Supreme Court sides with Senate in supremacy battle

November 1, 2013 2:05 pm
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President of the Court Chief Justice Willy Mutunga stated that the Bill is the lawful instrument which allocates the national revenue between the National and County governments/FILE
President of the Court Chief Justice Willy Mutunga stated that the Bill is the lawful instrument which allocates the national revenue between the National and County governments/FILE
NAIROBI, Kenya, Nov 1 – The Supreme Court has said the Senate has a role to play in passing the Division of Revenue Bill, effectively ending a dispute between Kenya’s two houses of Parliament over the matter.

The Court also emphasised the need for both the National Assembly and the Senate to work harmoniously and settle their differences through mediation.

While delivering an advisory on the Division of Revenue Bill on Friday, President of the Court Chief Justice Willy Mutunga stated that the Bill is the lawful instrument which allocates the national revenue between the National and County governments.

“The question was: Whether the National Assembly was right in monopolising law-making powers on the very financial question which, alone, would determine the success or failure of the operations of counties, and of the whole scheme of devolved government which lies at the core of the current constitutional order,” he read.

“The Bill in question, namely the Division of Revenue Bill, is the lawful instrument which allocates the national revenue between the National Government and the County Governments.”

He further pointed out that the issue had a potential to lead to a crisis in the functioning of State organs.

“The National Assembly after debating and passing the Bill, and forwarding it to the Senate which then made amendments, changed its mind, refused any further co-operation with Senate, and secured the direct assent of the President, making the said Bill as passed by only one Chamber, an Act of Parliament,” he said.

“The National Assembly Speaker acted on the basis that a Division of Revenue Bill was not, after all, a Bill concerning county governments, and on this basis excluded the role of Senate,” he stated.

His sentiments were echoed by judge Smokin Wanjala who indicated that it was unconstitutional for the National Assembly speaker to by-pass the Senatorial process by not going through the mediation arrangement provided for in the Constitution.

“Not knowing how such a working relationship might evolve in the future, and objecting to its exclusion from the passing of what appeared to be truly “a Bill concerning county government,” the Senate and its Speaker moved to the Supreme Court, by virtue of Article 163(6) of the Constitution, to give an Advisory Opinion interpreting the law on the relations between the two Chambers, regarding the principle of devolution which lies at the centre of Kenya’s constitutional dispensation,” he indicated.

“The applicants asked the Court to declare the governing law and to assert its authority regarding the fundamental aspect of the Constitution.”

Of the seven judges, Justice Njoki Ndung’u recorded a dissenting opinion that this was a typical dispute which should have gone to litigation in a lower court.

“The matter should have been left exclusively to Parliament, on the basis of the doctrine of the separation of powers; “political questions” such as this are not to be addressed by the Supreme Court,” she said.

She also disagreed with the majority, saying the Bill did not involve counties and so did not need the input of the Senate.

“The Division of Revenue Bill was not truly a “Bill concerning county government”; this was a “money Bill”, falling within the exclusive mandate of the National Assembly and out of the competence of the Senate.”

She however supported the majorities’ position that the Constitution did require the two houses to work harmoniously.

The bone of contention was the decision by the National Assembly to approve the scaled-down Sh210 billion budget as opposed to the whopping Sh258 budget Senate had sanctioned after restructuring the Division of Revenue Bill.

Senators were adamant that they should have the final say on the allocation of money to the County Governments.

Speaker Ekwe Ethuro had protested that the contentious Bill was not referred back to Parliament for reconsideration even after he wrote to the President on June 7 explaining the unconstitutionality of the actions taken by the National Assembly.

The Senate accused the National Assembly of unlawfully rejecting the restructuring of the Bill and passing it on to President Uhuru Kenyatta for assent without following the mandatory mediation process.

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