New Bill highlights MPs' self-centredness, again

Unbeknown to many, the National Assembly is plotting to amend the Constitution to shield Parliament from accountability — in terms of approval by the Controller of Budget — and exempt members of the Senate, National Assembly and county assemblies, and their actions from the oversight of the High Court.

In the Memorandum of Objects and Reasons of the Bill, the assembly justifies the ploy by claiming it seeks to restrain courts from interfering with matters pending consideration before Parliament and county assemblies. It posits that the High Court enjoys no supervisory powers over Parliament, and insists it can only determine the constitutionality of laws made by Parliament and assemblies.

The Bill seeks to amend Article 165 of the Constitution. It introduces provisions that exempt the High Court from jurisdiction in matters falling within the functions of Parliament, either of its houses and county assemblies. It also removes Parliament from the supervisory authority of the High Court alongside the Court of Appeal and Supreme Court.

Although the High Court has, from time to time, invalidated or suspended laws coming from the assemblies, the courts have never entertained discussions on whether Bills being debated are proper or improper. Courts have never suspended or invalidated matters being deliberated in the Legislature. In many cases, the courts have declared it would be premature and speculative to entertain issues that are under discussion in our legislative bodies. So, what is this Bill trying to cure?

Another aspect of the Bill is that it creates a fund in which all monies appropriated to Parliament will be deposited. It also provides that terms and conditions of members should never be varied to their disadvantage. In essence, the constitutional amendment seeks, among others, to ensure MPs' salaries are never reduced regardless of Kenya’s economic realities or what the Salaries and Remuneration Commission (SRC) has to say.

The irony is that the National Assembly is seeking to create a fund for Parliament, although they are yet to legislate to give effect to a constitutional requirement that creates the Judiciary Fund under Article 173 of the Constitution. Had Parliament done so, the Judiciary budget cuts crisis would not even be an issue because the Judiciary would be managing monies allocated to it by Parliament without the interference of the Executive.

Most of the Bill relates to powers and privileges of legislators as they conduct their business in the Senate, counties and National Assembly, such as immunity from prosecution concerning anything done in good faith in the lawful performance of their duties.

Curiously, the National Assembly has chosen to include this in the Constitution. Yet, Article 117 (2) of the Constitution provides that Parliament may provide for the powers and privileges and immunities of Parliament and its committees, the leader of the majority and minority parties, and chairpersons of committees and members. Further, 196 (3) provide that Parliament shall enact legislation providing for the powers, privileges, and immunities of county assemblies, their committees and members.

It is noteworthy that the current Powers and Privileges Act in Chapter Six of the Laws of Kenya came into force in 1952 and was only once amended in 2012. It is fully operational, and thus, there is no need for further legislation, let alone a constitutional amendment.

So why does Parliament want to amend the Constitution to include laws that they already have powers to make? Could there be another reason for this?

One-party state

The drafters of the Constitution were wary of Kenya’s history where Parliament legislated in their own interest to the detriment of the people. Examples include salary hikes, abolition of the Senate and introduction of Section 2(a) of the previous Constitution that introduced a one-party state.

The Bill includes a list of sensitive and crucial issues that cannot be amended by the standard two-thirds majority threshold. The issues include amendments touching on supremacy of the Constitution, territory of Kenya, sovereignty of the people, national values, the Bill of Rights, the term of office of the President, independence of the Judiciary, commissions and independent offices, functions of Parliament and devolution.

Since the Bill seeks to alter the jurisdiction powers of the High Court by exempting Parliament to their oversight role, the role of the Comptroller of Budget and the SRC concerning review of salaries - the Bill, by law, requires the approval of Kenyans through a referendum.

As Kenya is going through hard economic times, I advise Parliament to drop this Bill and instead concentrate on how to improve the economy, end corruption and improve livelihoods.

Mr Kiprono is a constitutional and human rights lawyer. [email protected]