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"id": 190814,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/190814/?format=api",
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"speaker_name": "Mr. Mungatana",
"speaker_title": "The Assistant Minister for Medical Services",
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"legal_name": "Danson Buya Mungatana",
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"content": "Mr. Temporary Deputy Speaker, Sir, do we need to have yet another commission that will take a lot of money from the Republic of Kenya? How efficacious will it be? How has it been in other republics where such commissions have been set up? I would invite the Minister to look at these questions and tell us whether this first way of going - the way it is proposed in this Bill - is, indeed, the way we should go. The second method, which, in my opinion, seems to have worked very well, is what Mr. Abdikadir had referred to, namely, the British Race Relations Act of 1976. When the people of Britain decided to tackle the question of race relations and ethnic minorities in their country, they enacted an Act of Parliament known as the British Race Relations Act of 1976. This was the mark and the beginning of setting up a clear legal regime under which equal opportunity was created for all the minorities and the majorities who live the country of Britain. It provided clear foundations of law, where if you are discriminated against in employment, or in education opportunity, or in opportunity to get a good house, or opportunity to get nice training, or an opportunity to acquire government services, you had very clear ability to go to the law and claim your legal rights. In my opinion, and I argue here that, when the people who sat down and agreed that we need to have Clause 4 in the National Accord that was signed to bring peace into this country, what they really wanted was to target a situation where harmony among different races is created in this country. They wanted to target a situation where any person who tries to discriminate any individual in opportunities of employment, education, training, housing and other social amenities and services within the Republic of Kenya on the basis of ethnicity or race, would face sanctions. The people who practise that discrimination should be punished! That is what Kenyans wanted! That is what I understood the mood of the country to read. Certainly, Mr. Temporary Deputy Speaker, Sir, from the complaints that Kenyans had at the time, what was required was a creation of a legal regime that would assure every mwananchi out there that, in the event that he is discriminated upon - his area is not given enough facilities - then he is able to go into the law and claim that he has been victimized. Mr. Temporary Deputy Speaker, Sir, what we are saying in this National Ethnic and Race Relations Commission Act that we want to bring up is that it does not create any form of sanctions at all! Today, if we have this Act and one individual who is working in Industrial Area is denied the opportunity to have a promotion because he comes from a certain tribe; or he is paid differently because there is an Asian who was brought in from India and they are doing the same job, or he is given a lower salary because the company is owned by an Asian. If the company is owned by somebody from another African community and that man who is entitled to be the manager is denied that opportunity because he comes from a different community--- If an individual suffers that discrimination, the Act will not offer him any form of protection. That is my complaint. That is what I want this House to look at! When this Bill is referred to the Committee on Administration 1644 PARLIAMENTARY DEBATES July 3, 2008 of Justice and Legal Affairs in this House, I want them to look at what can be done to actually address the issue. The issue is: We have lacked a legal regime! Now, there is an attempt, which is very good, because the Minister of Justice, National Cohesion and Constitutional Affairs is trying to give us what we think we should have. But, has it really achieved what we want? Mr. Temporary Deputy Speaker, Sir, that is why I am thinking that, it would have been better for us, as a country, to go the way of a second approach in dealing with ethnicity and race relation issues. I would invite the Committee on Administration of Justice and Legal Affairs to really look at the Race Relations Act of 1976 in Britain and see what we can import from it into our law so that, at the end of it all, we do not have just a Commission that is going to sit, hear complaints, go round the country and then come and report to the Minister for Justice, National Cohesion and Constitutional Affairs! Surely, we can spend our money in a better way! Mr. Temporary Deputy Speaker, Sir, we are going to appoint, at least, eight commissioners. Each one of them is going to be paid not less than Kshs500,000 at the end of every month. Even at the minimum, without counting the Chief Executive Officer, we are going to spend Kshs4.5 million on salaries alone. We are not talking about the allowances and things like that! If you just take the headquarters, there are some people who are going to sit there and rent will be paid. We are going to spend about Kshs13 million in a month on that Commission, once we set it up. For what? For reporting to the Minister for Justice, National Cohesion and Constitutional Affairs? No sanctions will be applied? Just to file reports! Mr. Temporary Deputy Speaker, Sir, I think we need to re-think this law. I understand absolutely the reasoning behind the creation of this Commission. That is because at the time, there was a lot of pressure. Something needed to be done and it needed to be done very quickly. Kenyans wanted a way forward. But, while I agree with all that reasoning, we need to re-look at it. Now, we are calm. Now, temperatures are down. We need to look at the legislation that we are passing. Can we give the Commission some more teeth? Can we make it stronger, so that the Kenyan population is protected? Mr. Temporary Deputy Speaker, Sir, if you look at the British situation, I admire it because it has worked. They have created almost 98 tribunals under that law, which just deal with ethnic matters. Those are like specialized courts. Let us say, for example, we have a court down there in Garsen Constituency. If anyone feels that he is being subjected to any form of discrimination because of his ethnic community, religion or because of the minority communities that exist there, then he is free to quickly file a complaint before that tribunal, which has sanctions! For example, if they are applying to be considered for employment opportunities in the Constituencies Development Fund (CDF) office and - I am talking practically - because, maybe, the hon. Member comes from a different community, you will be dealing with a tribunal that will say: \"That interview should be reviewed because these people qualify and it appears that they were left out just because they come from a different community\". This is what Kenyans are crying for; some form of power! But if the only thing the Commission is going to do is to write a report, it is not enough. I suggest, very, very strongly, that we should re-look at this Bill and see what powers we can give to it. Mr. Temporary Deputy Speaker, Sir, I have been having some discussion with my colleagues here. I think there is a very key provision that has been made under the proposed Clause 13(m), where it says:- \"They will monitor and review all legislation and all administrative Acts relating to or having implications for ethnic relations and equal opportunities and, from time to time, prepare and submit to the Government, proposals for the revision of such legislation and administrative Acts.