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{
    "id": 111293,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/111293/?format=api",
    "text_counter": 248,
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    "content": "2. Arising from Item 1 above, the document currently before the House in terms of Section 33(4) of the Review Act is, therefore, the draft Constitution submitted to the Parliamentary Select Committee by the Committee of Experts. It is not a document authored by seven people. It is the culmination of a comprehensive process of the review of the Constitution by the people of Kenya. It is a document that is a product of a process in which the National Assembly has been adequately involved at all stages. Hon. Members, although some doubt may appear to be created about the procedure to be applied in disposing of the Draft Constitution by the failure of Section 33(4)(a) to refer to this stage, I am satisfied that any such doubt is removed by the provisions of the Constitution at Section 47(a)(2), paragraph B. The section makes it clear that whenever a draft constitution proposing the replacement of the Constitution has been introduced in the National Assembly, no alteration can be made to it unless such alteration is supported by the votes of not less than 65 percent of all the Members of the Assembly excluding the ex-officio Members. The words used are “a draft constitution”. The application of Section 47(a)(2) paragraph B is, therefore, clearly not limited to a specific draft constitution or to only some types of draft constitutions. It is also not limited to some stages of consideration by the National Assembly draft constitution. Hon. Members, I am, therefore, quite clear that Section 33(5)(a) ought properly to have made reference to Section 33(4) as being subject to the procedure stipulated in Section 47(a)(2) paragraph B of the Constitution. I am also clear that failure to so refer is not fatal as the provision of the Constitution clearly overrides those of an ordinary statute in case of conflict. To that extent, it may indeed be argued that even the reference in Section 33(5)(a) of the Act to the application of Section 47(a)(2) paragraph B of the Constitution is unnecessary. The constitutional provisions on the disposal by this House of a draft constitution apply because the Constitution says so. It matters not whether an Act of Parliament also says so or even purports to repudiate that position. Hon. Members, I am fortified in these findings by a careful reading of both the Constitution and the Review Act. I am particularly certain that any interpretation that the document before us is not a draft constitution or that Section 47(a)(2) paragraph B of the Constitution is inapplicable at this stage, will not be consistent with either the letter, spirit or intention of the Constitution or the Review Act. Such a finding will amount to this House arrogating to itself a higher pedestal than the other organs of Review. It does not appear to me that there can have been any intention that this House, having enacted the Constitution (Amendment) and the Review Act, and having set out a very elaborate consultative process, will wish or even allow itself to easily by a simple majority vote subject to quorum, overturn all preceding agreements."
}