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State Officers Must be Called to Order

Posted by on 30th January 2015

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Of late Parliamentarians have been acting in an undignified manner. Relevant Constitutional offices and institutions need to check Parliamentarians behavior to remind them the offices they hold require high integrity and good behavior at all times.

The recent behavior of Hon. Alfred Keter in which he used his office to abuse public officers and demand release of a truck owned by Hon. Sunjeev Birdi which had been lawfully held for lack of proper documentation is a case in point. The behavior of Senator Stephen Ntutu and MPs, Richard Kenta, Patrick Ntutu, Johana Ngeno and Korei Lemein was not only unfortunate but dishonorable in leading a protest which had been banned by the Cabinet Secretary for Interior.

The actions of these state officers are not in isolation. Many others have acted in similar manner in the past but nothing has been done to discipline them. They seem to believe that they are either above the law or the law does not apply to them. This is contrary to reality.

This breach of Chapter six of the Constitution and the Leadership and Integrity Act, 2012 cannot continue unabated. These state officers have an obligation to promote Constitutionalism as the public expects them to exercise their mandate in a manner befitting of the positions they hold.

Their behavior – as the Constitution Implementation Commission (CIC) has noted – needs to bring honor to the nation and dignity to the office and promote public confidence in its integrity. Unfortunately, their actions are contrary to these noble provisions.

Article 75(2) of the Constitution makes it mandatory that a state officer who contravenes the above provisions is subjected to applicable disciplinary procedures and may be dismissed or removed from office. If a state officer is dismissed or removed from office, they are disqualified from holding any other state office. Subjection to disciplinary procedures is not selective or elective but mandatory under the Constitution.

First, the Powers and Privileges Committees of Parliament must reign in their behavior. This committee oversees the behavior of MPs and Senators inside and outside Parliament and needs to be seen to be worthy the powers vested in it.

Secondly, the Ethics and Anti-Corruption Commission (EACC) must also come in strongly to investigate and recommend to the Director of Public Prosecutions (DPP) their prosecution for gross misconduct.

Thirdly, Political Parties who send these members to Parliament should also send the right message to the Country by disallowing and punishing its errant members.

It was on the basis of chapter six that in January 2012, the then Deputy Chief Justice Nancy Baraza was required to vacate office for allegedly acting in a manner inconsistent with her State office.

Chapter six requires state officers to maintain fidelity to the Constitution as it sets a high bar for the conduct of State officers. This is not a favor but an obligation which they must comply with and where they do not, disciplinary institutions must take action.

 

Allocations to Constituencies and Counties call for your Participation

Posted by on 23rd January 2015

Categories: Uncategorized

In his book ‘Episodes; From an MP’s Diary’, Sen. Eng. Muriuki Karue shares his journey on how development projects initiated through harambees did not see the light of day. The government never saw much need to support projects like classrooms and health centres to support the welfare of the people. This became his agenda when he joined politics as an MP in 1997.

Considered the father of the Constituency Development Fund (CDF) which came to fruition in 2003, the then MP, now Senator for Nyandarua County felt that setting aside five percent of government revenue would help ensure such projects are undertaken and the elected leaders can tangibly contribute the welfare of the electorate.

This year will be the 12th, since CDF has been disbursed to Constituencies. When marking ten years of its existence, the CDF Board authored that a total of sh106, 906, 102, 651 had been disbursed from 2003 to 2013 in the then 210 constituencies.

Each year, allocations increased. In the financial year 2013-2014, a total of sh21,973,899,997 was allocated while in this financial year 2014-2015, sh33 billion has been allocated. It is evident that the trend of increasing is not only remarkable but critical to alleviating poverty, ignorance and disease, the three core problem Kenya embarked on at independence.

Today with the position of Women Representatives, some more allocations to counties are on the way. The passage of the Affirmative Action Social Development Bill, will see the 47 Women Reps secure Sh2.03 billion from Treasury for social empowerment in their counties. The empowerment ranges from drug abuse control among the youth to entrepreneurial skills empowerment to women and the youth.

The kitty will be implemented if the regulations to guide the implementation of the Fund are approved by the Committee on Delegated Legislation in the National Assembly. The Women MPs will be patrons of the fund with each County receiving about Sh40 million each and about Sh7 million per constituency.

It is clear that allocations to MPs in this financial year will be over sh35 billion, a colossal amount that should go into good use because it is taxpayers money. It is only fair that those who pay these taxes not only have a say in how the funds are used but also participate in the planning process.

