Sections 91A(2)(b) and (c) 91C of the County Governments (Amendment) Act declared inconsistent with the Constitution.
At the High Court, the respondents challenged the constitutionality of section 91A (that established, for each county, a County Development Board (Board)), section 91B (that provided for the operational expenses for the Boards) and section 91C (that created an offence for unlawful obstruction, or undermining of the Board from discharging its functions) of the County Governments (Amendment) Act No. 13 of 2014.
Both the Court of Appeal and the High Court were in agreement that the impugned amendment did not meet the test of constitutionality and were in violation of articles 1(3)(b), 1(4), 6(2), 10(2), 179(4), 183, 185(1), 189(1) and 225(1)(i) of the Constitution as they were antithetical to the oversight role of the Senate, interfere with the legislative power of the county assembly, violated the functional integrity of county governments and introduced unnecessary penal sanctions. For those reasons the courts were unanimous and declared the amendment unconstitutional, void and invalid.
Dissatisfied with the decisions of the High Court and Court of Appeal, the appellants filed the instant appeal where they challenged the decisions of the superior courts on grounds that Kenya was a federal and not a unitary state and that the disputed amendments were constitutional.
- Whether an issue of the constitutionality of amendments to the County Government Act fell within the appellate jurisdiction of the Supreme Court to determine matters that revo blved around the interpretation or application of the Constitution.
- What principles did the court refer to when:
- interpreting the Constitution;
- interpreting Statutes;
- interpreting statutes vis-à-vis the Constitution?
- Whether participation of members of Parliament and representatives of the national executive in the County Development Board was a breach of the doctrine of separation of powers.
- Whether the provisions of the County Governments (Amendment) Act No. 13 of 2014 that donated to the County Development Board powers to consider and give input on county development plans before they were tabled in Parliament violated the Constitution by subordinating county organs.
- Whether the presence of penal provisions in civil legislation invalidated the penal provisions.
- Whether section 91C of the County Governments (Amendment) Act No. 13 of 2014 that made it an offence to obstruct or prevent the Board from discharging its functions was inconsistent with the Constitution.
- Whether section 91B of the County Governments (Amendment) Act that made the operational expenses in respect to the County Development Board to be charted on the vote of the county governments was objectionable.
- Whether Kenya was a unitary or a federal State.
- What was the test upon which a court would declare its own decision to be per incuriam?
- Whether the Senate could oversee county governments at the county level.
- By the design and architecture of the Constitution and by the language of article 1(3) and (4) of the Constitution, the people of Kenya intended that their sovereign power be exercised at two levels of government; the national and county levels. The Constitution also declared that the two levels were distinct but inter-dependent. They were bound to conduct their mutual relations on the basis of consultation and cooperation. However, to avoid gridlock in their operations, even as they consulted and cooperated, the two levels of government had to perform their functions and exercise their powers in a manner that respected the functional and institutional integrity of each other. At the county level, the county government consisted of a county assembly and a county executive. The executive authority at the county was vested in, and exercised by a county executive committee, consisting of the county governor, the deputy county governor and members appointed by the county governor, while the county assembly exercised legislative authority at that level. The form, content and timing of budgets of the national and county governments had to be coordinated through consultations.
- A court could not expand its own jurisdiction through judicial craft or innovation. Parties could not by consent or acquiescence confer jurisdiction upon a court. To bring the appeal to the Supreme Court within the terms of article 163(4)(a) of the Constitution, it had to be demonstrated that the issues of contestation revolved around the interpretation or application of the Constitution. It was the interpretation or application of the Constitution by the Court of Appeal that formed the basis of a challenge to the Supreme Court. Where the dispute had nothing or little to do with the interpretation or application of the Constitution, the Supreme Court under article 163(4)(a) would have no jurisdiction to entertain an appeal brought under article 163(4)(a).
- The instant appeal met the frontiers of the appellate regime of the Supreme Court embodied under article 163(4)(a) of the Constitution. From the High Court to the Supreme Court, the central issue had been whether the amendment to the County Governments Act was inconsistent with the principles of the Constitution. The instant appeal fell within the ambit of article 163(4) (a) of the Constitution and the Supreme Court had the jurisdiction to determine it.
- Any law, including customary law, that was inconsistent with the Constitution, was void to the extent of the inconsistency, and any act or omission done or not done in contravention of the Constitution was also outrightly invalid. Once declared invalid, a statute or statutory provision, to the extent of the declaration, ceased to be law.
