The Supreme Court's Ruling Effect On Public Participation In Making Laws
The Supreme Court of Kenya recently addressed the constitutionality of the Finance Act (2023) in a case that revolved around public participation and legislative procedures. The Court overturned a Court of Appeal ruling that had declared the entire Act unconstitutional due to alleged violations in its enactment process, including insufficient public participation and the introduction of amendments without subsequent consultation.
The key issues included whether amendments to a bill after initial public participation required fresh consultations, whether Parliament is obligated to provide reasons for accepting or rejecting public input and whether the Finance Act qualified as a money bill exempt from certain legislative requirements.
The following points highlight the Supreme Court’s ruling:
- Sufficient Public Participation: The Supreme Court found that adequate public participation had been conducted during the legislative process for the Finance Act (2023). This was a central argument in the appeals. The Act was challenged on grounds that it didn’t sufficiently incorporate public input, particularly regarding the new provisions that came in late in the legislative process.
- Legislative Process Validity: The Court emphasized that while it was desirable for Parliament to provide detailed reasons for accepting or rejecting public comments, failure to do that didn’t inherently invalidate the legislative process. The ruling clarified that there is no explicit constitutional requirement for such explanations during legislative actions.
- Constitutional Framework: The Supreme Court’s decision reiterated that any declaration of unconstitutionality must be based on clear evidence of procedural violations. In this case, the Court concluded that the National Assembly has adhered to constitutional requirements concerning public participation, upholding the validity of the Finance Act (2023)
- Economic Stability Concerns: The Supreme Court acknowledged that nullifying the Finance Act (2023) could lead to a significant shortfall in revenue, potentially harming public services and threatening economic stability. The government has argued that blocking the Act would disrupt operations and create a constitutional crisis due to a reliance on outdated revenue measures from previous Finance Acts.
- Money Bill: The Court found that the Finance Act (2023) qualified as a money bill under Article 114 of the Constitution. This means that it is exempted from certain legislative processes that would be required for normal bills. This classification reinforced the legality of its enactment and underscored the procedural correctness followed by Parliament.
Understanding Money Bills:
A “Money Bill” is defined in Article 114 of the Constitution as a Bill that deals exclusively with matters relating to taxation, public expenditure and borrowing. This classification is important because it determines how such Bills are treated in the legislative process.
Money Bills can only originate in the National Assembly as per Article 109(5) of the Constitution. The Senate does not have a role in amending or debating money bills, but they may express its views on related matters, as long as the National Assembly’s primary role isn’t being impeded.
The classification as a money bill allows for expedited consideration and enactment. This is particularly important for finance related legislation, which often needs to be passed quickly to ensure government operations and fiscal stability. Finance Bill (2023) was classified as a Money Bill, meaning it was exempt from requiring Senate Approval or extensive public consultations which would have delayed its passage.
The Supreme Court ruling allows the government to proceed with implementing the Finance Act. It has set a precedent regarding how public participation is interpreted in legislative processes in Kenya. It highlights ongoing debates about the sufficiency and quality of public engagement in law making. The Court’s stance is that while public participation remains a critical component of legislative legitimacy, there are standards as to what constitutes adequate engagement, especially in the context of a money bill, which requires expediency.
