We are just over a month into the new administration under President William Ruto. At this early stage we can see that some things have changed, others, not so much.

One definite change is that our new president’s speeches have been a lot more policy-heavy than perhaps we had become accustomed to. His inauguration speech mentioned the scaling up of the allocation to the judiciary, committed to the appointing of the six judges of the Court of Appeal (which he immediately did), made the Inspector-General of the police the accounting officer (again, done), as well as mentioning fuel subsidies, fertilizer costs, youth unemployment, financial inclusion and a number of other important policy aspects.

But it is the president’s speech during the inauguration of the 13th Parliament that I wish to draw attention to. It was just as policy-heavy, spending little time on the election just concluded, and more time on what the president’s legislative agenda would be. This is very important. Past presidents who have sailed into State House with a legislative super-majority perhaps may not have realized the opportunity that the times had afforded them. The current president seems fully aware that his ambitious legislative agenda will need to be approved by a parliament in which his coalition does not have the super-majority of years gone by. The president presented his legislative goals to the bicameral parliament very early. I list some of the president’s stated goals below.

The president stated that under his administration, he is keen for agricultural productivity – of farmers, fishermen and herders – to rise “dramatically”. He also stated that parliament should do its duty by supporting the provision of land for affordable housing. Perhaps most memorably, he stated his intention to change the tax regime by taxing wealth, consumption, income, and trade – in that order. And he decried the land fragmentation that has been occasioned by Kenyans seeking and succeeding to purchase 50×100 plots for themselves.

Underlying each and every one of the issues that the president mentioned in the above paragraph is the vital and essential issue of land. Questions of its availability, its productivity, its cost and the alternative uses to which it may be put are unavoidable and inescapable as enablers to the attainment of the president’s agenda. As far as productivity is concerned, large tracts of productive land lie fallow and unused – “owned” by those who will not put it to use. The government will struggle to buy land for affordable housing – because land is far too expensive in precisely those areas where housing is so sorely needed. I have lived in a house in which the door to the shower could not fully be opened because at some point that door would knock the showerhead when you opened it. The price of land, dear reader, is in that shower-room. There are numerous apartment blocks in Nairobi in which if the bonnet of the car parked first is not nestling snugly under the stairway leading into the apartment, the gate simply will not close. The price of land, dear reader, is in that apartment’s parking lot – and elsewhere in the apartment, I’m sure. (Indeed, the price of land is so high that it has proven and will continue to prove to be an impediment to the improvement of the nation’s infrastructure; land compensation cost KSh33 billion during the construction of the standard gauge railway, for example.) And the land fragmentation that the president rightly regrets is a combination of both these factors: the fact that large tracts of land are unavailable to a public that would otherwise have put them to more productive use; and the fact that land prices are high and rising so that it is seen as a more durable asset in which to park family savings, such that smaller and smaller pieces of land have more and more value. In short, resolving the land problem in Kenya is now fundamental to any administration’s success. A day of reckoning must soon come, and it is better to get out in front of it.

The government will struggle to buy land for affordable housing – because land is far too expensive in precisely those areas where housing is so sorely needed.

There is a simple solution to each of these problems, although I must caveat this statement by saying that “simple” does not necessarily mean “easy”. Land is a natural resource; it is not manufactured by anyone. There exist schools of economic thought that state that the taxation of such natural resources for the national benefit is the best way to realize their value on behalf of the people. Let us examine this thinking further by means of a thought experiment.

Imagine, for example, that there was a blanket tax rate on land of, say, KSh1,000 per acre per month, or KSh12,000 per annum.

(It would be important for such a new tax to be offset by a commensurate reduction in income tax, to stay within the president’s stated principle of taxing wealth first and income second-to-last.)

We shall now examine the effects of this tax for Family A which owns the quarter of an acre on which they have built their family residence. Such a tax would amount to KSh250 per month, or KSh3,000 per annum. In all likelihood, Family A would be able to pay it, even without offsetting it from income tax. But let us now examine the effects of this tax for Family B which owns 100 acres of land. Such a tax rate would amount to KSh100,000 per month, or KSh1.2 million per year. Given that – as earlier stated – this amount is to be offset from that family’s income tax, such a family would only be unwilling to pay this tax if they were not already farming the land, or in some other way making it produce at least the KSh1,000 (per acre per month) needed to pay the tax. In other words, only the owners of idle land (or, more fairly, the idle owners of productive land) would be disturbed by this change in the tax regime.

