A forthcoming monograph
Transformative Constitutionalism, Taxation, and State-Building
Case Studies from Kenya and South Africa
“the burden of taxation shall be shared fairly”
“Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.”
Traditional constitutions are mainly concerned with organising and limiting state power. Kenya’s and South Africa’s do more. They also guarantee rights, place sovereignty with the people, and commit the state to democratic participation and equality. Karl Klare described this as a long-term project to transform a country’s institutions and power relationships in a “democratic, participatory, and egalitarian direction”. Its effect on tax is the subject of this book.
Karl E Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146, 150
Why tax?
Scholarship on transformative constitutionalism has followed the commitments of Kenya’s 2010 Constitution and South Africa’s 1996 Constitution into housing, health and equality. Tax has received far less attention.
Tax law sits awkwardly within the transformative project. It raises revenue for public purposes, but it is built from private law concepts such as property and contract, and from technical rules of statutory interpretation. Constitutional values of fairness, participation and redistribution unsettle that body of law. The book follows how courts, tax authorities and legislatures in Kenya and South Africa have handled the friction.
It is the first book-length study of the subject. It also uses tax as a test case for a wider question about transformative constitutions: under what conditions does a constitutional commitment change settled law?
Transformation can consolidate, stall or dissipate
The book treats transformation as a cumulative constitutional effect that develops over time, and identifies three interconnected pathways.
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Transformative but
Constitutional principles shift tax doctrine, but unresolved legal questions, gaps in implementation, or new complexities created by the judgments themselves stop the change from settling. The result is movement without consolidation.
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Neutralised potential
Constitutional principles chart a route to change, which is then diverted by structural limits, scarce resources, institutional failure or incoherent policy.
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Counter-transformative
Constitutional requirements are met in form only. Without a culture of constitutionalism to give them substance, public participation can become a box-ticking exercise, trust between the state and taxpayers breaks down, and tax policy moves against the constitution’s aims.
The pathways are traced across three dimensions: the courts, the institutions that make and administer tax, and the relationship between the state and taxpayers.
Questions the book takes up
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KE
Can a tax treaty be unconstitutional?
The challenge to the Kenya–Mauritius double taxation agreement, and the constitutional limits on how Kenya concludes tax treaties.
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ZA
Should unclear tax laws still be read in the taxpayer’s favour?
South African courts have long resolved ambiguity in tax statutes against the revenue authority under the contra fiscum rule. The Constitution brings a competing idea of fairness, and the courts have yet to settle which should prevail.
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KE
When does public participation on a finance bill count?
How Kenyan courts have tested the constitutional duty to consult the public on finance bills, and the protests that followed when consultation made little difference.
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KE
Is a delayed VAT refund a constitutional problem?
Refunds and the right to fair administrative action under article 47 of the Kenyan Constitution.
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KE · ZA
Should taxpayers pay before they argue, or argue before they pay?
South Africa’s default is “pay now, argue later”, tempered by a statutory power to suspend payment. Kenya’s Tax Procedures Act 2015 took the reverse position, “argue first, pay later”, but successive Finance Bills have eroded it. Since the Finance Act 2025, a taxpayer must deposit 15% of the disputed tax, or give a bank guarantee, to appeal beyond the Tax Appeals Tribunal.
The British Academy
The book is based on a research project funded by the British Academy through a Postdoctoral Fellowship.
Dr Daisy Ogembo
Daisy Ogembo is a tax law scholar at the International Centre for Tax and Development (ICTD), Institute of Development Studies. Her research examines how constitutional and administrative law shape tax systems in Kenya and South Africa, and the protection of taxpayers’ rights as tax administration moves onto digital public infrastructure.
- Cover
- Table of contents
- Publisher and publication date
- Endorsements
- Talks and events