Fate of 23 laws in limbo as Speakers fail to meet

By Anthony Mwangi
Monday, July 26th, 2021 00:00 | 3 mins read
National Assembly Speaker Justin Muturi. Photo/PD/File

The fate of the Constituency Development Fund (CDF), the National Youth Service (NYS) and the Huduma Namba hangs in the balance following the end of the nine-month window given by the High Court to Parliament to regularise the laws establishing them. 

Hanging in the balance too, are all the taxes introduced in the National Assembly through the Finance Bill and which will stand nullified following the lapse of the nine months today.

People Daily learnt that as of yesterday, the Speakers of the two Houses, the National Assembly and the Senate had not convened a single meeting to regularise 23 pieces of legislation that had been unconstitutionally enacted by the former without the involvement of the latter as directed by High Court judge Jairus Ngaah last year.

 “We are properly guided and in the circumstances of this case, we shall suspend our orders nullifying the impugned Acts for a period of nine months from the date of this judgement within which period the respondents ought to have complied with the provisions of the constitution and regularised these Acts ,” read the orders issued by Justice Ngaah on October 29, last year.  

In 2018, a three-judge Bench had nullified 23 laws passed by the National Assembly without the input of the Senate declaring them unconstitutional.

In the ruling, the judges said the Senate’s role in legislation is not optional and that it was illegal for the National Assembly to ‘ignore’ it.

The bench, comprising Justices Ngaah, Anthony Ndung’u and Teresiah Matheka, said the passage of the 23 laws was contrary to the Constitution since a number of the laws related to counties and the devolution process.

Conservatory orders

Among the Acts that were nullified by the court included the Kenya Coast Guard Service Act, the National Youth Service Act, the National Government Constituency Development Fund Act, the Finance Act, 2018, the Tax Laws (Amendment) Act, 2018, the Equalisation Fund Appropriation Act and several other finance related legislations.

The National Assembly has since moved to the Court of Appeal to appeal the decision of the High Court though it has not obtained any conservatory orders setting aside Justice Ngaah’s ruling, leaving the fate of major initiatives in limbo.

“The Speakers have never met to discuss the matter as directed by the judges, not a single day,” said a top official at the Parliamentary Service Commission (PSC) who requested anonymity.

National Assembly Speaker Justin Muturi is out on an official visit to Turkey while his Senate counterpart Ken Lusaka remained non-committal on the matter, referring the writer to Muturi.

Kikuyu MP Kimani Ichung’wah, a former chairman of the Budget and Appropriation Committee at the National Assembly, said Parliament has no option but to comply with the court directives.

“Unless the National Assembly appeals to a higher court, the laws stand abolished,” he said.

A city lawyer Paul Elkington said the generality of judgment is that all the laws stand nullified if nothing has been done to rectify the anomaly. “The judgment does not require any interpretation; it is self-explanatory,” Elkington said.

The lapse of the nine-month window given by the High Court will have great implications on the government and Kenyans in general as the National Treasury will not be able to collect taxes which are imposed through the Finance Bill.

At risk of being invalidated is also the NGCDF Act, which means all the billions injected into the fund will have to be stopped.

The Fund allocates billions of shillings to the 290 constituencies for various development projects.

A senior official at the legal office of the National Assembly said the invalidation of the Kenya Coast Guard Service Act which establishes the Kenya Coast Guard Service will also be gravely affected.

The invalidation of the NYS Act will also see the abolishment of the NYS, which has provided voluntary work and educational programmes for many young people.

Erode gains 

The NYS and the Kenya Coast Guard Service are part of President Uhuru Kenyatta’s legacy projects, which if invalidated, will threaten the gains his administration has made.

Also at risk of being declared unconstitutional include the Finance Act, 2018 and the Tax Laws(Amendment) Act, 2018.

These Acts are the legal frameworks within which the National Treasury raised and collected taxes and thereafter appropriated billions of shillings to fund various national government development projects and recurrent. 

The implication of the invalidation of these laws is that all taxes collected during the 2018 and 2019 period were illegal.

The Finance Act, 2018 and the Tax Laws (Amendment) Act, 2018 will affect the funding of the Big Four Agenda including affordable housing and Universal Health Care.

In particular, the Finance Act, 2018 made provision for funding of UHC through payment of Excise duty at 16 per cent in respect of money transfer by cellular phone service providers and exemptions of goods used in construction and equipping of hospitals.

The Finance Act also established the National Housing Development Fund for affordable housing and was to be used by employees for financing the purchase of a first home.

On the other hand, the Tax Laws (Amendment) Act, 2018 also made provision for affordable housing relief.

Anthony Mwangi

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