Is the Speaker’s Kamukunji a Lawful Assembly?
Many commentators have written about the roguish behaviour of the Kenyan Parliament – generally opinions can be reduced to: they work few hours, pass few laws and are paid too much – they evade tax and are often accused of filing fraudulent claims – they don’t represent us and engage in dealings against constituents’ interests. Some Kenyans are going to the courts and filing law suits to attack these problems. Even as these go ahead, I would suggest that Kenyans add another file to our in-tray of planned corrective action.
Kenyans might soon want to address the issue of whether it is constitutional for the Speaker of the National Assembly to convene “Kamukunji” sessions in the abandoned Old Chamber of the Parliament Buildings, when the matters under consideration relate to constitutional legislation which according to law and tradition should be conducted in public in the Chamber, using the procedure required in the Standing Orders of Parliament and recorded by Hansard for future reference. In Kenyan parlance a Kamukunji is a gathering of a political nature in an informal setting, made famous by pre-Independence nationalist politicians and by university students in the 1970s and 1980s. The Speaker’s Kamukunji takes place inside Parliament Buildings with the Speaker of the National Assembly presiding over a meeting of all the Members of the National Assembly. So what’s the problem?
Well, nowhere in the Constitution of Kenya nor in the Standing Orders of Parliament does the body known as the Speaker’s Kamukunji appear to be even remotely authorized to process legislation.
It is not known when the practice of convening such Kamukunji assemblies to debate legislation first occurred, but since the signing of the National Accord on February 28th 2008 it has been increasingly convened for such purposes. There is no such stage of legislation as the Kamukunji stage. When I first heard of the Kamukunji’s they were, it seemed, focused on house-keeping issues related to the MPs and Parliamentary staff. At that time 1992-1997, I worked for an MP.
Whereas the deliberations of the National Assembly are largely public, all the deliberations of the Speaker’s Kamukunji appear to take place behind closed doors and in secret. Not even the accredited parliamentary press is allowed to observe these sessions even though the facilities used are public buildings and the Kamukunji’s are paid for at public expense.
The Speaker’s Kamukunji is not described in the Constitution or the Standing Orders, where it is not listed as one of the Committees of the National Assembly. Although it is not a lawful legislative body, it seems the Speaker’s Kamukunji is now being used to masquerade as the National Assembly of the Republic of Kenya; and is actually constituting itself as a debating chamber where legislative debate takes place; before Members of the National Assembly enter the actual chamber to vote on Kenyan laws.
Yesterday, the Speaker’s Kamukunji even summoned the President (a Member of the National Assembly) to its session behind closed doors to discuss the constitutional amendment necessary to reconstitute an independent electoral body. Today the President has returned to another session of the Speaker’s Kamukunji to discuss a pending constitutional amendment. However it is described by the Speaker this afternoon (while in the official chamber) as an “informal meeting of all Parliamentary parties.”
Here’s the question: In view of the Constitution, and the Standing Orders of the National Assembly, is this legal?
About three weeks ago, the Speaker of the National Assembly presided over another similar assembly at which it was decided that MPs would vote as a bloc to delete an amendment to the National Assembly Remuneration Act which would make their untaxed allowances (Ksh 650 thousand per month) subject to taxation. Since then public outrage has been met with contemptuous silence from almost every single one of the 222 Members of the National Assembly. Few have spoken in terms of contrition, the others have tended towards insulting the tax-paying public.
Contempt for public opinion is one thing, but abusing law making powers to settle scores is quiteanother. Now we read claims by the Media that they have been targeted for punishment by the same Members of the National Assembly as they exercise their law-making power. A plan drafted at yet another informal meeting of our Members of the National Assembly. From the news reports one can deduce that there is the real danger that MPs are now making laws mala fides and for extraneous reasons without considered debate. I have in mind the newly revised Kenya Communications law which reintroduces Kenya’s media to the infamous clause 88 which authorizes trespass on private property by the State on unaccountable grounds and the unaccountable seizure of private property without ex ante check.
The media, and Kenyans, might wish to note that this draconian clause is being pushed as fait accompli by Dr. Bitange Ndemo, Permanent Secretary for the Ministry of Information in the Government of Kenya, who personally used the clause to black out live radio and television broadcasts as soon as the Electoral Commission of Kenya announced President Kibaki’s reelection on December 30th 2008 – an action which contributed greatly to the loss of 1,133 lives and the dislocation and brutalization of hundreds of thousands of Kenyans. His personal responsibility was remarked upon by the Waki Commission of Inquiry on Post Election Violence at page 383 thus: “A ban on live media broadcasts may well have had negative unintended results in terms of security issues. Many citizens determined this act amounted to a further infringement of their rights, indicated that the government had something to hide and as a result heightened tensions that were already running at very high levels. The Attorney General in fact testified that in his view the ban was not legal.” Dr. Ndemo had by his own admission published the following illegal order:
“Pursuant to section 88 the Kenya Communications Act ,1988, I am directed by the Minister of Internal Security, Hon. John Michuki, that in the interest of public safety and tranquility, that I order the immediate suspension of live broadcast until further notice.” A statement signed by Bitange Ndemo, the Information and Broadcasting PS. The Standard, Monday December 31 2008.