- Questions entailing the interpretation and application of the Constitution had to for good order and efficiency in the administration of justice commence at the High Court, with the effect that the interpretation of the Constitution by both the Court of Appeal and the Supreme Court were limited to the appellate stages.
- In construing whether statutory provisions offended the Constitution, courts had to subject the same to an objective inquiry as to whether they conformed with the Constitution. To fully comprehend whether a statutory provision was unconstitutional or not, its true essence had to also be considered. The court had to consider the purpose and effect of such a statutory provision. A purposive interpretation should have been given to statutes so as to reveal the intention of the legislature and the statute itself.
- Both the purpose and effect were relevant in determining whether or not the amendment was constitutional. An unconstitutional purpose or an unconstitutional effect could lead to the invalidation of a legislation. The words used and the language of the provision or provisions in question had to be given literal meaning and the court had to seek to identify the mischief sought to be remedied by considering the historical background of the legislation.
- The provisions of article 259 of the Constitution required the Constitution to be interpreted in a manner that promoted its purposes, values, principles, and contributed to good governance.
- The County Development Board’s (the Board(‘s))membership consisted of, among others, the Senator, the member of the National Assembly, the Woman Representative, the Governor and the Deputy, the Leaders of the Majority and Minority parties in the County Assembly, the Chairperson of the County Assembly Committee responsible for finance and planning and that responsible for budget, the County Commissioner, and the head of a department of the national government or the county government or any other person invited by the Board to attend a specific meeting of the Board. The senator was designated the chairperson of the Board and convener of the Board's meetings, the governor was to deputize him, while the County Secretary was the secretary of the Board. The main object for the establishment of the Boards was expressed in the amendment to be a forum for consultation and coordination between the national and the county governments on matters of development and projects.
- The intention was informed by articles 6(2), 10, 174, 220(2)(c) and 232 of the Constitution that stipulated that the governments at the national and county levels were distinct and inter-dependent and were to conduct their mutual relations on the basis of consultation and cooperation.
- The commonality of purpose of the two levels of government and the need to ensure harmony in the discharge of their respective functions, could only be achieved through consultation and cooperation. The two levels were bound by national values and principles of governance espoused in article 10 and guided by the objects of devolution in article 174 of the Constitution. In the process of budgeting and planning, consultation between the national government and county governments was a key requirement under article 220(2)(c). The form and manner of such consultations were provided for in the national legislation. In the process of policy making, the people had to be involved.
- Public participation or consultation were constitutional imperatives. Article 196(1)(b) of the Constitution demanded of the County Assemblies, in their legislative duties, to facilitate public participation and involvement. On the other hand, article 201 required that in all matters of public finance, there had to be openness and accountability, including public participation. Years of deeply entrenched disparities between regions in Kenya; low level of responsiveness and accountability by the government to citizens, had to have led to the enactment of sections 87 to 115, 125, 128, 131 and 137 of County Government Act, sections 47, 91, 99 and 100 of the Public Finance Management Act 2012 and sections 21 and 22 of the Urban Areas and Cities Act, all of which emphasized the need for public participation in national and county planning, budget priorities and accountability. The establishment of the Boards was driven by an honest and noble purpose; to provide a forum, at the county level, for engagement, consultation and coordination of national and county governments’ development programs.
- Mere participation of members of Parliament in the Boards did not breach the doctrine of separation of powers. The governments at the national and county levels had to conduct their mutual relations on the basis of consultation and cooperation; the two levels of government had to co-operate in the performance of their functions and in the exercise of their powers and, that for that purpose, they could set up joint committees and joint authorities and that the form and manner of consultation between the national government and county governments in the process of preparing plans and budgets was to be prescribed by national legislation. Those were express provisions of articles 6(2), 189(2) and 220(2)(c) of the Constitution.
- Section 91(f) of the County Governments Act, before it was amended by section 3 of the Amendment Act provided for modalities, platforms, town hall meetings, budget preparation and validation fora for citizen to participate in the activities of the counties and enjoined the counties to facilitate the establishment of structures for citizen participation including avenues for the participation of peoples’ representatives including but not limited to members of the National Assembly and Senate. Subsection (f) above was deleted by the amendment effectively removing the peoples’ representatives; members of the National Assembly and Senate from the county platforms envisaged by that section. It was informed by the fact that their participation had been moved to a new platform, the Board. With the deletion of (f) above, the modalities and platforms that were to be established under the section were reserved for citizen participation. The entire PART VIII was devoted to citizen participation in counties. The effect of the courts’ declaring the amendment unconstitutional restored section 91(f).
