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"id": 177534,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/177534/?format=api",
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"type": "speech",
"speaker_name": "COMMUNICATION FROM THE CHAIR Mr. Speaker",
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"content": "Order, hon. Members! I have two communications to make. RULING ON JUDICIAL REVIEW: ECK CHAIRMAN VERSUS ATTORNEY-GENERAL First, hon. Members, you will recall that on Wednesday, 12th November, 2008, Mr. Olago, Member for Kisumu Town West, rose on a point of order to bring to the attention of the Chair, Nairobi High Court Judicial Review Petition, No.689 of 2008, Samuel Mutua Kivuitu and 22 others versus the Attorney-General. He tabled copies of the pleadings and ruling in the said case. The High Court had on 11th November, 2008, issued an order in the following terms:- \"A conservancy order be issued to restrain the Government of Kenya from taking or commencing any Executive or Legislative action or process to disband or abolish the Electoral Commission of Kenya (ECK) and/or remove its members from office pending the hearing and determination of this application\". Mr. Olago sought a ruling on whether this order amounted to a derogation from the Constitutional principle of separation of powers by the Judiciary. He asserted that the ruling of the High Court contravened Section 30 of the Constitution and amounted to a subjugation of Parliament by the Judiciary. The Chair undertook to give a ruling on Tuesday, 18th November, 2008. However, on 13th November, 2008, this House passed a Motion to adjourn the House until 25th November, 2008. On 25th November, 2008, hon. Olago Aluoch, rose on a point of order and sought to know when the directions and ruling would be issued. The Chair promised to issue the directions and ruling on Thursday, 27th November, 2008, which I hereby do. Hon. Members, I have now carefully read the pleadings and ruling tabled in the said High Court Judicial Review Petition No.689 of 2008; Samuel Mutua Kivuitu and 22 others versus the 3672 PARLIAMENTARY DEBATES November 27, 2008 Attorney-General. It is clear from a perusal of the pleadings that the National Assembly is not a party to these proceedings. It is also clear that no orders have been made specifically, directed at this House. That notwithstanding, this House has been formally made aware of these proceedings by the tabling by hon. Olago Aluoch of copies of the pleadings and the order made by the Court. Furthermore, I am clear in my mind that a Member of this House is entitled to bring to the attention of the House an order made by a court and seek the directions of the Speaker on what, if any, is the effect of that order on the operations of this House. Let me, therefore, make it clear from the outset, that I am satisfied that the matter has properly been brought to the attention of the House and that the ruling of the Speaker has ben properly sought. Hon. Members, I find it necessary to make some reference to the Sub Judice Rule to be found at Standing Order No.74 of our Standing Orders and its application to the present matter. Standing Orders provide that no Member shall refer to any particular matter which is sub judice or to any matter which is, in its nature, secret. Briefly stated, the essence of this rule is that this House should not debate any matter awaiting the adjudication of a court. To do so, in a manner that anticipates the decision of the court or expresses a view on the merits and demerits of the matter before the court, will be clearly out of order. In the present case, I am satisfied that the Sub Judice Rule does not apply. What is in issue is the effect on this House of an order that has already been made and that is subsisting. For now, the order is a fait accompli . I am, therefore, satisfied that the House is properly entitled to know how, if at all, its conduct of business is affected by that order. Hon. Members, Chapter III of the Constitution enacts Parliament. Section 30 of the Constitution stipulates that the legislative power of the Republic shall vest in the Parliament of Kenya, which shall consist of the President and the National Assembly. Section 46 of the Constitution provides for the exercise of legislative power of Parliament, while Section 47 provides for the manner in which Parliament may alter the Constitution itself. Section 56 of the Constitution provides that the National Assembly may make Standing Orders regulating its procedure, while Section 57 allows for the provision of powers, privileges and immunities of the Assembly and its Committees and Members. Section 12 of the National Assembly Powers and Privileges Act, Chapter 6 of the Laws of Kenya states:- \"Immunity from legal proceeding: No civil or criminal proceedings shall be instituted against any Member for words spoken before or written in a report to the Assembly or a Committee or by reason of any matter or thing brought by him, therein, by petition, Bill, resolution, Motion or otherwise.\" Section 12 of the National Assembly Powers and Privileges Act states:- \"No proceedings or decisions of the Assembly or the Committee of Privileges acting in accordance with this Act, shall be questioned in any court.\" Chapter II of the Constitution of Kenya, establishes the Executive, which comprises of the President, Prime Minister, Vice-President, Ministers and the Cabinet. Executive powers are also provided for under Chapter II. Chapter IV of the Constitution establishes the Judicature, which includes the High Court, Court of Appeal and other subordinate courts. Hon. Members, I have recapped the above provisions of the law to emphasize the constitutional basis for the principle of separation of powers. It is now a well-settled principle of Constitutional Law which finds anchor in our Constitution, that Government functions best when its powers are not concentrated in a single authority, but are instead dispersed among different branches. It is a prerequisite for a functioning democracy. The Legislature makes the law, the Executive enforces the law, while the Judiciary interprets the law. Power thus divided, prevents the absolutism of the Executive, the possible anarchy of Parliament or presumption of the Judiciary. The operation of the principle, both separates and blends powers so that each branch serves as a check and balance on the powers of the other. It ensures the protection of the rule of law and November 27, 2008 PARLIAMENTARY DEBATES 3673 secures the fundamental rights of the individual. The principle of separation of powers has a superficial simplicity, but is in reality, inherently complex. Each branch of Government must exercise its powers in a fine balancing act, to ensure that it properly and effectively carries out its functions, while at the same time, it does not infringe on the powers and responsibilities of the other branches of Government. Thus, Parliament enacts laws, but the Judiciary can review the constitutionality of such laws legislated if challenged, and can, indeed, declare a law made by this House to be unconstitutional or a nullity. The principle ensures that Parliament, as the representative of the people, cannot be prevented from giving voice to the will of the people. But, it also ensures that the Judiciary can scrutinize the legislation we make after we have made it, to ensure that we have been faithful to the Constitution. To respond directly to the matters raised by hon. Olago Aluoch, it needs to be well understood that the legislative power of this House, under Section 30 of the Constitution, cannot be fettered by any person or authority outside this House. Every hon. Member of this House has the unencumbered right, in accordance with the Constitution, to introduce a Bill for debate and enactment by this House. This right to bring a Bill before this House without obstruction by any person or authority is available equally to every hon. Member, whether such hon. Member be a private Member or Government Minister. No person or authority can fetter that right. In the same vein, if a Bill is introduced by any hon. Member before this House, the House has the right to proceed upon that Bill in the manner provided for under our Constitution and the Standing Orders. I underline again that no person or authority can fetter this right. Hon. Members, in answer to hon. Olago's question, I rule that the order of the court made in Nairobi High Court Judicial Review Petition No.689 of 2008 - Samuel Mutua Kivuitu and two others versus the Attorney-General - does not and, indeed, cannot prevent Parliament from carrying out its legislative functions."
}