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House speakers Muturi, Lusaka take turf battles to court

By Kamau Muthoni | January 22nd 2021

National assembly speaker Justin Muturi during the Requiem service Hannah Mudavadi, mother of ANC Leader Musalia Mudavadi at the Friends Church, Ngong Road, Nairobi on January 7, 2021. [Elvis Ogina, Standard]

The rivalry between the Senate and National Assembly has played out before the court with house speakers taking on each other over the legislation process.

After the High Court, last year nullified 23 laws over National Assembly’s failure to consult Senate, Speaker Justin Muturi and the National Assembly filed an appeal urging the court to suspend the judgment.

He asserted that the court erred by finding among other laws the Cyber Crimes Act and Government Constituency Development Funds unconstitutional.

Senate Speaker Ken Lusaka, on the other hand, faulted Muturi, claiming among other things that the National Assembly deliberately suspended its business late last year to convince the court that there was a crisis. He urged the court to dismiss the application.

Senate Speaker Kenneth Lusaka. [Elvis Ogina, Standard]

At the same time, Lusaka claimed that Muturi, in a National Assembly’s sitting criticised judges for "causing confusion" and attached the Hansard to support his claim.

“The National Assembly has demonstrated open contempt for courts and has not come to court with clean hands... This contempt of court is clear from the following statement made on the floor of the National Assembly at its sitting on November 3, 2020,” Lusaka claimed in his affidavit.


Baseless argument

In a further reply, Muturi through the clerk of the National Assembly Michael Sialai accuses Lusaka of making scandalous and baseless allegations and wants the court to strike out parts of his affidavit and also expunge the Hansard.

Muturi argued that whatever is said on the floor of the house is privileged and cannot be produced in court as evidence. According to him, two paragraphs in Lusaka’s affidavit are calculated to cause embarrassment and deny the National Assembly a fair chance to put up its case.

“I further wish to state that these paragraphs are otherwise scandalous, oppressive and are calculated to embarrass the fair determination of this application. I, therefore, pray that paragraph 39-40 of Lusaka’s affidavit and exhibit KML-12 be struck out,” Sialai’s reply read in part.

The case stems from a ruling by Judges Jairus Ngaah, Anthony Ndungu and Teresia Matheka who declared that the National Assembly has no monopoly to unilaterally pass laws without seeking the concurrence of their counterparts in the Senate.

“It is mandatory for National Assembly Speaker to seek the concurrence of Senate speaker on Bills concerning counties. We find that the contested laws were illegally enacted without the concurrence of the two houses and declare them unconstitutional, null and void,” ruled the judges.

Among the laws they declared unconstitutional are the Appropriation Act 2019 the Finance Act which the Senators contested on account that it gives the national government exclusive authority to implement housing needs when it should be a preserve of the county governments.

The Kenya Coast Guard and Service Act which established an administration to manage the coastal region was also revoked and Tax Laws passed by MPs to enhance tax on homeownership and provide incentives to first time homeowners.

Other laws the judges struck out are the Public Trustees Act which sought to reduce the time taken to administer the estate of a deceased person, the Building Surveyors Act which is used to register surveyors and the Computer Misuse and Cybercrime Act intended to fight terrorism activities.

The Statute Law (Miscellaneous Amendment) Act which contained several changes to the management of government agencies, Equalization Fund Act, Health Act, Sacco Societies Act, Capital Markets Act, Sports Act, National Integration Act and the National Youth Service Act were also struck out.

Media practitioners and social media users were also a beneficiary of the invalidated laws after the judges declared the Computer Misuse and Cyber Crime Act which criminalises libel as unconstitutional.

As punishment for the National Assembly’s insistence in by-passing the Senate in passing bills, the judges declared Section 121 of the house’ standing orders as unconstitutional.

“None of the two speakers can unilaterally decide that a bill does not concern counties. The legislative bodies must discharge their duties in accordance with the constitution,” ruled the judges.

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