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"id": 207073,
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"speaker_name": "Mr. Muturi",
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"legal_name": "Justin Bedan Njoka Muturi",
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"content": "Mr. Temporary Deputy Speaker, Sir, I quite appreciate that there are some very good proposals for amendment in this Bill, particularly the ones that are proposed in the various laws like the Copyright Act. I was surprised but, nevertheless, I am happy that the Minister said that she will be introducing an amendment to delete her own proposed amendment to the Industrial Property Act, which was actually going to have very serious repercussions to, particularly the area of Anti-Retroviral (ARVs) drugs in this country. But I am encouraged that they are going to, in their own words, bring amendments to delete their own proposed amendments. Mr. Temporary Deputy Speaker, Sir, there is a proposal to introduce an amendment to Section 182 of the Penal Code. If we will recall, this is the area where the Minister talked about \"any person who uses words, gestures and actions that annoy, alarm or abuse a person, or any person who insults, taunts, or challenges a person in a manner likely to offend.\" She also talked about \"any person who uses obscene or profane language to intimidate a person.\" Finally, she talked about \"a person who disturbs or irritates, especially by continued and repeated acts.\" I think this is very strange. This is found at pages 1327 and 1328. This is the area where the Minister, while moving the Bill, talked about hate speech. I wonder whether during, this day and age, these are the kind of things that we want to engage in, unless we are getting so easily irritable as a people. Why do we want to legislate on these kind of things? I will, personally, be opposed to this particular proposal, because I think it is draconian and actually, a setback on the much hyped about freedom of expression and democratic gains that this country has witnessed in the last few years. Mr. Temporary Deputy Speaker, Sir, I will move on to the proposed amendment to the Traffic Act, Chapter 403, of the Laws of Kenya. My take on this is: If, indeed, the Attorney-General or the Minister concerned was to bring an end to this saga, I think he or she needs to table a proper Bill proposing a specific amendment and not just one seeking to give the Minister the power to make rules. In any event, of what use is it? Day in, day out, we are seeing most of these rules that Ministers are making being successfully challenged in the courts. Just last week, the Minister for Transport purported to make rules which have been shelved by the courts. I know that this area is a bit tricky. I would want to encourage the Attorney-General to propose a proper law that deals with the area of drugs and its administration. This is because I know that this is the area where the alcoblow falls in. That is what they are trying to bring in a twisted language. Let us have proper administration of this. Let us not give Ministers powers - open-ended cheques to make rules. When they make them without consulting anybody, other than themselves and their mandarins in their various Ministries, we have seen that on many occasions, they have been successively challenged. It is important that there are proper consultations. Therefore, I want to alert the Attorney-General, again, that he should not be surprised, at the Committee Stage, to see that we will be vehemently opposed to his proposal in that regard. Mr. Temporary Deputy Speaker, Sir, the proposal to amend the Kenya National Commission on Human Rights Act, Act No.9 of 2002, in my view, appears to be in bad taste. It is in bad taste because we have seen the kind altercations that have gone on between the Commission and the Minister. On page 1,349 we are proposing to:- \"Delete the definition of \"Minister\" and substitute thereof the following- \"Minister\" means the Minister for the time being responsible for matters relating to August 23, 2007 PARLIAMENTARY DEBATES 3449 human rights.\" What have we found wrong with the previous definition of the Minister? The Minister, in the Act, when we enacted here in 2002, was the Attorney-General. That is because some of these Ministries can easily be abolished. We are unlikely to abolish the office of the Attorney-General. These others are for political expediencies a lot of times. Let us not hinge our laws on those kind of things. Therefore, I want to alert the Attorney-General that we will, again, be moving amendments to delete this, so that the Commission remains independent. We do not want it to be brought under some political arm or umbrella. Mr. Temporary Deputy Speaker, Sir, let me move on to the proposed amendments to the Anti-Corruption and Economic Crimes Act. Before I say what I may have to regarding these amendments, I want to fully associate myself with the Report by the Departmental Committee on the Administration of Justice and Legal Affairs, which has made an extensive review of these proposed amendments. Indeed, their Report has been available with us for a very long time. It is something that I would wish to fully associate myself with, without having to go to its details because I believe the Chair or the membership of that Committee are best placed to delve into that Report. I also have a take on some of the proposed amendments. On page 1,350, there is a proposed amendment to the Anti-Corruption and Economic Crimes Act. Clause 12(A) says:- \"The Commission may, at any time, with prior notice to the Commissioner of Police, assume the responsibility for an investigation commenced by the police into an offence involving corruption.