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"id": 207049,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/207049/?format=api",
"text_counter": 194,
"type": "speech",
"speaker_name": "Mr. Wako",
"speaker_title": "The Attorney-General",
"speaker": {
"id": 208,
"legal_name": "Sylvester Wakoli Bifwoli",
"slug": "wakoli-bifwoli"
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"content": " Mr. Deputy Speaker, Sir, I beg to second. I will, first of all, start by thanking the Minister for having moved this Bill, which is my Bill. I could not move it myself because I was out of town on official business. I would crave leave of the House to refer, copiously, to the notes that I have, because this is a Bill touching on many Acts of Parliament. Mr. Deputy Speaker, Sir, the amendments in this Bill are initiated by the Ministries responsible for operating the various Acts. So, proposed amendments came to me for inclusion herein, because they cannot stand on their own as independent amendments to an Act. So, responsibility for the policy considerations contained in this Bill is on the Ministries concerned. Of course, collectively, as the Cabinet, we are responsible. So, I hope that the Ministers concerned have attended this sitting, and that they will listen very carefully to what the various hon. Members will say about the proposals touching on their Ministries. Further, I hope that they will take part in the debate and respond to some of those proposals. Mr. Deputy Speaker, Sir, starting by going, fairly quickly, through the various amendments, we propose to amend the Revision of the Laws Act, Cap 1 of the Laws of Kenya, particularly Section 6(2), which provides that every booklet of the Law shall contain in the front page thereof, amongst other things, the expression \"Printed and Published by the Government Printer\" and also generally to set out how the Laws of Kenya are to be. I see that we have obtained other laws which are not printed by the Government Printer. The law requires, as of now, that we only use the laws printed and published, with the authority of 3442 PARLIAMENTARY DEBATES August 23, 2007 the Attorney-General, by the Government Printer. The way we publish these laws is very archaic, to the extent where if we carry out amendments to any law in this House, as soon as we have passed the amendment, it has to be typed very carefully and then pasted on the law itself, which is very cumbersome. Mr. Deputy Speaker, Sir, the amendment that is proposed in this Bill is to come into the IT age and facilitate expeditious printing and publication of revised laws of Kenya. Right now, if you go to the old laws that are there, most of them will not be updated because of the old system that we are now using, of pasting amendments to the existing laws, then after some time, printing a revised law to take into account those amendments. With the new system that we are going to have, as and when we pass amendments, these amendments will immediately be reflected in the Laws of Kenya to an extent where we can now use the modern version of the Laws of Kenya, which is now before this august National Assembly. The other proposed amendment is to the National Assembly and Presidential Elections Act, specifically Section 21, which provides that petitions under the Act should be presented and served within 28 days of the publication in the Kenya Gazette of the result of the election, or a declaration that a Parliamentary seat has become vacant. The amendment is to delete \"and served\" in both cases. This is an amendment which came from the Electoral Commission of Kenya. The reason for this is in order to remove the requirement for personal service of election petitions to respondents, which has had the effect of hampering court cases relating to the same. We all know that at times an elected Member of Parliament can be very elusive in avoiding personal service of the petition. For as long as he can be elusive for 28 days, the whole thing more or less lapses. This is now to remove that specific requirement of personal service. Service will still be required. Mr. Deputy Speaker, Sir, the major amendment that is under this Bill is the Judicature Act, which provides for the number of judges in the High Court and the Court of Appeal. It states that, the number shall not exceed 50 and 11 respectively. It is proposed to increase the number of judges in the High Court from 50 to 70, and in the Court of Appeal, from 11 to 14. Mr. Deputy Speaker, Sir, let me just explain a bit on this because it is a very important amendment that we are proposing. At Independence, we had only seven judges of the High Court. This number was increased to 10 in 1967; to 19 judges in 1977; to 24 judges in 1981; to 30 judges in 1984 and to 50 judges in 1997. At the time of Independence, we had only three High Court stations outside