|Senators from left Beth Mugo, Beatrice Elachi, Janet Ongera and Omar Hassan at Parliament|
Opposition Senators lost yet a battle mounted to challenge the legality of the controversial security laws.
Yesterday, Senators allied to the Coalition for Reforms and Democracy (CORD) failed to persuade Speaker Ekwe Ethuro to allow a motion sponsored by Minority Leader Senator Moses Wetang'ula (Bungoma) to proceed and give the Senate an opportunity to ventilate on the matter.
Majority Leader Kithure Kindiki (Tharaka Nithi) opposed the motion, arguing that it was subject to sub judice and that it contravenes Standing Orders.
The opposition wanted the House to make a resolution on two matters, the constitutionality of the contentious law and to make the new Act part of other laws on whose legality the Senate is seeking an interpretation from the Supreme Court.
Senators Wetang'ula, James Orengo (Siaya), Hassan Omar (Mombasa), Anyang' Nyong'o (Kisumu), Amos Wako (Busia) and Janet Ong'era (nominated) based their arguments on a previous ruling by former Speaker Kenneth Marende on the rule on sub judice.
"The Marende rulings are fine but Standing Orders 92 of the Senate is clear that the House cannot debate on the matter that is active in court, in which the ruling date has been given," ruled Ethuro.
He continued: "If it was somebody else who went to court, there would be no problem but if it is senators or some of us who went to court, this weakens our position. Let us give the court an opportunity to conclude this matter. This matter can still be revisited. We can still bring an amendment to the law, which is allowed. Therefore we cannot proceed with this motion."
This ruling caught the opposition by surprise, and Wetang'ula stated his displeasure at the turn of events, saying the Jubilee side was only wasting time, so that they are denied the opportunity to ventilate on the matter.
"None of these senators is in court. The country is watching and listening. The country is bleeding because of erroneous laws yet the Senate says it cannot consider this matter," he said.
Prof Kindiki noted that Standing order 92 (1) states that no senator shall refer to any particular matter, which is sub judice (pending in court).
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"This matter is actively before the High court of Kenya. Standing order 92 (3) (c), talks about civil proceeding setting down case for trial, determination or dismissal," said Kindiki.
Wetangula defended the motion, saying yesterday's special sitting was to discuss an Act of Parliament, unprocedurally passed by the National Assembly.
Some Jubilee Senators claimed that the outcome of the debate was likely to influence the court's ruling on the case.
"This is a matter of national importance and judicial officers are properly trained in law. They have taken oath of office to carry out their duties without fear or favour and are unlikely to swayed by what is discussed in Parliament," said Wetang'ula.
He continued: "This debate is a matter of national importance and cannot influence ruling of another arm of Government. We are merely seeking to deliberate on a matter of a national concern."
Kiraitu Murungi (Meru) said the Opposition was jumping the gun by attempting to discuss a matter already before court.
"If we are going to go by the argument of our colleagues instead of sticking on proceeding issues of competence then we will be loosing the point. This matter cannot be discussed in this session," he said.
Orengo emphasised that issue of sub judice does not arise adding that Parliament "must be allowed to discuss" the matter.
"If indeed the matter is sub judice, it is beyond repair. The motion is unconstitutional as it violates article 110 (3)(4) of the Constitution," said Deputy Speaker Kembi Gitura (Murang'a).
Omar argued that article 117 allows Parliament to discuss matters without limitation, and blocking that motion would amount to gagging the House, which the speaker refuted.
"It is you who gagged the House. CORD respects the rule of law. Honestly we wanted to deliberate on this matter but you gagged us," said Beatrice Elachi.
"Going ahead with this motion will be setting a dangerous precedent. This is not right. I have tabled evidence of certified copies obtained from the registry of the High Court," said Kindiki.