Dr. Shirley A. Genga, law lecturer at Kenya's Jomo Kenyatta University of Agriculture and Technology, discusses the controversial Finance Act, the legislation at the root of recent protests in Kenya that's scheduled for consideration by a special High Court panel...
The last four or so weeks have been dramatic in Kenyan corridors of power because of the controversial Finance Act, 2023. It is not only one of the first major laws that was pushed through by the new Kenya Kwanza government which came to power in September 2022, but it is also a law that will hit the pocketbooks of Kenyans due to its tax provisions. Indeed it has the potential to affect the lives of every Kenyan, especially with inflation in the country at an all-time high. According to the Kenya National Bureau of Statistics the national cost of living is going up. From June 2022 to June 2023, the Food and Non-Alcoholic Beverages Index increased by 10.3%; the Transport Index increased by 9.4%; Housing, Water, Electricity, Gas and Other Fuels Index increased by 9.4%; and Furnishings, Household Equipment and Routine Household Maintenance Index increased by 5.1%. Everyone has felt the pinch, and as a result, the Finance Bill has been one of the most talked about laws. It constantly trended on social media platforms for most Kenyans, from Twitter, to TikTok, to Facebook, and even LinkedIn. It has prompted many television specials and expert opinions on its contents and its potential impact.
The life of the legislation has so far been a roller coaster ride—from the moment that the proposed Finance Bill was put through the public participation stage in May to when it was brought before parliament and assented to by President William Ruto on June 25, 2023, to when it was suspended on June 30, 2023, to now, with Kenya waiting for the matter to be ruled on by a special panel of High Court judges on July 28, 2023. It has been riddled with everything from political to legal intrigue, mixed in with betrayal and just about anything you would add to an overly-dramatic soap opera. It has embraced the good, the bad, the downright ugly, and even (might I add) the outrageously shocking.
Although the Finance Bill was officially signed into law on June 25, 2023, the High Court (Justice Mugure Thande) temporarily suspended its implementation on June 30, 2023, pending the hearing and determination of a lawsuit filed by Busia Senator Okiya Omtatah. The lawsuit challenges the Finance Act and seeks to have some sections of the law purged. The matter was then set down on July 5, 2023, for directions.
At a hearing on July 10, 2023, Cabinet Secretary, National Treasury & Economic Planning, Ndung’u, through lawyer Githu Muigai, opposed the application, asking the court to set aside the suspending order of June 30, 2023. Muigai said the suspension order, if not set aside, would bring a budgetary crisis to the government. Nevertheless, Busia Senator Okiya Omtatah and lawyer Otiende Omollo argued that the state would suffer no harm if the order were extended and conservatory orders issued. The High Court extended the order that suspended the Finance Act until July 10, 2023. Indeed, Justice Mugure Thande in her ruling on July 10, 2023, held that the state had not demonstrated to her satisfaction grounds to warrant the setting aside of the order of June 30 that suspended the implementation of the Finance Act. She then certified the matter as one that raised a substantial question of law and thereby transmitted the file to the chief justice to assign a bench of not less than three judges to hear and determine the petition. Kenyan Chief Justice Martha Koome on July 18, 2023, appointed High Court judges David Majanja, Christine Meoli, and Lawrence Mugambi to determine the petition.
The State then moved to the Court of Appeal on July 20, 2023, in an attempt to have Thande’s order set aside, saying the decision was affecting government operations. The judges declined to do so and instead set July 28 for their ruling on the matter.
Several individuals and entities have filed separate lawsuits against the Finance Act, including the Law Society of Kenya (LSK), Busia Senator Okiya Omtatah, and the Association of Alcoholic Beverages. This is good because cases help to raise critical questions and create opportunities to clarify the law, which is a fundamental aspect of building jurisprudence. This will provide a framework for interpreting and applying the law in future cases.
The panel of High Court judges appointed by Chief Justice Koome will need to answer several key legal issues. First, whether article 110(3) of the constitution was applied before the Finance Bill was passed into law. The section provides that before either house (the National Assembly or Senate) considers a bill, the speakers of the National Assembly and Senate shall jointly resolve any question as to whether it is a bill concerning counties, and, if it is, whether it is a special or an ordinary bill.
Second, the court will determine whether the Finance Act falls into the category of a bill concerning county government according to Articles 110 and 114(4) of the Constitution or if it is a money bill according to Article 114(3) of the Constitution. This will play a huge part in determining whether relevant sections in the Finance Act will be rendered legal or null and void because they are not in accordance with the Constitution. If the court determines that all the amendments in the Finance Bill do not fall within the category of a bill concerning county government, in accordance with Article 110 and 114(4), and it instead falls within the definition of a money bill, according to article 114(3), and that the procedure set out in Article 110(3) of the constitution was followed, then the court will hold that the right procedure was followed in the passing of the current Finance Act. However, if the court finds that some or all of the amendments of the Finance Act fall within the definition of the category of a bill concerning county government, in accordance with articles 110 and 114(4), then the law should have been passed through the Senate before it was brought before the National Assembly, and the court would be within its power to render the relevant sections or the whole law (depending on what the court finds) null and void in accordance to article 2(4) of the constitution.
Third, the court will determine whether public participation was effectively adhered to in accordance with the Constitution. Additionally, it will resolve whether the Finance Act 2023 infringes on the right to food security, the right to property, and the right to access justice, as well as if the law is in violation of fair taxation principles. To conclude, it will also determine whether the government adhered to the Public Finance Act and the National Assembly’s Standing Order No 244 in the passing of the Finance Act.