\" This is just a recipe for confusion! We have already seen a lot of this confusion. I do not know why we want to further cause this to continue. We have seen the Director of the Kenya Anti-Corruption Commission (KACC) and the Commissioner of Police--- In fact, we have seen the Director having his own altercation with the Attorney-General. By doing some of these things, we are just going to encourage that. The Constitution is very clear. Let us leave the Attorney-General to deal with some of these things and direct those officers, including the Commissioner of Police, as provided for in the Constitution. If we want to amend the Constitution, let us do so. But let us not use these other short-cuts to take away certain important powers which are vested in the office of the Attorney- General, and give them to other fellows. Mr. Temporary Deputy Speaker, Sir, I will also be vehemently opposed to the proposed amendment to Section 16(4) on page 1,351, which says:- \"The provisions of the Criminal Procedure Code, the Evidence Act, the Police Act and any other law conferring on the police the powers, privileges and immunities necessary or expedient for the detection, prevention, investigation and prosecution of offences shall, so far as they are not inconsistent with the provisions of this Act, apply to the Director and an investigator, as if reference in those provisions to a police station, police office or police officer included reference to the Commission's premises and the Director or an investigator.\" This proposal has the effect of turning the Integrity Centre into a police station. That was never the intention. When we debated that law here in 2003, even when it was formulated earlier, because I know it was formulated a little earlier than 2003, that was never the intention. What has happened as to want to make the Director of KACC want to have a police station around himself? We are creating a monster without knowing! It may be expedient for those that are crafty; those who are coming up with these proposals now, but you never know! Tomorrow, they may be the ones crying. To save them for having to cry, we need, at this early stage, to tell them: \"Please, do not go that route.\" We have enough police stations. Indeed, just from Integrity Centre, the former Criminal Investigations Department (CID) Headquarters is just behind. So, why do we need to lock up 3450 PARLIAMENTARY DEBATES August 23, 2007 people at Integrity Centre? We do not need to! I would like to say that because there is no proper rationale that has been provided, I will, again, be opposing that particular provision. Mr. Temporary Deputy Speaker, Sir, there are quite a number of other proposed amendments which I find obnoxious, like the one at Page 1,355, Clause 56(A)(1), which says:- \"The Commission may, at any time before or after instituting civil proceedings or making an application under this Act, appoint a receiver for such property as is suspected by the Commission to have been acquired through corrupt conduct.\" People will just suspect that certain properties that you have, have been corruptly acquired and then you find a receiver. Is that the intention of this Parliament? This is very bad law! We cannot have this kind of thing! Please, if receivers must be appointed, let us follow the due process of law. If you suspect and believe that something is illegally or corruptly acquired, use the due process. But do not say that even before you go to court, you have appointed a receiver. That is intended to cripple people. This being an election year, I would urge caution to both sides of the House, that we must not allow this to pass through this House. Mr. Temporary Deputy Speaker, Sir, another strange clause, although the Minister purportedly tried to explain it while moving the Motion is at page 1360. It is on Costs and Execution. It is quite strange! Clause 61(A) says:- \"Notwithstanding any provision to the contrary in the Civil Procedure Act or any other written law, costs shall not be awarded for or against the Commission in any civil proceedings instituted- (a) by the Commission in the exercise of its functions under this Act; or (b) against the Commission in respect of anything done or omitted to be done by the Commission in the exercise of its functions under this Act.\" By this, we are encouraging recklessness. If you grab me and take me to court, I want to hire the very best lawyers, including all the Queen's Counsels (QCs)! I will, therefore, incur costs. If the Commission is so reckless as to take me to court without reasonable grounds--- Or even if they had reasonable grounds, if they lose, they should pay me the cost. We are saying that they should not do that. This is draconian! It is very punitive. It is actually selective! There is a very well known principle in law, that events follow the cause. We must apply that to the letter. We do not want a situation whereby KACC takes people to court at will as they please! Even if you hire ten lawyers, it will be up to you. In today's era--- I do not even know what logic, if any, went into this. Even the Attorney-General, when he represents the Government, he incurs costs and pays. Now, we are saying that the KACC cannot pay costs. What are we saying? If the Government pays costs, why should we make this kind of provision? I want to urge the Attorney-General or the Minister, while replying, to actually commit themselves to deleting this. Otherwise, again, we will be moving to have it deleted because it is draconian! There is another interesting proposal to amend the Public Officer Ethics Act. I believe this was after the enactment of the Kenya Anti-Corruption and Economic Crimes Act (No.3 of 2003). The other one was Act No.4 of 2003. At page 1363, there is a proposed amendment. Clause 30(1) and (2) read as follows: The contents of a Wealth Declaration or Poverty Declaration Forms, as the case may be, because people do not have to, necessarily, be wealthy--- \"The contents of a declaration or clarification under this Act shall be accessible to any person upon application to the responsible commission in the prescribed manner.