Court to determine Senate, National Assembly duel

The unending supremacy battle between the Senate and the National Assembly that threatens to paralyse operations in counties will now be decided in the corridors of justice.

In what is promising to be a titanic legal duel, senators moved court seeking to overturn a record 24 laws enacted by the National Assembly without their input.

Senators immediately secured their first victory yesterday after High Court judge Weldon Korir ruled the petition raises weighty questions of law.

 “The petition by the senators raises substantive questions of law which need to be heard urgently”, the judge ruled. He asked Chief Justice David Maraga to constitute an uneven bench of not less than three to hear and determine the case.

The Senate, its Speaker Kenneth Lusaka, Leaders of Majority and Minority Kipchumba Murkomen and James Orengo are listed as the petitioners.

The National Assembly and its Speaker Justin Muturi are the respondents while the Council of Governors and the Attorney General are listed as interested parties.

In their petition, senators wants the court to declare the 24 laws null and void.

They argue that despite the laws affecting the counties, the National Assembly unilaterally passed them without seeking the concurrence of the Senate as stipulated in Article 110 (3) of the Constitution.

The Article states that before either House considers a Bill, the speakers shall jointly resolve any question as to the nature of the Bill before its introduction.

The senate wants the court to declare that it is mandatory for any Bill that is published by either House to be subjected to a joint concurrence process to determine whether the Bill is special or ordinary.

The determination, they insist, should not be dependent on a question arising as to whether the Bill concerns counties or not.

They also want the High Court to declare that one Speaker cannot unilaterally make a decision as to whether a Bill does or does not concern counties.

 Senators have been engrossed in a long-standing dispute with the members of the National Assembly over the role of the Senate on matters legislation.

They have often accused their colleagues in the National Assembly of ignoring and undermining them.

On the other hand, the National Assembly claims Senators are overstepping their mandate and duplicating the roles of Parliament.

In the suit, the Senate is represented by over 15 lawyers most of them senators.

The team is led by Orengo who is a senior counsel as well as Tharaka Nithi Senator Kithure Kindiki, an international lawyer.

In a clear signal of the falling out in parliamentary leadership, Speaker Kenneth Lusaka said the continued enactment of legislation without the concurrence of the Speaker of the Senate creates uncertainty and is not in the public interest.

Lusaka who led the senators in a march to the Milimani courts accuses the National Assembly of persistent non-compliance with constitutional provisions which he says is “ a threat to devolution.”

Lusaka says the National Assembly enacted the Appropriation Act of 2019 for the national government before the Division of Revenue Bill had been passed, which was “outright unconstitutional”.

“As a result, counties are facing a real threat of being crippled as the County Allocation of Revenue Bill that operationalizes funds to the counties cannot be passed without the Division of Revenue Act,” he says.

Kindiki said operations in the counties have come to a halt for lack of resources occasioned by Parliament.

“Counties have not made their budgets, which should have been finalized by June 30, as they do not know their share of revenue,” he submitted.

“The failure to make these budgets is because the National Assembly is engaged in primordial activism,” Kindiki, who doubles up as the Senate Deputy Speaker, noted.

Among the disputed laws are the Appropriation Act 2019 and Health Laws (Amendment) Act 2019 as well as the Finance Act 2018 that were recently signed into law by the President.

The Appropriation Act authorizes the government to incur expenditure. Its nullification would, therefore, ground the operations of the national and county governments.

The Health Laws Act now makes it mandatory for counties to buy drugs and other medical supplies for their hospitals from Kenya Medical Supplies Authority.

The Finance Bill 2018 was a controversial law that imposed an eight per cent tax on petroleum products.

The Bill caused uproar in the country with stakeholders, including civil society, protesting that it would increase the cost of living.

Senators also want the court to nullify the Equalization Fund Appropriation Act 2019.

The law grants statutory sanction for public expenditure for the year under review. The funds are set aside for marginalised counties to accelerate development in the areas.

Other laws the senators want the court to nullify are the Public Trustee (Amendment) Act, 2018, Building Surveyors Act (2018), Finance Act (2018), Capital Markets (Amendment) Act (2018), Supplementary Appropriations Act (2018), Sports (Amendment) Act, (2018) and the National Cohesion Act (2018).

Siaya Senator Orengo told the court there exists a danger to the country should it be thrown into a crisis by the Executive and the National Assembly.

"The Senate is an important institution with a legislative budget making role in the country... there's an enactment of laws which requires its input while there are more others in the pipeline that deal with counties, yet they have been left out. It is our view that the court sets it out clear that bills relating to county governments must be in accordance with the law," Orengo said.

Yesterday’s petition rekindled memories of the 2013 Supreme Court advisory when the Senate sought guidance over its role in the passage of the Division of Revenue Bill, which divides national revenue between the national and county governments.

The court then opined that it was "inconceivable" that every bill passed by the National Assembly does not concern counties either directly or indirectly.