LSK Critiques Supreme Court Ruling on Finance Act Public Participation

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The Law Society of Kenya has criticized the Supreme Court for its ruling on the Finance Act, 2023, particularly regarding the public participation that occurred before its passage. LSK President Faith Odhiambo stated that the urgency of public participation, as part of the legislative process, should not overshadow the public’s interest and legitimate expectations. She emphasized that Parliament cannot escape the responsibility to justify its decisions by claiming that public participation is not an administrative action. “We respectfully disagree with the court’s approach,” she said. Odhiambo highlighted that this decision comes at a time when Kenyans are facing inconsistencies in public participation. She noted that while the court upheld the contested provisions of the Finance Act as constitutional, it went to great lengths to argue that the issues surrounding public participation were not significant. However, she welcomed the court’s recommendation for a statute to guide public participation and expressed hope that if the Supreme Court is called upon in the future, it will offer clearer and more purposeful guidance on the scope and methods of public participation. This aims to address the significant gaps left by the court’s ruling, which allows Parliament to disregard feedback gathered during public engagements. In the case at hand, the Supreme Court overturned a Court of Appeal decision that had deemed the Finance Act 2023 unconstitutional due to inadequate public participation. The Supreme Court judges ruled that the bill underwent adequate and satisfactory public participation, given the context of enacting a Finance Act, and concluded there was no basis to declare the entire act unconstitutional. They urged Parliament to establish a legislative framework for public participation, ensuring that all versions of a bill are accessible to the public at every stage of the law-making process.