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{
    "id": 972090,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/972090/?format=api",
    "text_counter": 506,
    "type": "speech",
    "speaker_name": "Mathare, ODM",
    "speaker_title": "Hon. Anthony Oluoch",
    "speaker": {
        "id": 13425,
        "legal_name": "Anthony Tom Oluoch",
        "slug": "anthony-tom-oluoch-2"
    },
    "content": " Thank you, Hon. Temporary Deputy Speaker. First, I want to thank the Committee for coming up with this Report. This Report is timely because the discussion allows us to delve into three issues. One is that the constitutional tensions that we have are very healthy. The constitutional tensions have allowed us to enter into a national debate on our system of governance. The first constitutional tension would be in regard to the bicameral Parliament. We constantly grapple with the issue of various powers and how we distribute legislative powers and roles between the National Assembly and the Senate. We also have another constitutional tension which is the subject of national discourse, which is between the levels of government, the national Government and the county governments. I want to speak specifically to the constitutional tension that we constantly have to grapple with between the Executive arm of the Government and the Judiciary. This is important because it was contemplated in our Constitution. It is the reason we have Article 160 of the Constitution that speaks to the independence of the Judiciary. It is very good that we have this Report because we can now buttress the question: To what extent do we exercise or allow judicial independence? Here, we are speaking about both judicial decisional independence and judicial institutional independence. It is also good to remind ourselves that it is for this reason that in Article 173 of the Constitution we provided that in order not to let the Judiciary worry about decisional and institutional independence, and the question of its financing is unstable, we created the mechanism for its funding. I say this also against the background of a well celebrated publicist by the name Alexander Hamilton, who wrote in the 18th Century on this very question of the tensions between the three arms of the Government. If I was to paraphrase, he said that the Executive holds the sword and dispenses honours while the legislator holds the purse strings. But the Judiciary neither dispenses any honours nor has the purse strings. He was trying to suggest that in this process, the Judiciary, even though an arm of the Government, is the weaker link and needs to be provided with as much protection as possible. Another Justice in the USA by the name Marshall said that it is distinctly the role of the judicial department to declare what the law is. Sometimes that decision may not be very good to us. The way to disagree with the decision is not for Parliament to cut down the funding of the Judiciary or for the Executive to decline to carry out constitutional duties - with all due respect, this affects the independence and even the operations of Parliament - but by way of appeal. The ways to disagree with the Judiciary, so that we can build the institution, is by appeal. When Parliament disagreed with the Judiciary on certain things, we did not like. It was very easy for us to use the power of the purse strings to slash money that had been allocated to them. This comes at a very good time. Just like the President has an opportunity to address Parliament often in the State of the Nation Address, also, the state of the Judiciary should be elevated if it is possible. The Standing Orders can be amended to allow heads of the Judiciary and the Supreme The electronic version of the Official Hansard Report is for information purposes only. Acertified version of this Report can be obtained from the Hansard Editor."
}