\" Sub-clause (2) reads: August 23, 2007 PARLIAMENTARY DEBATES 3451 \"No information obtained pursuant to subsection (1) shall be published or in any way made public except with a prior written authority of the responsible commission.\" Mr. Temporary Deputy Speaker, Sir, we want the wealth or the poverty declaration forms to be accessible to anybody upon application in the prescribed form or manner. We are also saying that those who apply for that information, once they get it, are not supposed to publish it without the leave of the Commission. If the information was applied for in the prescribed manner and obtained, and it is about something that we suspect to be corrupt--- If it was obtained by a journalist and he leaks it, strategically, to save the country, are we saying that since the journalist will have breached the conditions, he will have done the \"strategic leaking\" without the permission of the responsible Commission, he will have to disclose who in the Commission gave him the information? We have just been talking about the Media Bill. We must look at these things logically because they can happen. This will happen. Information regarding those who have acquired property in dubious ways will be obtained. It will be published! So, are we on one hand saying in the Media Bill, that a journalist shall not be compelled, which I support, to disclose his source of information and, yet in this Bill, we are talking about a manner which amounts to whistle-blowing--- Are you saying that if a journalist finds out something which he thinks the country ought to know, because it is of such gravity that if he just keeps it to himself--- I do not want to give examples, unless I give an example of the Attorney-General himself or the young man sitting behind him. I am talking about the young man, Mr. Moses Masika Wetangula. If they found out information regarding hon. Wetangula and they thought that it is very serious that the country should know, since the Commission responsible for hon. Wetangula cannot allow that information to be published--- On one hand, we are asking the journalists to get the information but they should not publish it because the Commission would not allow it. If the journalist published that, he would have committed a crime for which he would be punished. For him to save himself, he would have to disclose his source of information. I think we need to rethink and have a clear balance on what we want to do. If we want the information regarding the wealth of the young man, hon. Wetangula, who is talking to the Attorney-General, to be known by everybody and how he acquired it, we must have a balance. Let us rethink. I think there is need for us to see some sense in this. Below it, Clause 30B(1) says: \"The Minister may, whenever necessary, by notice in the Gazette appoint and assign function to a public body or another suitably qualified person verify declarations, clarifications or returns made under this Act.\" These are the declarations which we have been talking about. The fact that the Minister may appoint any public body or other suitably qualified person is liable to abuse! This will be abused because the Minister will just appoint one of the \"suitably qualified people.\" The word is \"suitably qualified.\" In a political sense, you may never know. This can encourage a lot of witchhunt and harassment of people. There is need to re-think about the necessity for that particular clause. Mr. Temporary Deputy Speaker, Sir, of course, I am happy, with the clause on the amendments to the National Assembly and Presidential Elections Act. However, I think we need to rethink about the issue of costs in election petitions. We have seen instances where certain malicious persons sponsor men and women of strong-willed in villages to file petitions against people who have won in a elections. The petitions will drag on and on. At the time of filling the petition, there may have been a lot of interest. As time goes on, the interest disappears. So, the man or woman of strong-will, who will have been sponsored to file a petition, will be condemned to pay costs. When you go to execute the case, you find that there is nothing to attach. I want to urge the 3452 PARLIAMENTARY DEBATES August 23, 2007 Attorney-General to consider the issue of costs in election petitions. Of course, I will, myself, also, be introducing further amendments to that Act to curb the rampant nomadism within political parties as we have witnessed in this Ninth Parliament. The clear details will be available when we go into the Committee Stage. I have listened to the Attorney-General explain the need to amend the Evidence Act, Chapter 80 of the Laws of Kenya just to provide for situations of how confessions may be made. A while ago, in this House, I spoke about the issue of extra judicial statements or confessions. I accept the reasoning by the Attorney-General. Experience has shown that over 95 per cent, in fact, it could be 97 per cent or 98 per cent of all confessions are denied when the trial begins. I am sure that the Attorney-General will agree with me on this that a lot of confessions are actually denied. Why would a person who broke into a bank appear before a police inspector, chief inspector or a superintendent officer and admit to having committed a robbery--- They will be informed of these rules that the Attorney-General is proposing to make. The police always invariably say that they have informed the suspect of his or her rights. For example, they tell you that you can have your Member of Parliament, mother, father or your lawyer present while taking a statement. That is what the charge and caution statement usually reads. But again, experience tells us that, that never happens. Whether