MPs faulted for defying legal advice in the legislation process
30 October 2015, 09:25
Mombasa - MPs are to blame for the witnessed legislation of controversial and unconstitutional laws by defying legal advise given by parliamentary lawyers.
The Senate Clerk, Jeremiah Nyegenye while speaking in the 3rd Africa Colloquium of Legal Counsel Parliaments forum attended by parliamentary lawyers from 20 countries, said the legislators failure to listen to legal advice remains a major challenge and the cause of enacting contentious laws.
"Legal counsel face a major challenge of legislators' non-compliance in the legislation process. We can't demand for particular laws to be passed in whichever way because no one intends to gag Parliament in making decisions," said Nyegenye.
"One cannot say when such Bills are passed there was legal advice given. When you are a lawyer, you give legal advice. No one can gag or demand Parliament to pass a law,” he added.
The Clerk also noted that since parliamentary lawyers have no powers to overturn their clients' decisions, the Judiciary as a final institution of justice has helped in determining the legality of passed and disputed Bills.
Some of controversial pieces of legislations passed and challenged in the court include the Security Laws Bill 2014 which President Uhuru Kenyatta had assented to, and the recent Parliamentary Powers and Privileges Bill which was withdrawn due to pressure and criticism from the public and media.
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The controversial National Assembly Powers and Privileges Bill, 2014, sponsored by Eldas MP Adan Keynan was proposing that a journalist found guilty of “defaming Parliament” be fined KES 500 000 or face a two-year term jail or both.
“When laws have been passed, the legitimate body that can decide their constitutionality and validity is the Judiciary. There will be no consensus at all times, but the Judiciary is to arbitrate where disputes arise,” said Nyegenye.
He pointed out that the witnessed supremacy battles between Parliament and Judiciary are not crises but legitimate discourse that ultimately define their constitutional roles.
However, Nyegenye asked the lawyers to continuously "go on record” in offering legal advise in legislation regardless of whether it will be heeded or not.
“You have to show fidelity to the rule of law. You have to be a ‘lawyer plus’. People will take advice by learning from consequences of our advice,” warned Nyegenye.
He urged the counsels not to be contented, but keep learning to update their skills and guidance to be in line with emerging trends in the world.
Ruaraka MP, Tom Kajwang asked Kenyan legislators to be role models to the Members of County Assemblies, which are the Kenya’s ‘youngest parliaments’ in Africa, having started in 2012.
The Colloquium brings together all parliamentary lawyers from member States to discuss challenges and progress made in ensuring proper legislation processes are enhanced.
The members are expected to ratify their Constitution besides holding elections of new officials.
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