HTTP 200 OK
Allow: GET, PUT, PATCH, DELETE, HEAD, OPTIONS
Content-Type: application/json
Vary: Accept
{
"id": 66536,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/66536/?format=api",
"text_counter": 247,
"type": "other",
"speaker_name": "",
"speaker_title": "",
"speaker": null,
"content": "Hon. Members, this is the second communication. On Tuesday, 1st February, 2011, the Member for Imenti Central rose on a point of order to seek the assurance, guidance and direction of the Chair on what hon. Members of the National Assembly should do where incidents of gross violation of the Constitution occur, instigated by either Members of this House, the Executive or the Judiciary. Mr. Imanyara drew the attention of the Speaker to the provisions of Article 3(1) of the Constitution enjoining every person to respect, uphold and defend the Constitution. He further drew the attention of the Chair to, and tabled a statement attributed to the Judicial Service Commission (JSC), among other things âexpressing grave concern and misgivings about the nomination of the Chief Justice made by His Excellency the Presidentâ and calling for a re-think of the matter, putting the country first, that would entail a withdrawal of the nominations and a fresh start. Mr. Imanyara went on to cite the Judicial Service Commission as having held the view that in order to give the process of appointing judicial officers legitimacy, public confidence, ownership and acceptance by the people of Kenya, the Judicial Service Commission must play an integral part in the process as contemplated in Article 172 as read together with Article 166(1) and Section 24 of the Sixth Schedule to the Constitution. Hon. Imanyara also cited and tabled a statement by the Commission for the Implementation of the Constitution (CIC) which stated, inter alia, that the process of appointment of the Chief Justice should commence with recommendations by the Judicial Service Commission to the President who, in turn, should consult the Prime Minister, after which the President should forward the name of the nominee to the National Assembly for approval before final appointment by the President. It was the further position of that Commission that the role of the Judicial Service Commission should be respected and the Judicial Service Commission should be allowed to undertake the function reserved to it by the Constitution. Mr. Imanyara claimed to be aware that the Right Honourable Prime Minister had written to the Speaker and tabled a copy of the said letter in which the Prime Minister disassociated himself from the nomination process. In the Memberâs view, there was a clear attempt to undermine the Constitution, creating a dangerous trend which, to his mind, would lead back to the old days and thus, defeating the essence of the long crusade for a new Constitution in this Republic. Mr. Imanyara concluded by seeking the directions and guidance of the Chair on how the House should proceed, bearing in mind the provisions of Standing Order No. 47 which empowers the Speaker to direct that any proposed Motion that is contrary to the Constitution, without expressly proposing appropriate amendment of the Constitution, to be inadmissible. What followed were a number of interventions by 17 Members rising on substantive points of order and providing various perspectives on the matter of the nomination of certain constitutional office holders by His Excellency the President. Hon. Members, I permitted considerable ventilation on this matter and I am glad that I did because deep and profound reflections on the nature, character, letter and spirit of our Constitution were proffered. From those submissions, which were too numerous and varied to be cited and attributed individually, I have filtered the following issues:- 1. Whether or not the Speaker is competent to make a pronouncement or determination on the matter of the constitutionality of the nominations and their propriety for transmission to and disposal by this House or whether conversely, this would be a matter for other constitutional organs and in, particular, the Judiciary. 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 and, going hand in hand, if the Constitution dictates that the process be participatory, competitive and transparent? 5. Were there consultations between the President and the Prime Minister as contemplated by Section 26(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 consultation as they did. 6. What is the import of making the consultations subject to the National Accord and Reconciliation Act? What does it denote? 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 nomination of office-bearers amount to a dispute within the meaning of the Political Parties Act? 10. And finally, whether or not the correct approach to the questions raised on the propriety of the nominations can be resolved by a vote in this House to approve or disapprove the nominees. I undertook to give a ruling today, Thursday 3rd February, 2011. Hon. Members, I wish to begin by pronouncing myself on the matter of the jurisdiction of the Speaker to determine the questions raised as the answer to this question is a pre-requisite to proceeding with the other issues raised. Hon. Members will recall that I indicated, at the onset, on Tuesday 1st February 2011, in promising to give this ruling, that I had no doubt in my mind that the Speaker has jurisdiction to rule on this matter. Indeed, I have previously ruled on various occasions that it is settled law in the Commonwealth and beyond that every independent Legislature is the sole judge as to how it shall conduct its own affairs. The Speaker, as the Leader of the House and the manifestation of the authority of the House, is mandated and obligated to safeguard and jealously protect its sovereignty within the Government, to determine what it shall or shall not do, and when and in what manner it shall do those things without interference from any other person or authority. Hon. Members, this position is recognized in parliamentary practice and traditions and in both the former and the present Constitutions. This is what the Constitution means when it vests the legislative authority of the Republic in Parliament and provides that Parliament manifests the diversity of the nation, represents the will of the people and exercises their sovereignty. This is also the essence of the separation of powers that I have every so often pronounced myself upon from this position. The view that it can fall to another organ, whether the Executive or the Judiciary, to determine for Parliament a matter before Parliament is, to my mind, constitutional heresy; which I would urge that every person in this country and more so, in this House, completely purges and disabuses themselves of. This disposes also of the question of whether or not the Speaker can properly interpret the Constitution or that this function belongs to the Judiciary. The answer, of course, is that in so far as a constitutional question arises before the House, within the conduct of the business of the House, it is the constitutional duty of the Speaker to interpret the Constitution to that extent and for that purpose alone, so as to enable the House to proceed with its constitutional functions. I emphasize the following, hon. Members. It is not fathomable and it would be a grave negation of the