The declaration of an Act as unconstitutional by the courts did not prohibit Parliament from subsequent enactment of law that would repeal the impugned unconstitutional Act.
The petitioners moved to the Supreme Court vide a petition of appeal that sought to overturn the judgment and orders of the Court of Appeal save for the declaration that sections 24(3)(c) and (f) and 37(1)(a) of the Constituencies Development Fund Act, 2013 violated the principle of separation of powers. In essence, they sought to invalidate the Constituency Development Fund Act 2013 as amended by the Constituencies Development Fund (Amendment) Act 2015 for various reasons stated in the petition. On its part, the 1st respondent filed a notice of cross-appeal that sought to uphold the Court of Appeal’s decision.
The petitioners filed an application that sought leave to attach additional evidence, being copies of the Hansard which were not available to them at the time of filing the petition of appeal. The petitioners claimed that the additional evidence removed any vagueness or doubt over the case and had a direct bearing on the main issue in the suit and the respondents could easily respond to, and the court could as well take judicial notice of the evidence. Further, the additional evidence fit the issues framed in the petition relating to the Constituency Development Fund Act offending the division of functions, principles of public finance, and division of revenue.
The respondents objected to the application on grounds that the additional evidence was not directly relevant to the matter and that the petitioners should not be allowed to patch up points that they had not raised at the trial court at the appellate court.
- Whether courts could make reference to the Hansard while making judicial determinations.
- Whether parliamentary privilege extended to acts that could be considered a violation of the Constitution.
- Whether the declaration of a law as unconstitutional by the courts prohibited Parliament from subsequent enactment of a law that would repeal the impugned unconstitutional Act.
- Whether a party could seek a determination of a matter that was pending in the High Court at the Supreme Court.
- Under section 60(1)(b) of the Evidence Act, the courts had to take judicial notice of the general course of proceedings and privileges of Parliament, but not the transactions in their journals. It was not uncommon for courts to make reference to the Hansard in making their determinations as they had done in the past. As elected representatives of the citizens, there was public interest in allowing citizens to access proceedings of Parliament which included broadcast to the public particularly under the dispensation of the Constitution of Kenya, 2010. Such proceedings were reduced into a Hansard that was readily accessible to the public which could explain why the petitioners had ready access to it, notwithstanding that it was not an original or a certified copy.
- Parliament in Kenya could not enjoy privilege, immunities and powers which were inconsistent with the fundamental rights guaranteed in the Constitution. Thus, whereas parliamentary privilege was recognized, it did not extend to violation of the Constitution hence Parliament could not flout the Constitution and the law and then plead immunity; where a claim to parliamentary privilege violated Constitutional provisions, the court’s jurisdiction would not be defeated by the claim to privilege; that the concept of statutory finality did not detract from or abrogate the court’s jurisdiction in so far as the complaints made were based on violation of constitutional mandates or non-compliance with rules of natural justice; that whereas the people of Kenya gave the responsibility of making laws to Parliament, and such legislative power had to be fully respected, the courts could however interfere with the work of Parliament in situations where Parliament acted in a manner that defied logic and violated the Constitution.
- The parliamentary privileges and immunities were not absolute in the event of a valid grievance by a litigant based on the violation of the Constitution. The petitioners had brought action against the National Assembly alleging infringement of the Constitution. At the instant juncture, before the appeal was heard, the court could not say that Parliament had violated the Constitution in debating or expressing itself on any legislative action. That issue had to await the hearing and determination of the appeal and parties allowed to respond to the new evidence, if at all it was eventually admitted.
- The proposed additional evidence was subject to litigation before the High Court in which the petitioners were involved. There was no justification for destabilizing the same to enable the Supreme Court to render itself, as the apex court, on an issue that could otherwise end up before it using the normal litigation and appellate channels. The evidence sought to be introduced would be best interrogated in those pending litigations before the High Court and subsequently through appeal should it have come to that.
- The relevance of the debates to the appeal was not readily apparent to the deponent. The instant proceedings did not relate to the Constitutionality of the National Government Constituency Development Fund and the Division of Revenue Bill 2021. A perusal of the issues for determination and reliefs sought in the petition of appeal and the notice of cross-appeal before the Supreme Court revealed that the remedies sought related to the constitutionality of the Constituency Development Fund Act, 2013.
- While the High Court had declared the Constituency Development Fund Act as unconstitutional, the order of invalidity was suspended for a period of 12 months and the National Government was allowed to remedy the defect within the suspension of invalidity period or by repeal whichever came first. That did not prevent Parliament from subsequent enactment of law that would repeal the impugned Constituency Development Fund Act 2013. The National Government Constituency Development Fund Act was enacted in that context.
- The Constitution gave recourse for any party to challenge the Constitutionality of any laws to the extent of the contravention. The petitioners were engaged in challenging the National Government Constituency Development Fund Act before the High Court as alluded to earlier in the ruling.
- The additional evidence should have been admitted. Introducing evidence seven years after the time the Constituency Development Fund Act was enacted in 2013 and seeking that such evidence be considered in determining the constitutionality of the 2013 Statute was quite inappropriate as it not only introduced fresh facts but also introduced them at the penultimate stage of the proceedings before the apex court. That was compounded by the fact that the main appeal was ready for hearing. The interests of justice were better served in having the appeal disposed of expeditiously.