On 29th October 2020, the High Court, in a Judgement delivered by Jairus Ngaah, Anthony Ndung’u Kimani and Teresia Mumbua Matheka, JJ, declared 23 Acts of Parliament unconstitutional for being passed by the National Assembly without Senate’s participation.
The brief facts of the Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another; Attorney General & 7 others (Interested Parties) [2020] eKLR as reported by Kenya Law was as follows:
On diverse dates between the years 2017 and 2019, the National Assembly passed a total of 23 Acts of Parliament without the participation of the Senate and unilaterally forwarded 15 others to the Senate without complying with article 110(3) of the Constitution of Kenya, 2010, (Constitution). Aggrieved, the Senate in July 2019 filed the instant petition seeking, amongst others, the nullification of the Acts passed or amended by the National Assembly without reference to the Senate. The Council of County Governors also filed its own petition contending that the amendments by the National Assembly to section 4 of the Kenya Medical Supplies Authority Act, No. 20 of 2013 without regard to the Senate was unconstitutional and asked for the nullification of those amendments. Owing to similarity of constitutional issues between the two petitions, the petition by the Council of County Governors was consolidated with the instant petition.
The Speaker of the Senate had sought the Supreme Court’s opinion on the import of article 110(3) of the Constitution in Supreme Court Advisory Opinion No. 2 of 2013, In the matter of the Speaker of the Senate and another v Attorney General and 4 others [2013] eKLR (Reference No. 2 of 2013). In that Advisory Opinion, the Supreme Court held that the consideration of Bills to be passed by Parliament was not a unilateral exercise exclusive to either of the two Houses; rather, the Speakers of both houses had to engage and consult and to the extent that the Speaker of the National Assembly had proceeded in passing the Division of Revenue Bill without such consultation or engagement, he had acted against the Constitution and in particular, article 110(3).
The issues, as summarised by Kenya Law, were as follows:
- Whether when filing a constitutional petition outside article 22 of the Constitution on enforcement of the Bill of Rights, a party could invoke the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
- Whether the failure of an advocate to file a notice of appointment in a constitutional petition was fatal.
- What was the rationale and when could the doctrine of res judicata be applied?
- What were the principles to be considered for the application of the doctrine of sub judice?
- What were the factors to be considered by both the Speakers of the National Assembly and the Senate in determining the nature of a Bill.
- What was the process through which any disagreement as to the nature of a Bill should be settled by the National Assembly and the Senate?
- Whether a Supreme Court’s advisory opinion was binding.
- Whether a speaker of a House of Parliament had to first seek the concurrence of the speaker of the other House of Parliament as to whether a Bill was one that concerned counties, and if it was, whether it was a special or an ordinary Bill, before the Bill could be introduced for consideration in the originating House.
- Whether it was mandatory for any Bill published by either House of Parliament to be subjected to a joint concurrence process to determine if it was a special or ordinary Bill and whether such determination was dependent on a question arising as to whether the Bill concerned counties.
- Whether standing order 121 of the National Assembly Standing Orders was unconstitutional for excluding the Speaker of the Senate from the exercise of determination of whether a Bill was a Bill concerned county governments and if so whether it was an ordinary or special Bill.
- Whether standing orders 143(2) to (6) of the National Assembly Standing Orders which gave the Speaker of the National Assembly powers to determine whether Bills originating from the Senate were money Bills, were inconsistent with the legislative process of Bills concerning counties and therefore void.
The Court made the following orders (to be found in paragraph 140 of the Judgement):
140. For the present purposes, the inevitable conclusion that we have to come to is that the Petition is merited and it is hereby allowed: accordingly, we make the following orders;i. A Declaration be and is hereby issued that pursuant to Article 110 (3) of the Constitution, a Speaker of a House of Parliament must first seek the concurrence of the Speaker of the other House of Parliament, as to whether a bill is one that concerns counties, and if it is, whether it is a special or an ordinary bill, before the bill can be introduced for consideration in the originating House.
