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"id": 186310,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/186310/?format=api",
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"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": " Madam Temporary Deputy Speaker, I beg to second this important Bill. You will realise that four decades after attaining our Independence the Constitution that we have in this country has the thumbprints of Lancaster. The Constitution of Kenya, as it exists today, is the result of an agreement made at Lancaster in 1962 which was also subsequent to the many Lancaster Conferences that took place before Independence. It, therefore, still has the thumbprints of the imperial power. It is a tragedy on our part that 40 years after Independence, we have not been able to have a home grown Constitution which has been debated upon and processed through the participation of Kenyans. South Africa, which had a very traumatic experience in its struggle against racism, within two or three years, after putting in place a transitional Government, was able to have one of the best Constitutions in the continent at the moment. India, which is a large country with many people, religions and fundamentalists sects, was able to have a Constitution within two years of its Independence - in fact, in hardly a year, they had come up with a home grown Constitution. It is, therefore, a tragedy on our part that after so long, we have not been able to put the business of Constitution-making behind us and have a basic law of the land that is acceptable to the populace and which will guide our daily work and experiences. It will also ensure that the people truly govern themselves. I am saying this because of the type of Constitutions we have had. We have had Members of Parliament detained, removed from this House by force for speaking their mind or demanding that Kenya be a better country in terms of the basic law of the land. Despite this common experience, we have not managed to have a democratic Constitution that would truly reflect the motto that we have at the door of this Chamber, \"For the Welfare of Society and the Just Government of Men.\" So, I plead with hon. Members that as we go through this process, this Tenth 2408 PARLIAMENTARY DEBATES August 6, 2008 Parliament will go down in history as the Parliament that guided the process of Constitution- making to its conclusion. This is because attempts have been made in the past, but unsuccessfully. However, as we know, Parliament is an important organ in terms of changing the basic laws of the land. At every point when we have tried to amend or change the Constitution, Parliament has been involved and previous Parliaments have not succeeded. Therefore, I would recommend to hon. Members that this business be over and done with, although not in a hurry, but to ensure that we have a truly, democratic and republican Constitution. Madam Temporary Deputy Speaker, out of the experiences that we had after the elections, we should, in fact, be more persistent in our effort to guide this country through this Constitution- making process. It is as a result of those conflicts that it became clear that some of the weaknesses that we have in our system of governance go the very root of the basic law of the land. This Bill is generally a document which was discussed at some length after the attainment of the National Accord which is now part of the law of the land. The spirit of the National Accord is covered in Section 15(a) of the Constitution. It is a bipartisan Bill and it should be looked at from that kind of perspective. That, however, is not to say that this Parliament still has a right to debate, make amendments and improve any area that we think we need changes. My learned friend, Ms. Martha Karua, has indicated as much. For my part, I must say that I have really enjoyed the spirit of this House. This House has demonstrated that it is prepared in terms of debate and the decisions it has made so far to create a new democratic spirit in this country and to ensure that organs of Government are accountable to Parliament as the supreme law-making body in the country. Parliament itself is accountable to the people of Kenya because all of us got a mandate to sit here and at the end of the day, we are required to account for our actions and decisions to the people of Kenya. Madam Temporary Deputy Speaker, the current Constitution was a hotchpotch document that was agreed in Lancaster. The basic system of governance was not really agreed upon, that is, whether we wanted a parliamentary system or a presidential system. But still, whether it was the parliamentary system or the presidential system, I think one of the issues that has to be dealt with in the Constitution-making process is the power of the Executive. The Executive must not only be accountable, but also govern in accordance with the desires and needs of the people. There should be no imperial Executive authority that cannot be questioned. You will remember that very soon after South Africa became independent, there were summonses which were send out to President Mandela to appear in court. I remember at that time there were certain individuals in some of the cases that had been filed in the courts here who actually drew out witnesses summons for the former President to appear in court as a witness. Our courts here would not hear of it because in so far as they were concerned, the President was above the law and could not be required