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{
"id": 66214,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/66214/?format=api",
"text_counter": 376,
"type": "speech",
"speaker_name": "Mr. Orengo",
"speaker_title": "The Minister for Lands",
"speaker": {
"id": 129,
"legal_name": "Aggrey James Orengo",
"slug": "james-orengo"
},
"content": " Mr. Speaker, Sir, this is a very weighty matter. I say so before going into the pleadings which have been placed before the House by Mr. Olago Aluoch. I want to revisit the Constitution which says in Article 2 that this Constitution is the supreme law of the Republic and binds all persons and State organs at both levels of Government. Article 10 deals with national values and principles of governance. There are similar provisions to that effect. More importantly, Article 94(4) on page 63 says:- âParliament shall protect this Constitution and promote the democratic governance of the Republic.â Further, if you may allow me to refer to the schedule that contains the oaths of affirmation or allegiance which is found in the Third Schedule. The oath of allegiance that is taken by every elected Member of Parliament states very elaborately that it is required of each Member of this august assembly that they will obey, respect, uphold, preserve, protect and defend this Constitution. Mr. Speaker, Sir, having said all this, and if you look at the ruling by the learned judge, there are matters that it would be very difficult for this august House to ignore. On page 12, Ms. Mbiyu, who I know very well, is a very senior lawyer in the Attorney- Generalâs Chambers, acting on behalf of the Republic of Kenya. She was representing the Attorney-General. Her submissions begin from page 12. On page 13 of those submissions, she says:- âTo the extent that the Judicial Service Commission was not entitled to make recommendations to the President before he nominated the new Chief Justice in consultation with the Prime Minister for approval by the National Assembly---â These were the submissions by Ms. Mbiyu. She addressed the court on the issue of discrimination and then the court made a finding on those submissions by the Attorney-General. I think this is very weighty because much as we may want to disregard these submissions, these were submissions by the Attorney-General of the Republic of Kenya who is the principal legal advisor to the Kenya Government. She says on page 19, Ms. Mbiyu, on behalf of the Attorney-General conceded that the President ought to have received recommendations from the Judicial Service Commission before he made the aforesaid nominations. It is in the public domain that the Attorney-General who is a member of the Judicial Service Commission signed a joint statement of the Commission to that effect. That was done just about four days ago. Then he continues:- âUnder Article 156(1) of the Constitution, the Attorney-General is the principal advisor to the Government. The qualifications as an Attorney-General are very high. They are the same as for appointments of the Chief Justice. He is the person who is highly learned and experienced in law. More importantly, the President is therefore supposed to take his advise seriously.â Then the judge says:- 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.â These are findings by a judge of the High Court. To that extent, the judge further finds that the petitioners have proved that the nominations were unconstitutional. This is a judge talking from the pedestal of the Bench in the High Court. He deals with the issue of consultation to some length which I do not want to refer to, but they are to the same effect. When she comes to the issue of violations regarding equal treatment to men and women, on page 24 the judge says this:- âIn view of the violations to the letter and spirit of the Constitution as shown herein above, even without considering other relevant provisions like Article 10 which sets out national values and principles of governance, I am satisfied that the petitioners have demonstrated that they have a prima facie case with the likelihood of success.â Finally, I am sorry I have taken long on this, bear with me. He says words similar to the ones that you pronounced here and I think to some extent, I said something to that effect that the court cannot restrain the National Assembly from performing its constitutional duty. However, where it is demonstrated that in giving its approval, the National Assembly will be perpetuating an unconstitutional act unless the Speaker of the National Assembly points out the unconstitutionality of the intended action and that disallows the process of approval, this court is under an obligation to make an appropriate declaration and bring it to the attention of the National Assembly. Mr. Speaker, Sir, I think that is why the High Court took the unprecedented effect that instead of just a personal service that this matter through the Office of the Registrar, should be brought to your attention. Finally, he says: Consequently, in view of the courtâs findings regarding the unconstitutionality of the manner in which the foresaid nominations were done, I make a declaration that it be unconstitutional for any State officer or organ of the State to carry on with the process of approval and eventual appointment to the Office of the Chief Justice and so on.â"
}