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{
"id": 166397,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/166397/?format=api",
"text_counter": 188,
"type": "speech",
"speaker_name": "Mr. Orengo",
"speaker_title": "The Minister for Lands",
"speaker": {
"id": 129,
"legal_name": "Aggrey James Orengo",
"slug": "james-orengo"
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"content": " Thank you, Mr. Speaker, Sir. Looking at this Bill, it is good to highlight some of the very important provisions in it. Looking at them, they portray the fact that the panel that will vet the Judges and the magistrates must be very distinguished persons. In doing their work, they will ensure that the exercise of reforming the Judiciary is done in a manner that will attract public confidence and a sense of ownership on the part of the people of Kenya. Some of the qualifications for appointment of those who will sit in the Judges and Magistrates Vetting Board are spelt out in Clause 8. It provides that they should hold a degree from a recognized university and that they should have at least 15 years distinguished post qualification experience in their field of study. A university degree alone will not be sufficient. One must be able to show that in their various fields of service or experience, they must have had 15 years of experience and not just distinguished post qualification experience. Mr. Speaker, Sir, amongst the persons who shall be qualified for appointment as chairperson or deputy chairperson, must have at least 20 years or an aggregate of 20 years experience as a Judge of a superior court. The emphasis is on the level of distinction that is required of a superior court or a distinguished legal academic, judicial officer or other relevant legal practice. Clause 8(3) says:- âA person shall not be qualified for appointment as a member if such person- (a) is a member of (i) Parliament; or (ii) a local authority--- Obviously, for good reasons, such members are not entitled for appointment to such a body. Mr. Speaker, Sir, if we do not have a distinguished board that meets the standards set up in this Bill then even that process of vetting Judges may end up with a basket of Judges who may meet the qualifications of integrity and service, but who cannot be qualified to be appointed to such a body. Mr. M. Kilonzo has created a process of vetting that is carried out by a group that will have the confidence of the public and the right qualifications. The process of that appointment requires, not only the President and the Prime Minister to act in partnership and consultation, but this Parliament must approve those who are appointed to serve on this board. So, at the end of the day, I hope that we will not have the experience again where those who were appointed to this board will be appointed on the basis of some kind of horse trading because public ownership and confidence is important. There is a clause here which I am sure my learned friend Mr. M. Kilonzo is not very emphatic about, that the Prime Minister and the President can disregard those persons that are recommended by the group that is established under Clause 9 and go ahead and come up with a list of names which were not part of the list. I am not very confident that, that should continue to be part of the Bill. I am sure my learned friend, Mr. M. Kilonzo, would not be putting this Bill before the House and insist that it must be passed as it is. What is important, at the end of the day, is that at the level of selection of those candidates there is fairness and a process that is accountable and transparent before they start dealing with the Judges and magistrates who will be vetted. Just to ensure that their best practices and standards are met, there is provision for non-citizens of Kenya to be appointed in accordance with what is set out in Clause 9. Again, this matter is debatable as to why we should at this age and time, try to get people from all over the world to try and assist in these processes. Since we got it wrong in 1963, I think we must find a way of starting the process of reforming the Judiciary on the right note. The final product does not depend on what we do ultimately. I am a firm believer that the end does not justify the means. The means is just as important as the end. This would be greatly in consonance with the Articles in the Constitution that deal with national values, emancipation of people, transparency and accountability. If you look at the history of our Judiciary, you will see that there were moments when it would have resolved the political question in Kenya. Many times, Kenyans went before magistrates and judges to resolve conflicts between them and the State. For example, when there was a desire for the establishment of a multi-party State after Kenya became a de jure party State, various petitions were filed in court. But despite the very elaborate provisions dealing with the freedom of expression in the former Constitution, our Judiciary found it very difficult to come out with a judgment allowing multi-party politics to take hold in Kenya. At that time, Zambia had a Constitution with similar provisions to the one we had; and which we repealed - Section 2A. That Section more or less provided that the only political party in Kenya would be KANU. There were similar provisions in the Republic of Zambia but invoking the Bill of Rights in the Zambian Constitution, the Judiciary there, when confronted by the petition by MMD to rule that the amendments by Parliament making Zambia a one-party state were