to appear before court. Madam Temporary Deputy Speaker, the thought was completely unimaginable even according to our Judiciary, and yet Mr. Mandela was able to appear in court, in obedience to a court order, to give evidence in a judicial process. Again, one of the decisions that came out from that Southern African case, which I tried to use in one of the cases I dealt with in court, concerns the immunity of the President. The position of our courts at that time, which have not, really been changed, was that the immunity of the President is completely absolute. So, the President can actually commit an offence and get away with it, or the case should wait until his tenure of office is over. The decision that I was trying to present to the court at that time, in a case in which I was instructed by Ms. Martha Karua, on behalf of the League of Women Voters, was that since when a President takes oath of office he vows to rule in accordance with the Constitution, and abide by the Constitution, he cannot waive the Constitution and claim immunity, if it can be demonstrated that August 6, 2008 PARLIAMENTARY DEBATES 2409 some law had been offended or breached or violated. The position was that any authority that enjoyed immunity had to prove that it had obeyed the law of the land before it can enjoy that immunity. Madam Temporary Deputy Speaker, the way we crafted our own Constitution, as it exists today, and we must look at it thoroughly, we should never have an absolute centre of power at all in any democracy. Each one of us should be accountable to one's actions. I am saying all this because the driving force towards constitutional change in Kenya was, really the need to change the imperial power of the Executive. We now have the time to deal with it. Before we can get there, we have to set the road map. That road map is contained in this Bill, which provides for participation in many ways. The Committee of Experts has to give a window to receive views from the people, and also not to disregard the work that has been done, so far, in terms of the many drafts and memoranda that have been processed through several initiatives. Of course, the two most important draft Constitutions are the Bomas and Wako Drafts. Madam Temporary Deputy Speaker, the Committee of Experts, really, is a forum to deal with the contentious issues. It must be said that in both the Wako and Bomas Draft Constitutions, during that process, there was unanimity in terms of many areas, except in so far as the Executive and devolution was concerned. So, a window has been opened to deal with those issues through the Committee of Experts. I also support the views of Ms. Karua in terms of the fact that we should offer some window to civil society and religious communities. They have been part of this process over the years. In fact, in the past, when the Government was totally opposed to the review of the Constitution, or even allow for minimum amendments to the Constitution. It was the civil society and the religious community which kept this debate going. Madam Temporary Deputy Speaker, it is important, therefore, to give them a window of opportunity to participate by being able to present their views, not only to the Committee of Experts, but also to the Parliament Select Committee, which is an important organ of the review process. The final document will be subjected to a national referendum to take cognisance of the fact that the Constitution-making process, as originally envisioned, determines that it must be people-driven. The people must have the last word in constitution making. So, at the end of the day, Kenyans will be able to vote and ratify the final document, which will have gone through the Committee of Experts, the Parliamentary Select Committee and, of course, the National Assembly. Madam Temporary Deputy Speaker, there have been some suggestions on which I am not averse to although this would be to anticipate debate on a Bill which is not before the House. It would be important to make sure that the Committee of Experts is more representative. Personally, I am not averse to that view, because that would tend to accommodate many of the players, and many of the sectors, which were involved in the Constitution-making process. At this age and time, if we were to go through another Bomas process, or through another large body or committee or plenary, however it may be constituted, we would just be creating room for debate on issues which have been covered before, at both Bomas and through the debate that followed the publication of the Wako Draft Constitution. Some of those views have been well ventilated in the past. Madam Temporary Deputy Speaker, therefore, other than the question of expanding the Committee of Experts, once the Parliamentary Select Committee has a report which is brought before this House and the same is debated and agreed upon with or without amendments, that document should go to the people for final ratification. In my view, as I said earlier, we have been on this matter for way too long. In many ways, 2410 PARLIAMENTARY DEBATES August 6, 2008 many areas in Government are not functioning very effectively, because of the constitutional impasse we are in at the moment. As you know, under the interim arrangement that we have, under the National Accord, we still cannot locate the various centres of power, because some of them are well expressed in the Constitution, but some exist by tradition or by practice. It is important that all Executive authority, wherever