Entry Instance

HTTP 200 OK
Allow: GET, PUT, PATCH, DELETE, HEAD, OPTIONS
Content-Type: application/json
Vary: Accept

{
    "id": 1067234,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1067234/?format=api",
    "text_counter": 64,
    "type": "other",
    "speaker_name": "",
    "speaker_title": "",
    "speaker": null,
    "content": "Hon. Members, as I have noted, by dint of Articles 3 and 10 of the Constitution, and Standing Order No. 47(3), the Speaker’s failure to arrest any business found to offend the Constitution or statute would amount to abdication of duty. I have previously ruled and guided Members where such instances have arisen on the specific provisions of the Constitution that the proposals have offended and additionally advised them to introduce amendments to the Constitution as an alternative. The Bill currently before the House seeks to amend the Constitution. Consequently, challenging portions of the Bill for ostensibly offending the same Constitution, the Bill seeks to amend would defy logic. Hon. Members, in the Report of the Committee, the Second Schedule to the Bill is termed “unconstitutional” for seeking to delimit constituencies which is a function of the IEBC enumerated under Article 89(4) of the Constitution. According to the submissions made to the Committee and those made by Members on the issue, the perceived unconstitutionality of the Schedule would be cured if a direct amendment had been made to Article 89(4) of the Constitution. This position draws our attention to the history of the current Constitution and the mechanisms it puts in place through the Transitional and Consequential Provisions that are set out in its Sixth Schedule of the Constitution. Members will recall that drawing from the mandate outlined in the Sixth Schedule to the Constitution, this House functioned as both the National Assembly and the Senate for close to three years during the existence of the current Constitution. Additionally, Hon. Members, we remember that my predecessor, the Hon. Speaker Kenneth Marende had occasion to rule that the nominations made by the then President Mwai Kibaki to the posts of Chief Justice and Attorney General had been forwarded to Parliament in contravention of the provisions of the Sixth Schedule which required consultations on the nominations with the then Prime Minister. The Executive at that time had decided to operate within the Constitution and not obey the requirements of the Sixth Schedule. The names were subsequently withdrawn and the nomination and appointment of Chief Justice Willy Mutunga strictly adhered to the provisions in the Sixth Schedule. Tellingly, Hon. Members, with regard to the first boundary delimitation exercise, the provisions of Section 27(3) of the Sixth Schedule deferred the obligation placed upon the IEBC to complete delimitation at least 12 months before a general election provided for under Article 89(2) of the Constitution. Additionally, Section 27(4) of the Sixth Schedule protected all the constituencies existing at the time of the promulgation of the Constitution from being lost during the first boundary review conducted by the then Interim Independent Boundaries Commission, despite the existence of Article 89(4) in the main text of the Constitution. The existence of these constituencies has never been challenged and the provisions of the Sixth Schedule have remained perfectly valid despite deviating from the substantive provisions contained in the main text of the Constitution. Similar competing arguments may also be advanced with regard to the issue raised in the Report on the constitutionality of the additional functions sought to be granted to the Judiciary with regard to the disciplining of judges. According to the Committee, in the event the Bill is assented to without submission to a referendum, the cited provisions would be unconstitutional. I, however, note that Paragraph 377 of the Report qualifies the findings of the Committee by acknowledging that “an unconstitutional amendment becomes constitutional if it is approved by the people in a referendum.” Additionally, at Paragraph 506 of the Report, the Committee notes that “there are provisions in the Bill that touch on some of the matters provided for under Article 255(1) of the Constitution. Consequently, pursuant to Articles 255(3) and 257 (10) of the Constitution, the Bill is one for which a referendum is required.” 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."
}