Hon. Members, you are requested to remain standing until Mr. Speaker has taken his Oath of Allegiance.

Order hon. Members! Mr. Baiya, you may step in!

Hon. Members, I have the following Communication to make. Hon. Members, questions have arisen as to whether a Member of Parliament who at any time prior to the promulgation of the new Constitution had been dismissed or otherwise removed from holding public office in terms of Article 75 of the new Constitution should proceed to take and subscribe to the oath or affirmation of allegiance as required under Section 13 of the Sixth Schedule of the new Constitution. The same questions have arisen with respect to hon. Members who have pending cases or matters before courts of law or other tribunals where the matters in issue impugn on the integrity of fitness for office of the Members concerned. As hon. Members will recall, when these questions were raised yesterday by the hon. Member for Ikolomani, Dr. Khalwale, I undertook to give directions at the opportune time.

Hon. Members, the promulgation and the coming into effect of the new Constitution of Kenya today marks the beginning of an important but delicate period of transition from the regime of the former Constitution to the full implementation of the new constitutional dispensation. In seeking to ensure a smooth and streamlined transition to the new Constitution, the Sixth Schedule of the Constitution prescribes a host of transitional provisions. With regard to the National Assembly, Section 10 of the Sixth Schedule provides that the National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of the Constitution for its unexpired term. In effect, the Members of the National Assembly, though elected under the former Constitution, are by these provisions said, shaved and sheared into the new Constitutional dispensation to continue serving as Members of Parliament. The Members of the National Assembly are then, in terms of Section 13 of the Sixth Schedule, required to take and subscribe to an oath or affirmation of allegiance to the new Constitution.

Hon. Members, Chapter 6 of the Constitution addresses matters of leadership and integrity. It is noteworthy that neither this chapter as a whole nor any of its provisions is suspended from taking effect after the promulgation of the new Constitution. The entire Chapter is, therefore, operational and in effect at this moment. It, therefore, follows that state officers who by dint of Article 260 of the Constitution are defined to include Members of Parliament are required to comply with the provisions of Chapter 6 which, among other things, sets out for state officers relating to:- (a) The conduct of state officers as per Article 75. (b) Financial probity of state officers as per Article 76; (c) Restriction on activities of state officers as per Article 77; and, (d) Matters of citizenship and leadership as per Article 78. Hon. Members, where a state officer acts in contravention of the provisions of Article 75 (1), Articles 76 or 77, or 78(2) of Chapter 6, Article 75(2) of the same Chapter is applicable. Article 75(2) requires that a person who contravenes the cited provisions: (a) Shall be subject to the applicable disciplinary procedure for the relevant office. (b) May in accordance with the disciplinary procedures referred to in paragraph (a) be dismissed or otherwise removed from office. Article 75(3) of the Constitution then provides that “ a person who has been dismissed or otherwise removed from office for a contravention of the provisions specified in Clause (2)is disqualified from holding any other state office.” Hon. Members, the importance of Chapter 6 cannot be overemphasized. This chapter is a key pillar to the new constitutional order seeking to uproot the culture of impunity and bad governance. It seeks to ensure that only persons of integrity assent to or remain in certain public offices. It, therefore, is very much in keeping with the letter and spirit of the Constitution that questions should be raised on the application of the provisions of Chapter 6. In ruling on the questions raised as to the eligibility of certain Members to take and subscribe to the oath or affirmation of office under the new Constitution and to take up certain state offices, I wish to draw the attention of this House to three important matters. Hon. Members, I will pause there so that those at the entrance can walk in.

