CIC/ CIC/DG/3/54/2/VOL.I 15th July 2014

Mr. Jeremiah Nyegenye Clerk of the Senate Clerk’s Chambers Parliament Buildings NAIROBI.

Mr. Justin N. Bundi Clerk of the National Assembly Kenya National Assembly Parliament Buildings NAIROBI

Dear

RE: ADVISORY ON THE PARLIAMENTARY POWERS AND PRIVILEGES BILL, 2014

We refer to your letter dated the 30th May 2014 of Ref: KNA/JLA/CIC/2014 requesting the

Commission for the Implementation of the Constitution (CIC) to submit their comments on

the above Bill.

CIC has reviewed the provisions of the Bill, and, in line with its mandate of monitoring,

facilitating and overseeing the development of legislation, has proposed various

amendments on issues which are unconstitutional and/or may violate the letter and spirit

of the Constitution if legislated and implemented as proposed. The specifics of the issues

are in the advisory attached. In summary, CIC wishes to bring your attention to:

1. Some provisions which conflict or may conflict with the letter and spirit of the

Constitution, and therefore need to be amended before passage and enactment of

the Bill.

2. The limitation of rights needs to be done in accordance to Article 24 of the

Constitution.

3. And the bill should take cognizance of rights that cannot and should not be limited,

as spelled out in the Constitution and international law ratified by Kenya.

The Commission for the Implementation of the Constitution (CIC) is mandated, under

Section 5(6) of the Sixth Schedule to the Constitution, to monitor, facilitate and oversee the

development of legislation and administrative procedures required to implement the

Constitution of Kenya, 2010 and, to monitor the implementation of the system of devolved

government effectively {Section 15 (d)}. In addition, Article 249 of the Constitution

requires CIC to protect the sovereignty of the people, secure the observance by all state

organs of democratic values and principles and to promote constitutionalism.

Yours

Dr. Elizabeth Muli VICE CHAIRPERSON FOR: CHAIRPERSON

Copy to:

Hon. Samuel Chepkong’a, M.P. Chairperson Departmental Committee on Justice and Legal Affairs Kenya National Assembly Parliament Buildings NAIROBI

Hon. Njoroge Baiya, M.P Chairperson Constitutional Implementation Oversight Committee Kenya National Assembly Parliament Buildings NAIROBI

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ADVISORY ON THE PARLIAMENTARY POWERS AND PRIVILEGES BILL, 2014

1. Clause 2 - Interpretation

(a) Comment – Definition of Member of Staff:

Delete the phrase ‘any person acting under the orders of the Speaker’ under the definition of

Member of Staff and amend as follows:

“member of staff” means a public officer of the Parliamentary Service Commission, or any other

public officer working within the precincts of parliament

Rationale: The scope of the phrase ‘any person acting under the orders of the Speaker’ is too wide

as it allows the application of the law to persons who are not public officers. The amendment

therefore allows for the application of the law to only public officers as defined under Article 260 of

the Constitution working within the precincts of Parliament.

(b) Comment – Definition of Parliament

Delete the definition of Parliament

Rationale – This is a redundant clause as it is clear what Parliament refers to; hence there is no

need for its definition in this legislation.

2. General comments

The Bill generally limits certain rights, without qualifying the same as required by Article 24 of the

Constitution. Each provision limiting a right should state:

(i) The justification of the limitation;

(ii) The nature and extent of the limitation;

At the same time, each limitation should ensure that it does not derogate from its core or essential

value. An example is Clause 5.

3. Clause 3 - Description of the precincts of Parliament

Comment: Amend Clause 3 of the Bill by inserting the following new sub-clauses:

(a) “The Speakers of the National Assembly and Senate shall be responsible for the control and

management of the parliamentary precincts.”

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(b) “3(2) The Speakers may delegate any of their powers to manage and control the parliamentary

precincts to the Clerk of the relevant House of Parliament.”

Rationale:

(a) The Bill should expressly provide that the speakers will have the overall responsibility for the

control and management of the parliamentary precincts, and that the actual

management/administration may then be in the hands of the Clerk.

(b) The proposed amendment will allow the speakers of both houses to delegate their powers to

the public officer they may choose.

4. Clause 5- Access to precincts of Parliament

Comment:

(i) Amend the clause as follows:

“A member of the public may, subject to Article 118 of the Constitution, this Act or any other

written law, the Standing Orders and such orders and directions as may be issued by the

Speaker, access such places within the precincts of Parliament as may be specified.”

(ii) Add a provision to cater for Article 118 (2). Add a new sub-clause to provide for the exceptional

and justifiable reasons for which the Speaker may determine the exclusion of any person or media

from transmitting the proceedings of a House or a committee of Parliament.