located, be supported by the Constitution. In the past, we have had certain centres of power that were not in the Constitution. Those are some of the ways in which this country has been driven to crisis. That is because there are people out there who are in a position to make decisions and yet, they do not have legal or constitutional foundation for making those decisions. That will be a matter which will be dealt with firmly by the new Constitution. In the old days, for example, the Office of the Attorney-General, at some point in history, was a repository of the Executive authority which went beyond the powers of that office, and many people suffered during those days because of the men--- Luckily, that shows why we should be gender sensitive. No lady has ever occupied that office. There were some occupants of that office who put us through things that we do not want to remember. The same can be said with the Office of the Head of the Civil Service and Secretary to the Cabinet. Those are offices that exist outside the Constitution and yet, they have a lot of authority and power. We must begin to understand that every centre of power that controls our lives must be located somewhere in the basic law of the land. I am not talking about the present occupant of the Head of the Civil Service and Secretary to the Cabinet but, over the years, the people who have occupied that office have acted as if they are second in command and, sometimes, exercised powers that went beyond what was contemplated in so far as the basic law of the land was concerned. Therefore, Madam Temporary Deputy Speaker, for once, I would appreciate that, at the end of the day, if for no other reason, I would say that I am a proud hon. Member of the Tenth Parliament, a Parliament that made it possible for us to have a new Constitution. I am saying so because the spirit of this Parliament is very different. In my first days in this Parliament, sitting where Mr. Namwamba is, was treason. There were people who were meant for that seat. We now think that it is an Opposition seat. But there was a time when it was meant for very important people in this Republic. Even to sit in the seat behind was also not imaginable. We were confined to the Benches beyond where Ms. Shabesh is sitting. A lot has changed but, unless we agree on a new constitutional dispensation, it is easy for us to go back to those bad old days. Madam Temporary Deputy Speaker, the Committee of Experts should not really be seen as our foreign masters or foreign countries trying to drive the process. It must be understood that in order to get us where we are, the role of the international community was critical. It was believed that this process should be driven fast and that if there are any moments or periods when there would be disagreement on matters which were being politicised rather than dealing with the political theory proposed in the new Constitution or the system of Government proposed in the new Constitution, then we would be able to resolve that matter faster with the assistance of the experts. Their role is not to tell us what the new Constitution is going to be like, but this is one of the by- products of post-election crisis. Through the participation of international experts, we were able to, not only amend our Constitution to create the position of the Prime Minister and, therefore, create the Coalition Government, but also to have the enabling legislation that put in place the Coalition Government. Indeed, there was a time in this House where a similar Bill was brought for the creation of the position of the Prime Minister. But it was not even read for the First Time. I think there was not so much discussion on the jurisprudence of the political theories behind the Office the Prime Minister, as opposed to the Office of the President at that time. People were out to create sinecures rather than deal with the constitutional issue that revolved around making a decision as to whether Kenya wanted to be a Westminster model kind of Government or a Presidential system. That August 6, 2008 PARLIAMENTARY DEBATES 2411 debate did not instruct the Bill at that time. We wanted to have a temporary solution to the problem. There were so many problems in this country. Even now, the constitutional basis of the Coalition Government is transitional. But the debate as to whether or not we want a Presidential or a Parliamentary system has not been fully addressed or concluded. This Bill is giving us that road map, the opportunity and the arena for such an informed debate to take place. Madam Temporary Deputy Speaker, there is also the question of the organs of review. It is important that the Kenyan people, at the end of the day, have the final thumb-print on the new Constitution, so that it is not a product like the Lancaster one where a few people went to Lancaster and came with the document which had its first legislative authority and instrumentality by being passed by the House of Commons as an ordinance, but in which Kenyans did not participate fully. The fact that there is no organ such as was there during the Bomas of Kenya process, it does not mean that, within the review process, the opportunity for people who have views to present is not there. Through the Committee of Experts, the Parliamentary Select Committee and through the Members of this House, those views can still be carried on board and be part of the final enactment by this honourable House. With those few remarks, I beg to second this Bill."
}