Busia Senator Okiya Omtatah has moved to court over the exclusion of the Senate from the budget-making process and the allocation of funds through the Appropriation Act arguing that disregarding its input makes the process a nullity.
In his petition to the High Court, Mr Omtatah further said section 39(1) of the Public Finance Management Act (PFMA) is unconstitutional to the extent that it sets June 30, as the deadline in each year for the annual Appropriation Bill and any other relevant bills, required to implement the budget to be assented to.
He argued that the Senate's role in the legislative process has been overlooked by the National Assembly over the years, yet the Senate's involvement ensures that all regions and interests are represented and that the implications of financial legislation are thoroughly scrutinized.
He said the Senate must be involved in the allocation of funds to the constitutional commissions, independent offices, and the Parliamentary Joint Services, in line with Article 96(1) & (2), 109 and 110 of the Constitution.
“While the budget estimates and the Appropriation Bill are introduced in the National Assembly, they must, after being passed by the House, be also be considered, debated and passed by the Senate before the Bill is assented into law by the President,” he said in the petition.
Justice Lawrence Mugambi certified the case as urgent and directed him to serve the respondents with the court documents within three days. The judge directed the case to be mentioned on July 11 for directions.
Mr Omtatah argued that the exclusion of the Senate undermines the constitutional principles of devolution and bicameralism, which are designed to ensure inclusive and comprehensive legislative processes.
He said by bypassing the Senate, the National Assembly disregards the critical role the Senate plays in representing the interests of counties and their governments, and providing an additional layer of scrutiny to national financial legislation.
“The petitioners are aggrieved that since the advent of devolution in the year 2013, the National Assembly has annually passed unconstitutional national budgets because it has consistently excluded the Senate from the consideration, debate and approval of the annual budget estimates and the enactment of the annual Appropriation Act,” he said.
The Busia senator wants to ensure that going forward from the budget estimates for the financial year 2024/2025 and the Appropriation Bill, 2024, the estimates and the Bill should be considered, debated and approved strictly in accordance with the constitution.
He said the budget estimates were presented to the National Assembly on April 30, 2024, in compliance with Article 221(1) of the Constitution, which included the estimates constitutional commissions and independent offices, among them Ethics and Anti-Corruption Commission, Kenya National Commission on Human Rights, Commission on Administrative Justice and National Gender and Equality Commission.
“Therefore, it is imperative for the estimates and the Appropriation Bill to be presented to the Senate, allowing for comprehensive review and input from both Houses of Parliament,” he said.
On Monday, Speaker of the National Assembly Moses Wetang’ula explained that President Ruto’s Memorandum constitutes a rejection of the Bill in its entirety.
Mr Wetang’ula explained that the effect is that the entire Bill will be lost upon approval of the President’s reservations and recommendations by the National Assembly.
“ Any Member intending to negate the President’s reservations/veto or revive any of the sixty-nine (69) Clauses of the Bill is required to marshal the votes of at least two-thirds of the Members of the National Assembly, being 233 Members,” he said.
He said the President’s Memorandum recommending the deletion of all clauses of the Bill was informed by the need to reflect the voice of Kenyans who rejected the Bill.
“ The Committee and the House shall take this justification into account in their deliberations,” Mr Wetang’ula said.
He allayed fears of the Bill becoming an Act stating that having been referred back to the National Assembly for reconsideration on account of the President’s reservations, the Finance Bill, 2024 cannot become law through a mere lapse of time.
President Ruto assented to the Appropriation Bill, 2024 and Mr Wetang’ula said the financial gap of approximately Sh300 billion occasioned by the rejection of the Finance Bill, 2024 will be achieved by enacting a supplementary Appropriation Bill.