\" Probably, this is the most important Clause that this Commission needs to execute. July 3, 2008 PARLIAMENTARY DEBATES 1645 Mr. Temporary Deputy Speaker, Sir, while you were on this other side, you said that the review is like an engine, but there is no body! So, the body that is going to be created here would be the legislation that will create sanctions. I was thinking: Why should we start with a Commission? Mr. Temporary Deputy Speaker, Sir, why should we start with a commission? Why do we not start with that legislation? I think the Departmental Committee on Justice and Legal affairs under which you also served could properly look at these issues and see what could be done. I believe that if this is done, then we would have achieved the reason for having this Bill in the first place. There are also issues that I needed to raise which are directly related to Bill that need to be looked at. The powers of this Commission under Clause 14 are so limited. They are just the normal things, for example, it is not to work under any direction from any authority and not to receive any grants. What can it do for the common mwananchi who is having a problem? Before the legislation is passed, I would like to remind the House that there are still some criminal provisions under the Criminal Procedure Code and the Criminal law in Kenya where if someone is suffering from any form of discrimination. These are very unknown criminal provisions of hate speech and things like. I propose they should have authority to hire an advocate for people who file complaints with this Commission. That way, they can pursue necessary prosecutions to secure the rights of any person who comes to them for assistance. So, they should be able to hire advocates at low cost to defend members of the public who complain to them that they have been discriminated against or denied opportunities. Mr. Temporary Deputy Speaker, Sir, they should not only have powers to carry out formal investigations, but also to declare certain parastatals as being compliant with the code of conduct of ethnic and race relations within the country. We should set up beacons. What do I have in mind? They should be able to say: \"We have investigated and seen that, for example, the Coast Development Authority or the Ewaso Nyiro Development Authority, has been subjected to the test of ethnic and race relations within this country and it has been found to be correct\". That way, they will imbue State parastatals with the sense of mixing and matching all parastatals and Government bodies. We should have beacons that show that in this company there should be clear representation from all the regions and management positions should also be shared fairly. It will also show that the races and tribes of this country are represented and those of mixed heritages like some us should be represented. The Commission should be able to enforce, at least, on the minimum, they should point out to Government bodies because this will be a Government body and enforce that kind of code. In addition to the powers that have been given under Clause 14, I propose that they should be given power to issue what I call non-discriminatory notices, which is to say, If someone comes and complains that: \"This company only hires Wazungus or the presenters of this media House are only Indians and we have been discriminated\". Then, this Commission must have powers to issue a non- discriminatory notice in which they will say: \"Company X, your practice in this section or department is against the code of conduct of the National Ethnic and Race relations Commission. We think that in your department X, you should hire more people of diversity. If you fail to comply with this, we are going to impose sanctions on your company, for example, a fine of certain amounts of money\". They do not need to be large amounts of monies. If the media is working with the Commission, they will be able to see that they do not want to be cited as a company that is practising discrimination within its ranks. I propose that it should take the lead in propagating ideals at the national level. It should be given powers to advertise and run public campaigns. These powers are not envisaged within this Bill. Mr. Temporary Deputy Speaker, Sir, this Commission should be given powers, for example, to expose discriminatory practices, from salaries to allocation of resources. Members of 1646 PARLIAMENTARY DEBATES July 3, 2008 Parliament here have raised issues with the Budget. They have complained that certain areas are receiving preferential treatment in allocation of resources. For example, why should fishing be given so much? These ideals should be imbued even in Government functions. The Commission should be given powers to reprimand Government departments that are not working within the ambit of cordial ethnic and racial relations within this country. We have had a lot of complaints and it was open during the campaigns from the other side. They said that they wanted to remove certain officers from Government departments because they come from certain communities. We should not ignore that concern. They are raising legitimate issues. If this Commission is just going to report and does not have powers to correct some of those imbalances, then we will not have achieved much in terms of correcting the problems that brought this country almost to the brink of collapse. In order for us to do justice to the intentions of the Kenyan people, this Bill needs to be looked at afresh. I hope the Departmental Committee on Justice and Legal Affairs will have an opportunity to look at the issues I have raised very seriously. Mr. Temporary Deputy Speaker, Sir, I am comfortable that you sit there. Obviously in your submission, you had done your work and I am impressed. I have confidence that when this matter goes down there, you will have to look into what happens. Having said all this, I want to say that I am supporting this Bill on the basis that it is the beginning. Why do I say so? From Independence, we had the late President Jomo Kenyatta who led this country and we all know and the history of the country is there for us to see. During that period, key Ministries and departments were headed by people from one area. Mr. Temporary Deputy Speaker, Sir, when the second President came into power, he tried to achieve a balance, but it was only at the political level. Even when you look at important Government bodies across the country, you will see that there was a trend towards doing injustice to certain communities. What needs to be said is that there has never been an open attempt to tackle this problem all over, so that we can see the problem for what it is. Stakeholders are called upon to deal with this matter. So, I argue that Parliament should support this as a first step, but it needs a lot of work to be done. It is my prayer that, that work will be done."
}