Precedent set by brawl tops concerns as House prepares to reopen

As Parliament resumes its sittings the day after tomorrow, one disturbing question on the lips of many legislators and lawyers is how parliamentary business will proceed under the environment of hostility witnessed in December.

Even more worrying is that the fist-fights, name-calling, tearing of order papers and a senator’s pair of trousers, pouring of water on colleagues, biting of an MP’s finger and the eventual passing of the Security Laws (Amendment) Bill under such chaotic circumstances may have set a bad parliamentary precedent.

Parliament, like the courts, is a house of precedents. The import of this is that a ruling made by a Speaker can form part of the Parliament’s tradition and set of rules.

This begs the all-important question: Will National Assembly Speaker Justin Muturi ever have the moral authority to suspend debate on account of disorder? Put another way, can it ever get more chaotic than was the case on December 18, last year?

During the highly polarised debate, Muturi was compelled to read the amendments to the Bill while protected by parliamentary orderlies as some MPs engaged in a shouting match with Opposition legislators attempting to disrupt the process by throwing paper and other objects at him.

“A precedent has been set and this puts us in very awkward circumstances. With such a history behind us, I do not know how we shall effectively control the House,” regrets the Deputy Speaker, Dr Joyce Laboso.

Laboso confesses that members of the Speakers’ Panel are indeed faced with a “very big challenge” because legislators are bound to draw from the chaotic scenes to sway rulings in the House.

“The chaos that took place was totally uncalled for. What happened on the floor of the House, in my opinion, was not a legislative process but rather politics at play,” Laboso, who is MP for Sotik, said.

And the Minority Deputy Chief Whip, Dr Chris Wamalwa, implores that this particular ugly drama not go on record as a precedent: “The matter is before the courts and one of our (Coalition for Reforms and Democracy – CORD) prayers is that the entire process (of enactment of the Security Bills) be nullified.

“We cannot allow such a chaotic exercise where strangers in Parliament, in the name of clerks, orderlies and security officials, participated in debates by chanting to approve Bills, to be on record.”

But National Assembly Majority Chief Whip Katoo ole Metito says the events of December are history: “We will only treat that low moment as part of the lessons learnt as we focus on the future.”

Parliaments the world over document and compile rulings of Speakers as part of precedents of the House. These then form part of the traditions and rules of the House upon which incoming Speakers benchmark their rulings.

In a book titled, House Practice: A Guide to the Rules, Precedents, and Procedures of the House, published in 2011, Holmes Brown, Charles W Johnson and John V Sullivan explain the significance of parliamentary precedence in the US House of Representatives.

“In resolving questions of order, the Speaker and other presiding officers of the House adhere to the jurisprudential principle of stare decisis – a commitment to stand by earlier decisions. This fidelity to precedent promotes analytic consistency and procedural predictability and thereby fosters legitimacy in parliamentary practice,” the book says.

Focusing on Kenya’s Parliament, human rights lawyer Harun Ndubi opines that the August House has lost honour and regaining it may be impossible.

He partly attributes the chaotic session to a desperate move by Opposition legislators to counter the so-called ‘tyranny of numbers’ unleashed by their Jubilee rivals.

“The Speaker lost out big time after failing to show leadership,” claims Ndubi.

Efforts to reach Muturi for comment were fruitless as he was said to be overseas on official duty. The Speaker has in the past absolved himself from blame, instead accusing the Opposition for vowing to cripple parliamentary business.

Reacting on the same, Muturi’s deputy, Laboso, says she restrained herself from participating in the fracas or fighting back owing to her position.

“This was not about Joyce but rather the office of the Speaker. Of course Joyce, as an individual, can fight back viciously. But such an act is demeaning to the office of the Speaker,” she says.

Separately, the chairperson of the Commission on Administrative Justice, Otiende Amollo, argues that unlike in courts, precedents in parliamentary practice are neither automatic nor binding.

“A Speaker may adduce his or her argument by borrowing from past examples, but this is not mandatory. And in the case of parliamentary conduct or misconduct, this is different. It only becomes complicated for the Speaker if MPs use such instances (past rulings) to justify their mischief,” argues Amollo.

Even then, the constitutional lawyer, who served in the Committee of Experts that midwifed the current Constitution, says there is sufficient condemnation of what happened in Parliament last December. Amollo believes there is a mutual understanding among MPs from both sides of the political divide to restore the dignity of the House.

According to Amolo, the law assumes that Parliament will be a self-regulating body, including through setting up of standing orders.

Deterring factor

“It will not be the wish of the Judiciary to make a ruling on parliamentary business on a day-to-day basis, but on this particular matter, the decision that will be arrived at will have a lasting influence on the way parliamentary business is run,” says Amolo. Laboso proposes that legislators tighten the standing orders: “Some kind of punishment must be put in place as a deterring factor, even if it means locking an MP out of the House for six months.”

Meanwhile, Wamalwa proposes that the Speaker call a kamkunji (informal House session) on Tuesday morning for purposes of team building.

Towards this end, he says CORD has identified him and three other legislators, Minority Leader of National Assembly Francis Nyenze, his deputy, Jakoyo Midiwo, and Minority Chief Whip Thomas Mwadegu, to spearhead talks with their Jubilee counterparts.