Nairobi; that is, Mombasa, Kisumu and Nakuru. Currently, we have 18 High Court stations outside Nairobi. One of the most cardinal principles is that justice must be done. It must not only be seen to be done, but it must be done. Also, very important is the fact that delay in justice is actually injustice. Even as of yesterday, the newspapers reported about the serious backlog of cases that we have in court. Mr. Deputy Speaker, Sir, currently, with the 50 judges of the High Court, and assuming that the population of Kenya is 33,800,000 - I believe that the population of Kenyans now should be 36 million to 37 million people. However, assuming that there are 33,800,000 people in Kenya, with the 50 judges, it means that the ratio of judges to Kenyans is one judge for 676,000 inhabitants. This is incomparable to the situation in a country like Canada where they have one judge per 33,756 persons. Even Malawi has a lower ratio than ours. In Malawi, today, there is one judge per 576,000 people. So, our judges are overworked. If we are to take a population of one billion Kenyans, then we have two judges serving one million Kenyans. In India, they have 12 judges per one million people. In Australia, they have 47 judges per one million people. In Britain they have 50 judges per one million people. In Canada, they have 75 judges per one million people. In the USA, they have 107 judges per one million people. If enacted, this will reduce the ratio in Kenya from 676,000 persons per judge to 483,280 persons per judge. That is as far as that is concerned. Mr. Deputy Speaker, Sir, when we come to the backlog of cases, for example, in 2004, August 23, 2007 PARLIAMENTARY DEBATES 3443 there were 415,179 cases pending. I chose that year because when we were drafting this particular amendment, it was at that time that we took these statistics. So, I have them ready. In addition to those cases pending by 2004, 8,258 cases were filed and yet in that year only 6,258 were determined, which means that, every year, an average of 2,000 cases are added on to the pending cases in court. Therefore, there is no doubt at all that we require more judges. The Judicial Service Commission, of which I am a member, has tried to deal with this problem within the limit of 50 judges. The Chief Justice has appointed the Expeditious of Cases Committee, which is chaired by hon. Justice Omollo, the members of the Bench, the Law Society of Kenya and the Office of the Attorney-General. This Committee is charged with the mandate of looking into ways and means in which cases can be heard more expeditiously. Also, the Rules Committee is looking into the way regulations can be made so that we have more expeditious hearing of the cases. This is apart from the computerisation programme, which is going on in court to ensure that the records of the court proceedings are recorded rather than manually written by a judge, as we go along. Mr. Deputy Speaker, Sir, more sub-registries upcountry have recently been set up, for example, in Malindi, Embu, Eldoret, Kitale, Busia and Garissa. New court buildings are in the course of being constructed in Busia, Nyahururu and Kerugoya. Other courts are planned at Naivasha, Nkubu, Nyeri, Vihiga, Kisumu and Homa Bay. So, the problem is being addressed. Mr. Deputy Speaker, Sir, the increase in the number of judges being created here is conservative, but it is what we can bear now. So, I would really ask hon. Members to agree to this particular proposal. There is also an amendment to the Advocates Act, which the Minister for Justice and Constitutional Affairs touched on. I do not have to go into the details of it now. It is there for you to see. There are also amendments to the Disciplinary Committee. The reason for the amendments is to ensure that proceedings are a true review of the advocates' conduct by their peers. We are also staggering the appointment of the members of the Disciplinary Committee. We are also establishing a number of benches for the Disciplinary Committee to be able to operate outside Nairobi, that is, Mombasa and other areas, rather than permitting poor litigants who have complaints against advocates to travel all the way to Nairobi for their complaints to be heard. So, the amendments will enable the decentralisation of the process to continue. Mr. Deputy Speaker, Sir, there are amendments to the Law Society of Kenya (LSK) Act, which have been brought by the LSK and which currently allow for an annual election of the Chairman and members of the Council of the LSK to the effect that now such elections should be held biannually. This is because, as I was told and I agree with that reasoning, when an election has taken place, before the new Council has really settled down to see what it can do for the LSK and for the country, the elections are, again, due. So, it requires a period of time for