Legal hurdles stand in way of punishing MPs associated with Ruto

Parties planning to de-whip nine errant Members of the National Assembly associated with Deputy President William Ruto might face legal challenges over tedious process stipulated in the Standing Orders.

President Uhuru Kenyatta‘s Jubilee Party and Raila Odinga’s ODM have initiated a purge on disloyal members from House leadership and departmental committees as a tool of meting out punishment.

Odinga's party has de-whipped members from Amani National Congress, Ford Kenya, Kenya National Congress (KNC) and Movement for Democracy and Growth (MDG).

National Assembly Standing Order 176 stipulates that a parliamentary party may discharge a member from a committee after according him or her an opportunity to be heard.  

It states: “A parliamentary party may discharge a member from a select committee after according the member an opportunity to be heard.

“The parliamentary party whip of the party that nominated a member to a select committee shall give notice in writing to the Speaker of the intention to discharge a member from a select committee.”

The Speaker is then required to notify the member within three days of receipt of the notice.

A parliamentary party for purposes of Standing Order 2 is defined as a party or a Coalition of Parties, which has at least 18 members in the National Assembly.

“The constitutionality of any decision or rule to de-whip members belonging to political parties other than parliamentary parties or independent members is therefore questionable. Does it mean committees are only a preserve of members belonging to parliamentary parties and hence such independent members or members belonging to other political parties are deemed to belong to the parliamentary parties which is legally not possible,” questioned an MP.

In this case only, Jubilee and ODM met the threshold of over 18 members in either House of Parliament.

It states: “Parliamentary Party” means a party or a coalition of parties consisting of not less than five per cent of the membership of the National Assembly.”

This would indeed be absurd because it implies that the electorate of constituencies with MPs from other political parties or independent members would not have representatives in committees to represent their interests both in the legislative and oversight roles of Parliament unless they associate with parliamentary parties.

Consequently, any decision to de-whip independent MPs or MPs belonging to parties other than parliamentary parties would definitely be contrary to the constitution as it would be denying constituents their representative, oversight and legislative rights as guaranteed under Article 95 of the Constitution.

This raises the question, can a parliamentary party de-whip a member it did not nominate to serve in the committees in the first place?

“Does it mean members elected by political parties other than political parliamentary parties or independent members should not therefore belong to committees unless they associate themselves with parliamentary parties, which association is prohibited by Article 103(1)(e) of the Constitution, another MP sought to know.

Worth noting

It is worth noting that only a parliamentary party that nominated a member to a committee can de-whip a member, meaning it is the preserve, for instance of ODM, ANC or Ford Kenya, to discharge its member from the committee.

Going by Speaker Justin Muturi's previous rulings and precedents of the House in implementing any decision of a parliamentary party to de-whip a member, the fate on the nine legislators now lies in his hands.

David Ochieng (Ugenya), who is MDG party leader stated, “I understand the excitement in the air about parties trying to discipline their errant members, but you can’t discipline those that are not your members! Nasa and its affiliate ODM should accept that we beat them in Ugenya and move on."

Opposition coalition has replaced National Assembly Minority Deputy Whip Chris Wamalwa (Kiminini-Ford Kenya) with Tongaren MP Eseli Simiyu (Ford Kenya).

Others affected are Bungoma Woman Rep Catherine Wambilianga and West Mugirango's Vincent Kemose.