Senate stokes sibling rivalry with lower House over the Finance Act

Legislators during the State of te Nation Address at Parliament buildings on November 9, 2023. [Elvis Ogina, Standard]

Rivalry between the Senate and the National Assembly has now emerged over the passing of the Finance Act, 2023.

Senate has formally notified the court that it will appeal the judgement by justices David Manjanja, Christine Meoli and Lawrence Mugambi.

The move reopens the case pitting Busia Senator Okiya Omtatah, Azimio la Umoja and the Law Society of Kenya (LSK), among others, against the Parliament, Attorney General Justin Muturi, and Treasury Cabinet Secretary Njuguna Ndung’u.

At the heart of the Senate’s appeal is whether the MPs ought to seek concurrence before processing and debating the Finance Act.

Although in the High Court, Senate Speaker Amason Kingi had claimed that his National Assembly counterpart Moses Wetang’ula had sought consensus, the three judges found that it was not necessary.

Okiya had asked the court to summon Kingi, insisting that the National Assembly never sought concurrence.

In the notice, the Senate appears to shift gears, arguing that it was aggrieved by the court that there was no need for concurrence.

To justify this stand, lawyer Cecil Miller says his client would also seek to reverse the finding by the High Court that failure by the Speaker of the National Assembly to seek concurrence from his Senate counterpart before the introduction of the Finance Bill does not render the Act, upon passing, unconstitutional.

Crippled Senate

Senators also fault the judges’ failure to hold that they have a say in how much money constitutional commissions and independent offices get in the national budget.

They say the Senate has a role in considering estimates submitted by the Parliamentary Service Commission (PSC).

According to Miller, the judgement had crippled Senate’s ability to conduct its mandate. He singles out six issues which the Senate will seek the Court of Appeal’s interpretation.

Already, the Parliamentarians are involved in another court battle over concurrence before the Supreme Court. The apex court gave the two Houses a final chance to settle the long-running sibling rivalry.

Supreme Court judges initially gave Kingi and Wetang’ula until September 17 to submit a written statement that a consultative forum they have formed had brokered a deal on how the two Houses would be seeking concurrence when passing laws.

When the case came for a mention, the Solicitor General Shadrack Mose informed the court that the Prime Cabinet Secretary Musalia Mudavadi was in negotiations to broker a deal.

Mose also said that the Houses of Parliament (Bicameral Relations) Bill, 2023, would be presented to Parliament upon resumption to streamline the roles of the Senate and National Assembly.

Further, he stated that the Senate had drafted the Determination of the Nature of a Bill (Procedure) Bill, which was also meant to cure the issue.

He was of the view that once enacted and assented to by the President, the two laws would settle the case and also mediate any future conflicts between the two Houses of Parliament.

Laws invalidated

Initially, the Senate lawyer Okong’o Omogeni accused the National Assembly of delay tactics. He said MPs had gone ahead to pass the Finance Act and the Water Act without seeking consensus.

According to the lawyer, Kingi wrote to Wetang’ula, giving him a 21-day ultimatum to have the issues raised settled.

Wetang’ula, the court heard, wrote back to Kingi asking for 60 days. Omogeni asked the top court to stick to the 21 days.

“We had a discussion and we agreed that the court could hear us after 21 days and in the event we are not able to agree, we proceed for a hearing. It has been a tough long-drawn battle. If parties cannot agree on the interpretation of the constitution,” said Omogeni.

He stated that the discussions were to start in February. However, he said, the National Assembly has been dragging its feet.

At the heart of the battle between the Senate and the National Assembly is the validity of 23 laws, which Senators accuse Members of the National Assembly of passing without concurrence.

The High Court in Nairobi had annulled the Appropriation Act, 2019, and Finance Act on account that they gave 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.

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, and the Building Surveyors Act, which is used to register surveyors.

The Statute Law (Miscellaneous Amendment) Act contained several changes to the management of government agencies, the 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 a beneficiary of the invalidated laws after the judges declared the Computer Misuse and Cyber Crime Act, which criminalizes libel, as unconstitutional.

As punishment for the National Assembly, the judges declared Section 121 of the House’s standing orders as unconstitutional.

Justices Jairus Ngaah, Anthony Ndungu and Teresia Matheka declared that the National Assembly has no monopoly to unilaterally pass laws.

Aggrieved, the then National Assembly Speaker Justin Muturi moved to the Court of Appeal, arguing that the High Court erred by failing to consider the roles of the two houses of parliament.

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