De­bate rages on Uhuru con­ven­ing Par­lia­ment amid re­peat elec­tions

Nasa is read­ing po­lit­i­cal mis­chief in the move while Ju­bilee main­tains Pres­i­dent’s ac­tion is law­ful

Daily Nation (Kenya) - - SUNDAY REVIEW - BY OS­CAR OBONYO

The de­ci­sion by Pres­i­dent Uhuru Keny­atta to con­vene the two houses of Par­lia­ment even be­fore the Supreme Court ruled on a pe­ti­tion chal­leng­ing his election and his of­fi­cial ad­dress to par­lia­men­tar­i­ans be­fore the up­com­ing fresh elec­tions has ig­nited de­bate on the real in­ten­tions of the Ju­bilee party leader.

While the Na­tional As­sem­bly’s Leader of Ma­jor­ity Aden Duale has de­nied any po­lit­i­cal mis­chief in the move as sug­gested by mem­bers of Nasa, politi­cians al­lied to the Pres­i­dent’s party have been giv­ing con­flict­ing sig­nals.

Some leg­is­la­tors have sep­a­rately vowed to use their numer­i­cal strength in Par­lia­ment to push for friendly elec­toral leg­is­la­tions be­sides “pun­ish­ing the Ju­di­ciary” for an­nulling the Pres­i­dent’s poll vic­tory as de­clared by the In­de­pen­dent Elec­toral and Bound­aries Com­mis­sion (IEBC).

This week, the se­na­tors al­lied to Ju­bilee made clear their in­ten­tions and ur­gency of en­act­ing rel­e­vant laws to avoid the sce­nar­ios wit­nessed af­ter the Au­gust 8 pres­i­den­tial election.

Leader of the Ma­jor­ity in the Se­nate, Kipchumba Murkomen, was cat­e­gor­i­cal they would “pass laws to pro­tect the de­ci­sion of the voter to stop some in­sti­tu­tions from mak­ing de­ci­sions that an­nul the de­ci­sion of a voter.”

The Na­tional As­sem­bly’s Leader of Mi­nor­ity, John Mbadi claims Ju­bilee’s de­ci­sion to quickly re­con­vene Par­lia­ment and push through cer­tain leg­is­la­tions is mo­ti­vated by po­lit­i­cal mis­chief.

He says that the Pres­i­dent’s party is de­ter­mined to use its ma­jor­ity num­bers in Par­lia­ment – while they last – to fix leg­is­la­tions they deem un­com­fort­able.

One of the ar­eas the Nasa politi­cians sus­pect could be tar­geted is the Ju­di­ciary, with Mr Mbadi claim­ing Ju­bilee plots to leg­is­late against the in­de­pen­dence of the in­sti­tu­tion. He is also con­cerned that Ju­bilee may be keen to tam­per with Ar­ti­cle 86 of the Con­sti­tu­tion “to al­low them a free hand to rig elec­tions”.

The said Ar­ti­cle 86 stip­u­lates that “at ev­ery election, the IEBC shall en­sure that— (a) what­ever vot­ing method is used, the sys­tem is sim­ple, ac­cu­rate, ver­i­fi­able, se­cure, ac­count­able and trans­par­ent.”

Mr Mbadi, who is also Chair­man of the Orange Demo­cratic Move­ment (ODM) claims their ri­vals in Ju­bilee are un­com­fort­able with this very pre­scrip­tion.

Keny­atta Univer­sity lec­turer, Dr Ed­ward Kisiang’ani, at­tributes the cur­rent con­fu­sion to a la­cuna within the Con­sti­tu­tion.

Ac­cord­ing to Dr Kisiang’ani, the drafters of the Con­sti­tu­tion never an­tic­i­pated a sit­u­a­tion where Par­lia­ment would be in oper­a­tion while Kenyans would be stuck in a pro­longed sit­u­a­tion of a con­tested pres­i­dency.

“It was quite in or­der for both houses of Par­lia­ment to con­vene. It is dan­ger­ous for a coun­try to have an Ex­ec­u­tive whose func­tions are lim­ited by law and a non op­er­a­tional leg­is­la­ture. Sup­pose we are faced with a case of ex­ter­nal aggression, what hap­pens?” he poses.

Dr Kisiang’ani also finds it hyp­o­crit­i­cal that some MPS who are op­posed to the re­con­ven­ing of Par­lia­ment did not con­test tak­ing an oath as leg­is­la­tors late last month.

“It is cour­tesy of the Pres­i­dent’s gazette no­tice for Par­lia­ment to re­con­vene that these MPS will – in the first place – be earn­ing salar­ies at the end of this month.”

Mr Duale but­tresses this ar­gu­ment by quot­ing Ar­ti­cle 132 (1) of the Con­sti­tu­tion, which states thus: “The Pres­i­dent shall (a) ad­dress the open­ing of each newly elected Par­lia­ment; (b) ad­dress a spe­cial sit­ting of Par­lia­ment once ev­ery year and may ad­dress Par­lia­ment at any other time; and (c) once ev­ery year.”

Mr Duale main­tains that par­lia­men­tary sit­tings are be­ing con­ducted in ac­cor­dance with dic­tates of the law, which re­quire that the Pres­i­dent gazettes the date when ses­sions be­gin and ad­dresses both houses of Par­lia­ment as per Ar­ti­cle 132, to pave way for leg­isla­tive busi­ness by MPS.

