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{
    "id": 1097594,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1097594/?format=api",
    "text_counter": 73,
    "type": "speech",
    "speaker_name": "Kipipiri, JP",
    "speaker_title": "Hon. Amos Kimunya",
    "speaker": {
        "id": 174,
        "legal_name": "Amos Muhinga Kimunya",
        "slug": "amos-kimunya"
    },
    "content": "look at a number of things. Even their own judgment could well be the subject matter of a challenge. Going back to the High Court, which does not have the same challenge, they seem to have introduced a new Article 255A. We were all at the Bomas of Kenya during the making of the Constitution. The prayers by stakeholders were that, now that we are coming up with a new Constitution, how do we protect it from being dismembered progressively by Parliament and other bodies like had happened with the 1963 Constitution? I remember those discussions. The stakeholders said: Let us identify the very core items that cannot be changed without going back to the people who have sovereign power. In fact, that was the first time I heard of the term basic structure. All those provisions were listed. It was then said that any other provision could be proposed for amendment by Parliament or any other person as long as it does not touch the items that were listed under Article 255. Politics being what it is, it has led the courts to be politicised and now they have imported some provisions from India and other jurisdictions that operate in totally different systems. India does not have a popular initiative route. All amendments are through Parliament. Hence, there was justification for the courts to then say the minimum that Parliament could do. The same thing obtains in Canada. In fact, Canada has not quite determined the issue, but they say a matter could be challenged. If you compare with where we get most of our practices from, because we adopted the American system, the framers of the American Constitution, in changing from the Confederation to the Union, looked at whether the Constitution should be cast in stone. I remember one of the quotes was that it should not be so easy to amend even on frivolous grounds and yet, it should not be made so rigid that when necessity calls, it cannot be changed. You recall even when they had the prohibition amendment that excluded alcohol in the US for 10 years, when it became necessary that it was a prohibition in futility, they then brought the other amendment to change that provision. Therefore, there is no way you can have a Constitution that is cast in stone and one that cannot be amended like what the judges have said. If you look at this ruling - and I want to invite you to have a look at it - it states that Parliament cannot touch anywhere. All the Articles within the Constitution as well as the sub-articles are inter-linked. There is no way you are going to look at one Article in isolation to the other. Therefore, anything you touch will then have its roots in the basic structure. It is probably the un-intended consequences of the convoluted ruling that we respect. The ruling has now made it totally impossible for Parliament to touch any other matters in the Constitution. My worry is that this could be extended to some of the laws that we are making. We will be told that this law touches on a certain right that is tied to something in the Constitution that touches the basic structure. We could go on and on. For instance, you will remember the convoluted orbiter in one of the judgments on the interpretation of whether Bills affect counties. It is unimaginable that there is any law in Kenya that can be created that does not affect a county. Moreover, that was a judge putting it. However, we know that the intention was on a law that affects the functioning of a county, but not the people in a county. You can see that a broader interpretation or mischievous interpretation could well mean that we do not do anything in this House. Therefore, as you look at the issues that Hon. Duale has raised, I would like you to expand because it may as well be that the future of Parliament is at stake. We actually have no job. We will leave it to the courts to amend the law, which they already have. They have amended the Constitution by introducing matters that are not in the Constitution and yet, they say no one else can do it. 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."
}