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"id": 241617,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/241617/?format=api",
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"type": "speech",
"speaker_name": "Mr. Wako",
"speaker_title": "The Attorney-General",
"speaker": {
"id": 208,
"legal_name": "Sylvester Wakoli Bifwoli",
"slug": "wakoli-bifwoli"
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"content": " Mr. Temporary Deputy Speaker, Sir, I beg to move that the Statute Law (Miscellaneous Amendments) Bill, be now read a Second Time. I will crave the indulgence of the House to refer extensively to my notes in moving this Bill. This is an important Bill which touches on amendments to 30 different Statutes. My office receives proposed amendments from the Ministries which are implementing the various Acts. In the course of implementing the various Acts, they come across some provisions of the law which need amendments for the effective implementation of the Acts. Therefore, as I go through this, it will still be the responsibility of my colleagues, during the Second Reading, to expound on some of the amendments which emanated from their Ministries. I may also say at the outset that on some proposals, I have received a number of interventions and petitions from the public and the civil society, and at times, even from the Ministries themselves, to the effect that their policy has changed and, therefore, they need to amend slightly what they had initially proposed. I must also say that I have received the report of the Parliamentary Committee dealing with this matter, and they have done a commendable job in trying to improve the various July 20, 2006 PARLIAMENTARY DEBATES 2263 proposals put here. But that, of course, will be the subject of debate. Mr. Temporary Deputy Speaker, Sir, I will not go through every of the 30 different statutes to be amended, but I will touch on many as I go along. Some of them, although they appear small, have a lot of implications when implemented. The first amendment is to Section 21 of the National Assembly and Presidential Elections Act. The purpose of the amendment is to remove the word \"serve That section provides that petitions under the Act should be presented and served within 28 days of the publication, in TheKenya Gazette, of the results of an election or a declaration that a Parliamentary seat has become vacant. This particular provision has proved very difficult because some of the successful candidates in any election, whenever they know there is a petition around the corner, go underground or make themselves invisible, and because of the mandatory requirement of 28 days, they then resurface after the 28 days when the petitioner cannot properly file it. So, the purpose of this amendment is to remove that requirement. I am aware that the Parliamentary Committee has proposed that there should be some due diligence on the part of the petitioner that it is only when he fails to get the \"invisible\" respondent that he can apply to the court to serve by substituted service. This means that you are now serving by an advertisement in the local media. In this case, it is presumed that the invisible man knows how to read and write and also tries to read newspapers, and he will be served through that process. The next amendment is the Judicature Act. This is a very important amendment which proposes to increase the number of High Court Judges from the current 50 to 70. It also proposes to increase the number of Judges of the Court of Appeal from 11 to 14. The need to increase the number of Judges is self-evident. At Independence, we only had seven High Court Judges. These have increased from time to time such that in 1997, this august Assembly increased the number of Judges to 50. I may explain here that there was a proposal that we just leave it to the Judiciary to increase the Judges as and when they feel the need to, rather than coming to this House. But the Constitution here is very clear that it is this Assembly which fixes the number of Judges. So, every time we need to increase the number of Judges, we must come to this House. Mr. Temporary Deputy Speaker, Sir, we all know the saying that \"justice delayed is justice denied\" and also the saying that \"the wheels of justice grind slowly but surely.\" If we have to go to the issue of ratio of Judges, currently, we have 50 High Court Judges to a population of approximately 33.8 million, which provides a ratio of one Judge per 676,000. Put it another way. In Kenya today there are approximately two Judges per one million of the population. Compare that with India which has 12 Judges for every one million of the population. Australia has 47 Judges, Britain has 50 Judges, Canada has 75 Judges and USA has 107 Judges per one million. Even in countries such as Malawi, which is closer home, if you take the ratio, you will find that whereas in Kenya today it is one Judge per 676,000, in Malawi it is one Judge per 576,000. This means that a Judge in Kenya serves 100,000 more people than that of Malawi. If this proposal is enacted, the ratio will reduce from 676,000 to 583,280 people. So, we will now be slightly better than Malawi. Mr. Temporary Deputy Speaker, Sir, apart from that, we all know that we have had a backlog of cases. As at the end of 2004, there were 415,179 cases which were pending. That year, 8,258 cases were filed in the High Court, of which 6,258 were determined, leaving 2,000 pending. But this includes the figure which has accumulated over a number of years, of 415. At this rate, there will always be an average of over 2,000 cases which are not determined, which become pending and which add to an already high figure of pending cases. Mr. Temporary Deputy Speaker, Sir, if you take into account the number of cases judges take in a year to clear, you will find there are over 400,000. This will mean it will take them 50 years to clear the cases at the rate they are deciding them. That is why we really urgently require more judges to start reducing the huge pending cases. 