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"id": 63906,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/63906/?format=api",
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"content": "Hon. Members, on Tuesday, 15th January, 2011, in compliance with my directives given on 10th February, 2011 extending the time allowed to complete work and table a report, the Member for Nambale, Mr. Okemo, the Chairman of the Departmental Committee on Finance, Planning and Trade laid on the Table of the House the Report of the Committee on Nomination to the Office of Controller of Budget. The Report of the Departmental Committee on Justice and Legal Affairs which was also expected to be laid on the Table was not laid and the Speaker, at the request of the Chairman of that Committee, the Member for Budalangâi, Mr. Namwamba, gave authority for extension of time to the Committee to table their Report not later than 12.30 p.m. on Wednesday, 16th February, 2011. The Departmental Committee on Justice and Legal Affairs did not meet this deadline. However, yesterday, at about 3.30 p.m. the Chairman of the Committee, Mr. Namwamba, accompanied by about five other Members of the Committee presented the Report of the Committee to me in my chambers and the Report has since been laid on the Table of the House earlier this afternoon. Subsequent to the laying of the Report of the Departmental Committee on Finance, Planning and Trade by its Chairman, when the Order âNotices of Motionâ was read, I explained that by standard procedure, it would have been expected that Mr. Okemo would give Notice of Motion for the adoption by the House of the Report he had just tabled at that point. I, however, informed the House that I had received the proposed Motion only that afternoon and that I needed to acquaint myself with its substance and will speak to the proposed Motion on Thursday, 17th February, 2011 at 2.30 p.m. As all hon. Members are aware, in terms of Standing Order No.47, the Notice of Motion for the adoption of the report of the Committee cannot be given and the Motion cannot be moved unless the Speaker has approved. For the avoidance of doubt, the text of the Motion proposed to be moved by Mr. Okemo reads as follows: âTHAT, this House adopts the Report of the Departmental Committee on Finance, Planning and Trade on the nomination to the Office of Controller of Budget laid on the table of the House today, Tuesday, 15th February, 2011.â By this Ruling today, I will give directions whether in terms of Standing Order No.47, I approve or do not approve the giving of notice and the moving of the proposed Motion by Mr. Okemo. As I had indicated earlier this afternoon, my ruling on the admissibility of the proposed Motion of the Committee on Finance, Planning and Trade will apply equally to that of the Committee on Justice and Legal Affairs. In order to make this Ruling, it is necessary that I commence with some background and context. Hon. Members, you will recall that on Thursday, 3rd February, 2011, I ruled on a point of order raised by the Member for Imenti Central, Mr. Imanyara and canvassed by a number of other hon. Members. Mr. Imanyara had sought to invoke Standing Order No.47 to urge the Speaker to find that the nomination process of the Chief Justice, the Attorney-General, the Director of Public Prosecutions and the Controller of Budget had been undertaken contrary to the Constitution and that it was, therefore, not admissible before this House or any of its organs and could not properly be considered by either the House or any of its Committees. Mr. Imanyara relied for his claims on statements which he tabled, attributed to the Judicial Service Commission (JSC) and the Commission for the Implementation of the Constitution (CIC) both of them taking the position that the nominations forwarded through the National Assembly by the Office of the President were arrived at by a process that contravened the Constitution. Additionally, Mr. Imanyara stated that the process was unconstitutional because he claimed to be aware that the Right Hon. Prime Minister, who under the Constitution is to be consulted prior to the nominations, had written to the Speaker disassociating himself from the said nominations process. Hon. Members, you will recall that I indicated that the issues raised by Mr. Imanyara and other Members required the determination both of matters of law as well as matters of fact and I asserted that as Mr. Speaker I did not feel that the points of order raised and the forum at which they were raised afforded me adequate opportunity to make a summary determination, either that the Constitution was contravened or that it was complied with. I expressed the view that the importance of questions posed and the critical ramifications that they have to the overall implementation of the new Constitution were such that a more collegiate and participatory process was required and that in the context of the National Assembly, the forum for a full hearing entailing adducing and rebuttal of evidence, examination and cross-examination of witnesses is the Committee of the House. I stated that the role of a committee in the vetting process was