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{
"id": 1589572,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1589572/?format=api",
"text_counter": 108,
"type": "speech",
"speaker_name": "Mr. Elisha Ongoya",
"speaker_title": "",
"speaker": null,
"content": "Motion that has been approved by the County Assembly, is it just any motion or a valid motion? If there is information before you that the Motion is invalid for any reason, what is the precedent that has been set by this Senate? It is against that background that I wish to draw this Senate's attention to its resolution found from page 136 of Volume No.4 of the Governor's documents. This was the determination of the proposed removal from office by impeachment of the Governor of Kericho County, hon. (Dr.) Erick Kipkoech Mutai. On that occasion, the validity of the resolution was questioned on the ground that the Motion had not met the threshold. Rightly, this House found that it could not move a step further because the validity of a Motion is an important precondition to the carrying out of the trial process on the Motion. Mr. Speaker, Sir, similarly, by parity of reasoning, today, the validity of another Motion has been impugned on two grounds. Firstly, there was no sitting known to law of the County Assembly of Isiolo to approve the Motion. Secondly, in any event, a court of competent jurisdiction has made a finding that whatever came from the County Assembly of Isiolo is null and void, and of no legal consequences. Will you, in the face of the precedents set by previous Speakers’ rulings and by the resolution in the case of Kericho County Governor's case proceed to trial on that understanding? We beseech you with humility to find that there is no Motion known to law before you and thereby down your tools. Mr. Speaker, Sir, I humbly submit and rest the Governor's submissions on that question of the preliminary objections. I reserve our 10 minutes for a rebuttal from this side once the County Assembly has finished their response. I thank you."
},
{
"id": 1589573,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1589573/?format=api",
"text_counter": 109,
"type": "speech",
"speaker_name": "Hon. Kingi",
"speaker_title": "The Speaker",
"speaker": null,
"content": " Counsel for the County Assembly, please, proceed."
},
{
"id": 1589574,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1589574/?format=api",
"text_counter": 110,
"type": "speech",
"speaker_name": "Mr. Paul Nyamodi",
"speaker_title": "",
"speaker": null,
"content": "Mr. Speaker, Sir, I will respond to the arguments that have been made by my learned colleagues for the Governor. I am the only member of the team for the County Assembly that will respond to those preliminary issues. Mr. Speaker, Sir, I am grateful for the opportunity to respond to those preliminary issues. I shall constrain myself to the time that Mr. Speaker has gladly extended our way. I wish to start my response to those preliminary issues by stating that a preliminary issue, by definition, must be an issue that goes to the ability of this House to entertain the Motion before it. It cannot be an issue that is merely important to the Governor--- Sorry, I cannot see my time. Thank you. It cannot be an issue that is merely important to the Governor and who then chooses to bring it forward and deal with it as a preliminary issue. Therefore, it does not go to the ability of this House to hear the Motion before it. Mr. Speaker, Sir, it is settled that a preliminary issue assumes that the facts are settled. The consideration of what the Governor's counsel purports to be a preliminary issue involves the detailed consideration of evidence. The electronic version of the Senate Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Director, Hansard and AudioServices, Senate."
},
{
"id": 1589575,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1589575/?format=api",
"text_counter": 111,
"type": "speech",
"speaker_name": "Mr. Paul Nyamodi",
"speaker_title": "",
"speaker": null,
"content": "I was constrained to stand up on my feet and object towards my colleagues who were on their feet because it was apparent that what they were doing for the Governor was leading evidence. They were testifying and referring to contested statements in the panels of both documents and there are responses from the County Assembly in respect of those statements. Those statements must be tested by way of cross-examination and only once the evidence is laid before this House and it is tested, like the Assembly is entitled to do, then can this House make up their minds as to whether or not those issues hold any water. I am not saying that this House should not consider those issues, but rather that this House should not consider those issues as issues that are preliminary to the determination of the Motion. There are issues in the Motion and I will demonstrate in a moment how those issues are indeed issues in the Motion. I have chosen to respond to the issues that were argued by my learned colleagues for the Governor using a slightly different framework from what they did. We distilled three or four issues from the notice of preliminary objection that was served on the County Assembly, and I wish to crystallize the first issue I wish to respond to as follows- That, the Governor challenges the validity of the impeachment Motion in light of the declaration by the High Court of Kenya sitting in Meru that the impeachment proceedings are a nullity. It is correct, as was submitted by Mr. Ongoya, that it is not contested that, indeed, there are orders that were issued by the High Court of Kenya sitting in Meru in respect of these proceedings. However, what is contested, and I doubt we will agree on this, is the effect of those orders on these proceedings. Mr. Ongoya and his colleagues say that the effect of those orders on these proceedings is to invalidate them and this Senate should, therefore, down its tools. We disagree. I wish to submit and emphasize that elections to offices such as those occupied by the Members of this House are conducted by the people of Kenya in furtherance of primordial sovereignty. The exercise of removal of an elected official such as the removal of a governor is, therefore, in my submission, the flipside of that exercise of primordial sovereignty. Mr. Speaker, Sir, as authority to my submission, I wish to refer you and Members of this House to the provisions of Article 1 of the Constitution. Article 1(1) of the Constitution provides as follows- “All power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” That is an affirmation of sovereignty by the people of Kenya, and it is clear where the sovereignty lies. Article 1(2) of the Constitution goes on to say- “The people may exercise the sovereign power either directly or through their democratically elected representatives.” The important provision of Article 1, which I wish to emphasize, is the next provision, Article 1(3) of the Constitution. It says- “Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution- (a) Parliament and the legislative assemblies in the county governments; The electronic version of the Senate Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Director, Hansard and AudioServices, Senate."
