OPINION: Legislative paralysis - Implications of the High Court judgement

The decision of the High Court in Kenneth Njagi Njiru Vs. State Law Office and Jubilee Party of Kenya in the judgement rendered on Friday, 7th February, 2025 effectively quashed the ruling of the Speaker of 6th October, 2022 which had determined the Majority and Minority Parties in the National Assembly. The court, however, did not determine the question of which party is the Majority and Minority Parties.

With this, the question of which is the Majority and Minority Parties and the Leadership of the Parties stands in limbo.  What then, is the implication of this stalemate?

The House Business Committee mandate lapsed and was set to be reconstituted upon resumption on Tuesday, 11th February, 2025. The Committee whose membership includes the Leaders of Majority and Minority Parties and their Whips is mandated to set the agenda for the House.  This cannot be done since the question of the Majority and Minority Parties is yet to be determined. What this means is that the House Business Committee cannot be appointed. With this, the House sittings are likely to be paralyzed.

Paralysis of the Committees

There are 16 Committees whose mandate lapsed on 11th February, 2025 and as such stand dissolved. The Committees includes the Budget and Appropriation Committee and other Committees which include the Public Accounts Committee; the Public Debt and Privatization Committee; the Public Investments Committee on Commercial Affairs and Energy; the Public Petitions Committee; and the Diaspora Affairs and Migrant Workers Committee among others, which require to be reconstituted.

Unfortunately, the Committee responsible for reconstituting Committees and appointing Members being the Committee on Selection is also in limbo. This is because the leadership of the Committee is the Majority and Minority Party Leaders. With this, the reconstitution of 16 Key Committees of the House is likely to stall.

Key business of national interest to stall

Among the critical business at stake is the consideration of the Budget Policy Statement (BPS). Section 25(2) of the Public Finance Management Act (Cap. 412A) provides that the National Treasury shall submit the Budget Policy Statement to Parliament, by the 15th February in each year. The Leader of Majority is required to table the BPS. With the confusion on the Majority and Minority Party, there are questions on how this will be done.

 It is noteworthy that the BPS should be submitted by the National Treasury to Parliament on or before 15th February 2025. Noting that the last sitting day is Thursday 13th, the failure to appoint the House Business Committee to set the agenda of the House and to reconstitute the Budget and Appropriations which is responsible for considering the BPS, it will spell doom to the budget cycle.

Additionally, section 25(2) of the PFM Act requires the National Assembly to approve the BPS within 14 days of submission. With the House unable to sit and the reconstitution of the Budget and Appropriation Committee in doubt, the country may be staring at a possible financial crisis in terms of financing key projects including the county governments for this financial year.

Related to the BPS is the Debt Management Strategy which outlines the plans for settling debt, loans and other liabilities. The Debt Management Strategy ought to be passed before the BPS. Its consideration may also stall in light of stalling of the process of reconstitution of the Budget and Appropriations Committee.

In short, the confusion and uncertainty created by the decision of the Court with regard to the Majority and Minority Parties and their respective Leadership in the House has caused paralysis to the national budget cycle for the 2025/2026 Financial Year. In other terms, Parliament is unlikely to consider the BPS and the Debt Management Strategy within the statutory deadline of 29th February 2025.

[The writer is a legislative affairs analyst and the publisher of The Legislative Index KE; a digital platform that covers the legislative agenda in Kenya including the Senate, National Assembly and County Assemblies. X: @legislature_KE | @MalibaArnold]