Order, hon. Members! I wish to draw the attention of this House to three important matters. First, the question must be asked about the applicability of Chapter 6 of the Constitution in general, and Article 75 in particular, to circumstances arising before the coming into effect of the Constitution. Is Chapter 6 and Article 75 in particular, retrospective in its effect, so that the disqualifications of persons from holding certain state offices can operate on account of misdeeds and removal from office under other laws prior to the coming into force of this Constitution? That is the first question you posed. Or is it the case that the chapter and the article are prospective and must apply to events and circumstances arising after the coming into force of the Constitution? Second, Article 50 of the Constitution has explicit provisions relating to fair hearing. Broadly, the article provides that any person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court, or if appropriate, another independent and impartial tribunal or body. In the question on the applicability of Chapter 6, not a question leading to a dispute within the meaning on the Constitution, that entitles an affected person to the benefits of the requirements of natural justice and fair hearing contemplated in Article 50 of the Constitution. Third, the new constitution just like the former constitution, has defined the respective territories and constitutional competence of the various arms of Government. In particular, the competence to determine whether the Constitution has been contravened or threatened with contravention, is in terms of Article 258 of the enforcement of the Constitution vested in the courts. Article 258(2) affords the locus standi to institute court proceedings to a person making such a claim either acting on their own behalf or on behalf of other persons or generally in the public interest. Hon. Members, my analysis of the three questions that I have raised leads me to the conclusion that the matters raised regarding the applicability of Chapter 6 and its application to certain Members of this House are not matters which can properly be determined by the Speaker at the present time. These are important issues going to the scope and intendment of the Constitution, the protection afforded by the Constitution to the right of individuals and the competence of the different arms of Government. Furthermore, the questions raised are not limited to the National Assembly and its Members. They are questions about the applicability of the Constitution and its provisions to all other state officers. Hon. Members, in respect of concerns about the eligibility to be sworn in of Members who have cases pending in court, a somewhat different perspective applies. Firstly, there is no provision in the Constitution barring a state officer from being sworn in terms of Section 13 of the Six Schedule on the grounds that the state officer has a pending court case. Indeed, Section 22 of the Sixth Schedule makes it clear how pending judicial proceedings and matters are to be dealt with. That section provides that “all judicial proceedings pending before any court shall continue to be heard and shall be determined by the same court or a corresponding court established under the Constitution or as directed by the Chief Justice or the Registrar of the High court.” The Constitution, therefore, clearly recognizes that a person facing any court case continues to be entitled to have the case heard and determined one way or another. The Constitution has not taken away this right. Hon. Members, in the light of all the circumstances, it will, in my view, be a usurpation and probably the first step on a new and perilous journey towards the return of impunity for this House to arrogate to itself the function of interpreting unilaterally and without due process the meaning, scope and application of the provisions of the new Constitution, extending well beyond the operations of the Legislature. I am satisfied that the Constitution has adequate mechanisms for its own enforcement. In particular, and as I mentioned yesterday, under Article 258 of the Constitution, it is open to any Member at any time to utilize the mechanisms established by the Constitution to obtain a conclusive determination on this matter. If upon such determination, it is found that any person who was sworn into office ought not to have been sworn, or that any person holding any office is not eligible or is disqualified from holding such office, appropriate orders and reliefs will be issued and all persons including the Speaker of the National Assembly will be obliged to abide. Order, hon. Member! I will allow those at the entrance to walk in.

Hon. Members, I therefore, rule that in the absence of any lawful obstacle, all Members of this House shall take and subscribe to an Oath of Affirmation as prescribed in the Constitution of the Republic of Kenya commencing forthwith.

Order, hon. Members! Please lower the level of your consultations! This is a most dignified ceremony. Please love your neighbour as you do yourself. Just as you would want to be heard when you take your oath, please hear the others as they take their Oath.

Chepkitony Kipkosgei Lucas

Cheruiyot Kipkemoi Zakayo

Dache John Pesa

Duale Aden Bare

Order, hon. Members! We will proceed with the ceremony but as I had indicated in my communication at the beginning of this ceremony, His Excellency the President, the Right Hon. Prime Minister and His Excellency the Vice-President will have priority in accordance with our practices as captured in the records of this House. So, now that His Excellency the President has arrived we will move to him as soon as we have dealt with the Member for Turkana Central and the Member for Subukia, who are already on the queue, and so that we also give His Excellency the President and the Right Hon. Prime Minister time to acclimatize themselves with the Chamber.

