LET THE EXECUTIVE DECIDE ON THIS MATTER- THE HBC CHAIR

SATURDAY STANDARD
May 1, 2009
By Kenneth Marende

An accord was painstakingly negotiated as the country waited with bated breath. On 28th February, 2008 ululations rent the air, there was a collective sigh of relief. Agreement had been reached on the Principles of Partnership of the Coalition Government. This Agreement is now contained in our Constitution. Allow me to quote some words from it:

"Given the current situation, neither side can realistically govern the country without the other. There must be real power-sharing to move the country forward and begin the healing and reconciliation process.

With this agreement, we are stepping forward together, as political leaders, to overcome the current crisis and to set the country on a new path. As partners in a coalition government, we commit ourselves to work together in good faith as true partners, through constant consultation and willingness to compromise.

Build mutual trust

This agreement is designed to create an environment conducive to such a partnership and to build mutual trust and confidence. It is not about creating positions that reward individuals. It seeks to enable Kenya’s political leaders to look beyond partisan considerations with a view to promoting the greater interests of the nation as a whole. It provides the means to implement a coherent and far-reaching reform agenda, to address the fundamental root causes of recurrent conflict, and to create a better, more secure, more prosperous Kenya for all.

These words were uttered before the whole the nation; before the whole world! What do they mean? Do they mean anything? Did the signatories to them intend them to mean anything? These words are now read as part of our Constitution. When we in this House, unanimously voted to make them part of our Constitution, what did we intend? What was the mischief we intended to address? What ruling on the Speaker’s part will address that mischief?

The Speaker was also asked to rule on the procedure for the nomination of the chairperson of the House Business Committee and whether the nominee of Government for chairperson is part of the list submitted to the House for approval or whether it is additional to that list.

The procedure for nomination of the Chairperson of the Committee is to be found at standing order 158. It is clear from a reading of paragraphs (1), (6) and (7) of that standing order that the Chairperson is one of the members of the Committee in respect of whom the approval of the House is to be sought under standing order 158(1). Standing order 158(6) should be correctly construed.

It does not say that any person that the Government nominates shall automatically be chairperson of the Committee. What it does say is that the person to be the chairperson shall be a Member who is nominated by the Government. It is imperative to note that the words used are "nominated" and not "appointed" by the Government. In my considered view, this means that the nomination by the Government does not automatically secure the appointment. The nominee is subject to the approval of the House.

Standing order 158 as read with standing order 162 opens two options to the Government: either to indicate, on the list tabled for approval, the person the Government has nominated to be the chairperson so that the House approves this when approving the list, or alternatively, if the Government does not do this, to have its nominee subjected to the election procedure under standing order 162 (1). In such an election, no person who is not a nominee of the Government is eligible to vie to be the chairperson.

On the question of whether the House can proceed to approve the membership of the House Business Committee without regard to the question of who the Leader of Government Business or the chair of the Committee is, I rule in the affirmative. There is no "Siamese twin" relationship between these offices.

Reasonable but illegal

There is no requirement in the Standing Orders or any other law that the Leader of Government Business be a member of the House Business Committee or its chairperson. It might be reasonable and convenient, but it is not a legal requirement.

Let me make good my promise to report to the House the results of my initiative to seek audience with the President and the Prime Minister to reach a consensual and amicable settlement to the matter of the membership and chairperson of the House Business Committee as well as the Leader of Government Business.

Respect and courtesy

The office of the President of the Republic of Kenya is a very high office and an institution deserving of every respect and courtesy. The President is the Head of State, Head of Government and Commander-in-Chief of the Armed Forces of the Republic of Kenya.

The organs and institutions of the Republic must be accorded due respect and dignity. It is therefore the earnest hope of the Speaker that this ruling and any other ruling or action of the Speaker in the exercise of the Speaker’s functions shall not be construed as derogating from that esteem or respect.

Arising from all of the foregoing, I wish to invoke standing order no. 1 of our Standing Orders. That in all cases where matters are not expressly provided for by the Standing Orders or by other Orders of the House, procedural questions shall be decided by the Speaker.

