Kenya Court of Appeal declares Finance Act 2023 unconstitutional over inadequate public participation News
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Kenya Court of Appeal declares Finance Act 2023 unconstitutional over inadequate public participation

The Kenya Court of Appeal at Nairobi delivered a judgement Wednesday rendering the controversial Finance Act 2023 unconstitutional.

The Finance Bill 2023 was tabled before the National Assembly on May 4, 2023. It was later assented to by the president on June 26, 2023 and became Finance Act 2023. The Act amended 12 laws, eliciting 11 constitutional petitions filed at the High Court, Constitutional and Human Rights Division, Nairobi.

The petitions, which were later consolidated, sought to challenge the legislative process leading to the enactment and the constitutionality of the act’s provisions. The trial court declared sections 76, 77, 78, 84, 87, 88 and 89 of the act unconstitutional. However, the court held that sections 30 to 38 and 47 of the act are constitutional. This decision elicited seven appeals to the Court of Appeal and three cross-appeals.

The appeals court analyzed and distilled nine issues for determination, in the consolidated appeal, which included whether there was sufficient public participation in the enactment of the act and whether Parliament was obligated to give reasons for adopting and rejecting views given during public participation.

Public participation is premised on the principle that those who are affected by a decision have the right to be involved in the decision-making process. This obligation is provided for under Articles 10 (1) & (2) and 118 of the Kenyan Constitution.

The court reiterated that the Constitution recognizes the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law; making a determination that Parliament, after conducting public participation, is obligated to give reasons for rejecting or adopting the proposals received failure to which the process would be rendered flawed.

Following the withdrawal of Finance Bill 2024, and the declaration of the Finance Bill 2023 as unconstitutional, the measures in the Finance Act 2022 will take effect as the country awaits the tabling of another finance bill.

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