The idea that one of the two houses of a country’s Parliament should sue the other is almost unthinkable – until you realise that this is Kenya, where the meaning of much of the Constitution is still to be interpreted.
As the three judges who heard this case put it, ‘Since its inception, the Constitution of Kenya, 2010 has been a subject of litigation in courts in this country mainly on the correct interpretation of its various provisions … for instance, … the supremacy of the Constitution itself, the functions of state organs … and generally how Kenya as a nation should be governed.’
This case ‘pits the Senate against the National Assembly with regard to the extent of their respective legislative functions.’ From 2017 to 2019, the National Assembly passed a total of 23 Acts of Parliaments without the participation of the Senate. It also unliterally forwarded 15 other bills to the Senate without complying with constitutional preconditions.
Because of its growing concern about the situation, the Senate took the question to court, asking that the disputed legislation be nullified. Now judges Ngaah Jarus, Anthony Ndungu and Mumbua Matheka have given their decision.
In the view of the National Assembly, the Senate had a restricted role in passing legislation, and the National Assembly has, ‘more or less, the exclusive mandate to legislate and specifically to enact’ legislation.
It is not the first time that the problem has been considered by the courts. During 2013 the Senate sought an advisory opinion from the Supreme Court. Those judges said that when laws were to be passed, neither House had exclusive powers. ‘The Speakers of both Houses have to engage and consult.’
In the view of the Senate, put to the court in this most recent matter, the way the National Assembly had dealt with legislation showed attempts to ‘weaken’ the Senate as a House of Parliament.
The Senate also argued that if either of the two Houses of Parliament was excluded from the legislative process, the resulting law ‘cannot properly be regarded as an “Act of Parliament”.’ This was because ‘Parliament’ consists of both the Senate and the National Assembly. And yet, even though no certificate with the signatures of the Speakers of both houses, certifying that the proper procedure had been complied with, was presented to the President, he nevertheless assented to the disputed Bills.
In their decision, the judges said, ‘As far back as 2013, what now appears to be a long-standing contest between the two Houses on their respective legislative functions was brought to the attention of the Supreme Court. … The grievances then were as they are in the present petition – that the National Assembly had ignored the Senate in the legislation process.’
The Supreme Court had in fact twice ‘come out clearly’ on the legal obligations of the Speakers of the two Houses. Contrary to the view of the House of Assembly, the Supreme Court’s views were ‘not just an opinion’.
Rather, it was an opinion ‘with the force of law and which binds all and sundry including all state organs, not least the two … Houses.’ It was the final word on whether the agreement of the Speakers of both Houses was required as a mandatory preliminary step in the legislative process. The answer to this question was ‘in the affirmative’.
Was any law, passed without the concurrence of both Speakers, constitutional? No, said the judges: the Supreme Court had made it clear that any law passed without that compliance is unconstitutional.
The National Assembly had amended its standing orders in a way the court described as ‘mischievous’, intending to get around the Supreme Court’s finding. It was also inconsistent with the constitution.
Counsel for the National Assembly had asked the court to ‘consider the repercussions’ of nullifying so many laws. It was a ‘reasonable question’, said the court. However, it added, ‘had the National Assembly paused and asked itself the same question before it set out to enact laws contrary to the express provisions of the Constitution and in flagrant disregard of the Supreme Court’s opinion on the role of the Senate in the legislative process, it would have appreciated the grave consequences that were bound to arise from its action.’
Having found the 23 laws unconstitutional, the court said that it would agree to suspend the order nullifying the 23 Acts for nine months. During that time the National Assembly ‘ought to have complied with … the Constitution and regularised these Acts.’