TOGETHER WE STAND TO SHAPE OUR FUTURE

ABDIKADIR LAWYER (MANDERA CENTRAL MP)  CONTRIBUTING TO THE ADOPTION OF REPORT ON REAPPOINTMENT OF KACC DIRECTOR/ASSISTANTS  (Debated on 16th September, 2009)
Mr. Abdikadir: Thank you, Mr. Deputy Speaker, Sir. I have the honour to second this Motion. I believe the hon. gracious lady has clearly laid down the legal basis for the appointments. There is absolutely no doubt that the appointments were contrary to statutes. The straw that the other side is hanging on in terms of disappointment is the reappointment that is mentioned in the schedule. I just want to point out that any schedule in any Act always has the ruling section and the top of that schedule. The ruling section for this schedule is Section 8. Section 8 is very clear on the appointment procedure.

Mr. Deputy Speaker, Sir, secondly, nowhere in the schedule does it talk about the President appointing anyone. It says one may be re-appointed. Nowhere does it say it is the President that appoints. This issue is not about the President. It is not about the Executive. It is about this House. Today, this House has a date with destiny. As to whether as a House we will uphold the rule of law, or whether we will flounder on the altar of politics every time this nation requires leadership.

Mr. Deputy Speaker, Sir, the issue of Executive prerogative has been mentioned. We have been informed that this House wishes to take away powers from the Executive. No, this House has enough powers of its own without having to grab any powers from anybody.
On the issue of separation of powers, let me, first of all, say that as a fused system ourselves, we do not have a very clear system of separation of powers in this country, by law. The very fact that on the Front Bench are Members of the Executive who are also Members of Parliament; the very fact that the President and Prime Minister are elected Members of this House, that clearly shows that by law we do not have a system that is clear on separation of powers. We are closer to the system called fusion of powers.

Mr. Deputy Speaker, Sir, parliamentary systems of government have fusion of powers where the Executive resides in parliament. Then parliament is absolutely supreme. In terms of presidential system of government, you have very clear separation of powers where the Executive has very little to do with Parliament.

Even in presidential systems, parliament has a very critical role. In fact, the most clear presidential system, the American system of government, the Congress appears before the Executive in their constitution. Mr. Deputy Speaker, Sir, on whether this House is taking over the work of the courts and whether it is only the courts that should interpret law, the Executive interprets law every day through tribunals. For example, the Law Society of Kenya or the Attorney- General Chambers has the disciplinary committee where matters are taken, adjudicated on and determined. That is not a court.

On issues of taxation, the Kenya Revenue Authority (KRA) and the Minister for Finance interpret the law. On issues of immigration, the Minister for Immigration and immigration officers everywhere interpret the law. Regulatory authorities, every day, in this country interpret the law.

On the issue of whether Parliament can interpret the law, Parliament must interpret the law for itself because we cannot decide. Now that we have been given a duty by a law, to shirk it and say: “Let the court go and interpret the law for us--- is wrong. Parliaments, sometimes, even become courts. The highest court in the United Kingdom is the House of Lords, the Upper Chamber of the House of Parliament. That might shock a few people, but it is true, that the Upper Chamber of the House of Lords in the United Kingdom is actually the highest court in the land where you go for appeals.

Mr. Deputy Speaker, Sir, in terms of the US Congress, in case we go to the other side which is the presidential system, the House of Senate turns itself into a court when the President is being impeached. The Chief Justice actually comes to sit in the Chair.

The Chief Justice of the Supreme Court comes to Parliament and sits in the Speaker’s Chair. The senate actually becomes the court. These fears that we are creating that we are running amok is not true absolutely. This House has the role to interpret the law for itself. In fact, nobody else can interpret for it those laws. That is why we have Section 57 of the Constitution and a whole Act of Parliament that deals with privileges. That is why no court can interfere with the resolutions of this House. Litigants can litigate on issues of constitutionality of Bills and statutes passed by this House and the court can strike them down. That is their mandate.

We, as a House, once the responsibility is given by this House to itself, we have to interpret for ourselves whether it is the Standing Orders or other Acts. On the issue of the Kenya Anti-Corruption Commission (KACC), in 2003 after the glory of the NARC win, this Parliament decided to usher in a whole new way of doing things. That is what led to the bringing into force of this Act and the creation of the KACC.

The KACC is a creature of this House and is a special institution. It is not a department in the Ministry of Justice, National Cohesion and Constitutional Affairs. It is not a parastatal. It is a special institution for a special purpose. That is why in setting it up, Parliament went to great lengths to create systems special for that institution.

Mr. Deputy Speaker, Sir, it is exempt from a lot of the Acts that parastatals fall under. That is why we created special salaries for that institution. That is why the officers of that institution are employed in a different manner than those in the general Civil Service. The procedure is very clear. It is not Parliament that appoints those people.

