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{
    "id": 1065257,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1065257/?format=api",
    "text_counter": 218,
    "type": "speech",
    "speaker_name": "Sen. Omogeni",
    "speaker_title": "",
    "speaker": {
        "id": 13219,
        "legal_name": "Erick Okong'o Mogeni",
        "slug": "erick-okongo-mogeni"
    },
    "content": "We arrived at a conclusion that going forward, there is need for us to pass our legislation that will clearly guide this process. Madam Deputy Speaker, the second observation made by the Committee is that there are instances – as we have done in this particular case – where this House may come to the conclusion that some proposed amendments to the Constitution may be unconstitutional. That is what we termed in the Report as unconstitutional constitutional amendments. We had a long debate on this. The stakeholders who appeared before us, including Katiba Institute, the President of the Law Society of Kenya (LSK) who appeared with three Council members, the International Commission of Jurists (ICJ) and, others, had entertained thoughts that exercising our legislative mandate under Article 94 we have powers to amend a proposal to amend the Constitution, under Article 257. Madam Deputy Speaker, after a long debate, we arrived at a conclusion that the only amendment that this House can carry - an amendment that has been brought through Article 257, is to do some corrections on errors or amendments that may not go to the substance of the Bill, but which may just touch on the form of the Bill. We have made a conclusion in our Report that our Judiciary, which remains very independent, retains the jurisdiction to hear issues that may be unconstitutional and they can make their pronouncements. We were taken through a number of decisions, some from very established jurisdictions in this area, like South Africa. Therefore, we are firm as a Committee that if there are any clauses in this Bill that are unconstitutional, then the Judiciary retains jurisdiction to declare them unconstitutional. I also noticed that this House is being rushed into considering this Bill. In our Report, we have drawn the attention of the House to the fact that as I speak today, there are two injunctive orders that have been issued by the High Court of Kenya stopping IEBC or the President, from assenting to this Bill. Therefore, even if we passed this Bill today, we will have to await the outcome of the cases filed before the High Court before we can move forward. Madam Deputy Speaker, we were invited as a Committee to make a finding whether this is a Bill being pushed by the Executive, or is a popular initiative through the people of Kenya. The finding is that this is a popular initiative by the people of Kenya and not the Executive. Nobody, should therefore, tell us that they have received calls from the Executive because this Bill belongs to the people of Kenya. In fact, if you read the Bill, the promoter is the BBI. It is not the Government of Kenya. The Memorandum of Objects and Reasons says that the proposed constitutional reforms originate from the views of citizens expressed through BBI. Madam Deputy Speaker, we have made a number of observations that there are characteristics that should be eminent when a Bill is being marketed as a popular initiative Bill. The first and which we have pointed out in our Report is that, such a Bill should emanate from the people themselves or civil society. It should not have the presence of the Executive. If you read page 88, we have quoted a write-up that was brought to us by our expert. It says: The electronic version of the Senate Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor, Senate."
}