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{
    "id": 460862,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/460862/?format=api",
    "text_counter": 254,
    "type": "speech",
    "speaker_name": "Hon. Kaluma",
    "speaker_title": "",
    "speaker": {
        "id": 1565,
        "legal_name": "George Peter Opondo Kaluma",
        "slug": "george-peter-opondo-kaluma"
    },
    "content": "THAT, the Motion be amended by deleting paragraphs six and seven on Page 96 and paragraphs 16 and 17 on Page 98 of the recommendations of the report. Hon. Speaker, paragraphs six and seven were previously amended and what it now states is that the recommendations will be implemented, subject to what is happening in the Court of Appeal. I have done a bit of arbitration and may I confirm to my colleagues that truly, the forum where corruption is being perpetrated in the country is in arbitral processes. Corruption is not a small thing. As I said last time, we are dealing with a public investment which may affect the country in a very big way. My fear is one: We know the limitations in terms of the powers the courts have in dealing with arbitral awards. May I now inform hon. Members that the court has no power to hear appeals against arbitral awards. Courts do not have power to hear review applications. That is why I am happy with the recommendation that we suggest amendments to the Arbitration Act to give judges more flexibility when we have issues like the ones the Committee confirms to us happens. The Court of Appeal may uphold the position of the High Court and, therefore, the award is not set aside, or the Court of Appeal may disagree with the High Court and then the award is set aside. In any event, may I confirm to the Members that the Court of Appeal intervenes against awards only on two main grounds – this is under Section 35 down to Section 37 of the Arbitration Act – where it is proved that the arbitral proceedings were an illegality. On the face of it, you may not prove that. Again, where the arbitral award is contrary to public policy like immorality or corruption of which you have evidence. But you may have difficulties, of course, proving that. Hon. Speaker, my fear is this: We make very good recommendations that the EACC should investigate this matter and take appropriate action. May I confirm that we should not limit that latitude by subjecting whatever happens in terms of recoveries of the monies that we are talking about, to whatever the courts decide. If we left it at the EACC, hon. Members, the EACC can investigate and initiate criminal action. Secondly, whatever the court says, it is upon the investigation that the EACC confirms that there was corruption in this matter; the EACC can institute action for recovery of the monies. We are safer leaving it at the EACC to investigate and institute action than subjecting the process to the Court of Appeal which may uphold the award and then you lose the money. The EACC, however, can recover the money whatever the- -- So, I would urge that we agree in principle that we delete paragraphs six and seven of the recommendations at Page 96. In any event by having it in the manner it is, we are confirming that the matter is in Court of Appeal which is what hon. Wario and others are talking about. At Page 98, I am proposing deletions to paragraphs 16 and 17. For Paragraph 16, I am making a proposal for deletion based on the provisions of Article 160(5) of the Constitution. Of course, all the lawyers in the House and all Members of Parliament know what that provision says: A member of the Judiciary is no longer liable in action or a suit for anything done by them in the discharge of their judicial functions. 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."
}