Rationale: Precincts of Parliament include the public gallery where the public follows

Parliamentary proceedings from. While it is necessary to regulate access to the precincts, access to

the public gallery should only be subject to the exceptional circumstances of Article 118 (2). The

clause should prescribe the requirements of Article 118(2) of the Constitution in terms of allowing

access to the public and media so as to facilitate public participation and involvement in

parliamentary affairs. In addition, the clause should allow for the application of provisions in other

Acts that govern access to premises, e.g. the Trespass Act.

5. Clause 6 - Service of civil process

Comment:

(a) The words ‘Service of process’ appearing in the marginal note of Clause 6 of the Bill should be

deleted and substituted with either ‘Limitation on service of civil process’ or ‘Privilege from

civil process’.

(b) Delete the clause 6(1)(a) and instead amend as follows:

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“to a member while the member is attending a session in a House or committee of

Parliament”

(c) Delete clause 6(2).

Rationale:

(a) The provisions of clause 6(1)(a) violates the exercise of judicial proceedings for which the

Rules of Service already govern the manner of service of judicial orders. Hence, the limitation

should apply to the specific case where a member is in attendance of an ongoing session of

Parliament or a Committee.

(b) There is no justification under clause 24 of the Constitution to limit the service of civil process

to all members of Parliament regardless of whether or not they are attending a session of a

House of Parliament or its Committees.

6. Clause 7- Assembling, demonstrating and picketing

Comment:

(a) Amend Clause 7 (1) of the Bill by deleting the words ‘or outside’ and inserting the word

‘through regulations’, so that the clause reads:

“The Speaker may, through regulations, designate areas within the precincts of parliament

where members of the public may assemble demonstrate, picket or present petitions of

memorandum to parliament.”

(b) Delete clause 7(2)

Rationale:

(a) Regulations, as opposed to notices put up from time to time, are what will inform the public,

with certainty and in advance, and enhances transparency and accountability. It will also

ensure that the other national values and principles e.g. avoiding discrimination are upheld.

(b) The Speaker is only responsible for actions undertaken within the precincts of Parliament as

described in clause 3. For outside Parliament, other laws apply. Hence, extending the powers of

the Speaker to outside the precincts of Parliament would be acting beyond the scope required

of the Act.

(c) The manner of assembly, demonstration or picketing by the public should not be subject to any

orders issued by the Speaker and cannot be justified under Article 24 of the Constitution in a

just and democratic society.

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7. Clause 8- Freedom of speech in Parliament

Comment:

(a) Delete clauses 8 (1) &(3).

(b) Add a new notwithstanding clause to provide for the limitation of freedom of speech in

Parliament, for example, in the case of discussion of a matter concerning national security,

right to privacy – Article 31 (c), subject it (freedom of speech) to Article 75, insulting the Head

of State, etc. which should not be made public.

Rationale:

(a) The proposed limitation of access to justice is not justifiable under Article 24 of the

Constitution, thereby making clause 8(3) unnecessary. An aggrieved person has a right to seek

redress in a court of law for anything said by a Member of Parliament in the House or

Committee, e.g. in the case of infringement to the right to privacy, slanderous insults, insults,

insults to the head of state, etc.

(b) The concept of freedom of speech as stated in Article 117 of the Constitution already provides

adequate immunity to prevent a Member of Parliament from being held liable for something

said while undertaking normal service of duty within the House of Parliament. Hence,

legislation should instead state possible exceptions to the rule as opposed to repeating what is

already provided for in the Constitution.

8. Clause 9- Postponement of disqualification to enable appeal

Comment: Delete the word ‘until’ appearing in clause 9 and replace with ‘unless’ so that it reads:

‘Where any Member has been sentenced to an imprisonment for a period of at least six months,

adjudged to be of unsound mind, adjudged bankrupt, or is found in accordance with any law to have

misused or abused a State office or a public office or in any way to have contravened Chapter Six of

the Constitution, the decision shall not have effect for the purposes of Article 103(1)(g) of the

Constitution unless all possibility of appeal or review of the relevant decision or sentence has been

exhausted.

Rationale: Borrowing from the provisions of Article 99 the Constitution, a person is not

disqualified from being elected unless all possibility of appeal or review of the relevant sentence

has been exhausted. The use of the word ‘until’ makes it mandatory for appeals and reviews to be

pursued, while this is optional.

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9. Clause 10- Proceedings not to be questioned in courts

Comment:

Delete the word ‘or decision’ and ‘powers and privileges’ appearing in clause 10, so that it reads:

“No proceedings of Parliament or its Committees acting in accordance with this Act shall be subject

to challenge in any court”

Redraft to take into account the provisions of Articles 22, 23, 24, 25, 50, 165 and 258 of the

Constitution.