},
{
"id": 1589576,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1589576/?format=api",
"text_counter": 112,
"type": "speech",
"speaker_name": "Mr. Paul Nyamodi",
"speaker_title": "",
"speaker": null,
"content": "(b) the national executive and the executive structures in the county governments; and (c) the Judiciary and independent tribunals.” Mr. Speaker, Sir, the function of the removal of the Governor is delegated to the Senate of the Republic of Kenya by virtue of Article 1(3). The election of the Members of the National Assembly, Members of the Senate and any elected office is done directly by the people of Kenya. Mr. Speaker, Sir, as I have said, impeachment is the flipside of election and it is done again here by the people's representatives. I wish to emphasize this point. The Speaker gave a correct and appropriate direction at the beginning of these proceedings. That, voting on this Motion is by delegation. Voting on this Motion is not by all Members of the Senate, but by delegation. I submit that, that is in recognition of the special role or function that this House is being called upon to perform when you sit to consider the Motion for impeachment. It is not legislative, but it is delegated and the House has correctly interpreted that role as being exercisable only by delegations and not by all Members. Mr. Speaker, Sir, it is my submission that a correct interpretation of the doctrine of separation of powers is as follows and it has been held not just by this House, but also the High Court, the Court of Appeal and the Supreme Court; that, the role of the Judiciary in examining impeachment proceedings arises or kicks in once the impeachment proceeding is complete. Yes, the Judiciary has a role, but the Judiciary, as has been correctly held, does not have the ability to intervene at every stage. In our written submissions, we have referred you to the relevant decisions of the Court of Appeal in Kawira Mwangaza and the decision of the Supreme Court rendered earlier in the matter of Martin Nyaga Wambora. I wish to suggest a reasoning, perhaps, why the law is as it is. Impeachment proceedings and many proceedings under our Constitution are time-bound. Therefore, if judicial intervention is allowed in some of these time-bound proceedings as they proceed, it is not clear whether the Judiciary has the ability to suspend constitutional time, so as to allow the judicial proceedings to proceed, or whether it is better off to allow the impeachment proceeding to proceed and be completed, after which, a completed process review of the proceeding is taken to court. What am I saying? The correct interpretation of the doctrine of separation of powers, and it has been held repeatedly by this Senate and the courts, is that, even where an impeaching Assembly is making a mistake, allow it to complete the mistake. What is justiciable is the completed mistake. Do not interfere in between because of timelines. I submit that is a modern interpretation of the view of the doctrine of separation of powers as to how it applies to the power of county assemblies and this House to carry out their function of impeachment."
},
{
"id": 1589577,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1589577/?format=api",
"text_counter": 113,
"type": "speech",
"speaker_name": "Mr. Paul Nyamodi",
"speaker_title": "",
"speaker": null,
"content": "Mr. Speaker, Sir, there was reference to a decision that was made by Hon. Kenneth Marende when he was the Speaker. It was a decision in respect to the appointment of the Chief Justice of this Republic. I wish to distinguish that decision from the matter that is before you for this important reason."
},
{
"id": 1589578,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1589578/?format=api",
"text_counter": 114,
"type": "speech",
"speaker_name": "Mr. Paul Nyamodi",
"speaker_title": "",
"speaker": null,
"content": "Mr. Speaker, Sir, I have stated and I ask for your permission to emphasise that impeachments are time-bound proceedings. The appointment of the Chief Justice was a The electronic version of the Senate Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Director, Hansard and AudioServices, Senate."
},
{
"id": 1589579,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1589579/?format=api",
"text_counter": 115,
"type": "speech",
"speaker_name": "Mr. Paul Nyamodi",
"speaker_title": "",
"speaker": null,
"content": "constitutional process, but it had no time limit. The process of that appointment had the luxury of time; it could take as long as it needed to take. It then made room for judicial interventions during the process of appointment of the Chief Justice."
},
{
"id": 1589580,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1589580/?format=api",
"text_counter": 116,
"type": "speech",
"speaker_name": "Mr. Paul Nyamodi",
"speaker_title": "",
"speaker": null,
"content": "I have stated and I will emphasise that impeachment proceedings are time-bound. If they are not concluded in time, we would then be faced with a ridiculous situation where somebody may run to court and say that “Assembly X” or the Senate of the Republic of Kenya did not complete its mandate on time."
},
{
"id": 1589581,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1589581/?format=api",
"text_counter": 117,
"type": "speech",
"speaker_name": "Mr. Paul Nyamodi",
"speaker_title": "",
"speaker": null,
"content": "I believe I was seated here a few months ago when the impeachment proceedings of the Deputy President of the Republic of Kenya were being conducted and that was an important consideration. There are strict timelines that guided many of the directions that Mr. Speaker you made during those proceedings. I urge you to call on that wisdom. If you are persuaded to consider this as a preliminary issue, that because of the strict nature of the timelines, then the role for court is ex post facto considerations of completed processes of impeachment."
}
]
}