allAfrica.com: Kenya: New Speaker Must Offer the Country a Lifeline (Page 1 of 2)

The country was enthralled by the recent election of Mr Kenneth Marende as Speaker of the National Assembly, and the subsequent swearing in of MPs.

In the dispute over the oath of allegiance, members from both sides of the political divide asked the new Speaker to be guided and informed by the law, custom and tradition in making his ruling. As a lawyer, I agree with the argument, which law, custom and tradition is the Speaker to follow in all his future rulings and decisions?

The Speaker's office and powers are embedded in provisions of the law scattered in the Constitution - the National Assembly Remuneration Act, Cap 5; the National Assembly (Power and Privileges) Act, Cap 6, and the National Assembly standing orders and custom and tradition.

Mr Marende comes into office when the country is teetering on the edge of a civil war, a situation caused by the flawed declaration of Mr Mwai Kibaki as president. Mr Marende is taking over without a predecessor to emulate. With due respect, no Speaker since independence, including Mr Francis ole Kaparo, is any role model. They held office when the National Assembly had, for 44 years, been a vassal appendage of a powerful presidency. With an occasional flash of enlightenment, Parliament has never played its patriotic role; instead it has allowed the country to degenerate to where it is now.

Thus, Mr Marende should be guided and informed by the Constitution and the statutes as well as the tradition and custom of genuine and developed parliamentary democracies such as the United Kingdom, the US, Canada, New Zealand and India. He should not try to reinvent the wheel.

Due to the urgency of the moment, I wish to offer him the road map, based on the best practices of the five democracies with which Kenya shares a legal heritage. The five countries are the most developed and sophisticated societies. Thus, I shudder when Kenyan Cabinet ministers tell the countries to keep off Kenya.

What then is the road map, and what are the powers, duties and obligations that the law, custom and tradition impose on Mr Marende?

The Speaker is the presiding officer of the National Assembly, so he is the chief executive sitting on the apex of the legislative arm of government. In the legal system that we subscribe to, there are three equal, separate and independent branches of government - the Executive represented by the president, the Judiciary headed by the chief justice and the Legislature by the Speaker. None is superior to the other, and they are the spokes to the wheel of the nation-state. Mr Marende is, therefore, not subordinated to either Mr Kibaki or CJ Evan Gicheru.

As the National Assembly has the exclusive monopoly of legislation, the Speaker's cardinal duty is to jealously protect it. The National Assembly (Powers and Privileges) Act, Cap 6, is a statutory protection of MPs in carrying out their primary constitutional duty of law-making. The legislators must have unfettered and unhindered discretion and power to make and unmake laws that will enable better the citizens' condition.

It is tragic that we have been made to believe that we are a strong and developed economy just because we are comparing ourselves with our neighbours. The truth, however, is that our age-mates are Malaysia, Thailand and South Korea, and not Uganda and Tanzania. The Speaker must enable legislation that will unlock our potential and remove all barriers to creativity and curiosity. Repressive systems and laws have never made any country develop. The Speaker ought to reclaim the hallowed grounds and sanctity of Parliament. Never again should it be violated by strangers or agents of the State even with the gravest provocation. MPs must have absolute freedom to entertain even seditious thoughts, for this is how to develop visions.

It is only because Galileo thought contrary to his church that we now know that the world is round and not flat.

In 1642, King Charles I entered the House of Commons to arrest five members for high treason, and of course he sought the permission and assistance of the Speaker, who told him, however, that he could not cooperate, arguing that as Speaker, he was beholden to the MPs and not him. The king left.

The Speaker must bring and nurture decency, integrity and morality to our stunted parliamentary democracy. The Constitution and related statutes proudly proclaim that Kenya is a multiparty democracy, and yet we have allowed its neutering. Mr Kaparo watched, if not abetted, as our democracy was made a eunuch. If we cannot respect basic concepts of the democracy we say we are, then we cannot respect anything else, including the simple tallying of votes.

Developed democracies have penalties for even the smallest transgressions of democratic tenets. That an MP is elected on a particular party ticket and he switches loyalty without seeking a fresh mandate is the most immoral act one can do. The Speaker has the cardinal duty to create political morality in the House. If the MPs sell their loyalties for pieces of silver or a small flying cloth, then there is no way the moral fabric of our public institutions will ever be mended.

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