NAIROBI,Kenya – Fiscal constitutionalism refers to the legal framework governing how governments manage public resources, including taxation, borrowing, and spending. It provides the basis for ensuring fiscal discipline, accountability, and transparency in managing public finances. In Kenya, fiscal constitutionalism should, in theory, ensure that the State’s financial practices align with constitutional principles, including public participation, planning, access to information, and proper representation.
However, the current state of affairs paints a troubling picture where the core principles of fiscal oversight are undermined by political expediency, poor representation, and executive overreach.
Fiscal constitutionalism rests on several pillars, with planning, public participation, and access to information being critical elements. These elements are designed to empower citizens and create a system where decisions about taxation, expenditure, and borrowing are made in a transparent, accountable manner.
Planning is the foundation of prudent fiscal management. A government should have clear and strategic development goals that guide its spending and borrowing practices. This ensures that resources are allocated efficiently, avoiding wasteful expenditures and excessive borrowing that burdens future generations. Without proper planning, governments are prone to fiscal mismanagement, which often leads to unsustainable debt levels and economic instability.
Public participation is another critical aspect. The Constitution of Kenya (Article 10) enshrines the principle of public participation, ensuring that citizens have a say in the fiscal decisions that affect them.
This right allows people to contribute to budgetary decisions, hold the government accountable, and ensure that public funds are used in ways that reflect the priorities and needs of the populace. Unfortunately, public participation often exists only on paper, with many fiscal decisions being made behind closed doors, away from the citizens they directly impact.
Access to information, protected under Article 35 of the Constitution, is essential for public participation and oversight. Citizens need access to accurate and timely information about government spending, borrowing, and taxation to meaningfully participate in fiscal decision-making. Without transparency, it becomes nearly impossible for citizens to hold their representatives accountable or for parliament to exercise effective oversight. Unfortunately, in practice, access to fiscal information remains a significant challenge, leaving citizens in the dark about crucial financial decisions.
One of the most glaring weaknesses in Kenya’s fiscal management is the failure of parliament to effectively represent citizens’ interests. Parliament is constitutionally mandated to provide oversight, ensuring that the executive remains fiscally disciplined and adheres to the principles of fiscal constitutionalism.
However, recent trends—the Finance Bill 2024, indicate that parliament has become a rubber stamp for the executive, approving excessive borrowing, tax hikes, and questionable spending without sufficient scrutiny.
This failure stems from the increasingly blurred lines between the executive and parliament. Political loyalties—often driven by party affiliations or personal interests—seem to supersede the duty to represent the public. Instead of acting as a check on the executive, parliamentarians appear to align with the government, approving its fiscal plans with minimal resistance.
This has led to a dangerous erosion of the principle of no taxation without representation, a cornerstone of democratic governance. In essence, Kenyan citizens are being taxed without their representatives effectively advocating on their behalf or scrutinizing how these taxes are used.
Parliament’s failure to impose fiscal discipline can be partially attributed to the Constituency Development Fund (CDF). The CDF gives parliamentarians direct access to resources for development projects in their constituencies. While this may seem like a way to enhance development at the grassroots level, it has had the unintended consequence of making parliamentarians beholden to the executive.
With their eyes on securing these funds for their constituencies, many legislators are reluctant to challenge the executive on fiscal matters, fearing repercussions that could affect their access to the CDF.
This compromises their independence and undermines their role as fiscal watchdogs. Disbanding the CDF entirely could restore parliament’s independence, ensuring that lawmakers focus on their primary role of oversight rather than engaging in development work that blurs the separation of powers. This would prevent parliamentarians from being co-opted by the executive, reducing the risk of misuse and aligning their efforts with their constitutional mandate to hold the government accountable.
The issue of government borrowing is another critical concern. Kenya’s public debt has ballooned in recent years, raising questions about the sustainability of this borrowing and its long-term impact on citizens. Borrowing, in essence, is deferred taxation. When a government borrows, it is obligating future generations to pay off the debt through taxes. If these borrowed funds are not used efficiently or for development projects that generate returns, the result is an increased tax burden on citizens, without corresponding benefits. This makes it imperative for parliament to exercise greater oversight over borrowing decisions to ensure that future generations are not unduly burdened with debt that does not serve the public interest.
The current state of fiscal mismanagement in Kenya calls for urgent reforms. Parliament must be reminded of its constitutional duty to safeguard public resources and prioritize the interests of citizens over political expediency. To achieve this, a systemic overhaul is necessary, starting with the disbandment of the CDF to restore parliament’s independence and ensure fiscal discipline.
However, these changes will not happen without civic vigilance. Citizens must be more engaged in the fiscal process, demanding transparency and holding their representatives accountable. Public participation, access to information, and a robust oversight system are not luxuries but constitutional rights that need to be enforced.
It is essential for people to view the fiscal system as a whole machine, rather than focusing on its individual parts. Effective fiscal management requires coordinated efforts between planning, public participation, representation, and accountability. The failure of one part inevitably weakens the entire system. Therefore, only by strengthening these interconnected elements can Kenya hope to achieve true fiscal constitutionalism and, ultimately, economic justice for all its citizens.
Geoffrey Odhiambo is a lawyer and programme officer at the Kenyan Section of the International Commission of Jurists (ICJKenya. ). This article was first published on the Nation Newspaper.