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{
    "id": 759949,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/759949/?format=api",
    "text_counter": 40,
    "type": "other",
    "speaker_name": "",
    "speaker_title": "",
    "speaker": null,
    "content": "Mr. Speaker, Sir, this is a straight-forward Motion. As you can see, it is long and self explanatory. We want to deal with the Election Laws (Amendment) Bill (National Assembly Bill No. 39 of 2017) that came from the National Assembly. The country is at cross-roads. When such times occur, the constitutional institutions must rise to the occasion. This Senate is being called upon to rise to the occasion, to listen to the views of Kenyans, to legislate and to fill the legislative gaps.There are so many things that are happening at a very fast rate. Kenyans are asking who should do what and why we cannot ensure that this country moves forward. We have a fresh judgment that came out this morning. A judge of the High Court - in a very persuasive manner that is difficult to disagree with - has come to the conclusion that the mode of nomination and conducting fresh nominations in an election or conducting fresh elections, as contemplated by the Supreme Court in its judgment of 2013, that the procedure enunciated by the Supreme Court after the Attorney-General being the amicus curie at that point in time, had posed some questions to the Supreme Court; that the answers given are what we call in law, Obiter dictum; because there are various issues that came out . Mr. Speaker, Sir, this means that they are only good to persuade the judges in the lower court to follow but they were not bound by the decision of the Supreme Court. This is very instructive. Many Kenyans are saying that the High Court judge has gone against the Supreme Court which, as known by many people, has only two original jurisdictions; one is to make a decision in so far as presidential elections are concerned and, second, is to give advisory opinion if it is requested by a state organ at the national or county level. Mr. Speaker, Sir, in exercise of that jurisdiction, the Supreme Court gave the opinion they wanted but the original jurisdiction of interpretation of the Constitution is a preserve of the High Court. That is why Justice Mativo was within the constitutional confines when he came to the conclusion this morning that it was wrong for the IEBC to deny Dr. Ekuru Aokot, who is a lawyer, a chance to participate in the elections. In paragraph 73 of that judgment, the judge says that there is nothing in law that stops all the participants of the 8th August, 2017 presidential elections from participating in those elections. Now we have a serious Ratio decidendi and a precedence that has been established by the High Court which points out to the possibility that the reason why the judge has to fill the gap is because “judge-made” laws arise where the Legislature has not legislated on a particular matter."
}