each Council to prove that they can do their job. That is why they are proposing that rather than have annual elections, they should have elections biannually. Mr. Deputy Speaker, Sir, there are a number of proposed amendments to the Anti- Corruption and Economic Crimes Act and the Penal Code. These amendments will increase the penalties for various matters under the Penal Code. These very offences are also in the Anti- Corruption and Economic Crimes Act. Under the Act, they attract a higher penalty than under the Penal Code. So, this is to synchronise the two laws. Mr. Deputy Speaker, Sir, there is an amendment I think I should draw the attention of this House to; that is, Section 85(2), which deals with the issue of prosecutions. It is intended to empower the Attorney-General to appoint an advocate or a person employed in the public service to be a public prosecutor. This will exclude the appointment of a police officer as prosecutor. Here, we want the Attorney-General to have a wider latitude in appointing appropriate persons in the 3444 PARLIAMENTARY DEBATES August 23, 2007 public service; they may be advocates serving in other departments and so on, to undertake prosecutions when called upon to do so. Mr. Deputy Speaker, Sir, there is also another major amendment under the Criminal Procedure Code to do away with the system of assessors. Currently, we have the system of assessors who are normally three. They are appointed. Of course, there have been abuses reported in various courts as far as they are concerned. A number of them have even approached the accused persons in prisons to say that, if something is done, they will be able to do whatever they can do. Yet, we all know that under our laws, the decision of the assessors is not binding on the judge. The judge can overrule the findings of the assessors. We have also found that, particularly in murder cases, they contribute a lot to the backlog of the hearing of the cases in this country. At times, they are not available. The cases have to be adjourned and so on. Therefore, we think and the courts have also agreed with us, that we do away with the system of assessors in order to ensure speedy, more efficient, cost-effective and fair trials in accordance with the present conditions in Kenya. Mr. Deputy Speaker, Sir, we are also doing away with the consequential amendments which deal with the assessors having to be present when the judgement is being read et cetera . Mr. Deputy Speaker, Sir, I wish to draw the attention of the House to an important provision which relates to confessions or admissions of guilt by accused persons. Section 25(A) which was passed by this Parliament under the Criminal (Amendment) Act (1997) states that: \"The confessions or admissions of guilt by accused persons will not be admissible unless they are made in court\". Mr. Deputy Speaker, Sir, as I explained to this august House at that time, that because confessions can be admitted almost freely before the court, then the investigators were not doing their work as they ought to do to find independent evidence in order to find the culprit responsible for a particular crime. Therefore, the provision that confessions can be admitted almost at will, encouraged the investigators to do a bit of torturing to obtain confessions. In other words, it was a short-cut to proper investigations being carried out. This has also been found to be inhibiting proper investigations and those actually guilty escape. Therefore, we think the amendment that is there now, on one hand, deals with the issue of torture. In other words, we want to eliminate torture as a system of obtaining a confession from a person. On the other hand, there is importance of having a fair trial. Mr. Deputy Speaker, Sir, what we have proposed is that instead of confessions being made only to the court, as is currently the provision, they can be made either in court or before a police officer of or above the rank of a Chief Inspector of Police. We believe that the rank of Chief Inspector of Police is senior enough to know how to do it. The confession can also be made by the suspect before any person of his choice. In saying \"any person of his choice\" we have in mind; his or her own advocate, a pastor of a church or hon. Member of Parliament, so long as, he or she is a person of his or her choice. Mr. Deputy Speaker, Sir, to reduce the mischief of torture being used in the course of investigations it is proposed that the confession should not be made before an investigating officer. So, if somebody is investigating and a suspect wants to make a confession, it should not be made before an investigating officer who may be of the rank of a sub-inspector of police and below. The investigating officer must either find a court or another police officer, not involved in the case, of the rank of Chief Inspector of Police or above or ask the person, \"before whom do you what this confession to be made?