(It gets even more interesting when the tax rate is a flat percentage based on the value of the land. Let us say the rate is 2 per cent per annum. A parcel of land valued at KSh1 million would attract an annual tax of KSh20,000. A parcel valued at KSh100 million would attract a rate of KSh2 million per annum. This is even more fair and just because an empty lot in Nairobi city centre is losing us far more productivity than an acre of land in Samburu. This is what is known in economics as a land-value tax, and it is the holy grail of taxation policy. But I digress.

Upon the introduction of a land tax, in very short order, one of three things would happen. Families like Family B could sell their land. The immediate availability of large tracts of land for sale in order to avoid the tax would have the economically salubrious effect of depressing the price of land quite quickly, availing it for careful planning. We would have to take care to avoid the mistakes of the past, where planning for the use of this most important of resources has been largely non-existent and land allocation has fallen prey to corruption. Even where newly-available land is to be bought by a new owner, it should be carefully allocated to those who would actually farm it productively, and such allocations should not be corrupt. Japan achieved this by having these decisions made by local land committees, and this fair redistribution of land kicked off that nation’s economic take-off.

Alternatively, Family B could lease the land for the tax rate or slightly more. Although theoretical, a land lease rate of KSh1,000 per acre per month is quite fair and would enable the land to be put to use by a good agriculturalist – the youthful unemployed of our day. (Such an approach while helpful, would not be a silver bullet, and would need to be allied with extension services, capital provision, assistance with market development, and other support.) This would at once help to reduce unemployment – the single most important economic problem of our time – and attain the target of increasing the national agricultural productivity that the president talked about in his speech.

An empty lot in Nairobi city centre is losing us far more productivity than an acre of land in Samburu.

Lastly, Family B could put the land to the uses to which it should have been put all along, in order to generate the KSh1,000 per month required to pay the tax – and keep the land.

All of these outcomes – provided they are correctly carried out – are beneficial. In China, for example, grain output leapt by 70 per cent in the decade after land redistribution. However, to ring-fence and insulate these beneficial outcomes from typical Kenyan venality, the land tax must be inescapable. It may be necessary to make it public information whether the tax for a piece of land has been paid or not. Further, during land redistribution the public should be involved, as was the case in Japan. In addition, the institutions in charge of these processes should be staffed by individuals who are above reproach. It is also important to note that a certain reading of Article 209 of our Constitution could conceivably prevent the national government from imposing such a land tax. Sound judicial advice should therefore be sought before proceeding with these changes.

Dear Mr President: please tax the land, and not your people.

On September 13, William Ruto was sworn in as the fifth president of Kenya following a tightly contested election that had to be adjudicated upon by the Supreme Court of Kenya. The inauguration ceremony was attended by almost 20 heads of states and governments including all the presidents of the East African Community. As the celebrations fade and the reality of the work that awaits sinks in, President Ruto has a full in-tray of regional security crises around the Great Lakes Region and the Horn of Africa that require his attention. To some observers, he has big shoes to fill—those left by his predecessor, retired president Uhuru Kenyatta who has been hailed by some for having an aggressive and assertive foreign policy agenda. This article analyses the key regional issues that President William Ruto must pay attention to as he emerges from the shadows as a Deputy President to become a full president of one of the anchor states in the Great Lakes region and the Horn of Africa.

First, President Ruto comes into office at a time when the East African Community has admitted a new member—the Democratic Republic of Congo. The inclusion of the DRC brings with it the challenge of the unending conflict of the Eastern DRC where the M23 and other rebel groups continue to cause havoc and destruction. Second, the conflict in Ethiopia between the Tigray Defense Forces and the Ethiopian government has been re-ignited once again, with reports of each side violating the ceasefire agreements signed earlier on. Third, South Sudan has recently extended the tenure of the transitional government for another two years, meaning that the elections scheduled for December will be postponed. The fledgling Revitalised Transitional Government of National Unity still faces an uphill task in bringing order and peace to the country. Fourth, Kenya remains a key player in Somalia, with its troops still forming a key part of the AU Transition Mission in Somalia (ATMIS).

