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Tuesday, February 8, 2011

Look in the mirror you committee members!

The Justice and Legal Affairs Committee has been good so far with regard to upholding the constitutional right of public participation. But somehow, when it comes to the on-going scrutiny of the constitutionality of the President’s nominees to the offices of the Chief Justice, the Director of Public Prosecutions and the Attorney General, the committee has decided to flout article 118 of the Constitution and hold its sittings in camera.

The explanation given to this writer when he asked the chairman, Mr Ababu Namwamba, is that the decision for committee meetings to be held in “an open manner” lay with the committee members. Namwamba also said that for the last two days and eight hours of meetings were spent on procedural matters.

One of the members, Isaac Ruto (Chepalungu, ODM) told me, “we have been good so far and I think it’s time you gave us a break!” Well, when he said it, I thought he was joking. But when the time for the meeting came, word from the committee was that we’d have to wait till they conclude the deliberations and then “get a brief briefing”.

Now, to get why I got angry, you have to read article 118: “Parliament shall conduct its business in an open manner, and its sittings and those of its committees shall be open to the public; and facilitate public participation and involvement in the legislative and other business of Parliament and its committees.”

It goes on: “Parliament may not exclude the public, or any media, from any sitting unless in exceptional circumstances the relevant Speaker has determined that there are justifiable reasons for the exclusion.”

I read the Speaker’s ruling delivered last Thursday and nowhere in it did he direct the committee to bar the public from attending the meetings. I have no information –and I have asked around—to the effect that the Speaker has directed that the sittings to be closed.

What the committee seems to be using is the Standing Orders, which are definitely not in conformity with the Constitution with regard to “open sittings”.

The committee may cite the use of the word “may” in article 118(2) to explain why they didn’t need the Speaker’s permission to exclude the public, but the mother article 118(1) is explicit—all sittings shall be open to the public.

Now, the office of the CJ, the AG and the DPP, affect the public bigtime. There’s been a lot of debate in the public domain concerning the matter. When the Speaker made the ruling, he alluded to the matter as being of critical national significance. So, when the committee of the House fails to follow the same Constitution it pretends to scrutinize, all people can do is to raise questions about the credibility of the deliberations inside those closed doors..

Given the furore about the apparent horse-trading between the President and the Prime Minister, in picking the nominees, there’s a reason why the public must be involved.

Mr Namwamba had said the committee would be collecting memos from the Commission for the Implementation of the Constitution, the Judicial Service Commission, the Law Society of Kenya and even the International Commission of Jurists –Kenya Chapter. The team was also expecting correspondence between the President and the Prime Minister and perhaps minutes of their controversial “consultation”.

Also, according to Mr Namwamba, the committee was to look at the High Court ruling terming the nominations, “unconstitutional”.

Now, the fact that the committee has opted to look at these documents, many of which insist that the process was flawed and ought to be repeated, then it becomes clear that it is perhaps just “buying time” only to bring to Parliament already agreed positions.

But I could be wrong. The committee may have decided to read the memo, “protect” the public from the political back and forth that has been witnessed and is likely to be witnessed in the delibrations and may be just give us a ‘refined” version of their meeting. The truth will inevitably come out when the reports are tabled in Parliament on Thursday.


It’s kudos big time to the Finance, Planning and Trade committee –it that is looking into the constitutionality of the appointment of Mr William Kirwa as controller of budget. They agreed to uphold article 118, held their meeting in public. The chairman is one-time Finance Minister Chris Okemo (Nambale, ODM).

How about that for reading the Constitution and accepting to change with the times?

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