The procedure is three-tiered. We have an institution called the Advisory Board. This is the who is who of the professional institutions in this country. Currently, the Chairman of the Law Society of Kenya serves on that board. The Chairperson of FIDA, Kenya, serves on that board. The Chief Executive of the Federation of Kenya Employees serves on that board. The KMA serves on that board. The who is who of all the institutions that we look up to as far as professionalism is concerned serve in that board. These people are not busybodies. They are the ones to vet and recommend. In terms of re-appointment, they are the ones to appraise. It is not for the Minister of Justice, National Cohesion and Constitutional Affairs to appraise. In fact, the Minister appears nowhere in that chain. It is up to them to appraise and recommend to this House. The duty of this House is not subject to anyone. It is an original duty to this House; a legal duty to have a role in this process.

Mr. Deputy Speaker, Sir, if the advisory board comes to a Committee of this House and says: “We are of the view that the law was not followed and we need your assistance” what do we say? “Please, go to the courts, our hands are tied.” No. This House must provide answers.
When there is an original duty on this House to play a role in that process, what do we say, that we will sit back and leave that role to go away so that the courts can interpret the law? The law is very clear. The view is not just for the Advisory Board. It is the same view of the LSK, the International Commission of Jurists, FIDA and any other serious institution that deals with the law. Unfortunately, it is not the view of the Minister for Justice, National Cohesion and Constitutional Affairs or the Attorney-General. We are not surprised as a Committee about those views. They are, however, a minority view.

Having come to that conclusion, the proposal from the Committee was intervention in two ways: one, was on the process of the Appropriations Bill. Two, was the issue of subsidiary legislation. A gazette notice is not a page from the Holy Bible or the Holy Quran. Where does it get its authority? Why does the Minister not just put a notice in any of the newspapers? In fact, newspapers have larger circulation. If it is just a matter of giving notice, why do you not do it in any of the newspapers? Why do you have to do it in the Kenya Gazette? Why? Because it has some force of law. When the Gazette Notice is dealing with supplementary Bills, it is an instrument of law. That is where it gets its force. That law does not come from the Executive. It is subsidiary legislation. When that instrumentality uses powers conferred by this House through subsidiary legislation which is the gazette notice - a notice is very clear in the definition of Gazette Notice, irrespective of what you will be told, this is subsidiary legislation.

This House has primary responsibility of supervising subsidiary legislation. That is why we have a Committee of Parliament that has no other role other than supervision of subsidiary legislation. And yes, this House has the powers to annul. In fact, nobody has better powers to annul. Not even the courts!

Mr. Deputy Speaker, Sir, as far as the Appropriations Bill is concerned, in 1848 the Americans went to war with Mexico. This war is what led California, Arizona, Utah and many States in west to come to the United States of America (USA). One congress man from Pennsylvania had this amendment attached to the Appropriations Bill. It read:- “Providing that neither slavery nor involuntary servitude shall ever exist in any part of the said territory acquired from Mexico”

It famously came to be called the Wilmot Proviso. This was a war on Appropriations Bill which had very little to do with slavery. However, the hottest issue at hand at that time was slavery. This was parliament using Appropriations Bill to impact on policy. That is exactly what we are proposing. As a Committee we intend to use the Appropriations Bill to impact on this policy.

Mr. Deputy Speaker, Sir, it is absolutely in no doubt that this House has the absolute right to look at the Appropriations Bill and amend it. The Appropriations Bill is like any other Bill of Parliament. There is absolutely nothing special about it! The Deputy Prime Minister and Minister for Finance said today that any appropriation made will be made with the permission of this House. Credit to him! However, how can you even say that you cannot amend the Appropriations Bill? How can anybody say that you cannot nullify subsidiary legislation? This House can go further. This House, if it so wishes can actually---
Mr. Deputy Speaker: Order, Mr. Abdikadir! You are out of order! You are debating Order No.10 yet we are on Order No.9. The Appropriations Bill will come on its own. Right now, you are seconding the Motion that is brought by your Committee and the other Committee.
Mr. Abdikadir: Mr. Deputy Speaker, Sir, I was just showing the interventions that the Committee had decided. However, I will agree with your direction. This country is undertaking a lot of reforms. These reforms have to bear fruits.

The Kenya Anti-Corruption Commission (KACC) was part of the reforms introduced by the NARC Government. Parliament is right now a reformed institution. Parliament has a whole new set of Standing Orders. I beg that Ministers familiarize themselves with these Standing Orders. Parliament has a Financial Management Act in place. Parliament is free through the Parliamentary Service Commission (PSC). This is a reformed institution. It is time that Kenyans got the dividends of these reforms. If this reformed institution cannot uphold the rule of law--- This is about the rule of law. This country has to decide whether we will be under the rule of law or under the rule of man. If then this reformed institution cannot uphold the rule of law, then we are in a very dangerous institution. There will be no reason for going through all the other reforms we are talking about including reforming the Constitution.
I urge this House to adopt the Report. I beg to second.

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