Senate must respect Kenyans’ will on critical matters put up for debate

This is my first article in the year 2015. And it is on the Senate, and on a subject of great concern to the Kenyan people: the Security Laws (Amendment) Act No. 19 of 2014. This law was rushed through the National Assembly within ten days, and was signed into law by the President without being taken to the Senate as required by Article 110(3) of the Constitution. In effect, a total of 21 existing laws were amended which adversely affected the Constitution.

It is with this in mind that the Senate Minority Leader, Sen Moses Wetang’ula, on the 23rd of December, after receiving support from 15 Senators as required by the Standing Orders, petitioned the Speaker to call a Special Session of the Senate to discuss this matter. The Speaker, with a notice in the Kenyan Gazette No. 9288 of December 24, 2014, finally convened the Senate on of December 30, 2014.

The motion before the House moved by Sen Wetang’ula canvassed honorable senators to resolve on two issues. One, that the Security Laws (Amendment) Act, No. 19 of 2014 is unconstitutional and therefore null and void as consideration and passage of the Bill violated Article 110(3) and (4) of the Constitution.

Two, that the Security Laws (Amendment) Act, No. 19 of 2014 be included in the compendium of Bills set out in the Resolution of the Senate on Thursday, 13th November, 2014 in respect of which the Senate is seeking an Advisory Opinion from the Supreme Court on the constitutional status of Acts of Parliament which have been passed by one House of Parliament and assented to in contravention of Article 110(3) of the Constitution.

As the Hansard record of the Senate proceedings of the Special Session shows, Senator Wetang’ula was not able to move the motion because the Senate Majority Leader Senator Kithure Kindiki stood on a point of order bringing to the attention of the House the fact that the matter being canvassed contravened Standing Order No. 92.

This Standing Order essentially says, in the first four sections, that no motion shall be discussed in the House when the subject of such a motion touches on a matter or matters “squarely, directly or actively before a court of law.” In the event that any attempt is made to do so, such attempt or attempts shall be deemed to be sub judice.

Apart from the sub judice matter, Prof Kindiki argued that the Senate, having demanded respect from other arms of government, needed to extend similar respect to these other arms of government, particularly the Judiciary. To quote him:

“We have asked courts not to injunct this House, because when a matter is active before this House it cannot be injuncted.” In other words, to Sen Kindiki, discussing this matter in the Senate while it was active in the courts was tantamount to the Senate injuncting the courts.

 

The same Standing Order No. 92 that Sen Kindiki relied on also states, in its fifth paragraph the following: “Notwithstanding this Standing Order, the Speaker may allow reference to any other matter before the Senate or a Committee.”

Notwithstanding the sub judice issues that Sen Kindiki raised, the Opposition, including Sen Billow Kerrow, drew the attention of the Speaker to substantial issues to consider in putting aside the matter of sub judice and letting the House debate the motion as an issue of national importance. These issues were as follows.

First, decisions by Speakers on matters like these are decided by precedence: what have previous Speakers, under similar circumstances, decided? In this particular case, the most relevant ruling was that by Speaker Kenneth Marende on September 10 2009 on a matter of sub judice brought before Parliament by the then Minister for Justice and Constitutional Affairs, the late Hon Mutula Kilonzo.

In a nine page ruling Speaker Marende made pertinent observations which Speaker Ethure should not have ignored, most significantly because Senators Wetang’ula, Orengo, Khalwale, Omar Hassan, Billow Kerrow, Anyang’ Nyong’o and Janet Ong’era referred to the same at length.

The observations raised by Marende were (a) that the sub judice rule should not stop discussions in the House relating to a ministerial decision as well as issues of national importance; (b) that the rule can only apply if discussions in the House are likely to prejudice proceedings in court— but this is unlikely since “ court proceedings are presided over by judicial officers properly trained in law and who have taken an oath to discharge the functions of their office without fear or favour and without extraneous influences being brought to bear on their work.”

Marende went on to point out that in the ordinary course of affairs, judicial officers of any repute are very unlikely to be swayed by what is said in Parliament; (c) that in line with precedents from similar jurisdictions, the House should not abandon a matter over which it is seized on the ground that the matter has become subject to litigation in a court of law.

In the case of Speaker Ethuro, not only did he not address the issues raised by both sides adequately but he rushed, in a manner reminiscent of the Supreme Court ruling in the matter the Presidential elections in 2013, to make a decision without any substantial pronouncement on the sub judice issue in this particular case.

 

With reference to debates in the House, the Speaker made the following points. One, since the matter before the House is tantamount to discussing a secret matter, he was willing “to consider this matter on that basis”.

Two, that the particulars—not necessarily the arguments—regarding the matter being sub judice had been adequately provided to the House. Three, that the matter is indeed a matter of national importance. Four, that since the Senate has been “ claiming that our mandate is being restricted, we should be the last ones to do the same to others.

Five, that although Article 117 of the Constitution gives the House freedom to discuss anything and any matter as observed by Senator Hassan Omar, the same Article gives the Senate powers to set for itself Standing Orders that may limit debate on certain matters.

 

Since Speaker Marende had previously pronounced himself extensively on the above matters that Speaker Ethuro was addressing, one expected that Ethuro would have extensively used this precedence to come to a final conclusion.

 In the final analysis, however, the concluding remarks of Speaker Ethuro were disjointed, rather incoherent and with a conclusion based more on the substantive motion which was yet to be moved by the Minority Leader rather than the preliminary procedural issues raised by the Majority Leader and canvassed effectively on the floor of the House. The fact that lawyers from the Senate were arguing the case in court on behalf of their clients was hardly relevant to the sub judice issue.

Yet this provided the Speaker with his final salvo of agreeing with Sen Kindiki to stop the debate in the House. Speaker Ethuro could have performed much better by addressing the issues raised as elegantly and substantively as Marende used to do, and then making a sound decision either way; we would have all been proud of him. His rushed and poorly argued decision lowered the standards of the Speaker of the Senate, and only mediocre Speakers may in future refer to this particular ruling.

In retrospect, it would have been much better for Speaker Ethuro to have given a ruling which gave him the night off to go and write a well informed decision. He would have then gazetted a new Special Session on Thursday at which he would have given a well written considered ruling addressing himself to the substantive issues raised by Senators. This would have given him time to take a more careful look at the import of Speaker Marende’s precedence setting ruling which he dismissed in a cavalier manner in his own pronouncement.

But it seems that the aphrodisiac of being in power at times robs us of good sense of judgment. It leads us to think that full explanations of our actions— especially towards those over who we have power—are not really necessary.

A feeling of “letting them have it whether they like it or not” easily overwhelms us, and we wallow in brief moments when a sense of conquest prevails as we enjoy sitting on the throne of King Hubris. I sincerely hope that our Speaker has not been captured by this malaise.