Senate suffers blow in battle with MPs over roles on Bills

The Supreme Court has dismissed a request by senators to suspend implementation of a judgment that allowed their exclusion by MPs in making of laws that do not affect the counties.

While reviewing its earlier ruling, which had compelled MPs to involve senators in enactment of all laws, the apex court noted that compelling the two houses to engage on all Bills will cripple the running of the government.

“Taking into account the prejudice likely to be suffered by the National Assembly if the earlier orders are not set aside given the fact that failure to deliberate on some of those Bills might cripple the running of the government, we find that this matter calls or review of the earlier ruling,” said the judges.

They added that there would have been apparent injustice not only to the National Assembly and its Speaker Justin Muturi but to all Kenyans.

While urging court to set aside the initial orders, the National Assembly stated that it is scheduled to adjourn sine die (with no appointed date for resumption) on June 9, while the Senate will adjourn on June 17. The adjournment is ahead of the August 9 General Election.

The court heard that, with existence of the orders, the National Assembly would not have been able to process and pass numerous critical Bills currently before it in different stages.

The Bills include those related to the budgetary circle and touching on the three arms of government, county government and constitutional commissions leading to a constitutional crisis.

Among the Bills scheduled to be tabled before adjournment of the National Assembly is the Appropriation Bill, 2022, the Public Finance Management (Amendment) Bill, Petroleum Products (Taxes and levies) Amendment Bill, and the Finance Bill. Others are the Supreme Court (Amendment) Bill, the Children Bill and the County Allocation Bill of Revenue Bill (2022).

In the reviewed ruling, the apex court had suspended the execution of the court’s judgment that the Bills, which should be subjected to joint resolution and mandatory concurrence of both speakers, are only those concerning counties.

The dispute stemmed from 24 laws signed by President Uhuru Kenyatta three years ago after being passed by members of Parliament without input of the senators. The bench that issued the ruling comprised Deputy Chief Justice Philomena Mwilu and justices Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko.

In the petition of appeal, the senators led by Speaker Kenneth Lusaka, Majority leader Samuel Phoghisio and Minority leader James Orengo are irked by declaration of the Court of Appeal that not all Bills tabled at the National Assembly require to be referred to the Senate.

In the pending appeal, the senators argue that the Court of Appeal judges erred in law and fact by failing to uphold the mandatory requirement in Article 110(3) of the Constitution.

“The said article of the Constitution requires that before either House considers a Bill, the Speaker of the National Assembly and the Senate should jointly resolve the question as to whether the Bill concerns counties, and if it is, whether it is a special or ordinary Bill," the senate says.

[email protected]. Additional reporting by Richard Munguti