Vihiga Senator Godfrey Osotsi has sponsored a Bill that seeks to enhance the fine from Sh500,000 to Sh2 million for those who fail to appear before Parliament or committees.
The Parliamentary Powers and Privileges (Amendment) Bill, 2023 seeks to amend the Parliamentary Powers and Privileges Act to provide clarity on how the powers of arrest are to be exercised by Parliament and the committees.
Osotsi in the Bill that is before the Senate seeks to guarantee persons who fail to appear before Parliament and committees the right to a fair hearing prior to any adverse action being taken against them according to the law.
“The purpose of this Bill is to give effect to Article 125 of the Constitution, which grants Parliament the power to summon any person to appear before it, as well as power to enforce the attendance of witnesses, as well as Article 50 which guarantees the right to a fair hearing,” he said.
Parliamentary Powers and Privileges (Amendment) Bill 2023 seeks to amend the procedures for issuing summons and provides for the execution of an order of arrest by a police officer or an officer of Parliament.
Osotsi also seeks to have the fine that may be imposed by the court for someone convicted for non-appearance before the House or committee enhanced from Sh200,000 to Sh2 million if the Bill is adopted by the Senate.
The amendment requires the Clerk to specify the date of appearance which should be at least seven days from the date of receipt of the summons and to cause the summons to be served within seven days of receipt of a directive while the House or committee may require a person to appear before it within a shorter period as it may determine, considering the urgency of the matter.
“Execution of an order of arrest is to be done by a police officer or an officer of a House of Parliament, where an order of arrest is to be effected by a police officer, the Clerk shall transmit the order to the Inspector General for execution, where an order of arrest is to be effected by an officer of a House of Parliament, the Inspector General shall facilitate the arrest as may be requested by the Clerk,” said Osotsi.
The Bill states that persons who have been arrested may be held either at a place designated under the National Police Service Act or by the Clerk with the person to be produced before either the court or the House or committee that summoned him on the next working day.
The Bill has already undergone public participation after which the Senate Justice and Legal Affairs Committee received written memorandum from the Kenya Law Reform Commission (KLRC), Kenya National Commission on Human Rights (KNCHR), Commission on Administrative Justice (CAJ) and the Council of Governors.
KNCHR raised concern over the increase of the fine from Sh200,000 to Sh2 million (over 300 per cent).
The commission argues in its submission that granting Parliament the power to execute arrest orders blurs the lines of separation between the legislative and judicial branches potentially undermining this fundamental principle; that Parliamentary committees cannot accuse, try, convict, and retain the proceeds of such cause as it is against the rules of natural justice.
“While the imposition of a sanction on an administrative basis against Members of Parliament may be considered passable as internal disciplinary procedures, the imposition of a fine or the ordering of the arrest of a witness in contempt may be considered criminal, however, Parliament does not constitute an independent court or tribunal for the purposes of contempt proceedings,” said KNCHR in its submission.
The KLRC submitted that the proposals contained in the Bill were constitutionally, legally, and technically sound, and meet the threshold for consideration by the Senate.
The CAJ recommended that clause 3(b) of the Bill seeking to amend section 18 of the Parliamentary Powers and Privileges Act be amended to require Parliament or the relevant committee to communicate or issue summons to a person in a timely and efficient manner.
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The Council of Governors proposed that clause 4(b) of the Bill be amended to provide for non-imposition of penalties where valid reasons were given to justify non-appearance before Parliament or the relevant committee.
“This would ensure that individuals summoned to appear were not unduly penalized for unforeseen circumstances beyond their control. This safeguard was essential to prevent unwarranted punitive measures and to uphold the principles of justice and due process thus safeguarding the rights of summoned individuals,” the said Council in its submission.