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"id": 191705,
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"speaker_name": "Ms. Karua",
"speaker_title": "The Minister for Justice, National Cohesion and Constitutional Affairs",
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"legal_name": "Martha Wangari Karua",
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"content": "Mr. Temporary Deputy Speaker, Sir, the Commission--- I beg your pardon, Madam Temporary Deputy Speaker. I had not noticed the change of the Chair. I was contemplating on the Bill. Madam Temporary Deputy Speaker, the rest of the staff of the Commission, including the Secretary to the Commission, will be hired by the Commission itself. The procedures are indicated in this Act. Clause 11 also provides for the removal from office of members of the Commission. That is a standard procedure. It is borrowed from the removal of officers of quasi -judicial bodies or judicial bodies. It is, more or less, borrowed from the manner in which members of the Judiciary or judges can be removed from office. Clause 11(2) says:- \"A person who wishes to have a Commissioner removed from office may apply for removal of the Commissioner to the President through the 1500 PARLIAMENTARY DEBATES July 1, 2008 Minister, and such application shall be copied to the Chairperson.\" So, Madam Temporary Deputy Speaker, I need not go through the procedure there. It is elaborate to ensure that a person will not be removed as a member of the Commission in a frivolous manner, which would undermine the integrity and independence of the Commissioners. So, the procedure for the removal is designed, in a way, that the Commissioners will secure their independence in the performance of their duties. Madam Temporary Deputy Speaker, the filling of a vacancy, if it arises in the Commission, follows the same procedure and instead of the advertisements as in the first case, the President would consider the balance of the names already placed before him by the National Assembly. So, what will this Commission do? The Objects and Functions of the Commission are listed in Clause 13, one of which is to:- \"Facilitate and promote equality of opportunity, good relations, harmony and peaceful co-existence between persons of different ethnic communities of Kenya--- Maybe, there, we need to add also:- \"Ethnic communities and all races of Kenya\", \"---and to advise the Government on all aspects thereof\". The Commission may also:- \"(a) promote the elimination of all forms of discrimination on basis of ethnicity; (b) discourage persons, institutions, political parties and associations from advocating or promoting discrimination or discriminatory practices on the grounds of ethnicity;\" Madam Temporary Deputy Speaker, here, again, I would like to reiterate that wherever the word \"ethnicity\" appears, at the Committee Stage, we will also be spearheading the adding of the word \"race\". So, where we have the word \"ethnicity\", we also have race relations. The Commission will also promote tolerance, understanding and acceptance of diversity in all aspects of national life and encourage full participation by all ethnic communities in the social, economic, cultural and political life of other communities. The Commission will also plan, supervise, co-ordinate and promote educational and training programmes to create public awareness, support an advancement of peace and harmony among our ethnic communities and races. It will also promote respect for religious, cultural, linguistic and other forms of diversity in a plural society. It will also promote equal access and enjoyment by all persons of all ethnic communities and races - I am adding the word \"races - to public or other services and facilities provided by the Government. It will also promote arbitration, reconciliation, mediation and similar forms of dispute resolution mechanisms in order to secure and enhance ethnic harmony and peace. Madam Temporary Deputy Speaker, we know that, at a time like this, we need these activities. We need them, not on an ad hoc basis, but on a continuous basis, not only in order that we may have reconciliation and healing, but to prevent the occurrences of early this year ever again occurring in our country. That Commission will also investigate complaints of ethnic or racial discrimination and make recommendations to the Attorney-General, the Kenya National Commission on Human Rights or any other relevant authority on the remedial measures to be taken where such complaints are valid. I am imagining that any other authority can even be an employer, who is discriminating on the basis of ethnic or racial grounds. The Commission will also investigate, on its own accord or on the request of any institution, office or person, any issue affecting ethnic and - I am adding race relations - it will also identify and analyze factors inhibiting the attainment of harmonious relations between ethnic communities, particularly barriers to the participation of any ethnic community in social, economic, commercial, financial, cultural and political endeavours and recommend to the July 1, 2008 PARLIAMENTARY DEBATES 1501 Government and any other relevant public or private body, how those factors should be overcome. Madam Temporary Deputy Speaker, we have heard, in the past, a lot of complaints from people who have faced marginalization in employment and in the provision of services. That will be the right body to get into those issues, whether it is a Government agency or just a private employer. That