Experts weigh in on Court of Appeal ruling on 2023 Finance Bill

Experts have voiced their opinions on yesterday’s Court of Appeal ruling that declared the Finance Bill 2023 unconstitutional.

As a result of the judgement, this now means Kenyans will revert to using the amendments made by the 2022 Finance Act.

Willis Otieno, a constitutional lawyer, criticised the president for failing to implement appropriate financial legislation since taking office.

“How are you going to fund your budget if you don't have commensurate revenue legislation?” Otieno posed on Spice FM on Thursday, August 1.

“When you fail to include revenue estimates and only include expenditure estimates, that’s when you open taps for people to go and take loans without explaining to the public.”

The lawyer insisted that the government should take loans solely for development purposes. He also stressed the importance of public participation in the legislative process to ensure public opinion is considered.

“Public participation is compulsory, and you are compelled to take into account the views of the majority of people who appear before you,” he added.

Jedidah Wanjagi, a public finance specialist at CIPE Kenya, agreed that the government should involve the public in any budget-making process. She outlined several issues that may have led to the Finance Bill being deemed unconstitutional.

"One is the lack of provisions extended in the Kenyan Roads Board Act and the Unclaimed Financial Assets Act,” she said.

The finance expert also pointed out that the mishandling of money bills, particularly those focusing on taxation, contributed to the bill's rejection. She acknowledged that moving forward will be challenging as the government needs to address revenue gaps without overburdening taxpayers.

Busia Senator Okiya Omtatah remarked on the legislative process, alleging that the executive has compromised parliament’s budget-making powers.

“The National Assembly approved the budget, and it has aligned itself with the executive, bypassing the Senate,” Omtatah stated.

He expressed concern over the Senate's exclusion from the budget-making process, which he views as a constitutional violation. Omtatah also claimed that the Constituency Development Fund (CDF) has been used to manipulate the budget approval process.

“The National Assembly has been corrupted by the CDF. When MPs go there, the executive offers a quid pro quo. Any MP who challenges this is threatened with scrutiny of their CDF accounts,” he claimed.

Omtatah vowed to move to the Supreme Court to determine if deductions, such as the housing levy, can be refunded to the public.