Public participation is not only a value in the Constitution but also a principle in governance which needs to take root. The funds should be spent according to the electorate’s needs and priorities. Further, the public must carry out social audits of the funds usage to establish quality.

Citizens have the duty to engage in line with Article 3 of the Constitution. As Parliament re-opens, take time to suggest how you want your taxes to be spent. Please use the hash-tag #BungeKE2015 and your views will be presented to Parliament. You have until 2 February 2015 to express yourself.

Let us engage Parliament more in 2015

Posted by on 15th January 2015

Categories: Uncategorized

Recent misbehavior by Parliamentarians within the precincts of Parliament and in public have brought to the fore questions about their actual roles and responsibilities. As representatives of the people in Parliament, Parliamentarians activity in many ways should reflect the pulse of the nation.

Parliament – Senate and National Assembly – performs representative, oversight and legislative functions which define and distribute the national cake to all. These functions being pivotal, mandate the people to engage more with the representatives they elected to ensure that these roles are skillfully and diligently executed.

The legislative role is about passing laws and amending existing laws to ensure they conform to today’s challenges and opportunities and are also progressive. 2015 marks the fifth year of the implementation of the Constitution and the period until August 27th, 2015 will mark a heavy legislative calendar in passing laws to implement it. In 2014, the National Assembly extended the period of passing some Bills meaning that they will be lumped together with those due this year, Bills to be passed.

There is a limit to postponing these Bills. For instance, the two thirds gender principle in Article 81 (b) of the Constitution must be implemented by August 27th as the Supreme Court Ruled in December 2012. Another critical Bill to be passed will be on public audit which will empower the Auditor General. In addition, the access to information law is crucial.

The representative role of Parliament means that they need to highlight and defend their employers; the people. Through question time, statements and motion, Parliamentarians put the interests of the people to the Executive arm of government. It is also supposed to challenge Executive that do not conform to the Constitution and the people’s reality.

In their oversight role, Parliamentarians check national budgetary allocations, the financial probity and general compliance of laws in all government departments. Oversight also includes submitting memoranda on Public appointments and petitions on issues and individuals, people have concerns about. The nomination of Joseph Boinett as the Inspector General of Police will be the first when it re-opens.

In addition, Kenyan Parliamentarians, also oversee special funds like the Constituency Development Funds (CDF) and the Uwezo Fund. A third Fund is set to be introduced this year – the Affirmative Action Social Development Fund.

Consequently, the electorate should take a pro-active role in trying to influence what Parliamentarians prioritize this year. This is key to promoting a people-centered Parliamentary agenda. Parliament re-opens in mid-February; Senate – February 10th and National Assembly, February 14th.

Over the next the two weeks, Mzalendo gives you an opportunity to present views on what Parliament should discuss when they re-open. The views will then be collated and presented to Parliament just before it re-opens. Feel free to post your comment on our blog, Facebook page or Twitter using the hashtag #BungeKE2015. Over to you!

 

Feedback from Uganda on the behavior of MPs during the Security Laws (Amendment) Bill debate

Posted by on 13th January 2015

Categories: Uncategorized

I am living in Uganda and like many others from around the World, I have been always watching and enjoying the Kenya Parliament debates held in both the Senate and National Assembly. I wish to state that the Kenya Country Constitution has been observed by many outside Kenya as one of the best governing documents not only within the Commonwealth but also in Africa. Many people cherish that Constitution and have been waiting to see how that Good Document will be implemented.

While watching the Kenya Parliament debate relayed live via the KBC TV held on December 18, 2014. It was very shocking to see what happened within the Plenary. Although I am not a Kenyan, I felt tears coming out of my eyes. I could not believe what I was seeing. This is because all Kenya MPs, do always rise up not only with facts but also with clear contributions. Many people have been learning from the experience and knowledge always provided by the Kenya MPs. I hope the problem will be fixed..

Charles Kizito

Why Eight Clauses of the Security Laws (Amendment) Act were Suspended

Posted by on 7th January 2015

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On January 2nd 2015, the High Court ruled regarding a petition tabled by the CORD Coalition and the Kenya Human Rights Commission (KHRC) questioning the legality of the process by which The Security Laws (Amendment) Act 2014 and the constitutionality of some of its clauses. They sought orders to have these sections suspended pending determination of a full hearing.

Judge George Odunga did not have kind words for Speaker Muturi as he said “… if the process was shambolic as it is alleged, it would not matter who caused the chaos since Standing Order 98 places the duty of ensuring that order is maintained in the House squarely on the Speaker which entails ensuring that pursuant to Standing Order 104 every member is seated at all times when in the Chamber except when passing to and from his seat or when speaking.”

