What Might The Kenyan Supreme Court Decisions Have to Do With Economic Growth?

This entry is part of a series exploring the propositions made by Yuen Yuen Ang in her book “How China Escaped the Poverty Trap”. Yuen Yuen Ang’s arguments hinge on principles of the Darwinian coevolutionary model applied to economic theory. Kenya is, among many things, an exemplar of a low-middle income agrarian economy. Kenya is poor. But like any economy, Kenya is dynamic. I have learned that it is helpful to look for signs of positive progress, great and small. I attempt to apply Yuen Yuen Angs thinking on coevolution of public and private sectors to assess events in Kenya’s judicial system and their economic implications. I think that three particular Supreme Court decisions of the post 2017 period can be viewed as signals of positive coevolution of the economic and political ecosystem.

What Was the Political Context Surrounding the Kenyan Supreme Court Decisions to be Discussed?

Kenya has a 5-year presidential election cycle. Roughly speaking, the political and economic context for the period in question was created by 2002, 2008, 2013, and 2017 election periods. In 2002, Kenya formalized a shift from dictatorship to democracy. In the period 2001-2002, economic growth had dropped from 4.5% to 0.6%. By 2007, education was free, public universities had grown in number, infrastructure was expanded and economic growth had reached a peak of 7.1%. In 2008, the Kenyan post-election period was marked by politically charged post-election violence. By some estimates, civil unrest dampened economic activity. By 2010, Kenya had a new hard-won constitution with the important new feature of a devolved government. In sum, the constitution would address many of the underlying issues that caused unrest in 2008. In 2013, Kenya welcomed the first government to be elected under the dispensation of a new constitution. In 2017, the incumbent president would be challenged in a spirited election process. After choosing to disengage with the formal electoral process, the challenger to the presidency organized a mock inauguration that saw him declare himself the peoples’ president. This potentially treasonous act was of significant political charge. Many feared another period of post-election violence similar to the 2008 post-election crisis. To head off this threat, the incumbent presidency and the opposition would reconcile with a gesture of peace dubbed a handshake. By 2018, the incumbent had been re-elected. Together, the incumbent presidency and its one-time challenger would mount an effort to change the constitution. Among other changes, this coalition sought to create a bigger executive. Finally, throughout the 2002-2022 period, the private sector has grown significantly in productivity.

The First Supreme Court Decision

In 2017, a Kenya supreme court decision saw the annulment of Kenyan election results and the declaration of a new election campaign and voting period. In that case, the ruling was made in favor of opposition’s claims of electoral fraud. A technical strike against the incumbent in a hotly contested election, was a strong demonstration of the independence of the judicial arm of government. With the opposition refusing to take a ballot position in the re-election period, the incumbent would go on to take the instruments of executive power. This example of the annulment of election results by a supreme court was significant enough to earn the attention of the legal mind of a defeated Secretary of State Hillary Clinton as she worked to make sense of her democratic electoral loss to President Donald Trump.

The Second Supreme Court Decision

A coalition between the principals of the re-elected executive and the opposition would manifest a raft of constitutional reforms under a bill entitled the Constitution of Kenya (Amendment) Bill, 2020. On May 23, 2021, this new coalition and their campaign for constitutional reforms came to a sudden halt when a special five-judge bench of the High Court of Kenya declared that the bill was unconstitutional. Journalist and commentator Ferdinand Omondi propose that the judgment was as important as the 2017 ruling (discussed above) that nullified the incumbents’ election victory. In the eyes of the supreme court, the Kenyan president’s attempt to push for and fund a constitutional amendment was out of legal bounds. The Kenyan constitution holds that the power to initiate constitutional amendments rests with the public and the legislative branch and not the president.

The Third Supreme Court Decision

The executive branch and proponents of constitutional amendment took the decision discussed above to Kenya’s Court of Appeal. On 20th August 2021, the Kenya Court of Appeal rejected the governments appeal and upheld the May 23rd High Court decision. The grounds on which the Kenyan Chief Justice nullified Kenya’s 2017 election results drew the interest of erstwhile American Democratic Party candidate Hillary Clinton. Having experienced defeat by her Republican Opponent, Hillary Clinton once toyed with the possibility that her campaign may also enjoy a political windfall from a similar American Supreme Court decision. This is one sign of the importance of Kenya’s 2017 election nullification by Supreme Court decision to the Kenyan jurisprudence in particular and the democratic experiment in general. The Supreme Court May 23, 2021 decision against the Constitution of Kenya (Amendment) Bill and the decision on 20th August 2021 by the Kenya Court of Appeal to uphold the Supreme Court decision are the vital signs of a democratic system improving in health. South Africa’s decision to put former president Jacob Zuma on trial for grand corruption is of similar consequence. The scenes of civil disobedience that followed his arrest are signals of the latent incoherence of South African body politic. Present in Kenya and much of Sub-Saharan Africa, this condition is ready for exploitation by influential political figures. Though it may be a threat to it, this does not diminish the progress made by these two judicial systems. Late Meiji Japan’s institutions of jurisprudence expressed similar indications of a healthy maturity in the practice of the separation of state powers. Having enjoyed decades of control and illegitimate obeisance by the legal system, Chinese local area policemen operating during the early 2000s were faced with a judiciary system that was less willing to rule fabricated cases in their favor.

Conclusion: Are The Three Supreme Court Decisions are Cause for Celebration?

Yuen Yuen Ang proposes that an unlawful state of affairs need not be an enduring fact. In her analysis, hope lies in the coevolution of the private and public sectors. That is, growth in the private sector is likely to engender growth in the public sector. As entrepreneurs grow their wealth, they are more keen to ensure that the public sector can create the conditions necessary to preserve that wealth. Advanced economies generate high quantum of regulations in order to safeguard the great wealth accumulated. Yuen Yuen Ang suggests that developing countries should not follow Daron Acemoglu’s proposition that poor countries graft regulations and legal practices from their wealthier counterparts. Rather, she advocates for the creation of the conditions necessary for the organic coevolution of the private and public sectors. Importantly, Yuen Yuen Ang is a proponent of ambition in national industrialization policy. That is, policymakers should go beyond creating conditions conducive to private sector growth by setting ambitious objectives. South Korea and Japan actively sought out policies and actions that would build world beating multinational corporations. Public-private sector coevolution is not a given. Vicious cycles of decay can occur. With these three decisions, the Kenyan judicial branch exercised its constitutional separateness from the executive in a most dramatic fashion. These Kenyan supreme court decisions discussed should be celebrated as veritable signals of a maturing state.