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{
"id": 1097582,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1097582/?format=api",
"text_counter": 61,
"type": "speech",
"speaker_name": "Garissa Township, JP",
"speaker_title": "Hon. Aden Duale",
"speaker": {
"id": 15,
"legal_name": "Aden Bare Duale",
"slug": "aden-duale"
},
"content": "Looking at the proposals for the amendments as contained in the pending Bills and legislative proposals, it is clear that they contain matters that were contained in the BBI Bill, which has since been declared unconstitutional. In light of the judgment of the High Court and the Court of Appeal on the Constitution of Kenya (Amendment) Bill 2020, on the basic structure of the Constitution, I seek your guidance on the following: First, what is the effect of the judgement on the various Bills to amend the Constitution, which are at different stages in the House, and legislative proposals which are yet to be published in terms of the basic structure application? Two, how is the question of the basic structure to be determined? At what stage of a Bill shall that determination be made? Three, could it be prudent for the House to suspend any further processing of these Bills and Legislative Proposals until a determination is made on the application of the basic structure doctrine on each of them and a legal framework on reviewing the Constitution of Kenya developed? It is notable that the courts agreed with your considered Rulings. In particular, that a Bill to amend the Constitution under Article 256 and Article 257 cannot be amended; that, corrections and errors may be effected as they are not amendments, and; that, there is definitely a fundamental lacuna on the processes under Article 256 which is on amendment by a parliamentary initiative and Article 257 which is on amendment through popular initiative. The courts have on this matter agreed with your Ruling and the Communication you gave to this House. Hon. Speaker, you have in a number of your Rulings before ruled that Parliament should not act in vain. In this regard, I respectfully hold the view that we should not spend the time of this House and its Committees considering Bills and legislative proposals to amend the Constitution only for the courts to again fault the outcome for not following the just process due to lack of a sound legal framework. Setting up the legal framework is the business of this House and the Senate. So that we do not put the cart before the horse, could I be in order to request you to once again rise to the occasion, as you have always done, and use your powers under Standing Order No. 1 and Standing Order No. 281(2) to ask the Constitutional Implementation Oversight Committee (COIC) and the Departmental Committee on Justice and Legal Affairs to formulate a Bill to actualise the provisions of Article 256 and Article 257 with specificity? I ask you, Hon. Speaker, to consciously see that this task could be better undertaken by a Committee and not an individual Member. It is due to its magnitude and the enormity. Indeed, both the High Court and the Court of Appeal upheld that there exists no legislation to govern the popular initiative process, including the manner in which the verification of signatures was to be conducted. Should this not be the first step before all these Bills can be considered by the House? Finally, I have in mind a Bill close to the Constitution of Kenya Review Act (Cap 34 of 2008). It could provide, among others, the form and the legal framework for the amendment of the Constitution under Article 256 and Article 259. The mechanism and the responsibility of undertaking signature verification, civic education, public participation, and constituency assembly debate are all found under Article 256 and Article 257, among other things. So, I have, as a ranking Member, seen a lot happening out there. People want to engage the House and its Committees in trying to amend certain provisions of the Constitution. Based on the ruling of the courts at both levels and with the introduction of the concept that the basic structure doctrine is applicable in the amendment of the Constitution, it is imperative that we reconsider. To be more specific, the basic structure doctrine touches on the function of 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."
}