The Judge declared that the issues raised by the petitioners were weighty constitutional issues which required to be investigated by the Court. He added that issues raised substantial questions of law and also affected fundamental freedoms enshrined in the Bill of Rights which could be infringed by the implementation of certain sections. Consequently, he stated ‘what is at stake is the balancing of the need to secure the country on one hand and the protection of the Bill of Rights on the other both of which the State is enjoined to attain.’

In ruling, Judge Odunga used “the guided missile” approach to target only the offensive parts of the Act. The court decided to suspend only those provisions which disclose a danger to life and limb or imminent danger to the Bill of Rights at that very moment by way of conservatory orders. However, this does not amount to a determination that those provisions are unconstitutional.

Clauses in The Security Laws (Amendment) Act, No 19 of 2014 suspended pending the hearing and determination of these petitions were:

(1) Clause 12 which inserted section 66A to the Penal Code.

(2) Clause 16 which inserted section 42A to the Criminal Procedure Code.

(3) Clause 26 which inserted section 20A to the Evidence Act.

(4) Clause 29 which inserted section 59A to the Evidence Act.

(5) Clause 48 which inserted section 16A to The Refugees Act.

(6) Clause 56 which repealed and substituted Part V of The National Intelligence Service Act.

(7) Clause 58 which amended Section 65 of the National Intelligence Service Act by deleting the word “Parliament” and substituting therefore the words “National Assembly”.

(8) Clause 64 to the extent that it introduces sections 30A and 30F of The Prevention of Terrorism Act.

This was because:

Clause 12 of the Act introduces a Clause which limits the freedom of expression and freedom of the media and imposes a hefty fine of Kshs 5,000,000 for the offenders or 3 years in prison or both. If implemented, there is imminent danger of the offenders losing their liberty.

Clause 16 has the effect of denying the accused person evidence sought to be presented against him until just before the hearing. It would render the process unfair.

Clause 26 of the Act introduced an admission of statement by consent in criminal trials. This amendment is objected as contravening Article 50(2) (l) with respect to self-incriminating evidence.

Clause 29 seems to introduce summary procedure to criminal proceedings by introducing proof by way of notice though it is called agreement. Similar considerations as above hence suspended.

Clause 56 introduced new Part V dealing with “special operations” which are operations meant to neutralize threats against national security. The provisions thereunder then proceed to deal with what are called “covert operations”. It is contended that this provision is likely to take the Country back to the pre-2010 Constitution dark days. The current Constitution by way of a referendum, did intend to have a break from the past.

Clause 58 seeks to replace “Parliament” with “National Assembly” effectively removing the Senate from playing oversight role on the National Intelligence Service. This provision is objected to as having been inserted without recourse to the Senate.

Clause 64 introduced an offence of publication of offending material which is defined as publication or statement that is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism. Government is obliged to take all lawful measures to nip acts of terrorism and such measures ought to be supported by Kenyans of all walks of life. Such moves however must pass Constitutional and legal pedestal.

 

 

 

 

 

 

 

The conservatory orders on the Security Laws Amendment Act

Posted by on 5th January 2015

Categories: Uncategorized

Please find the conservatory order suspending eight clauses of the Security (Amendment) Act 2014 here Conservatory Order (Security Act) Petition No. 628 and 630 of 2014

 

 

 

Parliamentarians need to maintain House’ decorum

Posted by on 19th December 2014

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The Security Laws (Amendments) 2014 Act provided an opportunity to deliberate very serious provisions about Kenya but also brought out an ugly side of our legislators. The amendments to 22 security related legislations will go a long way in helping address our security challenges. Rising insecurity may not be wholly dealt with by adequate laws, but this remains a critical first step.

MPs demeaned the National Assembly and did not demonstrate any respect for their offices or the people they represent. They were rowdy – some tore the order papers and threw them to the floor – and even poured water on Deputy Speaker Joyce Laboso while chairing a session. The scuffles went on outside the chamber too.

The Parliamentary Broadcasting Unit’s live feed was sporadically switched off to hide the MPs shameful behavior. Journalists were also chased away from the media center. The public gallery was also closed for the first time in independent Kenya.

Speaker Justin Muturi also failed to be an impartial arbiter. His leadership was wanting in how the amendments were passed. He presided over the passing of the amendments amidst shouting from both sides of the debate. His ability to guide the debate was questionable as his hearing was certainly impaired and vision blurred by the many legislators that surrounded him.