ii. A Declaration be and is hereby issued that it is mandatory and a condition precedent for any bill that is published by either House to be subjected to a concurrence process to determine in terms of Article 110 (3) of the Constitution whether the Bill is special or an ordinary bill and that such determination is not dependent on “a question arising” as to whether the Bill is one that concerns Counties;
iii. A Declaration be and is hereby issued that the provisions of Article 110 (3) of the Constitution are couched in mandatory terms and is a condition precedent before any House of Parliament can consider a bill;
iv. A Declaration be and is hereby issued that pursuant to Article 110 (3) of the Constitution, one Speaker cannot unilaterally make a decision as to whether the Bill does or does not concern counties or whether a question as to whether the Bill is one that concerns counties does or does not arise;
v. An order be and is hereby issued ordering the immediate cessation of consideration of all bills that are pending before either House, and for which joint concurrence by the Speakers of both Houses as to whether the bills concern counties, has not been demonstrated to allow for such Bills to be subjected to the mandatory joint concurrence process contemplated under Article 110 (3) of the Constitution;
vi. A Declaration be and is hereby issued that any Bill or delegated legislation that provides for, or touches on, mandate or powers of Parliamentary Service Commission must be considered by the Senate as it directly affects the Senate’s ability to undertake its constitutional mandate including its ability to consider bills that affect counties;
vii. A declaration be and is hereby issued that the underlisted Acts passed by the National Assembly are in contravention of Articles 96, 109, 110, 111, 112 and 113 of the Constitution and are therefore unconstitutional thus null and void;
i. The Public Trustee (Amendment) Act, No. 6 of the 2018
ii. The Building Surveyors Act, 2018, No. 19 of 2018
iii. The Computer Misuse and Cybercrime, Act, No. 5 of 2018
iv. The Statute Law (Miscellaneous Amendment Act), No. 4 of 2018
v. The Kenya Coast Guard Service Act. No. 11 of 2018
vi. The Tax Laws (Amendments) Act, No. 9 of 2018
vii. The Statute Law (Miscellaneous Amendments) Act, No. 18 of 2018
viii. The Supplementary Appropriation Act, No. 2 of 2018;
ix. The Equalization Fund Appropriation Act No. 3 of 2018
x. The Sacco Societies (Amendment) Act, 2018 No. 16 of 2018
xi. The Finance Act, No. 10 of 2018
xii. The Appropriations Act, No. 7 of 2018
xiii. The Capital Markets (Amendments) Act, No. 15 of 2018
xiv. The National Youth Service Act No. 17 of 2018
xv. The Supplementary Appropriations Act, No. 13 of 2018
xvi. The Health Laws (Amendment)Act, No. of 5 of 2019
xvii. The Sports (Amendment) Act, No. 7 of 2019
xviii. The National Government Constituency Development Fund Act, 2015
xix. The National Cohesion and Integration (Amendment) Act, 2019
xx. The Statute law (Miscellaneous Amendment) Act, 2019
xxi. The Supplementary Appropriation Act, No. 9 of 2019
xxii. The Appropriations Act, 2019
xxiii. The Insurance (Amendment) Act, 2019
viii. A declaration be and is hereby issued that the amendments to Section 4 of the Kenya Medical Supplies Act is contrary to Articles 6, 10, 43(1), 46(1) 73(1), 110(3), 189(1), and 227(1) of the Constitution and is therefore unconstitutional thus null and void.
ix. A declaration be and is hereby issued that the provisions of Standing Order 121(2) of the National Assembly Standing Orders is inconsistent with Articles 109(4), 110 to 113, 122 and 123 of the Constitution and is therefore null and void.
x. declaration be and is hereby issued that Standing Order 143(2) to (6) of the National Assembly Standing Orders is inconsistent with Articles 109(4), 110 to 113, 122 and 123 of the Constitution and is therefore null and void.
xi. A Declaration be and is hereby issued that where the Speakers of the House concur that a Bill is one that concerns Counties, pursuant to Article 109(4), 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.
xii. A Declaration be and is hereby issued that an Act of Parliament constitutes an Act that has complied with the legislative process required of both Houses by participation of both Speakers as required under Article 110 (3) of the Constitution and where the Bill concerns Counties by consideration in the Senate as required in the Constitution
The National Assembly appealed the High Court decision at the Court of Appeal. In a Judgment delivered on 19th November, 2021 (CIVIL APPEAL E084 OF 2021 (1) ), A.K. Murgor, P. Nyamweya, and J. Lesiit, JJA. the Court made the following orders at paragraph 285:
1) We set aside orders (i), (ii), (iii), (iv), (v), and (vi) of the judgment by the High Court dated 29th October 2020, delivered in Nairobi H.C Petition No. 284 of 2019 as consolidated with Nairobi H.C. Petition No. 353 of 2019.
