A push by digital workers and civil society groups to stop the controversial Business Laws (Amendment) Bill in its tracks has failed after the High Court ruled that Parliament should be allowed to complete the law-making process before the courts can step in.
The decision is a setback for Oversight Lab and 35 other petitioners who had moved to court seeking to prevent the Bill from advancing, arguing that the Senate approved it without meaningful public participation and that some of its provisions could hurt workers in the digital economy.
The petition had drawn support from various players in the sector, including ride-hailing drivers, content moderators, business process outsourcing workers and other employees working in technology-related fields.
In dismissing the case, Justice Bahati Mwamuye found that the proposed law is still undergoing the legislative process and has not acquired legal force, making any challenge at this stage premature.
“In light of the doctrines of jurisdiction, ripeness, separation of powers, and constitutional avoidance, this Court finds that the present Petition is premature, speculative, and legally unsustainable,” ruled Mwamuye.
The judge observed that the Bill has only cleared the Senate and must still be debated and approved by the National Assembly before being forwarded to the President for assent.
According to the court, a proposal before Parliament cannot be treated as an enforceable law capable of creating a dispute that warrants judicial determination.
“ The Court is persuaded that a legislative proposal, in its inchoate state, does not constitute “law” or “conduct” within the meaning of Article 165(3)(d) so as to found a justiciable controversy. Any challenge mounted at this stage is necessarily anticipatory and speculative,” the court found.
Justice Mwamuye based the ruling on the principle that courts should only determine disputes that have fully crystallised rather than matters based on future possibilities.
The court further cautioned against interfering with parliamentary proceedings before they are concluded, saying such action would encroach on Parliament's constitutional mandate and upset the balance between the different arms of government.
The petitioners had told the court that they submitted memoranda and recommendations during the Senate's consideration of the Bill but felt their contributions were ignored.
They alleged that the Senate Standing Committee on Trade, Industrialisation and Tourism did not carry out sufficient consultations with stakeholders and failed to table a report on public participation before lawmakers passed the Bill.
The group also expressed concern that some clauses contained in the proposed legislation could limit the ability of workers to pursue legal claims against multinational companies operating through outsourcing arrangements in Kenya.
Fearing that the Bill could quickly move through the remaining parliamentary stages, the petitioners sought conservatory orders to stop its transmission to the National Assembly and suspend any further consideration until the constitutional case was heard and determined.
The court, however, declined to grant the orders, leaving the Bill free to proceed through the next stages of the legislative process.