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"speaker_name": "Sen. Wakili Sigei",
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"content": " Sen. Omogeni, kindly, as you support this Motion, please make it clear to the Sen. (Dr.) Khalwale on that aspect."
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"legal_name": "Erick Okong'o Mogeni",
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"content": "Mr. Temporary Speaker, Sir, this is the only occasion where the Sen. (Dr.) Khalwale can benefit from my advice without me sending him a fee note."
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"content": "(Sen. (Dr.) Khalwale spoke off record)"
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"type": "speech",
"speaker_name": "Sen. Omogeni",
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"content": "What else? There are two ways that amendments can be made to our 2010 Constitution. If you move any amendment that touches on the protected Clauses in Article 255, then you must have a referendum for the people of Kenya to affirm or reject that amendment. So, Mr. Temporary Speaker, Sir, if you permit me, I can read- “A proposed amendment to this Constitution shall be enacted in accordance with Articles 256 or 257 and approved in accordance with Clause 2 by a referendum. If the amendment relates to any of the following matters:- a) the supremacy of this Constitution; b) the territory of Kenya; c) the sovereignty of the people; d) the national values and principles of governance referred to in Article 10(2)(a)-(d); e) the Bill of Rights; f) the term of office of the President; g) the independence of the judiciary and the commissions and independent offices to which Chapter 15 applies; h) the function of Parliament, the objects, principles, and the structure of devolved governments or the provisions of Chapter 255; The electronic version of the Senate Hansard Report is for information purposes only.A certified version of this Report can be obtained from the Director, Hansard and Audio Services,Senate."
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{
"id": 1537706,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1537706/?format=api",
"text_counter": 204,
"type": "speech",
"speaker_name": "Sen. Omogeni",
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"content": "So, we need to make clear to Sen. (Dr.) Khalwale that, in India, what is in Article 368 of the Indian Constitution, at least going by the Supreme Court's ruling in the Supreme Court of India in 1973, in their Constitution, you cannot do any amendments touching on for instance Clause 25(A) on the supremacy of the Constitution. However, I think the finding of the Supreme Court is that the only protection that Kenyans have been given is to protect certain Articles to be amended only subject to a referendum, whereof you must get the approval of Kenyans. It is worth noting that constitutions are written in a language that suits the inhabitants of a country or going by the history of that country. For instance, in Australia, in the entire Constitution of Australia, you cannot amend any Clause of their Constitution without subjecting that particular amendment to a referendum. The people of Australia do it day in, day out. Last year, they had a referendum. If you visited that country, you did not even notice that there was an ongoing referendum. I do not know why in this country we politicize everything. For instance, when people hear that in NADCO, there are proposed amendments that will require a referendum, people think about politics. That, this side will be defeated by the other one. People will make political capital. Let us make our people understand that provision was put there to uplift the Clause on the sovereignty of the people of Kenya. What we are simply saying is that because we have stated in this Constitution that our people; the people of Kenya, are sovereign, then to amend certain Articles in this Constitution, you must get the approval of the sovereign. The sovereign in this case are the people of Kenya. Why do we fear a referendum? We should not. In other jurisdictions like Australia, you need the approval of state parliaments before you can effect an amendment. Mr. Temporary Speaker, Sir, to answer the second aspect of Sen. (Dr.) Khalwale’s question, there are certain aspects under Article 256 that can be amended by Parliament without subjecting that amendment to the referendum. So, the demarcation is there. The words, the clauses and the Articles that are protected and must go to the referendum and the Articles that are not protected in this Constitution, in terms of going to the referendum and can be dealt with by Parliament. However, I did not hear you mention in your report about the proposal we made on the tenure of the Senate of the Republic of Kenya. This is because, NADCO considered the terms of the Houses of Senate in many jurisdictions. When you speak about protecting devolution, you start protecting devolution by having a Senate that is the Upper House, that is well anchored in the constitution and has got full legislative powers, including a say in the budget-making process. You can read many constitutions. If you go to Australia, members of the Senate serve for six years and they are never subjected to elections together with the members of the House of Representatives. You do not want to mix the election of Senators together with the Head of State. That can be a way of curtailing the re-election of Senators who are very strong in protecting devolution. Therefore, when they go for elections, the tenure of the Senate continues, but not all Senators leave because of institutional memory. They have crafted their Constitution in such a way that a number of Senators get elected, but others remain. The same way they do it in the United States of America (USA). The electronic version of the Senate Hansard Report is for information purposes only.A certified version of this Report can be obtained from the Director, Hansard and Audio Services,Senate."
