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"speaker_name": "Mr. Kioni",
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"legal_name": "Jeremiah Ngayu Kioni",
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"content": "Mr. Temporary Deputy Speaker, Sir, thank you for giving me this opportunity to support this Bill. The issue of vetting of judges and magistrates is something that has been spoken about by virtually all leaders in this country. It is important that, as a nation and a House, we should quickly move and put this thing behind us, so that Kenyans can have the confidence of the Judiciary as it is very crucial. We also need the international community to have its confidence in our Judiciary; not because it will be deferring matters to it but, because we, as leaders in this country, have helped to create that perception that our Judiciary cannot function and is literally on its knees. It is a perception that, perhaps, I do not agree with. It is a perception that we, as leaders, need to be careful about as we move forward. The continued condemnation of our Judiciary from the Floor of this House and even in public fora does not help this country in any way. It does not help either to raise the morale of those working within the Judiciary. Mr. Temporary Deputy Speaker, Sir, we have our difficulties. We may have had our difficulties in the past. We may want to justify why we never went to court. The continued condemnation of our Judiciary is not useful to us, as politicians. It is not useful to this nation or to anybody. In any case, as we continue condemning it, we still have cases being referred to it, even as we are contemplating vetting them. So it is incumbent upon leaders to ensure that they are awake to this fact. Every other time, including when we were discussing the issue of consultation here, we heard statements from Cabinet Ministers expressing their opinions. It is like in their minds, the Judiciary does not exist on one hand, but on the other hand, they want to rely on judgment passed by the same Judiciary. That double-speak is also not useful to us as leaders. Having said that, I want to commend the Minister, his staff and also those involved in the drafting of this Bill. As I mentioned, it is a useful piece of legislation that we need to dispense with. However, I have a few issues that I would want addressed by the Minister when he is responding and, perhaps, they are issues that might call for amendment. One of the things is that from this same House we have held arguments that what is provided for within the schedules is not superior or cannot supersede what is provided for in the main Constitution. Section 23 of the Sixth Schedule provides for the vetting of Judges and the need to have a Bill for purposes of effecting that contemplated vetting procedure. The HANSARD will bear me witness because I think even the Minister has told us in no uncertain terms that a provision within the schedules cannot supersede what is provided for within the body of the Constitution. Article 168 of the Constitution provides for the procedure that must be followed when you are removing a judge or magistrate from office or even when you are sending him on leave or when you are suspending him. If that be the case, then this Bill will run into problems just like we have been arguing on other Motions and legislations that are there. Mr. Temporary Deputy Speaker, Sir, I think it is important that we be satisfied that this Bill will not be challenged in a court of law for having violated the provisions as contained or contemplated under Article 168 which among many other things, states: âThe removal of a Judge may be initiated only by the Judicial Service Commission acting on its Motion, or on the petition of any other person to the Judicial Service Commission.â I may not have read the whole Constitution comprehensively, but I also do not remember coming across a provision in this Constitution about the board. If that be the case, then the board might not have the powers that are contemplated in this Bill to remove or to recommend the suspension of a judge and so forth. This Bill seems to limit the rights of the judges and magistrates in a number of things. Under Article 24, there is provision for limitation of rights and fundamental freedoms. The requirements of Article 24 are that such freedom in the Bill of Rights shall not be limited, except by law and then only to the extent that the limitation is reasonable, justifiable, in an open democratic society and it continues to provide for the factors that must be satisfied for that right to be limited. The Minister would want to satisfy us when he is responding as to whether this Bill is not limiting the rights and fundamental freedoms of those who are intended to be vetted. Mr. Temporary Deputy Speaker, Sir, this Bill seems to have been written a little bit earlier before the promulgation or by minds that were still outside the promulgation period. Article 21 says:- âThe Bill of Rights applies to all State organs and persons.â Even as we seek to enact this Bill as a House, in the words of the Speaker the other day when he was making a ruling, he said that nobody can talk to Parliament in a compulsive manner. Nobody can compel Parliament to do anything other than what is provided for within the Standing Orders. As we continue debating this Bill and as we move to enacting it into law, it is important that we make sure that we remain respectful to the provisions of the Constitution, so that we do not pass a Bill that seems to limit the rights of the persons whom it will affect. If you read Article 21(1) and (2) it states as follows:- â1. It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.â 2. The State shall take legislative policy and other measures including the setting of standards to achieve the progressive realization of rights guaranteed under Article 43.â In enacting this Bill, are we living up to the spirit of Article 21(1) and (2)? I think the answer is not in the affirmative. Again, when our Speaker was making the ruling, he said that it is the work of the courts to look at what we have done and render it---"
}