President William Ruto.
President William Ruto's administration has suffered several setbacks in court as judges have put his plans for the Kenya Kwanza Administration on hold or quashed some of his appointments.
From blocking the appointment of Chief Administrative Secretaries (CAS), to quashing his new Universal Health Coverage (UHC) programme, to removing people appointed to various offices, the cases have been numerous.
The list of those filing the cases has been diverse, including civil society organisations such as the Katiba Institute and the Kenya Human Rights Commission (KHRC), the Law Society of Kenya (LSK) and individuals such as Nakuru-based surgeon Dr Magare Gikenyi, Busia Senator Okiya Omtatah and lawyer Saitabao ole Kanchory.
The latest case was brought by the Katiba Institute challenging a ban imposed by acting Inspector General of Police Douglas Kanja on protests in Nairobi city centre and its environs.
In his ruling, High Court judge Bahati Mwamuye said no police officer should act on Kanja's July 17 directive on until the petition is heard.
Kanja had banned all demonstrations in Nairobi city centre and its environs until further notice, ostensibly to ensure public safety.
The police boss said criminals had infiltrated the protesting groups, resulting in a disturbing trend of disorderly and destructive behaviour.
“Pending the inter-partes hearing of the Application dated 18/07/2024, a conservatory order be and is hereby issued restraining the Inspector-General of Police and all other persons serving within the National Police Service, or acting in support of the National Police Service in the discharge of its law enforcement functions, from applying or enforcing the Inspector-General of Police’s impugned decision dated 17/07/2024,” said the judge.
Violence against protesters
In Malindi, High Court Judge Mugure Thande had issued interim orders restraining the security services from using water cannons and tear gas against protesters.
Although the police have largely ignored the court's order, the judge had also banned the use of live ammunition, rubber bullets or other clubs or any form of violence against protesters.
In Nairobi, Judge Francis Gikonyo quashed the appointment of Anthony Mwaura as chairman of the Kenya Revenue Authority (KRA), saying he was given the job while he had an active corruption case in court.
The judge, who has since stayed the decision for 45 days to allow Mwaura to appeal the ruling, said Mwaura's appointment by President Ruto on November 18, 2022 was illegal.
“The appointment herein suffers procedural infirmities and illegality as relevant material and vital aspects having a nexus to the constitutional and legislative purpose of integrity were not taken into account in the actual process of the appointment,” the judge said.
Mwaura had argued that the mere fact that he was facing criminal charges did not render him incapable of enjoying his rights and fundamental freedoms under the Constitution unless restricted or limited by law.
He also argued that there was no express or implied prohibition in the KRA Act, under which he was appointed, against the appointment of a person facing corruption and economic crimes charges as chairman of the KRA Board.
The judge dismissed the argument, saying it failed to recognise or give weight to the integrity provisions in the Constitution, implementing legislation such as the Leadership and Integrity Act, the Public Officer Ethics Act, codes of conduct and ethics, asset declaration requirements, among others, in appointment to public office.
“There is a misconception that a person is said to lack integrity only when he is a convicted criminal - a thought or impression that has distorted the true character, purport and real effect of leadership and integrity as well as national values and principles of governance provisions in the Constitution and the law,” the judge said.
Taskforce
When President Ruto appointed the Presidential Task Force on Human Resources for Health, several pressure groups rushed to court arguing that the body was unconstitutional.
The groups, which include Tribeless Youth, Siasa Place, the Kenya Human Rights Commission (KHRC) and the Africa Centre for Open Governance (Africog), argue that the task force duplicates and usurps the mandate of the Kenya Health Human Resource Advisory Council, a statutory body established under the Health Act.
Instead, the lobby groups want the court to order the government to make the Kenya Health Human Resource Advisory Council operational.
The case will be heard next week.
President William Ruto set up the task force on July 5 to formulate comprehensive strategies and policies to improve the health workforce, among other things.
Ruto appointed Prof Khama Rogo as chairperson and lawyer Judith Guserwa as deputy chairperson of the task force.
An earlier task force appointed by Ruto to audit the public debt was temporarily blocked pending the determination of a petition filed by Dr Gikenyi and Eliud Matindi.
In a gazette notification on July 5, Ruto appointed the taskforce to conduct a comprehensive forensic audit of the country's public debt and submit its report within three months.
But Justice Lawrence Mugambi blocked the taskforce pending the hearing of the case.
LSK president Faith Odhiambo, who was named as a member of the task force, rejected the appointment, saying the team selected was usurping the role of the Auditor General.
In appointing the task force, Ruto said the audit will provide clarity on the nature of the country's debt, how public funds have been spent and that the team should come up with a proposal on how to manage Kenya's resources in a sustainable manner that does not burden future generations.
The two petitioners said the office of the Auditor General is an independent office and duplicating roles by appointing a task force to carry out the work is a waste of scarce public resources as the team will essentially be performing the functions of existing public offices.
