The Speaker of the Senate, Rt Hon Kenneth Lusaka has termed the High Court Judgment on Constitutional Petition 284 of 2019 as a “landmark ruling” that not only reaffirms constitutionalism and the rule of law in Kenya, but also the role of the Senate in devolution.
Addressing the House by way of Communication from the Chair after a three-week recess, Speaker Lusaka noted that the judgment by the three-judge bench has far-reaching implications on the legislative business of the Senate.
“An order was also issued for a cessation of consideration of all Bills that are pending before either House for which joint resolution by the Speakers on whether they affected counties was not undertaken, in order to allow for such Bills to be subjected to the mandatory process contemplated under Article 110 (3) of the Constitution,” said the Speaker.
The 29th October, 2020 ruling by the bench – comprising Justices J. Ngaah, A. Ndung’u and T. Matheka – also declared unconstitutional, twenty-three (23) of the Acts passed by the National Assembly and enacted into law in contravention of Articles 96, 109, 110, 111, 112 and 113 of the Constitution.
“Further, the Court has given the two Houses of Parliament a 9-month window in which the impugned Acts ought to be brought in line to comply with the provisions of Article 110 (3) of the Constitution and regularized,” Speaker Lusaka explained.
Contributing on the Floor in response to the Speaker’s Communication, Sen Okong’o Mogeni, Senior Counsel (SC) who led the Senate’s legal team – together with Minority Leader, Sen James Orengo, SC and Sen Mutula Kilonzo Jr – observed that the window of opportunity that House had gotten to reassert its legislative mandate could not be gainsaid.
“This is the time that we as Senators should fight for the independence of the Judiciary. Because without the Judiciary, this Senate would have really been weakened,” Sen Mogeni emphasized.
On 20th June 2019, the Senate passed a motion and resolved to among other things to institute legal proceedings to challenge the laws that have been enacted unprocedurally in the 12th Parliament and seek a final determination of the procedure to be followed in respect of all the Bills that are pending before Parliament so as to ensure compliance with Article 110(3) of the Constitution and for the future.