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{
"id": 207078,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/207078/?format=api",
"text_counter": 223,
"type": "speech",
"speaker_name": "Mr. Wetangula",
"speaker_title": "The Assistant Minister for Foreign Affairs",
"speaker": {
"id": 210,
"legal_name": "Moses Masika Wetangula",
"slug": "moses-wetangula"
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"content": "I do not believe so, because I know him very well. I have known him since I was in high school. I cannot believe that the Attorney-General is bestowing authority and power to the Commission to place assets and properties of people under receivership, without due process. This is unacceptable. They can put peoples' properties under receivership, but let them go to court and secure court orders. Every Kenyan has the right of access to courts of law, protection of the court and organs of administration of justice, including fight for corruption must also operate within the expectations of the law. If you look at page 1349, further down, Paragraph 5 says as follows:- \"An application for stay of proceedings in a prosecution involving corruption or an economic crime shall not be entertained at any time during the hearing of the case\". Mr. Temporary Deputy Speaker, Sir, this, again, is not legally tenable, because if a person alleges a violation of his fundamental and constitutional rights, courts will, invariably, want to hear the allegation and determine it, as is provided in the Constitution. Section 84 of the Constitution of Kenya provides that any one who even fears that his rights or her rights are about to be breached can walk into court and demand protection. If we are saying that even as you cry foul that your rights are being breached, a case against you will go on regardless of your cry, that is not good law. So, I support what I have seen from the Muite Committee's Report that, that Clause be deleted. One of our law professors at the university, who is none other than Justice Ringera himself, used to tell us that the test of a good law is, if you imagine that law in the hands of your worst enemy and you feel safe, then it is a good law. I want to urge the Attorney-General to re-consider this proposal, so that the provisions of Section 84 of the Constitution of Kenya, which deals with the protection of people's rights by giving one the right to go to court for protection when a breach is either being occasioned or is eminent, cannot be taken away. Mr. Temporary Deputy Speaker, Sir, I want to look at page 1355. Again, this is dealing with the Commission. It 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--- The appointment of a receiver under Subsection (1) above shall be in writing, signed by the Directorate or Assistant Director. The Commissioner may remove a receiver at any time and appoint a new receiver---\" Mr. Temporary Deputy Speaker, Sir, in this amendment, there is no provision to even protect the person whose property has been placed under receivership and abused. We know the history of receiverships in this country. There is not a single company that has ever been placed under receivership and has survived the plunder and theft by the receiver. To give authority to the Commission to appoint someone to receive your property, and give it further authority to remove that person and appoint another one; give it authority to remove the third receiver and appoint another at will, without any recourse to a court of law, is not right. I think the Attorney-General should re-consider this Clause. We want to support the Commission in its fight against corruption, but it must be done within the provisions of the existing law, particularly the Constitution. 3456 PARLIAMENTARY DEBATES August 23, 2007 Mr. Temporary Deputy Speaker, Sir, Subclause (8) on page 1357 says:- \"For avoidance of doubt, a receiver may be appointed under this Section in respect of any kind of property, whether tangible or intangible, movable or immovable, and including buildings, income, debts, bank deposits, business concerns, stocks and other properties.\" This means that even when it is suspected that the proceeds of corruption involve, maybe, the purchase of a vehicle, they can go and impound properties that even your father bequeathed to you. Is that good law? I think it is not, and we need to address this anomaly. Subclause (10) on the same page 1357 says: \"A person aggrieved by the appointment of a receiver under this Section may request the Commission in writing to set aside the appointment in return for an offer of deposit of some reasonable security or he may apply to the High Court for setting aside or a variation of the appointment on that ground---.\" It should be for the Commission to go to the High Court to seek authority to put property under receivership, and not for the aggrieved party to go to the High Court to remove them. I do not think that was the intention of the Attorney-General in drafting this provision. Mr. Temporary Deputy Speaker, Sir, the very dangerous proposal is on the next page, page 1358, Part (b) which provides that a person whose property has been placed under receivership can go and show that he has in his possession evidence to show that on a balance of probability, he acquired the property otherwise than through crime or civil wrongs. Clearly, this is against the provisions of Section 77 of the Constitution, which provides that every person is presumed innocent until proved guilty, that no suspect is under duty to go and prove that he is innocent. It is those who aver and allege who must prove that the suspect is guilty. So, this proposal is against Section 77 of the Constitution, and I want to urge the Attorney-General to re-consider it. On page 1360 there is the of execution of costs against the Commission, which Mr. Muturi has touched on. Costs follow the event, at any rate, in any proceedings. You cannot say that a person who has gone through a harrowing and embarrassing process in public, and eventually is found innocent cannot have redress against the Commission. In fact, under the law we set up the Commission, we said that the Commission is a body corporate with the capacity and ability to sue and be sued. Did we not say so? Why are we now giving it this exemption? It is not right. This is going to create recklessness and impunity. We should not pass any law that appears to underwrite any possibility of reckless behaviour. I want to urge the Attorney-General to reconsider this Clause. There is another Clause I would want to touch on and sit down, because I can see my friend, Mr. Kajwang', wanting to stand up and speak. I have read through the Report of the Muite Committee. I fully agree with their proposals. Those proposals are founded on good law, I believe. Consultations, having been widely carried out, the Attorney-General should, at the Committee Stage, accede to most of those proposals. Mr. Temporary Deputy Speaker, Sir, other amendments in the Bill are normal. For instance, the amendment seeking the extension of the District Roads Committees funds to the constituencies, rather than leaving them to the districts, and many other provisions, is laudable. However, I want to urge the House that human rights and administration of justice is about expanding rights, and not diminishing rights. So, we should not pass any law which diminishes people's rights. With those few remarks, I beg to support to the extent that I have spoken."
}