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"id": 222978,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/222978/?format=api",
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"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": " Thank you, Mr. Temporary Deputy Speaker, Sir, for giving me this opportunity to make a quick and brief contribution to this Bill. This Bill seeks to replace an already existing law. It is comprehensive and covers many aspects of employment that will contribute to better and easier relations between employers and employees. I would like to start by pointing out a structural difficulty in this Bill. As a lawyer who sometimes practises at the law courts when I am not an Assistant Minister, the clauses which eventually will be sections once the Bill is passed are too long and will become difficult for legal practitioners to cite if there is a dispute. Mr. Temporary Deputy Speaker, Sir, you note that labour issues are very litigious. There is constant litigation relating to labour matters. I want to urge the support staff of the Ministry, which happens to include one of my former classmates, to support the Minister. They need to re-look at this numbering of the clauses so that when they are actually passed, they are easy to make reference to, easy to cite and use as authority and also easy to place before a court of law. I am seeing that some clauses are running to two pages. This is not how laws are framed anywhere. I hope that this will be done. I had also picked out a point that Mr. Khaniri had mentioned. It is describing HIV/AIDS as a disability. This is ridiculous because HIV/AIDS is not a disability. You all know that with the evolution of science, perhaps, in another two or three years, we will have a cure for HIV/AIDS. If we have it in our statute books as a disability, you can imagine the level of confusion and inconvenience that it is likely to cause to both the employers and employees. In that same definition clause, a disability is also described as a physical illness. I think, we need the Minister, in his reply, to really advise us on what a physical illness is, being a doctor himself. I think every illness is physical. If you have a headache or a toe ache it is physical. So, what does it really mean and how does it amount to a disability? In Clause 2, Page 151, it has placed unnecessary discretion in the Minister. This country has gone through a cycle of abuse of discretion at many levels. I am always wary about any law that gives unfettered discretion to a person in authority. It says:- \"Provided the Minister, if he sees fit so to do---\" 1250 PARLIAMENTARY DEBATES May 9, 2007 This is a blanket cheque. Having regard to the nature of the work involved in any employment, this kind of Clause has no room in modern legislation. Where we have accountability, delegation and corporate governance, you cannot take authority and vest in one hand. You may have a good Minister who might exercise that discretion reasonably but the next day you have a fascist who will use and abuse the discretion to subjugate the rights of others. I have seen many discretionary clauses in the Bill. They should be edited out before we come to the Committee Stage. Mr. Temporary Deputy Speaker, Sir, let me also say that again this is a failure on the part of our Committee that is relevant to this Bill. We would have had the Departmental Committee guiding this House on the Bill. The reason that we created this Departmental Committees is to scrutinise Bills, before we go to the Second Reading and enrich the debate and bring informed opinion on the Floor. We even gave them authority to hire experts to look at Bills for them. You notice that since we started debating this Bill yesterday, not a single Member of the relevant Departmental Committee has spoken on this Bill. This is not right. This is failing Parliament, Kenyans and all of us. Parliament gives money to Committees to work and they have to do their work. We do not want to visit legislation on Kenyans that creates problems tomorrow. Mr. Temporary Deputy Speaker, Sir, I also want to touch on Clause 6. The one that Mr. Khaniri talked about. This is a sub-clause that is outright unconstitutional and it will be challenged the very day we pass this law. There is no way, under any circumstances, you can shift the burden of proof. Everybody who asserts must prove. That is what the Constitution says. So, you cannot say that in proceedings where a contravention of this Section is alleged, the employer shall bare the burden of proving that the discrimination did not take place. If an employee goes to court and says that he or she was discriminated against, it is his or her duty to prove that he or she was discriminated against. You cannot say that the employer should turn around to say that he did not discriminate. That is not what our Constitution says. Therefore, that Clause is outright unconstitutional. It should also be plucked out of this Bill. Mr. Temporary Deputy Speaker, Sir, Clause 10 gives the need to give and keep employment particulars. But if you look at the Bill, Clause 10 runs for three pages. No law is friendly like this. Good as it may be, you cannot have one section of the law running for three pages in a statute. It becomes very difficult to apply and to litigate against. I would like to urge the Minister and his team to go through the Bill and reduce the length of clauses that are appearing in the Bill. Clause 12 deals with disciplinary rules. I think it is good that we keep high levels of discipline in employment. That is a Clause that I would fully support. I want to look at the following Clauses and suggest that the Minister looks at them. Regarding Clause 46; Reasons for Termination. Those reasons given are good in a way but they need to be improved because where a person is dismissed, take for example, Clause 46(g):- \"---an employee's, race, colour, tribe, sex, religion, political opinion or affiliation and so on.\" We have had many cases in this country where people are dismissed due to their affiliations. It is good that we have a law like this. But, again, this law should not be applied in a draconian way. For example, if my party FORD(K), is an employer and one of our employees turns up and says that he belongs to ODM, we cannot keep him in employment. If an ODM employee walks to the office with a FORD(K) symbol, you cannot keep him or her in place, because he or she, by the very nature of employment, is supposed to champion the interests of the employer. That is a special category of employment. So, you cannot say that we cannot dismiss an employee because of an affiliation. You need a qualification on that. I am sure my colleagues agree with that. If you subscribe to the Hummer then you must remain the Hummer. If you subscribe to the simba, you must remain a simba . You cannot be forced out of employment because of--- May 9, 2007 PARLIAMENTARY DEBATES 1251"
}