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{
"id": 1397761,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1397761/?format=api",
"text_counter": 124,
"type": "heading",
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"speaker": null,
"content": "CONSTITUTIONALITY OF THE NATIONAL GOVERNMENT ADMINISTRATION LAWS (AMENDMENT) BILL"
},
{
"id": 1397762,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1397762/?format=api",
"text_counter": 125,
"type": "speech",
"speaker_name": "Hon. Speaker",
"speaker_title": "",
"speaker": null,
"content": "Hon. Members, you will recall that during the afternoon Sitting of Tuesday, 19th March 2024, during the Second Reading of the National Government Administration Laws (Amendment) Bill (National Assembly Bill No.73 of 2023), the Leader of the Minority Party, Hon. Opiyo Wandayi, rose on a point of order under Standing Order 47(3)(b). The Hon. Leader of the Minority Party sought the Speaker’s ruling on the constitutionality of some specific aspects of the Bill. In his submission, the Leader of the Minority Party claimed that there were grave constitutional issues that touched on the substratum of the said Bill, hence requiring determination by the Speaker before debate on the Bill could resume. The Leader of the Minority Party singled out the proposed amendments to the provisions relating to the National Government Coordination Act, 2013, whose import is to create the Office of the Chief Administrative Secretary (CAS) and that of the Head of Public Service. He argued that the amendments, if passed in the manner contained in the Bill, would be unconstitutional. The matter elicited interest from several other Members, including Hon. Caroli Omondi, Hon. Jared Okello, Hon. (Dr) James Nyikal, Hon. Samwel Chepkonga, Hon. (Dr) Ojiambo Oundo, Hon. Gitonga Murugara and Hon. Owen Baya. Having listened to the concerns raised by the Leader of the Minority Party as well as the arguments and counter arguments by several other Members, I have distilled the following five questions as requiring my determination. These are – 1. Whether a state office may be created through national legislation; 2. Whether the offices of the Chief Administrative Secretary and the Head of Public Service as proposed in the Bill are public or state offices; 3. Whether the establishment of the offices of Chief Administrative Secretary and the Head of Public Service in the form proposed in the Bill is unconstitutional; 4. What is the value of a report of a Committee on a Bill to the House during debate at Second Reading of the Bill and at Committee of the whole House? 5. Whether the amendments proposed by the Departmental Committee on Justice and Legal Affairs would cure any offensive provisions in the Bill. Hon. Members, the first issue is whether a state office may be established through national legislation. On this question, the Leader of the Minority Party opined that the two offices were unconstitutional to the extent that they were not contemplated under the definition of “state office” under Article 260 of the Constitution. The Hon. Members who expressed divergent views from those of the Leader of the Minority Party relied on the fact that the Departmental Committee on Justice and Legal Affairs has, in its Report on the Bill, recommended certain proposed amendments intended to address the concerns raised by the Leader of the Minority Party. They also argued that the Constitution grants latitude to the House to exercise its legislative power to create offices in the public service through national legislation. Article 260 of the Constitution defines a public office as “an office in the national Government, county government or the public service, if the remuneration and benefits of the 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": 1397763,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1397763/?format=api",
"text_counter": 126,
"type": "speech",
"speaker_name": "Hon. Speaker",
"speaker_title": "",
"speaker": null,
"content": "office are payable directly from the Consolidated Fund or directly out of money provided by Parliament.” The same Article also defines the term “state office” to include the various offices therein enumerated at Paragraphs (a) to (q). Most relevant to this matter is Paragraph (q), which provides that a state office could also be an office established and designated as such by national legislation. It is, in fact, instructive to note that Article 260 of the Constitution is not couched in an exhaustive manner. Paragraph (q) of the said Article donates power to Parliament to further legislate on the subject by providing that ‘a state office also includes an office established and designated as such by national legislation.’ Hon. Members, the courts have also interpreted the question of whether state offices may be created by national legislation. In the case of Matindi & 3 others versus the National Assembly of Kenya & others [2023] KEHC 19534 (KLR), the High Court was satisfied that a state office can be created by national legislation. The court held as follows— ‘Whereas His Excellency the President can establish a state office within the ranks of the public service, it requires approval by the National Assembly. Such approval may be achieved by enactment of a statute, which provides for the same and further provide an appropriate framework for a cap on the number of CASs, if necessary.’ The High Court was satisfied that a state office may be created by statute. This settles the first issue on establishment of a public or state office by national legislation. The second issue for determination is whether the offices of the Chief Administrative Secretary and the Head of Public Service as proposed in the Bill are public or state offices. You will recall that the Office of the Chief Administrative Secretary has been subject of myriad litigation before the High Court. In the case of Okoiti & another versus Public Service Commission and others [2021] the Kenya High Court (KEHC) 464 Kenya Law Reforms (KLR), the court held that there were no processes laid down in legislation for establishing the office of Chief Administrative Secretary hence the finding of unconstitutionality. The findings in this case were reaffirmed in the latter case of Matindi and three others versus the National Assembly of Kenya & others [2023] KEHC 19534 (KLR), in which the Court affirmed that the offices of Chief Administrative Secretaries were State offices which could only be lawfully established and designated as state offices by national legislation. In summary, the Court in both instances emphasised on the need for legislation in order to constitutionalise the establishment of those offices. Differently put, the Court in both instances would probably have arrived at a different finding had the establishment of those offices been done by national legislation. In this context, it appears, therefore, that the Bill being contested by the Leader of the Minority Party in actual fact intends to fill the lacunae in law as identified by the courts in the aforesaid cases."
