Law Society of Kenya Critiques Supreme Court’s Finance Act 2023 Ruling: An Analysis on Public Participation and Legislative Processes

The Law Society of Kenya (LSK), represented by President Faith Odhiambo, recently voiced concern over the Supreme Court’s decision to uphold the constitutionality of Kenya’s Finance Act 2023. According to Odhiambo, the Supreme Court failed to address concerns regarding insufficient public participation in the Act’s legislative process. This ruling has sparked discussions on the critical balance between expeditious legislative processes and the constitutional mandate for public involvement. Odhiambo argues that while parliamentary efficiency is essential, it should not be achieved at the expense of public input and legitimate expectations from citizens.

In response, Odhiambo’s statement underscores the LSK’s discontent with the court’s approach, particularly on issues surrounding public engagement in legislative decisions that affect the public. This article delves into the ruling’s implications, the LSK’s critique, the significance of public participation in legislative processes, and the potential impact on future legislation.

The Supreme Court’s Ruling on the Finance Act 2023

On a significant legal day in Kenya, the Supreme Court upheld the constitutionality of Kenya’s Finance Act 2023 after reviewing and partly overturning a previous ruling by the Court of Appeal, which had initially declared parts of the Act unconstitutional. Led by Chief Justice Martha Koome, the Supreme Court judges asserted that the Finance Act met legislative standards despite arguments regarding the inadequacy of public involvement.

While the Supreme Court’s ruling maintained that the Finance Act adhered to legislative standards, it also acknowledged the need for clearer guidelines on public participation. However, Odhiambo’s criticism centers around the idea that public engagement was sidelined in this instance, particularly when assessing the Act’s constitutionality. She emphasized that the legislative process, while critical to governance, should not be permitted to bypass the public’s role, which is enshrined in Kenya’s constitution.

Public Participation as a Constitutional Mandate

Public participation is a core principle in Kenya’s 2010 Constitution, reflecting the country’s dedication to democratic values, transparency, and accountability. The constitution mandates that public participation be incorporated into legislative processes to ensure citizens have a voice in decisions affecting them. Public involvement is especially pertinent in legislation with significant socio-economic impacts, such as the Finance Act, which governs taxation and other financial policies directly affecting Kenyans’ lives.

Odhiambo argued that the process by which the Finance Act was legislated overlooked this critical component. According to her, expediting legislative processes must not come at the cost of sidelining the public. She stated, “Expeditiousness of the legislative process cannot be said to override legitimate expectation and public interest,” emphasizing that Parliament cannot disregard the public’s voice under the pretense of legislative efficiency. In Odhiambo’s view, this sets a worrying precedent, where efficiency is allowed to overshadow transparency and accountability.

The Court’s Justification and the LSK’s Response

In their ruling, the Supreme Court judges addressed the issue of public participation but argued that concerns raised did not carry sufficient weight to render the Finance Act unconstitutional. The Court’s interpretation of public participation requirements, however, has fueled debate about how far public involvement should extend and at what stage of the legislative process it is most impactful. According to Odhiambo, this perspective insufficiently addressed public concerns, as the ruling “went through great lengths to demonstrate why, in its view, the issues surrounding public participation on the Act were not potent.”

While the Court upheld the Act’s constitutionality, it also recommended that Parliament enact specific legislation to guide public participation in future legislative processes. This recognition by the Court suggests an acknowledgment of existing gaps in the legislative framework regarding public involvement, even as it ruled in favor of the Finance Act.

Odhiambo’s response to the ruling reflects a call for more nuanced judicial interpretations. She emphasized that public participation is not a formality but a substantive right that ensures that legislation reflects the people’s will. By requesting comprehensive future rulings, she implies that public participation should be more clearly defined and standardized across legislative processes, especially for bills with significant societal impact.

Examining Legislative Efficiency vs. Public Input

The Supreme Court’s ruling has rekindled a debate about the delicate balance between swift legislative action and public consultation. On one hand, there is a need for an efficient legislative process that allows Parliament to respond to urgent issues without excessive delay. Taxation, for example, is often subject to time-sensitive considerations, requiring prompt legislative action.

On the other hand, citizen engagement in the legislative process fosters a sense of ownership and accountability. Public participation is intended to be more than a procedural step; it is a measure of democratic governance and respect for the populace’s input. Without effective public consultation, legislation risks being perceived as detached from the people’s actual needs and concerns. The LSK’s stance argues for a middle ground, where efficiency does not override the participatory spirit of Kenya’s democracy.

Implications of the Supreme Court’s Recommendation on Public Participation Legislation

The Court’s recommendation to Parliament to enact legislation guiding public participation presents an opportunity to bridge the current gaps in the legislative process. If adopted, such a law could address key questions raised by the LSK regarding the scope, timing, and quality of public involvement. For instance, should public consultations take place at every stage of a bill’s progression, or is it sufficient to seek public input at a particular point? Furthermore, what standards should be met for a consultation to be deemed meaningful?

A law on public participation would also help define the boundaries and expectations for both lawmakers and the public. Legislators would gain clearer guidelines on how to structure public consultations, while citizens would understand when and how they can provide input. Such clarity could prevent future legal challenges and ensure that public participation becomes an integral part of Kenya’s legislative framework rather than a contested procedural step.

Potential Impacts on Future Legislation and Public Trust

Odhiambo’s critique of the Supreme Court’s ruling reflects growing public dissatisfaction with Parliament’s approach to public participation. If left unaddressed, this discontent could erode public trust in the legislative process. When citizens feel their views are inadequately considered, they may lose faith in the transparency and accountability of their representatives.

The LSK’s call for comprehensive judicial guidance on public participation echoes a broader desire for laws that genuinely reflect public interests. Such guidance would not only enhance the credibility of legislation but also promote civic engagement, encouraging more Kenyans to participate in governance processes. Moreover, it could lead to legislative reforms that better address the needs of Kenya’s diverse population, especially in areas directly affecting livelihoods, such as taxation, healthcare, and education.

Moving Forward: Strengthening Democratic Processes in Kenya

The Supreme Court’s ruling on the Finance Act 2023 is a pivotal moment for Kenya’s democratic processes. While the Court’s decision allows the Act to stand, it also highlights the need for Kenya’s legislative and judicial systems to continually evolve to meet the public’s expectations. The LSK’s response serves as a reminder that public participation is central to Kenya’s democracy, not an optional component of the legislative process.

Faith Odhiambo’s statement resonates with the aspirations of many Kenyans who wish to see a government that listens, adapts, and responds to their concerns. Her call for more comprehensive judicial rulings on public participation suggests a path forward where the judiciary and legislature work in tandem to uphold democratic principles. By prioritizing public engagement, Kenya can strengthen its governance framework, ensuring that laws reflect the will of the people and foster a transparent, accountable, and inclusive democracy.

As Kenya progresses, the balance between legislative efficiency and public consultation will remain a critical point of reflection. The Supreme Court’s ruling, while upholding the Finance Act, emphasizes the need for legislation that provides clear guidance on public participation. In doing so, Kenya can continue building a democracy where laws are not only effective but also inclusive of the voices they impact.