How William Ruto is facing the same storm that haunted Uhuru's reign

President William Ruto is grappling with the same challenges that faced his predecessor, President Uhuru Kenyatta, over laws passed by Parliament.

Lack of public participation has been cited in several court cases filed against the government.

The latest dispute centres on the President’s assent to the new Cybercrimes Law, which has already attracted three cases before the High Court.

The Law Society of Kenya and activist Francis Owino have separately sued the State, arguing that Members of Parliament passed the law without adequate public involvement.

They further claim that the law is draconian and designed to stifle free speech. However, its sponsor, Dagoretti South MP John Kiarie, maintains that the 2025 amendments were intended to close loopholes in the regulation of computer and mobile phone use.

President Ruto has defended the law, saying it aims to protect Kenyans from extremist ideologies, terrorism and online pornography.

The same judicial scrutiny and backlash that once made Uhuru’s presidency uneasy now appear to be closing in on Ruto, his former deputy.

Judges snatched away former President Kenyatta’s prized Building Bridges Initiative (BBI), crafted with former Prime Minister Raila Odinga, even as they suspended President Ruto’s maiden law, the Finance Act 2023, which was later upheld as constitutional by the Supreme Court.

The Finance Act paved the way for the Kenya Kwanza administration to raise Sh3.6 trillion in revenue from Kenyans.

The courts also nullified the appointment of Ruto’s allies as Chief Administrative Secretaries (CASs), again citing lack of public participation as the central issue.

Public participation is enshrined in Article 10 of the Constitution, which obligates the government to seek citizens’ views as part of good governance.

Provision of information

Court records show that nearly one in every three cases filed before the Constitutional and Human Rights Division of the High Court challenges government actions on the grounds of inadequate public participation.

Between 2012 and 2018, Busia Senator Okiya Omtatah filed at least 133 cases against the Uhuru administration, 97 of them centred on the issue of public participation.

Amid the flood of such petitions, the Employment and Labour Relations Court (ELRC) once recommended that the Attorney General consider introducing a Bill in Parliament to clarify and standardise how public participation should be conducted.

Justice Byram Ongaya, ruling in a case pitting the Kenya National Union of Teachers (Knut) against some of its members over amendments to its constitution, observed that the time had come for a specific law on public participation.

Justice Ongaya observed that public participation is a vital part of Kenya’s governance fabric, describing it as the only principle that allows citizens to be directly involved in the governing process.

“It would appear that the time has come for Parliament to consider and pass codifying legislation to implement and actualize the constitutional value and principle of people’s participation,” said Justice Ongaya.

He added that such a law could also incorporate the values and principles of public service outlined in Article 232 (1)(d) and (f) of the Constitution namely, the involvement of citizens in policymaking, transparency and the timely and accurate provision of information to the public.

Five members accused Knut of illegally amending its constitution to extend the terms of its national and branch officials.

Major legal test

Knut, through its secretary-general Collins Oyuu, opposed the petition. Oyuu argued that the claims were baseless as the case lacked a verifying affidavit.

He told the court that Knut had begun reviewing its 2015 constitution to align it with developments in the labour sector, both locally and internationally.

According to Oyuu, the draft amendments were approved by the National Executive Council on December 2, 2021, and later endorsed by the Union’s Advisory Council 16 days later.

It was not long before the now Senator Omtatah, challenged the appointment of CASs before Justice Anthony Mrima.

Omtatah accused the then Attorney General of failing in his duty to advise the government that creating the new posts would overburden taxpayers. He further argued that the appointments were made without public participation.

The Attorney General opposed the case, maintaining that granting the activists’ prayers would amount to judicial interference with the Executive’s mandate and that it was within the President’s discretion to appoint individuals to advance his development agenda.

In 2021, Justice Mrima declared the positions unconstitutional, citing among other reasons, the lack of public participation.

Despite the ruling, the Chief Administrative Secretaries (CASs) continued to serve under temporary orders issued by the Court of Appeal. But the battle over the controversial positions was far from over. 

Enter President Ruto. Like his predecessor, he also sought to reward his political allies with similar appointments. To safeguard the process, the Public Service Commission (PSC) conducted public participation for 23 positions, but President Ruto went ahead to add 27 more.

Once again, Omtatah was among those who moved to court to challenge the appointments.

In a majority decision, Justices Kanyi Kimondo and Aleem Visram ruled that Justice Mrima’s earlier finding which declared the CAS position unconstitutional still applied to the new appointments. They also found that the President had not conducted proper public participation for the 27 additional posts. “The entire complement of 50 Chief Administrative Secretaries is unconstitutional,” the judges held.

Principles of governance

However, their colleague, Justice Hedwig Ong’udi, dissented in part, finding that while the first 23 appointments were lawful, the additional 27 were indeed unconstitutional.

Lawyer Charles Kanjama believes President Ruto’s approach differs slightly from that of his predecessor. According to him, Ruto has made some effort to involve the public, but the way the process is conducted remains problematic.

Kanjama points to the ongoing dispute over the Finance Act 2023, saying his main concern is whether Parliament genuinely considered the public’s objections to certain clauses in the law.

“The problem with the government is not the lack of public participation, but how it is done. Uhuru largely ignored it, while Ruto has at least tried, but in the case of the Finance Act, 2023, they brushed aside public memoranda opposing it,” says Kanjama.

The CAS appointments marked the first major legal test for Ruto’s administration, one that ended with a red card from the courts. The case is now before the Court of Appeal. Meanwhile, the courts have also halted President Ruto’s appointment of the Shakahola Massacre probe team.

Lawyer Wangui Njoroge notes that the government cannot sidestep public participation, especially where taxpayers’ money is involved. She adds that courts have consistently outlined what both national and county governments are expected to do.

“When you look at Article 10, which outlines the national values and principles of governance, public participation stands out as key. Time and again, courts have said that whenever the government undertakes administrative action, citizens must be involved. You also have to consider Article 47, which guarantees fair administrative action,” says Wangui.

In a continued streak of judicial interventions, the courts have also suspended the implementation of the Finance Act.

Lawyer Dudley Ochiel says the essence of public participation in governance is to ensure that Kenyans get what they want from their leaders, not the other way around.

“It works on the assumption that citizens can decide for themselves what they want and that they must have a real opportunity to influence decisions. For instance, if the majority say they do not want the Finance Act 2023, that should count. Public participation must have a genuine impact on government decisions,” says Ochiel.

Several laws and directives introduced by the Ruto administration have faced legal challenges over inadequate public participation. These include amendments to the Water Regulations Act, 2021 and the lifting of the logging ban.

During the Jubilee administration, Omtatah had also challenged the Finance Act on similar grounds. He went further to contest the Standard Gauge Railway (SGR) project and BBI.

While the Supreme Court dismissed his case against the SGR, Omtatah, together with other petitioners,  succeeded in halting the government’s bid to amend the Constitution through BBI.
At the same time, Huduma Namba, one of the Jubilee administration’s flagship projects, also faced a court challenge over alleged failure to involve the public.

Governance expert Charles Mkangi says the government’s biggest headache lies in the fact that public participation is a cross-cutting constitutional principle that cannot be ignored in the law-making process.

“Public participation is one of the national values and principles of governance under Article 10. When courts find that it has not been properly applied, they fault the government’s actions,” says Mkangi. “The principle cuts across all functions of the State, from law-making to policy formulation, and must be observed whenever the government undertakes any action.”