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KEG MEMORANDUM OF OBJECTIONS TO PROVISIONS OF THE PARLIAMENTARY POWERS AND PRIVILGES BILL 2014, FRONTED BY MP FOR ELDAS CONSTITUENCY

Pursuant to provisions of Article 118 of the Constitution of Kenya 2010, the Kenya Editors Guild, acting both as a body representing public interests and as a professional organization with legally protected interests in the subject matter to be canvassed by the Bill cited in the aforementioned reference, hereby present our views and objections as follows:

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1. We acknowledge and respect the fact that Article 1 of the Constitution of Kenya 2010 vests sovereign power in the people of Kenya, and that apart from the people exercising that power directly, it is also exercisable and is, indeed, exercised through democratically elected representatives. In this regard, sovereign power of the people of Kenya is donated to the three organs of government of which Parliament and the legislative assemblies at the county governments are conferred with the principal function of legislation. 

2. We acknowledge and respect the fact that Parliament, of which the National Assembly is an organ, has powers under Article 117 of the Constitution of Kenya 2010 to provide, through a Bill, for the powers, privileges and immunities of Parliament and its subordinate institutions for purposes of the orderly and effective discharge of the business of Parliament.

3. However, we are alarmed and disturbed by the Bill fronted by Eldas MP Adan Keynan which, in the guise of making provisions under Article 117 of the Constitution of Kenya 2010, purports to, among other things, oust and extinguish the supervisory powers of the Courts to scrutinize the constitutionality and legality of the proceedings and decisions of Parliament. We are also alarmed and disturbed by provisions of the said Bill which purport to oust and extinguish the constitutionally guaranteed right of the media and the people of Kenya to question and scrutinize the proceedings and decisions of Parliament.

4.We particularly raise objection with regard to the following sections of the Bill:

    1. Section 9—this section purports to postpone or suspend provisions of Article 103 (1) (g) of the Constitution with regard to vacation of office of member of Parliament on account of disqualification for election to Parliament under Article 99(2) (d) to (h). In essence, Section 9 is unjustifiably seeking to excuse Members of Parliament from a constitutional sanction. In fact, if the Bill is passed with this section intact, Parliament would have emended the Constitution through the back door using a statute—this is so because Section 9 essentially sets aside (expunges) 5(five) sub-articles of Article 99(2). We, therefore, object to provisions of Section 9 of the Bill because they amount to mutilating the Constitution, and like any other Kenyan with the obligation to protect and defend the Constitution, the Kenya Editors Guild calls for the expunging of Section 9 of the Bill. 
    2. Section 10—this section is essentially an ouster clause whose import is to eliminate the supervisory powers of the Courts over decisions flowing from Parliamentary proceedings. We object to this section because it is out of tune with the jurisprudence and precedents so far adopted by the High Court with regard to ouster clauses. We wish to draw the attention of Parliament to the decision rendered in the cases of Rose Wangui Mambo & 2 others v Limuru Country Club & 17 others and Jeane W. Gacheche & 6 Others v The Judges and Magistrates Vetting Board & 2 others . The decisions in both cases clearly indicate that Courts will NOT be impeded by ouster clauses to intervene in any matter where, on the face value or close scrutiny, peoples’ rights or fundamental freedoms are violated or threatened with violation by the decision of any public or private authority. In this regard, the ouster clause in Section 10, coming after the decisions in the cases cited above, is moot.
    3. Sections 6, 7, 8—These sections of the Bill seek to limit the rights conferred upon Kenyans by Article 37 of the constitution (right of assembly, demonstration, picketing and petition) and the right conferred under Article 48 (right to access to justice). In limiting these rights, the Bill grants the Speaker of either house of Parliament the powers to decide how and when Kenyans could enjoy these rights with regard to the precincts of Parliament. We object to these provisions because they purport to indicate that the fundamental freedoms and rights cited in the said sections can be enjoyed at the pleasure of the Speakers of Parliament.
    4. Section 17(7) of the Bill seeks to limit the rights conferred under Article 40 (protection of the right to property) and Article 48 (right to access to justice) of the Constitution. Given the vested interests that politicians who sit in Parliament have with regard to ownership of property, we find it very dangerous to allow enactment of a law that could mandate the very politicians who have vested interests in property to decide which and whose property to confiscate in the name of orderly and effective discharge of the business of Parliament. Kenyan MUST not allow this Bill to pass with this kind of provision.
    5. Section 20(4) of the Bill seeks to limit the right under Article 50 of the Constitution (right to fair hearing). We find this to be the most OUTRAGEOUS provision because it is a fragrant violation of the Constitution since it seeks to limit a right which is directly INSULATED against limitation by Article 25 of the Constitution.
    6. Section 25 of the Bill seeks to limit the rights protected under Articles 34 & 35 of the Constitution (freedom of the media and right to access information). Given the important public function that Parliament plays in the lives of Kenyans, and given that its decisions impact immensely on the lives of Kenyans, we find it mischievous and in bad faith for Parliament to enact a law that would eliminate the watchdog role of the media conferred under Articles 34 & 35.
    7. Sections 32 & 33 of the Bill seek to create offences out of the tort of defamation. In essence, the said sections are trying to introduce criminal libel in Kenya through the back door. We therefore object to these provisions because criminal libel has been rejected by various continental and international law, treaties and conventions which Kenya has ratified, and which are protected under Article 2(5) and 2(6) of the Constitution.4. In view of the pronouncements in (1), (2) (3) and (4) above, we ask Parliament NOT to consider and pass the Bill in question so long as it contains the said offensive provisions—it is our kind request that Parliament expunges any offensive provisions that purport to oust and extinguish the constitutionally protected rights of media and the people of Kenya to scrutinize and question the proceedings and decisions of Parliament. We also ask parliament to expunge any provisions that purport to oust and extinguish the supervisory powers of the courts over decisions flowing from parliament proceedings.
       

