Lawfare Is Now Part of Kenyan Politics - "Steve Were, HSC said"

Let's describe what lawfare is — the strategic use of courts to slow, exhaust, or delegitimize an elected administration.

In Kenya:

Losing politically does not end the contest. The battlefield simply shifts from the ballot to the courtroom

Court filings become:

• A holding action
• A media strategy
• A political messaging tool

Even when the state eventually wins, time is lost, momentum is broken, and public confidence erodes. In policy terms, delay is defeat.

President William Ruto, C.G.H, PhD at State House, Nairobi

presiding over the swearing-in ceremony of the newly appointed 15 Judges of Court of Appeal, Kenya.

The President’s Question Is Institutional, Not Personal

Ruto isn’t (or shouldn’t be read as) attacking the judiciary. He’s asking a structural question:

Are courts adjudicating constitutionality, or unintentionally refereeing political competition?

That is a legitimate governance concern in any constitutional democracy.

If every policy — including those with:

• clear statutory backing
• budgetary approval
• documented public participation, is still frozen at interlocutory stage, then the system is no longer balancing power; it’s paralyzing it.

(Transformation cannot occur under permanent injunctions)

The Weaponization of Public Interest

Ironically, many of these cases are filed “in the public interest” by actors who:

• rejected the same policies at the ballot
• lost the political mandate
• now repackage dissent as constitutional concern

Public interest litigation was designed to:

1. protect the voiceless
2. restrain excess power
3. Not to serve as a second general election by affidavit
4. Not a fallback campaign strategy.
5. Not a project delay lever
6. Not a substitute for electoral defeat

And, yet that’s what it’s morphing into currently.

(When every government action is framed as unconstitutional, the term loses meaning)

This Is Why the President’s Court Move Is Rational

Strip away the politics, and this is a governance systems question:

i). Can a country industrialize under perpetual injunction risk?

ii). Should courts impose long suspensions on national projects without expedited final rulings?

iii). At what point does “public interest” litigation become public harm?

A first-world economy does not litigate every road into existence.

It builds fast, resolves disputes quickly, and compensates fairly after progress — not instead of it.

What the Courts Should Clarify (This Is the Real Ask)

If the President goes to court, the most productive outcome would be jurisprudential guidance, not political vindication.

Key clarifications needed:

a). When does electoral mandate weigh into public participation analysis?

b). What threshold of participation is sufficient for manifesto-derived policy?

c). At what point does litigation become abuse of process?

d). Should interim injunctions that stall national programs face a higher bar?

That would strengthen governance without weakening judicial independence.

The Opposition’s Catch-22

Let me highlight a powerful contradiction played by Kenyan political figures/opposition or cynics:

• Oppose a policy in court
• Delay or block it
• Then campaign on “failed promises”

That’s politically clever — but democratically corrosive.

If courts allow indefinite stalling without expedited final determination, they unintentionally become co-authors of that failure narrative.

Bottom Line (Straight Talk)

Yes, courts are being used as political battlegrounds

Yes, this slows transformation

No, the solution is not sidelining courts

The solution is doctrinal clarity + stricter case management + procedural excellence by government

A state cannot be governed by injunctions.

But it also cannot be governed by decree (optional).

The sweet spot is firm executive action inside an unambiguous legal framework.

That’s the reform conversation Kenya actually needs — not a shouting match between arms of government.

This is a debate worth having, and frankly, it’s overdue.

Strong Opinion (No Hedging)

Kenya cannot transform if:

-Every project is presumed guilty until proven innocent

-Courts reward delay over decisiveness

-Losers of elections retain veto power via litigation

Judicial independence must not mutate into judicial dominance over development sequencing.

The Constitution was designed to enable progress responsibly — not to freeze the state in procedural amber.

Final Word

I am not arguing against the rule of law.

But arguing against rule by delay.

And that distinction matters.

If Kenya wants first-world outcomes, it must align:

• Electoral mandates
• Parliamentary approvals
• Judicial timelines

Otherwise, we will keep approving projects on paper and exporting jobs to countries that move faster.

That’s the uncomfortable truth — and many Kenyans already know it.

Ends......

By Steve Were, HSC

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