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"id": 578786,
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"type": "speech",
"speaker_name": "Hon. Kang’ata",
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"legal_name": "Irungu Kang'ata",
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"content": "First, the power of the court to question a decision of Parliament including a law is usually restricted in many other jurisdictions. Hon. Members, I refer this to the practice in the United Kingdom (UK). In the UK, you cannot take Parliament to court to challenge a law that has been made by Parliament. If you go to Israel and France, you will find it is only parliamentarians who can exercise that power. For instance, if I am an MP and there is a certain law that has been passed here, it is only me or any other MP who can go to court to question the legality of a statute. Here in Kenya it is the very opposite. Anyone has the right to go to court to question the constitutionality. We are not intending to challenge or to limit that. I just wanted Members to understand that, indeed, Kenya is somehow special in the international jurisprudence on this issue. The reason why other states circumvent that issue is for obvious reasons. Parliamentarians happen to be people who are doing their work after directly being elected by the people of Kenya. We are here out of the fact that we were all elected by people. Actually, were it not for the space and the issue of resources, every Kenyan is supposed to be here. Therefore, in other countries, that right is usually very whittled down. In Kenya we have opened it, which is good and we support that idea because it is in the Constitution. However, courts have now gone overboard. You have a situation where even when a matter is still under discussion by Parliament, injunctions have been issued. Even in circumstances where clearly the courts are not supposed to entertain those matters, they have gone overboard. What is the effect of that? The effect of that is that we shall now become second class vis-à-vis the Judiciary. We shall not be able to function as a Parliament. That will be the effect of that going forward. It is a very major assault on the constitutional arrangements of the organs of this country. This is because if, for instance, injunctions are being issued against the Executive and Parliament, then that will mean that power is now repossessed by the Judiciary as opposed to duly elected representatives of the people. That is very dangerous. That will be the effect of that. It is fine that the Judiciary has the legitimacy as per the Constitution but the bottom line is they are not elected. This amendment does not propose that we limit the jurisdiction of the High Court per se . The High Court will still have powers to question our actions but, it will be at the tail end. After we debate and crystallize our decisions in terms having our report to a law, we will have no problem at that point. Any Kenyan is entitled to go and question that issue at the High Court. However, Hon. Deputy Speaker, the issue is about when the matter is still under discussions or under pendency of the Parliament, it is not fair for the court to intervene. I cite the case of Mr. Wambora. We have seen a situation where the matter was being intervened when the county assembly and the Senate was still considering that issue. Someone may say Parliament wants to become selfish. I draw the attention of Members to our Standing Orders. We have explicitly restrained ourselves that we shall not discuss any matter that is before a court of law. It is in our Standing Orders. So, if we, as Legislature, have a rule expressly saying we shall not discuss a matter that is before a court of law that also ought to apply to the Judiciary. That is the whole idea of this Bill. Actually, we are simply telling the court to adopt our practice which is that we do not interfere with our matters when it is before you. In the same rationale when the matter is before us, please, do not interfere. Once we are done with the matter, fine, you have the right to check on the constitutionality of our decision, whether it is a law or whatever it is, but allow us to have what is called “freedom of discussion”. Allow any kind of Bill or discussion to come here but whether we shall agree to it, we will have the liberty to discuss. Otherwise, I foresee a situation 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."
}