Mzalendo Blogs

The judiciary has not been shy about returning the legislature to the drawing board. And the legislature has not feigned from spending mwananchi’s taxes in the same corridors of the judiciary – filling one appeal after the other, a costly egoistic cycle.

In the recent past, Acts of Parliament have been declared unconstitutional by courts across the country – a very avoidable scenario. The Parliaments, while taking no heed to the court’s sentiments, have appealed such decisions, at the expense of mwananchi’s taxes. Several Acts of Parliament have seen such a pattern, including the infamous Finance Act, 2023 through which the Housing Levy came up, which saw the executive receive a bland blow as they were forced to retract and stop taxing Kenyans the Housing levy.

Senator Okoiti Okiya Omtatah, Civil Society Organisations and other public-spirited individuals have seemingly been the last line of defence when it comes to challenging the constitutionality of Acts of Parliament. With cases such as those challenging the Finance Bill and even the creation of additional offices for CASs, the court has consistently ruled against such legislation, citing among other things, the unconstitutionality of such laws. This echoes across all the Acts of Parliament and Bills challenged successfully before the courts on grounds of their unconstitutionality – a frequented ill by the People’s Palace.

In October 2020, the High Court of Kenya nullified an astounding 23 Acts that were passed by the National Assembly of Kenya, stipulating that the impugned Acts were in contravention of Articles 96, 109, 110, 11, 112 and 113 of the Constitution of Kenya, deeming them unconstitutional, null and void. Interestingly also, among the pieces of legislation affected then was the Finance Act, 2018. This led to a very costly outcome, with the norm thrown into play- that Wanjiku had to bear the costs. This has therefore been a pattern in existence for a long time, with no lessons taken up by the House.

The question would then be – Is there a solution to this? Are there structures in place that could remedy such occurrences? If so, why are they not being utilised?

In a discussion with Mzalendo Trust, on the Mzalendo Podcast – Mr. Philip Nyakundi, an Advocate of the High Court of Kenya and a policy expert, highlighted that in the law-making process, there is a stage called, the pre-publication stage, where among other things, the constitutionality of a proposed Bill is looked into. During this stage, the Bill is analysed against the provisions of the Constitution and a determination is made on whether it is within the purview of the apex law or if any changes are to be made. This is an available anecdote to the woos of not only the House but also the common mwananchi as it would solve the back and forth between the legislature and the judiciary.

A consistent pattern across such legislation is that they rarely capture the interests of the citizens of Kenya. In the famous ruling delivered on 26^th January 2024, in the case of National Assembly & 47 others v Okoiti and & 169 others, where the Court of Appeal barred the state from further deducting the Housing levy, the phrase ‘public interest’ was mentioned 26 times. Among other sentiments was that ‘public interest cannot lie in transient benefits or results of an unconstitutional action.’

Additionally, in the case of Attorney General v Matindi & 55 others, the Court of Appeal further halted the efforts to suspend orders declaring the appointment of Chief Administrative Secretaries (CAS) position, unconstitutional. In its ruling, the court stated that, “the offices were created in violation of the Constitution, we cannot fathom how the public can be compensated or how it can be comforting to tell the people of Kenya that, after all, service has been rendered to you, never mind it is service in violation of the Constitution. Where purported service is rendered in violation of the Constitution, it does not require rocket science to fathom that it is not legitimate service beneficial to the public. Service rendered in violation of the Constitution is no service at all in the eyes of the law.”

In the latter case, the government through the Majority Leader has instigated fresh efforts to establish among other positions, the positions of Chief Administrative Secretaries through the National Administration Laws (Amendment) Bill, 2023. Was the Pre-publication stage utilised? Are the proposed amendments within the purview of the Constitution of Kenya? These are questions that only time and the courts will answer. Unfortunately, so.

Posted by Loise Mwakamba on Feb. 23, 2024

Categories: public participation pre-publication unconstitutional