Ethuro Ekwee David Mr. Gaichuhie Ributhi Nelson

Order, hon. Members! Those of you who are finding a place to sit, please do so, as much as possible, in silence. Those who are consulting, please lower the level of your consultations. There is space to the left of the Speaker in the Chamber, but please try and find a place to sit quietly. If you cannot find a place to sit, please find a place to stand.

Kibaki Mwai Raila Amolo Odinga

Order, hon. Members! Hon. Members, we will make an exception to the order of the swearing-in and accommodate the two joint Chief Whips in the next batch of hon. Members to be sworn-in. I am informed that they are required to carry out their duties inter alia in the House and away from the House that go to mark this occasion.

Midiwo Jakoyo Washington Muthama Nduya Johnson Gesami Ondicho James Gitau Njuguna Peter Githae Njeru Robinson Githunguri Munga Stanley Godhana Gaddae Dhadho Gumbo O. Nicholas Gumo Omulo Fredrick Gunda Fondo Benedict Haji Mohamed Yussuf Imanyara Gitobu Jeffah Kingi Amason Jirongo Shakhalaga Khwa Cyrus

Order, hon. Members! It is now the pleasure of the His Excellency the President to take his leave. The Right Hon. Prime Minister also wishes to leave at this point so that they can attend to other State functions, including a swearing-in ceremony at State House. So, hon. Members, please be upstanding!

Joho Ali Hassan Kabando wa Kabando Kaino Kipchumba Boaz

Kajwang Otieno Gerald

Kaloki Kyalo Philip

Kamama Abongotum Asman

Kamar Jepkoech Margaret

Kamau Irungu Jamleck

Kamau Maina James

Kambi Kazungu Samuel

Kapondi Chesebe Fred

Kariuki Ngata John

Karua Wangari Martha

Kathuri Mureithi Emilio

Kenneth Peter

Kenyatta Uhuru

Keter Cheruiyot Charles

Keya Manyala Atanas

Keynan Adan Wehliye

Khalwale Boni

Khang'ati Alfred

Khaniri Munyasa George

Kigen Kipkorir Luka

Kiilu L.N. Peter

Kilemi Valerian Mwiria

Mrs. Kilimo, you forfeited your chance! We will come back to you during the second round!

Kilonzo Mutavi Charles Kilonzo Mutula

Kilonzo Kiema Julius

Kimunya Muhinga Amos

Kinyanjui Maiyani Lee

Kioni Ngayu Jeremiah

Kipkiror Cheptumo William

Kiptanui Kiplagat Jackson

Kiuna Joseph Ng'ang'a

Kiunjuri Mwangi Festus

Kivuti Maxwell Lenny

Koech Kibet David

Koli Nanok Josephat Kones Pauline Cherono Kones Kipyegon Julius Kosgei Jemng’etich Sally Kosgey Kiprono Henry Kuti Abdi Mohamed Kutuny Serem Joshua Laboso Joyce Cherono Lagat Kiptarbei Elijah Lankas ole Nkoidila Lekuton Joseph Lesrima Saimanga Simeon Lessonet K. Moses Letimalo Lakalei Raphael

Linturi Mithika Franklin

Litole MwotinyWilson

M’Mbaya Justus Kizito

M’Mithiaru Ntoitha

Machage Gisuka Wilfred

Magerer Langat Kiprono

Magwanga Oyugi Joseph

Maina Mwangi Ephraim

Mathenge Murugi Esther

Mbai Itwiku Benson Mbarire Mutitu Cecily

Order, hon. Members! Hon. Members, you will recall that after I took the oath, the next person to take the oath as required by law in the House was the Deputy Speaker. But on careful reflection and interpretation of the law, the Deputy Speaker wears two hats in the House. He is by the provisions of the Constitution and other relevant laws the Deputy Speaker in the House but he also is a Member of Parliament representing the people of Lagdera. So he is, therefore, under duty to take oath as a Member of Parliament representing the people of Ladgera. So, hon. Members, I will now invite the Deputy Speaker, the hon. Farah Maalim to take a second oath.

