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{
"id": 842666,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/842666/?format=api",
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"type": "speech",
"speaker_name": "Hon. Speaker",
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"content": "Hon. Members, indeed, even our courts have made pronouncements on the questions raised with regard to the participation of the President in the law-making process. This was the case with regard to the passage, referral and assent of the Kenya Information and Communications (Amendment) Act, 2013, the Public Audit Act, 2015, and the Finance Act, 2017, where the courts, in separate suits, affirmed the constitutional role of the President as outlined in Article 115 of the Constitution vis-à-vis the role of the House in the consideration of the President’s reservations. For the benefit of the House, I will cite some of these cases. With regard to the enactment of the Kenya Information and Communication (Amendment) Act, 2013, it was argued in court that the manner in which the Bill was referred back to the National Assembly with recommendations on various clauses, amounted to the President assigning himself a legislative role not contemplated or provided for in the Constitution, in violation of the doctrine of separation of powers. It was further contended that the referral of the Bill to the National Assembly with explicit reservations and suggested alternative clauses, and the acceptance of the recommendations by the National Assembly, amounted to usurpation of legislative authority and surrender of constitutionally vested power by the National Assembly (Nairobi High Court Constitutional Petition No. 30 of 2014 consolidated with Petition No. 31 of 2014 and Judicial Review Misc. Appl. No. 30 of 2014). In a decision rendered by a three-judge bench, the court ruled that the petitioners had assigned a narrow meaning to the term “reservations” that was not in accord with the Constitution. It was the court’s holding that it does not expect the President to simply state, “I have reservations about this Bill,” since without more information in the memorandum there would be nothing for the Legislature to consider, accommodate, or reject. This led to the determination that the President properly exercised his constitutional mandate as is vested in his office under Article 115. Further, with regard to the enactment of the Public Audit Act, 2015, the court was faced with the question of whether the President actively participated in the legislative process in the manner he noted in his reservations and whether that violated the law-making process. In answer, the court agreed with the decision of the three-judge bench in the Kenya Information and Communications (Amendment) Act, 2013 judgment, noting that it was unable to find fault with the procedure adopted by the President in making his reservations, which included recommended text that both Houses passed, when returning it to Parliament. Similarly, Hon. Members, the court was recently invited to declare that the President had overstepped his mandate under Article 115 of the Constitution by referring back the Finance Bill, 2017 with reservations, including a recommendation on the reduction of the rates of taxation applicable to betting, lotteries and gaming activities as proposed by the House in its amendments to the Betting, Lotteries and Gaming Act. In affirming the role of the President in the law- making process, the court categorically stated: “The constitutional power of the President to state what is wrong with the Bill can be done without making recommendations or proposals to Parliament to avoid the danger The electronic version of the Official Hansard Report is for information purposes only. Acertified version of this Report can be obtained from the Hansard Editor."
}