Paza Sauti
Honourable members, on Thursday, April 23, just as the House was about to resume the interrupted debate on the Motion for the approval by the House of the names of Members nominated to serve on the House Business Committee, the Member for Kisumu Town West, the Honourable John Olago-Aluoch, stood on a point of order claiming to raise an issue touching on the ability of this House to defend the Constitution. The Member noted that the Motion for approval of Members of the House Business Committee had been brought by the Honourable Vice-President as Leader of Government Business. He, however, sought to know from the Chair who under our Constitution is supposed to move the Motion.
Citing the definition of the ‘Leader of Government Business’ in the Standing Orders, which at Standing Order 2 is defined as "the Minister designated by the Government as the Leader of Government Business in the House" the Member posed the question: "Who is the Government in the context of the Kenyan situation?"
Olago-Aluoch went on to argue that ‘Government’ in the context of the Kenyan situation is defined by the Constitution and the National Accord and Reconciliation Act and that, considering the functions of the Prime Minister as set out in the Constitution, the inference from the Constitution and the National Accord is that the Leader of Government Business and the chairperson of the House Business Committee is a constitutional affair. It was the argument of the Olago-Aluoch that the Leader of Government Business ought to be the Prime Minister and that it would be unconstitutional for any other person to be the Leader of Government Business or the chairperson of the House Business Committee. He, thus, sought a Ruling from the Chair on these matters before the House could proceed.
Weighty Matter
The Chair took the view that the matters raised by Olago-Aluoch were weighty and decided to hear a few more contributions from Members before indicating the way to proceed.
Honourable Members, what followed was a barrage of learned and educated opinions by many Members canvassing various positions on the issues raised. In the process a number of Members also raised new issues which merit consideration and comment by the Chair. Some of the Members who gave opinion or raised issues include Honourables Mutula Kilonzo, James Orengo, Gitobu Imanyara, Kiraitu Murungi, Dr (Wilfred) Machage, Isaac Ruto, Uhuru Kenyatta, Charles Kilonzo, William Ruto, Walter Nyambati, William ole Ntimama, Abdul Bahari, Prof George Saitoti, Chris Okemo, Peter Munya, Elizabeth Ongoro, Dr Naomi Shaban, John Mbadi, Prof Sam Ongeri, Ababu Namwamba, Prof Anyang’ Nyong’o, Bifwoli Wakoli, Farah Maalim and George Thuo. This list is not exhaustive.
Honourable Members, you will recall that at the end of all the contributions, I delivered a communicationin which I among other things promised, without prejudice to the Ruling I undertook to deliver today, to seek direct audience with His Excellency the President and the Right Honourable Prime Minister with a view to bringing the matter of the constitution of the House Business Committee, its chairperson and the Leader of Government Business to a speedy and amicable conclusion. I also undertook to make known to this House, the results of that initiative. Indeed, I will do so in the course of this communication.
Speaker ill-equipped
Honourable Members, before I get to the heart of this Ruling, let me remind you of what I said on Thursday, 23rd April, 2009. I said then and I repeat now that the office of the Speaker of the National Assembly is singularly ill-equipped to advise on or determine for the for the Executive arm of Government, and, for that matter, political parties, how they shall run their affairs.
I further stated that the Speaker will limit himself to questions of constitutionality, statute and the Standing Orders, but only so far as these relate to the business and affairs of this House. I, therefore, want to make it clear from the onset that subject to these qualifications, I do not intend to traverse territory that is outside the province of my office.
Honourable Members, I have distilled the following issues from the points of order and contributions made:
a) What is the definition of the Government in the context of Standing Order No 2?;
b) Whether the Speaker having recognised or allowed the Vice-President to appear before the House as the Leader of Government Business, is estopped from entertaining any questions as to the legality or propriety of his incumbency as such;
c) Whether the House has any role in the nomination or determination of the Leader of Government Business;
d) Whether the Constitution, as read with the National Accord and Reconciliation Act, provides for who shall be the Leader of Government Business in this House;
e) How any inconsistency between the National Accord and Reconciliation Act and the Constitution, or for that matter the Standing Orders, is to be resolved;
f) What the Speaker is to do in the event that he receives two different letters from the same Government designating different persons as Leader of Government Business in the House;
g) Whether the House can remove a Leader of Government Business and if so by what procedure;
h) The procedure for nomination of the chairperson of the House Business Committee and whether the nominee of Government for chairperson is to be part of the list submitted to the House for approval or is additional to it;
i) Whether the House can proceed to approve the membership of the House Business Committee without regard to the question of who the Leader of Government Business or the chairperson of the Committee is.
