The Finance Act,2023 has earned so much notoriety that the laurels have become withered. Its publicity stems from the fact that it introduced new tax bands. Of the many taxes introduced, the housing levy seems to be most popular but with negative publicity. Upon assent into law on 26th June,2023, the Act was resisted by filing eleven (11) constitutional petitions challenging the legislative process leading to the enactment and the constitutionality of provisions of the Act. Of the many assaults to the Act, public participation as a national value and principle of governance has attained new status and the Court of Appeal has broken customary jurisprudence and hold that, Parliament after conducting public participation is obligated to give reasons for rejecting or adopting the proposals received.
The controlling jurisprudence on public participation is the Supreme Court decision in SC Petition No. 5 of 2017-British Tobacco Kenya Plc -Versus- Cabinet Secretary for the Ministry of Health and Others [2019] eKLR (the BAT case) which enunciated the guiding principles on public participation and inclusive and effective representation and integrity and transparency of the process are listed as components of meaningful public participation. When the Court of Appeal hold that, Parliament after conducting public participation is obligated to give reasons for rejecting or adopting the proposals received, is it aligned with the Supreme Court decision in BAT case or it is a departure from the precedent?
The High Court on its part held that, there is no express obligation on Parliament to give written reasons for adopting or rejecting any proposals received from members of the public. Nonetheless, we think that in order to enhance accountability and transparency, it is desirable that the relevant committee, after conducting public participation gives reasons for rejecting or adopting proposals received. The need for giving reasons for rejecting or accepting proposals received from the public is to enhance transparency and accountability. But this is just obita dictum. The Court of Appeal elevated this obita dictum to ratio decindi. In its holding, the Court of Appeal recalled the preamble of the Constitution on aspirations of the people and that the values espoused in Article 10 (2) are neither aspirational nor progressive; they are immediate, enforceable and justiciable. Therefore, transparency and accountability on the handling of the public views by Parliament are critical components of our participatory democracy. Vesting in Parliament arbitrary power to reject or ignore the contribution from the public without explanation or justification is the surest way of undermining public participation. The increased role of transparency and accountability in public participation, makes the twin national values and principles of governance, broad and all inclusive in their reach, sweeping in their sway and peremptory in their command and failure to adhere them, is unmitigated unconstitutionality, illegality and irregularity.
As a compliance prerequisite for public participation henceforth, Courts should ascertain whether the public participation has been done in a manner that rationally connects. the consultation with the constitutional purpose of accountability, responsiveness and transparency. The holding by the High Court and previous Court decisions that, Parliament is not obligated to give reasons for accepting or rejecting views, is the surest way of rendering public participation illusory, cosmetic and a mere formality or public relations exercise, which the Supreme Court frown on in the BAT case.
In the end, the Court of Appeal reversed the High Court decision and held that, failure by Parliament to give reasons for accepting or rejecting the public views in enactment of the Finance Act,2023 was a violation of Article 10 (1) and (2) (c) of the Constitution rendering the entire Finance Act,2023 unconstitutional. The holding by the Court of Appeal by all probabilities will be subjected to an appeal to the Supreme Court and it will be interesting to see the decision of the apex in light with the BAT case.
Prepared By:
PATRICKS LAW ASSOCIATES
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