YVONNE'S TAKE: Meet null and void

In April this year, the High Court of Kenya declared the office of the Chief Administrative Secretary unconstitutional. This decision came after the President had nominated 50 individuals to occupy that office across various ministries, nearly double the number from the previous regime.

The judges found that only 23 of the appointees had been subjected to public participation, while the President had established 50 positions. The court ruled that there was no public participation for the additional 27 appointees, leading to the quashing of these appointments as unconstitutional, null, and void.

Last year, following the uproar over the Finance Act 2023, the court ruled that the introduction of the housing levy through an amendment of the Finance Act 2023 violated various articles of the Constitution. The three-judge bench found that the housing levy was discriminatory, irrational, and went against Article 10 of the Constitution, which outlines national values and principles of governance, including non-discrimination and protection of the marginalized.

The Finance Act 2023 received its final blow just this week when the Court of Appeal declared the entire act unconstitutional, null, and void. The court faulted Parliament for another key tenet of the Constitution: public participation, stating that Parliament failed to consider the views of the public and introduced new sections of the law without subjecting them to public participation.

The country heard those now infamous three words again in July this year when a three-judge bench declared three laws— the Social Health Insurance Act, Primary Healthcare Act, and Digital Health Act—unconstitutional.

These acts were fundamental in replacing the National Hospital Insurance Fund with the Social Health Insurance Fund (SHIF). The reason? Once again, public participation. The judges raised issues of disparity and discrimination, noting that the new laws would burden a section of the population, particularly the salaried, creating disparities in contributions. They granted Parliament 120 days to correct their mistakes.

It didn’t stop there. There was another contentious matter involving the role of the select committee following the NADCO process. With the fate of that committee in limbo due to talks between the two sides of the political divide, constitutional lawyers concerned about the time lag and the urgency to constitute an electoral management body went to court.

Justice Thande ruled that the constitutional vacuum was untenable and that the process of recruiting IEBC commissioners should commence immediately. She stated that the political truce does not override the Constitution and emphasized that compliance with the Constitution should not be suspended for political expediency.

She said, “As such, compliance with the Constitution should not be suspended for the sake of political expediency. The intervention of this court is therefore justified, more so because the bi-partisan talks are, to the best of my knowledge, not anchored in either the Constitution or the law.” Once again, the courts upheld the Constitution of Kenya 2010 as the supreme law by which all must abide.

All these rulings are a stinging indictment on Parliament. Their rants and threats notwithstanding, one thing is clear: the Constitution of Kenya 2010 remains supreme, and Parliament and the Executive would do well to remember this. If they don’t, the judiciary seems ready to remind them at every turn. Parliament and the Executive should remember that they are who they are by virtue of this Constitution.

Understandably, some MPs have reacted with outrage, others with apoplexy, making all manner of threats against the judiciary for ruling against the laws they have passed. Here’s a reminder: that very Constitution cited by the courts also instructs them on the role they must play. Article 94, Section 4 states: “Parliament shall protect this Constitution and promote the democratic governance of the Republic.” The key word here is “shall.”

So, while the MPs rant and rave and froth at the mouth, blaming everyone else, they would do well to look in the mirror and, while at it, read the Constitution.