THE THRESHOLD OF PUBLIC PARTICIPATION IN LAW MAKING IN KENYA: THE SUPREME COURT’S DECISION ON THE CONSTITUTIONALITY OF THE FINANCE ACT, 2023
Introduction
The enactment of the Finance Act, 2023 was marked by 11 petitions being filed at the High court challenging the constitutionality of the statute on grounds that there was no (adequate) public participation, and that due process was not followed in its enactment as required by the Constitution of Kenya 2010. The High Court in Okoiti & 6 Others vs. Cabinet Secretary for The National Treasury and Planning & 3 Others; CommissionerGeneral, Kenya Revenue Authority & 3 Others (Interested Parties) (Petitions Nos. E181, E211, E217, E219, E221, E227, E228, E232, E234, E237 & E254 of [2023] (Consolidated)) [2023] KEHC 25872 (KLR). rendered its judgment holding that there was sufficient public participation, and due process was followed in enactment of the statute. The High Court, however, declared sections 76, 78 and 84 of the Finance Act of 2023 as unconstitutional. This decision was challenged at the Court of Appeal in… The National Assembly & Another vs. Okiya Omtatah Okoiti & 55 Others, Civil Appeals Nos. E003, E016, E021, E049, E064 & E080 of 2024 (Consolidated), which declared the entire process leading to enactment of the statute and the statute itself as unconstitutional. Dissatisfied with the decision, an appeal was lodged at the Supreme Court.
On 29th October 2024. , the Supreme Court recently rendered its decision in Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others (Petition E031, E032 & E033 of 2024 (Consolidated)) [2024]. exploring a range of issues, key of which is was that of public participation and whether it was sufficient in the circumstances.
The Question of Public Participation
The question arose as to whether there was public participation in the enactment of the Finance Act, 2023; and whether the said public participation was sufficient. One of the questions before the apex court was whether there ought to have been a fresh round of public participation following amendments of certain provisions of the Act and addition of 14 new provisions that were absent during the initial public participation.
The Supreme Court found that public participation was sufficient, arguing that the new statutory provisions and amendments to the existing provisions were enacted in answer to the views of the public. The Court argued that to require the new and amended provisions to undergo a fresh round of public participation before their enactment would amount to transforming the legislative exercise into a merely performative act with no real significance. The Court further noted that the National Assembly was not required by the Constitution, any existing statute or even its own Standing Orders to have amendments to bills subjected to further public participation when they are merely meant to give effect to the proposals and suggestions arising out of public participation. The Court held that even where such amendments were substantive, the same were merely incidental to the objects and purpose of the Finance Bill, 2023 and therefore had already been deliberated upon.
In addition, the Court held that the Finance Bill, unlike other types of legislation, is time sensitive; accordingly, it is unreasonable and impractical to require provisions introduced as a result of public participation to undergo fresh public participation.
Conclusion
The Supreme Court, having found that the procedure leading up to the enactment of the Finance Act of 2023 was constitutional, overturned the decision of the Court of Appeal. However, sections 76 and 78 of the Act were declared to be unconstitutional; because they were neither incidental nor connected to the Bill in any way.
In the upshot, the Finance Act of 2023 shall continue being in force until a new one is enacted.
