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{
    "id": 848297,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/848297/?format=api",
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    "content": "Hon. Senators, the conduct of a criminal trial is under the sole purview ofthe Director of Public Prosecutions (DPP) under Article 157. I am abbreviating because of time. The point I have made here is that the sub judice rule is supposed to prevent bias or influencing judges or magistrates when they make decisions. It is my view that in the past, there was real danger or external influence from Parliament, the public, media, judges and other decision makers like jurors when decision making is by way of jury. In this country, those who are conversant with our legal system are aware that in the past, there used to be within the judicial system lay magistrates who were decision makers and were not trained in law. We had very many, including the Senator for Garissa County, Sen. Haji, who was once upon a time, a lay magistrate in the country, despite him not being a lawyer. So, my argument is that today courts are independent and are governed by people who are trained to apply the law and evidence. It does not matter what Parliament, the Executive, the public or the newspapers say. The decision is made on the basis of the law and evidence. Secondly, it is also my opinion that under Article 157 (1) of the Constitution going downwards, there is a Clause which declares that the DPP is the one in control of the criminal trial and is an independent officer and shall not receive instructions, directions or advice from any quarter or authority whatsoever, including Parliament. Hon. Senators, this position has been acknowledged by previous Speakers of this House. For example, in 2009, the ruling of former Speaker Kenneth Marende which I do not have time to quote. We have cited authorities from New Zealand, Australia and other Commonwealth jurisdictions. The arguments which have been made are that several people have been taken to court on this matter and that, the matter is active in court. However, as to the matter being in court, the Speaker is not aware that the matter is in court. This is the reason that under paragraph (3), the Standing Orders require mandatorily that the Senator relying on the Standing Order to provide the evidence that the matter is active in court. It is not the business of the Speaker or of any Senator to go to all the courts of this country to find out what they are doing and which matters have been filed there so that they inform the proceedings of Parliament. That is not the business of the Speaker. However, I also underline that the Speaker may take an equivalent of what is known as judicial notice where matters are of public notoriety that something has happened. Perhaps an equivalent of judicial notice would be parliamentary notice. The Speaker may have taken parliamentary notice that there could have been an active matter but strictly under the law, there is no evidence before this House that the matter is active. Hon. Senators, I will skip a few paragraphs so that we end this matter quickly. I have already said that the Senator is supposed to provide evidence as to whether debating this matter will prejudice its fair determination. I am of the view that the Senator did not adduce evidence that debate on this matter will prejudice proceedings in the court. Even then, the purpose of the rule is to balance freedom of speech in Parliament and the right to have fair trial. 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."
}