- There was nothing irregular in the members of parliament and national executive engaging, consulting, cooperating and coordinating with the devolved units for the sake of protecting devolution and achieving its objects. The engagement, consultation, cooperation and coordination envisaged had to be done in a manner that respected the functional and institutional integrity, the constitutional status and institutions of the county government, as decreed by article 189(1) of the Constitution.
- There were many examples of the existence in the law of multi-stakeholder platforms or forums which were set up as vehicles to promote harmonious coexistence between the two levels of government so as to have a holistic edifice. Examples included the National and County Government Coordinating Summit, the Inter-Governmental Budget and Economic Council, the Council of County Governors and the County Budget and Economic Forum. The two levels had to embrace devolution architecture by displaying collaborative coexistence and interdependence so as to avoid any possible constitutional discord. At all times, that arrangement had to maintain a balanced structure, where national government did not usurp, undermine or interfere with the mandate of or with matters which exclusively fell within the domain of county governments.
- The limitations had to be borne in mind even as the special role of the Senate in the devolved governance system was acknowledged. Under article 96(1) of the Constitution, the Senate represented the counties and served to protect their interests. The Senate participated in the law-making function of Parliament by considering and approving Bills concerning counties. It had the power to determine the allocation of national revenue among counties, and to oversight over the use of those resources. To discharge those responsibilities, the Senate was not expected to relocate to the counties to exercise supervisory powers at that level. That would be intrusive into the functional and institutional integrity of the county government and unacceptable overreach. It was not to be involved in the administrative nitty-gritty details of the counties. Its oversight as indeed its legislative roles, were to be exercised in accordance with the Constitution and the law.
- If the presence of members of parliament and representatives of the national executive in the Boards was merely to contribute by way of public participation in matters affecting counties, there would be no concern as their giving views per se could not violate the Constitution.
- Construing section 91A(2)(b) and (c) of the amendment; that the Board would consider and give input on any county development plans before they were tabled in the county assembly for consideration and to consider and give input on the county annual budget before they were tabled in the county assembly for consideration; the word “before”, taking everything into context, could only connote a condition antecedent, a precondition to the tabling of the county development plans and county annual budget. To that extent, the amendment donated excessive powers to the Board beyond what the Constitution permitted, thereby subordinating county organs
- The second grievance was the role of the governor, vis-à-vis, the Senator for the county. The latter, was the chairperson of the Board and convener of the Board's meetings, according to section 91A(1)(a). The Governor, though the chief executive of the county government, was named as the vice-chairperson, to deputize the Senator in the Board.
- The Constitution did not contemplate a situation where the chief executives of the counties, the governors were inferior in rank to senators in the execution of county functions. Section 91A(1)(a) and (d) was antithetical to articles 179(4) (5) and (6) of the Constitution to the extent that it altered the hierarchical structure of the county government. The governor was the chief executive of the county, and the only time someone else besides him could exercise the functions of that office was when he was absent. Article 179(5) of the Constitution permitted the deputy county governor, in the circumstances to step in and act in the office of Governor. Members of the county executive committee, on the other hand were only accountable to the county governor for the performance of their functions and exercise of their powers.
- It was inconceivable as it was absurd to have a Senator whose functions were clearly delineated by the Constitution, and who was expected to provide oversight of the county government, at the same time take charge of a Board which was essentially a county organ. That was legislative overreach that did not honour the constitutional guardrails that donated specific and distinct powers to the Senate and to the devolved units.
- Article 186 of the Constitution demanded that a function or power not assigned by the Constitution or national legislation to a county was a function or power of the national government, and vice versa. The amendment, in purporting to impose on the Governor a principal, failed to meet the test of cooperation, coordination and consultation. It failed to respect the functional and institutional integrity of the county government, its institutions and its constitutional status, as stipulated in article 189. Section 91A of the amendment was inconsistent with and in breach of articles 96 (2) and (3), 179 and 185 of the Constitution, and were, to that extent, void and invalid. Though the intended purpose for the amendment was virtuous, its implementation was bound to produce an unconstitutional effect.
- It was an offence under section 91C of the Amendment Act to knowingly and unlawfully obstruct, hinder, undermine or prevent the Board from discharging its functions. The offence was punishable, upon conviction, by a fine not exceeding one million shillings or imprisonment for a term not exceeding one year, or both. The introduction of criminal penalties and sanctions in civil legislations were an increasingly common feature in Kenya’s legislation today. The Environmental Management and Co-ordination Act No. 8 of 1999, the Leadership and Integrity Act No. 19 of 2012 and the Physical and Land Use Planning Act No. 3 of 2019, were some of the examples of such laws. By imposing penal sanctions upon persons who contravened such laws, the legislature sought to ensure compliance with the key provisions of its statutes. Their presence in a civil legislation per se did not invalidate them.