DRC and the emerging regional security complex

The security challenge facing the Eastern part of DRC is of great interest because it is inextricably linked to the emerging regional security complexes within the Great Lakes Region. Therefore, it has the potential to engulf the entire region if not well addressed. Furthermore, this is the first time the EAC is being called upon to mobilise an intervening regional force to be deployed in a member state.

This comes against the backdrop of a bitter exchange of words between Presidents Felix Tshisekedi of DRC and Paul Kagame of Rwanda over who is responsible for the re-emergence of the conflict waged by the M23. This unending blame game between Rwanda and DRC threatens to sour the goodwill among the presidents of the EAC. President Ruto’s predecessor, former president Kenyatta, had laid a smooth path for President Tshisekedi to join the EAC and cultivated a very close working relationship that saw Kenya make an entry into the DRC market. This also led the Kenya Defence Forces to joining the UN peacekeeping MONUSCO mission. Kenya assuming the command role of the regional force in DRC was a culmination of these efforts by President Kenyatta to portray Kenya as a reliable ally of DRC.

During the presidential election campaign in Kenya, President Ruto made comments describing DRC citizens as people who liked dancing a lot and wearing high-waisted trousers, and not involved in dairy farming, a comment that almost caused a diplomatic spat between the two countries. Therefore, as he takes his place in the EAC Summit, President Ruto has a lot to repair in terms of relationship building with his DRC counterpart who is a known ally of Raila Odinga, his competitor in the just concluded elections. Already, Ruto’s hands are tied by the EAC Heads of State Summit’s decision to nominate President Kenyatta as the lead of the East DRC peace efforts that he had initiated. President Ruto should therefore follow in the footsteps of his predecessor and emphasize the collective will and role of the EAC in addressing this complex security issue.

The restive Horn and IGAD competing interests

While President Ruto was preparing to be sworn in, the Tigray Defense Forces issued a press release agreeing to participate in the African Union-led mediation efforts. This was a departure from their past communications which were full of mistrust of the AU. At the time of writing, the African Union has organised a meeting of the parties to be held in South Africa.  Prior to this, fighting was reported to have resumed, with reports that Ethiopian forces had attacked and bombed certain areas within the Tigray region. Further reports indicate that neighbouring Eritrea has also invaded the border regions, further complicating the conflict.

In Somalia, the threat of the Al Shabaab terrorist group remains real for both Kenya and Somalia, and there is a need for greater collaboration between the countries’ two leaders. Kenya still has its troops stationed in Somalia under the AU Transition Mission in Somalia (ATMIS). Besides the Al Shabaab terror threat, Kenya and Somalia are still embroiled in a maritime dispute following Kenya’s rejection  of the ICJ ruling that favoured Somalia.

The Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS) continues to face headwinds as there seems to be no clear indication as to when it will be fully implemented. The US’s withdrawal of support has dented confidence in the South Sudan peace process. Furthermore, the recent decision to postpone the elections until 2024 has thrown the prospects of a peaceful resolution of the conflict into doubt.

To address some of these challenges, President Ruto needs to visit some of the countries engaged in conflict. At the time of writing, President Ruto was scheduled to visit Addis Ababa, his first visit to a regional capital and the seat of the African Union. Second, he needs to visit Asmara to speak to one of the key actors in the Tigray conflict, President Isaias Afwerki who for the longest time has been treated as a pariah in the region. Subsequently, President Ruto should rally his peers to fully engage Eritrea on some of the regional security challenges.

Third, President Ruto should push the United States and the European Union to press the AU to treat the conflict with greater urgency. There have been reports that the AU, led by its Chair Moussa Faki, has been lethargic in responding to the crisis. These allegations were recently given prominence by former president Uhuru Kenyatta’s decision to skip the planned mediation talks in South Africa. In a letter outlining his reasons for skipping the talks, Kenyatta urged the AU to provide “clarity on the structure and modalities of the talks”.

President Ruto should rally his peers to fully engage Eritrea on some of the regional security challenges.

In addition to this, President Ruto should urge the international community to prevail upon the AU and Moussa Faki to drop former Nigerian president Olusegun Obasanjo as the lead mediator and replace him with former president Kenyatta. So far, the TPLF has expressed reservations about the role of Obasanjo whom they see as too soft on Prime Minister Abiy Ahmed. This is because, as a former head of state, Kenyatta lacks the political influence he previously commanded as a sitting president to call to order all the actors in the conflict. Therefore, without the AU/IGAD backing Kenyatta as the lead mediator, his mission will not achieve the desired outcomes.