According to the Constitution of Kenya, Parliament comprises the President and the National Assembly. Parliament has the legislative power of the Republic. The Speaker’s Kamukunji, is not and, must not be allowed to pose as a legitimate organ of the Parliament of the Republic of Kenya.
Perhaps we ought to all pause and consider that there is something extremely fishy going on here. Perhaps a parallel Parliament has secretly been set up. The Attorney General should tell us what his opinion is about the frequent use of the Speaker’s Kamukunji for legislative purposes. As we go into Jamhuri Day tomorrow, we would do well to consider the relevant provisions of the Constitution (i.e. relevant to this dangerous situation):
Section 30 (Legislative power): “The legislative power of the Republic shall vest in the Parliament of Kenya, which shall consist of the President and the National Assembly.”
Section 46 (Exercise of legislative power of Parliament):
(1) Subject to this Constitution, the legislative power of Parliament shall be exercisable by Bills passed by the National Assembly.
(2) When a Bill has been passed by the National Assembly, it shall be presented to the President for his assent.
(3) The President shall, within twenty-one days after the Bill has been presented to him for assent under subsection (2), signify to the Speaker that he assents to the Bill or refuses to assent to the Bill.
(4) Where the President refuses to assent to a Bill he shall, within fourteen days of the refusal, submit a memorandum to the Speaker indicating the specific provisions of the Bill which in his opinion should be reconsidered by the National Assembly including his recommendations for amendments.
(5) The National Assembly shall reconsider a Bill referred to it by the President taking into account the comments of the President and shall either—
(a) approve the recommendations proposed by the President with or without amendment and resubmit the Bill to the President for assent; or
(b) refuse to accept the recommendations and approve the Bill in its original form by a resolution in that behalf supported by votes of not less than sixty-five per cent of all the Members of the National Assembly (excluding ex officio members) in which case the President shall assent to the Bill within fourteen days of the passing of the resolution.
(6) A law made by Parliament shall not come into operation until it has been published in the Kenya Gazette, but Parliament may postpone the coming into operation of a law and, subject to section 77, may make laws with retrospective effect.
(7) A law made by Parliament shall be styled an Act of Parliament, and the words of enactment shall be “Enacted by the Parliament of Kenya”.
Section 52 (Powers of President in Parliament):
The President shall be entitled—
(a) in the exercise of his functions as Head of State, to address the National Assembly at any time he thinks fit to do so; and
(b) in the exercise of his functions as Head of the Government and as a member of the National Assembly, to attend all meetings of the Assembly and to take part in all proceedings thereof, and to vote on any question before the Assembly.
Section 56 (Regulation of Procedure in National Assembly)
(1) Subject to this Constitution, the National Assembly may—
(a) make standing orders regulating the procedure of the Assembly (including in
particular orders for the orderly conduct of proceedings);
(b) subject to standing orders made under paragraph (a), establish committees in such manner and for such general or special purposes as it thinks fit, and regulate the procedure of any committee so established.
(2) Subject to this Constitution, the National Assembly may act notwithstanding a vacancy in its membership (including a vacancy not filled when the Assembly first meets after a general election), and the presence or participation of a person not entitled to be present at or to participate in the proceedings of the Assembly shall not invalidate those proceedings.
58. Summoning of Parliament.
(1) Subject to this section, each session of Parliament shall be held at such place within Kenya and shall commence at such time as the President may appoint.
(2) There shall be a session of Parliament at least once in every year, so that a period of twelve months shall not intervene between the last sitting of the National Assembly in one session and the first sitting thereof in the next session.
(3) Whenever Parliament is dissolved, a general election of members of the National Assembly shall be held, and the first session of the new Parliament shall commence within three months after that dissolution.
(4) Subject to this section, the sittings of the National Assembly in a session of Parliament shall be held at such time and on such days as may be determined in accordance with the standing orders of the Assembly.
Kenya is 45 years old tomorrow. Let’s start making the next 45 years better than what’s past.
Mwalimu Mati December 11th 2008