Honourable Members, I seek your indulgence as the menu of issues for determination is very long. Allow me to pronounce myself as concisely as I can on each of these issues:
The first and probably the most important issue is the question of who or what constitutes the ‘Government’, for the purposes of the designation of a Minister envisaged under Standing Order 2. This issue was canvassed at length and is at the core of the present impasse.
Various documents were cited as providing the answer; including the Interpretation and General Provisions Act; Chapter 2 of the Laws of Kenya
, the Constitution and the National Accord and Reconciliation Act. The simple question being asked is this: When the Standing Orders provide for designation of a Minister to be the Leader of Government Business in the House by the Government, who is envisaged to make that designation?
Honourable Members, the position of Leader of Government Business exists in virtually all Parliaments in the Commonwealth. There are, however, no hard and fast rules as to who shall hold that office. In some jurisdictions, the matter is expressly provided for in the Constitution, while in others it obtains by statute or the standing orders. The following few examples shall illustrate this point:
No Universal Rule
In the Republic of Ghana, the Leader of Government Business is not specifically provided for in the Constitution and the holder of that office need not be a Minister. In fact, today, the Leader of Government Business in the Parliament of Ghana is not a Minister. He is not a member of Cabinet and cannot lay a paper in the House on behalf of a Minister.
In the Republic of Uganda, pursuant to Article 108A of the Constitution, the Prime Minister is designated as the Leader of Government Business in Parliament. In the United Republic of Tanzania, under the Constitution, the Prime Minister is appointed by the President and is the Leader of Government Business in the National Assembly and has authority over the control, supervision and execution of the day-to-day functions and affairs of the Government.
In the Republic of South Africa, the President appoints the Leader of Government Business in Parliament. In democracies with a longer history such as the United Kingdom and India, the Leader of Government Business is designated by the Prime Minister who is the Head of Government. There is, therefore, no universal rule of general application in this matter.
Honourable Members, in Kenya, the office of the Leader of Government Business is recognised and defined only in the Standing Orders. The position as defined in the Standing Orders must be construed, not generally, but only in the context of the National Assembly. The holder is the Leader of the Business of the Government only for the purposes of the House.
National Accord
The phrase ‘Leader of Government Business’ is not, to my knowledge, to be found anywhere in the Constitution or in the National Accord and Reconciliation Act. The position is not established by or under any other statute. It follows that neither the Constitution, nor any statute has provision on the appointment of the Leader of Government Business in the House.
In providing that the Leader of Government Business shall be the Minister designated by the Government, I find that, in terms of how the House functions, the Standing Orders mean no more than that the Leader of Government Business is to be the Minister designated by the Government. It is that organ that is entrusted with the running of the Executive arm of the Republic.
The office of Leader of Government Business in this House has been held by various persons since Independence. At some times the office has been held by the Vice-President while at other times it has been held by a Minister. The one constant thread running through is that the decision about who shall be the Leader of Government Business has always been in the Executive.
Honourable Members, a number of Members suggested that as the Speaker had "recognised" the Vice-President acting as Leader of Government Business at some point, the Speaker was, therefore, estopped from entertaining any queries on the legality or propriety of the Vice-President’s incumbency as such. This is not so. The role of the Speaker, as is well known, is to act as a neutral arbiter. The Speaker is not a protagonist in the arena that is the House. The Speaker does not raise points of order on his own motion...
Continues Thursday.
Hon. Kenneth Marende, E.G.H., M.P.,
Speaker of the National Assembly
28th April, 2009.
