BY SAM ALFAN.
Busia Senator Okiyah Omtatah has moved to court seeking restore the powers of the Clerk of Senate as the chief executive officer of the Parliamentary Service Commission.
Senator Omtatah wants the high court to suspend the Parliamentary Service Act (No. 22 of 2019), and Section 2(2)(d) of the Public Finance Management Act of 2012.
He wants the court to issue a temporary order restraining National Assembly, PSC, Director General Parliamentary joint services and Attorney General from proceeding to give effect to the amendment, pending the determination of the case.
“Unless the application is urgently heard and determined, the applicant and the people of Kenya will suffer great loss as the Constitution and the rule of law continue to be violated aor threatened in the irregular and unlawful actions of the moribund Parliamentary Service Commission,” Omtatah argues.
Justice Hedwig Ongundi directed National Assembly, PSC Director General, Parliamentary joint services and Attorney General to file their responses within 21 days.
Through two amendments to the Public Finance Management Act (No. 18 of 2012) in 2014 and in 2019, and through the Parliamentary Service Act (No. 22 of 2019), the National Assembly stripped the Clerk of the Senate the powers exclusively vested in him by Articles 127(3) and 250(12) of the Constitution as the Secretary and CEO of the Parliamentary Service Commission.
Omtatah says the amendments are unconstitutional and, therefore, invalid, null and void.
The Busia Senator says the clerk of the Senate is solely the secretary and the CEO of the PSC and as created in the Parliamentary Service Act , both the functions and office of the Parliamentary joint services is unconstitutional.
According to Omtatah, despite the very clear position taken in the judgements of the two Superior Courts, the Acts, which were enacted unconstitutionally, have not been revoked or voided and remain on Kenya’s statute books, and the PSC continues to enforce them.
The senator posits that the National Assembly cannot bypass the Constitutional threshold set for the enactment of laws and, to the extent that they do so, such laws are unconstitutional and void.
He pointe out that Article 2 (4) of the Constitution says a law that is inconsistent with this Constitution is void to the extent of its inconsistency.
He is also aggrieved that, over and above their unconstitutionality due to the manner they were enacted, the said Acts contain clearly unconstitutional provisions.
He further argue that the two laws are clearly unconstitutional because they were enacted without being considered by the Senate.
