Courts as the arbiter of Kenya’s new system

In Kenya’s short constitutional history since the passage of the 2010 Constitution, two recent High Court decisions have been a significant moment in ensuring that the Constitution is and remains a living document in the lives of Kenya citizens. 

On the one hand, the High Court has acted to preserve the liberties enshrined in the Constitution by scrapping eight controversial provisions of the new anti-terror law.

On the other hand, the court has also equally strengthened judicial review by its action in declaring unconstitutional all or at least parts of the Constituency Development Fund Act. 

With this action, it has established its critically important but perhaps not fully anticipated role as the arbiter of Kenya’s newly established system. 

Precedents from other federal democracies suggest that balancing the roles of the national and county governments will be a major responsibility of the judiciary, at least equal in magnitude to that of upholding observance of human rights protected by the Constitution.

I do not presume to express any opinion on the merits of the High Court’s decision on the CDF Act. Rather, my point is the importance, indeed necessity, of the role the High Court has staked out for making itself a referee of complex and inevitable controversies that will arise in enabling the national government and the counties to arrive at balances in their respective powers that will sustain Kenya’s federal system. 

LAYS OUT ROLE

I would note, for comparative purposes, that in the United States, if all the decisions of the Supreme Court over the last 226 years were compiled, more would likely be found to involve working out the balances in the US federal system than any other single issue.

The authors of the Kenya Constitution were more farsighted in this respect than authors of the US Constitution whose vision has been so celebrated in my country, for the United States Constitution contemplates the federal system arbiter role for the Supreme Court only by implication rather than specifically, leaving it to great early justices to assert this necessary role.

By contrast, the Kenya Constitution lays out this role very specifically in Chapter 10, Article 165, section 3(d)(iii) which states that the judiciary has jurisdiction in “any matter related to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between levels of government”.

With these powers, the courts as well as Parliament and the executive branch are likely to play a key role in defining what Kenya's federal system will mean in practice.

Again, without presuming to pass on the merits of the High Court decision, its opinion in the CFD Act case has in fact defined the constitutionally mandated federal system in ways that the authors of the Kenya Constitution left to posterity rather attempting to define it comprehensively in all its inescapable complexity for all time. 

Several examples stand out in the High Court’s decision. First, the court established that constitutionally mandated revenue sharing involves the counties and the national government, not individual parliamentary constituencies.

The CDF Act served an important purpose in facilitating some strengthening of local government development initiatives during the pre-2010 constitutional era where power was monopolised by the national government.

With the new Constitution, that surrogate, improvised local development initiative is no longer needed now that the counties have been established.

The High Court also clarified the scope of what it means to move from a highly unitary state to a democratically governed federal political order by recognising that a transition of this magnitude cannot take place all at once. This it did by suspending implementation of its decision for 12 months to allow completion of CDF projects.

Second, the High Court decision defines Kenya’s now federal system in a way that the authors of the Constitution may have left only implicit.

The High Court explained that a constituency-based fund might still be put in place, but as a resource under the direction of the national government operating within the counties, particularly in the areas of education at all three levels and through health facilities.

The very important point this decision clarifies is that the national and county governments are necessarily parallel governments.

The national and county governments have distinct as well as shared powers, but particularly with respect to shared powers, they must necessarily work in tandem with each other within the counties.

So, as important as it is to clarify the allocation of powers between the two levels of government are likely to be the tasks of establishing how they can effectively coordinate and integrate their respective activities within each of the counties.