This week, a 3 judge bench of the High court delivered a decision nullifying 23 Acts of parliament because they were passed without Senate involvement. This has refocused our attention on the role of the Senate in law making in Kenya. We analyse the judgement from the case:  The Senate vs Speaker of the National Assembly & the National Assembly (2020) Constitutional Petition No. 284 of 2019 (consolidated with 353 of 2019) Judgment

The Genesis

The dispute originated from the National Assembly legislating various Acts of Parliament without reference to the Senate. 

On diverse dates between the years 2017 and 2019, the National Assembly passed a total of 23 Acts of Parliament without the participation of the Senate and unilaterally forwarded 15 others to the Senate without complying with Article 110 (3) of the Constitution.

The Senate was aggrieved by the National Assembly’s actions and on the 18th day of July 2019, it filed a Petition at the High Court against the Speaker of the National Assembly of the Republic of Kenya and the National Assembly of Kenya, seeking, amongst other things, the nullification of the Acts passed or amended by the National Assembly without reference to the Senate. The Petitioners listed 24 Bills (one of the Bills had been listed twice) that have been presented to the President for his assent without the requisite concurrence of the Speaker of the Senate and 15 bills unilaterally forwarded to the Senate for its consideration. 

Stakeholders

The Council of County Governors also filed its own Petition, vide High Court Petition No. 353 of 2019 against the National Assembly and the Attorney General contending that the amendments by the National Assembly to Section 4 of the Kenya Medical Supplies Authority Act, No. 20 of 2013 without regard to the Senate was unconstitutional. Just like the Senate, it also asked for nullification of these Amendments.

The Bench

The bench comprising of Justices Jairus Ngaah, Anthony Ndung’u and Teresiah Matheka, noted in their judgement that their decision is heavily influenced by the opinion of the Supreme Court in Reference No. 2 of 2013 as they are bound by that opinion according to the doctrine of stare decisis.

In their wisdom, the learned judges ordered that:

• A Speaker of a House of Parliament must first seek the concurrence of the Speaker of the other House of Parliament, as to whether a bill is one that concerns counties, and if it is, whether it is a special or an ordinary bill, before the bill can be introduced for consideration in the originating House.
• It is mandatory and a condition precedent for any bill that is published by either House to be subjected to a concurrence process to determine in terms of Article 110 (3) of the Constitution whether the Bill is special or an ordinary bill and that such determination is not dependent on “a question arising” as to whether the Bill is one that concerns Counties;
• The provisions of Article 110 (3) of the Constitution are couched in mandatory terms and is a condition precedent before any House of Parliament can consider a bill;
• Pursuant to Article 110 (3) of the Constitution, one Speaker cannot unilaterally make a decision as to whether the Bill does or does not concern counties or whether a question as to whether the Bill is one that concerns counties does or does not arise;
• The immediate cessation of consideration of all bills that are pending before either House, and for which joint concurrence by the Speakers of both Houses as to whether the bills concern counties, has not been demonstrated to allow for such Bills to be subjected to the mandatory joint concurrence process contemplated under Article 110 (3) of the Constitution;
• Any Bill or delegated legislation that touches on the Parliamentary Service Commission must be considered by the Senate as it directly affects the Senate’s ability to undertake its Constitutional mandate including its ability to consider bills that affect counties;
• The under listed Acts passed by the National Assembly are unconstitutional thus null and void;

1. The Public Trustee (Amendment) Act, No. 6 of the 2018
2. The Building Surveyors Act, 2018, No. 19 of 2018
3. The Computer Misuse and Cybercrime, Act, No. 5 of 2018
4. The Statute Law (Miscellaneous Amendment Act),No. 4 of 2018
5. The Kenya Coast Guard Service Act. No. 11 of 2018
6. The Tax Laws (Amendments) Act, No. 9 of 2018
7. The Statute Law (Miscellaneous Amendments) Act, No. 18 of 2018
8. The Supplementary Appropriation Act, No. 2 of 2018;
9. The Equalization Fund Appropriation Act No. 3 of 2018
10. The Sacco Societies (Amendment) Act, 2018 No. 16 of 2018
11. The Finance Act, No. 10 of 2018
12. The Appropriations Act, No. 7 of 2018
13. The Capital Markets (Amendments) Act, No. 15 of 2018
14. The National Youth Service Act No. 17 of 2018
15. The Supplementary Appropriations Act, No. 13 of 2018
16. The Health Laws (Amendment)Act, No. of 5 of 2019
17. The Sports (Amendment) Act, No. 7 of 2019
18. The National Government Constituency Development Fund Act, 2015
19. The National Cohesion and Integration (Amendment) Act, 2019
20. The Statute law (Miscellaneous Amendment) Act, 2019
21. The Supplementary Appropriation Act, No. 9 of 2019
22. The Appropriations Act, 2019
23. The Insurance (Amendment) Act, 2019

• The amendments to Section 4 of the Kenya Medical Supplies Act are unconstitutional thus null and void.
• The provisions of Standing Order 121(2) of the National Assembly Standing Orders is inconsistent with the Constitution and is therefore null and void.
• The Standing Order 143(2) to (6) of the National Assembly Standing Orders is inconsistent with the Constitution and is therefore null and void.
• Where the Speakers of the House concur that a Bill is one that concerns Counties, the Bill must be passed in accordance with Articles 110 to 113, 122 and 123 of the Constitution and the Standing Orders of both Houses and is not subject to Article 114 of the Constitution.
• An Act of Parliament constitutes an Act that has complied with the legislative process required of both Houses by participation of both Speakers as required under Article 110 (3) of the Constitution and where the Bill concerns Counties by consideration in the Senate as required in the Constitution.

Parliament Given 9 months to Fix the Issue

The judges the suspended their orders of nullifying the impugned Acts for a period of

9 months to give time to the respondents to comply with the provisions of Article 110 (3) of the Constitution and regularise the Acts.

Preview of the Affected Laws

• Health Laws: Although health is a devolved function, the National Assembly adopted the National (Amendment) Health Laws, Bill and passed it without involving the Senate. The law gave Kenya Medical Supplies Authority (Kemsa) exclusive right to supply medicine and medical equipment to the county governments.

• Taxes on fuel, mobile money (M-Pesa) transfers and an Sh18 a litre levy on kerosene were yesterday declared illegal after the High Court ruled were passed without the input of the Senate. However, the 9 month suspension of the quashing of the laws such as the Finance Act 2018, the Tax Laws (Amendments) and the Statute Law (Miscellaneous Amendment), means that consumers will continue paying the taxes up to July, offering relief to the Kenya Revenue Authority (KRA) that is struggling to meet revenue targets in the wake of coronavirus economic hardships.

• Computer Misuse and Cyber Crime Act is another contentious law affected by the judgement is the. The Act recommends a fine of Sh20 million or a prison term of 10 years, or both, for harassing a person through the internet by making posts that are indecent or grossly offensive.

It also recommends the above penalties for posting information that may cause another person’s apprehension or fear of violence, damage or loss of his/her property. The Act also illegalises the publishing of false and misleading information, fake news is a crime and if found guilty the offender is liable to a fine of Sh5 million or two years imprisonment.