Rationale:

(a) The Constitution provides for the right to institute court proceedings and for a fair hearing

(Articles 22, 23, 24, 25, 50, 165 and 258). Hence, legislation cannot take away rights enshrined

in the Constitution without justification of the same as required by Article 24 of the

Constitution. It cannot take away fundamental rights and the role of the court.

(b) Parliament’s decision can be challenged in court. For example, Acts of Parliament or

administrative decisions are liable to challenge in any court.

(c) The privilege may be subjected to abuse by members, who may have a free-hand in saying or

doing anything during Parliamentary sittings that could possibly infringe on the rights of

another person. The clause should therefore be subjected to the Articles of the Constitution

listed above, to ensure that the rights of other persons are also protected and that persons are

free to challenge in court certain decisions made by Parliament and its committees

10. Clause 11 – Immunity from legal proceedings

Comment: Redraft clause 11(1) 11(2) and 11(3) so that the immunity from legal proceedings only

apply if the actions undertaken in the clauses are only done in good faith and in the lawful discharge

of their functions.

Rationale: This is to ensure conformity with other legislation, as well as with the spirit of Articles

160(5) and 250(9) of the Constitution whereby immunity from legal proceedings only apply in

instances where certain actions done or omitted to be done are in good faith. Otherwise, legal

proceedings can be constituted under Articles 22, 23, 25(c), 50, 165 and 258

11. Clause 12- Freedom from arrest for civil debt during session

Comment: Delete the words ‘is going to’ and ‘returning from’ and amend the clause to read as

follows:

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“A member shall not be liable to arrest for a civil debt while the Member is attending a sitting

of Parliament or a committee of Parliament.”

Rationale: A Member of Parliament should only be protected from arrest while attending

parliamentary and committee sessions. The current provision of the clause protects MPs from

arrest in all instances, whether or not attending a session, and also outside of the parliamentary

precincts, and that is unconstitutional.

12. Clause 13(3)- Giving of evidence of proceedings

Comment: Redraft clause 13(3) by deleting the phrase ‘the special leave referred to in subsection

(1) may be declined where’ and instead replacing with ‘The request for information may be

declined if’ so that the clause reads:

“Subject to the provision of Article 35 of the Constitution and to any written law relating to data

protection and freedom of information for the time being in force, the request for information may

be declined if –”

Rationale: To provide further clarity of the clause.

13. Clause 16- Conduct constituting breach of privilege

Comment: Add a clause 1(f) to cater for other offences that may be committed by a Member of

Parliament, which are outlined in other legislation, and may amount to a breach of privilege.

Rationale: The Bill may not capture all categories of conduct that may amount to breach of

privilege. It is therefore necessary to draft a clause to cater for such a scenario.

14. Clause 17- Determination of breach of privilege

Comment:

(a) Amend clause 17(2) to capture civil proceeding as follows: “An enquiry by the relevant House

of Parliament into a matter shall not preclude any other Institution from undertaking legal

proceedings against a Member in connection with the matter concerned”

(b) Amend clause 17(3)(g) to give a maximum period of time for which a suspension may be

imposed. And also subject it to the provision that provides for the number of sittings which

may make a member lose a seat, of Article 103.

(c) The Speaker’s decision should be subject to regulations.

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(d) Delete clause 17(7)

Rationale:

(a) The term legal proceedings would allow for the inclusion of criminal investigations as well as

civil proceedings against a Member in the determination of breach of privilege.

(b) Stipulation in regulations of a maximum period of suspension that may be imposed will ensure

that this power is not subjected to abuse by a House of Parliament. If left unchecked and at the

whims of the decision maker, then a member’s rights may be abused or it may be used to

exclude a member from eight consecutive sittings thereby making them vulnerable to vacation

from office under Article 103(1)(b) of the Constitution.

(c) The proposed limitation of access to Justice is not justifiable under Article 24 of the

Constitution, thereby making the clause unnecessary. Moreover, the penalties set out are the

ones which are normal under employment law.

15. Clause 18- Invitation and summoning of witnesses

Comment: Add a sub-clause to capture that “Parliament shall reasonable notice to any person

invited or summoned to appear before it” and that in any case, unless under emergencies under

Article 58, the period should not be less than 7 working days.

Rationale: The additional clause will ensure that any person summoned to appear before

Parliament is accorded adequate time to prepare for the matter for which they have been

summoned and to obtain leave from their activities. It will also ensure that people are treated with

dignity as required by Article 28.

16. Clause 20(4)- Privileges of Witnesses

Comment: Delete clause (20)(4).

