- The role of the Judiciary in upholding the Constitution cannot be understated.
- It acts as a crucial check on the powers of the Executive and legislative branches, ensuring that policies and laws are in harmony with the Constitution.
Image: X
On Tuesday, a High Court declared the housing levy introduced by President William Ruto unconstitutional. Sitting in Nairobi, Judges Lawrence Mugambi, Christine Meoli and David Majanja ruled introduction of the levy was discriminatory since it imposed taxes on salaried Kenyans alone and excluded those working in the informal sector.
As expected, this ruling caused excitement across a major section of salaried employees who have been opposed to Finance Bill 2023 and its and final implementation, because it reduces their pay slips.
Although the court gave stay orders until January next year on its ruling, the decision of the judges is still worth debating as it shines light on major pronouncements, policies and laws the UDA administration is putting in place.
Coming hot on the heels of similar court rulings against the implementation of the Social Insurance Act 2023 that was to implement the Social Health Insurance Fund, and the plans to privatise the Mombasa and Lamu ports, it is imperative for President Ruto and his Cabinet to reevaluate their policy and legislation strategy.
In recent times, Kenya has witnessed a series of legal setbacks, with key policies and legislative initiatives facing constitutional challenges. The High Court’s declaration of the housing levy as unconstitutional, coupled with a similar ruling against the Social Insurance Act 2023 and the resistance to the privatisation of vital ports, underscores a critical need for the President and his Cabinet to reevaluate their approach to policy formulation and legislation.
These legal setbacks serve as a stark reminder that the success of any policy hinges on its constitutionality and alignment with the rule of law.The Housing Levy ruling is particularly noteworthy, as it highlights the importance of ensuring policies are firmly grounded in the Constitution. The court’s decision raises questions about the thoroughness of the legal assessments conducted before even the proposal and implementation of such policies. President Ruto’s administration must take a step back and reevaluate its policy development process, emphasising a comprehensive legal review to preemptively address potential constitutional pitfalls.
The Social Insurance Act 2023, intended to implement the Social Health Insurance Fund, faced a similar outcome in court. This ruling reflects not only on the specific legislation but also on the broader strategy of the government, in navigating the legal landscape. It is imperative for the President and his Cabinet to recognise that policies affecting the social fabric of the nation demand meticulous legal scrutiny to ensure they withstand constitutional scrutiny and safeguard the rights of citizens.
Furthermore, the resistance to the privatisation of the Mombasa and Lamu ports highlights the need for a nuanced approach to economic policies. While privatisation may offer economic advantages, it must be executed within the confines of the law and with due consideration for the public interest.
The court’s intervention underscores the importance of transparent and consultative processes in decision-making, especially when it comes to strategic national assets. Ruto and his Cabinet must acknowledge the significance of legal checks and balances in a vibrant democracy. Rather than viewing legal challenges as obstacles, they should be seen as opportunities for refinement and improvement.
A proactive engagement with legal experts during the policy formulation stage can help identify potential legal pitfalls and ensure that policies are not only well- intentioned but also legally sound.
The role of the Judiciary in upholding the Constitution cannot be understated. It acts as a crucial check on the powers of the Executive and legislative branches, ensuring that policies and laws are in harmony with the Constitution. President Ruto’s administration must adopt this system of checks and balances, recognising that it ultimately serves the best interests of the nation by promoting accountability and preserving the constitutional order.
In reevaluating their approach, President Ruto and his Cabinet should prioritise transparency and inclusivity. Engaging with stakeholders, including legal experts, civil society and the public can provide valuable insights and perspectives that may not have been considered during the initial policy formulation. This collaborative approach not only strengthens the democratic process but also enhances the legitimacy of policies.
Moreover, there is a need for a comprehensive review of existing legislation to identify potential conflicts and gaps. This proactive measure can help prevent legal challenges in the future, ensuring that government’s agenda is advanced in a manner that is both effective and legally unassailable.
Regular legal audits of proposed and existing legislation should become standard practice in the policy development process.
President Ruto’s administration should also invest in capacity-building within Government institutions responsible for policy formulation. This includes bolstering legal expertise to conduct thorough assessments and providing ongoing training to ensure that the evolving legal landscape is navigated effectively. A well-informed and legally astute bureaucracy is essential for crafting policies that stand the test of constitutional scrutiny.
By reevaluating the approach to policy and legislation, adopting transparency and inclusivity, and prioritising legal scrutiny at every stage, the Ruto administration can pave the way for a more resilient and effective governance framework. Doing so, will not only strengthen the foundation of its policies but also uphold the principles of democracy and the rule of law in the country.
The writer is a political commentator