By Walter Amoko | Lena Onchwari
Amidst controversy and recriminations across board, the Finance Bill, 2018 (the Bill), was eventually passed on a special sitting of the National Assembly on 20th September, 2018 and the President assented to it on the 21st September, 2018.
While the political branches were considering the Bill, a Constitutional Petition challenging its propriety on multiple grounds including whether or not it had been presented to Parliament in time, as well as the constitutionality of bringing some of its provisions into force before its enactment, was being litigated before the Courts. A day before the Finance Act, 2018 (the Finance Act) was passed, the High Court delivered its decision, upholding two of the grounds the redoubtable Mr. Omtatah had pressed. One was the headline grabbing invalidation of the Provisional Collection of Taxes Act which allowed the Cabinet Secretary (CS) Finance, to enforce provisions of the Finance Act before it was enacted. Lady Justice Okwany held that under Article 94 of the Constitution, only Parliament could pass legislation, and it had to be done within the stipulated process which included such fundamental issues such as effective public participation in law-making. By allowing prior enforcement of provisions of a bill by way of orders issued by a Minister, however temporarily, not only does the Executive unlawfully usurp the exclusive non-delegable powers of Parliament but also undermined the salutary inclusive law-making process.
Click here to read an in depth summary of the key changes introduced by the Finance Act.