Court faults 23 bills for lacking Senate consent

Friday, October 30th, 2020 00:00 |
A section of senators at the Milimani Law Courts after filing a petition against the National Assembly for enactment of bills without their input. Photo/PD/SAMUEL KARIUKI

Bernice Mbugua @BerniceMuhindi

 The High Court has declared 23 laws that were passed by National Assembly without the input of the Senate unconstitutional.

A three-judge bench yesterday nullified the said Acts, saying the National Assembly must be in concurrence with the Senate in considering whether a bill is one that concerns counties.

 “A declaration is hereby issued that the said Acts passed by the National Assembly are unconstitutional, null and void for violation of Articles 96, 109, 110, 111, 112 and 113 of the constitution,” ruled the Judges.

According to justices Jairus Ngaah, Anthony Ndung’u and Teresia Matheka, one Speaker cannot unilaterally make a decision as to whether a Bill does or does not concern counties.

“A declaration be and is hereby issued that where the Speakers of the House concur that a Bill is one that concerns counties, the Bill must be passed in accordance with Articles 110 to 113, 122 and 123 of the Constitution and the Standing Orders of both Houses and is not subject to Article 114 of the Constitution,” ruled the judges.

The petition was filed by the Senate and the Council of Governors over the said laws passed by the National Assembly on devolution without the Senate’s input. 

Kenya Medical Supplies Authority  (Kemsa), Katiba Institute and three other parties were enjoined in the suit as interested parties. Some of the bills affected are Computer Cyber Crime Act, Finance Act 2018, the Supplementary Appropriation Act, and the Health Laws.

Health Laws made changes to all laws touching on health in Kenya. It gave exclusive rights to Kemsa to supply medicine and medical equipment to all 47 counties.

Court, however, ruled that the amendment to Section Four of the Kenya Medical Supplies Act is contrary to the law, and is therefore, unconstitutional thus null and void.

The Council of Governors had argued that by restricting county governments to procuring drugs only from Kemsa, the provision of health services in would be jeopardised because of the authority’s inability to meet their demands.

Huge loss  

The judges, however, suspended their ruling for nine months to allow the National Assembly to comply with the provisions of Article 110 of the Constitution, failure to which the said Acts will stand nullified.

The National Assembly had argued that nullifying the acts would be a huge loss on the State considering the costs involved.

Judges noted that it was not the proper forum to ask that question, saying the National Assembly should have paused and asked itself the same question before it set out to enact laws contrary to the express provisions of the Constitution.

“It would have appreciated the grave consequences that were bound to arise from its actions.

As a court we can do no more or less than what we are duty bound, which is to declare the impugned laws what they are-a nullity,” ruled the judges.     

Senate on its part contended that in acting the way it did, the National Assembly failed to comply with Articles 94, 96, 109, 110-113 of the Constitution.

It argued that the National Assembly’s conduct was a threat to the devolution system of governance enshrined in the Constitution.

The impugned Acts are; The Public Trustee Amendment Act No 6 of 2018, The Building Surveyors Act of 2018, The Statute law miscellaneous Amendment Act 2018, The Kenya Coast Guard service Act 2018, The Tax Laws Amendment Act 2018,The Statute Law Miscellaneous Act 2018,The Equalisation Fund Appropriation Act 2018 and The Sacco Society Amendment Act no 16 of 2018

Others are the Appropriations Act, No. 7 of 2018,The Capital Markets (Amendments) Act, No. 15 of 2018,The National Youth Service Act No. 17 of 2018, The Supplementary Appropriations Act, No. 13 of 2018, The Health Laws (Amendment)Act, No. of 5 of 2019, The Sports (Amendment) Act, No. 7 of 2019, The National Government Constituency Development Fund Act, 2015 among others. 

The Judges noted that the senate contention against the Standing Order was that the National Assembly has persistently declined to consider Bills originating from the Senate on the pretext that those Bills are Money Bills, which can only originate from the National Assembly.

“All we can say on this question is that Bills originating from the Senate are, like any other Bill, subject to the same legislative process outlined in Article 110 (3) of the Constitution and, for clarity, in Reference No. 2 of 2013; it is not up to the Speaker of the National Assembly to arrogate to himself the task of determining whether such Bills are Money Bills or not,” noted the Judges.

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