Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR which the legislation was enacted violates the Constitution, any consideration of the matter by this Court would amount to unconstitutional intrusion on Parliament’s legislative mandate and a violation of the doctrine of separation of powers. This averment is supported by the decision in United States v Butler, 297 U.S. 1[1936]. 653. In response to the Petitioners’ allegation that the omnibus Bill inhibited public participation hence violated Articles 10(2)(a) and 118(1)(b) of the Constitution, the 4th and 7th Respondents submit that no evidence was tendered before this Court to demonstrate that due to the nature, form and structure of the Statute Laws (Miscellaneous Amendments) Act No. 18 of 2018), a member of the public was prevented from presenting their views to Parliament. They therefore urge the Court to hesitate to supervise the manner in which Parliament executes its legislative mandate in the absence of a link between the impugned amendments and a specific constitutional or statutory provision that has been violated or is threatened with violation. 654. It is the 4th and 7th Respondents’ submission that the effectiveness of the legislative mechanism of omnibus Bills must be considered against the importance of the principle of the separation of powers and the principles of representative democracy. In support of this assertion, they cite the decision of the Supreme Court of Israel in Israel Poultry Farmers Association v. Government of Israel HCJ 4885/03 at 383 where it was held that not every formal defect in the legislative process and not every case of ultra vires would lead to intervention in the legislative process by the court. Further, that for the law to be invalidated, it is not sufficient to prove a violation of a basic principle of the legislative process, such as the principle of participation, but it is also necessary to show a severe and substantial violation of that principle. 655. The 4th and 7th Respondents’ assertion that there was nothing wrong in the use of an omnibus Bill to effect the impugned amendments was boosted by a reference to the doctrine of separation of powers. It is the 4th and 7th Respondents’ contention that the doctrine of separation of powers is not alien to our jurisprudence as was stated by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others C. A. No. 290 of 2012. They contend that though the arms of government are co-dependent, each branch is reasonably expected to perform its constitutional functions in the best interest of the people on whom sovereign power lies. In doing so, it is presumed that the decisions taken by each branch of government are legitimate and rational, until the contrary is proven. The decision in the case of Community Advocacy and Awareness Trust & 8 others v Attorney General & 6 others [2012] eKLR is relied on in support of the proposition that courts must resist the temptation to secondguess the legislature or act as a super legislature and review every piece of legislation. The 4th and 7th Respondents stress that by dint of Article 94 (1) as read with Article 94(5) of the Constitution, legislative authority is exclusively vested in Parliament and no other person or body has the power to make provisions having the force of law in Kenya. 656. The 4th and 7th Respondents conclude by submitting that nowhere in the Constitution or the Standing Orders of the National Assembly is it prescribed that a Bill should contain a single subject; what is referred to as the ‘single subject rule’ provision. It is their submission that unlike in the United States of America where 43 States have the ‘single subject provision’, Kenya has no such provision and it would amount to an infraction of the legislative prerogative of Parliament to arrive at the Petitioners’ desired outcome by reading non-existent provisions into the Constitution. It is their case that the Petitioners’ allegation that omnibus Bills infringe Articles 10, 73, 93(2) and 94(4) is therefore unfounded. In their view, the cited provisions espouse the constitutional principles that bind Parliament in the discharge of its legislative mandate and nothing more. Further, that the Petitioners had failed to adduce cogent evidence to demonstrate the manner in which the Respondents had violated the Constitution and the specific Article violated. 657. The 5th Respondent did not make any comments on the use of an omnibus Bill to enact the impugned amendments. In support of his position that the impugned amendments were not unconstitutional for having been passed by way of an omnibus Bill, the 6th Respondent argues that a Miscellaneous Amendment Bill amends various legislations and the long title of the Bill usually states the intention and purpose of the Bill. He notes that the long http://www.kenyalaw.org - Page 104/174