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"content": "Hon. Members, from the foregoing synthesis, the question whether or not this House is properly seized of the matter of the nominees for the purpose of enabling the Speaker to make the determination he has been called upon to do becomes central and key to this matter. The question at hand is as follows: When a nominating authority sends the names of nominees to the Speaker, what is the legitimate role of the Speaker in respect of the correspondence transmitting the names? Is the correspondence addressed to the Speaker as Speaker or as a conduit to the House? What role does the Speaker have in regard to that correspondence before it goes to the House in plenary or to a committee of the House? Is the Speaker permitted to process the correspondence and form a judgment and make a determination as to whether or not it should get to the House? Is it permissible for the Speaker, administratively in his Chambers, to determine, for example, that the nominees do not qualify for appointment and that therefore the relevant statute or the Constitution has been contravened and decline to transmit the correspondence to the House or its committees? Hon. Members, these questions are relevant because in the present case, the Speaker received a letter from the Office of His Excellency the President on 31st January, 2011, averring that he was forwarding the names of nominees in accordance with the Constitution for processing by the House. At the point at which the Honourable Imanyara sought the guidance of the Chair, the letter had neither been tabled before the House nor been received by a committee of the House. Subsequent to the receipt of the letter from the Office of the President, the Speaker did also receive, on 1st February, 2011, a letter from the Right Honourable Prime Minister making certain representations as to the validity and constitutionality of the earlier correspondence received. Two important questions arise: Firstly, whether the Speaker could rule that nominations were unconstitutional before the House had formally become aware of the nominations and, secondly, whether it would be proper for the House to deal with the correspondence of the Prime Minister before the preceding correspondence from the Office of the President, to which it related, had been formally brought to the attention of the House. Hon. Members, before I pronounce myself on whether the House is properly seized of this matter, I wish to indicate that I have not been able to find any precedents of this House in which the Speaker intercepted correspondence addressed to the House and unilaterally made a determination as to its legality or validity, and returned it to the nominating authority. I further wish to urge the House to recollect that in the course of the points of order that were raised on Tuesday 1st February, 2011 in this House, the Speaker, this House and the nation at large was taken through the elaborate detail of the events preceding the submission of the names of the nominees to the Speaker. I would think that some hon. Members of this House may have had questions they would have liked to ask of both the Vice-President and Minister for Home Affairs, and of the Prime Minister. Possibly, some hon. Members may have had information relating to those events, which they would have liked to bring to the attention of the House. Members of the public may have had their own thoughts which they would have liked to share with this House on these matters. Constitutional organs like the Judicial Service Commission (JSC) and the Commission on the Implementation of the Constitution (CIC) were mentioned and certain claims made in relation to them. Certain statements were attributed to these bodies. I have no doubt in my mind that these bodies would have had something to say in relation to those claims. Bodies like the Law Society of Kenya (LSK), the International Commission of Jurists (ICJ) and the Federation of Women Lawyers (FIDA) have come out in the public domain asserting certain positions, which they contend would assist the country in arriving at a lawful and fair determination of the matters in issue. These are important matters to note, because, as hon. Members are no doubt aware, if there is any matter relating to the conduct of public affairs in general, and to the Legislature in particular; that the Constitution has comprehensively addressed, it is the matter of the centrality of the rule of law, democracy, transparency, accountability, inclusiveness and the participation of the people. Hon. Members, as I have indicated, the issues I have set out as requiring determination entail both matters of law as well as matters of fact. I acknowledge and appreciate the learned interventions made in the House in support or opposition of an array of propositions. The importance of questions posed and the critical ramifications that may have to follow the overall implementation of the new Constitution are such that a more collegiate and participatory process is required not only as a matter of natural justice and sound conduct of public affairs but also as a requirement of the Constitution."
}