2264 PARLIAMENTARY DEBATES July 20, 2006 Mr. Temporary Deputy Speaker, Sir, the other thing that adds to this backlog is that normally immediately after an election, we have petitions which take priority and all other cases are put on the back-bench. In addition, at this point in time, because of the Government's effort to root out corruption within the Judiciary, a number of judges are facing the tribunal and the tribunal consists of very many judges hearing the cases which removes them from hearing the other types of cases. At the same time, you cannot fill those vacancies of those judges whose cases are being heard by the tribunal. Mr. Temporary Deputy Speaker, Sir, as we amend the Statute Law to increase this number of judges, let me inform this august House that the hon. Chief Justice has also taken other steps to reduce the backlog of cases. He has set up an Expeditious Disposal of Cases Committee chaired by a Judge of the Court of Appeal, Mr. R.S.C. Omollo, and which consists of members of the Bench, the Law Society of Kenya (LSK) and a representative from the Office of the Attorney-General. I can also say that the Judiciary Service Commission (JSC) has moved and expanded the registries of the High Court to more upcountry stations. At Independence, we had only three High Court stations in Kenya, namely Nairobi, Kisumu and Mombasa. Now, we have 18 High Court stations but in addition to that, the Judiciary has moved to establish more sub-registries of upcountry stations at Malindi, Embu, Eldoret, Kitale, Busia and Garissa. We also have new court buildings coming up and they are in the course of being constructed at Busia, Nyahururu and Kerugoya. Renovations are going on at the Income Tax building in Nairobi and also at the Central High Court building. Additional courts will be established at Naivasha, Nkubu, Nyeri, Vihiga, Kisumu and Homa-Bay. Mr. Temporary Deputy Speaker, Sir, also as a further effort to reduce this backlog of cases is an effort to hear these cases quickly. As you know, the judges have to take evidence using their own hands and pen which is longhand and that of course unduly makes the whole process very slow. The Judiciary is now poised to experiment with automated recording of proceedings at pilot courts selected all over the country for that purpose. Therefore, as I seek the mandate of this House to increase the number of judges, I want to inform this House that, in fact, we are also taking other measures to reduce the backlog of cases. Mr. Temporary Deputy Speaker, Sir, the next proposed amendments are to the Advocates Act. Section 10 of the Advocates Act specifies the categories of advocates who may practice without a practising certificate and those are officers in the Attorney-General's Chambers, Principal Registrar of Titles, other registrars of titles and also those persons holding office in a local authority. Therefore if you want to authorise somebody to practice without a practising certificate, you really have to come to Parliament to add the name of that body or person. The proposed amendment is to empower the Attorney-General to exempt advocates who are public officers from the provisions of the section where the organisation served by such an officer makes an appropriate application to that effect so that there will be no need for frequent coming to this House for amendments. You can rest assured that the Attorney-General will exercise his powers in this regard properly and judiciously. Mr. Temporary Deputy Speaker, Sir, I am aware that the committee has made other proposals to amend the Advocates Act. For example, it is the Registrar of the High Court who issues annual practising licences to advocates and they would like that to be done by the Registrar, upon confirmation by the Chairman of the LSK that the applicant be given a practising certificate. I really have no objection to this amendment from the committee but we may need to discuss with them on whether it should be the chairman raising no objection or it should be the council of the LSK raising the objection so that it is not just left to one person to determine that \"I do not like the nose of so-and-so and so I am not going to recommend that his annual licence should be renewed\". So, the council, at least, with a few heads together, are more likely to get a more fair and objective July 20, 2006 PARLIAMENTARY DEBATES 2265 way of looking at things. The same proposal applies to applications from persons who have been out of practice as advocates for 12 months or more or whose period of suspension is over and for other reasons specified in the Act. Mr. Temporary Deputy Speaker, Sir, I am aware that the committee has also recommended the requirement that your licence can only be renewed when you have undertaken continuing legal education, which applies to all advocates. The committee is recommending that the advocates who are Members of Parliament should be exempted from that requirement because as Members of Parliament they are actually carrying out legal work of a first class order. In fact, they are making the law and so there is no need for them to go to training courses, seminars and so on just to satisfy the requirement of continuing legal education. That is a recommendation from the committee and I think for the avoidance of doubt, maybe they should add that the Attorney-General does not require continuing legal education."
}