Donald B. Kipkorir
19 January 2008
opinion
Nairobi — 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.
Mr Marende must crack the whip and have courage to declare such a seat vacant. This is the power exercised by Speakers if the MP does not have the moral integrity to resign on defection or change of loyalty. MPs must take the high road that they asked us to give them, and not walk down the K-Street of public service.
The Speaker must reclaim the powers of Parliament that have been grabbed by the Executive and/or left to go moribund for non-use. The Constitution specifically gives Parliament the powers to impeach the President, dictate and limit the number of Cabinet offices, audit and vet public functions and offices and exercise budgetary power. Without approval of the Budget read every June, the Government cannot function as it will not be able to collect taxes or spend money. The cry that there is no taxation without representation obliges MPs to play their budgetary role with fidelity. The Government cannot be blamed over any taxation policy, budgetary allocation, a bloated Cabinet or the tribalisation of key public positions if MPs have abdicated their duties.
So next time, an MP tells you that, for instance, Gichugu received Sh100 million for water and Turkana South Sh350,000, tell him to go jump into the sea. The Speaker must shepherd the MPs to carry out their mandate as our useless and hopeless parliamentary tradition has made them cede it to the Executive.
Mr Marende's other key function is regulating and controlling the House's legislative programme. He alone can control the Bills, questions and motions brought to Parliament. The Speaker controls or has substantive powers over time allocation and order of business. Parliament transacts its business through committees and the Speaker is omnipresent in all. By these powers, Mr Marende must decide which Bills, questions and motions take priority.
As I alluded earlier, Mr Marende must offer the country a lifeline from its current chaos. The country is reeling from a flawed election and the current media of resolution have been rejected by both sides: ODM doesn't trust the courts and wants international mediation, while PNU does not trust international mediators and wants the courts to do it. Parliament should be allowed to exercise its power and give priority to the motion to impeach President Kibaki.
Presidential impeachment is the sole prerogative of Parliament to debate the suitability, for whatever reason, of a president from continuing being in office. In the US, the Senate initiated impeachment proceedings against President Bill Clinton for "... having sex with that woman... and lying about it." Surely, the claim that the President's re-election is fraudulent and that Mr Odinga ought to be the president ranks highest in all reasons for impeachment than all the others brought in Kenya's history.
The office of Speaker demands complete political neutrality, but not flinching from shaping the country's destiny. Mr Marende will find a rich and colourful history and roles that Speakers have played - from Sir Peter de le Mere in the House of Commons in 1377 to date.
In the five years he will serve, he must lay a template for future generations. His office gives him the tenure, power, privileges and security that enable him to re-engineer the direction Kenya is facing.
Kenya may have lost faith in all institutions of government, but Mr Marende can help the people to experience epiphany and new conversion. Above all, Mr Marende, give us back our faith and let justice and morality be reinstated to public service and discourse. We trust that Kenya can still be saved, but not through partisan denials and arrogance.
Mr Kipkorir is an advocate of the High Court.
Be the first to Write a Comment!
Copyright © 2008 The Nation. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections — or for permission to republish or make other authorized use of this material, click here.
AllAfrica aggregates and indexes content from over 125 African news organizations, plus more than 200 other sources, who are responsible for their own reporting and views. Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica.
