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{
    "id": 1537706,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1537706/?format=api",
    "text_counter": 204,
    "type": "speech",
    "speaker_name": "Sen. Omogeni",
    "speaker_title": "",
    "speaker": {
        "id": 13219,
        "legal_name": "Erick Okong'o Mogeni",
        "slug": "erick-okongo-mogeni"
    },
    "content": "So, we need to make clear to Sen. (Dr.) Khalwale that, in India, what is in Article 368 of the Indian Constitution, at least going by the Supreme Court's ruling in the Supreme Court of India in 1973, in their Constitution, you cannot do any amendments touching on for instance Clause 25(A) on the supremacy of the Constitution. However, I think the finding of the Supreme Court is that the only protection that Kenyans have been given is to protect certain Articles to be amended only subject to a referendum, whereof you must get the approval of Kenyans. It is worth noting that constitutions are written in a language that suits the inhabitants of a country or going by the history of that country. For instance, in Australia, in the entire Constitution of Australia, you cannot amend any Clause of their Constitution without subjecting that particular amendment to a referendum. The people of Australia do it day in, day out. Last year, they had a referendum. If you visited that country, you did not even notice that there was an ongoing referendum. I do not know why in this country we politicize everything. For instance, when people hear that in NADCO, there are proposed amendments that will require a referendum, people think about politics. That, this side will be defeated by the other one. People will make political capital. Let us make our people understand that provision was put there to uplift the Clause on the sovereignty of the people of Kenya. What we are simply saying is that because we have stated in this Constitution that our people; the people of Kenya, are sovereign, then to amend certain Articles in this Constitution, you must get the approval of the sovereign. The sovereign in this case are the people of Kenya. Why do we fear a referendum? We should not. In other jurisdictions like Australia, you need the approval of state parliaments before you can effect an amendment. Mr. Temporary Speaker, Sir, to answer the second aspect of Sen. (Dr.) Khalwale’s question, there are certain aspects under Article 256 that can be amended by Parliament without subjecting that amendment to the referendum. So, the demarcation is there. The words, the clauses and the Articles that are protected and must go to the referendum and the Articles that are not protected in this Constitution, in terms of going to the referendum and can be dealt with by Parliament. However, I did not hear you mention in your report about the proposal we made on the tenure of the Senate of the Republic of Kenya. This is because, NADCO considered the terms of the Houses of Senate in many jurisdictions. When you speak about protecting devolution, you start protecting devolution by having a Senate that is the Upper House, that is well anchored in the constitution and has got full legislative powers, including a say in the budget-making process. You can read many constitutions. If you go to Australia, members of the Senate serve for six years and they are never subjected to elections together with the members of the House of Representatives. You do not want to mix the election of Senators together with the Head of State. That can be a way of curtailing the re-election of Senators who are very strong in protecting devolution. Therefore, when they go for elections, the tenure of the Senate continues, but not all Senators leave because of institutional memory. They have crafted their Constitution in such a way that a number of Senators get elected, but others remain. The same way they do it in the United States of America (USA). The electronic version of the Senate Hansard Report is for information purposes only.A certified version of this Report can be obtained from the Director, Hansard and Audio Services,Senate."
}