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"id": 1537707,
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"type": "speech",
"speaker_name": "Sen. Omogeni",
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"content": "Mr. Temporary Speaker, Sir, the House of Representatives in the USA serves for two years and their Senators serve for six years. Again, they use the same model. You protect the Senate by ensuring that not all Senators exit in an election because you need institutional memory. If you go to Japan, it is even more conscious on protecting the Senate. They call it the House of Councillors. The Upper House, with 265 Members. In Japan, if the House is dissolved because there is a vote of no confidence against the Prime Minister, only the House of Representatives goes home. The Senate is protected. Their tenure is uninterrupted. Even when there is a dissolution of Parliament through a vote of no confidence, only the House of Representatives goes home. The Senate remains because you want a Senate that is strong and does not live in fear of being chased by the head of the executive. You give them a longer tenure in office because they also cover large areas. I want us to be Senators who want to be guided by what is happening in other jurisdictions. We should not look at this idea of a seven-year tenure as something that is kind of pushing a personal agenda for Senators. After all, nobody is going to benefit in this term. I am sure that even if this Clause comes into force, it will be after the 2027 elections. Mr. Temporary Speaker, Sir, people like Sen. (Dr.) Khalwale may not even be coming back as Senators. Maybe he will be the governor of Kakamega. I am not sure about Joyce Korir. She may be the governor of Bomet at that time. We are doing this for posterity. Let us pass laws by not looking at us as the current Senators, but for posterity. The Senators in the USA after the passage of their Constitution in 1790, used to be elected by the MCAs who are members of state parliaments. Then after some time, they realized they will never be effective unless they get their direct mandate from the people and create a tenure that is longer than the House of Representatives. Therefore, this is a wonderful opportunity for us to strengthen devolution. Let us tie up this idea of a full legislative mandate of the Senate and have a say in the budget- making process. Which other moment are we going to have to clarify this debate we have had for a long time on where our space falls when the Constitution says that the role of ensuring that independent commissions are well-funded vests in Parliament? Mr. Temporary Speaker, Sir, remember when we were in NADCO, there was a boy who came from Homa Bay. He told us to understand English properly on the use of the word “shall”. He told us when the word “shall” is used, it is mandatory. When it is “may”, it is optional. “May” is optional, and “shall”, mandatory. Article 249(3) says that Parliament shall - mandatory - allocate adequate funds to enable each commission and independent officers to perform its functions. That means that, that function is a function that is shared by the two Houses. If you read the subsequent clause like 245 on approval of members of independent commissions; it is clear because it says, the National Assembly shall approve--- When the word Parliament is used, it should refer to the two Houses and not one, the National Assembly and Parliament. That is why Article 250 says that- (2) Chairpersons and members of each commission shall be- (a) identified and recommended to be appointed in a manner prescribed by national legislation. (b) Approved by national assembly; and--- The electronic version of the Senate Hansard Report is for information purposes only.A certified version of this Report can be obtained from the Director, Hansard and Audio Services,Senate."