- There was no nexus between the offence created by section 91C of the Amendment Act and the amendment which only established the Boards. There was no mischief that the provision was intended to cure. The provision was intended to transform the Board into a decision-making organ whose authority, if undermined or hindered, was punishable in law. That appeared to elevate the Board to a pedestal higher than the Governor, County Executive and County Assembly. So that any action or omission to act in a certain way by any of these county organs would be interpreted to constitute obstruction or hinderance so as to attract criminal sanction. If the Board’s input or advise on the county development plans and the annual budget were not taken on board at the time they were tabled in the county assembly for consideration, those involved including the county assembly and the county executive committees could be in violation of section 91C and risk punishment. That would undermine the constitutional administrative, legislative and decision-making powers and authority of the governors, County Assemblies and the County Executive Committees.
- No such outcome was intended by the Constitution when it created different offices in the counties or when it decreed consultation between the national and county governments in the process of preparing plans and budgets. Section 91C not only failed the test of proportionality, but was also outrightly excessive, arbitrary, unfair and was based on irrational and unknown considerations. Section 91C of the Amendment Act was inconsistent with article 189(1)(a) of the Constitution.
- Whereas there was a duty on all public offices under article 201(d) of the Constitution to use public money in a prudent and responsible way, so long as the establishment and functions of the Boards could be justified, there would be nothing objectionable for the county governments to meet the Boards’ operational expense.
- An independence of national and county governments was provided for through a devolution-model that rested upon a unitary, rather than a federal system of government. The Senate (which brought together county interests at the national level) and the National Assembly (a typical organ of national government), dealt expressly with matters affecting county government; and that certain crucial governance functions at both the national and county levels dovetailed into each other and operated in unity. The Constitution did not alter Kenya’s constitutional design from unitary to federal. The devolved system in Kenya was based on a unitary system of Government that decentralized key functions and services to the county unit. The Kenyan State model was not federal in nature and did not envisage the workings of a county as a politically and financially independent state. Although Kenya was a constitutionally devolved State, it did not have a federal constitution and that the county governments were not independent but semi-autonomous and an integral part of the unitary state, exercising delegated sovereign power for purposes of governance.
- While the court could depart from its previous decision if it was shown that such decision was given per incuriam, it was a serious suggestion that the apex court made a decision through ignorance or was ill informed about the applicable law. The decision of a superior court was not to be perceived as having been arrived at per incuriam, merely because it was thought to be contrary to some broad principle, or to be out of step with some broad trend in the judicial process.
- The test of per incuriam was a strict one, the relevant decision having not taken into account some specific applicable instrument, rule or authority. A decision per incuriam was one rendered in ignorance of a constitutional or statutory prescription, or of a binding precedent: but if a decision be such, that, by and of itself, did not, perforce, render it inappropriate, or mistaken, or wrong, for the decision could rest upon its own special merits, and be in every respect sustainable as a matter of principle. It could not be said that the Supreme Court in its previous decisions arriving at the conclusion that the Constitution did not create a federal government, the court did not take into account some specific applicable instrument, rule or authority, or that all those decisions were rendered in ignorance of a constitutional or statutory prescription.
- By article 163(7) of the Constitution, all courts, other than the Supreme Court itself, were bound by the decisions of the Supreme Court. Save for the slip rule in section 21(4) of the Supreme Court Act, neither the Constitution, nor the Supreme Court Act conferred upon the Supreme Court, powers, to review its decision. As the final court, the Supreme Court would not review its own judgments, rulings, or orders, except in circumstances contemplated by section 21(4) of the Supreme Court Act, to correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order; that once it makes a final decision, the court became functus officio, and would not entertain requests for further re-consideration of its decision, because litigation had to come to an end.
- Notably, in exercise of its inherent powers, the Supreme Court could, upon application by a party, or on its own motion, review, any of its judgments, rulings or orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances were to be limited to situations where:
- the judgment, ruling, or order, was obtained, by fraud or deceit;
- the judgment, ruling, or order, was a nullity, such as, when the court itself was not competent;
- the court was misled into giving a judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
- the judgment or ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.
