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{
    "id": 1116006,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1116006/?format=api",
    "text_counter": 18,
    "type": "speech",
    "speaker_name": "Hon. Deputy Speaker",
    "speaker_title": "",
    "speaker": null,
    "content": "Hon. Members who are coming in please take your seats. Order Members! Hon. Member for Gem, please, take your seat. Hon. Members, I do not wish to deviate from my previous decisions on questions of constitutionality. As a matter of fact, the Hon. Speaker’s respect for upholding and defence of the Constitution is subject to the express provisions of Article 165 of the Constitution. For clarity, the said Article provides as follows, and I quote: “165(3) Subject to clause (5), the High Court shall have – (d) Jurisdiction to hear any question respecting the interpretation of this Constitution, including determination of – (i) The question whether any law is inconsistent with or in contravention of this constitution;” Clearly. Hon. Members, the question of construing and interpreting the Constitution, including the authority to make a definitive determination as to the constitutionality or otherwise of any law rests within the exclusive province of the High Court. I am inclined to believe that the framers of our Constitution had a good reason for couching Article 165 of the Constitution to only make reference to law and not Bills. We all appreciate that a Bill in itself is not law until it successfully goes through the stages of law making, including the Committee of the whole House, where it may be amended. It is my view that declaring a Bill unconstitutional while still undergoing consideration in the House is premature given that the House still has room to correct any potentially unconstitutional provisions, perceived or real, by way of amendments at the Committee of the whole House stage. Hon. Members, I note that the Constitution grants the Members of this House an expansive legislative mandate, which should be jealously safeguarded. In this regard, I ought not to make decisions that would hinder or inhibit the House from executing its mandate. Instead, I am duty- bound to facilitate the continuity of legislative business of this House even in the face of concerns like the one expressed by the Member for Garissa Township, provided that the matter is still within the province of the House and the House still has legislative power to rectify the concerns through amendment and voting. My views are buttressed by the provisions of Section 72 of Mason’s Manual of Legislative Procedure, (2010 Edition) which states as follows: 1. “The propriety and wisdom of a statute are questions exclusively for the legislature. The wisdom, justice and expediency of an act of the legislature is not subject to review by the courts. 2. Before a statute can be declared unconstitutional, it must clearly and unavoidably appear to be beyond the power of the legislature. It is for the courts to decide whether there has been compliance with constitutional provisions and whether a Bill of the legislature has become law.” Hon. Members, I am persuaded that the House still has power to apply itself on the matters canvassed by Hon. Duale by amending the Bill appropriately during the Committee of the whole House or making a conscientious decision on the Bill in one way or the other. Further, it is not enough to simply claim that “a Bill is unconstitutional” without particularising with specificity the basis of the claim. No Member stated with specificity any provision in the Bill which offends a particular provision of the Constitution. I am therefore hesitant to forestall consideration of the Health Laws (Amendment) Bill, 2021 on grounds of unconstitutionality. This may be construed on one hand as an attempt by the Hon. Speaker to unduly fetter the authority of the House and usurping the constitutional mandate of the High Court on the other hand. I believe, Hon. Members that this settles the second question. Hon. Members, the second issue also relates to whether the amendments proposed in the Health Laws (Amendment) Bill, 2021 are of a substantive nature requiring the publication of a 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."
}