it is the investigating officer or any officer, however senior, they never inform suspects. Mr. Temporary Deputy Speaker, Sir, I am wondering, when we say that a confession is made before a judge or a magistrate, yet we appreciate that 98 per cent of all confessions are denied when the trial begins. We are encouraging a situation whereby a confession will have been taken before a judge or a magistrate, and the man or woman will deny it when the trial commences. We are contemplating a situation where you will have to call that judge or magistrate to come and be a witness, and yet the man or woman is saying that he or she never made the confession. I think we are mixing the two. We should not drag the magistrates and judges into that area of law enforcement because it would create some bad tension. The magistrate or the judge who would be listening to the case where an accused person has denied having made a confession before another judge, obviously the judge would want to believe a fellow judge. Naturally it happens like that. In this House, we have been accused of being able to unite when we are discussing something that is juicy. So, I am just trying to extend that imagination. When an accused person denies that he never made the confession and it is purported to have been taken before a judge. The other judge listening to the case may say, now this is my father and even if it looks funny, let me believe it. This is an area that would bring some conflict. My advice would be that we should just live it to the police. Let the Attorney-General make the rules but the more important thing is to avail State counsels; trained lawyers in the Attorney- General's office. Let them be present to read out the charge and caution and leave the matter to the police who would be taking the confession, so that we remove the judges and magistrates from that aspect of criminal administration or administration of justice. Mr. Temporary Deputy Speaker, Sir, although I know it is a very tricky area, I would want to offer that proposal to the Attorney-General to consider it, so that we do not mix issues. The police never follow those things also. I read an interesting Clause. It is a proposed amendment to the Housing Act where it states:- \"The Bill proposes to amend the Housing Act to empower the National Housing Corporation (NHC) to take over the title of any property developed by a local authority using funds provided, secured or guaranteed by the corporation and which subsequently defaults in repayment. The Bill also provides that the corporation shall upon such take-over, compensate the local authority for the undeveloped site value of the property.\" August 23, 2007 PARLIAMENTARY DEBATES 3453 We are talking about compensating the local authority for their undeveloped site value but the site would already have been developed. So, are we saying that we are going to compensate the local authority for the site value of that site or location prior to the development or at the time when you know there is development? It is going to be a very complicated case because the corporation will take over the House or the property. For instance, there is a building and the local authority has defaulted in making repayments, and you are saying that when the corporation takes over that House or building, it will compensate the local authority for the undeveloped site value. Mr. Temporary Deputy Speaker, Sir, unless we are also providing for the site value prior to the development - which has not been done - this is a proposal that is likely to run into some trouble when the local authorities from whom the corporation may be taking over such property, would insist on some value determined by themselves at a particular time, which value might not have been the same at the time of development. I, therefore, would wish to invite the Attorney- General to rethink that particular Clause and proposal and see how best he can improve on it. Mr. Temporary Deputy Speaker, Sir, I fully support the proposed amendment to the Land Adjudication Act, Cap.250 of the Laws of Kenya because this is going to help very many people to get title deeds. As it is today, blocks of land are declared adjudication sections. Within those blocks, there are the usual village stuff like clans, families and others fighting over land. You may find that there is no dispute in 90 per cent of the block and there is no appeal within the Act to the Minister. But the entire block cannot get title deeds because a few families are still tussling. This is something that is welcome. It is an improvement and I would personally support it. I know that the Committee on Administration of Justice and Legal Affairs has extensively looked at this and I also had an occasion to look at its report. Our own rules allow us. I had mentioned to the Attorney-General that I may wish to draw his attention to my intention to bring in an amendment to the Penal Code, specifically to Clause 170. I discussed it with the Attorney- General. I find that it is unnecessary in this modern day and age. In fact, a while ago, during Question Time, the Attorney-General was being harassed with questions about customary marriages. In the proposed amendments to the Marriage Act, what would you make of this kind of legal clause in our laws today? It states:- \"Any person who wilfully and by fraud causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have such sexual intercourse with him in that belief, is guilty of a felony and is liable to imprisonment for 10 years.\" You can see that even Mr. Munyao is very scared and surprised that we still have this kind of law in our books. I have already discussed with the Attorney-General that because we are amending the Penal Code, it is important that we can also progressively amend some of those obnoxious provisions like this ones because it presupposes that women are of---"
}