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"content": "Mr. Temporary Deputy Speaker, Sir, the Departmental Committee on the Adminstration of Justice and Legal Affairs tabled its Report in this House on 19th June, 2006. Copies have been made available in Room No.8, and I trust that hon. Members have had the opportunity to go through the Report, including the rationale for the various amendments proposed by the Committee. I agree with hon. M. Kilonzo that this is a very important Bill because it is seeking to effect amendments to very many Acts of Parliament. Mr. Temporary Deputy Speaker, Sir, therefore, there is an increased duty of care on the part of the hon. Members to peruse very carefully each proposed amendment, their implications and effects. That is why the Committee made this report available in very good time to enable the hon. Members to do that. If any example is wanted about the importance and the mischief that can be done, one does not need to look any further than go back to 1992 when the National Assembly and Presidential Elections Act required political parties to nominate candidates within a period of not less than 21 days. In other words, political parties were given the responsibility of giving adequate time; not less than 21 days to nominate their candidates and take their names to the Electoral Commission. The Senior Counsel, who is the Attorney-General, sneaked in an amendment that said that political parties must do their nominations within not more than 21 days. This meant that all the Opposition parties were left with no time to complete the nominations. He changed the words \"not less\" to read \"not more\" than 21 days. The effect of this was that political parties were required to nominate their candidates within 21 days. This brought chaos to us. Thanks to hon. Justice Mbaluto who struck out that amendment and described it as a very mischievous amendment and saved the day. We need to go July 20, 2006 PARLIAMENTARY DEBATES 2281 through all these proposed amendments, and I am sure the hon. Members will do that. The Committee consulted with the Law Society of Kenya, the Kenya National Society of Professional Auctioneers, the National Association of Kenya Auctioneers, the Kenya National Commission on Human Rights, the Judicial Service Commission and the Registrar of the High Court. We also received a memorandum. Therefore, when we made our report and our recommendations, we took all those in account. By and large, I concur with the amendments proposed by the Attorney-General, except in some instances; for example, the National Assembly and Presidential Elections Act on service of a petition. There is need to strike a balance between the petitioner and the respondent. As hon. Members know, there has been a problem with personal service, particularly with regard to a sitting President. How does one now wishing to challenge the election of a sitting President go about personally serving a sitting President? That difficulty has been there. However, at the same time, we must not lose sight of the fact that it is necessary for a respondent; somebody who has been elected by the people to know that a petition has been served. Therefore, this issue of wholly substituted service, we think perhaps, the Attorney-General is going a little overboard there. Therefore, we are suggesting that a balance be struck, so that in the first instance, personal service will be necessary. But where it is demonstrated by the petitioner that it is not practical to effect personal service, or the respondent is avoiding service, then substituted service can be effected. This means it can be gazetted in the Kenya Gazette or in both an English and a Kiswahili newspaper which have the widest circulation in the country. That way, one will be able to strike a balance between the interest of the petitioner and the respondent. Mr. Temporary Deputy Speaker, Sir, after going through and analysing the data in terms of judges to the ratio of the population and the work load, and also listening to the Judicial Service Commission, we thought that the more appropriate figure for the High Court Judges is 75 rather than 70, and 15 for the Court of Appeal rather than 14. This does not mean that they must all be appointed. But instead of coming here every two years to effect the amendment, perhaps we should fix the upper limit at 75 so that the Attorney-General does not have to come here in two years' time seeking to amend. Mr. Temporary Deputy Speaker, Sir, the Attorney-General has talked about the Advocates Act and I agree entirely. During the Committee Stage, we shall certainly include the amendment that, for the avoidance of doubt, this particular provision shall apply to the Attorney-General. I think that is a very reasonable provision. Mr. Temporary Deputy Speaker, Sir, I listened very carefully to Senior Counsel hon. M. Kilonzo with regard to confessions. I can see that he is also listening carefully, and being a rational person, I know he can be persuaded through reason. He listens and if he is persuaded, he can change his mind. It is only fools who do not change their minds. There has been a practical problem with the law. First of all, this issue of requiring confessions to be made before magistrates was a result of a lot of pressure from NGOs. Granted, in the past, confessions have been extracted; there is no question about that. But now, after requiring confessions to be made before magistrates, the police and the CID have been going from one magistrate to another, and the reality is that very few magistrates are willing to accept confessions. There is also a principle here. Once a magistrate takes a confession, that magistrate becomes a potential witness in case that confession is contested. So, the Committee deliberated at great length on this. We thought that as long as there is this proviso, that it is the right of the person wishing to make a confession to have a third party, for example, his or her lawyer or a member of the family, then the confession can be made before a police officer of not less than Chief Inspector in the presence of that third party. That will strike a balance, because there is a practical difficulty in getting magistrates to take confessions from even those wishing to make them. 2282 PARLIAMENTARY DEBATES July 20, 2006 Mr. Temporary Deputy Speaker, Sir, you are aware that our driving licences are the way they were since Independence. You know, that hard cover thing with your photograph--- It is out- dated. Tanzania and Uganda have gone electronic and it becomes much more difficult to forge theirs. The suggestion is that we should go electronic so that your driving licence can fit in your wallet. But I am sure the relevant Ministry will be attending to that. On the State Corporations Act, we listened to the arguments of the Attorney-General about encouraging private investments. But we know that there is a loophole here. Where public money is in a public corporation, irrespective of whether that public money is less than 50 per cent or not, the Committee's view is that, that State corporation should continue to be audited by the Controller and Auditor-General in the public interest, in order to protect public money. On the Hire Purchase Act, in fact, the upper limit to bring the goods subject to higher purchase under the Higher Purchase Act, we thought that given the value of money and the cost of goods, the more appropriate figure is Kshs4 million rather than the Kshs2 million provided. That will protect more people who are buying goods on hire purchase. Mr. Temporary Deputy Speaker, Sir, we have recommended that the proposed amendment to the Physical Planners Registration Act be deleted and the rationale is given there. It is hon. Amos Kimunya, when he was the Minister for Lands, who illegally sought to appoint people to an examination board and is now seeking to ratify that particular mistake retrospectively, and we do not think that this House should permit him to do that. Let the Architectural Association of Kenya continue to nominate people as they are permitted under the Act."
}