The case will also be heard on July 23.
Appointments
And although the president has dropped plans to appoint CASs, a new case has been filed challenging the same.
Gikenyi had challenged several sections of the National Government Coordination Act, which was recently amended by Parliament to create the CAS offices and the Head of Public Service.
The medical doctor pointed out that the High Court, in an earlier petition challenging the creation of the CAS posts, had ruled that the office was equivalent in all respects to that of Principal Secretary.
“In the circumstances, this radical, irrational, illegal decision...ought to be temporarily suspended and then declared illegal null and void or quashed,” he said.
Affordable housing and other levies
Several petitions challenging the Affordable Housing Act are pending before the High Court.
Although a three-judge bench declined to suspend the collection of the levy, the court agreed that the issues raised in the petitions were weighty.
Six petitions were filed challenging various provisions of the Affordable Housing Act, 2023 and were consolidated before Chief Justice Martha Koome appointed Justices Olga Sewe, John Chigiti and Josephine Mong'are to hear the cases.
The petitioners argue that the housing levy was set at 1.5 per cent without a study to show how the fund will work, yet no money should be collected from the public without an expenditure line and a fully functioning fund being established as required by the law.
President Ruto signed the Affordable Housing Bill, 2023 into law in March 2024, paving the way for the resumption of the levy, which had previously been stopped by the court.
Employees pay 1.5 per cent of their gross monthly salary, which is matched by the employer.
Under the new law, Kenyans in the informal sector and other non-salaried workers will also pay 1.5 per cent of their gross monthly earnings to fund President Ruto's pet housing project.
Gikenyi, one of the petitioners, wants the court to declare that there was insufficient public participation before the law was passed.
He also argues that sections 3 and 4 of the Act are unconstitutional as they threaten socio-economic rights and are inconsistent with the Constitution.
Last year, the High Court suspended a notice published in the Kenya Gazette on November 6, which reviewed the fees for critical documents such as identity cards, passports and government staff ID cards, pending the determination of a petition filed by Dr Gikenyi.
Gikenyi argued that the increase was made in a capricious and arbitrary manner, so that it's up to 20 times the original amount, and also introduced new fees.
Under the changes, those who lose their national identity cards will pay Sh2,000 to replace them, a fee 20 times higher than the Sh100 Kenyans have been paying. Civil servants who want to replace their service cards will pay Sh2,000 from Sh100.
Healthcare plan
Perhaps the biggest loss for President Ruto so far has been the Universal Health Coverage (UHC) plan, which suffered a blow after a three-judge bench of the Supreme Court struck down the laws enacted to replace the National Hospital Insurance Fund (NHIF).
Justices Alfred Mabeya, Robert Limo and Fred Mugambi nullified the Social Health Insurance Act (SHIA) 2023, the Primary Health Care Act, 2023 and the Digital Health Act, 2023, which replaced the National Hospital Insurance Fund (NHIF).
However, the judges suspended their ruling for 45 days to allow the government to appeal the decision. The judges had suspended the implementation of the laws for 120 days to allow the government to correct the illegalities identified in the ruling.
Former Health CS Susan Nakhumicha had defended the laws, saying they were meant to promote the implementation of UHC and ensure that every person had access to the highest standard of health care.
The Act, she said, establishes the Social Health Authority, which is mandated to manage the three funds established under the Act -- the Primary Healthcare Fund, the Social Health Insurance Fund and the Emergency, Chronic and Critical Illness Fund.
She added that members will contribute 2.75 per cent of their income to the SHIF and the state will pay for citizens who are unable to pay.
President Ruto had announced that the introduction would take effect on October 1.
Shakahola
In another loss for Ruto, a commission of inquiry he set up to investigate the deaths in Shakahola, Kilifi County, in May last year was quashed.
Justice Mugambi agreed with Azimio La Umoja-One Kenya Coalition that President Ruto did not have the power to give a commission of inquiry specific constitutional mandates that belong to independent constitutional commissions and independent offices.
The judge said it was not constitutionally viable to establish a commission of inquiry with a parallel mandate to investigate the deaths, which fall under the mandate of the police.
“The President should respect the specific mandate given to the Independent Offices and Commissions under the Constitution. He cannot create extra-constitutional bodies to undertake specific functions belonging to agencies created by the Constitution. He cannot use general powers to override specific powers,” the judge said.
Ruto set up the commission on May 4, 2023 and appointed Justice Jessie Lesiit as chairperson to investigate the deaths, torture, inhuman and degrading treatment of victims linked to the Good News International Church in Kilifi. The church is linked to Pastor Paul Mackenzie.
The judge said the move to "pluck various constitutional mandates and unilaterally concentrate" them in one commission of inquiry was unconstitutional, null and void.