\" After that, the confession can be made. However, a confession made before the investigating officer will not be admissible in a court of law if this is enacted. Mr. Deputy Speaker, Sir, it is also proposed that the Attorney-General, on enactment of this provision, will make rules which will apply in cases where confessions are not made in court. We have already began that exercise. I can assure you that if this provision is enacted, within 30 days, August 23, 2007 PARLIAMENTARY DEBATES 3445 the Attorney-General will have made the rules under which the confession can be made. We have began doing that exercise in anticipation that this august House will be reasonable enough, as it normally is, to enact this legislation. Mr. Deputy Speaker, Sir, the other amendment is about the Public Trustee Act which had been touched by the Minister for Justice and Constitutional Affairs. There is also an amendment to the Service Commissions Act. This amendment is extremely important because, as you are well aware, we have taken many measures within the Constitution, to ensure that the Judiciary is an independent institution. The Judicial Service Commission (JSC) is the employer of the employees under the Department of the Judiciary. Mr. Deputy Speaker, Sir, the Judicial Service Commission (JSC), under our laws now, cannot establish a superannuation fund for its employees because they are all now regarded to be under the Public Service Commission when that issue is involved. Therefore, this amendment will enable the JSC to have a superannuation fund for its employees and, therefore, it is a further step on the road to the Judiciary becoming truly independent of the Public Service Commission. Mr. Deputy Speaker, Sir, the Minister has touched on the Education Act, the Kenya National Library Services Board Act, the Land Adjudication Act and the Kenya Tourist Corporation Act, which are just having minor amendments there. We have also touched on the Traffic Act. Under the Traffic Act, the amendments seek to empower the Minister to make rules specifying the measures which may be applied to that end, including the use of appropriate devices for that purpose. I think we all know what that means, particularly, in enforcing the regulations regarding drivers who drive while under the influence of alcohol. It will enable the police to use the devices to determine the levels of intoxication of a driver whom they suspect is driving under the influence of alcohol. The Minister has touched on the constitutional offices. I do not have to repeat what she has said. She has similarly touched on the Trademarks Act, the Hire Purchase Act, the Export Processing Zone Act, the Non-Governmental Organizations Co-ordinating Act, which deals with the issue of quorum and so on, on the National Council for Law Reporting. Mr. Deputy Speaker, Sir, the current position which sets out the functions of the National Council for Law Reporting is the preparation and publication of the Kenya Law Reports and other publications related to those reports. It is proposed to amend the section to provide that the Council may perform other functions conferred on it under other laws. Therefore, we are now expanding the mandate of the Council. Part of expanding the mandate of the Council would be to publish the Laws of Kenya, to ensure that the Laws of Kenya are, at any given time, up-to-date, as and when we pass amendments in this House. Mr. Deputy Speaker, Sir, this particular amendment is tied to an amendment that I talked about earlier, under the revision of laws, which provide on how our laws are to be printed. We believe that the Council for Law Reporting, as currently constituted, now has the capacity and technical know-how to be able to deal with the publication of the Laws of Kenya under the authority of the Attorney-General. Mr. Deputy Speaker, Sir, we have amendments to the Narcotic Drugs and Psychotropic Substances Act, which really permits and makes it clear the process of collecting and destroying cocaine and so on, even before the finalization of the case. So, the procedure is now being made very, very clear beyond any reasonable doubt. We have amendments to the Kenya Roads Board Act and the Industrial Property Act, which the Minister for Justice and Constitutional Affairs has touched on. We also have amendments to the Copyright Act to ensure that there are some three copyright societies - the Music Copyright Society of Kenya (MCSK), the Copyken Association of Publishers and the Kenya Association of Music Producers. It is proposed that the chairman of the Copyright Board should come from amongst those copyright societies. The Copyright Act, as you 3446 PARLIAMENTARY DEBATES August 23, 2007 know, is an Act to enforce the copyright of the holders and so on."
}