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{
"id": 1394491,
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"text_counter": 209,
"type": "scene",
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"speaker_title": "",
"speaker": null,
"content": "(Hon. Speaker consulted the Clerk-at-the-Table)"
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{
"id": 1394492,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1394492/?format=api",
"text_counter": 210,
"type": "speech",
"speaker_name": "Ugunja, ODM",
"speaker_title": "Hon. Opiyo Wandayi",
"speaker": null,
"content": "Hon. Speaker, I want to take you back to the celebrated ruling by your predecessor, the Rt. Hon. J.B. Muturi. On 21st December 2021, in a ruling on the constitutionality of the proceeds of Crime and Anti-Money Laundering (Amendment Bill), he had this to say… I will be very brief because I can see the Clerk-at-the-Table is consulting with you. His ruling on this particular day simply said: “Before I guide the House on the pertinent questions for determination, it is worth noting that Articles 3 and 10 of the Constitution oblige the Chair to respect, uphold and defend the Constitution. As you are aware, all business that comes before the House is approved by the Speaker and among other considerations, the Speaker applies his mind as to the constitutionality or otherwise of such business, as contemplated under Standing Order 47(3). Let me hasten to add that, notwithstanding the approval of any business by the Chair (implying the Speaker under the Standing Orders), it has now become an established parliamentary practice of this House, that a question of the constitutionality or otherwise of any matter under consideration by the House may be raised at any stage of its consideration. Indeed, my predecessors and I have been invited on several occasions to guide the House on issues of constitutionality of various matters before the House.” Hon. Speaker, that ruling read together with the Standing Order 47(3)(b) is what I am relying on to plead with you to allow me to raise these constitutional issues concerning the Bill under consideration, which is the National Government Administration Laws (Amendment) Bill, 2023. Hon. Speaker, I will proceed to briefly say that Articles 3 and 10 of the Constitution are clear. I do not want to read them because Members are now conversant with these two Articles. I have two issues with this Bill and I am aware that the relevant Committee, that is, the Departmental Committee on Justice and Legal Affairs, has dealt with some of them. But there are two issues which I do not want this House to proceed and vote on while we know we will be acting in vain. This House cannot afford to do so."
},
{
"id": 1394493,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1394493/?format=api",
"text_counter": 211,
"type": "speech",
"speaker_name": "Ugunja, ODM",
"speaker_title": "Hon. Opiyo Wandayi",
"speaker": null,
"content": "The two issues are to do with, first, the establishment of the office of the Head of Public Service. Second, the establishment of the office of Chief Administrative Secretary (CAS) These two offices, as contemplated in the Bill, are outrightly unconstitutional. Therefore, this House cannot and should not proceed to process this Bill in the manner it is currently crafted. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor"
},
{
"id": 1394494,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1394494/?format=api",
"text_counter": 212,
"type": "speech",
"speaker_name": "Ugunja, ODM",
"speaker_title": "Hon. Opiyo Wandayi",
"speaker": null,
"content": "Hon. Speaker, I am inviting you to make a ruling before we proceed with this Bill. First, on the issue of the Head of Public Service, the Bill is attempting to establish this office outside the Constitution. When you read Article 154 of the Constitution, it establishes the office of the Secretary to the Cabinet with very clear functions and powers. I will not read it because it is clear and Members can read for themselves. As a matter of fact, if you allow me because I want to be mindful of time, Article 154 establishes the Office of the Secretary to the Cabinet, which is an office in the public service. It goes on to enumerate the functions of this office as: 1. have charge of the Cabinet Office; 2. be responsible for arranging the business, and keeping the minutes, of the Cabinet; 3. convey the decisions of the Cabinet to the appropriate persons or authorities; and, 4. have other functions as directed by the Cabinet. What this Bill is assigning this office is laughable and I will ask Hon. Mbui to assist me, for the time being."
},
{
"id": 1394495,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1394495/?format=api",
"text_counter": 213,
"type": "speech",
"speaker_name": "Hon. Speaker",
"speaker_title": "",
"speaker": null,
"content": "Let me listen to you first."
},
{
"id": 1394496,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1394496/?format=api",
"text_counter": 214,
"type": "speech",
"speaker_name": "Ugunja, ODM",
"speaker_title": "Hon. Opiyo Wandayi",
"speaker": null,
"content": " This Bill is attempting to assign the proposed Office of Head Public Service to be the Chief of Staff of the President, the administrative Head of the Executive Office of the President and, previously, the custodian of the seal. I think the Committee has removed that one. He or she is to perform any such other functions as may be assigned by the President. As proposed in the Bill, none of these functions are not being performed by the Secretary to the Cabinet, which is a constitutional office established under Article 154 of the Constitution. So, in other words, this House is being invited to create some kind of mongrel or office that will superintend over a constitutional office. We are being invited in broad daylight to establish an office through an Act of Parliament to load over a constitutional office under Article 154 of the Constitution. To me, that is outrightly unconstitutional. There is no other way you can cure this. If you really want to establish such an office with distinct functions, there is no shortcut but to amend the Constitution. Remove these powers from the Secretary to the Cabinet and assign them to the Office of Head of the Public Service. More importantly, the Head of Public Service will attempt to perform functions that are only meant for the Public Service Commission (PSC), under Article 233 of the Constitution. I am not even aware, because the Bill is silent, whether this is a State office or public office? It is not clear because if it was a State office, it would be different. There is no way you can establish a State office through an ordinary statute. I stand to be corrected. You cannot! You cannot establish a public office, which can only be done by the PSC and make it superior to a constitutional office under Article 154 of the Constitution. That is my issue with this particular office."
},
{
"id": 1394497,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1394497/?format=api",
"text_counter": 215,
"type": "speech",
"speaker_name": "Ugunja, ODM",
"speaker_title": "Hon. Opiyo Wandayi",
"speaker": null,
"content": "I want to go to the second office of the Chief Administrative Secretary (CAS). Article 152 of the Constitution is very clear. It establishes the Cabinet, which is composed of the President, the Deputy President, the Attorney-General, and a specific number of Cabinet Secretaries. The Constitution goes ahead to establish the Office of the Principal Secretary in Article 155. If you logically read the architecture of the Constitution, you will see that after the Cabinet Secretary, the second line is the Principal Secretary, who has distinct functions. I want to read for you one of the functions of the Principal Secretary under Article 155(1) of the Constitution. It states: “(1) There is established the office of the Principal Secretary, which is an office in the public service.” Article 155(2) of the Constitution states: The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor"
},
{
"id": 1394498,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1394498/?format=api",
"text_counter": 216,
"type": "speech",
"speaker_name": "Ugunja, ODM",
"speaker_title": "Hon. Opiyo Wandayi",
"speaker": null,
"content": "“(2) Each State department shall be under the administration of a Principal Secretary.” The Constitution did not contemplate that at some point in time, a House of Parliament would sit and purport to establish another office outside the Constitution that would fall somewhere between the Office of the Cabinet Secretary and the Office of the Principal Secretary. The drafters of the Constitution could not have imagined that at some point in time, Parliament would create an office outside the Constitution through an ordinary statute."
},
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"id": 1394499,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1394499/?format=api",
"text_counter": 217,
"type": "speech",
"speaker_name": "Suba South, ODM",
"speaker_title": "Hon. Caroli Omondi",
"speaker": null,
"content": " On a point of order, Hon. Speaker."
},
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"id": 1394500,
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"text_counter": 218,
"type": "speech",
"speaker_name": "Hon. Speaker",
"speaker_title": "",
"speaker": null,
"content": "Order. There is a point of order from…"
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