Nine months since assuming office, Speakers Moses Wetang’ula and Amason Kingi, of the National Assembly and Senate respectively, are raising eyebrows regarding decisions they have made so far.
The minority leadership in Parliament has been categorical that the two Speakers have made “unpopular” decisions that blatantly favour the Kenya Kwanza administration and cannot hold a candle to their predecessors.
Mr Wetang’ula and Mr Kingi were elected on September 8, 2022 by their respective Houses following the conclusion of the August 9, 2022 General Election.
The latest of the decisions happened on Wednesday last week when Mr Wetang’ula told members that debate on Finance Bill 2023 would conclude today.
The Speaker, however, changed his mind to allow debate to conclude on that same day.
At the conclusion of debate on a Bill, members vote to determine whether it goes for the next stage or ends there.
It is not clear whether Mr Wetang’ula had intended to trick Azimio la Umoja One Kenya Coalition Party MPs, who had openly promised to vote against the Bill, by changing his mind to allow the voting at a time when a good number of them were not in the chamber.
The Speaker’s move saw the Azimio MPs led by House minority leader Opiyo Wandayi walk out on National Treasury Cabinet Secretary Njuguna Ndung’u as he was presenting the 2023/24 budget estimates in the House.
“The walkout is a protest ... This is not a man to trust,” said Mr Wandayi, who went on to fault Mr Wetang’ula for irregularly halting debate on Finance Bill 2023 despite having provided clear guidance on how debate on the Bill was to proceed “only to trick our members.”
Rarieda MP Dr Otiende Amollo was among the Azimio MPs who were caught unawares by Mr Wetang’ula’s sudden about-turn.
Dr Amollo faulted Mr Wetang’ula for halting debate on the Finance Bill and forcing its passage despite giving an undertaking to give members time to contribute to the Bill.
“The Speaker had suggested that the voting would come next week on Tuesday [today]. It is improper to mislead MPs, the media and the nation and that is part of the issue we have,” said Dr Amollo adding; “MPs could not vote courtesy of the Speaker’s mischief.”
On June 4, while in Narok for a thanksgiving ceremony held in honour of Environment and Forestry CS Soipan Tuya, Mr Wetang’ula told President William Ruto, who was present, that “there is a lot of heat that is not generating any effect.”
“I want to advise you as a friend. Never fear to act and never act in fear,” he told the President. Mr Wetang’ula’s comments attributed to the Azimio threat to shoot down the Finance Bill, caught many by surprise. On June 11, Mr Wetang’ula was at it again while in Lwandeti, Kakamega.
“It is your responsibility as a leader to interrogate the Finance Bill then file amendments,” said Mr Wetang’ula in an apparent swipe at MPs opposed to the Bill.
Incidentally, during his 10-year tenure as Speaker of the National Assembly, Justin Muturi rarely attended presidential functions except during national celebrations.
As a senator, Mr Wetang’ula never hesitated to attack Mr Muturi for making a ruling that appeared to favour the Jubilee administration. He also attacked then Chief Justice David Maraga, whom he accused of endearing himself to the executive.
Mr Wandayi despite President Ruto talking of making the opposition in Parliament stronger, Mr Wetang’ula, who still remains as the party leader of Ford Kenya amid possible conflict of interest, is acting against that aim.
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It’s worth noting that Mr Kingi resigned from his Pamoja African Alliance party before contesting the Senate speakership.
Mr Wetang’ula is also in trouble for stopping Azimio from removing its rebel MPs from House committees despite their open dalliance with Kenya Kwanza.
In the Senate, Mr Kingi had for a while frustrated Azimio’s quest to have Isiolo Senator Fatuma Dullo replaced as minority whip before finally succumbing to pressure from Azimio Senators.
Yesterday Mr Wandayi (Ugunja) and Senate Minority Whip Edwin Sifuna (Nairobi) warned that should the two continue with the trend, Azimio will reconsider its engagement with Kenya Kwanza in the parliamentary bipartisan talks.
“The behaviour of the two Speakers is a clear demonstration of insincerity in terms of respect to the tenets of multi-party democracy. They are openly interfering in our internal affairs and in the process making it difficult for us to function as law requires,” said Mr Wandayi.
Mr Wandayi added that “what happened in the House on Thursday could be the straw that broke the camel’s back.”
This was, however, at variance with the records at the Office of the Registrar of Political Parties (ORPP), which still showed Azimio as the majority party with 171 members while Kenya Kwanza had 165 members.
“Wetang’ula simply moved members of Azimio to Kenya Kwanza, which is illegal because the records at the registrar’s office speak for themselves,” said Mr Wandayi but did not explain why Azimio never challenged this in court.
