Finance Act case back in court today

The legal battle over the controversial Finance Act, 2023 resumes today with the High Court expected to give directions on the substantive hearings after receiving responses from the Treasury Cabinet Secretary, the Speakers of the National Assembly and the Senate and other parties to the matter.

Yesterday, the petitioner, Busia Senator Okiya Omtatah, moved an application seeking to cross examine Senate Speaker Amason Kingi over the contents of a letter he wrote to his National Assembly counterpart Moses Wetang’ula protesting the exclusion of the Senate from the passing Finance Bill, only to renounce it later.

Omtatah, who has lodged a case challenging the legality of the Finance Act that saw the High Court issue temporary orders suspending its implementation, now wants Kingi summoned to court for cross-examination over alleged double standards on the issue.

In an application filed in court yesterday, Omtatah and his six co-petitioners want to cross-examine the Speaker of the Senate in order “to expose the errors, falsehoods, contradictions and improbabilities detailed in his affidavit filed in court on July 1, 2023.”

“The timelines apparent in the affidavit conflict with what really happened as regards the consideration of the Finance Bill, 2023,” Omtatah states.

Kingi, in court papers, states that the letter cited by Omtatah in the petition had already been withdrawn.
In his affidavit, the Speaker states that he wrote to his National Assembly counterpart withdrawing a letter dated June 15. The letter had said the Finance Bill would affect the county governments and needed to be discussed by both Houses.

Kingi claims he consulted with Wetang’ula and they resolved that the Bill did not concern county governments and was, therefore, considered only in the National Assembly in accordance with the Constitution.

Kingi says that the Act did not affect the county governments as alleged and was advised to withdraw the letter “illegally obtained and filed as evidence to mislead the court”.

“I received a letter dated May 2, 2023 from the Speaker of the National Assembly communicating the publication and consideration of the Finance Bill, 2023 in which the Speaker of National Assembly communicated that the bill does not concern county governments and sought that we jointly resolve the question whether the Finance Bill, 2023 is a bill concerning county government,” Kingi states in his affidavit.

“I responded to the Speaker of the National Assembly vide a letter dated May 3, 2023 in which I concurred with my counterpart that the Bill does not concern counties,” he adds.

Kingi thus argued that the court erred in issuing conservatory orders against the Finance Bill 2023, thus granting Omtatah’s prayers on barring the government from enforcing tax measures.

“I do acknowledge that the Speaker of the National Assembly indeed wrote to me with regard to the consideration of the Finance Bill 2023 vide your letter dated May 2, 2023. My letter dated June 15, 2023, was therefore sent in error, and I hereby withdraw it and repudiate its contents in its entirety,” Kingi says.
“The position, therefore, remains as set out in my letter dated May 3, 2023, in which I was in agreement that pursuant to the provisions of Articles 95(4)(c), 114,109(3), 209(1) and 221(1) of the Constitution, the Finance Bill (National Assembly Bills No.14 of 2023) is a Bill considered only by the National Assembly, does not concern county governments and does not affect the operations of the Senate,” noted the submission in part.

He has also accused the petitioners in the case of obtaining the letter between him and Wetang’ula improperly and producing it in court.
But Omtatah and his co-petitioners argued that the letter raises a question as to whether it is secretive and solely at the discretion of the two Speakers and at what point it is considered that the two Houses had concurred.
“Among the evidence the petitioners presented was a legally very sound letter from the Speaker of the Senate, expressing the Senate’s and his concern that the Bill had not undergone the mandatory concurrence of the two Speakers of Parliament as required by Article 110(3) of the Constitution,” reads court documents.
Omtatah and his co-petitioners also argue that the repudiated letter references a report from the Senate Departmental Committee on Delegated Legislation, which confirmed that the Finance Bill 2023 included matters concerning counties.