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"content": "The Senate Majority Leader has been accused of jumping the gun. If you look at Standing Order No.92, it does not only deal with issues of sub judice, but also deals with matters which are by their very nature, secret. If we are to follow the logic of my learned friend, then we would allow even the secret matters to be discussed first so that we cannot jump the gun. The Senate Minority Leader as a lawyer knows very well that in any proceeding you can raise issues of competence of the proceedings before they start and I think that is what the Senate Majority Leader has done. It would not be permissible for any Senator to raise matters which cannot be raised on the basis that those issues should be canvassed later during the hearing of a Motion. It is that spirit that the Senate Majority Leader raised this issue. He raised the issue on the basis that the matter which we have been called from our holidays to come and discuss cannot in fact be discussed in this session. I am very sorry that the Senate Minority Leader has caused us all this trouble to come and discuss a matter which should not be discussed. Secondly, he referred to Standing Order No.1 as a basis for introducing authorities and, indeed, the authorities he has cited like Erskine May are very powerful authorities as far as parliamentary proceedings, the law and its interpretation, are concerned. If you look at Standing Order No.1, it is very clear that it can only be invoked in cases where matters are not expressly provided for by the Standing Orders. It also says that decisions made in paragraph one shall be based on the Constitution of Kenya, the Statute Law, the usages, forms, precedents, customs, procedures and traditions of the Parliament of Kenya and other jurisdictions to the extent that they are applicable to Kenya. The hierarchy is very clear; you start with the Constitution of Kenya, then the Statute Law. If the matters are not provided for either in the Constitution or the Statute Law, then you can go to usages, forms, precedents, customs and so on. Therefore, the matters the Senate Minority Leader referred to fall under category three. In our case here, the matters are expressly provided for in Standing Order No.92(1). It states:- “Subject to paragraph (5), no Senator shall refer to any particular matter which is sub judice or which, by the operation of any written law, is secret” It is quite obvious that the Minority Leader is referring to the Security Laws (Amendment) Act, No.39 of 2014, which is in court and it is his own party which has taken this matter to court so he cannot say he is not aware. So, he is referring to a matter which is active in court and the ruling is coming on Friday. As I am talking now, the judge is doing his research and listening to what the lawyers said. Therefore, any debate in this Senate today might form part of the research that the judge will consider. We do not know what the judge is looking at and what we are saying here is going to be covered in the media tomorrow. The judge could be watching the national television as we are talking and you cannot prevent him from doing so. That means that he could be influenced by what we are saying in these proceedings today. Mr. Speaker, Sir, finally, we attended a very important conference with the leadership of the Judiciary and what came out is that we need to respect each other’s territory. If a matter has started in the Senate, then the Judiciary should wait for the Senate to conclude and consider whether the matter is constitutional or not. Similarly, if The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate"
}