By Charles Onyango-Obbo

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Kenya’s Court of Appeal on Wednesday declared the government’s 2023 Finance Act unconstitutional, adding a new headache for President William Ruto who in late June withdrew this year’s finance bill after deadly protests.

The 2023 Finance law enabled the Ruto government to double the value-added tax on fuel, introduce a housing tax, and raise the top personal income tax rate, among other measures. These are now likely in jeopardy unless the government mounts a successful appeal in the Supreme Court.

Such a ruling is unprecedented in Africa, but Kenyan courts have a record of doing the unthinkable. In September 2017, in a historic ruling and a first in Africa, Kenya’s Supreme Court nullified the re-election of President Uhuru Kenyatta and ordered a fresh vote to be held within 60 days.

In May 2021, the Kenya Supreme Court brutally slapped down the constitution amendment Bill, popularly referred to as the Building Bridges Initiative (BBI), as irregular, illegal and unconstitutional. The Bill would have allowed the government to make fundamental changes to the country’s constitution.

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In June, following youth-led protests against high taxes and corruption, President Ruto, in a rare move withdrew the Finance Act and followed days later by sacking all but two of his Cabinet.

There is virtually no law, appointment, or government decision that has been passed in Kenya without several court challenges or protests against them.

More than half the time, the court will rule against the government. It does not stop there. Kenyans will also go to court to fight what they consider predatory increases by mobile phone companies, or levies by private banks.

In 2020, five Kenyans sued the Uganda government and the EAC Secretary General for failing to manage the outflows of water from Lake Victoria which resulted in flooding.

The floods displaced people in countries on the lake basin and damaged their property, especially on the Kenyan side. The East African Court of Justice in Arusha, Tanzania, wasn’t interested. It struck out the case.

Though these losses often grate the presidents of the day, they nevertheless respect the judgements the majority of times. Something is changing in Kenya.

There are the makings of a rules-based regime, a new structure of politics where citizens are able to restrain the state on occasion, and the emergence of a new free society.

There are still years to go before it all comes to full fruition, but the train has left the station. Relative to the rest of Eastern Africa, and indeed most of the continent, it could well be over 20 years ahead.

Today, Kenya is the closest we have in Africa to a juristocracy, an enlightened dictatorship of judges. On a day to day, there isn’t much awareness of this shift, and among the intellectuals and elite who are alive to it, no one is sure of how the country got to this point. There is general agreement, though, that it has roots in the 1980s and 1990s democracy struggle, which ended the one-party state.

Unlike the other East African countries, where those who wanted to end the dictatorships or injustices of the day took to the bush to fight guerrilla wars, as happened in Ethiopia, Uganda, Rwanda, South Sudan, Democratic Republic of Congo, Somalia, and Burundi, in Kenya it was a battle of ideas and civic organising.

The ruling Chama Cha Mapinduzi (CCM) in Tanzania was alone in reading the opportunity in the moment correctly and became self-reformist. This conversion from Saul to Paul has enabled them to rule continuously for six decades now.

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In Kenya, authors like the great Ngugi wa Thiong’o took to literature and theatre, including a subversive play, in his Gikuyu language. He was jailed and had to flee into exile for his audacity. Classrooms in high school and the University of Nairobi were ideological and philosophical battlegrounds.

A wonderful anti-regime pamphleteering tradition emerged. The democracy war became theological, as priests and bishops took up the fight.

Colonial-era land grabs and expulsions, one of the triggers for the Mau Mau rebellion, also meant that Kenya had the largest number of dispossessed citizens in East Africa. Families became scattered, and thousands set up in the ring of slums that still surround Nairobi.

They were dire conditions, but they had revolutionary potential because they were disconnected from deep loyalties to the village and would become nurseries for republican and cosmopolitan culture. The irony of this is that Kenya then came to be seen as the country most driven by “tribal politics”.

The rootless people, who are more fertile minds for modern ideas, were defeated, but they didn’t die out. They produced heirs who have finally come into their own.

Kenya was also swamped by highly educated refugees and exiles from all over the region, with a record number coming from Uganda during the rule of military dictator Idi Amin. They were a buffer between the two forces and enabled the country to run. The government therefore didn’t have to build a pro-regime bureaucracy to keep the train on the tracks. However, when most of these people left at the close of the 1990s, there was a vacuum and no state muscle to fill it.

Going into the elections of 2002, the first to be won by an opposition party in Old East African Community, the balance of forces was tilted slightly in the favour of the forces of progress. Though they have lost many battles since, their worn-out still flag flies on the top of court buildings.

Charles Onyango-Obbo is a journalist, writer, and curator of the “Wall of Great Africans”. Twitter@cobbo3