One of the reasons Kenyans fought so hard for the current Constitution was to ensure fairness and equity in development and access to resources. Under the previous constitutional order, access to services, development and other economic activities depended on political or ethnic affiliation. This was embodied in the phrase "Siasa mbaya maisha mbaya, (bad politics equals bad life)”. In effect, any person or community that engaged in politics perceived to be dissident by the government of the day would suffer exclusion from access to services and development.
The current Constitution seeks to transform this situation. Its national values and principles include, equity, human dignity, social justice, inclusiveness, equality, human rights, non-discrimination, and protecting the marginalised. These are required to inform and guide interpretation, application of the constitution and public policy decisions. The principles are born of the aspirations and struggles that informed the constitution-making process.
More specifically and relevantly, the Constitution contains extensive principles for the management of public resources and finances. Relevant principles include the requirement for a fair and equitable tax system, equitable sharing of resources between the two levels of government, equitable public expenditure in development “including making special provision for marginalised groups and areas” and equity between generations (present and future). These principles should underpin the processes of sharing and utilising resources. In this regard, the amendment by Parliament that provides for equal or homogenous distribution of CDF to the 290 constituencies certainly does not meet this constitutional threshold.
What is the role of courts in ensuring equity?
First, the Constitution declares that it is the supreme law that binds all persons and state organs at both level of government. Accordingly, decisions by any person or body tasked with public decision-making must have equity considerations where relevant and applicable.
Secondly, courts are tasked with the primary responsibility of safeguarding and giving effect to the constitution. The High Court is specifically tasked with hearing any question on interpretation of the Constitution, including whether any law, exercise of authority under the Constitution, or exercise of power by state organs is done in accordance with the constitution.
The Supreme Court is also given special jurisdiction to issue an advisory opinion to a state organ or any of the two levels of government on any matter concerning the county government. These provisions place the courts at the centre of ensuring there is effective realisation of the provisions of equity.
How would courts enforce equity provisions? First, courts only address issues through adjudication of disputes brought before them. Therefore, their intervention is limited to issues that form substantial disputes that require judicial adjudication. Accordingly, there may be many challenges regarding realisation of equity that may not reach the courts. In Kenya, very few cases have dealt directly with the issue of equity: one of the first cases where the courts sought to recognise and enforce the principle of equity was the Supreme Court advisory on the Senate’s role in debating and approving the Division of Revenue Bill.
In 2013, the National Assembly debated and passed the DORB without involving the Senate, as is required in the constitution. The DORB divides resources between the national and county levels and this must be done equitably. While the Constitution does not expressly provide for the Senate, which represents counties, to debate and pass the DORB, the Supreme Court held that the Senate’s role in the DORB is critical for ensuring equitable division of resources between the national government and the counties. Kenyan courts have in other cases also ordered against arbitrary and illegal displacement of people in informal urban settlements.
There is no doubt that courts will continue to adjudicate disputes on issues that touch on equity. There is an early indication that courts will not hesitate to enforce the principles of equity where necessary. However, overall effectiveness requires complementarity between the courts and the other arms and institutions of government in order to ensure that we live up to the constitutional principles of equity and fairness.
Dr. Conrad M. Bosire, Special Projects Advisor (Devolution), Katiba Institute