Farah Maalim Mbau Elias Peter Mbiuki Japheth Kareke Mbugua Simon Metito Katoo Judah Michuki John Njoroge Midiwo Jakoyo Washington Mututho John Michael Njenga Elmi Mohamed Ibrahim Mahamud Mohamed Maalim Monda Robert Onsare Mudavadi Musalia Wycliffe Mugo Wambui Beth Mung’aro Gideon Maitha Munyaka Kioko Victor Munyes Kiyonga John Muoki Mulatya Isaac Muoki Mutula Daniel Mureithi Kihara Erastus Murgor Recha Julius Muriithi Ndiritu Murungi Kiraitu Musila David Musyimi Mutava Muthama Nduya Johnson Mwadeghu Ludindi Thomas Mwahima Masudi Mwalimu Mwaita Komen Silas Sammy Mwazo Danson Mwakwere Chirau Ali Mwangi Muturi C. Barnabas Mwatela Calist Andrew Mwathi Mungai Peter Mwau Harun John Mwaura Kiburi Njuguna David Mwiru Mburi Muthengi Alex Ndambuki Musyoka Gideon Ndeti Wavinya Ng’ang’a Nguyai Lewis Ngilu Kaluki Charity Ng’ong’o Mbadi John Ngugi Mwaniki David Nkaisserry Kasaine Joseph Ntimama ole Ronkorua William Nuh Nassir Abdi Nyamai Mutisya Charles Nyammo Thombe Francis Nyamweya Manson Oyongo Nyongesa Otuoma Paul Obure Mogere Christopher Odhiambo Bwire Alfred Oginga Oburu Ogindo Otieno Martin Ojaamongson Odeke Sospeters Ojode Orwa Joshua Okemo Chrysanthus Olweny Ayiecho Patrick Ogari Simon Nyaundi Ombui Moriasi Wilfred Omollo Ojwang Cyprian Ongeri Kegengo Samson Ongoro Elizabeth Masha Onyancha Charles Onyonka Momoima Richard Oparanya Ambetsa Wycliffe Orengo James Aggrey Osebe Nyambati Enock Walter Otieno Anyango Dalmas Otichilo Khasilwa Wilber Outa Otieno Patrick Poghisio Losuron Samuel

Rege Kwanya G. James

Ruteere Muriuki Silas

Rutto Kiprono Isaac

Saitoti George

Sambili Jepkemoi Hellen

Sambu B.A. Wekesa

Sasura Tarry Hussein

Shaban Namsi Naomi

Shitanda Soita Peter Simiyu Eseli David Sugow Aden Ahmed Langat Benjamin Waibara Kungu Clement Wamalwa Ludovic Eugene Wambugu Muchiri Clement Warugongo Nemesyus Washiali Jomo Benjamin Wekesa Mahalang’ang’a Noah Were Aoko David Waititu Ferdinard Ndung’u Wetangula Masika Moses Yinda Ochieng Edwin Zonga Mbwana Omar Konchela Gideon Sitelu Mohamed Hussein Gabbow Abdalla Amina Abdalla Shakila Affey Mohamed Abdi Kombo Musikari Nazi Maison Leshoomo Nyagah Joseph Nyamweya George Omari Noor Abdi Sophia Odhiambo-Mabona Millie G.A. Shabesh Rachael Wambui Sirma Musa Cherutich Yakub Muhamad Dory Mohamed Wako S. Amos Ali Mohamed Mohamud Abu Chiaba Abu Mohamed Anyang’-Nyong’o Peter Balala Najib Mohamed Baya S.K. Francis Bett Franklin Bifwoli Wakoli Sylvester Kajembe Seif Ramadhan Kilimo Jebii Linah Rai Gonzi Samuel Ruto Samoei K. William Twaha Fahim Yasin

Is there any hon. Member in the House who has not yet taken his or her oath? Well, it will seem that we are all covered. Hon. Members, those of you who are Members of the Parliamentary Service Commission, you will, please, proceed to Committee Room 9 to take your oath of office as soon as the House rises.

Order, hon. Members! Hon. Members, that then brings us to the end of business for the day. Therefore, the House stands adjourned until Tuesday, 31st August, 2010 at 2.30 p.m.

The House rose at 6.50 p.m.