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{
    "id": 1265662,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1265662/?format=api",
    "text_counter": 217,
    "type": "speech",
    "speaker_name": "Nakuru Town East, UDA",
    "speaker_title": "Hon. David Gikaria",
    "speaker": null,
    "content": "On the statement on the delegation of legislative powers and limitation of fundamental rights and freedoms, the Bill does not delegate legislative powers and neither does it limit fundamental rights and freedoms. I had proposed this Penal Code (Amendment) Bill in the 12th Parliament, but it lapsed before the Bill had been concluded and assented to by the President. The Bill does not affect the functions of the county governments and it is not a money Bill within the meaning of Article 114 of the Constitution. If you look at the offences under Section 182, the maximum fine is a jail term of one month or a fine of Kshs100. However, if one is arrested by the police and they are charged for loitering and taken before a judge, you will be surprised that some judges will impose a fine of between Ksh5,000 and Ksh10,000 yet the law clearly stipulates the maximum penalty one is supposed to be charged. In the Report, and I went to the Departmental Committee on Justice and Legal Affairs to present the Penal Code (Amendment) Bill, it attracted nine memorandums from the public and different stakeholders. Some of them were the Judiciary, the Kenya Human Rights Commission, the Independent Policing Oversight Authority (IPOA) the National Police Service, the Attorney-General, the Law Society of Kenya (LSK), Uraia Trust and so many others. To be honest, if you were to look at their submissions, other than the National Police Service, others supported the Bill. The National Police Service are opposing this Bill because they know what they do. For them, this section is just for harassing Kenyans. I have so many matatu termini in my constituency. Touting is when you advertise for a particular transport Saving and Credit Cooperative Organisation (SACCO) or company within a bus terminus just like what other marketers do using big microphones and other modes of advertising. When my constituents do that, they are arrested and taken to court for touting yet they have done nothing apart from just saying that this vehicle is headed to Nairobi, please, board it instead of the other vehicle. This is one of the issues that I want this Bill to address. I want the Bill to particularly address the unconstitutionality of the offences in the Penal Code. I do not want to dwell so much on that, but the police are using this section of the Penal Code to harass the public and infringe on their fundamental freedoms and human rights. I like what a few individuals in the Judiciary are doing, as one stakeholder put it. He said that instead of arresting petty offenders, we need to address the root cause of poverty and other forms of marginalisation rather than criminalising activities that are caused by poverty and marginalisation. Petty offences are usually committed by people trying to earn a living. I ask my colleagues to seriously consider this amendment. The offence is unconstitutional, but at the same time, it affects fundamental human rights and freedoms of Kenyans who are just trying to earn a living. Without further ado, I ask my colleagues to support me on this small amendment. Petty offences do not only happen in urban places like my constituency, but they happen almost everywhere. I was once the mayor of one of the cities in this country and when we did not have money, we would say: “Go and bring as much as you can. It does not matter if I am going to arrest. Utaenda kujitetea kwa judge”. We used to collect money. That was bad manners that I regret. It is time for us to stop any person from using provisions of the law to harass innocent Kenyans who are just trying to earn a living. A young person trying to earn a living in a matatu may be arrested and charged for touting yet he has SACCO uniform and a badge. The police and the judge will not listen to him. It is unfortunate that we keep doing this. I once hired a lawyer to defend one such case and when the judge pronounced a Ksh5,000 fine, the lawyer stood up to proclaim that the offence…"
}