There are major jitters in the market as investors continue to digest Tuesday’s High Court ruling nullifying the government’s sale of a 15 percent stake in Safaricom to Vodacom.
The broader policy concern is this: a foreign investor planning to establish a project in Kenya must now price judicial activism and litigation uncertainty into the investment risk.
The Safaricom divestiture is only the latest illustration of a paradox we have lived with since the promulgation of the 2010 Constitution: the growing assertiveness and high profile of the courts in public finance and economic policymaking. This is a significant paradox because courts have, in effect, become co-authors of fiscal policy. We appear to be gradually outsourcing economic policymaking to the judiciary.
Judges are increasingly being asked to arbitrate complex infrastructure-financing models, major public transactions and specialised financial arrangements. Administrative and constitutional courts now routinely stop or disrupt the implementation of economic policies and programmes. They issue stay orders, quash statutory instruments and strike down revenue-raising provisions.
There is an important downside. When tax laws or other revenue-raising mechanisms are invalidated in the middle of a financial year, the Treasury faces unexpected revenue shortfalls. It must then cut spending through supplementary budgets or increase borrowing.
Can emergency stabilisation measures, foreign-exchange interventions or urgent adjustments to fiscal targets survive months of mandatory notices, public hearings and litigation over whether consultation requirements were met? To be clear, none of this is an argument against judicial oversight. The case for limits on executive power and scrutiny of government decisions cannot be gainsaid.
My point is that, 16 years after the Constitution came into force, we owe ourselves an honest audit of how the Haki Yetu constitutional order has reshaped economic policymaking in Kenya-and at what cost.
Kenya urgently needs a consensus on the minimum requirements that must be met before the constitutional threshold for meaningful public participation can be regarded as satisfied.
The current regime is vague. It does not adequately define the scope, content or procedure of public participation. How many meetings are sufficient? Should participation be measured by attendance, the diversity of views, opinion polls or written submissions from experts and think tanks? Must every citizen be reached?
The result is that a process designed as an important democratic safeguard has become a box-ticking compliance exercise.Stakeholders and ministries increasingly treat public forums not as spaces for genuine deliberation, but as legal shields designed to withstand judicial scrutiny.
If a court demands a paper trail of town-hall meetings, the State dutifully produces thousands of pages of minutes-regardless of whether a single citizen’s contribution altered the policy or fiscal proposal.
National Treasury Cabinet Secretary John Mbadi captured the paradox when he questioned the court’s finding on public participation in the Safaricom transaction. He pointed out that the decision had been subjected to scrutiny and approval by the Cabinet, a parliamentary committee and the National Assembly, alongside weeks of public hearings.
Yet a government policy can now be subjected to the most rigorous, publicised and multi-stakeholder process imaginable and still be declared insufficiently participatory by a court.
The Senate is currently inviting written submissions on the Public Participation Bill, 2025, which seeks to establish common rules for public participation across public institutions and government decision-making processes. The deadline for submissions is September 28. Let us hope that this legislation gives Kenya a clearer framework and helps establish a workable consensus on what meaningful participation requires.
A closing anecdote from recent experience: Two weeks ago, I was invited to participate in a panel of non-State actors at the Katiba 16 symposium, only to arrive and find that the non-state actors’ session had been omitted from the programme.
I had prepared a short presentation titled: The contradictions and paradoxes at the heart of our Haki Yetu Constitution: The impact on economic policy-making-and why judges should urgently take refresher courses in economics, particularly in investment banking, structured finance and the nuances of complex infrastructure-financing models.That may sound provocative. But the question is serious.
Judicial oversight is indispensable. So is economic literacy within the institutions that review public finance and investment decisions. A constitutional democracy cannot function properly if courts protect participation while failing to understand the broader financial and economic implications underlying the decisions they are asked to review.
The challenge before Kenya is to find a balance between accountability and governability: between ensuring that public decisions are lawful and ensuring that the country remains capable of making timely, predictable and economically coherent policy.