• A court has given Parliament nine months to go back to relook at the 23 laws.
• That's the reason the court suspended its orders.
Image: FILE
The country risks being thrown into a legal vacuum if National Assembly Speaker Justin Muturi fails to immediately seek his Senate counterpart Kenneth Lusaka’s concurrence on 23 impugned laws that a court nullified.
On Thursday, a three-judge bench nullified 23 impugned acts that were passed without the input of the Senate. However, the judges gave Parliament nine months to relook at the laws.
Justices Jairus Ngaah, Antony Ndungu and Teresiah Matheka unanimously ruled that one speaker cannot unilaterally make a decision on whether a bill does or does not concern the counties.
Weighing in on the issue, constitutional lawyer Ochiel Dudley said an immediate annulment of all the laws would have created a legal vacuum because it would have killed more than 20 laws at once. He said once laws are enacted, they create privileges and duties and confer certain rights, as they touch on all areas of life.
“There could be people employed under those acts, some of the laws created funds under which contracts have been entered into,” Ochiel said.
That's the reason the court suspended its orders in what is known as a suspension of invalidity. In this case, the court found that the laws are unconstitutional but to avoid chaos due to the nullification, it gave Parliament nine months to relook at the laws.
If both houses fail to agree on the laws by August next year, then the laws will stand null and void. The court issued a declaration that a speaker of a house of Parliament must first seek the concurrence of the speaker of the other house as to whether a bill concerns the counties.
“And if it is, whether it is a special or an ordinary bill before it can be introduced for consideration in the originating house,” the court held.
The court faulted Muturi for not involving the Senate in passing the bills.
The effects of some of these laws being annulled means Kenyans will be not charged based on them. For example, the Computer Misuse and Cybercrimes Act, 2018, has been in contention since it was passed.
Its nullification means bloggers who are currently in court challenging the law will not be held accountable for what they post on their sites as has been the case in cases where such posts are deemed to violate it.
So far, several bloggers, including Robert Alai and Cyprian Nyakundi, have been charged in court based on the Act.
The judges also nullified the National Cohesion and Integration Act, 2019; the Insurance Amendment Act, 2019; the National Government Constituency Development Fund Act, 2015; the Health Laws Amendment Act 5 of 2019; and the National Youth Service Act, 2018. Also annulled was the Finance Act 10 of 2018 on income tax and VAT that had been amended by MPs.
Others were the Public Trustee Amendment Act no 6 of 2018; the Building Surveyors Act, 2018; the Statute Law Miscellaneous Amendment Act, 2018; the Kenya Coast Guard Service Act, 2018; the Tax Laws Amendment Act, 2018; the Supplementary Appropriation Act no 2, 2018; the Equalisation Fund Appropriation Act, 2018; the Sacco Society Amendment Act no 16 of 2018; the Finance Act 10 of 2018; the Appropriation Act no 7 2018; and the Capital Markets Amendment Act no 15 2018.
The court held that it is mandatory and a constitutional precedent for any bill that is published by either house to be subjected to a concurrence process to determine whether the bill is special or ordinary.
It ruled that the amendment to Section 4 of the Kenya Medical Supplies Act is contrary to the law and is therefore unconstitutional, thus null and void.
The judges noted that they were asked by the National Assembly to consider the repercussions if the impugned laws are nullified, considering the sheer numbers involved. It said that was a reasonable and legitimate question.
“However, we are of the humble view that this is not a proper forum to ask this question," they said, adding that the National Assembly should have "posed and asked itself the same question before it set out to enact laws contrary to the express provision" of the Constitution.
So it was their ruling that they could not do more or any less than "what we are duty-bound to do, which is to declare the impugned law a nullity”.