Omtatah moves to court to challenge proposed finance tax

By , K24 Digital
On Wed, 22 May, 2024 15:25 | 3 mins read
Busia Senator Okiya Omtatah Okoiti
Busia Senator Okiya Omtatah Okoiti PHOTO/@OkiyaOmtatah/X

Busia Senator Okiya Omtatah and an activist have moved to court to challenge Finance Bill 2024 arguing it violates sections of the constitution and should be declared illegal and null.

Under a certificate of urgency, Omtatah and activist Eliud Matindi have urged the Milimani Constitutional and Human Rights Court to stop the Members of Parliament (MPs) from deliberating on the Finance Bill 2024.

"We seek the court to issue conservatory orders suspending the consideration by the National Assembly, in any form whatsoever of the Finance Bill 2024, which was published in Nairobi on May 9, 2024, in the Kenya Gazette No. 102 of 2024," Omtatah and Matindi states.

The two petitioners also want the court to suspend the ongoing public participation on the Finance Bill 2024 which is being conducted in the National Assembly’s public participation advert dated May 15, 2024.

Omtatah and Matindi argue that the Finance Bill, 2024, has been tabled prematurely because there is no approved fiscal framework for the Financial Year 2024-2025, which it is supposed to implement.

"The approved fiscal framework will only come to life with the enactment, with public participation, of the Appropriation Act, 2024," they state in their court papers.

The duo contend that if the court does not intervene in real time to suspend the process, both their application and the petition will be lost because the unlawful and unconstitutional Finance Bill, 2024, will be approved by Parliament and signed into law by the President to become the Finance Act, 2024.

"Unless this court intervenes, there is no remedy when the legislative process is complete and the unlawful conduct in the course of the legislative process will by then have achieved its object especially because every statute enjoys a presumption of constitutionality. The resulting harm would be substantial and challenging to reverse, considering economic implications and potential arguments that government operations could be disrupted," the petitioners say.

According to Omtatah, it is only after Parliament has procedurally enacted the Appropriation Act, 2024, that the Finance Bill, 2024, can lawfully and constitutionally be introduced in the National Assembly and, with public participation, be considered and approved by Parliament, and signed into law by the President as the Finance Act, 2024.

"So, in essence, there is no Finance Bill, 2024, without the fiscal framework contained in the Appropriations Act, 2024," the senator states in his court papers.

He adds that since the Appropriations Bill, 2024, has not been published, considered with public participation, and enacted into law, the Finance Bill, 2024 among others, proposes a raft of tax changes geared towards raising revenue to finance the national government’s budget for the financial year 2023-2024, was published in Nairobi on May 9, 2024.

The petitioners say they are aggrieved that the National Assembly has tabled and is considering the Finance Bill, 2024, prematurely, before Parliament considers and approves the Financial Year (FY) 2024-2025 budget estimates by enacting the Appropriations Bill, 2024, into the Appropriations Act, 2024.

Further, Omtatah and Matindi argue that in passing the Finance Bill, Section 39A(4)(a) of the Public Finance Management Act (Cap. 412A) (PFMA) requires the National Assembly to ensure that the total amount of revenue raised is consistent with the approved fiscal framework.

" It is both unlawful and unconstitutional that the Finance Bill, 2024 is based on the FY 2024-2025 budget estimates of revenue, which were submitted to the National Assembly on April 30, 2024, by the Cabinet Secretary," they state.

Omatata and his co-petitioner also seek orders from the High Court certifying their petition raises substantial questions of law and forthwith refer the case to Chief Justice Martha Koome for the empanelment of a bench of an uneven number of judges, being not less than three to hear and determine the lawsuit pursuant to Article 165(4) of the Constitution of Kenya, 2010.

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