The Senate case: Why High Court nullified 23 laws

 

On October 29, a three-judge High Court Bench of justices Jairus Ngaah, Anthony Ndung’u and Mumbua Matheka declared unconstitutional 23 laws passed by the National Assembly.

It also declared some sections of the Health Act and some paragraphs of the National Assembly Standing Orders unconstitutional.

The case was brought by the Senate against the National Assembly and the complaint was simple. Over the years, the National Assembly has passed laws without first reaching consensus with the Senate on whether the proposed laws should also be debated and passed by the Senate.

The 23 laws had been passed by the National Assembly without consulting the Senate. The case almost entirely hinged on a provision of the Constitution: “Before either House considers a Bill, the Speakers of the National Assembly and Senate shall jointly resolve any question as to whether it is a Bill concerning counties.”

The Senate had twice previously gone to the Supreme Court because the National Assembly had tried to ignore the former's role in passing the Division of Revenue Act — the annual law dividing money between the national and county governments. Both times, 2013 and 2019, the Supreme Court was firm that Senate must be involved.

The laws involved in the new case include the Computer Misuse and Cybercrimes Act – often used to criminally target bloggers and social media critics. Its constitutionality is also currently subject to litigation at the Court of Appeal on the question of freedom of expression.

Another is the National Constituency Development Fund law passed in 2018, which is also under litigation at the High Court. There are also numerous acts amending existing laws. Perhaps the most critical of these is the Statute Laws (Miscellaneous Amendment) Act, 2019. That contains changes that brought about the National Integrated Identity Management Systems that established the controversial Huduma Namba.

ARROGANCE OF NATIONAL ASSEMBLY, SPEAKER MUTURI

This is the first decision to find so many laws unconstitutional at once. However, the outcome was not surprising. It reflects everything that is wrong with our Executive and Parliament in failing to follow the Constitution and to abide by court orders.

It also is testament to why the Speaker of the National Assembly, Justin Muturi, is undeserving to be a state officer. This is because twice the National Assembly and the Speaker had been told by the Supreme Court they were violating the Constitution for failing to involve the Senate in lawmaking that concerned counties. This case demonstrates the consequences of not abiding by the Supreme Court’s decisions.

It demonstrates the contempt the National Assembly and Muturi have consistently shown towards the advice from the Supreme Court, and their outright failure to follow constitutional requirements on lawmaking.

The National Assembly seems to have this misplaced belief that the Constitution makes it the superior of the two Houses of Parliament. However, though our Constitution seemingly assigns more legislative and oversight work to the National Assembly, it does not create a hierarchy between the two Houses.

One issue particularly shows the level of contempt the National Assembly has shown to the Supreme Court decision and the Constitution. The Supreme Court’s 2013 decision informed the National Assembly that before a proposed bill is introduced in either House, there must be consensus on whether it concerns the county governments.

Yet the National Assembly rushed back, and, instead of implementing the procedure articulated by the court, amended its Standing Orders to state that that consensus would only be necessary where a question has been affirmatively raised on whether a proposed bill involved county governments’ issues.

In practice, the National Assembly found an easy way to achieve its objective by having the sponsor of the bill state in the bill whether or not it concerned county governments.

Almost needless to say, the National Assembly marked nearly all its bills as not concerning county governments. Former Majority leader Adan Duale  been very adept at this creative way of circumventing the Constitution. As Majority leader, he spearheaded, or was first in supporting almost all the laws that the High Court has now nullified.

HIGH COURT DECISON

The judgment by the High Court is commendable in that it is well-written, with the judges using plain English, a rare virtue among judges - and lawyers, for that matter. It is also very logically organised, making it an easy read. But here I want to elaborate on why the judgment is straightforward yet bold.

It is straightforward because the three judges rely heavily on what the Supreme Court has previously stated. These include that the Constitution is supreme and not even the National Assembly is above it; that the Constitution imposes a procedure that requires that — before any law is introduced in either house — there must be consensus between the Senate and the National Assembly whether or not the proposed law concerns county governments.

The High Court, going beyond what the Supreme Court had stated, clarifies that this procedure applies to all proposed laws, not just those that the National Assembly thinks may concern county governments.

In previous cases where courts have nullified laws passed by the National Assembly for failing to involve the Senate, courts have first looked at whether the actual issues covered by the law did in fact concern county governments.

In this case, the High Court rightly did not analyse each law to determine whether it had provisions that concerned counties, instead it only considered whether the first and critical step of consultation and consensus was undertaken by the two Houses. And this is basically partly why I think that, while the decision was straightforward, it is still very bold.

First, the court makes it clear that procedures required by the Constitution are just as important as whether the outcome was right in deciding whether the Constitution was violated. Since the National Assembly Speaker had no power to make the decision, which conclusion he reached was irrelevant.

The court does not shy away from finding all the laws complained of to be unconstitutional, because they were enacted by a procedure based on that wrong decision.

n fact the Court seems – rightly – frustrated by the National Assembly’s trying consciously to undermine what the Constitution requires and what the Supreme Court has advised, when it changed its Standing Orders.

The court — to underline the point that Parliament cannot use the Standing Orders to circumvent the Constitution — declares the changes in the Standing Orders unconstitutional.

Second, the court is bold in articulating that whereas the National Assembly may have — erroneously — taken the view that the advisory from the Supreme Court was not binding, the High Court judgment is now binding.

d while the court gives Parliament nine months to rectify the laws it found to be unconstitutional, it notes that if Parliament fails to act, the laws will automatically become invalid after nine months. This would presumably mean that everything done under the acts became unconstitutional.

ENDING NOTE

It will be interesting to watch what happens in the next nine months. Certainly, some of the laws are relatively contentious and the Senate may disagree with some of them as passed by he National Assembly entirely or at least some of the contents. I have in mind here, for example, the CDF law that benefits only members of the National Assembly while undermining devolution.

Whatever happens, we have not seen the end of controversies between the Senate and the National Assembly on the procedure of passing laws. Incidentally, the High Court did not say how an obstinate disagreement between the speakers, and a mediation committee, on whether the laws would affect counties would be resolved: Would the bill be defeated, and if so could the matter go to court?

It also did not rule on what happens if the National Assembly sneaks in an issue concerning the counties after initial consensus is reached that the bill does not concern counties, especially during the debate on the bill in the National Assembly. This is a common practice. 

Resolutions of those issues will have to wait another day, unless the speakers do what they are required to do by the Constitution – being magnanimous and exercising forbearance.