The High Court in Kisumu has absolved Parliament on the manner in which it conducted public participation on the Affordable Housing Bill 2023 a move that now the proposed legislation to be considered by the Senate without any hindrance.
On February 19 2023, the High Court in Kisumu, Constitutional Petition No. E013 of 2023 issued interim conservatory orders to prohibit the conduct of public participation on the Affordable Housing Bill, 2023 through invitation of memoranda from the public.
However, on Thursday this week, the court dismissed the Petition seeking to stop the consideration of the Bill based on public participation pointing out that the public participation conducted by the National Assembly on the Bill, was effective and constitutionally compliant.
The court termed the petition premature, as it had presumed that the National Assembly would only conduct public participation in the Bill through invitation of memoranda.
In dismissing the Petition, the High Court further held that it would not interfere with the legislative-making process and hence declined to also recall the notice published by the National Assembly in print media on 9th December 2023, inviting the public and stakeholders to submit memoranda on the Bill.
In its judgment, the court said it cannot overemphasize the necessity of effective public participation in the legislative-making process given that it is through it that the government achieves prioritised people-centred developments and the legitimacy of its actions.
“In the light of the matters aforesaid, the 3rd respondent cannot be faulted for the manner in which it has conducted public participation in respect of the Affordable Housing Bill No.75 of 2023. This court finds that the public participation conducted by the 3rd respondent was effective and constitutionally compliant,” reads the court ruling.
“This court concurs with the respondents on their position that the petition herein breached the principle of ripeness as the petitioner presumed that the 3rd respondent intended to conduct public participation through one mode, which is through submission of memoranda when he filed this petition,” the court said.
It is now evident that this petition does not fall in the pigeonhole of exceptions to the general rule that courts will not interfere with the legislative-making process as decided in the case of Cormack Vs Cone Queens 1967 and this court is thus disinclined to accept the petitioners' invitation for a recall of the notice issued by the Clerk of the third respondent on December 9, 2023 by way of an order of mandamus.
“The petitioners’ prayer for orders of declaration also falls by the way,” the court ruled.
The petitioner Grassroots Trust said the House should conduct adequate public sensitization, especially targeting marginalized groups as they may not know the content of the Bill before collecting views.
However, Majority Leader Kimani Ichung’wah has maintained that the meetings will proceed stating the court order only prohibits the submission of a memorandum.
“The orders did not prohibit Parliament from conducting any other form of public participation,” he argued.
He added that the High Court held that the affordable housing framework requires a comprehensive legal framework hence the introduction of the Bill.
The Bill, which seeks to anchor the 1.5 per cent housing levy on both salaried and income-earning Kenyans in law, was passed by the National Assembly last week in a chaotic session that led to a mass walk out of opposition MPs.
The Bill is currently before the Senate for concurrence as stipulated in the constitution since it affects counties.