2) We set aside the declaration by the High Court that the underlisted Acts passed by the National Assembly are in contravention of Articles 96, 109, 110, 111, 112 and 113 of the Constitution and are therefore unconstitutional thus null and void;
i. The Public Trustee (Amendment) Act, No. 6 of the 2018
ii. The Building Surveyors Act, 2018, No. 19 of 2018
iii. The Computer Misuse and Cybercrime, Act, No. 5 of 2018
iv. The Statute Law (Miscellaneous Amendment Act), No. 4 of 2018v. The Kenya Coast Guard Service Act. No. 11 of 2018
vi. The Tax Laws (Amendments) Act, No. 9 of 2018
vii. The Statute Law (Miscellaneous Amendments) Act, No. 18 of 2018
viii. The Supplementary Appropriation Act, No. 2 of 2018;
xi. The Finance Act, No. 10 of 2018
xii. The Appropriations Act, No. 7 of 2018
xiii. The Capital Markets (Amendments) Act, No. 15 of 2018
xiv. The National Youth Service Act No. 17 of 2018
xv. The Supplementary Appropriations Act, No. 13 of 2018
xvi. The Health Laws (Amendment)Act, No. of 5 of 2019, save for the amendments made to sections 3 and 4 of the Kenya Medical Supplies Authority Act
xvii. The Sports (Amendment) Act, No. 7 of 2019
xviii. The National Government Constituency Development Fund Act, 2015
xix. The National Cohesion and Integration (Amendment) Act, 2019
xx. The Statute law (Miscellaneous Amendment) Act, 2019
xxi. The Supplementary Appropriation Act, No. 9 of 2019
xxii. The Appropriations Act, 2019
xxiii. The Insurance (Amendment) Act, 20193) A Declaration be and is hereby issued that the concurrence process in Article 110(3) only applies to all Bills concerning counties within the meaning of Articles 109 to 114 of the Constitution, and as interpreted in this judgment.
4) We hereby uphold the Declaration by the High Court that where the Speakers of the House concur that a Bill is one that concerns Counties, pursuant to Article 109(4), 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.
5) We hereby uphold the Declaration by the High Court that any Bill or delegated legislation that provides for, or touches on, mandate or powers of Parliamentary Service Commission must be considered by the Senate as it directly affects the Senate’s ability to undertake its constitutional mandate including its ability to consider bills that affect counties;
6) We hereby uphold the Declaration by the High Court that the underlisted Acts passed by the National Assembly are in contravention of Articles 96, 109, 110, 111, 112 and 113 of the Constitution and are therefore unconstitutional thus null and void;
i. The Equalization Fund Appropriation Act No. 3 of 2018
ii. The Sacco Societies (Amendment) Act, 2018 No. 16 of 2018.
iii. The amendments made to section 3 and 4 of the Kenya Medical Supplies Authority Act by the Health Laws (Amendment)Act, No. of 5 of 20197) We hereby uphold the Declaration by the High Court that that the amendments to Section 4 of the Kenya Medical Supplies Act is contrary to Articles 6, 10, 43(1), 46(1) 73(1), 110(3), 189(1), and 227(1) of the Constitution and is therefore unconstitutional thus null and void.
8) We hereby uphold the Declaration by the High Court that the provisions of Standing Order 121(2) of the National Assembly Standing Orders is inconsistent with Articles 109(4) and 110 to 113 of the Constitution and is therefore null and void.
9) We hereby remit the Appellants’ Cross Petition filed in Nairobi H.C Constitutional Petition No. 284 of 2019 back to the High Court for 136 consideration and determination of Prayers nos. 7 to 22 of the Cross Petition.
The Speaker of the National Assembly made the following Communication from the Chair on 23rd November 2021 in response to the Judgment and how it affected the legislative function of the National Assembly.
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