PHOTO | PAUL WAWERU From left: Senator Hassan Omar, Senate Speaker Ekwee
Ethuro, Senators James Orengo and Amos Wako leave the Supreme Court on
November 1, 2013 after the court issued an opinion that confirmed the
Senate has a role in the making of laws affecting revenue allocation to
counties.
NATION MEDIA GROUP
The Supreme Court ruled on Friday that senators must be involved in any legislation affecting county governments.
Affirming
the role of the Senate in devolution, six judges out of seven ruled
that the National Assembly violated the Constitution by disregarding the
Senate’s views on the Bill dealing with the division of revenue.
“The
Division of Revenue Bill was an instrument essential to operationalise
county governments and was a matter requiring the Senate input. The
Speaker of the National Assembly was to comply with the Constitution and
cooperate with the Senate Speaker before sending it to the President,”
said the judges.
The ruling brought to an end the
supremacy battle between the two Houses and gave clear guidelines on how
to deal with similar disputes in future.
Only Lady
Justice Njoki Ndung’u dissented, saying legislative process was the
preserve of the National Assembly and the court could not interfere in a
political process.
“The court should have determined
if it was a political or judicial process and if it was of the opinion
the dispute was a judicial process, then it should have been referred to
the High Court, the Court of Appeal and finally the Supreme Court if
need be,” said Justice Njoki.
She said giving powers
that belong to the National Assembly to the Senate would be akin to
amending the Constitution without a referendum, and allowing the Senate
to participate in the Division of Revenue Bill would be
unconstitutional.
OUT OF ORDER
Chief
Justice Willy Mutunga, however, said the two Houses represented the
people and input from both was necessary in laws affecting people.
“It
was out of order for the National Assembly Speaker to interpret
provisions of the law by only looking at Article 95 of the Constitution
without regard to Article 96 and 101. What are required are checks and
balances and the Senate should be allowed to carry out its duty of
protecting devolution,” said Dr Mutunga.
The CJ, his
deputy, Lady Justice Kalpana Rawal, judges Jackton Ojwang’, Philip
Tunoi, Smokin Wanjala and Mohammed Ibrahim all agreed that Speaker
Justin Muturi was under obligation to comply with Articles 101, 102, and
103 to resolve the dispute over the controversial Bill.
The Speaker should have referred the dispute to mediation with the Houses appointing equal representation, the judges ruled.
“It
was unconstitutional for the Speaker of the National Assembly to
by-pass the senatorial process, by not going through the mediation
arrangement provided in the Constitution,” the judges ruled, adding that
the two Houses shall resort to mediation if a similar dispute arose in
future.
The dispute began in June after President Uhuru
Kenyatta assented to the Bill, immediately the National Assembly
forwarded it to him despite protests from the Senate.
The
Bill became an Act and determines financial allocations between the
national government and the 47 county governments. National Assembly and
Treasury had initially agreed on Sh210 billion for the counties, but
the Senate added an extra Sh48 billion.
In the final Bill, MPs ignored senators’ input and retained the Sh210 billion and sent it to the President, who signed it.
In
the landmark decision, the judges on Friday fell short of declaring the
Act unconstitutional, ruling that their duty was to give an advisory
opinion and not make a declaration not asked by the parties.
“The court’s guidance was only sought for critical constitutional questions and not to make a conventional judicial order annulling the Division of Revenue Act 2013. However, the Senate option in rectifying the statute like seeking an amendment remains uncompromised,” ruled the judges.
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