Constitution that the House should adjourn or otherwise suspend its business and seek the directions of another body or organ before it can proceed. I want all of us to note that emphasis. I think that it is time to debunk and demystify, for all time, the question of the interpretation of the Constitution. It is not the intention of our Constitution and, indeed, the Constitution does itself make it clear in various Articles including Article 10(1) and Article 20(4), among others, that the interpretation of the Constitution is not the exclusive property or preserve of any particular organ, person or authority. Article 10(1) in particular, binds every State organ, State officer, public officer and all persons to the national values and principles of governance when they apply or interpret the Constitution, enact, apply or interpret any law or make or implement public policy decisions. I invite all Members of this hon. House to acquaint themselves with Article 10(1) as well as Article 20(4). It is clear that the interpretation of the Constitution is as much the mandate and obligation, in their respective capacities, of a forestry officer, a labour officer, a magistrate, the Board of a public school, a police officer, the Director of Public Prosecutions or the President of the Republic. Each of these persons is bound to administratively interpret and apply the Constitution in their actions and functions. To do so, they must interrogate and understand what the Constitution means and how it applies to any particular situation in which they find themselves. Article 3(1) of the Constitution to which hon. Imanyara referred this House, in obligating every person to respect, uphold and defend the Constitution, would have no meaning if the individual is not permitted to interpret the meaning and application of the Constitution. This is, of course, not to say that the courts no longer have jurisdiction to interpret the Constitution. It is to say that it is not a jurisdiction exclusive to the courts. It is important that interpretation of the Constitution for the purpose of its application be distinguished from the exercise of judicial authority as provided for in Article 159(1) of the Constitution. It is important that we understand that distinction. There is probably no way that this House could possibly function if the Speaker could not interpret the Constitution. Standing Order No. 47, in particular, in requiring the Speaker to rule to be inadmissible a Motion which, in the Speakerâs opinion is unconstitutional, would naturally be unconstitutional because the Speaker would be prevented from forming that opinion. In forming that opinion and in all other interpretations of the Constitution, the Speaker is not acting in a judicial capacity within the meaning of the Constitution. Judicial interpretation is the preserve of the judiciary. Hon. Members, having settled the question of jurisdiction, I now move to address myself to the issues raised. As will become apparent presently, it may not be necessary to pronounce myself on all of the issues which I have set out as having been raised. In this regard, it is important, at the outset, to emphasize that the primary question, the mother of all the points of order, as it were, in respect of which the guidance and directions of the Speaker were sought and promised, was the point of order by hon. Imanyara, the essence of which was to invoke Standing Order No.47 to urge the Speaker to find that the nomination process, having been done contrary to the Constitution, was not admissible before this House or any of its organs and could not properly be considered by either this House or any of its Committees. Before I make this determination, I think it is important to consider the provisions of Standing Order No. 47. The Standing Order No. 47(3), which is the relevant provision, presupposes the existence of a Motion or a proposed Motion in respect of which the Speaker can form an opinion that it is contrary to the Constitution. I invite you once again to acquaint yourselves with Standing Order No.47 (3). In the present case, clearly, we are not at the point where there is either a Motion or a proposed Motion. I think it is quite clear that Standing Order No. 47 is inapplicable in the present circumstances and cannot be relied on by the Speaker for the guidance sought by hon. Imanyara. A related issue, therefore, must be the question whether the House is properly seized of the matter in respect of which hon. Imanyara sought guidance. Is there a matter before the House in respect of which the Speaker is being invited to find that there has been contravention of the Constitution? To answer this question, I wish to call the attention of hon. Members to the procedure and practice that have evolved in this House in relation to the vetting of persons for approval by the National Assembly. One of two procedures is available. In the first case, the responsible Minister tables a list of names proposed for appointment as a Paper Laid and the Speaker thereupon commits the matter to the relevant Committee for deliberation and report to the House. The Committee is then responsible for considering all aspects related to the suitability of the candidates proposed as well as the constitutionality or legality of the processes by which the nominees have been arrived at. The matter is thereafter brought to the House on a Motion by the Chairperson of the relevant Committee asking the House to resolve that it approves or does not approve the nominees or some of them. It is then open to the House to approve or disapprove the Motion. It is also open to any member of the House to raise any objection, including an objection under Standing Order No. 47(3), that the Motion is a contravention of the Constitution. Hon. Members, in recent times, the more prevalent practice and procedure, which is the second, has been for the Minister or other nominating authority to write a letter to the Office of the Speaker, forwarding the proposed names of persons to be vetted for approval and requesting the Speaker to transmit the Communication to the House for vetting and approval through its recognized organs, namely, the relevant Departmental Committees. This is the procedure that has been adopted in respect of a long list of recent nominees, including the Commission for the Implementation of the Constitution, the Commission on Revenue Allocation, the Judicial Service Commission, the Privatization Commission, and the Advisory Board of the Kenya Anti-Corruption Commission, among others. Members of the House will respectively remember this. By this procedure, the role of the Speaker usually consists of receiving and transmitting to the relevant Committee the names of the nominees received for the Committee to exercise its mind on behalf of the House to determine if the law has been complied with in all respects and whether or not additionally, the persons nominated are suitable for recommendation to the House for approval. To reach this determination, the committee may call for evidence in the usual manner, including summoning the nominees to physically appear before it for vetting, summoning witnesses to assist it in making findings both of fact and of law and receiving representations from the public on the legality of the process or the suitability or otherwise of particular nominees."
}