CIC/ CIC/DG/3/54/2/VOL.

I 15
th
July 2014

Mr. Jeremiah Nyegenye
Clerk of the Senate
Clerks 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 30
th
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 Chepkonga, 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

1

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.

2

(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:

3

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.

4

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.



5

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) Parliaments 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:

6

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 Speakers decision should be subject to regulations.

7

(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 members 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.

8

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 peoples 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:

9

(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- Speakers orders
Comment:
(a) Delete the marginal note Speakers orders and replace with Regulations.

10

(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 speakers 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 Speakers 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).