The Constitution insists on participation in lawmaking.

“Parliament is the country’s law-making body. If the Judiciary desires to be the lawmakers, they have the option of resigning from the judicial seats and come and run for parliamentary seats and come make laws in this House.”

What made an angry majority leader in the National Assembly say this?

After the President had decided not to sign the Finance Bill 2024 – which meant that the most recent general law on tax was the Finance Act 2023 – the Court of Appeal ruled that the 2023 Act was unconstitutional. (The case had been decided first by the High Court in November last year.)

It’s not possible to examine the whole case but let’s look at the main issues.

Public participation

The constitution insists on participation in lawmaking. A problem arises because Parliament has the power to change bills proposed to it.

This is an important power, welcome because otherwise Parliament would be just the rubber stamp of government legislative proposals that it was under former President Moi.

But if something quite new is suggested at the final stages (which is when formal changes take place) how can the public be given a chance to participate?

The Court of Appeal said that 18 amendments in the Act were entirely new, but the public should have had that chance to participate.

They quoted a South African case where the Constitutional Court said “Parliament should have interrogated, specified and clarified the full import of the proposed amendments and afforded the public an adequate opportunity to comment or make representations.”

The Kenyan court said, “In the words of Dr Ogola [lawyer for some parties], these amendments were mischievously sneaked into the Act in order to steal a march. Such conduct cannot be rubber stamped by this Court.”

It is not for the court to dictate how public participation should be conducted. So I was surprised to see the court say that the amendments “were not subjected to the First and Second Reading. These are impermissible serious legislative flaws.”

The First Reading of a Bill is the formal introduction of a bill into Parliament; no vote even takes place. On the Second Reading the general principles of the Bill are supposed to be debated; no amendments are moved at this stage – there is a single vote on the whole bill.

Between the two the bill is sent to the relevant committee. The public are invited to send their comments to the committee.

They can read the bill and probably read the Second Reading debate in Hansard before sending their comments.

Most proposals for change are discussed in the committee and a report produced (not always easy to find online). Amendments are actually done by the “Committee of the Whole House”.

An Order Paper (agenda) for that debate usually indicates most of the amendments to be proposed.

The Finance Bill, 2023 was introduced on May 4, amended on June 20 and 21, passed on June 21 and signed by the President on June 26.

I would suggest that it is the responsibility of the committee and the speaker’s office to organise the law-making timetable to ensure enough time for the attention of the public to drawn to proposed amendments, and to submit comments. Amend the Standing Orders!

Not a new issue

The National Assembly ought to have been aware of the problems. This was not the first time that the issue of amendments not presented to the public had come up in court.

Another device for limiting public participation – almost hiding amendments from view – is the Miscellaneous Amendment Act.

These Acts may be very long indeed and amend a wide range of existing Acts of Parliament. They are described as “making minor amendments to Statute Law”.

But courts have in the past criticised use of these Acts to do much more than this.

In one case the court said “The respondents’ [the Attorney General, Judicial Service Commission and Chief Justice] Waterloo lies in their hiding behind existing laws and trying to piggyback on them in order to sneak in otherwise substantive legislation”.

The main problem is, as this implies, that the law changes are sneaked in and that public participation is sidelined.

My point is that Parliament knows that public participation is necessary. It is up to them to devise ways to ensure it can take place even in difficult situations – like last minute amendments. This, I think, is the main contribution of this case.

Feedback

The Court of Appeal in this case decided another important point on public participation: whether an organisation that conducts public participation must give feedback on whether and why it has accepted, or rejected, public input.

In guidelines about effective public participation – including in Kenyan Public Participation Bills, not yet passed – the need for feedback is usually included.

The court said, “The constitutional requirement for transparency and accountability imposes an obligation upon state organs to inform the general public and stakeholders why their views were not taken into account and why the views of some of the stakeholders were preferred over theirs.”

And “It would be strange indeed if the principles of participatory democracy and consultation are to operate only when the public are invited to give their views, then they vanish at the crucial stage when the general principles of the original statute are being converted into operational standards and procedures, only to re-surface at the stage of the implementation of the provisions impacting on specific individuals without any explanation as to why their views were rejected.”

Absence of feedback made the whole Finance Act invalid because the process of making it was unconstitutional.

At one level this is most encouraging. But when would that feedback be given – in the committee report or after the bill is passed? And what would its effect be? Public input is not binding.

And the public cannot do much but complain if their views have been rejected – for adequate reasons. Should the absence of feedback really doom the whole bill? On the other hand, what other enforcement mechanisms exists to compel the feedback? No doubt the Supreme Court will decide on this.

Money Bills

Now MPs’ power to amend money bills, unlike under the old constitution, is not limited. However, the constitution still restricts consideration of money bills.

First a money bill must be considered only in the National Assembly – the Senate is excluded. You may wonder – what about the bills that allocate money to the counties? These are excluded from the category of money bills and they do go to the Senate.

Second, these bills can only be considered if the relevant National Assembly committee recommends it, and they must consult the Cabinet Secretary for finance first.

Thirdly the bill must have nothing in it except money provisions, unless they are “incidental” to the money provisions. This was a minor point in the recent case.

The Court of Appeal held three sections of the Act unconstitutional because they were not about money but about composition of agencies and procedures. They rejected pathetic arguments unworthy of any lawyer or even a literate layperson.

One was that since “may” in a law usually gives a choice (like “The President may suspend a county government” in certain circumstances), “may not” also gives a choice.

This was complete nonsense – “may not” is a clear prohibition, in this case to include non-money provisions that are not incidental.

Courts do make law through their decisions. Unfortunately, Parliament often gives much less careful consideration to that process than the courts do.

And the courts have a system under which their law making decisions can be reconsidered through appeals to higher courts.

We can expect this case to appear in the Supreme Court, appealed by the government in the hope of saving the tax increases in the Finance Act 2023. Let us hope the really important points remain intact.

This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2024-08-10-ghai-making-law-must-be-done-carefully-and-involve-the-public/

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