What MPs should do to avoid people's wrath over Finance Bill

“We, the people of Kenya—EXERCISING our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution…”
— Preamble, Constitution of Kenya (2010)

This powerful line, nestled at the heart of our Constitution, is not just an ornamental phrase echoing lofty ideals. It is a solemn declaration, a creed anchoring the people's sovereignty as the fountainhead from which all State power flows. It is a reminder that the pulse of governance must throb in rhythm with the will of the people, not above them.

Yet, this noble promise faces a quiet erosion. As Parliament prepares to deliberate the Finance Bill 2025, the question is no longer whether the people will speak but whether their voice will matter.

Sovereignty is neither ornamental nor ceremonial. It is active, assertive, and ever present. When we elect Members of Parliament (MPs), governors, or any other office bearers, we do not hand over our power as a gift to be spent at their discretion. We loan it conditionally and temporarily.

The Constitution is the lease agreement, outlining how far this delegated power may stretch. Beyond its edges lies abuse. And when this delegated power is wielded without heed to its source, the people do not fade into silence. 

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Article 10 of the Constitution elevates public participation into a national principle, and Article 118 demands it as a legislative obligation. This is not mere legal poetry. It is the essence of governance by the people.

Since the promulgation of the Constitution in 2010, this constitutional dagger of participation has sliced through a forest of opaque and oppressive legislation. Whether it was the notorious Security Laws Amendment Act of 2016, the problematic Social Health Insurance laws, or the infamous Finance Bill 2024, public dissent has repeatedly pulled the emergency brake on runaway governance.

Indeed, the protests of 2024 will be etched into the nation’s memory not as anarchy but as an anthem, a people’s chorus against exclusion. Though the Finance Bill wasn’t slain in court, it collapsed under the weight of citizen resistance.

The President was compelled to descend and listen. This uproar was not spontaneous rage. It was the people, custodians of the Constitution, invoking their power. But it should not have had to come to that.

Had public participation been treated as a sacred constitutional command rather than an empty ritual, the storm might have been avoided. If this government wishes to be spared the pain of further constitutional bruises, those ‘null and void’ scars of procedural shortcuts, then it must return to the roots of Article 10 and drink deeply from its democratic waters. For participation, in its truest sense, is not symbolic. It is substantive. And it must be felt.

Our superior courts have repeatedly provided direction on what this substance should look like. The High Court, Court of Appeal, and Supreme Court have offered consistent judicial decisions that public participation must be meaningful.

A particularly instructive example lies in the three-judge bench decision on the Social Health Insurance laws. In their detailed judgment, the court found shortfalls that must not be repeated with the upcoming Finance Bill.

First, the court held that the public must be sensitised in advance. It is not enough to just introduce a Bill. The people must first be empowered with knowledge so that their opinions are informed, not reactive. This duty lies squarely with government agencies. Gone are the days of colonial secrecy, when policies emerged from smoke-filled rooms. Transparency is now law.

Secondly, the court noted with concern how Parliament engaged mostly civil society organisations, NGOs, and other organised groups, sidelining the general public. This elitism, however unintended, corrupts the spirit of participation. While non-state actors are important voices, they are not the people. They are not mwananchi. The Constitution demands more than token consultation; it demands authentic engagement across all social strata.

Thirdly, the court was appalled by the unrealistic timelines offered for public input. Three dense, technical Bills were subjected to a seven-day window, with part of that period falling over a weekend. Worse still, Parliament failed to provide simplified summaries for public understanding, instead expecting citizens to navigate through labyrinthine legal jargon. How, then, could feedback be genuine?

Even as the Judiciary stands largely united on the sanctity of public participation, a recent decision by the Supreme Court regarding the 2023 Finance Act introduces a troubling finding. While broadly interpreting Article 10, the court paradoxically held that it does not impose enforceable duties on Parliament. This opens a dangerous backdoor.

Without enforceable standards, participation may be reduced to performative gestures, a decoy of democracy. And yet, the voice of the people will not be silenced. The President, to his credit, acknowledged that he withdrew the Finance Bill 2024 due to “overwhelming feedback” from the public. That feedback should have been gathered before the firestorm.

Parliament had its chance. It chose the shortcut. The people took the long road and prevailed. This nation must learn, not just remember that participation is not a checkbox. It is the bedrock of legitimacy.

Recent history, written not with ink but with sweat and resolve warns us. The Finance Bill 2025 looms. The question is not whether the people will rise again. It is whether Parliament will listen before they must at last.