PARLIAMENT SPOILS FOR A FIGHT WITH KIBAKI

By Martin Mutua
THE STANDARD

Parliament stood its ground that attempts to frustrate debate on President Kibaki’s contentious reappointment of Justice Aaron Ringera amounted to usurping its powers.

Setting the stage for confrontation with the Executive, Parliament defended its turf, and appeared to lay the ground for adopting a report by House committees, rejecting the reappointment of the Kenya Anti-Corruption Commission directors and assistant directors.

If the report were adopted, the ball would shift to Kibaki. It would be up to him to negotiate with Parliament, rescind the appointment, or face the prospect of the anti-graft body being disbanded.

Kibaki could, on the other hand, ask Ringera to step aside to save him further embarrassment, and to protect the dignity of the presidency. Ringera could also choose to resign.

In effect the House, following the eagerly awaited ruling by the Speaker Kenneth Marende, inched closer to a threat by some of its members last week, that they could cripple KACC if Kibaki does not rescind his decision.

"I rule that notwithstanding any of the provisions of Standing Order 80(1) to 80 (4), I hereby allow debate on the report of the joint sittings of the departmental committees," said Marende.

Speaker’s ruling

Marende was ruling on Justice Minister Mutula Kilonzo’s demand last week that he gives direction on what he said was Parliament’s act of sub judice. The minister said debate should not proceed before cases seeking to block renewal of Ringera’s contract were determined.

Backbenchers applauded Marende when he delivered a nine-page ruling that the sub judice rule could not stop Parliament from deliberating on Ringera’s reappointment, as the matter had attracted great public interest.

Following the ruling a report that was prepared by two departmental committees — that of Delegated Legislation headed by Nominated MP Amina Abdalla and Administration of Justice led by Mandera Central MP Abdikadir Mohammed will now be debated next week.

The Motion on the report, which recommended the nullification of the Gazette Notice by President Kibaki reappointing Ringera for another five years, which MPs had vowed to trash, was listed on the order paper. But it was preceded by other business.

Next debate

NEW BATTLE GROUND? Parliament has challenged President Kibaki’s directive giving Justice Aaron Ringera a fresh five-year term at the helm of Kenya Anti-Corruption Commission. [PHOTO: FILE/STANDARD]

It is likely it would appear next Tuesday for debate. If the House adopts the report then it would be a legislative milestone.

Parliamentary sources told The Standard if the House, which is likely to, adopts the report members would await President’s reaction. If he does not withdraw the Gazette Notice, MPs would take the next step – wait for Appropriation Bill and slash KACC budget.

Marende said in the Commonwealth, the sub judice rule arose out of a desire by Parliament to prevent its debate from exerting influence on courts and thus prejudicing the positions of parties and witnesses.

He argued the sub judice rule was imposed voluntarily by Parliament on itself and is exercised, subject to the discretion of the Chair, with the object of forestalling prejudice of court proceedings.

"It is important to note that as relates to the National Assembly, the sub judice rule does not find expression in the Constitution or in any other law," he added.

Marende pointed out that in the House of Commons the rule provides that matters awaiting the adjudication of a court should not be brought forward for debate in the House, but is subject to the discretion of the Chair and the right of the House to legislate or discuss any matter.

"As a result both Houses of the United Kingdom have adopted a qualification to the sub judice rule by which discussion is permitted on a matter relating to a ministerial decision, and issues of national importance," he added.

The Speaker said the documents tabled by Mutula and claims made by Attorney General Amos Wako, lacked evidence a hearing date had been set for the case filed in court.

Marende further argued no evidence had been provided to the House to show the matter was sub judice; adding that even by the time he was issuing the communication no such evidence had been given.

On the issue of prejudice, Marende said it would not inspire confidence at the judicial officers who are well trained in their work if they allowed the propagation of a view that the Judiciary was always looking over their shoulders at what Parliament was saying, before determining cases.

"It would probably itself be an affront on the principle of separation of powers if one arm of government were to take such a view of another arm," he added.

Sound judiciary

He said in a properly functioning democracy with a sound and professional Judiciary, the burden of evidence required to show that there is a likelihood of prejudice to the fair determination of any matter by the courts should be set very high indeed, adding that this had not been proved.

The Speaker said work of Parliament as bestowed by the Constitution was that, it has powers to legislate, give oversight and representation while the Judiciary on the other neither legislates, represents, nor has oversight over other arms of government.

Marende said when the matter was raised by Chepalungu MP Isaac Ruto there was no known pending court case regarding the matter.

"I take the view that as a general proposition this House, in line with precedents from other similar jurisdictions, should not abandon a matter over which it is seized on the ground that the matter has become the subject of litigation in a court of law," he added.

Quoting his predecessor Mr Francis ole Kaparo in a ruling on April 13, 1995 Marende said the effectiveness of Parliament would be undermined if members pre-empt debate on matters before the House by resorting to court.

He pointed out that were members to allow that to happen then it meant that any person who is apprehensive about any action likely to be taken by the House would then rush to court and thereby gag it from deliberating on the matter.

"This surely cannot have been the intention of the rule. The Chair will guard carefully against the abuse of the procedures of the House in that manner," he ruled.

He noted that he was clear in his mind that in a matter of immense public interest where there is a doubt, unless sound grounds are advanced a presumption should exist in favour of allowing debate, as opposed to the application of sub judice rule to suppress discussion.