Speaker reads surprise 'Solomonic judgment'

(Excerpts from Marende ruling)

The Speaker, as the leader of the House and the manifestation of the authority of the House, is mandated and obligated to safeguard and jealously protect its sovereignty within the Government to determine what it shall or shall not do and when, and in what manner it shall do those things without interference from any other person or authority.

The view that it can fall to another organ whether the executive or the judiciary to determine for Parliament a matter before Parliament is, to my mind, constitutional heresy.

It is the constitutional duty of the Speaker to interpret the Constitution to enable the House to proceed with its constitutional functions.

The primary question, the mother of all the points of order, is to urge the Speaker to find that the nomination process having been done contrary to the Constitution, was not admissible before this House or any of its organs.

I wish to call the attention of Members to procedure and practice that have evolved in this House in relation to the vetting of persons for approval by National Assembly.

In the first case, the responsible Minister tables a list of names proposed for appointment as a paper laid and the Speaker thereupon commits the matter to the relevant committee for deliberation and report to the House. In recent times, the more prevalent practice and procedure has been for the Minister or other nominating authority to write a letter to the office of the Speaker forwarding the proposed names of persons to be vetted for approval and requesting the Speaker to transmit the communication to the House for vetting and approval through its recognized organs, namely, the relevant departmental committees.

By this procedure, the role of the Speaker usually consists of receiving and transmitting to the relevant committee the names of the nominees received.

To reach this determination, the committee may call for evidence in the usual manner, including summoning the nominees.

Legitimate role

The question at hand is: When a nominating authority sends the names of nominees to the Speaker, what is the legitimate role of the Speaker in respect of the correspondence transmitting the names?

Is the correspondence addressed to the Speaker as Speaker or as a conduit to the House? What role does the Speaker have in regard to that correspondence before it goes to the House in plenary or to a committee of the House?

Is the Speaker permitted to process the correspondence and form a judgment and make a determination as to whether or not it should get to the House?

Is it permissible for the Speaker, administratively in his Chambers, to determine for example that the nominees do not qualify for appointment and that therefore the relevant statute or the Constitution has been contravened and decline to transmit the correspondence to the House or its committees?

These questions are relevant because in the present case the Speaker received a letter from the Office of His Excellency, the President, on 31st January, 2011, averring that he was forwarding the names of nominees in accordance with the Constitution for processing by the House.

At the point at which Imanyara sought the guidance of the Chair, the letter had neither been tabled before the House nor been received by a committee of the House.

Subsequent to the receipt of the letter from the Office of the President, the Speaker did also receive on 1st February, 2011 a letter from the Prime Minister making certain representations as to the validity and constitutionality of the earlier correspondence received.

Important questions

Two important questions arise: firstly, whether the Speaker could rule that nominations were unconstitutional before the House had formally become aware of the nominations and secondly whether it would be proper for the House to deal with the correspondence of the Prime Minister before the preceding correspondence from the Office of the President, to which it related, had been formally brought to the attention of the House.

I wish to indicate that I have not been able to find any precedents of this House in which the Speaker intercepted correspondence addressed to the House and unilaterally made a determination as to its legality or validity, and returned it to the nominating authority.

If I were a judge sitting on the bench in a court of law, I would rule that the matter proceeds to hearing and that the objections raised be heard and determined at that stage.

The Standing Orders, recognizing that the plenary is unsuitable for a detailed examination of important matters, has made provision for committees to precede plenary consideration of such matters.

The point has been made that the matters complained of, being unconstitutional, they do not merit even transmittal to the committee. With respect, in the present case, I disagree.

The role of a committee in the vetting process is to consider all aspects of the proposed nominations, including compliance with the Constitution and all relevant, enabling and incidental laws.

I therefore so rule, that in conformity and consonance with the precedents and practice developed and embraced by this House, the proper role of the Speaker when he receives nominations he or she will convey these to the relevant organs of the House.

It is also the role of the Speaker to see to it that the committees of the House do consider any forwarded nominations, observing constitutional requirements as to public participation and due process and report to the House their findings.

Reference of the correspondence so far received both from the President and Prime Minister to the relevant committees of the House does not amount to a finding or determination that these nominations were or were not constitutionally made It is merely a pronouncement that it is inopportune at this stage for the Speaker to make such a determination because the House is not yet substantively seized of the matter, and further that other players whom the Constitution recognizes as having a role in the matter have not had opportunity to formally participate.

It should become apparent that all the other issues raised requiring determinations of fact or law have not crystallized because of my finding that from a constitutional, legal and procedural point of view, a summary and preliminary determination of the matter is neither possible nor desirable.

The ruling

I therefore rule that as at where we are, it is not appropriate, and I accordingly decline to make a determination as to whether or not the nominations transmitted to my office by the Office of His Excellency, the President, were or were not constitutionally arrived nor whether there was or was not consultation within the meaning of the Constitution, nor whether or not ethnic diversity and gender equality were observed.

I accordingly withhold any determination or comment on the veracity and weight to be accorded to the letter received from Prime Minister.

I further direct that the two letters be forwarded to the departmental committees on Justice and Legal Affairs and Finance, Planning and Trade according to their respective mandates for disposal as provided for in the Standing Orders and the law.

Given the urgency of the matter and the constitutional deadlines, I direct that the committees shall carry out the requisite inquiries and table their Reports in the House on or before Thursday, 10th February 2011.