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"id": 240414,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/240414/?format=api",
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"type": "speech",
"speaker_name": "Ms. Karua",
"speaker_title": "The Minister for Justice and Constitutional Affairs",
"speaker": {
"id": 166,
"legal_name": "Martha Wangari Karua",
"slug": "martha-karua"
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"content": " Thank you, Mr. Deputy Speaker, Sir. Like I have said, the Bill is now the property of this House. It is, therefore, our duty as hon. Members to scrutinise it, make additions; subtractions where we think it is necessary and turn it into law. I have been looking at the various contributions of hon. Members and I want to say that we, on the Government side, will be willing to look at the amendments, especially those proposed by the Departmental Committee on Administration of Justice and Legal Affairs, which I said most of them were really very well-thought-out. We are also prepared to discuss the ones that we feel need re-thinking and any other proposals that hon. Members may bring. I have in, particular, looked at the contributions made by one hon. Member; Mr. M. Kilonzo, where he lamented about the new rules made by the Chief Justice in January, 2006, which repealed the Chunga Rules which were allowing an automatic stay whenever someone made a constitutional reference. I am not able to understand how anybody who believes that justice delayed is justice denied would complain about the new rules. The new rules do not stop Kenyans from ventilating where they think their constitutional rights are being stepped on. What the new rules introduced is a time-line so that you do not stop the hearing of an economic crime case against yourself and then go to sleep and cause internal paralysis. It introduces a time-line so that within 45 days of filing, you must be getting to the hearing of that suit. If, indeed, your rights have been violated, then the court will be able to protect you. If the application was merely meant to obstruct, then the case must proceed. Mr. Deputy Speaker, Sir, I am, therefore, persuading hon. Members that we accept the amendments that are being sought in this Bill with regard to stay. However, perhaps, we could modify and agree that it is the court that has the right to grant or deny stay so that after hearing an 2438 PARLIAMENTARY DEBATES July 27, 2006 applicant, the court then is at liberty to give orders and the applicant, upon filing, must follow the rules as set out by the Chief Justice. Nobody has a right to cause permanent paralysis to a case. If you are innocent, proof it before a court of law. If your rights have been violated, agitate before the court and get a decision. However, you should not hide behind a constitutional application when all you mean is to delay the hearing of a case. There was also the complaint that the rules are retro-active. I would like to explain a little bit. The rules are not retro-active in the proper sense of the word. All that the rules state is that any party aggrieved by a stay granted under the old rules may re-apply for a review of the grant. Therefore, both parties will have a right to a hearing. Thereafter, the courts will be able to adjudicate on their rights. Mr. Deputy Speaker, Sir, there were also the complaints about amendments to the Anti- Corruption and Economic Crimes Act. The Main complaint from the Shadow Attorney-General was about the sacking of an officer by the name of Mr. Were. I would just like to remind my learned friend, and other hon. Members, that the right to hire and fire is recognised by law, just as the right to be hired and to resign is recognised by law. In the course of being hired and fired, should anybody feel that their rights have been violated, then they have an option to go to court and ventilate. It is not right for hon. Members to confuse the public by talking as though an employer has no right to hire and fire. That is a right properly recognised by employment laws. I do not see, therefore, any connection between the hiring and firing of Mr. Were and the debate before this House. I would also like to note that there was the suggestion that instead of the amendments proposed, we should review the entire Anti-Corruption and Economic Crimes Act. The Statute Law (Miscellaneous Amendments) Bill, which in most cases is an annual event, which provides an avenue for quick amendments to various statutes to keep abreast with trends. It is not reasonable to suggest that Parliament should wait to amend statutes by other statutes when they are minor amendments that can be effected omnibus. It is our chance to look at these amendments and decide whether they should pass as they are, or whether we should have another look at them. It is true that certain issues that have been raised in the Statute Law (Miscellaneous Amendments) Bill have also brought problems to the parent Ministry. I am referring to the Ministry of Health, which has written complaining about proposed amendments to Section 58 and Section 80 and Section 90, which would make it impossible for Kenyans to access reasonably priced anti-retroviral drugs. I want to say that, as a Government, we are totally agreeable to having these proposed amendments deleted. The Ministry of Health has disowned these amendments. They are not in line with the move by this House to make anti-retroviral drugs affordable to Kenyans. Therefore, we will, at the Committee Stage, introduce amendments to ensure that we do not pass any law that will jeopardise the health of Kenyans, or that will affect accessibility to drugs by the needy. Mr. Deputy Speaker, Sir, I have heard some hon. Members suggest that we should have judges per district. I do not think that, that suggestion would be very helpful. We should be looking at the case load in an area before suggesting an