BY SAM ALFAN.
Busia Senator Okiyah Omtatah wants the High Court to stop the ongoing public participation on the Finance Bill 2024.
In a case filed under certificate of urgency, Omtatah further wants the court to certify that the petition raises substantial questions of law and the matter be referred to Chief Justice Martha Koome for appointment of a bench to determine the petition.
“This matter is extremely urgent because the Finance Bill 2024, which was published in Nairobi on 9th May, 2024, in a Special Issue of the Kenya Gazette (Supplement No. 102 of 2024), is already undergoing public participation as per the National Assembly’s public participation advert dated 15th May, 2024,” he said.
The legislator said if the court does not intervene and suspend the process, both the application and the petition will be lost because the unlawful and unconstitutional Bill will be approved by Parliament and signed into law by the President to become the Finance Act, 2024.
“Unless this court intervenes, there is no remedy when the legislative process is complete and the unlawful conduct in the course of the legislative process will by then have achieved its object especially because every statute enjoys presumption of constitutionality,” says Omtatah.
The Busia senator said the Bill has been tabled prematurely because there is no approved fiscal framework for the Financial Year 2024/2025, which it is supposed to implement.
He said the approved fiscal framework will only come to life with the enactment, with public participation, of the Appropriation Act. 2024.
“The resulting harm would be substantial and challenging to reverse, considering economic implications and potential arguments that government operations could be disrupted,” he said.
Omtatah said it is only after Parliament has procedurally enacted the Appropriation Act, 2024, that the Finance Bill, 2024, that it can lawfully and constitutionally be introduced in the National Assembly.
“So, in essence there is no Finance Bill, 2024, without the fiscal framework contained in the Appropriations Act, 2024. 6. Whereas the Appropriations Bill, 2024, has not been published, considered with public participation, and enacted into law, the Finance Bill, 2024 (National Assembly Bills No. 30) (hereinafter, “the Bill”) which, among others, proposes a raft of tax changes geared towards raising revenue to finance the national government’s budget for the financial year 2023/2024, was published in Nairobi on 9th May. 2024, in a Special Issue of the Kenya Gazette (Supplement No. 102 of 2024),” he says.
He pointed out that, in passing the Finance Bill, Section 39A(4)(a) of the Public Finance Management Act (Cap. 412A) (PFMA) requires the National Assembly to ensure that the total amount of revenue raised is consistent with the approved fiscal framework and reiterate that, currently, there is no approved fiscal framework for the FY 2024/2025.
He adds that the approved fiscal framework for FY 2024/2025 will come into effect with the signing into law of the Appropriations Bill, 2024, to become the Appropriations Act, 2024.
“It is both unlawful and unconstitutional that the Finance Bill, 2024 is based on the FY 2024/2025 budget estimates of revenue, which were submitted to the National Assembly on 30th April, 2024, by the Cabinet Secretary,” says the senator.