Although the implementation of the Finance Act is currently suspended by the High Court, if the court lifts the suspension and the act is left in its current form, Kenyans should brace for tougher financial times ahead.
The bill is in line with the government’s goal of seeking to raise more cash to foot its proposed Sh3.6 trillion for the FY’2023/2024 budget. Notably, the act in its current state includes a housing levy of 1.5% of gross pay. Digital creators will be charged a tax of 5% and betting and insurance withholding tax, which will be charged at 12.5% and 16%. Further, it includes a 16% value-added tax on petroleum products, up from 8%. Past experience has consistently shown that when the cost of petroleum products goes up, almost everything else goes up.
Top on the list is the untimely and unnecessary deaths of Kenyans during the recent demonstrations against the rise in the cost of living.
Next are the leaders who do not understand the weight of responsibility they have when they are voted into power. This includes Members of Parliament (MP) who could not be bothered to turn up and vote on a law that has the potential to drastically affect the lives of all Kenyans. Voting on laws is one of the most important democratic roles that MPs perform on behalf of those who voted them into power. It is a privilege that comes with many burdens and should be given due respect. A vote is not just about an MP giving a yes or no or even aligning with the views of their party, it is about being a voice for the needs of constituents. Hence, for some MPs to dare not turn up to Parliament without any plausible excuse is not only negligent but akin to abandoning their duties. Failing to represent the voices of those who put you in power is nothing short of a travesty. That is what Kenyans were treated to during the passing of the Finance Act, 2023.
In the National Assembly, there are currently 349 MPs—290 members elected by registered voters; 47 women elected by registered voters from the counties; 12 members nominated by parliamentary political parties to represent special interests of youth, persons with disabilities and workers; and the Speaker of the National Assembly. During the second reading of the bill, on June 14, 2023, a critical stage of the process, 92 MPs could not be bothered to turn up. Of the 257 MPs who took part in the voting exercise, 176 voted in favor of the bill, while 81 opposed. No legislator abstained from the vote. Some, like Nominated MPs Sabina Chege, Rozaah Buyu, TJ Kajwang (Ruaraka), and Suba North MP Millie Odhiambo were suspended and could not participate in the voting.
Matters were different during the third reading of the bill on June 21, 2023. After some public shaming when the media put out a list of MPs who did not take part in the second reading, the attendance for the third reading greatly improved to 272. About 15 MPs did not turn up for the third reading, which is the final reading of the bill. During the third reading, 184 MPs (mostly from the Kenya Kwanza party) supported the bill, while 88 MPs (mostly from Azimio) opposed it. Hence, the Finance Bill, which promised to overburden the pockets and literally break the financial backs of Kenyans, especially the common mwanainchi (“citizen” in Swahili) swimmingly passed the second and third reading.
The ruling Kenya Kwanza (Kenya First) party was elected on the foundational promise that the MPs would speak for the “hustler nation,” the common mwanainchi, those who are not born from a political dynasty or a privileged family—those who are trying to make it through hard work and not purely on connections or generational wealth.
The bill was passed even though it did not receive much public support. In fact, a survey conducted between May 19 and June 6, 2023, found that at least 75% of Kenyans strongly opposed the bill. Public participation, which took place in May, highlighted a lack of support for bill. Additionally, Catholic and Anglican church leaders have publicly come out opposing the bill.
The Outrageously Shocking
A few days after parliament passed the bill, the most ridiculous thing happened. National media reported that on July 7, 2023, National Assembly chief whip Silvanus Osoro, while on activation drive in Kisii for United Democratic Alliance (a party under Kenya Kwanza) openly declared that Kenya Kwanza manipulated the absence of opposition Azimio Kenya lawmakers during the vote on the Finance Act. In a video, Osoro insinuated that he used unethical methods to persuade some Azimio MPs, i.e. the opposition, into missing the parliamentary session on the day of voting and emphasised that no one asked, persuaded, pushed, or even provoked him for this information. In fact, his words, which were translated to English but spoken in Kisii, were: “I had to look for ways, by hook or by crook, to get it through, I had to manipulate the system. I looked for ways to get the opposition MPs to play our tune, I conspired with the opposition MPs and got some of them to absent themselves from the House so that I could get the numbers. Some were sponsored to go abroad while others were bribed to feign illness.” He later claimed to have been misquoted by the media.
The special High Court bench will be hearing the matter on Friday, July 28th, and our hope is that whatever decision the court makes, it will also provide a clear and reasoned explanation for its decision, which will serve as a guide for future cases with similar legal issues. We hope that through the decision made, it will resolve any legal uncertainties, ambiguities, or gaps, if any, that will be brought before the court. Lastly, we hope that it will help create a more concrete understanding of the law and highlight the important role it plays in the process of democracy.
Dr. Shirley A. Genga is a law lecturer at Jomo Kenyatta University of Agriculture and Technology in Juja, Kenya. She is a human rights researcher and worked in the media as a features writer for more than ten years.
Suggested citation: Shirley A. Genga, The Good, the Bad, and the Ugly of the Kenya Finance Act, 2023, JURIST – Academic Commentary, July 26, 2023, https://www.jurist.org/commentary/2023/07/shirley-genga-kenya-finance-act/.
This article was prepared for publication by Hayley Behal, JURIST Commentary Managing Editor. Please direct any questions or comments to her at email@example.com
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