Rule of law is supreme and Parliamentarians should be first to abide by it. Although the standing orders provide mechanisms for discussing bills before they are passed, they were totally ignored. Room for critical dialogue and consensus building was also shut.

The process of tabling and discussing the bill was completely non-procedural. The disorder started when the Bill was presented for debate. Many MPs had not gone through Bill and the public had not seen or read it either.

It took the intervention of the Speaker to order public sittings which were hurriedly organized. While the standing orders are not explicit on the period that the public have to read a Bill, practice has been 14 days. This Bill was presented to the public for a total of four days despite the fact that accessing it was also a challenge.

In the National Assembly, both sides of the political divide took a hardline stance on the matter. Jubilee Coalition mobilized their numbers to pass the law while CORD sought to use confusion to obstruct debate. In such a poisoned scenario the few voices of reason went unheard.

The substantive-ness of the security issue was disregarded. Key issues the bill raised like limiting civil liberties enshrined in the Constitution needed more serious debate and did not also merit the hurriedness with which the bill was passed. The Act is now law, but any clauses that are unconstitutional can be contested in court.

Regardless, what the MPs did will go into the annals of history as a dark day in Kenyan democracy as it limited the spirit of dialogue, openness and participation in public affairs. It should never happen again.

 

 

 

Special Sitting Amendments to Security Laws

Posted by on 18th December 2014

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The amendments that were passed today related to the Security Laws (Amendment) Bill 2014 can be accessed here

THURSDAY DECEMBER – 18-12-2014 SPECIAL SITTING (1)

Parliament has the Capacity to make Kenya Cohesive

Posted by on 11th December 2014

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The National Cohesion and Integration Commission (NCIC) recent report is troubling. It revealed that two out of ten Kenyans distrust each other. Trust, which was measured against six other pillars used to gauge national cohesion, recorded 43.7 per cent.

Kenya’s mutual suspicions are stoked by land grievances, youth unemployment, growing drug and substance abuse, delinquency and crime, food insecurity, income inequality and poor infrastructure.

Speaking at the launch of the report, NCIC chairman Francis ole Kaparo noted that institutions forming the Government are leading in the gloomy state of the country. He cited the turf wars between the Senate and the National Assembly, and also the differences between the Executive and the Judiciary. Other factors of mistrust include issues of land, cattle rustling, historical injustices, marginalization and unequal sharing of the national cake.

By the look of the issues, it is evident that they are systemic, institutional and historical. This is the main reason why Parliament has the greatest role in making Kenya cohesive. In its oversight role, it must ensure that resources are allocated correctly among all and where necessary positive discrimination applied to those who have historically been marginalized.

In its legislative role, these elected leaders need to pass laws that will promote equity and address various violations of the past regime. For instance, this offers the opportunity to call for the full implementation of the Truth, Justice and Reconciliation Commission (TJRC). Land injustices need processes that are being worked on by the National Land Commission but squabbles over mandate with the perception that MPs are taking sides do not instill the necessary confidence in the process.

Representation of the people must be informed by what the electorates want addressed. Parliamentarians exercise this function through motions and statements in the flow of the House and also recommendations directed to respective government organs.

Hon. Kaparo reckoned that availing opportunities like jobs is a clear way of ensuring cohesion is enhanced. Parliament has a role in driving the country to this direction. In their interactions with the electorate, they meet and feel their despair and suffering and should enumerate these issues in ways that will give real hope and solutions to the people.

The Commission conceptualized social cohesion to include trust, peace, equity, diversity, prosperity and national identity. These issues are intertwined. A peaceful society largely feels equitable in terms of resources and access to them among its diverse populace. If the people feel they belong to one nation, the country will prosper.

In his speech when releasing the report, the Chief Justice aptly stated that “division is the currency of politics. The issue of governance is only held by the elite and they are the architects of what we see today.”

Parliamentarians can sometimes be reckless in their public pronouncements especially in public rallies. This causes division among Kenyans whom highly regard their leaders as their saviors.

Honorable members, plenty can be found within our borders with your intervention. Ama vipi?

 

 

 

 

 

 

 

The Security Laws (Amendment) Bill 2014

Posted by on 10th December 2014

Categories: Uncategorized

The Security Laws (Amendment) Bill 2014 seeks to amend the laws relating to security.

 

Find it here THE SECURITY LAWS AMENDMENT BILL 2014

The brief to the proposals is here Brief on Amendment to Security Legislations