},
{
"id": 1397764,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1397764/?format=api",
"text_counter": 127,
"type": "speech",
"speaker_name": "Hon. Speaker",
"speaker_title": "",
"speaker": null,
"content": "Whereas the Bill as published does not expressly designate the two offices as either public or state offices, it follows without question that the remuneration and benefits of the offices established are payable directly out of monies to be provided by Parliament. To that extent, the offices established are public offices within the meaning of Article 260 of the Constitution. This disposition settles the second issue. It also settles the third issue on whether the establishment of the two offices in the form proposed in the Bill is constitutional."
},
{
"id": 1397765,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1397765/?format=api",
"text_counter": 128,
"type": "speech",
"speaker_name": "Hon. Speaker",
"speaker_title": "",
"speaker": null,
"content": "Hon. Members, permit me now to address the fourth issue concerning the value of a report of a Committee on a Bill to the House during debate at Second Reading of the Bill and at Committee of the whole House."
},
{
"id": 1397766,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1397766/?format=api",
"text_counter": 129,
"type": "speech",
"speaker_name": "Hon. Speaker",
"speaker_title": "",
"speaker": null,
"content": "You may recall that while speaking to the matter, the Member for Funyula, Hon. Ojiambo Oundo argued that whenever a Bill is listed in the Order Paper for Second Reading, the said Bill is exclusively what should be before the House for debate and not the Report of the relevant Committee on the Bill. According to Hon. Oundo, a report of a Committee of this 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": 1397767,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1397767/?format=api",
"text_counter": 130,
"type": "speech",
"speaker_name": "Hon. Speaker",
"speaker_title": "",
"speaker": null,
"content": "House on a Bill is inconsequential to the legislative processes to the extent that what is ordinarily debated is the Bill and not the report. I take it that Hon. Oundo advanced the said argument oblivious of the fact that committees interface the House with the public, hence actualising the provisions of Article 118 of the Constitution on public participation. It is not possible for this House to engage in participation. We do it through committees. It is for that purpose that Standing Order 127 is couched in mandatory terms, as follows: ‘127(3) The Departmental Committee to which a Bill is committed shall facilitate public participation on the Bill through an appropriate mechanism, including— (a) inviting submission of memoranda; (b) holding public hearings; (c) consulting relevant stakeholders in a sector; and, (d) consulting experts on technical subjects. (3A) The Departmental Committee shall take into account the views and recommendations of the public under paragraph (3) in its report to the House.’"
},
{
"id": 1397768,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1397768/?format=api",
"text_counter": 131,
"type": "speech",
"speaker_name": "Hon. Speaker",
"speaker_title": "",
"speaker": null,
"content": "In compliance with Standing Order 227, the Departmental Committee on Justice and Legal Affairs undertook public participation on the Bill and tabled a report thereof. Further, the Committee tabled an Addendum to the Report that addresses emergent issues relating to certain provisions of the Bill. For greater certainty, the initial Report and the Addendum should be read together."
},
{
"id": 1397769,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1397769/?format=api",
"text_counter": 132,
"type": "scene",
"speaker_name": "",
"speaker_title": "",
"speaker": null,
"content": "(Several Members walked into the Chamber)"
},
{
"id": 1397770,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1397770/?format=api",
"text_counter": 133,
"type": "speech",
"speaker_name": "Hon. Speaker",
"speaker_title": "",
"speaker": null,
"content": "Members at the back, take the seats nearest to you."
}
]
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