Havi criticises ‘wasted’ Supreme Court after Finance Act 2023 ruling

Former Law Society of Kenya (LSK) president Nelson Havi has criticised the Supreme Court for its Tuesday ruling affirming the legality of the contentious Finance Act 2023, which the Court of Appeal had nullified.

In July, the appellate court declared the Act in its entirety unconstitutional, null, and void over a lack of public participation.

However, the seven-judge bench of the country’s apex court overturned the ruling on the grounds that there is no law governing public participation.

Havi told Citizen TV’s Day Break program on Wednesday that the Supreme Court has become “the most pliable court,” accusing it of making rulings he called unreasonable.

“When the High Court makes a very fundamental declaration on a matter of rights and freedoms, and the Court of Appeal affirms it, the Supreme Court dislodges it with an argument that does not seem to resonate logically, let alone under the law,” the former LSK president said.

“It looks like it is a wasted court. In lawyers’ forums, the discussion is do we really need the Supreme Court?”

Last year's finance law, among other things, doubled VAT on fuel from 8 to 16 per cent, introduced the housing levy, and more pay-as-you-earn tax, sparking opposition-led protests.

In the Supreme Court case, 53 respondents led by Busia Senator Okiya Omtatah supported the appeals court’s decision, saying the law’s enactment was rushed and did not consider all the views of Kenyans.

Still, the Chief Justice Martha Koome-led bench found the public participation in the Act “adequate and satisfactory, taking into account the circumstances of enacting a Finance Act.”

“To this extent, we find there was no basis to declare the entire act unconstitutional,” Koome said.

In Havi’s view, it is “doubtful” that having the apex court’s judges give individual determinations of the case would have made it better.

The former LSK boss said since the departure of Chief Justice Willy Mutunga in 2016, the Supreme Court has been “unanimous in its mistakes or rights.”

“It is least likely that even if the judges were to write individual decisions a different outcome would have been forthcoming,” Havi told Citizen TV.

“We respectfully disagree with the approach taken by the court. Expeditiousness of the legislative process cannot be said to override legitimate expectation and public interest, nor can Parliament be exempt from the need to rationalise their decision under the guise of the legislative process not constituting an administrative action,” Odhiambo said in a statement after the ruling.

She said LSK agreed with the apex court's recommendation for the enactment of the statute to guide public participation and asked it to give clear guidance on the conduct of public participation in future cases.