Two years on, courts yet to answer crucial Finance Bill questions

Two years have passed since Members of Parliament attempted to push through the controversial Finance Bill, 2024, an effort that ignited widespread street protests by young Kenyans across the country.

Some demonstrators were killed, others were maimed, and many abducted. Although the country eventually moved on, the scars remain.

The fundamental grievances of the majority of Kenyans—punitive taxation at a time of rising poverty and unemployment—have not disappeared. Instead, they continue to linger unresolved in the corridors of the courts and within the pages of hard-hitting reports produced by institutions such as the Law Society of Kenya (LSK).

When the Bill was first tabled in Parliament, the Mt Kenya Jurists Association moved to court, seeking an immediate suspension of the process. Their lawyer, Kibe Mungai, argued that the National Assembly was effectively railroading an unpopular and deeply resented policy down the throats of ordinary Kenyans, despite overwhelming public opposition expressed during the limited participation opportunities.

“Nothing in the Bill addresses measures to deal with poverty and unemployment in the country,” Mungai told the court. He emphasised that the overwhelming majority of citizens who submitted views had strongly objected to the provisions on account of the punitive taxation regime and the conspicuous absence of any credible measures aimed at tackling the country’s mounting economic problems and escalating levels of poverty.

The petitioners — Fanya Mambo Kinuthia, Peter Koira, Ishmael Muriithi, Jackline Wanjiru, and Charles Mabiru — filed suit against the Attorney General, the Treasury Cabinet Secretary, President William Ruto, and the Kenya Revenue Authority (KRA). Their central prayer was for the court to intervene decisively so that the legislative process could be conducted in a manner that secured the broadest possible national consensus, thereby helping to avert the street protests that eventually erupted.

Lawyer Mungai reiterate that the core issues raised in these petitions had never been substantively addressed or resolved by either Parliament or the Executive. He cautions that continued delays in hearing the matters risked rendering them academic due to the sheer passage of time. Such an outcome, he warns, would amount to burying “radioactive discontent”—deep-seated public frustration that becomes reactivated and more dangerous with every new budgeting cycle.

Running parallel to this case was another led by Busia Senator Okiya Omtatah, together with Eliud Matindi. They argued that the Finance Bill had been tabled prematurely, without the necessary approved fiscal framework for the 2024/2025 financial year.

According to them, such a framework could only emerge legitimately after extensive public participation in the Appropriation Act, 2024. They insisted that the Finance Bill could only be lawfully introduced in the National Assembly once the Appropriation Act had been properly enacted.

Omtatah further contended that the National Assembly had unconstitutionally sidelined the Senate on what constituted a money bill with direct implications for county governments. This procedural flaw, he maintained, violated constitutional requirements for bicameral engagement.

These petitions form part of a broader wave of at least 13 separate cases that mounted legal challenges against the 2024 Act. The disputes revolved around both serious procedural irregularities—such as inadequate public participation and the bypassing of constitutional checks—and the substantive heavy burden the new tax proposals placed on ordinary citizens already struggling with the high cost of living.

Many of the arguments advanced in 2024 echoed earlier unresolved challenges against the 2023 Finance Act. Issues such as the controversial housing levy, increases in fuel levies, and the overall lack of genuine consultation continued to feature prominently. Petitioners like Peter Agoro, Dr Paul Saoke, and Clement Onyango, among others, highlighted how certain provisions appeared to amend multiple existing laws without following the required bicameral legislative process.

Agoro, for instance, expressed confusion over the exact nature of the housing contribution — whether it was a tax, a refundable levy, or a fund-managed payment — and argued that the government should have abandoned the 1.5 per cent proposal given the massive public resistance it encountered.

Dr Saoke, on his part, questioned the exclusion of certain Azimio coalition members from proceedings simply for expressing dissenting views, describing the entire process as both procedurally flawed and substantively unconstitutional.

Beyond the legislative process itself, the handling of public discontent drew sharp criticism from the legal fraternity. Former LSK President Faith Odhiambo described the entire episode surrounding the Finance Bill, 2024 as one of the most egregious violations of participatory democracy witnessed in Kenya in recent memory.

Young people, many of whom were exercising their constitutional right to peaceful protest for the first time, took to the streets to voice their economic frustrations. Rather than being met with genuine dialogue and engagement, their demonstrations were confronted with bullets, batons, mass arrests, enforced disappearances, and widespread intimidation. The result was a trail of human suffering that will require generations to heal.

In its detailed report titled In Search of an Answer, the LSK meticulously documented widespread abuses by security forces. These included excessive use of force by police, arbitrary mass arrests, enforced disappearances, and the highly controversial deployment of the Kenya Defence Forces to support civilian policing duties.

The lawyers subsequently moved to court, suing Defence Cabinet Secretary Aden Duale (who has since moved to the Health docket) and Chief of Defence Forces Charles Kahariri. Through their lawyer Chrysostom Akhaabi, the society argued that the deployment was blatantly unconstitutional. Akhaabi emphasised that none of the protesters were armed, no formal state of emergency had been declared, and the police had not been demonstrated to be overwhelmed.

He asserted that the minister lacked any legal authority to deploy the military against civilians who were largely carrying placards and water bottles.

“There is no demonstration that the National Police… have been overwhelmed,” the court was told.

The move, he added, was unprecedented in Kenya’s multiparty era, save for the 1982 coup attempt, and represented a dangerous precedent of militarising the response to civilian dissent.

The Attorney General defended the government’s actions, arguing that there was no strict legal requirement for the Inspector General of Police to declare that the situation had overrun police capacity before military assistance could be sought.

The deployment, the AG claimed, was primarily intended to deter crime and restore order amid what they described as violence and destruction of property.

Government officials, including Major Mohammed Mwinyi, attributed much of the unrest to social media misinformation, which they said had incited youths and attempted to subvert a democratically elected government.

Independent documentation by the LSK and partners such as the International Justice Mission painted a grim picture on the ground. Investigators interviewed numerous survivors in Nairobi’s informal settlements of Kibera, Mathare, and Mukuru kwa Reuben, as well as in other towns including Kisumu, Kisii, Nakuru, Eldoret, Meru, Machakos, and Mombasa.

In Mukuru, seven cases of gunshot wounds were recorded. Kibera yielded 81 survivor accounts, many involving indirect injuries from teargas and stampedes, with ten people suffering severe breathing difficulties and skin rashes.

Tragically, two women reportedly suffered miscarriages linked to concentrated teargas inhalation. Arbitrary arrests by masked plainclothes officers, brutal beatings, and nighttime house-to-house raids in areas like Kondele and Nyalenda in Kisumu were also widely reported.

Nationwide, human rights monitors documented at least 65 protest-related deaths—more than triple the toll recorded during the infamous Saba Saba protests of 1990—along with over 2,000 arrests.

The LSK has since recommended several remedial measures. These include the immediate suspension and disciplining of police officers implicated in killings and brutality, full operationalisation of the National Coroners Service Act, 2017, and the Victims Protection Act, 2014, as well as a formal public apology from the President to the victims and the nation at large.

Two years later, as fresh budget cycles loom, the questions raised in 2024 remain largely unanswered. The courts still hold the potential to provide clarity and accountability, yet the longer justice is delayed, the greater the risk that public discontent will continue to fester beneath the surface of an apparently calm nation.