unconstitutional within the framework of the Zambian Constitution, legalized the formation of multi-party democracy. Multi-party democracy subsequently produced the entire Presidents of Zambia from then on. I remember once when a case was filed before the High Court trying to safeguard the freedom of association and the freedom of assembly. One of the lawyers in that case is now a Judge of the High Court. We filed a petition and that file was kept in the drawer of a judge for almost one and half years without the case being heard. Next door in Tanzania, the courts held that despite legislation which was similar with our Public Order Act, holding a public meeting was enshrined in their Constitution under the provisions that relate to the freedom of assembly. I believe, in order to live in the spirit of Constitution, even now, it is very odd that the authorities concerned with licensing public meetings would, at this time of the day, disallow people to hold such meetings, especially after a new Constitution has been promulgated. I was happy when this matter went to court. The court, in a matter of one day or two, gave an order that such public meetings should be allowed to go on. Madam Temporary Deputy Speaker, we want judges who can stand firm. If our judges were strong, independent and impartial, hon. Matiba would not be in the condition that he is in today. If our judges were strong and independent, people like Masinde Muliro would not have lived a life of almost impoverishment because that man lost his entire life savings in the Trans Nzoia area basically because the Judiciary took the position that anybody who was perceived to be against the system would be harassed and, if need be, their properties taken away from them. Even the former Vice-President, hon. Wamalwa, did not manage, for a very long time, to assert his right of ownership over his family land in Trans Nzoia. I can give many other examples, including that of my learned friend sitting across, who fought many battles in court. I am glad that he is here, alive, to talk about a new Judiciary. He has survived many temptations. In conclusion, I just want to remind all of us that, as we debate a new Kenya and talk about a new Chief Justice and so on, that the founders of this nation had a similar position in 1963. Had they began on the right note--- If you listen to many speeches that were made around that time, you will see that, in the first six months, there was a realization that this was a new sovereign Republic and the President would neither be imperial nor like a governor. However, six months down the line, the electorate changed and the President was seen as a village tyrant. Whatever he said was seen to be law and slowly, this very Parliament started passing legislation. The first people who suffered under various legislations that led to the preservation of public security and subsequently detained were Members of this Parliament. I want to plead with Members of Parliament that this is something that is not an issue in this case. However, I want to say that we should start on the right note in the appointment of the Chief Justice. In all these issues, we must give Kenyans a sense of ownership. If we go wrong and we do not start on the right note and see the Chief Justice of Kenya as an appointee of one person or a group of persons or a party person, I can tell you that for ten years, you will live to regret that decision because you will have to live with that Chief Justice for ten years. Let us make it by-partisan. Let us not begin by thinking about it as a way of settling our little scores and seeing who is a victor or who is a hardliner. I understand that some people have characterized me as one of the hardliners. However, for the truth, I will always be a hardliner. Justice hates convenience. You cannot make decisions on matters of law and Constitution on the basis of convenient. If you must make it difficult for the President or the Prime Minister, think about how you can make it even more difficult because power corrupts and absolute power corrupts absolutely. The little power you want to give away might cause you to be the first person to face the consequences. We have lived in this House to see it. If you look at those who were the comrades of Jomo Kenyatta, you will see that they were the first to go to detention. The comrades never thought that Kenyatta would be fallible. If you examine the people who worked very closely with the former President, in the Cabinet, you will see that they were the first to go. People like Masinde Muliro and Shikuku, who was the Secretary General when President Moi came to power, were the first victims. If you are close to any center of power, do not be too comfortable. Make it good for everybody. If you are not careful, you will be the first to suffer. I know that in the present system, I can even call names because I have worked with President Kibaki and with the Prime Minister, Raila Odinga. If you go the same direction, you might go the same way. I can give names of those who, in the current dispensation, have suffered because they thought that if Mr. Orengo became the President today, Dr. Khalwale would have a field day. If you make me President without putting caveats and Dr. Khalwale votes for me and gives me a free blank cheque, he will be the first to go because he will know me too much and you will not allow me to do what I want to. He will think of me as a human being. However, Dr. Eseli, who does not know me, would think of me as a god. Madam Temporary Deputy Speaker, I beg to second."
}