9 July 2013

Kenya: Parliament's Supremacy Battle Starts Aug 8 in Court

Nairobi — A fully constituted bench of the Supreme Court will on August 8 begin hearing a case in which the Senate is seeking an advisory opinion on whether the National Assembly was justified in ignoring amendments made to the Division on Revenue Bill.

The decision was delivered by Supreme Court judges Jackton Ojwang and Mohammed Ibrahim after lawyers Kioko Kilukumi and Tom Ojienda appearing for the Speaker of the Senate Ekwe Ethuro and Law Society of Kenya made an application.

The judges ruled that the full bench comprising the seven judges of the Supreme Court will hear the submissions to the case on August 8 after a pre-trial conference on August 1.

Anthony Njoroge appearing for the Speaker of the National Assembly was further directed to respond to all matters that have been raised in the Senate petition by July 29 and thereafter all other parties including the Senate, Attorney General, Commission for the Implementation of the Constitution and the Law Society of Kenya (LSK) will have until August 7 to reply.

During the preliminary hearing, the Katiba Institute lobby group as well as the Law Society of Kenya and the Commission for the Implementation of the Constitution (CIC) were enjoined in the case as friends of the court.

Njoroge and the Attorney General's Office represented by Lucy Muthui had asked for 21 days so as they can file their responses to issues raised in the petition but Kilukumi, Ojienda and Alfred Nderitu asked that the period be shortened.

The National Assembly had wanted to be allowed to file a fresh application where it is seeking to know whether the Senate should handle eight bills that are currently before the National Assembly.

In their application, Njoroge said the Senate's petition was not as contentious as an electoral petition "where there is a winner and loser" but simply "a difference of opinion as to what theConstitution provides on the enactment of theRevenue Bill."

"If the court deems that the matter is so urgent that it has to proceed, then we can proceed on the issue of the Division of Revenue Bill alone which we will file a response to and the other matters will come later; either through an advisory opinion or through discussion on other forums."

Justice Ojwang instead urged him to take the advice of his colleagues and include his other issues in the petition so that they can move together.

But Senate's lawyer, Kilukumi and LSK's Ojienda said the matter should be expedited as a matter of urgency.

Kilukumi stated that the urgency arose after the Division of Revenue Bill was enacted after which the Constitution requires that the County Revenue Allocation Bill which is originated by the Senate be passed.

"My clients who are the Senate and its Speaker do not know how to proceed. How do they divide revenue, when there is a question, are we dividing Sh258 billion or Sh210 billion? So that has introduced the urgency, because the county governments can no longer function unless it has the finances to do so."

This comes only days after Senate Speaker Ethuro accused his National Assembly counterpart Justin Muturi of undermining the Constitution.

Ethuro, who led Senators James Orengo, Boni Khalwale and Hassan Omar in attending the morning court proceedings, stated Muturi had permitted the introduction of eight bills for debate without consulting him as prescribed in the Constitution.

Ethuro also says he's concerned that bills among them the Appropriations Bill were introduced in the National Assembly before he was consulted as per the law.

He said the legislative process as contemplated by Article 110 of the Constitution was ignored by the National Assembly and the President when he assented to it.

The Constitution at Article 110 (3) directs that: "Before either House considers a Bill, the Speakers of the National Assembly and Senate shall jointly resolve any question as to whether it is a Bill concerning counties and, if it is, whether it is a special or an ordinary Bill".

The 8 bills include: The Microfinance (Amendment) Bill, 2013, which was read a First Time on 27 June, 2013; The Kenya Deposit Insurance (Amendment) Bill, 2013, which was read a First Time on 27 June, 2013; The Insurance (Amendment) Bill, 2013, which was read a First Time on 27June, 2013; The Insurance (Motor Vehicle Third Party Risks) (Amendment) Bill, 2013, which was read a First Time on 27 June, 2013; The Tax Appeals Tribunal Bill, 2013, which was read a First Time on 27 June, 2013;

The Capital Markets (Amendment) Bill, 2013, which was read a First Time on 27 June, 2013; The Supplementary Appropriation Bill (No.2), 2013, which was read a First Time on 25 June, 2013; and The Appropriation Bill, 2013, which was read a First Time on 26 June, 2013.

Muturi clarified that the said Bills introduced before the House all fall within the jurisdiction of the national government.

Muturi explained that a bill concerning county governments is one affecting the functions and powers of county governments, one relating to election of members of the county assembly or one affecting finances of county governments.

Senators took the matter to court as their input into the bill was ignored by the National Assembly and the President who signed it into law.

The senators had increased the budget from Sh210 billion to Sh258 billion to provide more money for the county governments.

They are accusing the National Assembly of "unilaterally and quite contemptuously ignoring" the recommendations of the Senate to upscale the amount allocated to the counties by the national government from the Sh210 billion allocated earlier by the National Assembly to Sh258 billion, before sending the Bill to the President for his final approval.

The National Assembly argues that the Senate cannot amend a bill passed by it.


Laban Wanambisi is a Parliamentary and Political reporter. He joined the Capital Newsteam in 2005. Since then, he has reported on many of the major news events over the years including his first major assignment covering the 2005 National Referendum on the Draft Constitution, and several other subsequent key national and international events.

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