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"speaker_name": "Ms. Karua",
"speaker_title": "The Minister for Justice and Constitutional Affairs",
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"legal_name": "Martha Wangari Karua",
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"content": "Mr. Temporary Deputy Speaker, Sir, under Section 20 of the Act, the KNCHR is told that it can use other agencies for purposes of investigations. This is for the simple reason that those other agencies are more of the nature of a tribunal for gathering evidence and not an investigation agency. If one was to compare the mandate of the KNCHR with that of the KACC under Act No.3 of 2003, the Anti-Corruption and Economic Crimes Act, they would find a world of difference between the functions of the KACC and those of the KNCHR. So, it is my duty as a Minister and a senior lawyer to ask the KNCHR not to make a judgement but to address its mind to the interpretation of its functions. We appreciate that it is new. We also appreciate the work it is doing in raising the bar on public accountability. If we do not encourage it to make more inquires in order to strengthen itself, we will start on a faulty note and end up with a faulty commission. Mr. Temporary Deputy Speaker, Sir, I am discharging my duty to encourage a proper inquiry of its functions, so that it can advise itself to concentrate on its core mandate. You can stretch definitions and take over the role of the Controller and Auditor-General and that of the KACC, while you are supposed to redress issues of human rights relating to individuals. Mr. Temporary Deputy Speaker, Sir, I would want assistance from this House in helping build capacity. This is our national duty, as national leaders. We should build all institutions, including the capacities of Ministries. That is the reason we engage in committees. But, if we think that every time we must engage in an adversarial mode, where you level accusations even with scanty information, then the interaction becomes not so useful, either to ourselves or to the public. Mr. Temporary Deputy Speaker, Sir, turning back to the core question of the report before the House, I want to start by saying, with reservation, that I support the report. I have reservations because of the manner in which the Act has been crafted. We have asked Parliament to perform a task it is ill-equipped to perform. We have asked Parliament to encroach on the role of making appointments, that is normally performed by the Executive. We are asking a Committee of Parliament to become a human resources firm. It may be that in the entire membership, not a single November 2, 2006 PARLIAMENTARY DEBATES 3389 one of them will have qualified in human resources management. We are not even giving them the leeway to hire a management consultant firm to assist them in doing the task. Mr. Temporary Deputy Speaker, Sir, I have mentioned that at an appropriate stage, when I interact with the Committee on Administration of Justice and Legal Affairs, we shall be interacting more on the issue. Parliament is not equipped to do the functions of a human resources firm. Even Ministries of Government, when it reaches a certain level, are obliged to go to the Public Service Commission (PSC), which is the human resources firm of the Government. If we want to be professional, then we should do things professionally. I am, therefore, appealing to this House and to the membership of this Committee to let us engage on this issue, see, while safeguarding the independence of those appointed, what mode of appointment is best to suit, not those of use who are in the Government today, but posterity, so that we may end up with people who are capable of performing their duties. The qualifications of Commissioners and Chairmen are left very thin. This is left for the interpretation of those doing it. If you are, therefore, not equipped in human resources, even in good faith, you are going to under-perform. One cannot be a jack of all trades. Therefore, as a House, we need to re-look at where we have confused the separation of powers, collectively, by passing these laws. We are a party to this report. We are not disowning it, but we are saying with hindsight that we should re-look at it. Mr. Temporary Deputy Speaker, Sir, it would be nice if one were to know, and I am not seeking to know now, especially what extensive investigations a Parliamentary Committee is able to do on the background of each of the persons; whether it employs the services of the rest of the agencies that would be able to help. For instance, when you are appointing judges, if a judge has litigation that would embarrass him in the performance of his duties, it would generally be inappropriate. But is a Committee of Parliament equipped to get into these issues? I am just trying to point out several issues that arise. I was trying to look at the ultimate to see the interaction of the Parliamentary Committee, which is the interviewing agency and that of the President, who makes the appointments after Parliament interviews. Can the President, for instance, return the names if he found that they were not suitable? I am looking at the interplay of two sections here which mandates both the President and Parliament. In nominating or appointing persons as Commissioners, the National Assembly and the President shall have regard to Kenya's ethnic, geographical, cultural, political, social, economical diversity and the principle of gender equity. If both of them are mandated to be mindful of these, then it means that both have a responsibility. I am not proposing that the names will be returned, but I am saying that both the interviewing Committee and His Excellency the President have responsibilities under this Act. I wish to state that the reservations that I have given have nothing to do with particular individuals or reports, but generally speaking, in the way that we have crafted the law. Mr. Temporary Deputy Speaker, Sir, the other thing that I wish to note, and I had talked about it to one or two hon. Members of this Committee, is that we need to think about the principle of rotation. What does it entail even in a coffee factory? We are told that the directors should retire on rotation, for example, half of them should retire within a period of three years and the others within four years. If you re-appoint all of them, there will be no rotation. They will be getting out almost at the same time. Are we equipped to really deal with the matter if we are not going to be able to even observe the principle of rotation? Rotation is for continuity. The directors' terms should not all end at the same time. We should ensure that there is an overlap because of the institutional memory. I am just urging us that when we craft laws, we should not give ourselves, as the House, roles which we are ill-equipped to manage. The role need not go to the Ministry because we must also look at the functions of each 3390 PARLIAMENTARY DEBATES November 2, 2006 department. Even in the Government, it is the Government public relations firm that performs this role. We need to include all these issues. The Report which has been presented to Parliament is mentioning all the Commissioners and their provinces. Is that all there is to geographical diversity? That is food for thought. I am urging us to seriously consider those issues, not for the purposes of this Report, but for us to see whether there are areas that we need to strengthen when the time comes. May I end by once again reiterating my commitment and our commitment as a Ministry to ensuring that we facilitate the operations of this very important body. We will facilitate the body to build its capacity and our capacity as a nation to safeguard and enjoy our human rights. We will also facilitate it to educate the public because information is power, so that we are all aware of our human rights. Finally, we have a collective duty. There are issues where our stand should be totally non- partisan. Whether one is in the Opposition of in the Government, when we go to the nation, issues of human rights transcend all boundaries. We, therefore, must support this Report whole heartedly. However, subject to the few reservations which go to the general nature of the Act and not to this particular Report, I beg to support."
}