institution will have the mandate to get into that and promote a harmonious society where we can all co-exist. It will also determine strategic priorities for socio-economic, political and development policies of Government impacting on ethnic and race relations and advise on their implementation. It will recommend to the Government the criteria for deciding whether any public office or officer has committed acts of discrimination on the grounds of ethnicity or race. This is very important, because we do not have legislation and policy, it will monitor and review all legislations and all administrative acts relating or having implications for ethnic relations and equal opportunities and from time to time prepare and submit to the Government proposals for revision of such legislation and administrative acts. Madam Temporary Deputy Speaker, if we recall, we have had a continuing row since 1990s, where Kenyan Somalis are subjected to different standards in acquisition of identity cards and passports. This body will monitor such discriminatory practices and ensure that action is taken immediately. It will also initiate, lobby for, and advocate for policy, legal or administrative reforms on issues affecting ethnic or race relations. It will also monitor and make recommendations to the Government and other relevant public and private sector bodies on factors inhibiting the development of harmonious relations between ethnic groups and races and on barriers to the participation of ethnic groups and races in the social, economic, commercial, financial, cultural and political lives of the people. There is a lot of silent discrimination on ethnic and racial grounds going on in private institutions, and also sometimes in public offices in this country. We need this body to monitor and take complaints from the public, who would otherwise not have anybody else to turn to. Madam Temporary Deputy Speaker, it will also undertake research and studies and make recommendations to the Government on any issue relating to the ethnic and racial affairs, including whether ethnic and race relations are improving. In other words, it will give periodic reports to show us where we are, whether we are improving and what more we need to do. It will also report to the National Assembly in a similar manner the status and success of implementation of its recommendations. We have a blanket clause which enables it to do all other acts and things as may be necessary to facilitate the efficient discharge of its duty. The importance of that last clause is that it is not possible to include everything. So, in case something is inadvertently left out, this leaves it wide enough for this body to do all such other acts as are necessary. This body is not going to be a toothless bull dog. For it to be able to function, it has to have teeth. Clause 14 indicates that the Commission will have powers necessary or expedient for the proper performance of its functions. They shall not be subjected to the direction of or control of any other person or authority. They are going to be independent from the moment they are appointed. They may enter into association with such other bodies or organisations within or outside Kenya, as they may consider desirable or appropriate and in furtherance of the purpose for which they are established. So, if there are similar Commissions elsewhere, they can twin with them and learn from them. They will control, supervise and administer the assets of the Commission in such manner and for such purposes as best to promote the purpose for which they are established. We have also provided that they can receive grants, gifts and donations that are legitimate. This comes in because more often than not semi-autonomous Government bodies and even Ministries complain that the budgetary allocation is not enough. Therefore, we encourage where institutions are able to fundraise or find other means of getting funds. We combine these methods so as to supplement what the Exchequer provides and not to tie the 1502 PARLIAMENTARY DEBATES July 1, 2008 operation of this independent body. They will have power to summon witnesses as it is usual with the Commissions of this nature, and also to get witnesses or other persons to produce books, plans and other documents that may be necessary. They will also have powers like a court to reimburse witness expenses. So, in other words, we are really giving them quasi-judicial functions. In the conduct of their business in Clause 18, the Commission will regulate its own procedure. But certain directions are given in the third schedule. The Commission is allowed by Clause 19 by resolution or generally, in any particular case to delegate to any committee of the Commission or to any member, officer or employee or agents the exercise of any of its powers. This is a usual clause to allow them to work through their staff. Their remuneration will be determined by the Minister in consultation with the Treasury. This is necessary so that it is in harmony with the rest of the Government departments. The staff of the Commission will be appointed by the Commission and their terms of service will also be determined by the Commission with the usual consultations. They are obliged to observe the principles of ethnic and gender balance in their staff appointments. There, I will not suggest that we add the word race, because the races are not many and we cannot balance that in employment. But ethnic, we need to watch and to make sure that this Commission represents the face of the country. Madam