Why your Huduma Namba could be useless in 8 days
By Kamau Muthoni | July 21st 2021
Your Huduma Namba could be useless in eight days’ time. This follows National Assembly’s failure to rescue the law on which it is anchored as well as 22 other controversial statutes which the courts had directed be regularised in nine months.
Last year the High Court declared the statutes that the National Assembly passed without a consensus from the Senate were illegal but gave it a nine-month grace period to regularise their failure to which the court orders could kick in.
It emerged yesterday that the two Houses of Parliament have not sat or engaged. The orders by the High Court set July 29, 2021, as the deadline for the two Houses to meet and regularise the laws.
Yesterday, the Houses continued to read from different scripts. National Assembly’s lawyer Paul Muite asked Court of Appeal judges Asike Makhandia, Mumbi Ngugi and Agnes Murgor to extend the period, arguing that failure to do so will create a crisis in eight days.
However, Senate’s lawyer James Orengo opposed the application arguing that the lower House can only go back to the same court that issued the orders to plead its case on why the orders were impossible to accomplish.
The Senate accuses the National Assembly of forum shopping. It argued that another Court of Appeal judge bench had dismissed similar prayers.
Other laws that were struck out are the Finance Act, 2018, whose proposals were among the reasons several betting companies exited the market. The legislation required them to pay 20 per cent on winnings in addition to corporate taxes.
The future of the National Integrated Identity Management System, better known as Huduma Namba, is now in doubt as it was introduced under the Miscellaneous Amendment Act, 2018, which was also struck out.
Also invalidated is the Computer Misuse and Cyber Crime Act, 2018, which sought to protect online users from harassment, hacking and terrorism. However, there were fears it would be misused to restrict what bloggers and media houses could post online.
Judges Jairus Ngaah, Anthony Ndungu and Teresiah Matheka declared that the National Assembly has no monopoly to unilaterally pass laws without seeking the agreement of their counterparts in the Senate.
“It is mandatory for National Assembly Speaker to seek the concurrence of the 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.
MPs were also dealt a big blow in their exclusive control of the National Government Constituency Development Fund after the judges declared the NCDF Act unconstitutional for failing to involve senators in passing the proposals that grant them millions of shillings every financial year.
Yesterday, Katiba Institute lawyer Dudley Ochier told the Court of Appeal that the State has insisted on using the invalidated laws.
While opposing the National Assembly’s prayers, he argued that Kenyans are still being charged with cyber-crime.
“The National Assembly should go to High Court and explain why they have not complied with the court order and if satisfied, they can extend the period. The court was right to rule that the stay cannot be issued. The court instead said that the National Assembly must hold consultations as necessary to move forward in its business and its mandate,” he argued.
Pharmaceutical Society of Kenya’s lawyer Boniface Akusala argued that the National Assembly was inviting the court to perform a Messianic act. According to him, the High Court placed the 23 laws on life support in hope that in nine months, the two Houses would give them life.
He asserted that they are now dead and cannot be revived.
Attorney-General Kihara Kariuki supported National Assembly's argument saying that the court had powers to intervene.
Meanwhile, justices Mumbi Ngugi and Makhandia withdrew from the case. Justice Ngugi said she had handled the case while she was at the High Court while judge Makhandia said he knew both speakers away from their offices.
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