NAIROBI, Kenya July 31 – The National Assembly has criticized the Judiciary, accusing it of judicial dictatorship and undermining the nation’s democratic and constitutional order.
The backlash follows the Court of Appeal ruling declaring the Finance Act 2023 unconstitutional due to flaws in its enactment process.
A three-judge bench comprising Justices Kathurima M’inoti, Agnes Murgor, and John Mativo found that the amendments made to various tax laws—such as the Income Tax Act, Value Added Tax Act, Excise Duty Act, Retirement Benefits Act, and Export Processing Zones Act—post-public participation were unconstitutional.
The judges argued that these amendments were not subjected to fresh public participation, thus violating constitutional provisions.
National Assembly Majority Leader Kimani Ichungwah expressed bewilderment and concern over the judgment, questioning its broader implications.
“When I read that judgment, I was left wondering and asking myself, does it mean then that all acts of Parliament passed by this House post-2010 are also annulled in law and unconstitutional?” he posed.
He added: “Because there is not a single Parliament act enacted by this House or even by the other House that has not had amendments in the third reading. And those amendments have never gone back to the people for public participation. That is a fallacy of that judgment today by the Court of Appeal with all due respect to the learned judges.”
The ruling comes at a precarious time for the Kenya Kwanza administration, which had reverted to the Finance Bill 2023 for revenue collection after dropping the Finance Bill 2024 amid widespread street protests by Gen Z.
The decision by the court is seen as a significant setback for the government.
In response to the ruling, the Majority Leader accused the judiciary of overstepping its mandate.
“We must be the guardians of our Constitution if the judiciary fails to be the guardians of our Constitution. Because 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,” Ichungwah asserted.
The ruling also has significant implications for the ongoing budgetary process.
The National Assembly is currently debating the Supplementary budget to rationalize government expenditure and institute further budget cuts after shelving the Finance Bill 2024.
Budget and Appropriations Committee Chairperson Ndindi Nyoro warned that the Court of Appeal’s decision could necessitate deeper budgetary cuts, potentially crippling service delivery across all arms of government.
“What, therefore, means is that we’ll still have to dig deeper with the cuts we did in this budget. I hope those further cuts will not endanger service delivery across all the arms of government. That is, the legislature, the executive, and the judiciary itself,” Nyoro exclaimed.
Nyoro emphasized the need for the judiciary to make decisions that do not hinder the functioning of the government.
“Therefore, I hope that we’ll be able to make decisions as a country in all arms that we can be able to live with,” he concluded.
