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CJ bench to determine legality of bills MPs passed without involving Senate

Friday July 19 2019

Senators, Milimani Law Courts

Senators marching to Milimani Law Courts in Nairobi on July 18, 2019 to challenge the constitutionality of a raft of bills passed by the National Assembly without their input. PHOTO | EVANS HABIL | NATION MEDIA GROUP 

MAUREEN KAKAH
By MAUREEN KAKAH
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IBRAHIM ORUKO
By IBRAHIM ORUKO
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The case in which the two Chambers of Parliament have dragged each other to court over the enactment of 24 bills without following due process will be determined by a bench of not less than three judges.

High Court judge Weldon Korir made the ruling Thursday while indicating that the case raised weighty issues that must be heard as a matter of priority.

He directed that the case file be forwarded to Chief Justice David Maraga to form a bench, and that the National Assembly be issued with copies of the case documents before the end of today.

The Senate, its Speaker Kenneth Lusaka, leaders of majority and minority Kipchumba Murkomen and James Orengo respectively, are listed as the petitioners in the case.

They have sued the National Assembly, and its Speaker, Mr Justin Muturi, with the Council of Governors and the Attorney-General listed as interested parties.

According to the Senate, the disputed bills were passed without their involvement, and yet a number of them relate to counties and devolution.

DISPUTED BILLS

While the Senate has three senior counsels, and 11 of its members are listed on record, the team is led by Mr Orengo and deputy Speaker Kithure Kindiki.

The courtroom was filled by senators after they marched to the Milimani courts from Parliament Thursday morning.

Mr Orengo told court that the actions of passing the disputed bills without the concurrence of the Senate has left the House voiceless.

“If institutions do not work in accordance with the law, anarchy can easily set in. This kind of violation of the Constitution is gross and susceptible to ridicule,” Mr Orengo said.

Mr Kindiki cited the danger of the country being thrown into a crisis by the Executive and Parliament actions.

“The Senate is an important institution with legislative budget making role,” Prof Kindiki said, stressing why it cannot be sidelined in lawmaking.

The Senate wants the court to declare that the disputed bills are unconstitutional.

CONSULTATION

Mr Muturi insists that he conducted proper consultation with Mr Lusaka before the disputed bills were introduced.

The case will be mentioned on July 29.

While pointing a finger at the National Assembly for deliberately disregarding the legislative process, the court heard that a number of the bills relate to the budget making process.

The bills include; the Public trustee amendment Act, the building Surveyors Act, Computer Misuse & Cybercrimes, the Statute law miscellaneous amendment no 4 as well as 18, the Kenya Coast Guard Services Act the tax laws and the Supplementary Appropriation Act.

Others are the equalisation funs appropriation Act, the Sacco societies act, the Finance Act, the Capital Market amendment Act, the National Youth Service Act, the Supplementary Appropriation Act, the health laws amendment Act and the Appropriation Act.

Also there is the sports amendment act, National government Constituency development fund act, the Insurance amendment Act and the National Government Constituency Development Fund.

The Senate wants the court to declare these disputed bills as unconstitutional.

UNCONSTITUTIONAL

They also want it declared that any bill that touches on the mandate or powers of the Parliamentary Service Commission must be considered by the Senate whether it is a special one or not before being introduced for consideration in the originating house.

They further want it declared that one Speaker cannot unilaterally make a decision as to whether a bill concerns counties or not and that bills passed without Speakers of both houses are unconstitutional.

The Senate has also asked the court to suspend the validity of these disputed bills so that National Assembly complies with the lawful procedure within a period of six months.

Additionally, the Senate wants the court to issue a declaration that where a bill deals with financial matters which affect functions of county governments, the Senate must be considered.

Outside the courtroom, Mr Murkomen said the Senate is committed to safeguarding devolution, protecting interest of Kenyans as well as that of counties and their governments.

He also expressed confidence that the court will heed the senator’s requests and deliver a decision that advances the rule of law and good governance in the country.

He pointed out that the suit seeks to ensure that devolution is not jeopardised through the law making process.

“This suit is for every Kenyan …. it is for everyone who believes in the power of devolution to promote equity, development and progress in this country. This case is us and the welfare of future generations,” he said.

REJECTED PLEAS

According to the Senators, since the inauguration of the 12th Parliament in 2013, Mr Muturi has rejected pleas from the Senate for a meeting to determine all the bills that have eventually been enacted hence the suit brings to the limelight the turf wars between the two houses.

The Senators recalled that in 2013, when the National Assembly was involved in sidelining them on legislative issues, they moved to the Supreme Court which reaffirmed the Senate’s role in the passage of bills.

But Senators said that there has been continued and persistent non-compliance with the directions of the Supreme Court by the National Assembly, a move that is now undermining devolution.

The case will be mentioned on July 29.

On Thursday, National Assembly Speaker Justin Muturi, who is listed as the first respondent, in the suit, insisted that he has conducted proper consultation with Mr Lusaka in line with the constitution before the contentious bills were introduced.

“The discussions I have with my counterpart in Senate have been very fruitful and nowhere have we disagreed,” he said.

“It is the power of an MP to make and unmake laws. As an MP, if you find a law is bad, you should try to amend it or repeal it. But if somebody makes a decision that rather than exercise their power, they want it to be exercised by others, that is their decision.”

“As of now I don’t want to prejudice anything that is before the courts. Courts are there for all Kenyans and anyone residing in the country to approach for resolution of disputes that may arise.”