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{
"id": 63907,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/63907/?format=api",
"text_counter": 526,
"type": "speech",
"speaker_name": "Mr. Speaker",
"speaker_title": "",
"speaker": null,
"content": "âIn view of the violations to the letter and spirit of the Constitution as shown hereinabove, even without considering other relevant provisions of the Constitution like Article 10, which spells out national values and principles of governance, I am satisfied that the petitioners have demonstrated that they have a prima facie case with a likelihood of success.â Justice Musinga, therefore, concluded as follows:-. âConsequently, and in view of the courtâs findings regarding constitutionality of the manner in which the aforesaid nominations were done, I make a declaration that it would be unconstitutional for any State officer or organ of the State to carry on with the process of approval and eventual appointment to the offices of the Chief Justice, Attorney-General, Director of Public Prosecutions and Controller of Budget based on the nominations made by the President on 28th January, 2011.â The quote by Justice Musinga continues to say:- âThat will have to await the hearing of the petition or further orders of this court.â Hon. Members, although I have read that, this court decision does not stop the National Assembly from proceeding with its work and cannot determine for the House how to proceed, it must be noted, as matters currently stand, any decision made by this House on the nominations, though perfectly procedural from the point of view of the Legislature, outside the Legislature, it is to the extent that it does not accord with the ruling of the court, null and void, for all purposes. Note least of all, the Chair has had the benefit of reading the Reports of both the Departmental Committee on, Finance, Planning and Trade and the Departmental Committee on Justice and Legal Affairs. In this respect, I wish to remind the House that the function and rationale of committees is to assist the House to reach an informed decision on matters referred to them. This role is best discharged when Committees conduct their affairs in an amicable atmosphere that upholds the dignity of the National Assembly. Appropriate procedures exist in our Standing Orders for dealing and disposal of any issues that may arise in the course of the work of the committees. With the benefit of all these material, I am now able, and in the course of the present Ruling, I will beg indulgence to address and rule not only on the spirit of the Motion but also on all other outstanding issues. I have in particular considered and I am now in a position to rule summarily on at least four of the outstanding issues. I will proceed to do so as follows: On issue No.2, hon. Members will recall that I had ruled that Standing Order No.47 was inapplicable and could not be relied on by the Speaker for the guidance sought by Mr. Imanyara because there was neither a Motion, nor a proposed Motion before the House as contemplated by Standing Order No.47. In light of the developments that have since occurred, I now rule that the National Assembly is seized of the matter of nominations because it was received by the appropriate organs of the House and a Motion has been proposed, thereon by a Committee of the House. On Issue No.3, as I have already stated, I rule that the pronouncements of the Commission on the Implementation of the Constitution on a matter such as the present matter have relevance and are of persuasive value and should be considered carefully by the National Assembly and the Speaker. But as I have ruled before in the context of the Judiciary, the opinion of a body or organ outside the National Assembly cannot rise to such a level as to be construed to bind the National Assembly to any particular action or inaction in the discharge of its constitutional mandate. On Issue No.7, I rule that it is not unconstitutional for a serving judicial officer to be nominated for appointment as the Chief Justice if he or she is qualified under Article 166, notwithstanding that he or she has not undergone vetting as provided by Section 23 of the Sixth Schedule to the Constitution. We have, in fact, set a precedent in this House by approving serving judicial officers to the Judicial Service Commission before they were vetted under the Constitution. All that this means is that if any of these judicial officers should be found to be unsuitable to serve as such when the vetting process is undertaken, they will have to leave office and a vacancy will arise in their respective offices. On Issue No.9, I rule that the questions raised on the nomination of office holders do not amount to a dispute within the meaning of the Political Parties Act as questions relating to the constitutionality of these appointments and any dispute thereon affect and relate to the country at large and not any particular party or parties. This is not a dispute between political parties or for that matter, individuals who may be members of parties. Hon. Members, before I proceed to rule on the remaining issues, allow me to re- visit some of my pronouncements when I last ruled on this matter. Referring the nominations to the relevant Departmental Committees, I declined to make a determination as to whether or not the nominations transmitted to my office by the Office of His Excellency the President, were or were not constitutionally made, nor whether there was or was not consultation within the meaning of the Constitution, nor whether or not ethnic diversity and gender equality were observed. I also withheld any determination or comment on the veracity and weight to be accorded to the letter I had received from the Right Hon. Prime Minister urging that the House declines to consider the nominees because the process for their nominations had not been observed. I made it clear that the reference of the correspondence received, both from the Office of His Excellency the President and the Right Hon. Prime Minister, to the relevant Committees of the House did not amount to a finding or determination that these nominations were or were not constitutionally made. I promised to rule on that question if an objection under Standing Order No.47 was to be raised again when the Committees, having delved into the matter, propose an appropriate Motion. I cautioned the House to remember that despite the work of the Committees, questions of constitutionality and the observance of the law are not matters to be determined exclusively by the vote of either Committee or, indeed, of the House. This is the reason that Standing Order No.47(3) makes the admissibility of a Motion subject to the opinion of the Speaker. That opinion, must, of course, be reasonable and befall justly and judiciously. Hon. Members will recall my passionate plea that the window remained open, and my hope that developments would occur that would make this important nomination process uncontested on the basis of either constitutionality or howsoever and thereby render my guidance and direction as requested by hon. Imanyara unnecessary. This was not to be. Indeed, what was an unsatisfactory position at the time has grown by leaps and bounds in the past one week or so to become the source of considerable anxiety in the whole country. The Speakerâs efforts to contain the escalation of differences were clearly unsuccessful and the time has, therefore, now come to make difficult decisions. The Speaker takes much solace, however, in the widely reported commitment of both His Excellency the President and the Rt. Hon. Prime Minister to accept, respect and abide by the outcome of the Parliamentary process. One of the main reasons I had hoped that I would not have to rule on contestations on the constitutionality of the Motion or proposed Motion by the Department Committee was the effect of such a Ruling on the work of any such Committees and of this House. This is because if I were to rule that the proposed Motion is unconstitutional because the nomination process did not accord with the Constitution as sought of me by Mr. Imanyara, it would follow that at ab initio, there were never really any nominations capable of consideration by the Committees or by this House and, accordingly, any Motion seeking the approval or disapproval of the nominees by the House cannot proceed. It will mean that despite all the hard work done by the Committees; the House will not have the opportunity to debate their Reports at all. This would be so even though the Reports of the Committees may themselves contain evidence and findings on the very questions in respect of which I shall have ruled. On the other hand, a Ruling by the Chair that the Motion may proceed, does not prevent the questions of unconstitutionality still arising in the course of the debate of the Reports. Be that as it may, the Speaker must now make this determination in the context of whether or not to approve the proposed Motion. I will break for a short while to allow hon. Members at the entrance to walk in."
}