Omtatah in bid to challenge clauses on public finance

Busia senator Okiya Omtatah has moved to court to challenge two amendments to the Public Finance Management Act (No. 18 of 2012) in 2014 and in 2019 that stripped the Clerk of the Senate the position of Secretary and CEO of the Parliamentary Service Commission.

Omtatah wants the court to suspend the Parliamentary Service Act (No. 22 of 2019), and Section 2(2) (d) of the Public Finance Management Act, 2012, including as amended by Section (2)(a) of the Public Finance Management (Amendment) Act, No. 6 of 2014, pending the hearing and determination of his suit.

He says the two acts shorten the term of the Secretary of the Commission and the Clerks of both Houses which is a matter of concern because the provision affects the apolitical nature of the Parliamentary Service. “Section 26(1-3) of the unconstitutional Act varies the terms of office of the Clerks from permanent and pensionable, to contract terms contrary to public service guidelines and regulations,” he says in court documents.

The first-time legislator and activist argues that the two acts as amended, are unconstitutional and therefore invalid as they were enacted by the National Assembly without being considered by the Senate, yet they concern the Senate and, therefore, the oversight of county governments.

States he: “The Parliamentary Service Act (No. 22 of 2019) was also enacted by the National Assembly without being considered by the Senate. Unlike with the PFMA whose enactment by the National Assembly alone was not contested,” .

Constitutional threshold

Omtatah observes that despite the very clear position taken in the judgements of the two Superior Courts, the Acts which were enacted unconstitutionally, have not been revoked or voided and remain on Kenya’s statute books, and the Parliamentary Service Commission continues to enforce the Acts.  “The National Assembly cannot bypass the Constitutional threshold set for the enactment of laws and, to the extent that they do so, such laws are unconstitutional and void particularly when one considers the provisions of Article 2 (4) of the Constitution, which provides, inter alia, that any law that is inconsistent with this Constitution is void to the extent of its inconsistency,” he argues.

Omtatah posits that the two laws are clearly unconstitutional and the presumption of constitutionality, the legal principle that the judiciary should presume statutes enacted by the legislature to be constitutional, cannot be invoked in the matter as there was a declaration by two superior courts regarding the involvement of the senate. “The textual authority that justifies the grant of conservatory orders and temporary injunctions is to protect and enforce the rights and fundamental freedoms in the Bill of Rights,” he argues.

He wants the court to issue an order restraining the National Assembly and Parliamentary Service Commission from proceeding to give effect howsoever to the Parliamentary Service Act (No. 22 of 2019), and Section 2(2)(d) of the Public Finance Management Act, 2012, including as amended by The Statute Law (Miscellaneous Amendment) Act, No. 12 of 201.

High Court Judge Hedwig Ong’udi directed the pleadings to be served upon all parties within 14 days and responses to be filed within 21 days.