In the Matter of the Speaker of the Senate & another [2013] eKLR

Key Facts

Issues

• The third issue focuses on classifying the Division of Revenue Bill as a 'money Bill' under Article 114(3), which restricts such bills to the National Assembly. The Court analyzed the bill's provisions to determine if it fell under the definition of a money Bill, impacting the procedural requirements for its passage.
• The second issue addresses the Senate's role in the Division of Revenue Bill, determining if it qualifies as a Bill concerning county government under Article 110 of the Constitution. The Court examined whether the Bill's provisions affecting county government functions necessitated the Senate's involvement in its enactment, despite the National Assembly's assertion of exclusive competence.
• The first issue concerns the Supreme Court's jurisdiction to render an advisory opinion regarding the Division of Revenue Act, 2013, which was enacted by Parliament. The applicants argued that the Court has the authority under Article 163(6) of the Constitution, while the interested parties contended it should be resolved through litigation in the High Court. The Court had to determine if the matter fell within its discretionary advisory jurisdiction.
• The sixth issue involves interpreting Articles 95 and 96 of the Constitution to determine the respective roles of the National Assembly and Senate in revenue allocation. The Court considered whether the Assembly's exclusive handling of the Division of Revenue Bill aligned with the constitutional framework for devolution.
• The fourth issue examines the National Assembly's adherence to constitutional procedures, particularly Article 110(3) and 112, which mandate consultation with the Senate and mediation in case of disagreements. The Court assessed whether the Assembly's unilateral passage of the bill violated these procedural obligations.
• The fifth issue explores the balance between judicial oversight and legislative autonomy. The Court evaluated whether its advisory opinion jurisdiction could be exercised without overstepping into the legislative domain, considering the doctrine of separation of powers and the need for judicial restraint.
• The seventh issue addresses the mechanisms for resolving disputes between the two chambers, emphasizing mediation under Article 113. The Court highlighted the necessity of using mediation to resolve disagreements over bills concerning county government, ensuring harmonious legislative processes.

Holdings

• The Court affirmed its jurisdiction to provide advisory opinions on matters concerning county government, emphasizing devolution as a core constitutional principle. The legislative process for revenue division bills must involve both chambers, with the Senate's role safeguarding county interests.
• The Supreme Court held that the Division of Revenue Bill, 2013, essential for county government operations, required Senate legislative participation. The National Assembly's exclusion of the Senate violated constitutional procedures, necessitating mediation under Articles 110(3) and 113. Future inter-chamber disputes must be resolved through mediation to ensure harmonious governance.

Remedies

Legal Principles

• The Court underscored that the Constitution is the supreme law binding all state organs. It ruled that neither the National Assembly nor the Senate can operate outside constitutional frameworks, particularly regarding devolution and revenue allocation.
• The majority opinion confirmed the Supreme Court's power to review and invalidate legislative processes that contravene the Constitution. This includes assessing whether the National Assembly bypassed required mediation with the Senate when enacting the Division of Revenue Bill.
• The Court applied a purposive interpretation to Articles 95, 96, and 218, prioritizing the Constitution's goal of devolution and equitable resource sharing. This approach ensured legislative processes align with the broader objectives of decentralizing power and promoting county governance.
• The Court highlighted the mandatory mediation process under Article 113 for disputes between Parliament chambers. It criticized the Speaker of the National Assembly for unilaterally proceeding without resolving disagreements through the prescribed mediation mechanism.
• The Supreme Court emphasized its constitutional duty to ensure the National Assembly and Senate comply with legislative procedures, reinforcing the separation of powers. It held that the Court must intervene when legislative actions violate constitutional mandates, even if the matter is not adversarial.

Precedent Name

• Tinyefuza v Attorney-General
• Stephen Segoposto Tongoane and Three Others v. National Minister for Agriculture and Land Affairs and Others
• Re Manitoba Language Rights
• Marbury v. Madison
• Doctors for Life International v Speaker of the National Assembly and Others
• Re the Matter of the Interim Independent Electoral Commission
• Commission for The Implementation of the Constitution v Parliament of Kenya & Another
• Biti & Another v. Minister of Justice, Legal and Parliamentary Affairs and Another
• Amax Potash Ltd. v. Government of Saskatchewan
• In the Matter of the Principle of Gender Representation in the National Assembly and Senate

Cited Statute

• Constitution of Kenya, 2010
• Public Finance Management Act, 2012 (Act No. 8 of 2012)
• Supreme Court Act, 2011
• Local Government Act (Cap. 265, Laws of Kenya)

Judge Name

• Willy Mutunga
• P.K. Tunoi
• J.B. Ojwang
• S.C. Wanjala
• N.S. Ndungu
• K.H. Rawal
• M.K. Ibrahim

Passage Text

• The Court concludes that the National Assembly's unilateral passage of the Division of Revenue Bill without Senate mediation violated Articles 112 and 113, necessitating a constitutional resolution to preserve devolution principles.
• The Court holds that the Division of Revenue Bill is a Bill concerning county government because it affects the equitable sharing of revenue, which directly impacts the functioning of county governments as outlined in the Constitution.
• The Court emphasizes that the Speakers of the National Assembly and Senate must jointly resolve whether a Bill concerns county government before either House proceeds with consideration, as mandated by Article 110(3) of the Constitution.