BY SAM ALFAN.
The Supreme Court has declined to suspend a judgement quashing Finance Act, 2023 as sought by Treasury.
Instead, the apex court certified the case as urgent and directed the respondents in the case and await a ruling date.
In a judgement last week, a bench of three judges of the court of appeal quashed the Finance Act, 2023 for being unconstitutional as some sections were introduced without subjecting them to public participation.
The National Treasury was directed to serve the application and submissions to Senator Okiyah Omtatah, Law Society of Kenya and other 35 respondents.
“The decision of the Court of Appeal dated 31 July 2024 be set aside in its entirety and be substituted with an order setting aside the part of the High Court judgement of 28 November 2023 declaring that Section 76, 77, 78, 84, 87, 88 and 89 of the Finance Act, 2023 unconstitutional,” saught Treasury.
Treasury faults Court of Appeal in holding that the High Court had abdicated its jurisdiction to test the constitutionality of anything when the High Court had held that the petitioners had not demonstrated how the amendments to the various tax Acts affect specific provisions of the Constitution.
“The Court of Appeal erred in holding that sections 24 (c), 44, 47 (a) (v), 100 and 101 of the Finance Act, 2023 did not go through public participation and are therefore unconstitutional,” says National Treasury.
Treasury further fault the decision by three appellate court judges in holding that Parliament is obligated to give reasons for rejecting or adopting the proposals received after conducting public participation and that failure to adhere to this offends Article 10 (1) and (2) of the Constitution.
The government says the bench erred in holding that the estimates of revenue were not included in the Appropriation Bill and the Appropriation Act, 2023 and that enactment of the Finance Act, 2023 violated Articles 220 (1) (a) and 221 of the Constitution as read with sections 37, 39A, and 40 of the Public Finance Management Act.
“The Court of Appeal erred in finding that the question of the constitutionality of section 84 of the Finance Act, 2023 is moot,” argues the National Treasury.
The government now wants the Supreme Court to determine whether fresh public participation should be undertaken where Parliament amends provisions of a Bill or introduce new provisions in a Bill after considering the comments given during public participation.
Further that on whether an Act of Parliament unconstitutional solely because Parliament failed to provide reasons for adopting or rejecting any proposals received from members of the public during public participation process.
