The Supreme Court of Kenya recently overturned a decision by the Court of Appeal that had declared the Finance Act 2023 unconstitutional. The legislation, initially signed into law by President William Ruto on June 26, 2023, faced several legal challenges concerning its validity, leading to a contentious judicial review process.
The debate centers around 11 petitions filed in the High Court, which challenged the Finance Act on several grounds. These included the controversial housing levy and the legislative process itself, notably citing inadequate public participation and the disregard of most public input. The High Court originally found sections 76, 78, 84, 87, 88, and 89 to be unconstitutional and issued an order prohibiting the collection of the housing levy, a key component of the Act.
The Court of Appeal subsequently affirmed the unconstitutionality of sections 76 and 78. Additionally, it ruled that section 21, introduced after the public participation phase, violated the Constitution due to a lack of fresh public engagement. This judgement rendered the entire Finance Act unconstitutional according to the appellate court’s decision.
Upon review, the Supreme Court reversed the earlier ruling, maintaining that while sections 76, 78, and 87 were indeed unconstitutional as they were “neither incidental nor directly connected to the money bill,” the procedures adhered to by parliament in terms of public participation were adequate given the time-sensitive nature of the finance bill. The Court asserted that the National Assembly had met the requirements to consider public feedback on the bill.
The ruling stirred reactions, notably from Faith Odhiambo, president of the Law Society of Kenya, who publicly expressed her disagreement. Odhiambo took to social media to comment on the court’s approach but acknowledged the recommendation for parliamentary statute to better guide public participation in legislative processes.
In its judgment, the Supreme Court underscored the necessity for parliament to ensure meaningful public participation in accordance with Article 118 of the Kenyan Constitution. It emphasized that citizens should have access to all phases of a bill’s creation, with legislators considering public feedback comprehensively.
For more details on this legal development, the full article can be read on JURIST.