Haste de­ci­sion

And Mr Duale enu­mer­ates a host of un­der­tak­ings lined up for par­lia­men­tar­i­ans, in­clud­ing de­bate on the Pres­i­dent’s ad­dress fol­lowed by a one­week in­duc­tion work­shop for leg­is­la­tors, dis­cus­sion on sup­ple­men­tary bud­gets in­clud­ing the Sh15 bil­lion re­quest by the IEBC to fa­cil­i­tate the up­com­ing fresh pres­i­den­tial poll as well as the re­pub­lish­ing of at least 15 bills which lapsed in the eleventh par­lia­ment, in­clud­ing the Election Of­fences Bill.

“As you can see, our in-tray is al­ready over­flow­ing. And one of the pend­ing things we have to ur­gently con­clude is the election of MPS to the East African Leg­isla­tive As­sem­bly. The rest of the coun­tries in the re­gion con­cluded the ex­er­cise on June 1st but the As­sem­bly has not con­vened be­cause Kenya is yet to nom­i­nate her MPS. We can­not con­tinue hold­ing the re­gion at ran­som,” says Mr Duale.

“We had to re­con­vene ahead of the Supreme Court rul­ing and there­after the fresh pres­i­den­tial election, just in case the court de­mands of us to put in place cer­tain leg­isla­tive mea­sures to fa­cil­i­tate more ef­fec­tive and ac­count­able elec­tions,” adds Mr Duale.

But Mr Mbadi, ac­cuses the Ju­bilee Party of what he con­sid­ers a haste de­ci­sion to get the par­lia­men­tary busi­ness go­ing on with a view to hood­wink­ing the in­ter­na­tional com­mu­nity that Pres­i­dent Keny­atta is firmly in charge and that the coun­try is run­ning smoothly, the im­passe over fresh pres­i­den­tial elec­tions not­with­stand­ing.

“They sim­ply wanted to con­di­tion peo­ple’s minds to the ef­fect that things are mov­ing on well and wanted to pass a mes­sage to the in­ter­na­tional com­mu­nity that the sit­u­a­tion in Kenya is un­der con­trol. In­stead of ad­dress­ing the real chal­lenges that stand in the way of a cred­i­ble re­peat poll, Ju­bilee is busy por­tray­ing a false im­pres­sion of the sit­u­a­tion in the coun­try and we will not al­low that,” Mr Mbadi told the Sun­day Na­tion.

The Suba South MP sin­gles out the rush to con­sti­tute the House Busi­ness Com­mit­tee to pave way for im­me­di­ate trans­ac­tion of par­lia­men­tary busi­ness, as a poin­ter to Ju­bilee’s “sus­pi­cious agenda”.

“In the his­tory of Kenya’s par­lia­men­tary pro­ceed­ings, a House Busi­ness Com­mit­tee has never been con­sti­tuted with mem­bers of only one side of the party. Even in 2013, when there was a sim­i­lar stand­off, we gave enough room for con­sul­ta­tions be­fore as­sem­bling mem­ber­ship to the com­mit­tee. So why the hurry now?” poses Mr Mbadi.

Not­ing that ac­tions by the Pres­i­dent and mem­bers of his Ju­bilee Party are in tune with the writ­ten law, public law ad­vo­cate Harun Ndubi ob­serves that Mr Keny­atta is rul­ing by law, which is not the same thing as rule of the law.

Ac­cord­ing to the lawyer, Ju­bilee is con­ve­niently fol­low­ing the let­ter and not the spirit of the Con­sti­tu­tion. The lat­ter is not cap­tured in writ­ing but rather it is con­strued whole­somely by cap­tur­ing the wishes and good­will of the peo­ple.

“It is in­ap­pro­pri­ate, for in­stance, for Ju­bilee to pre­sume that it can man­age po­lit­i­cal ac­tiv­i­ties of the coun­try in Par­lia­ment on its own. It was also wrong for the Pres­i­dent to con­vene par­lia­men­tary sit­tings against the back­drop of an im­pend­ing fresh poll,” ex­plains Mr Ndubi.

The lawyer notes that even if Par­lia­ment hur­riedly crafts leg­is­la­tions at this point in time, Mr Keny­atta who is serv­ing un­der “tem­po­rary in­cum­bency” can­not as­sent to them or even make cer­tain ap­point­ments in govern­ment.

“One there­fore can only read po­lit­i­cal mis­chief in the lat­est move be­cause in the cur­rent sit­u­a­tion, Par­lia­ment and govern­ment are about 60 per cent in­ef­fec­tive,” Mr Ndubi says.

How­ever, Dr Kisiang’ani al­lays fears that Ju­bilee might (mis)use her num­bers to rush through self­ish and puni­tive laws adding that “a blind spot awaits any such mis­chief at the Ju­di­ciary.

It was wrong for the Pres­i­dent to con­vene par­lia­men­tary sit­tings against a back­drop of an im­pend­ing fresh poll,” Lawyer Harun Ndubi

PSCU | NA­TION

Pres­i­dent Uhuru Keny­atta ad­dress­ing a joint par­lia­men­tary sit­ting.

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