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{
    "id": 182600,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/182600/?format=api",
    "text_counter": 430,
    "type": "speech",
    "speaker_name": "Mr. Abdikadir",
    "speaker_title": "",
    "speaker": {
        "id": 1,
        "legal_name": "Abdikadir Hussein Mohamed",
        "slug": "abdikadir-mohammed"
    },
    "content": "Mr. Chairman, Sir, I beg to move:- THAT, the Bill be amended by deleting Clause 34 and substituting therefor the following new Clause- 34(1) A person may make an application for consideration of amnesty to the Commission for any act or omission which constitutes a matter to be investigated under this Act. (2) The Commission may in accordance with this Part, and subject to Subsection (3), recommend the grant of conditional amnesty to any person liable to any penalty under any law in Kenya or any international treaty to which Kenya is a party. (3) Notwithstanding Subsection (1) no amnesty may be recommended by the Commission in respect of gross violation of human rights. (4) Where the criminal penalty attaches in respect of a matter on which an amnesty has been requested under this Act the Commission shall not recommend amnesty in respect thereof:- (a) until the Commission has considered any reasonable objection from the victim; (b) in respect of economic crimes, the applicant has not made restitution. Mr. Chairman, Sir, this is one of the most drastic proposals we made to amend the Bill. This was a very emotive and highly charged issue. We propose to completely delete the current Clause 34 and replace it with what is indicated on the Order Paper. Essentially, we had three issues with the amnesty proposal. The first is the constitutional issues that amnesty raises, and whether a Commission of this kind can give amnesty in respect of the very wider of the Attorney-General under the Constitution as regards criminal prosecutions. Since the Constitution gives the Attorney- General unfettered powers in relation to criminal prosecutions, if the Commission was to propose amnesty, and the Attorney-General disagrees, then the Attorney-General will always triumph, unless this Commission is anchored in the Constitution, and we do not have a constitutional amendment before us. Mr. Chairman, Sir, the second issue is that when you are wronged, the Constitution guarantees you the right to redress. If you are injured then you have a right to redress. By giving amnesty, the presumption is that the State is saying that you are wronged but you do not have a right to redress because we are going to be granting amnesty. This is the whole issue where the victim comes into the process. The third issue was that of whether the Commission can give amnesty or can propose it. October 23, 2008 PARLIAMENTARY DEBATES 3001 We were informed by all those three issues when we were proposing this amendment. I am specifically alerting you to the amendment suggested in Clause 34, Subsection 4(4), which states:- \"Where the criminal penalty attaches in respect of a matter on which an amnesty has been requested under this Act, the Commission shall not recommend amnesty in respect thereof- (a) until the Commission has considered any reasonable objection from the victim; (b) in respect to economic crimes, the applicant has made restitution. This is so that it does not look like you are entitled to amnesty for economic crimes even before you have made restitution. This whole amnesty proposal has been reworked in the amendment."
}