The fiasco that occurred in Parliament during the passage of the President Uhuru Kenyatta’s memorandum on the Finance Bill, 2018 has left many wondering whether MPs acted within the law.
The National Assembly passed the Bill that contains a raft of punitive taxation measures, including the introduction of an eight per cent Value Added Tax (VAT) on petroleum products.
Did the Finance Act, 2018, as passed by MPs meet the legal and constitutional thresholds as enshrined in the House Standing Orders and the Constitution?
What does the law say about a memorandum on Bill when the President refuses to assent and fires it back to Parliament for MPs reconsideration?
We cite the rules for you to assess this.
Not without Precedence
A similar matter arose in the same House in 2016 when MPs opposed the passage of the controversial Security Laws (Amendment) Bill and again in 2017 when lawmakers fought over the Electoral Laws (Amendment) Bill following the nullification of the August 4 presidential election results by the Supreme Court.
Rules for a Bill that was referred back
If the President refers a Bill back for reconsideration, Parliament may, following the appropriate procedures amend the Bill in light of the President’s reservations or pass the Bill a second time without amendment.
So, the Constitution, ( in Article 115 (3 and 4), direct link into Article ), requires that Parliament, after considering the President’s reservations has two ways to pass a bill:
- either without amendment or with amendments only that do not fully accommodate the President’s reservations.
This would require a vote supported by two-thirds of members of the National Assembly by a vote supported by two-thirds of members of the National Assembly, Para 3, Article 115 of the Constitution
- or with the amendments that would fully reflect the President’s reservations. That would require a simple majority vote only. Para 4, Article 115 of the Constitution
If Parliament has passed a Bill, either of the ways mentioned above, the appropriate Speaker shall within seven days re-submit it to the President and the President shall within seven days assent to the Bill.
Then, it is up to the President. We quote para 6 of Article 115: “If the President does not assent to a Bill or refer it back within the period prescribed in clause (1), or assent to it under (5) (b), the Bill shall be taken to have been assented to on the expiry of that period.”
Rules for Voting in the Assembly
So, did the House follow its own rules during the chaotic debate on the Finance Bill, 2018? Section 69 to 74 of the Standing Orders of The National Assembly (document on RoGGKenya) elaborates how voting on a matter in the House should be undertaken. (External link: Standing Orders on Parliament Website)
The House rules stipulate that unless otherwise provided under the Constitution, a question arising in the House shall be decided by a majority of the Members in the House, present and voting.
In ascertaining the results on a question arising in the House, the Speaker shall, in the first instance, collect the voices of the “Ayes” and the “Noes” and shall declare the results accordingly.
Electronic Voting is the Rule
Section 70 of the rules provide for electronic voting and unless the Speaker, for the convenience of the House otherwise directs, voting on a division in the House shall be by electronic voting.
Curiously, the electronic gadgets failed during the chaotic vote on Finance Bill with screens showing that 352 MPs were present when the total number of lawmakers in the House is 349.
The rules says when the Speaker directs that an electronic vote be taken, the Division Bell shall be rung for not more than ten minutes and the House shall proceed to a vote at the expiry of the ten minutes, or such further time as the Speaker may, for the convenience of the House, direct.
During electronic voting, Members cast their votes by pressing either the “Yes, “No” or “Abstain” button.
At the expiry of five minutes or as soon as the result of the voting appears on the indicator board, the Speaker or the Chairperson, as the case may be, shall announce the results of the division forthwith.
Roll Call is the Second Choice
In the event of a technical failure, confusion or error occurring in the course of voting which in the opinion of the Speaker cannot otherwise be corrected; the Speaker may direct the House to another round of electronic voting or proceed to a roll call voting. (71 of the Standing Orders)
The rules states that the Speaker shall direct a division to be taken in every instance where the Constitution lays down that a fixed majority is necessary to decide any question. (72 of the Standing Orders)
The Procedure for a Roll Call is laid down in Standing Order no. 73: When the Speaker directs a roll call voting to be taken, the Division Bell shall be rung for ten minutes.
The names of one teller for the “Ayes” and one teller for the “Noes” shall be submitted to the Speaker, and the Speaker shall direct the tellers to take seats at a designated place.
At the end of ten minutes, the Speaker shall direct the doors to be locked and the Bar drawn and no Member shall thereafter enter or leave the House until after the roll call vote has been taken.
When called out, each Member shall, thereupon rise in his or her place and declare assent or dissent to the question in the following manner; “I vote Yes” or, “I vote No” or, “I Abstain,” or use appropriate Kenyan sign language.
After the Clerk has read the last name in the Division list, the tellers shall present the result of the roll call vote to the Speaker who shall thereupon announce the result of the vote to the House.
During division, Members are required to maintain order in the House and shall be in their designated seats and must remain seated until the result is announced.
Irregularities on Sep 21, 2018
This was not the case on September 21, when the Finance Bill 2018 was voted upon.
On TV, we even saw the Deputy Speaker call for a vote by acclamation. We heard that the “No”-Votes were much louder during that acclamation vote, whereas the Deputy Speaker declared the “Yes”-Votes to be stronger. Link to NTV report (video).
All this seems not to be documented in the electronic version of the Official Hansard Report that is online on the Parliament Website (external link, This Hansard on RoGGKenya.org, downloaded Oct 1)) .
Also, in The Standing Orders , in its Part XV on voting and divisions, there is no mentioning at all of an acclamation vote . Why has Hon. Soipan Tuya then chosen to try it out?
NTV and others have even reported that Majority Leader Aden Duale and Minority Leader John Mbadi led MPs out of chamber to prevent the necessary quorum to be present for any vote that would be able to run counter against President Kenyatta’s memorandum about the Bill. (link to the report)
Were the proper procedures followed during the Finance Bill, 2018? We do not find this to be the case. And this is only one reason why the outcome is being challenged in the courts.
But meanwhile, you yourself can start comparing the reality with the rules by looking at the documents and other sources linked in the text.