HTTP 200 OK
Allow: GET, PUT, PATCH, DELETE, HEAD, OPTIONS
Content-Type: application/json
Vary: Accept
{
"id": 197373,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/197373/?format=api",
"text_counter": 32,
"type": "speech",
"speaker_name": "Ms. Karua",
"speaker_title": "The Minister for Justice and Constitutional Affairs",
"speaker": {
"id": 166,
"legal_name": "Martha Wangari Karua",
"slug": "martha-karua"
},
"content": "Looking at the Constitution of Kenya (Amendment) Bill, the Memorandum of Objects and Reasons, it is very clear that this Bill emanates from the agreement reached between His Excellency the President, hon. Mwai Kibaki, on behalf of the Government and Party of National Unity (PNU), and hon. Raila Odinga, on behalf of the Orange Democratic Movement (ODM). The agreement was witnessed by the President of Tanzania, His Excellency hon. Jakaya Kikwete and His Excellency Kofi Annan, the former Secretary-General of the United Nations and the Chairman of the Panel of Eminent Personalities, who chaired the deliberations of the National Dialogue and Reconciliation Committee. Mr. Speaker, Sir, the Memorandum of Objects and Reasons also acknowledges the teams that negotiated. I would like to draw to the attention of the hon. Members that the earlier Bill published mistakenly omitted the name of a very eminent Kenyan, Senior Counsel, hon. Mutula Kilonzo. However, a few copies that were printed yesterday, one of which I am holding, have corrected that error and, therefore, his name is firmly included in the team that negotiated the agreement. I would want to plead with him not to take offence. It was inadvertent, noting that all this was being done very quickly. I want to say that this Bill is about providing and establishing the offices of Prime Minister, Deputy Prime Ministers and the formation of a Coalition Government in terms of the National Accord that I have just referred to. The proposed Clause 2 of the Bill seeks to amend Section 3 of the Constitution by providing in the proviso that:- \"Provided that the provisions of this section as to consistency with the Constitution shall not apply in respect of an Act made pursuant to Section 15A(3)\". Mr. Speaker, Sir, we all know that Section 3 of the Constitution clearly states that no law that is inconsistent with the Constitution can stand because of the doctrine of supremacy of the Constitution. This provision is intended to exempt the National Accord and Reconciliation Bill from this Section 3 in case any of its sections is found to be inconsistent. I have indicated that this is a negotiated agreement. This is a temporary agreement pending the full review of our Constitution and it is not possible to change the power arrangement by merely amending one section. We would have to run through the Constitution, amend some 19 or more sections to achieve complete acceptance, in the Constitution, of the new power arrangement under the Agreement. Therefore, this section is intended to provide the leeway, that we do not have to overhaul 19 sections. So, whatever is contained in the National Accord and Reconciliation Bill will not be considered as inconsistent with the Constitution. So, it is a very necessary clause. I know we have had occasion to hear comments from mainly lawyers; that this section actually goes against the known jurisprudence. It is so, but law is made to serve man and not the other way round. I want to quote an eminent Tanzanian scholar, Pascal B. Mihil(??), who says that: \"The law is an ass, an idiot\". So, we need to flog it to make it work for us. Although the jurisprudence tells us that the March 18, 2008 PARLIAMENTARY DEBATES 183 Constitution is supreme, because of our special circumstances on this one instance, we are seeking to introduce a clause that enables a law made subsequent to this amendment to withstand any inconsistency it may have with the Constitution, and I have explained the reasoning behind it. I, once again, want to say that this is a temporary arrangement. One of the commitments that we made at Serena, and it is contained in the Statements I have just tabled, is that we should jointly overhaul the Constitution of this country within months of passing the necessary legislation. Mr. Speaker, Sir, in Clause 3 of this proposed Bill, the Constitution is amended by inserting the following section immediately before Section 16, namely, Section 15A. You have your copy of the Bill which clearly states:- \"(1) There shall be a Prime Minister of the Government of Kenya. (2) There shall be two Deputy Prime Ministers of the Government of Kenya. (3) Parliament may by an Act of Parliament and notwithstanding any other provision of this Constitution provide for- (a) the appointment and termination of office of the Prime Minister, Deputy Prime Ministers and Ministers\". It is intended to introduce all these clauses, so that they will be in accord with the legislation that will be proposed thereafter. The functions and powers of the Prime Minister and Deputy Prime Ministers can also be provided for by an Act of Parliament, and that is going to come soon. We know that the establishment of a Coalition Government is again included in the National Accord and Reconciliation Bill that will be tabled here and any other matter incidental thereto or connected with the foregoing. Then Subclause 4 states that:- \"Subject to the provisions of any Act made under Subsection (3), the Prime Minister and Deputy Prime Ministers shall be Ministers of the Government of Kenya\". This, again, is to enable the Prime Minister and the Deputy Prime Ministers to have Cabinet portfolios. You will remember the description in the Constitution currently does not have Prime Minister and Deputy Prime Ministers. So, this is to make them rhyme with the section of the Constitution that provides for Ministers. Then I wish to go to Subclause 5, which states:- \"The Act made pursuant to Subsection (3) immediately following the commencement of this section shall, while in force, be read as part of this Constitution\". If you go over that again, you will see that we are not talking about any Acts of Parliament. It is the Act that we are going to enact immediately following the enactment of this constitution amendment. That Act will now be read after its passage and assent as part of the Constitution. Mr. Speaker, Sir, again, this is to enable the Act to be in accordance with the Constitution. Once it is read as part of the Constitution, it is like amending the sections that it contradicts to the extent of the inconsistency. Again, this is necessary. Otherwise, we would have had to literally overhaul the Constitution by amending some 19 sections or more. The last Subclause 3(6) says:- \"Nothing contained in or done under any authority of an Act of Parliament made pursuant to Subsection (3) immediately following the commencement of this section shall be held to be inconsistent with or in contravention of any provision of this Constitution.\" Mr. Speaker, Sir, most people have said that, maybe, we are opening a floodgate where any Act of Parliament can be made under this subsection, which may drastically change our constitution of basic law. That is not true. The wording that \"an Act of Parliament made immediately following the commencement of this subsection---\" We have only one Act in the 184 PARLIAMENTARY DEBATES March 18, 2008 pipeline. So, we all know that it is talking about the proposed National Accord and Reconciliation Bill. This Bill is also amending Section 17 of the Constitution. Clause 4 says:- \"Section 17 of the Constitution is amended in Subsection (1), by inserting the expression \"Prime Minister and two Deputy Prime Ministers\" immediately after the expression \"The Vice-President\". Mr. Speaker, Sir, this is the description of the Members of the Cabinet. Our Constitution does not have Prime Minister and Deputy Prime Ministers. So, all these are necessary additions which will then make it possible for this House to debate the National Accord and Reconciliation Bill. Otherwise, these provisions would be viewed as unconstitutional. Once we pass these provisions, then they will pave the way for their discussion. Mr. Speaker, Sir, this is a Bill being enacted in special circumstances. So, in my view, it cannot be used tomorrow as a precedent. It is designed wholly for these circumstances. It is also negotiated wholly for these circumstances. So, for those who feel that it defies jurisprudence, I would want to say, yes, perhaps, it is not a good legal precedent, but it is of absolute political necessity."
}