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{
    "id": 1133632,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1133632/?format=api",
    "text_counter": 744,
    "type": "speech",
    "speaker_name": "Garissa Township, JP",
    "speaker_title": "Hon. Aden Duale",
    "speaker": {
        "id": 15,
        "legal_name": "Aden Bare Duale",
        "slug": "aden-duale"
    },
    "content": "legislation were geared to deal with money laundering, proceeds of crime and anti-terrorism financing. Allow me to first observe that this is not the first time I am raising this. I want to go on record that the amendments to the Proceeds of Crime and Anti-Money Laundering Act contained in this Bill found their way here. In the Finance Bill of 2019, these amendments were withdrawn and expunged from the Bill for serious constitutional issues. First forward, in 2020, the same amendments were expunged from the Bill. Indeed, the honourable substantive Speaker - allow me to refresh the minds of my colleagues in this House - in his Communication dated 15th July 2020, communicated the withdrawal of the proposed amendments to the Proceeds of Crime and Anti- Money Laundering Act from the Statute Law Miscellaneous (Amendment) Bill of 2020. The question I want to ask this evening is: What has changed? I am not a constitutional lawyer, but it is obvious to everyone that any Bill that fails the constitutional test cannot be cured even if one keeps on reintroducing that Bill and bringing the same amendments and sneaking them through various Bills, whether it is through amending the Statute Law or through the Finance Bill. Why do I say so? Before I even say what I want to, reintroducing these amendments many times, in my opinion, is like putting poison in different cups and hoping to tell us it is not poison. Why do I say so? Allow me to just follow my colleagues and highlight the following provisions of the Constitution which are, in my opinion, offended by the amendments: I will start with Article 31 of the Constitution. It provides that every person has the right to privacy, which includes the right not to have information relating to their private affairs unnecessarily required or revealed to any person. This Bill makes the advocates reporting institutions. That means it obligates every lawyer and advocate to report any transaction they deem suspicious. We are not being told what the definition of the term “suspicious” is when they engage with their clients and the citizens of this country. This clearly violates Article 31 of the Constitution. I submit. Two, Article 48 of the Constitution provides that the State shall ensure access to justice for all persons. These amendments, in the reading of the Constitution, clearly violate Article 48 because they are making advocates report every transaction they deem suspicious. One wonders what the definition of “suspicious” is. It can be anything. Many people shall shy away from dealing with advocates as their communication and transactions shall not be privileged and confidential. I want this House and my colleagues to listen to me. This matter is not about advocates. This matter is about your privacy. The eternal chapter in the Constitution is Chapter Four - the Bill of Rights. It protects the basic fundamental freedoms of the citizens of this country. What are we saying? Next, this House is going to legislate that a medical doctor can violate your privacy and give your medical history to whoever he or she wants. This is the route we are taking. Third, in the reading of the Constitution, Article 49 (1) (c) provides that an arrested person has the right to communicate with an advocate. The obligation on advocates to report transactions they deem suspect also violates the right of arrested persons to freely communicate with advocates. Advocates will no longer communicate with their clients. Even those who commit serious crimes like terrorism and murder have, under the Constitution and the Bill of Rights, the right to communicate with their advocates. It is a guarantee. Article 50 (2) (k) of the Constitution on the rights of fair hearing provides that an accused person has a right to refuse to give self-incriminating evidence. The obligation to advocates to report suspicious transactions also violates Article 50 as accused persons shall, in essence, be giving out information that can be used against them. So, these amendments violate the Constitution and are contrary to Article 50 of the Constitution, more so, Article 50 (2) (k). 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."
}