Rationale: The proposed limitation of the right to fair hearing is not justifiable under Article 24 of

the Constitution, thereby making the clause unnecessary.

17. Clause 21- Objection to answer question or to produce paper

Comment: Add a sub-clause to allow for an alternative recourse for a person in a situation whereby

the Speaker does not excuse the answering of a question or the production of a document.

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Rationale: Subject to Article 258 of the Constitution, this is to allow a witness to pursue other legal

channels to challenge an order to answer to a question or to produce a given document.

18. Clause 23& 24- Protection in respect of publications& Unauthorised Publishing

Comment: Delete clauses 23 (3) and 24 (3).

Rationale:

(a) Article 24 of the Constitution provides for the criteria under which a right may be limited,

which include, in Article 24(2)(c), that the limitation shall not limit the right or fundamental

freedom so far as to derogate from its core or essential content. Hence, the limitation of

access to justice towards Members of Parliament should not limit the right to access

information that would be beneficial in the pursuit of justice. Article 35 (1) (b) is very

specific on access to information where a right is concerned.

(b) The issues of other people’s rights raised above, e.g. right to privacy (Article 31) are

pertinent here too.

19. Clause 25- Broadcasting of proceedings

Comment: Delete clause 25(3)

Rationale: The proposed limitations of the right to access to information and freedom of the media

are not justifiable under Article 24 of the Constitution, thereby making the clause unnecessary.

20. Clause 32- Defamation against Parliament

Comment:

(a) Be deleted to be governed by the law on defamation under which individual members can take

action for relieve

(b) Amend clause 32 as follows:

“Subject to the Article 33 of the Constitution and any other written law, a person commits an

offence if the person.....”

(c) Insert a new sub-clause to provide for the penalty, in terms of fine and imprisonment term to

be imposed, if a person is convicted of the offence of defamation against Parliament.

Rationale:

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(a) The provisions of the clause could be used to curtail freedom of expression that is guaranteed

under clause 33 of the Constitution.

(b) The Act should provide for a penalty, in terms of fines and imprisonment term for conviction of

the offence of defamation against Parliament.

21. Clause 34- Request to the Director of Public Prosecutions

Comment: Delete clause 34(2):

Rationale: The provision of the clause could lead to a violation of Article 157(10) and Section 6 of

the Office of Director of Public Prosecutions Act (No. 2 of 2013) which require that: “The Director of

Public Prosecutions shall not require the consent of any person or authority for the commencement of

criminal proceedings and in the exercise of his or her powers or functions, shall not be under the

direction or control of any person or authority.”

Hence, where an offence is suspected to have been committed and reported by the relevant Clerk,

then the criminal investigative and prosecutorial process should be allowed to take over without

being subject to any form of control.

22. Clause 35- Members of Staff to have powers of police officers

Comment: Delete the words ‘every member of staff’ in clause 35 and subject it to Article 243 of the

Constitution and the National Police Service Act (Cap. 84) and any other written law

Rationale: The provision of the clause could lead to a violation of Article 243 of the Constitution

and abuse of powers and privileges of a police officer.

23. Clause 37- Protection of members of public

Comment: Amend by adding the words “For purposes of Article 35(2) of the Constitution” at the

beginning of clause 37(1).

Rationale: It is not clear what this clause intends to achieve. The proposed amendment allows for

clarity on the subject matter being referred to in the clause.

24. Clause 39- Speaker’s orders

Comment:

(a) Delete the marginal note ‘Speaker’s orders’ and replace with ‘Regulations.’

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(b) Delete the words ‘from time to time’ in clause 39(1) and amend the clause to read:

“The Speaker of the Senate or the Speaker of the National Assembly may make regulations as

may be necessary or expedient for the better carrying out of the purposes of this Act.

(c) Delete the words ‘from time to time’ in clause 39(3) and amend the clause to read:

“Subject to the provisions of the Leadership and Integrity Act 2012,the relevant Speaker may,

through regulations, issue a Code of Conduct regulating the conduct of members of the

respective House”

Rationale:

(a) A key tenet of the Constitution is the institutionalisation of public entities. A law, which also

has provisions guiding the public, cannot be subjected to the speaker’s orders, which are

subject to change depending on the individual holding the office of the Speaker. As such, to

promote institutionalisation of Parliament, the purposes of the Act and the Code of Conduct of

Members of Parliament are best carried out through set out regulations which are approved by

a whole House as opposed to Speaker’s orders.

(b) The Code of Conduct of members of Parliament should be stipulated in Regulations, as

approved by each House and aligned to the provisions of the Leadership and Integrity Act (Cap.

182).