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"content": "((Resumption of Debate interrupted on 30.11.2011)"
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"speaker_name": "Dr. Laboso",
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"content": " Mrs. Milly Odhiambo-Mabona, you have 42 minutes left."
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"legal_name": "Millie Grace Akoth Odhiambo Mabona",
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"content": "Madam Temporary Deputy Speaker, I will probably take way much less than that. Madam Temporary Deputy Speaker, Sir, as I had indicated previously, the main reason for this Bill is to ensure that when laws are ratified, international laws are developed and ratified internationally and that when Kenya ratifies those treaties, Parliament as provided by law, has a say. What this Bill seeks to do is to ensure that we are in conformity with the Constitution so that we do not have the Government or the Executive ratifying things that are contrary to the Constitution of this country or that are contrary to the laws of this country. Madam Temporary Deputy Speaker, we have received a lot of contributions from different organizations, from different sectors and Government Ministries that are seeking to improve on this Bill which we will consider at the Committee Stage. I do not want to speak to all of them but I want to say that one of the suggested amendments is on the issue of domestication. Right now, what the Bill talks about is only ratification. It does not say what happens after ratifications. One of the things we are going to do is include the aspect of domesticating the Bill once it is passed through Parliament. One of the things that the Bill also seeks to do is that it provides a schedule so that whenever the Executive seeks to ratify, then Parliament will indicate through that Bill that is passed, which areas of that international law we are seeking to ratify have been approved and which parts Parliament has not approved. The parts that have not been approved by the Parliament of Kenya, the Executive can put reservations if they are allowed under international law. I think with those few remarks, I beg to move and call on Mr. Ababu Namwamba to second."
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"id": 3694,
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"type": "speech",
"speaker_name": "Dr. Laboso",
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"content": " Mr. Namwamba! I can see the Chief Whip is engaging you."
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"id": 3695,
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"speaker_name": "Mr. Namwamba",
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"legal_name": "Ababu Tawfiq Pius Namwamba",
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"content": "Madam Temporary Deputy Speaker, my apology. When the Chief Whip calls, you have to obey. Madam Temporary Deputy Speaker, it is my pleasure to second this Bill. Let me start, of course, by congratulating my eminent attorney sister Milly Odhiambo-Mabona for bringing this Bill. This Bill is very much like her in terms of its progressive outlook, its reformist credentials and in terms of its every attempt to advance the letter and spirit of the new Constitution. The Constitution of the Republic of Kenya vests in this House the power to make law. Article 109 of the Constitution is absolutely clear that the exercise of legislative power in the Republic of Kenya--- Let me just read it for the record:- Article 109(1) – “Parliament shall exercise its legislative power through Bills passed by Parliament and assented to by the President”. Therefore, the Constitution vests in this hon. House the responsibility, the duty, the power to enact law. In the enactment of that law, it has to extend to every possible limits. I also want to remind the House that the Constitution has duly recognized international law. Indeed, when you look at Article 2(5), again if you allow me to put it on record, reads:- “The general rules of international law shall form part of the law of Kenya”. This means that the general rules of international customary law and legislative law at the international arena form part of the law of this country. However, most instructive for this debate is Article 2(6) that reads:- “Any treaty or convention ratified by Kenya shall form part of the laws of Kenya under this Constitution” Madam Temporary Deputy Speaker, that is the crucial Article in the Constitution that this House needs to be alive to as we debate this Bill. This means that the Constitution has now provided a framework and platform for this House to ratify the application of treaties and conventions within our jurisdiction. This is fundamental especially for those of us who know that in the past this country has ratified conventions and treaties in a manner that has really not been properly thought out. Some of the treaties and conventions we have ratified have later on raised issues and questions as to whether this country really did think through the ratification process before we ratified the said laws. There are also several treaties and conventions that should ideally have been ratified by this country that would have been beneficial to this country. However, because this hon. House has not had the opportunity to do so, such conventions and treaties never got to be ratified. Therefore, by providing a platform and a framework for this House to consider for ratification any treaty, any international convention, this Bill will hand this House the responsibility, the duty and the power to determine ultimately what kind of international laws become part of our jurisdiction and how exactly those treaties and conventions enter this jurisdiction. Madam Temporary Deputy Speaker, it is instructive to know that Section 44 of the Bill indicates clearly that any Bill that seeks the ratification of any treaty or any convention shall include the following things. One, that Bill has to explain how joining the treaty advances or threatens the interests of Kenya in the short-term or long-term. That is fundamental and it is basic that before we make any steps to ratify any convention or treaty, we have to be absolutely clear how such a treaty or convention advances the interest of our republic, both in the short-term and in the long-term. The Bill must also indicate the constitutional implications of the ratification, including an indication as to whether an amendment of the Constitution is required. We may enter a treaty or a convention that would have such far-reaching implications that would necessitate the amendment of our constitution. It should also include affirmation that ratification by Kenya, of the treaty, would be in keeping with or otherwise, advances constitutional values and objectives. Again, we do not want to rush headlong to ratify any treaty or convention that would appear to be at variance or not in consonance with the spirit and letter of our dear Constitution. That Bill must also indicate whether the treaty sought to be ratified permits reservations and the proposed text of any reservation that should be entered when ratifying the treaty in order to protect or advance national interest or ensure conformity with the Constitution. Madam Temporary Deputy Speaker, these requirements will keep the House and the whole country alert. Indeed, Section 44 of the Bill is like a checklist. It will be our legislative checklist or our statutory checklist that before we commence any process of ratification, we can check to find out whether it is in consonance with the Constitution. Yes. Would it require any amendment of the Constitution? Yes or no. Does it advance the best interests of the republic? Yes or no. This checklist is essential and will ensure that this country advances surefooted in regard to any business of ratifying any treaty or convention. The other important section of this Bill is Section 10 which talks about the requirement for registry of treaties. This is essential again because, today, if you wanted, at the click of a button, to flip through a file just to confirm the treaties or conventions this country has ratified since we became a Republic almost 50 years ago, you may not be able to access that information. However, through this section, it will be possible to have a registry that easily tells you the treaties that we have ratified and their implications. I am convinced that this Bill will, certainly, advance the aims of our constitutional implementation process and place Kenya firmly within the family of nations that advances the interest of international law. With those remarks, I do second."
