By Charles Nyachae
Yesterday I had intended to post my observations regarding the Statute Law (Miscellaneous Amendments) Bill that was rejected by the National Assembly.
I watched part of the proceedings of the House and was in the unusually happy position of being impressed by the several members who spoke on the Bill, and indeed by the whole House in rejecting the Bill.
As CIC we had reviewed the Bill and engaged with the Parliamentary Committee on Justice And Legal Affairs, to whom we we shared our views on the several proposed amendments that we considered violated the Constitution.
What impressed me was that unlike is the case usually, this time the debate was focused and largely predicated on Constitutional issues and the rule of law. The public interest took centre stage.
For that one, kudos to bunge. The pendulum swung today and I was greatly disappointed by the Parliamentary proceedings on the Kenya Information And Communications Act (KICA).
I was particularly surprised and disappointed by the ruling of the Speaker that the house needed a two thirds Marjority to override the RECOMMENDATIONS of The President in his memorandum to The NA.
In my view, this ruling was not only devoid of Constitutional or legal basis. It sets a dangerous precedent. Article 115 gives the President the power to return a Bill to Parliament for reconsideration by Parliament noting any RESERVATIONS the President may have. Parliament may either accept the President’s RESERVATIONS and amend the Bill OR pass the Bill as was, a second time.
In my reading of the Constitution it is only if the Parliament wishes to override the President’s RESERVATIONS and pass the Bill as was a second time, that they need a two thirds Majority.
If Parliament accepts the President’s reservations, then in my view it may proceed to amend the Bill with a simple Majority in the usual manner of bills.
The President’s RESERVATIONS are of Constitutional import. His RECOMMENDATIONS are just that, recommendations like Wanjiku’s, which Parliament may adopt or ignore or modify.
In requiring a two thirds Majority to override the President’s RECOMMENDATIONS, the Speaker gave these RECOMMENDATIONS a status they do not have in law. Worse, he created a dangerous precedent.
A President in making recommendations in a memorandum to Parliament, by the simple expediency of evading a two thirds Majority in the house, can thus substitute his views for those of Parliament!
In effect, the Speaker’s ruling unconstitutionally bestows legislative power on the President! Far reaching ramifications indeed! In the particular case of KICA, by his ruling, the Speaker made it impossible for the compromise amendments that had been agreed between the Committee and media, to be effected. Those compromise amendments in my view would have been in the greater public interest.
Mr Speaker, with the greatest respect, you are wrong on this one! Dead wrong!
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