The Law Society of Kenya has criticised the Supreme Court following its ruling on the Finance Act, 2023, regarding the public participation undertaken before it was passed.
LSK President Faith Odhiambo said the expeditiousness of public participation, which is a legislative process, cannot be said to overcome public interest and its legitimate expectation.
She added that the Parliament cannot be exempted from the need to rationalise their decision under the guise of public participation not constituting an administrative action.
"We respectfully disagree with the approach taken by the court," she said.
Odhiambo noted that the decision came at a time when Kenyans are grappling with inconsistencies in public participation.
"Over and above upholding the impugned provisions of the Finance Act 2023 as being constitutional, the Court went through great lengths to demonstrate why, in its view, the issues surrounding public participation in the Act were not potent," she added.
At the same time, however, Odhiambo welcomed the Court's recommendation for the enactment of a statute to guide public participation.
She expressed hope that if the Apex Court is invited to make a future decision on the subject, it will provide more elaborate and purposive guidance on the modalities, scope and extent of public participation.
"This is with a view of closing the gaping loopholes created by the Court's determination for Parliament to act "contemptuous" to views collected during public engagements," she said.
In the subject case, the Supreme Court on Tuesday overturned the decision by the Court of Appeal, which had declared the Finance Act 2023 unconstitutional.
In its decision, the Court of Appeal had dismissed the Act as entirely unconstitutional, null and void, citing a lack of public participation.
However, the seven-judge Supreme Court bench dismissed the appeal on the grounds that there is no law governing public participation.
“The bill was subjected to public participation which was adequate and satisfactory taking into account the circumstances of enacting a Finance Act. To this extent, we find there was no basis to declare the entire act unconstitutional," the judges ruled.
The Court stated that the Parliament ought to put in place a legislative framework to regulate the process of public participation as envisaged under the Constitution.
"Parliament ought to put in place measures to ensure that all versions of a bill, at every stage of the law-making process, are accessible to the public for their information and scrutiny," the court further ruled.