5.In stating our position in (4) above, we have several legal and policy authorities in mind in support of the position that Parliament SHOULD NOT pass the Bill with the offensive provisions in place.

6.In view of (5) above, we hold that a provision in the said Bill purporting to oust the right of the media and the people of Kenya to scrutinize and question the proceedings and decisions of Parliament is in access of (ultra vires) the powers conferred by Article 117 of the Constitution. We hold that, whatever interpretation can be accorded to the words of Article 117, there is no way media and public scrutiny or questioning of the proceedings and decisions of Parliament could impede the orderly and effective discharge of the business of Parliament. In this regard, the offensive provisions of the Bill are ultra vires because they are, prima facie, intended to serve a purpose(s) other than the orderly and effective discharge of the business of Parliament. We therefore consider these provisions in the Bill to have been made in mala fide (bad faith) and should be expunged.

7. Apart from the ultra vires and mala fide aspects of the provisions of the Bill as argued in (6) above, we also find that the provisions that purport to oust and extinguish the right of media and the people of Kenya to scrutinize and question the proceedings and decisions of Parliament offend provisions of Articles 10, 34, 35 and Chapter Six of the Constitution of Kenya 2010. We acknowledge that Article 24 of the Constitution of Kenya 2010 provides for enactment of legislation that may lawfully limit a right or fundamental freedom under the Bill of Rights. However, we must point out that the powers to enact law to limit a right or fundamental freedom under Article 24 is the exception and not the rule. For avoidance of doubt, we reproduce provisions of Article 24 as follows: 24(1) A right or fundamental freedom in the Bill of Rights shall NOT be limited except by law, and then only to the extent that the limitation is reasonable and justified in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including—a. the nature of the right or fundamental freedom;b. the importance of the purpose of the limitation; c. the nature and extent of the limitation;d. the need to ensure that the enjoyment of the rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and e. the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

8. In view of our position in (7) above, coupled with the clear provisions of Article 24, the question is— does the need to provide for the orderly and effective discharge of the business of Parliament under Article 117 reasonably justify the enactment of a law that would oust and extinguish the right of the media and the people of Kenya to scrutinize and question the proceedings and decisions of Parliament? The answer is NO! Given the democratic gains that Kenya has achieved so far, and given the pain Kenyans suffered to expand the democratic space we enjoy today, it is NOT justifiable at all to gag the media and the people of Kenya merely because Parliament wants to be shielded against scrutiny and questioning in an effort to satisfy itself that it discharges its business in an orderly and effective manner. Since Parliament is susceptible to mischief, Kenyans, through the Constitution that they enacted and gave to themselves, cannot allow the enactment of a law that has the potential of allowing mischief to skulk through the net of judicial vigilance in the name of orderly and effective discharge of the business of Parliament. We have in mind the constitutional atrocity committed in 1982 when the National Assembly, in less than one hour, introduced, debated and passed a Bill that would amend the Constitution and declare Kenya a de jure one-party state. This atrocity occurred because media and Kenyans at large lacked the ability to scrutinize and question the proceedings and decisions of Parliament because they were under a dictatorial regime. But with constitutionally guaranteed ability and institutions thriving in 2014, Parliament should not be allowed to force Kenyans to accept the rope with which to hang themselves in the form a Parliamentary Powers and Privileges Bill that purports to oust and extinguish the people’s right to question the proceedings and decisions of Parliament.

