, health sector reforms and transformations in the education sector, cast a looming shadow over whether these actions authentically mirror the will and well-being of Kenyans.

In October 2023, President William Ruto signed into law a contentious legislative overhaul that marked a significant transformation of the health sector in over two decades. At the core of his strategy is advancement of universal healthcare, necessitating a mandatory contribution of 2.75 per cent of employees’ salaries to a newly established health fund.

In December, High Court Judge Justice Chacha Mwita issued conservatory orders suspending implementation of the Social Health Insurance Act 2023 pending determination of a case lodged in court by activist Joseph Enock.

This marked a recurring pattern in the Ruto administration, where government policies consistently falter during implementation for various reasons. Some are deemed unconstitutional, others lack adequate public participation, a core requirement of the Constitution, while some simply fall short of adhering to legal procedures.

In the face of the rising cost of living, a weakening shilling and a worsening business environment, Kenyans blame the government’s unpopular policies that seem at odds with their needs and expectations.

Governance expert, Tom Mboya, says the Constitution envisions a scenario where people drive decision-making. The recurrence of policies faltering after legal challenges, suggests a failure to involve citizens in their formulation. Mboya faults some government officials for taking public participation as a formality, rather than recognising its role in enhancing sovereign power.

“It is being done as a formality simply because there are elements within the legislature or even the Executive who have already arrived at a particular objective and are simply using public participation to arrive at a predetermined objective,” said Mboya.

“The public participation is not being carried out really to get views of the public, but it is being done simply as a result of the fact, it is required,” he added.

Law Society of Kenya President Eric Theuri contends that when public participation is done as a formality, it defeats the purpose of consulting the public and upholding Article One of the Constitution.

“Article 10 requires consultation of the people before certain policy decisions are made or before certain laws are enacted. The intention here is to ensure the laws are in tandem with the will of the people,” said Theuri.

Constitutional lawyer Bobby Mkangi, a participant in the constitution-making process, provides a critical perspective on the current state of policy formulation and public participation.

Mkangi says despite constitutional changes, many leaders shaping the political landscape are the same figures who held power, decades ago before the promulgation of the 2010 Constitution.  

He says these individuals still do things the old way and are yet to embrace transparency and citizen involvement in leadership. Drawing from his interactions with government officials and political figures, he notes that many perceive public participation merely as an occasional event, rather than embracing a culture where every public institution operates transparently and maintains constant interaction with people.

“We found a lot of resistance from government officials when it comes to public participation even speakers of counties. As Einstein said, you cannot use the same people who created the problem to give you a solution,” said Mkangi. 

The lawyer says the country’s leadership should begin seeing it as the root of open and transparent governance. “It’s a conversation between those who have been given responsibility to serve mwananchi always working hand in hand with the wananchi to realise a common goal,” said Mkangi.

Mkangi explains that the legislature is currently the missing link that has failed the people, especially because one of its main mandates is to represent the people.

A 2023 report by Mzalendo Trust has spotlighted a glaring misalignment between the priorities of the Parliament and the expectations of the citizens it represents.

The report underscores instances where parliamentary decisions diverged from public sentiment. For instance, despite widespread public outcry over the high cost of living, National Assembly members did not heed the calls to reject certain punitive clauses in the Finance Bill, 2023.

The voting process was marred by political manoeuvring and partisan stances that hindered unbiased debate. Similarly, the Senate rejected the Division of Revenue Bill 2023, which had proposed a supplementary allocation of Sh22 billion to counties.

Mkangi argues that the remaining pillar of the people’s sovereignty lies in the judiciary owing to its constitutional design of political impartiality and independence from the presidency and executive.

“The difference is that with the Judiciary, we were able to dislocate to a better extent than other institutions of the judiciary from politics. That’s why you are seeing the politicians day and night spending resources wanting to poke their noses in this institution,” said Mkangi.