The Parliamentary Powers and Privileges Amendment Bill (the Bill) proposes to do three things:
1. Delete section 7 of the Parliamentary Privileges and Amendment Act, 2017 (the Act) and substitute therefore a new section 7
2. Delete section 11 of the Act
3. Insert a new Part VIA into the Act.
Our comments on the proposed amendments are as follows:
1. Deletion of section 7 of the Act and substitution therefore of a new section 7 of the Act
The Bill proposes to delete section 7 of the Act and substitute therefor the following new section
7 (1) No process issued by any court in the exercise of its civil jurisdiction shall be served or executed—
(a) within the precincts of Parliament while a House of Parliament is sitting;
(b) through the Speaker or any member of staff—
(i) unless it relates to the attachment of a Member's salary; or
(ii) if the subject matter relates to a Member exercising their personal duty.
(2) Subsection (1)(a) shall not apply to service made to a member of staff of Parliament authorised to receive service on behalf of—
(a) either House of Parliament; or
(b) the Parliamentary Service Commission.
The mover of the Bill says the primary motive for this amendment is to comply with the decision of the High Court per Hon. J.M. Mativo, J in Apollo Mboya v Attorney General & 2 others eKLR (which decision can be found on http://kenyalaw.org/caselaw/cases/view/152585), where the High Court declared the provision unconstitutional to the extent that it restricts service of civil process to the staff working in Parliament, among them legal officers authorized to receive service on behalf of Parliament. The provision appears to be a positive provision and compliant with the Constitution.
2. Deletion of section 11 of the Act
Section 11 of the Act, which is proposed to be deleted reads as follows:
No proceedings or decision of Parliament or the Committee of Powers and Privileges acting in accordance with this Act shall be questioned in any court
The mover of the Bill says the motive for this amendment is to comply with the decision of the High Court in Apollo Mboya v Attorney General & 2 others (supra), where the High Court declared the provision an ouster clause and determined that ouster clauses are antithetical to a just society. The High Court found that ouster clauses offend the constitutional principle of the rule of law because an aggrieved citizen is denied the possibility of access to the courts to challenge the decision affecting them and in this respect, the provision was declared an ouster clause and therefore unconstitutional in its entirety.
It is true that section 11, is indeed an ouster clause and Parliament cannot unilaterally bar the courts from hearing matters that are brought before it regarding the decisions of Parliament or the Committee of Powers and Privileges acting in accordance with the Act. However, it may also be necessary for the courts to exercise their “new-found” powers to question the decisions of Parliament or the Committee of Powers and Privileges acting in accordance with the Act very carefully. There still exists a doctrine of separation of powers and the three organs of government, i.e., the legislature, executive and judiciary should exercise as much restraint as possible, so as not to interfere with the functions of the other organ or organs of government. The old American case of Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867), is a good demonstration of the inter-paly between the the organs of government. In that case, which was the first suit to be brought against a President of the United States in the United States Supreme Court. The state of Mississippi, attempted to sue President Andre Johnson for enforcing Reconstruction (i.e., the effort to rebuild the country after its civil war). The court decided, based on a previous decision of Marbury vs Madison that the President has two kinds of tasks: ministerial and discretionary. Discretionary tasks are ones the president can choose to do or not to do, while ministerial tasks are ones required by his office: those whose failure to perform could leave him in violation of the Constitution. The court ruled that by enforcing Reconstruction, Johnson was acting in an "executive and political" capacity—a discretionary rather than a ministerial one—and so he could not be sued.
3. Insertion of a new part VIA of the Act.
In our view this is the crux of the amendments. The mover of the Bill says as follows, regarding the proposed insertion of Part VIA:
The accountability of other arms of Government to Parliament is necessary for democratic governance and is anchored on the fundamental principle that Parliament represents the will of the people and exercises their sovereignty.
Reporting requirements are one of the oversight mechanisms that Parliament employs to monitor the actions of the Executive and other independent offices to ensure accountability, transparency and responsibility in the performance of their duties.
In addition, parliamentary committee reports contain important policy recommendations and perspectives that reflect the will of the people and insights from the legislators and other stakeholders. A lot of time and resources go into the work of Committees and the resultant reports that are tabled and adopted in Parliament. It is therefore antithetical to good governance for those resolutions to be submitted to the Executive and other offices with no action taken or feedback given.
This Bill imposes a specific obligation on officials of the Executive, constitutional commissions and independent offices to comply with the requirement to give feedback to Parliament’s resolutions. This has been difficult to achieve through the Standing Orders of the Houses of Parliament since they are rules for the “orderly and effective discharge of the business of Parliament”, unlike legislation which has a binding effect on those to whom it applies. Although the current Standing Orders provide for reporting on resolutions, very few reports are ever submitted on action taken on the resolutions passed by Parliament.
The Bill will therefore ensure that feedback on Parliament’s resolutions and reports is not only given but given in a timely manner as delays or failure to submit reports undermine the ability of Parliament to undertake its oversight mandate.
The Bill provides a structured mechanism through which the Executive and the independent commissions and offices are required to give greater consideration to the issues raised and the recommendations made by Parliament.
We would add that under article 94 (4) of the Constitution, Parliament has the role to protect the Constitution and promote the democratic governance of the Republic. Under article 95 (5) (b) of the Constitution, the National Assembly exercises oversight of State organs, while under 96 (4) of the Constitution, the Senate participates in the oversight of State officers. The intended amendments appear to be reasonable and in keeping with the Constitutional values of good governance, transparency and accountability found in article 10 (2) (c) of the Constitution.