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"content": "Hon. Olago Aluoch further argued that Clause 14 as passed by the Committee by not providing for a period of notice before a person can be said to have left one political party and joined another was in conflict with Article 85(a) of the Constitution which provides that a person is eligible to stand for election as an independent candidate only if the person is not a member of a registered political party and has not been a member of such a party for at least three months immediately before the date of election. In his view, Clause 14 as passed by the Committee of the whole House allowed and legitimized party hopping. He urged the Chair, pursuant to Standing Order No.47 (3) (b) and Standing Order No.125 (2), to make a determination of the constitutionality or otherwise of the two clauses. Several Members contributed to this matter, a number of whom supported the view taken by hon. Olago Aluoch. Some of the contributions made touched on the procedure to be followed where a question of unconstitutionality arises in a Committee of the whole House. In the contributions, Members referred to various provisions of the Standing Orders including the Standing Orders No.47 (3) (b), 119, 125(2), 136 and 137. In the end, the Chair of the Committee of the whole House deferred further transaction of business on the Political Parties Bill, 2011, and undertook that directions will be given today, Tuesday, 23rd August, 2011. Hon. Members, two questions require the determination of the Chair: (a) What is the governing procedure in the Committee of the whole House where a question is raised as to the constitutionality or otherwise of a matter? (b) Whether Clauses 10 and 14 of the Political Parties Bill, 2011, as passed by the Committee of the whole House are unconstitutional and what then, is the way forward. Hon. Members, on the first matter, I think two aspects arise. The first relates to the procedure when an objection is taken in the House in plenary that any proposed Motion is unconstitutional. It is well set out in our procedure and it is expressly provided for under the Standing Order No.47(3) that in such a situation, the Speaker may direct either that the Motion is inadmissible or that notice of it cannot be given without such alteration as the Speaker may approve. The second aspect is somewhat different. It relates to a situation where like in the present case, the objection on grounds of unconstitutionality is raised in respect of proceedings in Committee of the whole House and further in respect of a decision that has already been made by the House in Committee. Is it open for the Speaker to rule on such an objection at that point and effectively override that decision? My reading of Article 2(1), Article 3 and Article 259 of the Constitution will incline me to answer this question in the affirmative. Firstly, it is noteworthy that the term “proposed Motion”, as used in the Standing Order No.47 (3) extends to amendments proposed to a Bill in the Committee of the whole House. Secondly, if the supremacy of the Constitution is to be upheld as binding all persons and all organs of the Government and further if we are to remain true to the obligation on every person to respect, uphold and defend the Constitution, then it will follow that so long as any matter is still within the domain of the House and so long as the Speaker or the person presiding becomes aware of any unconstitutional action by the House, it is the duty of the Speaker or that other person at any time to make that declaration. Pursuant to the Standing Order No.141, I think it is important to emphasize that such a matter can, if raised in the Committee of the whole House, be dealt with by the Chair of the Committee. On the question of whether Clauses 10 and 14 of The Political Parties Bill, 2011, as passed by the Committee of the whole House are unconstitutional, I have benefited from the contributions of Members on this matter and carefully studied the HANSARD record and the relevant constitutional provisions. Article 108 of the Constitution makes provision for the positions of party leaders, namely, the Leader of the Majority Party and that of the Minority Party. The article details how ascension to those offices is to be determined and the order of precedence of these offices vis-a- vis other offices of Parliament. Article 108 has no provisions that can be said to disallow parties from coming together in a coalition at any time. I have also looked at Article 85(a) that was cited. The article relates to the eligibility of persons to stand for election as independent candidates. It provides that a person is ineligible to stand as an independent candidate for any election if the person is a member of a registered political party or has been a member of a registered political party within the three months immediately preceding the date of that election. This article only addresses itself to persons wishing to contest elections as independent candidates, and has no relevance either to the period of notice required of a person to move from one party to another, or to when a coalition of parties may be formed. I recognise that it can be argued that the Constitution should have gone further and made provisions similar to those at Article 85, Paragraph (a), in respect of a member wishing to leave one party and contest an election under the banner of another party. However, for better or for worse, the Constitution did not do this. Distinction needs to be drawn between provisions which are unconstitutional and those which a Member may find objectionable in his or her view, or unprogressive. In the former case, the Speaker may properly be called upon to intervene and disallow the provisions or proposed amendments. In the latter case, the only recourse for the Member is to make counter-arguments and carry the House along to a different point of view when a vote is called. Therefore, in answer to the point of order raised by hon. Olago Aluoch, I do not find that Clauses 10 and 14 of the Bill, as passed by the Committee of the whole House, contravene the Constitution. Although in making amendments to Clauses 10 and 14 of the Bill the Committee of the whole House significantly departed from the policy framework and theoretical underpinnings of the framers of the original Bill and the position taken by the Constitutional Implementation Oversight Committee, as recorded in the amendments that it sought to introduce at the Committee Stage, that is an altogether different matter from a position that the amendments passed by the Committee of the whole House contravene the provisions of the Constitution. Hon. Members, as to the way forward, I direct that the House shall continue in Committee of the whole House on the Political Parties Bill, 2011. The Committee of the whole House has yet to discharge its mandate as envisaged and provided for under Standing Orders 116, 117 and 118, all read severally and all read together. The Committee of the whole House will, therefore, proceed to conclusion. Needless to say, if a Member remains dissatisfied with the decisions of the Committee of the whole House, the Constitution and the Standing Orders avail adequate recourse for the Member, in terms of Standing Order No.119. I want to urge all Members to look at Standing Order No.119 and see what other recourse they have. Thank you."
}