It further stipulates that in so doing, that the decisions the Speaker makes shall be based on the usages, forms, precedents, customs, procedures and traditions of the National Assembly of Kenya and other jurisdictions to the extent that these are applicable to Kenya. The Standing Orders clearly did not envisage nor provide for the current impasse.

I now rule as follows:

Firstly, that in the current state of our Constitution, the laws and the Standing Orders, the office of the Speaker of the National Assembly is not well-suited to determine and therefore declines to determine who the Leader of Government Business shall be, in a situation where the Speaker has received two letters, one from His Excellency the President and the other from the Right Prime Minister, each designating a different Minister as the Leader of Government Business.

I am clear in my mind that the Constitution and the National Accord and Reconciliation Act contemplate only one indivisible Government of the Republic of Kenya and where the Speaker is faced with a situation eliciting uncertainty as to a designation made by the Government, such uncertainty is not for the Speaker to resolve. To endeavour to make a finding as to which of these letters is from the Government and which should be accepted is to miss the point with regard to the situation we are in.

With profound respect, and much regret, I therefore rule that the Speaker will await the name of one Minister consensually designated by the Government as the Leader of Government Business. It is the expectation of this House that the designation will be made "in good faith, through…. consultation and willingness to compromise" within reasonable time.

Without hindrance

In the interim, the Speaker shall do everything in his power to enable the business of this House to be transacted and to flow without hindrance. The Speaker’s role in this respect shall be limited to the facilitation of the Business of the House. During this interim period, those provisions of the Standing Orders that require specific action by the Leader of Government Business, will remain suspended.

I direct that the Clerk shall publish and circulate the business of the House as approved by the House Business Committee.

Iin the same vein, considering that the Speaker has received the names of two different nominees of the Government for chairperson of the House Business Committee, no approval or election of a chairperson of the House Business Committee shall be proceeded with by the House.

Instead, with much regret and much reluctance, I rule that the Speaker of the National Assembly, who under the Standing Orders is an ex officio member of the Committee, shall serve as the chairperson of the Committee until such time as the Speaker shall receive, the name of one Member consensually nominated by the Government for the position of chairperson of the House Business Committee.

This is a purely interim arrangement dictated by the current situation and the Speaker will be happy to give way to the chairperson, as soon as one is nominated. While serving as chairperson of the Committee, the Speaker shall have neither an original nor a casting vote. The Speaker has no interest in any particular matter. The Speaker has no business of his own to bring before the House.

In reaching this decision, I have considered the procedures and traditions of a number of jurisdictions with similar circumstances as those of Kenya.

Council of Elders

In Germany which has useful lessons about coalition government the ‘Council of Elders’ of the Bundestag, which is the equivalent of our House Business Committee, is convened by the equivalent of our Speaker. In India and New Zealand, the Business Committee and the Business Advisory Committee are chaired by the Speaker.

In Uganda, rule 128 of the Rules of Procedure of Parliament provides that the Speaker shall be the chairperson of the Business Committee and shall preside over sittings of the Committee, and in his or her absence, the Deputy Speaker shall preside. The same position obtains in Tanzania, under rule 91 of their Rules of Procedure.

Finally, the duties of the Speaker are primarily to ensure that the business of the House proceeds, I therefore rule that immediately following this ruling the House shall proceed with the Order on the Motion for the approval of the names of the members proposed to serve on the House Business Committee so that by tomorrow the House can commence work on the legislative agenda set in the State Opening Address. We must unlock the business of the House.

Honourable Members, as I stated before this House on 23rd April, 2009, extraordinary situations call for extra-ordinary measures. I have taken these extraordinary measures in the firm belief that the extraordinary situation in which this House, and by extension, this country finds itself in, calls for them. In so doing, I have been guided by what I believe to be in the best interests of this House and our nation.

I urge all of us to resolve with one accord, in common bond united, that the important business entrusted to us by the people of Kenya shall not, shall never, be allowed to stall.

Thank you.

Hon. Kenneth Marende, E.G.H., M.P.,

Speaker of the National Assembly