9. With regard to provisions in the Bill that seek to oust the supervisory powers of the courts over decisions flowing from legislative processes, we also oppose the enactment of such a law citing respected and accepted common law principles articulated and reinforced in case law. Going by the decision in Jeane W. Gacheche & 6 Others v The Judges and Magistrates Vetting Board & 2 others, which concerned the finality provision of Section 23(2) in the Sixth Schedule of the Constitution of Kenya 2010, and which ousts the jurisdiction of the High Court over decisions made by the Judges and Magistrates Vetting Board, it is our position that the ouster clause seeking to exclude proceedings and decisions of Parliament or any of its committees from being questioned in court has no place in a democratic society that is modern Kenya, and should, therefore, be expunged from the Bill. Above all, we find that the ouster clause in the Bill that seeks to oust the jurisdiction of the High Court over decisions flowing from the proceedings of Parliament or any of its committees violates and offends the letter and spirit of Articles 22, 23, 165 and 258 of the Constitution of Kenya 2010.

10.We also note with great concern that the Bill seeks to expand the scope of the law of defamation by including juridical persons (in this case Parliament as an institution) among people who can pursue a claim in torts. Time-honoured principles of Common Law hold that tortiuous claims are pursued by natural persons who can demonstrate that they are owed a duty of care; that that duty of care has been breached by so and so; and that they have suffered personal injury or harm as a direct or material careless conduct of the defendant. Although defamation is actionable per se (i.e. a claimant need not demonstrate that he has suffered harm as a result of the defendant’s wrongful conduct), it is trite law that only natural persons can be defamed. We, therefore, fail to see how parliament as an institution or any of its committees can be defamed so as to pursue a tortiuous claim. In this regard, the Bill in question is outrageous in its defiance of time-honoured common law principles on the law of torts. Hence, we reject this Bill in its totality and call upon the honourable men and women in Parliament not to pass it.

11. Last but not least, we are concerned and disturbed that the Bill seeks to empower Parliament to punish people by levying and collecting fines with regard to people who fall short of Parliament’s expectations with regard to its powers to summon any person to appear before it for purposes of giving evidence or providing information under Article 125 of the Constitution. We are of the strong opinion that proponents of the Bill under comment misconceived the powers conferred to Parliament under Article 125, and that is why they have made provisions to levy fines and prescribe other punishment on any person who may fail to honour summons issued under the Article 125. Under normal practice, to which Kenyans have legitimate expectations, a failure to honour summons of the court gives rise to contempt of court proceedings, whose determination is a preserve of the Judiciary. We, therefore, fail to see how Parliament could hold any person in contempt with regard to summons issued under Article 125, and proceed to make a determination on it without purporting to turn itself into a court of law—thereby violating the principle of separation of powers.

Conclusion
In view of the concerns articulated in (1) to (11) above, we in the Kenya Editors Guild call upon Parliament to reject the Parliamentary Powers and Privileges Bill 2014, as fronted by the Member of Parliament for Eldas Constituency, on account of:
a. Unconstitutionality with regard to Articles 2, 10, 22, 23, 24, 25, 34, 165 and 258 of the Constitution of Kenya 2010;
b. Incompatibility with democratic principles in a modern democratic society;
c. Outrageousness in its defiance of time-honoured and unfailing common law principles on law of torts as well as incompatibility with respectable precedents set by the High Court with regard to ouster clauses that seeks to eliminate the supervisory powers of courts over decisions flowing from parliamentary procedures.
d. Incompatibility with and offensive to the constitutionally recognized principle of Separation of Powers.
Signed:
Linus Kaikai ……………………………………………………… Chairman
James Macharia……………………………………………………. Vice Chairman
Michael Mumo………………………………………………….. Secretary
Hassan Kulundu…………………………………………………….. Vice Secretary
Wachira Kangaru………………………………………… Secretary for Legal Affairs
Jane Godia……………………………………………
Arthur Okwemba………………………………………………… Treasurer
David Ohito……………………………………… Secretary for Digital & New Media

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