increase in courts. It is not only the number of judges that will affect the speed at which we dispose of cases, but both numbers and actual management of courts by judicial officers. I would like to urge hon. Members to note that we require a multi-pronged approach to the problem of backlog in cases. We also need our lawyers to play their part in the reduction of backlogs. We need to encourage both litigants and their lawyers to stop delaying cases by asking for unnecessary adjournments. We need to encourage judges and magistrates to take full charge of their courts, and not to allow adjournments of cases on flimsy grounds. In this way, we shall overcome the issue of case backlogs. The suggested hiring of additional judges by these amendments will also be of help. I would like to remind hon. Members that an increase in the number of judges will mean more cost to the Exchequer. We should note that any additional officer is an extra cost to the July 27, 2006 PARLIAMENTARY DEBATES 2439 Exchequer. Since Kenya has many needs and not just the need for judges, we will have to balance allocation of resources. We should ask ourselves: How do we allocate the available resources? How do we balance between the needs for health services, infrastructure and the need for access to justice? Let us realise that we are the managers of this country, as national leaders. Let us sit down and deliberate on how to balance its needs before we suggest increment of judges beyond what is being proposed by these amendments. Mr. Deputy Speaker, Sir, I have seen the proposed amendments by this Committee to the Advocates Act. I agree with the amendments proposed by the Committee on Justice and Legal Affairs, that an officer in a public body, private corporation or local authority, who has been exempted, should not charge professional fees for acting. That is completely agreeable. However, for those who have been suggesting that Members of Parliament should be exempted from undergoing continuing legal education, this suggestion is not tenable. Why should professionals, who are in Parliament, be exempted from continuing education in their professional line, whether they are lawyers or engineers? I have never heard in any country of professionals seeking refuge of the law from further knowledge. Lets us agree to be at par with our colleagues, who are not in the House, when we wear the professional feather. If the professional society has suggested that there is need for continuing legal education, let those of us in Parliament, who are lawyers, submit ourselves to continuing legal education, otherwise we risk becoming irrelevant by protecting ourselves, with legal amendments from the favour of further knowledge. I want to persuade the worthy Members of the Justice and Legal Affairs Committee that this proposal ought to be abandoned when it comes to the Committee Stage. Mr. Deputy Speaker, Sir, there is also the issue of State Corporations Act. I agree that we need to have another look at the issue of exemptions, and decide whether we need to completely exempt them or we need to balance the private sector interest in our State Corporations vis-a-vis the public interest. We will be seeking out our colleagues in this Committee, and in the House generally, so that we may agree on the best way forward when this Bill comes to the Committee Stage. I do not want to go amendment by amendment. However, I wish to note that on the Anti- Corruption and Economic Crimes Act, the Committee proposes an amendment which will make it mandatory for the President to approve names that Parliament passes on to him. This amendment is totally unconstitutional. You will recall that the Constitution vests executive authority in the presidency. When the President is by law mandated to appoint, he is not doing it ceremoniously. He is taking up his role as the person in whom executive authority is vested to finally accede to the suitability of a person. The Chief Executive must, therefore, be able to have a say on the suitability, or otherwise, of a candidate to be appointed to a position. I want to persuade my colleagues in this Committee, and the House at large, to appreciate that there is no need of putting in a futile amendment which a constitutional court can easily strike out. You cannot take away from an Act of Parliament what has been given by the Constitution. This is the same view that I bear of the amendments relating to stay. We cannot say no to stay; we can only let the courts to decide. I want to persuade my colleagues that we look at this issue so that we see how we can balance and have amendments that serve the country and not sectional interests. Mr. Deputy Speaker, Sir, I am aware that the Anti-Corruption Advisory Board looks at the applicants and passes their names to Parliament which finally passes them on to the President. The Board, Parliament and the President have a role to play. Let us not try to impose or short-circuit the responsibility of any of these three stages. Let us allow the Board, Parliament and the President to do their work. These amendments are not for the sitting President, rather they are for posterity and any President in this country will have to abide by, be it today tomorrow and any other day, until the law is repealed. I, therefore, suggest that this amendment be abandoned. Hon. Members will remember that recently, when I was answering a Question relating to the Kenya Anti-Corruption Commission, I lamented that there is absolutely no connection between 2440 PARLIAMENTARY DEBATES July 27, 2006 the Advisory Board and my Ministry, and yet the Ministry is made to answer for it in Parliament. They report directly to a Parliamentary Committee. If the Executive is to answer any Questions on behalf of anybody, it is our submission that we need to give the Executive a window to interact with that organisation. I am proposing here that we need to make the Permanent"
}