Wanjiku Is Right: MPs Losing Streak Extends As Judges Outlaw More Laws

The Tuesday declaration by the High Court of the Privatization Act as unconstitutional for lack of adequate public participation has added to the list of setbacks that parliament has suffered at the hands of judges....CLICK HERE TO READ THE FULL ARTICLE

The two rulings that went against Parliament added to the three health Acts and the Instruments Act, 2013 which were also nullified by the courts.

One constant factor at the centre of the laws being thrown out is the lack of adequate public participation by parliament while passing laws.

While delivering the judgment on the Privatization Act, Justice Chacha Mwita agreed with the submissions made by the Orange Democratic Movement (ODM) that filed the case, saying the Act made it easier to sell state enterprises to private companies without allowing the public to give its views.

“The National Assembly failed to discharge its obligations to conduct public participation that met both quantitative and qualitative thresholds. The six memoranda received, coupled with a few stakeholders, could not effectively represent the views of the people as required by Articles 10 and 18 of the Constitution,” the judge said.

Rarieda MP Otiende Amollo told the Nation that while he agrees with the courts in some instances, he pointed out that they have also got it wrong in some of their rulings.

Separation of powers

“There are instances where the courts have got it wrong and the ruling on NG-CDF is one of them. You cannot declare an act as illegal based on a doctrine and you don’t cite any specific article of the constitution that has been breached,” Dr Amollo said.

Dr Amollo who also sits in the Justice and Legal Affairs committee says Article 165 of the Constitution requires the courts to point out the exact part of the constitution that has been violated which it failed in the case of ruling on NG-CDF.

“You cannot rule that an Act of Parliament is illegal on doctrine based on the doctrine of separation of powers which is not contained in the constitution,” Dr Amollo said.

He pointed out that after the Supreme Court ruling that declared CDF Act 2015 illegal, the entire Act was repealed and a new one was put in place addressing all the loopholes.

He, however, agreed with courts on rulings made in regard to parliament’s failure to fully engage the public while passing any law.

“To the extent that the courts have said an Act was passed without public participation, they are right and I have raised this several times in Parliament that we should never rush any kind of legislation for whatever reasons without fully engaging the public,” Dr Amolo said.

Gatanga MP Edward Wakili Muriu says the problem has been caused by a gap in the law that does not specify the extent to which Parliament should go as far as public participation is concerned.

Wakili Muriu says the 2010 Constitution puts more emphasis on public participation in any legislation done by Parliament but does not stipulate the depth of the process.

“Parliament might be doing public participation and thinking that they have met the threshold but constitutionally, they have not. That is what the courts are saying,” Wakili Muriu said.

“To cure this problem, we need a standalone Act of parliament stipulating the extent to which parliament should go as far as public participation is concerned because at the moment we have no such legislation,” Mr Muriu added.

There is currently the Public Participation Bill, 2024 sponsored by National Assembly Majority Leader Kimani Ichung’wah which seeks to provide a framework for effective public participation.

The Bill seeks to give effect to the Constitutional principles of public participation and participatory democracy as enunciated in Articles 1, 10, 35, 69, 118, 174, 184, 196, 201, and 232.

It further provides guiding principles to be adhered to by institutions conducting public participation and also designates the responsible authorities to develop specific guidelines for public participation in each public institution.

While delivering its ruling on NG-CDF, the courts said the fund violates the principle of separation of powers and over the failure of MPs to consult the Senate when the law was enacted.

“The mandate of members of the National Assembly is to represent, legislate and oversight the national revenue and expenditure. Accordingly, creating a fund that is administered by the constituency, which is a unit of political representation for legislative and oversight roles, however far removed, the member of the National Assembly may be, in the management and administration of the Fund, runs afoul of the doctrine of separation of powers” the judges ruled.

Social Health Insurance Act

On July 12, 2024, the High Court gave orders suspending the Social Health Insurance Act, 2023, the Primary Health Act, 2023, and the Digital Health Act, 2023 for 120 days within which Parliament was directed to undertake sensitisation, adequate, reasonable, sufficient and inclusive public participation before enacting the three Acts.

The government and the National Assembly, however, appealed the ruling and got stay orders paving the way for the implementation of the three new Acts.

In its affidavit challenging the court ruling, the National Assembly faulted the High Court Judgement indicating that enactment of the three laws had been properly undertaken, with extensive public participation.

The current Statutory Instruments Act, 2013 provides for the expiry of the laws creating the agencies after 10 years unless there is a regulation seeking to exempt them from the expiry.

In January this year, the Court of Appeal rejected an application by Parliament to have the life of the laws.

The National Assembly has since moved to cure the gap through the Statutory Instruments (Amendment) Bill, 2024 which seeks to amend a clause in the current Act that provides for the expiry of the laws that the State agencies.

The proposed law seeks to amend a clause in the current Act that provides for the expiry of the laws that created the State agencies beyond the 10 years set for them in 2013…CLICK HERE TO READ MORE ARTICLES>>>