The paradox of clashing court rulings on public participation and tax laws
Friday March 03 2023
Public participation is a fundamental value and principle of governance in Kenya’s Constitution. It binds all persons when interpreting the Constitution or any law in Kenya.
Recently, courts in Nairobi and Kitale rendered judgments on the same date on petitions challenging the constitutionality of the Finance Act 2021 and the Finance Act 2022 (the Acts) respectively.
In both petitions, among other pertinent issues raised was whether there was public participation.
The petitioners in the cases in Nairobi and Kitale argued that there were amendments that were not discussed during the initial public consultations.
The courts took divergent views on the place of public participation in amendments introduced on the floor of the House.
The court in Kitale held that the contested amendments were constitutionally frail because they offended the principles of public participation and consequently violated the right to fair administrative action and the principles of public finance.
The High Court in Nairobi in Mwaura Kabata & Others vs National Assembly & Others, took a broad view, holding that the amendments were in line with the original intent of the purpose and object of the Bill, which was to amend tax laws.
The two decisions of even date introduce the paradox of public participation in tax legislation. What High Court decision should we go by considering that no decision is superior to the other, and both acknowledged the guiding principles of public participation that were laid out by the Supreme Court in British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health and Others  eKLR?
According to the Supreme Court, it is through public participation that Kenyans continue to find their sovereign place in the governance they have delegated to both the National and County Governments.
Consequently, public participation should be real, not illusory, it must be purposeful and meaningful, it must be accompanied by reasonable notice and opportunity, it must be inclusive and transparent, and the public must first be sensitized on the subject matter.
As Kenya proceeds to come up with Finance Bill for 2023 which will finally become Finance Act 2023, all stakeholders should embrace the constitutional value and principle of public participation.