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"speaker_name": "Sen. Omogeni",
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"content": "There, the mandate is very clear. It is donated to that House called the National Assembly in 250 (2)(b). However, if you read the one, I have just read; 249(3), it uses the word ‘Parliament’. Mr. Temporary Speaker, Sir, let our brothers in the National Assembly appreciate that this Constitution gives us shared mandates. There is mandate that is reserved for the National Assembly and there is mandate that is shared by the two Houses. Permit me to say something about this issue of gender. Firstly, at NADCO we never dealt with the issue of gender. It was isolated to be dealt with by the multi-sectoral group. I believe that if there is a report that has been tabled, it is a stand-alone report by the multi- sectoral group on gender. However, I agree with Sen. (Dr.) Khalwale about the idea of electing nominated Members of Parliament. If you go to our neighboring country - Uganda, even the people representing persons with disability are subjected to an election."
},
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"id": 1537709,
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"speaker_name": "Sen. Wakili Sigei",
"speaker_title": "The Temporary Speaker",
"speaker": null,
"content": " Sen. Okongo, you have less than one minute but since you were a Member of NADCO, I exercise the discretion of the Chair and allow you an additional three minutes, so that you conclude on your thoughts."
},
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"type": "speech",
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"content": "Thank you, Mr. Temporary Speaker, Sir. To back the point that Sen. (Dr.) Khalwale was making on the issue of nominated Members of Parliament, in Uganda, even the people who represent the youths are subjected to an election. The people who represent workers are elected. Their names appear in the ballot and they are subjected to a competitive election. Only those who gather the majority votes find their way to Parliament. I agree fully that we now have the opportunity to look into all these matters much more deeply and not in a cosmetic manner so that we provide an amendment that will allow competition within that special group of people. We should also make it to be a merit-based process. Let the ones who attract the highest number of votes be the ones getting elected. We can think of how to distribute the seats, how we put their names in the ballot, but I fully agree that there should be an election. Finally, if we introduce these funds to the Constitution, we need to be more careful. We must also consider whether one is conflicted. We have debated the Conflict of Interest Bill in this House. It went to mediation, and it has come back to us. If our brothers in the National Assembly want to continue participating in issues of the National Government Constituencies Development Fund (NG-CDF) and override the Supreme Court's rulings, then we must find a way of implementing accountability mechanisms. Also, answering the serious questions that the Supreme Court has raised in its judgement of the clear manifestation of a conflict in the budget-making process. You cannot allow me to budget for myself without having a House that checks on how fair you are and ensures that you do not allocate resources in a manner that endangers other sectors. So, if we create the NG-CDF, let it be clear in the Constitution, that the Senate will have a say in the budget-making process. This way, we can also question the criteria used to share money in the constituencies and look at fairness and we also protect these independent commissions and independent offices. If you read Article 249(3), he has been assigned this role. Let us take this opportunity to amend this Constitution for posterity, not for self-serving purposes. This The electronic version of the Senate Hansard Report is for information purposes only.A certified version of this Report can be obtained from the Director, Hansard and Audio Services,Senate."
},
{
"id": 1537711,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1537711/?format=api",
"text_counter": 209,
"type": "speech",
"speaker_name": "Sen. Omogeni",
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"content": "should not be a debate for Members of the National Assembly to say that NG-CDF must be entrenched in the Constitution and that they will be the only people in Parliament who will deal with the issue of allocating the budget for those offices. If we do that, future generations will note that there were men and women of wisdom when the first amendments to the Constitution of Kenya 2010 went through. Finally, we should not fear amending the Constitution. I used to hear people say that the American Constitution has never been amended. It has been amended several times. In fact, the First Amendment took place after five years, and they amended 12 Clauses, including the Bill of Rights, just after five years. The Supreme Court was weaker than our own Senate. In 1790, the Supreme Court of America, used a committee room in Congress. In the first term, they did not have offices or listen to any cases. However, it is now one of the strongest and most influential courts in the world. Let us also take this opportunity to relook at the Senate of Kenya. We were not in Naivasha; only Sen. (Dr.) Khalwale was there when they mutilated the Bomas proposal and made the Senate a shell. Now, we have an opportunity to do something for posterity. With those remarks, I support."
}
]
}