Thread by @AmbokoJH

UPDATE: Finance Act 2023 Day 2 Hearing

The Supreme Court has concluded hearing on the appeal through which the National Assembly, the Office of the Attorney General and the CS Treasury are seeking reinstatement of the Finance Act 2023 following nullification by the Court of Appeal.

· The Supreme Court will deliver its Judgement on notice (meaning the apex court is not binding itself on a timeline within which it will deliver its judgement, we now just wait for a notice).
· If you missed my summary of highlights from day 1, see quoted 🧵 for details.

Key take away points from today below.

A 🧵

First, my take

This matter seems to be drilling down to a few questions:

· Does the judgement on Petition No.5/2017 British American Tobacco Kenya, PLC vs CS Ministry of Health & 2 others & the prescribed principles of public participation provide adequate framework for public participation in Kenya & if yes, did Finance Act 2023 adhere to this?
· Did the Court of Appeal in nullifying Finance Act 2023 contradict itself when compared to its judgement on Pevans East Africa Limited & Another vs. Chairman, Betting Control & Licensing Board & 7 Others?

Mahat Somane tabled a very interesting argument:

· Each clause of the Finance Bill (& the Appropriations Bill) is subjected to a vote on the floor of the House.
· So the bill should be looked at with each clause standing on its own as a provision of the law
· The application of severability (i.e, if some provisions are deemed unconstitutional, others should still be allowed to be in force) should apply

· The Law Society of Kenya has countered the plea from former Attorney General, Githu Muigai, acting on behalf of the government, challenging the Court of Appeal's determination on the doctrine of mootness regarding the Affordable Housing Levy
· The Society argues the High Court was well within its mandate to throw out the Housing Levy

· The argument by the government of Kenya that the question of public participation & its underlying principles were exhaustively handled in Petition No.5/2017 British American Tobacco Kenya, PLC vs CS Ministry of Health & 2 others was challenged
· Specifically, the view that principle viii providing that "an allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis" were challenged to the extent that they are static on the question of public participation

Still on public participation:

· The question of Petition No.5/2017 British American Tobacco Kenya, PLC vs CS Ministry of Health & 2 others as well as Pevans East Africa Limited & Another vs. Chairman, Betting Control & Licensing Board & 7 Others
· The argument has been levelled that the circumstances differ (when compared to Petition No.5/2017 British American Tobacco Kenya, PLC vs CS Ministry of Health & 2 others) & in no way has the Court of Appeal contradicted itself in nullifying Finance Act 2023 (when compared to Pevans East Africa Limited & Another vs. Chairman, Betting Control & Licensing Board & 7 Others)

Kiragu Kimani asked:

· Suppose we opted for the route that post-Committee stage amendments should then be subjected to public participation, should it then be limited to only those who submitted memoranda? Should it again be open to everyone?
· Is the argument of the respondents a case of elevating direct public participation over indirect public participation & if yes, what does that mean for Article 94(1) of the Constitution?

· The argument that nullification of Finance Act 2023 threatens delivery of government services was challenged
· "Public service outside the provisions of law is not service at all. When legislation is adopted outside the confines of law, it is fit for annulment"

The question of the Appropriations Bill/Act the fact that it should contain revenue estimates per Article 221(1) of the Constitution also stood out

Finally,

The Supreme Court is expected to deliver its judgement on notice.

Ends!