“It is difficult to say whether what Mr Wetang’ula relied on to ensure Ms Chege remains in office is a legitimate court order. It was not served on us, never mind that we are an interested party and we were never involved,” said Mr Sifuna.
The MP further wondered why those who sought the injunction did not find it proper to exhaust the matter at the Political Parties Disputes Tribunal first as due process demands before moving to the High Court.
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Mr Wandayi said former National Assembly Speaker Justin Muturi, now the Attorney-General, may have had his flaws but he never interfered in the internal affairs of parties and coalitions like his successor. He said this even as Mr Sifuna wondered why Mr Wetang’ula had stopped being a defender of Parliament against judicial overreach.
During his time as Speaker, Mr Muturi never found it difficult to accede to requests from the minority side in the House to dewhip its members from the leadership role or committees.
When confronted with such requests by members from the majority side, Mr Muturi would always say “my hands are tied and I am simply following what the law says.”
In 2014, Mr Muturi said that, while Parliament was keen on respecting the Judiciary, it would not entertain any orders from the courts that cannot be enforced and “appear to be issued in vain.”
“We want to respect the court orders and we have respected many of them. But I do not understand how we are to obey every order, however idiotic or unconstitutional,” he said.
Mr Muturi would go on to urge judges that, before they issued any orders, they should ensure such directives could be effected. He said such orders can only be issued if the parties seeking them are at a risk of suffering “irreparable damages.”
On June 4, 2020, when he communicated to the House the National Super Alliance (Nasa) coalition’s decision to replace then Kiminini MP Chris Wamalwa as the deputy minority whip, he said; “my role is merely to communicate if you look at the Standing Orders.”
He was equal to the task when challenged by the MPs from the majority side who were unhappy with the decision.
“Well, unfortunately for me, where I sit, if I were to use the words used on January 4, 1642 by Speaker James Lenthall, obviously it would be to say that even there, I would have no eyes to see. In fact, I would have no ears to hear and certainly no tongue to speak,” he told them.
“I only speak that which I hear from this House, whose servant I am. So, I am unlikely to proffer any views on those others. That was merely a communication on those changes.”
As Bungoma senator, Mr Wetang’ula viewed court orders against Parliament as tantamount to interference. On September 23, 2014, he urged then Speaker Ekwee Ethuro to disregard court orders injuncting parliamentary business.
“Mr Speaker, sir, as a head of a critical institution in this country, you know very well that the executive draws its authority from laws passed by the legislature. The Judiciary exercises jurisdiction and authority bestowed upon them by the legislature. This is the grand norm of democracy,” Mr Wetang’ula appealed to Speaker Ethuro.
He continued: “If the grand norm of democracy becomes a national darts board, then we are headed in the wrong direction. It is incumbent upon you and all of us to do something before things get too late.”
The debate was triggered by nominated Senator Beatrice Elachi, now Dagoretti North MP, after she sought the guidance of the Speaker on the many court orders against Parliament.
“The basic tenets of law on injunctions, even a first year law student knows, you cannot grant an injunction unless damages are an inadequate compensation and that the party is going to suffer irreparable damage.”
He went on to quote the case of Giella versus Casman Brown that, he said, set precedence on when and how an injunction should be issued and operate.
Suffer irreparable damage
“In such weighty matters as injuncting an institution as critical as a Senate ... common sense and judicial sense requires that no such orders should be given ex parte,” he said.
“This is because you go for an ex parte injunction when there is imminent danger that your house is about to be auctioned, it is a Friday and you must stop it so that the court can hear you on Monday after serving the other party. If not, you will suffer irreparable damage.”
He went on to say that, just as the Senate cannot sit and direct any judge on how to discharge their judicial functions, the Judiciary has also no capacity to direct Parliament on how to discharge “our legislative functions.”
“That is the balance of convenience and balance of issues in a democracy. I respect you, you respect me. When I do wrong and somebody comes to complain, you arbitrate.”
Mr Wandayi wondered what had changed for Mr Wetang’ula, to become the one administering court orders issued ex-parte against Parliament.
Mr Wandayi noted that Mr Wetang’ula was never interested from the first instance, when he wrote to him to have Ms Chege dewhippped.
“Court order or no court order, Mr Wetang’ula has been employing mischief after my first letter to him. He went on to open my letter to unwarranted debate in the House instead of simply communicating to the House and the country like his predecessor would easily do,” the Ugunja MP said. Mr Wetang’ula would go on to promise that he would issue a ruling on the request but did not give a definite date. He then advised Azimio that there was no way they would remove Ms Chege without a replacement.
By that time, the House was proceeding on a month-long recess. In the 12th parliament, Mr Wetang'ula was the leader of the minority side in the Senate.
When his Nasa coalition wanted him removed in March 2018, then Speaker Ken Lusaka, now Bungoma Governor, was simply notified and made a communication to the House.
