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{
    "id": 417688,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/417688/?format=api",
    "text_counter": 270,
    "type": "speech",
    "speaker_name": "Hon. Kaluma",
    "speaker_title": "",
    "speaker": {
        "id": 1565,
        "legal_name": "George Peter Opondo Kaluma",
        "slug": "george-peter-opondo-kaluma"
    },
    "content": "Hon. Speaker, what we are seeing is what a good professor and a person we respected very early in the legal profession called Professor H.W. Okoth Ogendo said before he died that: “The African continent is a beautiful continent with beautiful constitutions but without constitutionalism.” I said I am sad because the very body which should be leading the other organs of the Government in upholding constitutionalism is the very body that seems to be ignoring this. It appears, and I have been watching debates in the media and everywhere, that people appear to confuse the rule of law with the rule of court orders. It amazes me when you hear even senior advocates talking during television shows, and saying that the rule of law today means the rule of court orders and the rule of law today means you wait for every judge somewhere to decide what that rule of law would be, if it is the rule of court orders. Hon. Speaker, I need to confirm that we are in a rule of law country. The law has not changed. Hon. Members, we were taught the rule of law and I taught at a university before I came to this House; we practised it in the courts. It means three things but the most fundamental one is the supremacy of the law and the Constitution being number one, and equality of all, including State organs before the law. So, a judge should not sit somewhere and begin imagining that you can make an order which is unconstitutional and which is contrary to Article 159, setting out the principles within which a court process should be undertaken, and you imagine it should be obeyed. Hon. Speaker, I wanted to give the answer to what the Chair was asking. I mean what do we do about this order? I remember when the Senate went to court seeking advisory opinion on these clear provisions of the Constitution, I was asking: What are they doing? The Judiciary now knows that the Senate cannot read the Constitution and interpret it on their own. The Judiciary is today stopping the Senate from doing what they should do and we regretted it. Hon. Speaker, the answer is in Article 2(4) of the Constitution. What do we do with a court order which, on the face of it, and without much thinking or genius of interpretation, is unconstitutional? The Constitution answers it and what it says at Article 2(4) is this hon. Members: “Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.” Hon. Speaker, that act includes a judicial officer purporting to make an order that is inconsistent with the Constitution. So, essentially we are saying that when an act, be it the act of making a purported court order or a court decision flies in the face of the Constitution, it is a nullity at law. It is null and void and in public law we know when a matter is null and void, it has no legal effect. It is as good as it does not exist. So, we urge the hon. Speaker that really the time has come. People are crying that: “What do we do as National Assembly? What do we do as Parliament in this situation?” You know, I look at our public law courts and I mourn the departure of Justice Nyamu from the Public Law Division. He is a judge who built the administrative law of this country from scratch to everything you would love to read. I mourn the departure of Justice Ringera from the Judiciary. Whatever was the situation, you knew those great jurists would not sit to make such orders. They knew the doctrine of separation of The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor."
}