Appellate court restores 21 annulled laws

The Court of Appeal has restored 21 of the 24 laws that had been annulled by the High Court for being passed by the National Assembly without the input of Senate.

Among the laws that have been restored is the contentious Computer Cyber Crime Act which tamed bloggers and internet users. 

The Act recommends a fine of Sh20 million or a prison term of 10 years, or both, for harassing a person through the internet by making posts that are indecent or grossly offensive.

However, the court upheld nullification of three laws that were passed by MPs without involvement of the senators.

The three laws include the Equalization Fund Appropriation Act (No. 3 of 2018), Sacco Societies (Amendment) Act, and the amendments made to the Kemsa Act by the Health Laws. They will remain null and void.

The Court of Appeal said the three laws affected county governments, hence input of senators was mandatory.

For instance, though health is a devolved function, the National Assembly adopted the Bill and passed it without involving the Senate. 

The law gave the Kenya Medical Supplies Authority (Kemsa) exclusive rights to supply medicine and medical equipment to county governments.

It went on to create an offence where failure to adhere attracted a fine of Sh2 million or imprisonment of five years or both. The amendment also restructured the composition of the health professionals’ boards

“The purchase of drugs and medical supplies from Kemsa was a matter that would have required the participation of the Senate. This is more so because, a reading of the amendment suggests that the provisions are directed at national and county public health facilities,” said the Court of Appeal.

The judges stated that mere mention of the counties in the amendment was sufficient indication, that this particular amendment concerned counties.

On the Saccos law, the court stated that it introduced regulations with additional regulatory function assigned to county governments.

“…this would firmly place the concerned amendments within functions assigned to county governments. So that the amendments would have had to be subjected to the concurrence process as stipulated by Article 110 (3) of the Constitution, and the failure to have adopted this process in amending this Act has rendered it unconstitutional,” said the Court of Appeal.

In the judgment that has revealed the supremacy battle between Senators and MPs, the court also upheld nullification of one of Parliament’s Standing orders that allows exclusion of Senate in the legislative process.

The court also ruled the concurrence process on all Bills concerning counties is a condition precedent in the Constitution, Article 110(3), that requires the participation of and resolution by the Speakers of both Houses before consideration such Bills.

It was also declared that any Bill or delegated legislation that provides for, or touches on, mandate or powers of the Parliamentary Service Commission must be considered by the Senate.