Busia Senator Okiya Omtatah has made true his threat to sue House Speaker Moses Wetang’ula and Senate Speaker Amason Kingi for disregarding the senators’ input in the budget appropriation bill 2024 that was assented into law by President William Ruto on Friday.
In a suit lodged at the Constitutional and Human Rights Division of the High Court in Nairobi, Omtatah, and human rights advocate Eliud Karanja Matindi want orders to suspend the Appropriation Act 2024 and bar the National Treasury CS Njuguna Ndung’u from withdrawing Sh 1.8 trillion from the Consolidated Fund for the funding of various government projects and 15 constitutional commissions and independent offices until their case is heard and determined.
“Where the Appropriation Bill, 2024, has been assented to but was considered, debated, and approved without involving the Senate, the court be pleased to suspend the Appropriation Act, 2024 pending the hearing and determination of the application and the Petition, ” Omtatah seeks.
Senator Omtatah states that the Appropriation Act 2024 is unconstitutional, null, and void since the bill was not tabled at the Senate for consideration before it was passed and forwarded to the President.
“The annual Appropriation Act which is intended to guide appropriations for monies in the 2024/2025 financial year has unconstitutionally been enacted by the National Assembly alone without the involvement of the Senate as required in law,” the petitioners argue.
According to the petitioners, the exclusion of the Senate undermines the constitutional principles of devolution and bicameralism, which are designed to ensure inclusive and comprehensive legislative processes.
“By bypassing the Senate, the National Assembly disregards the critical role the Senate plays in representing the interests of counties and their governments and providing an additional layer of scrutiny to national financial legislation,” they say.
Omtatah and Matindi are also urging the court to the government through Attorney General Justin Muturi from implementing the Appropriation Act, 2024 since it is illegal and should be quashed.
As they plead with the High Court to certify the matter as urgent, the Senator and Matindi argue that Kenyans stand to suffer immensely.
” Unless the application is urgently heard and determined, the applicants(Omtatah and Matindi) and the people of Kenya will suffer great loss and damage as the impugned excise duties will continue to be imposed on Kenyans,” the court papers state.
According to Omtatah, the Speaker of the National Assembly Wetang’ula should be compelled to transmit the Financial Year 2024/2025 Budget Estimates and the Appropriation Act, 2024, to the Speaker of the Senate for consideration, debate, and approval by that House.
“The failure to subject the Appropriation Bill, 2024, to public participation was fatal and voided the resultant Appropriation Act, 2024. Sections 39(1) and 39A(3) of the Public Finance Management Act are unconstitutional and, therefore, invalid, null, and void,” The petitioners state.
The lawmaker faults Wetang’ula and Kingi for failure to submit the Appropriation Act to the Senate adding that they violated Articles 96 and 110 of the constitution which expressly require the Senators to be involved in the consideration, debate, and approval of Bills concerning counties or county government.
“The Appropriation Bill under Article 221(6) is a Bill concerning counties or county governments to the extent that it appropriates expenditure from the Equalisation Fund, funds the Senate which protects the interests of counties and their governments, and funds the Chapter 15 entities whose work encompasses counties,” Omtatah says.
Wetang’ula and Kingi violated the various provisions of the constitution by locking the Senators out of the parliamentary stage of the budget-making process.
“The National Assembly’s decision to exclude the Senate from the consideration of the budget estimates and the Appropriation Act results in unconstitutional taxation without valid legislation which is tantamount to the arbitrary deprivation of property,” the petitioners say.
Omtatah says that the Senate must be involved because the estimates and the Bill cover budgets for 15 constitutional commissions and independent offices which include the Ethics and Anti-Corruption Commission, the Kenya National Commission on Human Rights, the Commission on Administrative Justice, the National Gender and Equality Commission and The National Land Commission.
Others are the Independent Electoral and Boundaries Commission the Parliamentary Service Commission the Judicial Service Commission, the Commission on Revenue Allocation, the Public Service Commission, the Salaries and Remuneration Commission, the Teachers Service Commission, the National Police Service Commission, the Auditor-General, the Controller of Budget, the Parliamentary Joint Services and Current Expenses of the Senate.
“The above state of affairs will violate the Constitution if the estimates and the Bill don’t come to the Senate because the august House is expressly required by constitutional edict to participate in the allocation of funds to these entities.
Omtatah added that Article 254 of the Constitution explicitly requires commissions and independent offices to report to Parliament (both Houses) for accountability.
The lawsuit comes after Omtatah on July 21 wrote a letter to the two Speakers of Parliament warning of plans to challenge in court the entire Approval of the Financial Year 2024/2025 national budget estimates and the Appropriation Act 2024 for failure to be considered and approved by the senate.
