BY SAM ALFAN.
The Kenya Kwanza administration suffered a major blow on Friday after the High Court temporarily stopped President William Ruto’s maiden budget.
Justice Mugure Thande granted temporary orders barring the Treasury from implementing the Finance Act 2023, a few days after President Ruto assented the bill into law.
Busia Senator Omtatah, Michael Otieno, Benson Otieno, Blair Oigoro, Victor Okuna and Florence Lichoro sought the suspension of the Act, before it comes into effect on July 1.
The petitioners challenged the Act arguing that it is unconstitutional as it was enacted in violation of the Constitution and the Public Finance Management Act, and due to its contents.
The court heard that the entire Finance Bill 2023, which birthed the Finance Act 2023, was illegal from the start and could not be cured in any way whatsoever for having been processed or considered in a manner that violated express provisions of Article 110(3) of the Constitution.
“It is a fact that cannot be controverted that the Bill was not subjected to the preliminary but mandatory concurrence of the two Speakers of Parliament which is required under Article 110(3) of the Constitution,” Omtatah told the court.
The Busia senator argued that superior courts have interpreted Article 110(3) of the Constitution, specifically the legislative functions of the National Assembly and Senate, and held that the concurrence of the Speakers of the National Assembly and Senate is a mandatory preliminary step in the legislative process.
He further told the court that it is a mandatory condition precedent pursuant to Article 110(3) of the Constitution, that, before a Bill can be introduced for consideration in the originating House, a Speaker of one House of Parliament must first seek the concurrence of the Speaker of National Assembly as to whether the Bill in issue is
a Bill concerning county governments.
Omtatah says the failure to submit a Bill to the said constitutional requirement on concurrence is fatal and cannot be cured later in any way.
“Section 40(1) of the PFM Act, 2012 provides that each financial year, the Cabinet Secretary shall, with the approval of the Cabinet, make a public pronouncement of the budget policy highlights and revenue-raising measures for the national government and section 40(3) of the PFM Act, 2012,” he says.
He says the Finance Bill was not presented as provided in Section 40(3) of the PFM Act, 2012 and section 41 of the PFM Act, 2012.
“This Court ought to suspend the Finance Act, 2023 in its entirety until it determines their constitutional and legal validity before it allows them to be imposed on Kenyans,” said Omtatah.
He added that the clearly monumental procedural infractions stated above, which could not and cannot be cured, the Finance Bill 2023 as originally drafted and introduced in the National Assembly, and the resultant Finance Act 2023, are unconstitutional and, therefore, invalid null and void ab initio.