Temporary Deputy Speaker, under Clause 23, the Commission is also protected from personal liability, when they are conducting their duties. This again, is to insulate them so that they are able to work without hinderance or fear. As I had stated earlier, on part 3 Clause 25, funds of the Commission are provided for. These are monies appropriated by Parliament and such monies or assets as may accrue to the Commission in the course of the exercise of its powers and from any other source provided for or donated or lent to the Commission. Clause 26 guides them on how to prepare their annual estimates, which then have to be forwarded to the Treasury with prior approval. This is a standard procedure to harmonise the spending of Government, because we must live within our means. All Ministries are moderated by the Treasury on how they spend. Our competing needs, as Ministries and Government agencies, have to be moderated so that no one is neglected in the allocation of funds and so that every Government agency and Ministry is provided for even if it is not to the fullest extent demanded. The usual provision for audit is in Clause 27 and also Clause 28 sets out how to the funds may be invested, which is standard Government procedure. Madam Temporary Deputy Speaker, Clause 29 does obligate the Commission to make its annual reports, prepared each financial year, which include the financial statement, and which then must be transmitted to the National Assembly, as is usual, within 30 days. However, the Commission may make special reports, not just the yearly reports, to the National Assembly when the need arises, as Clause 30 proposes. Offences are created by the proposed Clause 31 for anybody who refuses, without sufficient cause, to obey the summons of the Commission, or refuses to swear or be affirmed when appearing before the Commission. This, again, is giving the Commission powers equal to those of a court when summoning or hearing of witness. Madam Temporary Deputy Speaker, in the First Schedule, the procedure for nominating the Commissioners by the National Assembly is set out, where the Clerk of the National Assembly, within 14 days of the commencement of this Act, by an advertisement in the Gazette, and in at least three daily newspapers of national circulation, will invite applications from persons qualified under this Act for nomination as Commissioners. So, for the National Assembly to select, an invitation will publicly go to every one, so that people have equal opportunity. It is the right procedure because this Act is seeking to create equal opportunities for everyone. So, it begins by selecting the Commission by inviting the applications from members of the public. Then any group of people or organization that proposes a person to be nominated will apply, then the relevant Parliamentary Committee, in consultation with the Minister, shall consider all the applications and recommend to the National Assembly the persons qualified. Here is where I July 1, 2008 PARLIAMENTARY DEBATES 1503 am saying that, as a measure to strengthen this Bill, we should add that the relevant Committee of Parliament, with the help of a reputable human resources firm, the necessary human resources complement, which is not, otherwise, available in Parliament. Madam Temporary Speaker, The rest of the procedure is set out between Clauses 3 and 7 and is the usual standard procedure. The Second Schedule provides for the Oath of Affirmation when you appear before the Commissioners. Then the Third Schedule provides for the conduct of the business and the affairs of the Commission. The Commission is obliged to meet not less than four times in every financial year, and not more than four months shall elapse between the date of one meeting and the date of the next. The rest are the standard Clauses, where the Commission Chairperson is obliged to convene a meeting, if requested by at least three commissioners and the quorum for the conduct of the Commission business shall be seven members. This is a Commission with about 11 members. So, a quorum of seven members is a high threshold; because Commissioners will be dealing with a very delicate issue of ethnic relations, I want to persuade hon. Members that this high threshold is actually called for. Then the standard procedure that the Chairperson shall preside at every meeting and in the absence, the members shall elect one of their own who will then be able to preside. Regarding the issue of how members will vote, in the absence of unanimity, it will be by a majority of the votes of members present, and the person presiding will have a casting vote. The rest are the normal provisions for a commission to have a common seal and so on. Madam Temporary Deputy Speaker, I would want to say that we had expected to be able to have produced, as a negotiating team, this Bill by the end of May, but it was not possible. Actually, it is dated 8th May, 2008 but we went on one month recess. I would like to confess that we were a little late by one month, but we are moving on, and are trying our best to fulfil what was agreed in the National Accord. With those very many remarks, may I now hand over the Bill to the Members of the National Assembly to enrich and mould as necessary, remembering that it was negotiated on their behalf. I have already appeared before the Parliamentary Committee on Administration of Justice and Legal Affairs, and we are also expecting their feedback as we go to the next stage. I beg to move and request, with the permission of the Chair, Prof. Ongeri to second."
}