Parliament defends Finance Bill 2018 in court


A general view is seen of a special Parliamentary session in Nairobi. Photo/REUTERS
A general view is seen of a special Parliamentary session in Nairobi. Photo/REUTERS

In Summary

  • Parliament says the petition by Omtatah has not disclosed how the Constitution is violated by the state raising revenue by way of taxation.
  • According to the House, the court lacks expertise in public policy and public finance to undo the extensive process at the interim stage, adding that any legislation passed by Parliament is presumed constitutional.
  • Meanwhile, the AG has been given time to file his responses in the case.

The National Assembly has defended the Finance Bill 2018 saying that President Uhuru Kenyatta did not amend the Bill but rather referred it back to the National Assembly.

In its response to a petition filed by Activist Okiya Omtatah, the 11th House says it’s not in the public interest to grant orders suspending the Finance Act 2018 as requested by Omtatah.

Parliament says the court lacks expertise in public policy and public finance to undo the extensive process at the interim stage, adding that any legislation passed by Parliament is presumed constitutional.

Through lawyer Wangechi Thanji, parliament says that Article 210 of the Constitution requires that there be legislation duly enacted by Parliament before taxes can be levied and therefore it is constitutional for parliament to pass the Value added Tax Act 2013 approving that taxes can be levied.

“Article 209(2) of the constitution mandate Parliament to authorize the National government to impose income tax, Value Added Tax , customs duties and excise tax,” reads the responses

Parliament further states that the petition by Omtatah has not disclosed how the Constitution is violated by the State raising revenue by way of taxation.

“The petitioner does not stand to suffer prejudice if conservatory orders is not granted because the constitution obligate Citizens to raise revenue by imposing taxes,” reads court documents.

Meanwhile, the Attorney General, has been given time to file his responses in the case. This is after the court was told that AG was not ready to proceed with the matter.

However, the AG has filed a preliminary objection seeking to have the case dismissed. He argues that the application offends the doctrine of presumption of constitutionality that is enjoyed by the impugned Finance Act.

The AG says that the application for interim suspension of the implementation of the Finance Act is tantamount to ousting the legislative will of the people through Parliament.

The State Law office also defended the President’s move to assent to the bill saying that he did not usurp the legislative powers of Parliament by proposing and outlining the reservations he had with the said bill.

According to State Counsel Charles Mutinda, the High Court has no jurisdiction to hear or quash an act of parliament nor suspend it in its entirety at an interlocutory stage.

“The issues the subject of the petition can only be determined upon full hearing hence the petition fails to disclose a prima facie case,” argues State Counsel Charles Mutinda.

The case will now be heard on October 9, 2018.

In the case, Omtatah has sued the state for implementing the said Act which he argues was enacted in violation of the law.

He wants the court issue an interim order suspending the implementation of the Finance Act 2018, which he claims was enacted in violation of the Constitution.

“The Finance Act 2018, which the President assented to on 21st September 2018, is itself also in valid, null and void,” he argues.

“The Finance Bill died the moment it was declared that those members of parliament opposed to the president’s Amendments to the Bill had failed to raise the requisite numbers.

He claims that the speaker of National Assembly was wrong to thereafter present a “dead Bill” to the president for assent. Omtatah argues that the implementation of the said Act will be a major violation of the Constitution.

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Story By Dzuya Walter
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