Supreme Court voids 3 laws for lack of Senate validation » Capital News
NAIROBI, Kenya, Mar 21 — The Supreme Court has upheld the Court of Appeal’s decision declaring three statutes — including one regulating Saccos — unconstitutional due to the National Assembly’s failure to involve the Senate in their enactment.
The Supreme, in a decision on Friday, termed the exclusion of the Senate in the formulation of the Equalization Fund Appropriation Act, No. 3 of 2018; the Sacco Societies (Amendment) Act, No. 16 of 2018; and amendments to Sections 3 and 4 of the Kenya Medical Supplies Authority Act under the Health Laws (Amendment) Act, No. 5 of 2019, unlawful.
“The Senate ought to have been involved in the consideration and enactment of the Equalization Fund Appropriation Act, No. 3 of 2018. Therefore, the action of excluding the Senate from the enactment of this Act was unconstitutional,” the top court declared.
The Supreme Court further noted that the Constitution explicitly excludes the Senate from participating in the consideration and enactment of money bills.
It clarified that the exclusion of Article 114 from the scope of Article 96(2) demonstrates that the Senate does not participate in the enactment of money bills.
When a bill qualifies as a money bill, the Senate lacks the power to introduce or consider it.
The court also ruled that the Speakers of the National Assembly and the Senate must issue a joint resolution on whether a bill concerns counties — but only if the issue is raised.
Proactive approach
It emphasized that the concurrence process is not automatic and should be triggered only when there is a dispute or uncertainty regarding a bill’s impact on county governments.
However, a purposive interpretation of Article 110(3) of the Constitution suggests that such a determination can only be made if both Speakers are aware of, and informed about, all bills introduced in either House.
“To ensure a transparent and structured legislative process, the Speakers must take a proactive approach by notifying each other whenever a bill is introduced and sharing their stance on whether it concerns county governments. This step is crucial in upholding constitutional requirements and ensuring the proper legislative procedure is followed,” the court papers stated.
The Supreme Court affirmed that failure to adhere to this process renders legislation unconstitutional.
This judgment is expected to significantly impact future legislative procedures, reinforcing the Senate’s mandated role in the enactment of laws that affect devolved governments.
The ruling follows a petition by the Senate to the Court of Appeal, arguing that the National Assembly curtailed its legislative role in two significant ways during the 12th Parliament.
In the petition, the Senate argued that the National Assembly passed several bills — later enacted into law — without involving the Senate, in violation of the Constitution.
Additionally, the Senate claimed the National Assembly refused to consider several bills originating from the Senate, asserting that they were money bills which should have originated in the National Assembly.
The Senate subsequently filed a petition in the High Court, contending that 23 statutes passed by the National Assembly without its participation were unconstitutional.
The Senate also expressed concern that the Parliamentary Service Bill No. 6 of 2018 — which was pending at the time and originated from the National Assembly — would be passed into law without Senate consideration.