Yesterday, the Supreme Court of Kenya was urged to uphold the Court of Appeal’s decision declaring the Finance Act 2023 unconstitutional. The petitioners, including the Law Society of Kenya (LSK), the Azimio la Umoja Coalition, and the Katiba Institute, argued that the Act was fundamentally flawed and was handled improperly. They contended that the appeals lodged against the Court of Appeal’s ruling were without merit.
The Court of Appeal’s decision to nullify the Finance Act 2023 was based on several procedural and constitutional issues. The court found that some sections of the Act were introduced after the public participation phase or did not meet the constitutional requirements for public engagement.
Judges Kathurima M’inoti, Agnes Murgor, and John Mativo of the Court of Appeal emphasized that significant amendments made to the Act after the initial consultation phase violated principles of transparency and inclusiveness, which are essential to Kenya’s legislative process. They also raised concerns about the legislative process, particularly regarding the Senate’s involvement in bills affecting county functions.
In its submission to the Supreme Court, LSK supported the lower court’s decision, arguing that the Finance Act 2023 was enacted in breach of constitutional norms. Senior counsel Charles Kanjama, representing LSK, highlighted that the Act’s passage ignored critical procedural requirements, such as adequate public participation and proper legislative scrutiny.
Kanjama argued that the government failed to sufficiently engage with those directly affected by the Act’s provisions, including marginalized and illiterate populations. “The process did not meet the constitutional requirement for meaningful public participation,” Kanjama asserted. “Views from those most affected by the amendments were neither solicited nor considered, which undermines democratic governance.”
He further noted that amendments to the law were enacted without adequate input from those who would be most impacted financially. According to Kanjama, this oversight violated the principles of transparency and inclusivity outlined in the Constitution, thereby invalidating the legislative process.
Argument on the Affordable Housing Act and Finance Act 2023
He argued that the Affordable Housing Act had repealed Section 84 of the Finance Act 2023, which had previously been a point of contention.
“With the repeal of the relevant section by the Affordable Housing Act, the specific issue regarding the Housing Levy has become moot,” Kanjama explained. “There is now no substantive matter for the Court of Appeal to adjudicate concerning this provision,” he added.
Azimio la Umoja Coalition’s Support
The Azimio la Umoja Coalition also voiced strong support for the Court of Appeal’s decision to declare the Finance Act 2023 unconstitutional.
Through its legal representative, Arnold Ochieng, the coalition argued that the Act’s enactment was marred by significant deficiencies in transparency and accountability. “The legislative process failed to uphold the basic tenets of democratic governance, particularly concerning the public’s right to participate meaningfully,” he said.
Katiba Institute’s Position
Katiba Institute similarly supported the Court of Appeal’s decision. They argued that the Court of Appeal’s ruling addressed critical issues related to public participation and the legislative process. They emphasized that the failure to involve the Senate in the passage of sections affecting county functions further underscores the Act’s procedural flaws.
According to Katiba Institute, upholding the Court of Appeal’s decision is crucial for preserving the integrity of our constitutional framework and ensuring that laws are enacted in compliance with established legal standards.
Government’s Counterargument
The government, represented by the Attorney General, Treasury Cabinet Secretary, National Assembly, and KRA, wants the Supreme Court to overturn the ruling against the Finance Act 2023, citing the economic crisis.
Githu Muigai, representing the AG and Treasury CS, told the judges that the Act is crucial for the country’s economic stability and that its invalidation could precipitate a fiscal crisis. Muigai emphasized that the Affordable Housing Levy remains a significant and active issue for the government.
“The question of how to enact an effective and constitutionally compliant tax statute is not just an academic exercise but a practical necessity for managing the country’s revenue,” he explained.