- Just as it was a serious matter to suggest that the decision of the Supreme Court was made per incuriam, it was equally not a simple matter for the Supreme Court to depart from its decisions that had been, over time applied as ratio decidendi, binding the courts below. For the Supreme Court to reconsider its decision, it was not to only be appropriately moved but also the grounds upon which it was moved had to be weighty.
- The phrase, ‘when properly moved’ entailed that for the Supreme Court to depart from its previous decision, or for it to review its decision, it could only be moved by a formal application.
- Questions entailing the interpretation and application of the Constitution had to for good order and efficiency in the administration of justice commence at the High Court, with the effect that such a question could only be raised before the Court of Appeal and the Supreme Court as an appeal from the decision of the High Court and eventually to the Supreme Court as a challenge to the determination of the Court of Appeal. That process was not followed. The issue, though important, was not diligently prosecuted. To move the court to reconsider its previous decisions, an appropriate formal application had to be made to it. Had the 55th respondent considered that question to be important, it ought to have raised it in the first instance before the High Court, or taken out a motion before the Supreme Court which would have afforded all parties sufficient opportunity to respond comprehensively to the contention. Raising the question for the first time in the Court of Appeal, the Court of Appeal could not overturn Supreme Court decisions which bound it in terms of article 163(7) of the Constitution.
- Whereas it was essentially in public interest that a final judgment of the apex Court in the land should not be open to challenge, a departure from that principle could be justified only when circumstances of a substantial and compelling character made it necessary to do so or where to decline a request to reconsider the judgment would be oppressive or occasion irremediable injustice.
- No additional material had been presented for the Supreme Court to reconsider the position that the Constitution did not create a federal state. The preamble to the Constitution summed up the true expression of the will of the people of Kenya on the systems of government it created. The Constitution retained its supremacy, the sovereignty and unity of the people, as well as the oneness and indivisibility of the nation.
- The County Governments (Amendments) Bill 2021, Senate Bill No. 38 of 2021 (the Bill) was an attempt to address the concerns brought about by the Amendment Act and to comply with the courts' decisions. The Bill, according to Senate Bill Tracker Portal, after its introduction in Senate went through the 1st reading and was referred to the Devolution and Inter-Governmental Relations Committee of the Senate. It was scheduled for the 2nd reading. The court did not know the current status of the Bill.
- The Bill had renamed the Board, “County Leaders Forum” (Forum.) It made the Governor the chairperson and the senator the vice-chairperson of the Forum. The language used in describing the functions of the Forum were carefully chosen to avoid the impression that the Forum had any executive mandate. The functions were purely advisory. The fate of sections 91B and 91C was unclear as the Bill, in so far as the instant petition was concerned, only amended section 91A of the Amendment Act. Legislative steps were being taken to align the Amendment Act to the Constitution.
- Participation permitted citizens to take part in decision-making in matters that affected them. Members of Parliament (National Assembly and Senate) had specific and defined roles in the Constitution and relevant statutes, vis-à-vis, the counties. Senators represented and protected the interests of the counties through their law-making function by considering and approving Bills concerning counties. They also determined the allocation of national revenue among counties, in addition to providing oversight over national revenue allocated to the counties.
- Whereas the Senators played those roles in the Senate, at the national level, the county assembly played an oversight role over the county’s fiscal management at the county level. While the two levels of government had to work in consultation and cooperation with each other, the Senators could not oversight the County governments at the county level. That role was reserved for the County Assembly. They could not be involved in the co-coordination of programs that were purely county programs, or county project approvals or actual implementation of county projects as those were county executive functions. It was untenable for Senators, who oversight county resources from the national government, to convene and chair county committees. That was why the Constitution proclaimed that, as between the two levels of government, there had to be respect for the functional and institutional integrity.
- Parliament, as the institution with the legislative powers, was constitutionally bound to enact laws that assisted and strengthened the county governments in the discharge of their roles. Laws made pursuant to that power were never to have the effect of undermining the running of the county governments. Conversely, other organs of the national government had to keep to their lanes as drawn by the Constitution and utilize the structures and channels in the Constitution to carry out their legislative and oversight duties and to trust the competence of the county governments’ structures and organs to discharge theirs functions.
- Public participation was encouraged as a constitutional principle and as a national value. It permitted the citizens and their political representatives to take part in decision-making in matters that affected them, like county planning, budget priorities and accountability. In enacting County Governments (Amendment) Act the legislature may have had the noblest of intentions. However, that intention and the effect it produced had not met the constitutional test of validity.