The tranquilization of legislative tyranny: How Kenyan Courts are giving life to Article 10
by admin on | 2024-09-05 20:37:24 Last Updated by admin on 2024-10-18 10:24:05
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The Constitution of Kenya, promulgated on August 27th, 2010, encompasses national values and principles of governance contained in Article 10.1 They include, inter alia, patriotism, national unity, social justice, the rule of law, democracy, and public participation. In essence, public participation is a cornerstone of good governance. Article 118 of the Constitution also requires parliament to facilitate public participation in the enactment of laws. This article examines how the judicial arm of government in Kenya has come in handy, to help curb legislative tyranny by giving life to Article 10 of the constitution. There exists an arm of government in Kenya called the legislature. It exercises legislative authority conferred to it by the people by virtue of Article 94.3 One of the chief roles of the two houses of Kenya’s parliament is to make laws, which are thereafter assented to by the president to become statutes. In a record two months, the Kenyan High Court and Court of Appeal have declared four statutes to be unconstitutional. The Social Health Insurance Fund Act, the Digital Health Act, and the Primary Health Act of 2023 were declared to be unconstitutional by the High Court in Petition E473 of 2023. On the other hand, Kenya’s Court of Appeal, in Civil Appeal E003 of 2023, declared the process that had led to the enactment of the Finance Act of 2023 a nullity hence rendering the act null and void. The state appealed for the stay of the two respective judgements. The Court of Appeal declined to give a stay to the judgement that had declared the SHIF Act to be unconstitutional. The Supreme Court on the other hand, in a ruling delivered on 21st August 2024, granted conservatory orders staying the judgement of the Court of Appeal that had declared the Finance Act of 2023 to be unconstitutional. One common factor that led to the two acts being declared unconstitutional was that the state had not carried out public participation that was sufficient and reasonable. Public participation in the law-making process comes after the second reading of a bill has already been done.