Fourth, President Ruto will need to approach the Somalia case with a lot of caution because of the fluidity of the politics in Mogadishu. He will need to avoid the mistakes of his predecessors and treat Somalia as an equal despite the internal challenges the country faces. On the maritime dispute, President Ruto has to find a working formula which will benefit both Kenya and Somalia and diffuse any tensions that emerge from it. There are signs that relations will be better; in a recent interview on Al Jazeera President Ruto was full of praise of Somalia’s President Hassan Sheikh Mohamud, saying that he was ‘’more progressive and committed to fighting Al Shabaab”. This was a thinly veiled dig at his predecessor, President Farmaajo, whose tenure was riddled with diplomatic spats between Kenya and Somalia.

Kenyatta lacks the political influence he previously commanded as a sitting president to call to order all the actors in the conflict.

Fifth, President Ruto needs to be assertive on South Sudan leaders to fully implement the R-ARCSS agreement. Kenya seems to have taken its foot off the gas pedal when it comes to South Sudan. While Kenya continues to chair the Reconstituted Joint Monitoring and Evaluation Commission (RJMEC) through Maj. Gen. Charles Gituai, key observers agree that Kenya has since fallen behind Uganda and Ethiopia as the key player in South Sudan. Will he reverse the trend and have Kenya regain its foothold in South Sudan? A big decision will be whether President Ruto will retain former vice president Kalonzo Musyoka as Special Envoy or whether he will replace him.

While Kenya is often praised for its role as an anchor state in a region engulfed in chaos, its regional foreign policy does not appear to be based on a coherent political strategy. This lack of coherent strategy in its foreign policy has made Kenya vulnerable to international and domestic sources of instability. As President Ruto begins his tenure and embarks on a regional tour starting with Addis Ababa, the seat of the African Union, will he follow his predecessor’s footsteps or chart his own course?

To a comparative constitutional lawyer, Article 140 of the Kenyan Constitution is an interesting provision: it sets out, in some detail, the legal route by which a dispute around a presidential election is to be resolved. Read with Article 163(3)(a), it clothes the Supreme Court of Kenya with the exclusive prerogative – as well as the duty – to hear and decide a challenge to a presidential election, within fourteen days. Article 140’s mandatory and time-bound language precludes the Supreme Court from taking two paths, which judiciaries often take, to avoid entanglement in politics: declining jurisdiction to hear a dispute, or simply putting off a decision until the case becomes infructuous. Rather, Article 140 envisages that the Supreme Court will be the first – and final – arbiter of the most contentious of all political disputes.

This puts the Supreme Court in something of a bind. A large part of judicial legitimacy flows from a Court’s ability to stay out of political disputes, or to carefully negotiate political terrain when such questions are thrown up before it. The histories of independent judiciaries around the world have shown us that if a Court deals politicians too many setbacks, a backlash will not be far behind.

This bind is worsened by two things. The first is that complicated electronic technology has become integral to modern-day elections, and disputes around elections will therefore require the Court to assess competing claims around technology, presented by duelling sets of experts. This is a fraught exercise at the best of times, and becomes particularly fraught when a presidential election turns on the outcome. The second – and related – point is that many of the issues that arise in a presidential dispute will necessarily involve high degrees of judicial subjectivity. It is a truism that there is no such thing as a “perfect election”. In any election held at scale, there will be machine errors and human errors – somewhere, somebody will make a mistake, a computer will break down, a rule will be misunderstood or wrongly applied. There is no bright line for determining the point at which these atomised errors coalesce into something that undermines the integrity of an election. It is a matter of judgment, and like all matters of judgment, subject to attack.

To negotiate this bind, a court that is given the kind of task that the Supreme Court of Kenya has been given under Article 140, can do the following things: (a) articulate a set of objective and neutral standards concerning questions of evidence, and the threshold required to invalidate the results of an election; (b) hew closely to the submissions and evidence provided by the parties to the dispute; and (c) set out detailed and transparent reasoning for its decision, so that the losing party has the right to feel aggrieved, but does not feel cheated.

