MPs free to debate jobs list

National Assembly Speaker Kenneth Marende has ruled that the recent court declaration that the process of nominating persons to four top state jobs was unconstitutional has no bearing on Parliament February 10, 2011. FILE 

By ALPHONCE SHIUNDU, ashiundu@ke.nationmedia.com

Posted Thursday, February 10 2011 at 16:24

The recent court declaration that the process of nominating persons to four top state jobs was unconstitutional has no bearing on Parliament.

Speaker Kenneth Marende, however, said the order may affect any appointments arising from the nominations made by President Kibaki.

He was issuing a communication from the Chair Thursday.

This means that the two House Committees –the one on Finance, Trade and Planning and the one on Justice and Legal Affairs—will now have to use the extension of time granted for them to unlock the stalemate and table their verdict for debate in Parliament on Tuesday next week.

It also comes as a loss for the MPs who wanted the process of picking nominations repeated, because they’ll have to wait much longer for Parliament to either agree or disagree with them. On the other hand, it was a time for silent jubilation for the MPs, who wanted the nominations debacle decided on the floor of the House through votes.

But even as he made the ruling the Speaker pointed out that the decision of the court was “binding” and that it was likely to have an effect on the “outcome” of whatever Parliament and its committees are doing.

Should an MP query the constitutionality of the nominations after the reports are tabled, then the Speaker will conclusively rule on the matter.

It’s Parliament’s job to approve nominees to constitutional offices as per the new Constitution. Those awaiting approval following the disputed nominations are Mr Justice Alnashir Visram for Chief Justice, Prof Githu Muigai for Attorney General, Mr Kioko Kilukumi for Director of Public Prosecutions and Mr William Kirwa for Controller of Budget.

The Speaker was forced to rule on the matter after Mr Olago Aluoch (Kisumu Town West, ODM) sought to have Parliament’s exercise halted on the grounds that doing so would be in breach of the Constitution, given that the courts had constitutional jurisdiction on matters of interpretation.

The MP wanted the matter stopped citing the sub judice rule to have Parliament side-step matters that are pending in court, until they are concluded or dismissed.

However, recalling a similar ruling that he made in November 2008, when former commissioners of the Electoral Commission of Kenya wanted Parliament stopped from disbanding the body, the Speaker said the House won’t be dictated to by any organ.

“Looking at the point of order raised on that occasion and the arguments made and my Ruling then, I have been struck at how amazingly identical the issues are,” said Mr Marende as he set the stage for his verdict.

“I must caution that the conduct of parliamentary business requires a respect for the procedure, traditions, practice and precedents established by the House. The Chair represents the institutional memory of the House to ensure this. The Chair therefore does not enjoy the luxury of changing positions and departing from practice and precedents unless the circumstances can be shown to be distinctly different.”

With that the Speaker declared the matter as having no effect on the on-going court case. He said the sub judice rule was one which the House had “imposed on itself” so as not to prejudice on-going court cases. He added that it was upon the MP alleging a likely prejudice in criminal and civil proceedings, in this case, Mr Olago, to prove to the House that the matter was indeed “active” and “alive” in the court.

This, Mr Marende said, needs a hearing date. Unfortunately, for Mr Olago, he didn’t table a hearing date, but rather a letter from the applicants’ lawyer to the Deputy Registrar of the High Court to set a hearing date.

“A request for a hearing date is clearly not the same thing as the setting down of a hearing date. It follows that as at when Mr. Olago sought to rely on the sub judice rule, a hearing date had not be set down,” Mr Marende.

The Speaker, went ahead to say that Parliament can’t be gagged by the courts: “I have ruled before and I reiterate that gagging this house and preventing it from discharging its constitutional mandate requires tangible reasons to be advanced.”

“Even if it had been shown, which it wasn’t, that the proceedings were active within the meaning of our rules, I am not prepared to find that in the present circumstances, there was, or is, a likelihood that the debate in this House would prejudice the fair determination of the matter,” he noted.

 The Speaker then went ahead to say that the injunction tabled by Mr Aluoch was useless because Parliament was not a respondent in the case.

“…the Orders of the court are not addressed to this House and were not intended to, and have no effect on the exercise by this House of any of its constitutional functions. The orders have no effect on the work of this House or it Committees and the same will proceed as I have previously directed,” he ruled.