to consider all aspects of the proposed nominations, including compliance with the Constitution and all relevant enabling and incidental laws. Hon. Members will recall that from the presentations of Mr. Imanyara as well as the submissions of other hon. Members, I filtered ten issues as having arisen and calling for determination. Of the ten issues, I disposed of two; namely, issue number one on the question whether or not the Speaker was competent to make a determination on the constitutionality of the nomination process as sought by Mr. Imanyara and issue number ten on the question whether or not the propriety of the nominations could be resolved by a vote in this House to approve or disapprove the nominees. On the former issue, I ruled that it is within the competence of the Speaker to determine the constitutionality of a matter before the House while, on the later, I ruled in the negative finding that the matter in which the question is whether nominations were arrived at through a constitutional process could not be resolved by a vote of the House. On that occasion, I found that it was not necessary for me, at that time, to rule on the following remaining eight issues (Note that I have retained the original numbering ofthe issues as appeared in my previous Ruling for ease of reference) 2. Is Parliament properly seized of the matter of the nominations? 3. What is the status, import and weight to be attached to the opinion of the Commission on the Implementation of the Constitution on a matter such as this? 4. Do the provisions of the Constitution require the involvement of the Judicial Service Commission in the nomination process (of the Chief Justice) and going hand in hand, if the Constitution detects that the process be participatory, competitive and transparent? 5. Were there consultations between the President and the Prime Minister as contemplated by Section 29(2) of the Sixth Schedule to the Constitution? Tied to this point, are a number of other questions including what the minimum threshold of consultation should be and if consultation denotes concurrence, consensus or other measure of agreement. Additionally, there is the further point of what was intended by the drafters of the Constitution in providing for consultations as they did. 6. What is the import of making the consultations subject to the National Accord and Reconciliation Act? 7. Is a serving member of the Judiciary constitutionally eligible to be nominated and appointed as Chief Justice? 8. Do the nominations meet the constitutional requirements of regional balance and gender parity? 9. Do the questions raised on the nominations of office-holders amount to a dispute within the meaning of the Political Parties Act? Hon. Members, in referring the matter of the nominations as well as the letters received both from the President and the Prime Minister to the respective committees to consider and report on or before 10th February, 2011, the crux of my Ruling was, firstly, that I could not determine that a Motion or proposed Motion was unconstitutional when there was no Motion or proposed Motion before the House. Secondly, that I did not have the information necessary to enable me make such a determination even if there had been a Motion or proposed Motion. Hon. Members, between the time when Mr. Imanyara first raised the matter and now, I have had the benefit of considering a range of material addressing the various aspects of the matter. Specifically, I have benefited from among others, the position given by the Judicial Service Commission, the Commission on Implementation of the Constitution and the Law Society of Kenya. I have also carefully read and considered the ruling of the High Court relating to the matter of nominations which was delivered on 3rd February, 2011. The first three of these bodies are constitutional or statutory and their views on matters of the law, though not binding on this House, are of significant, persuasive value. Hon. Members, as for the ruling of the High Court, despite my re-statement of the constitutional relationship between the Legislature and the Judiciary, I have repeatedly emphasized that subsisting judicial decisions, while they cannot restrain the Legislature from the discharge of its functions, are of binding effect and may have a bearing on the products emanating from this House. The learned hon. Justice Musinga in his ruling in the above case, found that nomination of the Chief Justice was unconstitutional for it was not according with Article 166 of the Constitution as read with Section 24(2) of the Sixth Schedule to the Constitution. He stated as follows:- âOn the basis of the concession made by the Attorney-General, who is the respondent in this petition, it must be accepted that the said nomination did not comply with the constitutional requirements of Article 166(1) (a) as read together with Section 24(2) of Schedule Six of the Constitution. To that extent, the petitioners have proved that the nomination was unconstitutional.â Hon. Members, the learned Judge further found that Article 27(3) of the Constitution was violated regarding equal treatment of men and women. He, therefore, concluded that:-"
}