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"content": "There has been misconception and misunderstanding, especially with some of the younger judges who have joined the Judiciary in the last 10 years and who may not have been very grounded in legal theory, that the High Court, in supervisory jurisdiction, also supervises Parliament. The High Court has various jurisdictions. Part of it is to supervise agencies and institutions of state to ensure that they perform their functions constitutionally and in accordance with the law. Madam Temporary Speaker, world-over Parliament, being the body that represents the will of the people, does not fall within the purview of the administrative or supervisory functions of the High Court. The High Court can supervise the activities in State parastatals and Government Ministries, but not Parliament. The only way that the Judiciary as an arm of Government can interact with Parliament is by interpreting the law and declaring the product from Parliament as being against the Constitution. Their role is purely interpretative. They interpret the Constitution and can declare the Acts or Motions passed by Parliament as unconstitutional or illegal. However, they have no mandate or power to try and force Parliament to enact a law. They can recommend, but they have no power to compel Parliament to pass what they think is a good law. The sovereign mandate of making laws is with the Parliament, the same way the sovereign mandate of interpreting the law is with the Judiciary. Madam Temporary Speaker, secondly, in Article 165 of the Constitution, there are some exceptions to what the High Court cannot interfere with in its supervisory jurisdiction. Therefore, this Bill adds another category; that matters before Parliament that are live and active when Parliament is exercising its mandate cannot be the subject of the judicial interference. In particular, it provides that:- “Article 165 of the Constitution of Kenya is amended to provide the exemption of matters falling within the function of Parliament, either of its Houses or even a county assembly as provided for in this Constitution in so far as those matters are pending or undergoing consideration before Parliament, either in its Houses or a county assembly.” In other words, one of the functions of Parliament is to make law. A court of law cannot stop Parliament from discussing this legislation, which is in the Second Reading, because there is an injunction or a case under determination. After the law is passed, the court can declare the law unconstitutional for some reasons. Madam Temporary Speaker, Parliament cannot be stopped from making laws, representation and its oversight roles. I have heard some pundits out there talking about the concurrent exercises that are going on, especially with regard to the National Youth Service claims of corruption. On one side, there are court cases on the same matter, and on the other side, the Public Accounts Committee of the National Assembly is also hearing the matter. I see no contradiction; that is the correct position. For example, you cannot say that because a matter is before a court, Parliament cannot do its oversight functions. You cannot say that because the matter is in court, we cannot deal with it. There has been untidy interference. I know that there is the sub judice rule. However, my argument has always been that once a matter is live in a House of Parliament, in exercise of its constitutional functions, no court can injunct or prevent Parliament from proceeding on that matter, the same way Parliament cannot stop a court form making a decision. Parliament cannot The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate"
}