Kenya stands to lose Ksh214 billion should the Supreme Court uphold a Court of Appeal ruling that declared the Finance Act 2023 unconstitutional, according to the Attorney General.
While making his submission before the Supreme Court on Tuesday, September 10, Senior Counsel Githu Muigai who was representing the Attorney General and the National Treasury said the government would struggle to raise revenue should such a decision be made.
“Senior Counsel Prof. Githu Muigai, acting for the Office of the Attorney General and the Cabinet Secretary for Treasury and National Planning told the Court that the Country stands to lose Revenue to the tune of Kshs. 214 Billion, if the Government was forced to revert back to the Finance Act 2022, as would be the impact of the Court of Appeal Decision that invalidated the Finance Act 2023, in addition to damaging the Country’s credit ratings,” a statement from the Judiciary reads.
According to Prof. Muigai, reverting to the Finance Act 2022 would greatly hamper the Government’s ability to fund its programs and ultimately affect the Country’s ability to meet its debt obligations.
On his part, lawyer Mansuor who was acting for the National Assembly and the Speaker of the National Assembly told the Bench Chaired by Chief Justice Martha Koome, that there had been adequate public participation prior to enactment of the Finance Act 2023, contrary to the position of the Appellate Court which invalidated the Act.
In his submission, Mansour affirmed that there was no instance where the National Assembly dismissed any submission from members of the public to warrant the nullification of the Act.
“Nowhere did the National Assembly dismiss any submission, even where the same propositions were made by different individuals or institutions. And this applied to the memoranda presented physically and on email,” noted Lawyer Mansuor.
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He went on to note that the House standing orders allow for further amendment of any Bill after public participation, at the Committee stage and during the Committee of the Whole House, without necessarily having to undertake another round of Public Participation.
“This would be a very serious issue because it would in effect also hamper the Government’s ability to raise revenue through borrowing” noted Prof. Muigai.
The Bench chaired by Chief Justice Martha Koome, and also comprising Lady Justice Philomena Mwilu, Justice Mohammed Ibrahim, Justice Smokin Wanjala, Lady Justice Njoki Ndung’u and Justice William Ouko heard that the National Assembly undertook sufficient public participation on the Finance Bill 2023, prior to its passage in the House.
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Respondents in the Appeal include Busia Senator.
The hearing came days after the Supreme Court stayed the Appellate Court’s order that declared the Finance Act unconstitutional.
In its ruling on July 31, the second highest court in the land found that Parliament had violated articles several provisions on legislation, hence nullifying the entire Act. The ruling piled pressure on the Treasury which was coming from coping with the rejection of the Finance Bill 2024.
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