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"content": "(Question proposed)"
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"type": "speech",
"speaker_name": "Mr. Abdikadir",
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"legal_name": "Abdikadir Hussein Mohamed",
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"content": "Thank you, Madam Temporary Deputy Speaker. In view of time, I will be very brief. When we were selling the Constitution to the people of Kenya, there was propaganda to the effect that once we passed the Constitution, that would open the country to all sorts of international laws, treaties or accords. The fact that we are passing this Bill is a very clear indication that international laws or treaties do not automatically become part of our laws. They are either customary laws of international nature that are accepted by everybody or they have to be ratified through a statutory process. This Bill provides that statutory process because laws in this country are made by the Parliament of this country. By ratifying international accords, the Parliament of this country is giving its approval to that law and, therefore, adopting and domesticating it. The second issue is that the Constitution is supreme. If you look at the Bill, you will see that it says that the international treaties we are ratifying must meet our constitutional thresholds, must be in line with the constitutional values and must be acceptable by our Constitution which again means that our Constitution is supreme. For example, this country has had a lot of talk about abortion. It had a lot to talk about other issues. The Constitution is very clear that abortion is not allowed. If there is a treaty out there that says that abortion will be on choice, you or this Parliament may not ratify because that is contrary to the Constitution. So, the fact that this law gives the procedure and clearly states the structure of adoption of those processes is very useful. In the interest of time and that of my colleagues, I support."
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"speaker_name": "Mr. Mututho",
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"speaker": {
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"legal_name": "John Michael Njenga Mututho",
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"content": "Madam Temporary Deputy Speaker, I rise to support this Bill and thank hon. Odhiambo- Mabona for such a thoughtful piece of Bill. In saying this, I would persuade her to look at the transitional clauses so that we give a clear timeframe not exceeding nine months because we believe that some of the treaties that are in force now might be some that originated during the colonial days. For some of them, the content, style and the spirit under which they were designed may not necessarily be in harmony with the new thinking in Kenya. In doing this Bill, I realise that she has, thoughtfully, looked at what happens in real practice and I would urge her to propose a further amendment at the Committee Stage so that we are able to annul the many treaties that may be placed in people’s shelves that either were not presented before the new dispensation or in nature do not meet international standards or the spirit of the new Constitution. I support."
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"type": "speech",
"speaker_name": "Mr. Njuguna",
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"speaker": {
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"legal_name": "Peter Njuguna Gitau",
"slug": "peter-gitau"
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"content": "Madam Temporary Deputy Speaker, very quickly, let me take this opportunity to thank hon. Millie Odhiambo-Mabona for this critical Bill. It is clearly stipulated that the international accords or treaties, from now henceforth, will not be done by the President and the Cabinet but the approval will be given by this Parliament. This is a very good development and it is, therefore, important that even members of the public would have participation in the whole process. Regarding the fines on those who are likely to contravene the law, the Bill proposes a fine of 15 years. I think this fine is very little and propose that it is enhanced to 20 years. Concerning the appointment of the Registrar, the Bill stipulates that those to be appointed and those found qualified should, at least, have seven years experience. I would like to say that we have very many graduates tarmacking in this country and our public universities continue to produce many graduates who are jobless. I request that the seven years experience be reduced to five years experience so that our graduates from the universities, who are exposed and who would be interested in this very critical appointment are considered. Therefore, I fully support this Bill because even our pupils and students in our institutions will also have an opportunity to learn and even experience what has been happening, for instance, when the East African Community, Southern African Development Community (SADC), Intergovernmental Authority on Development (IGAD), the African Union and even the United Nations were formed. This is a law that will bring a lot of awareness to the minds of the Kenyan people. Therefore, this is a much desired law and I fully support it."
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"speaker_name": "Dr. Laboso",
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"content": " There seems to be no more interest, I call upon the Mover to respond."
}
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