The unanimous judgment of the seven judges of the Supreme Court of Kenya in Odinga and 16 Others vs Ruto and 10 others – the challenge to the 2022 Kenyan Presidential elections, and the certification of William Ruto as the president-elect – reveals both the bind, and the Court’s attempt to negotiate it through the principles set out above. Faced with a series of allegations about the conduct of the 2022 presidential elections – ranging from hacking to physical manipulation of forms, and from voter suppression to technological breakdown – the Court framed its response along two lines: a standard of evidence and a standard of invalidity. With respect to the first, the Court held that allegations of impropriety would have to meet an “intermediate standard” of “clear and cogent evidence” – that is, something between the civil law standard of “balance of probabilities” and the criminal law standard of “beyond reasonable doubt” (the exception to this was when allegations of a criminal nature – such as fraud – were made in the course of the election petition).

With respect to the second, the Court held that where the standard had been met, the next question was: did the improprieties reach a level where they materially impacted the outcome of the election? To an extent, this is a counterfactual question that is difficult to answer with certainty, especially in close elections; what would have happened if the improprieties had not taken place? But it is also an essential question; if an election were to be set aside on the basis of any impropriety, then we would be having election re-runs until the end of time. The standard of invalidity is, to an extent, a compromise, but a necessary one.

With this framework in mind, the Supreme Court’s analysis can be divided into two buckets. In the first bucket were allegations (such as fraud, switching of Forms 34A, and so on) that the Court found were not proven to the required standard. Importantly, in making this assessment, the Court primarily relied upon the competing affidavits of the parties (including upon internal contradictions within some of the affidavits). This is the second principle outlined above: as the Court stressed, in adjudicating the case, it could not travel beyond the quality of evidence provided to it by the respective parties. In the second bucket were allegations (such as printing errors and failure of voting kits) where the Court found that there had been lapses, but that it could not be shown that these lapses had materially altered the outcome of the election.

Perhaps the most significant part of the judgment, however, is the third principle. During the course of the hearings, the Court ordered a scrutiny of the IEBC’s servers – under the supervision of the Court’s registrar – in order to cross-check the veracity of some of the allegations. The results of the scrutiny report are discussed extensively in the judgment, with a candour that is not often found in the adjudication of such disputes elsewhere in the world. Indeed, on most of the issues that it framed, the Court set out its reasoning process – including mathematical calculations in some detail and with great transparency – allowing, in turn, for the foundations of its judgment to be scrutinised by the public.

It is trite to say that one may disagree – on substance – with the Court’s analysis on each of the three steps outlined above. Indeed, this writer believes – for example – that the Court’s holding that spoilt ballots be not counted in the determination of whether the winner of the election has crossed 50 per cent is open to critique. After all, why shouldn’t an individual be entitled to spoil their ballot and have their vote counted accordingly? Such disagreements are in the nature of things; the crucial point, however, is that the Court’s overall analytical framework – that is, the standard of evidence and the standard of invalidity – and the three-step analysis outlined above, is undoubtedly sound, and one of the only routes open to a Court to adjudicate high-stakes political disputes without being dragged down into the mire of political partisanship.

The results of the scrutiny report are discussed extensively in the judgment, with a candour that is not often found in the adjudication of such disputes elsewhere in the world.

It is in this context that the statement of Azimio that the Supreme Court presents a “threat to democracy” is a matter of some concern. As mentioned in the beginning of this article, around the world, clashes between the judiciary and politicians are not uncommon, especially when it comes to high-stakes elections. However, many of those clashes have occurred in contexts of judicial overreach, or where the Court instals a politician or validates an election in highly opaque or secretive proceedings. In the opinion of this writer, two things set apart the Kenyan case: the first is that the Constitution explicitly envisages the Supreme Court as the body that will resolve this dispute, and for good historical reasons (indeed, as the 2017 elections showed, the Supreme Court is capable of – and has – set aside an election in the past). And the second – and more important – thing is that, when you consider the judgment in Odinga and 16 others vs Ruto and 10 others from the perspective of global best practices in adjudication, it stands up to searching scrutiny. The Court set out neutral and objective framework principles to guide its adjudication of the case, reasoned closely and narrowly within those principles, and set out its chain of reasoning in a judgment on record. The Court’s judgment may attract criticism (even stringent criticism), and that is in the nature of things, but – respectfully – it does not warrant an attack. It is important to remember that the dispute resolution process under Article 140 requires an independent and strong Court that can act to invalidate a flawed presidential election (as it did in 2017). If that is gone, then it is an open question how future disputes can ever be resolved without serious problems.