Marende's mix of wise and baffling rulings

Speaker Kenneth Marende’s ruling that blocked the submission to President Kibaki of a list of nominees to the Ethics and Anti-Corruption Commission on Wednesday marked what has been one of Mr Marende’s toughest days at the helm of Kenya’s legislature this year.

Mr Marende cleared the way for a fresh vetting of the commission’s proposed chairman Mumo Matemu and commissioners Jane Onsongo and Irene Keino.

He argued that MPs had on Tuesday only rejected a report by the Justice and Legal Affairs Committee that had found the nominees unfit to lead.

His ruling capped a year when he’s been between a rock and a hard place. He’s had days when he oozed wisdom of Solomonic proportions; but he’s also had days when his rulings baffled common sense.

Public mood

He’s been vilified by his colleagues when he made the rulings that were sound in law and resonated with the public mood.

Similarly, when he defended his colleagues for their exceptional appetite at raiding the Exchequer, the people, led by activists, lobby groups and journalists, criticised him big-time.

The high in the Speaker’s year is when he stood tall and told off President Kibaki over his pick for the Chief Justice, the Attorney General, the Director of Public Prosecution and the Controller of Budget.

The Speaker came out as a bold defender of the Constitution, when on that very day, he also threw out a report of the Justice and Legal Affairs Committee that backed the President’s decision.

“It is unconstitutional and the unconstitutionality cannot be cured by any act of this House or of its Committees or by a vote on a Motion in the House,” Mr Marende said in the February 17, 2011 ruling.

The politics of the time exposed the interests behind the appointments as Deputy Prime Minister Uhuru Kenyatta and his friends from the PNU side of the coalition denounced the Speaker’s ruling.

Mr Kenyatta, in a bout of fury, banged a table in full glare of the media, implying the Speaker was perhaps being manipulated by Prime Minister Raila Odinga.

However, the Speaker had no option in the matter, given that his ruling reflected the letter and spirit of the law.

The High Court and the Commission for the Implementation of the Constitution had termed the appointments as unconstitutional and illegal.

The process was repeated, the candidates publicly interviewed and vetted, and finally approved by Parliament before President Kibaki had the chance to appoint them formally. This was done and all is well, for now.

The Speaker then dissipated the country’s anxiety when he assured the public that Parliament would meet the Constitutional deadline of August 26, 2011 and enact all the laws required within one year to roll out the Constitution.

True to his word, he rallied MPs to sit until midnight to approve the laws, among them those to do with the courts, the political parties and the elections.

As a stickler for the rule of the law and as the captain of all the 222 MPs, Mr Marende has had to take some unpopular steps that have exposed him to the wrath of the public.

The first came, when, he rejected fresh attempts by the Commissioner of Domestic Taxes, Mr John Njiraini, to force MPs to pay tax on their hefty perks.

According to the Speaker, the Constitution had changed, but the details in the law that would cause MPs to pay tax, remained intact.

He cited the law of natural justice — something to do with the illegality of changing the terms of service of an employee, midway, through the contract term — to back his position.

As the captain of the team, he said, he could not abandon his troops. He believed that everyone ought to pay tax on their income, but then, that too, should be done within the law.

For this, Mr Marende was dubbed as the champion of impunity in the House, because he had flouted the Constitution. But the Speaker as far as he was concerned, was within the law.

To prove his point, he approached President Kibaki and Prime Minister Raila Odinga and asked them to make sure the country covered the taxes of MPs until the end of their term.

The two principals acquiesced and got the taxman off MPs’ pockets. The Treasury went ahead to okay Sh2 billion for this purpose.

The Speaker also made a rather curious ruling when he said that the proposals to employ more teachers on permanent basis could be postponed, if the Treasury had no money.

That, when Parliament had scrounged around in the Budget to get Sh5 billion for that purpose, made him unpopular with the vote-hungry lawmakers.

The Treasury agreed with him, the teachers went on strike, and in the end, the matter was solved.

In December, the Speaker bowed to pressure from the Executive and made a ruling that was inconsistent with past precedents.

He had kiboshed the amendments to the Banking Act to control the interest rates from being part of the Finance Bill, but MPs wildly rejected his step and he had to budge.

He rescinded the decision quietly, but the damage had already been done, as it exposed the undercurrents behind the ruling, and even cast aspersions on his independence.

He also had tough moments when allegations of corruption, nepotism and malfeasance were levelled against the Parliamentary Service Commission, which he chairs. Somehow, he put this matter to rest.

Then came the Sh200,000 per seat for the honourable MPs. The Speaker said the initial price was Sh400,000, which was cut to Sh350,000 and then further to Sh200,000.

That, according to Mr Marende, was a major improvement. In his considered wisdom, the Speaker said that the money would remain in the same government, given that the seats were being made by the Prisons Department in Kenya.

All that would sound judicious, until it dawns on him that even if the money stays in the same government, there are more pressing issues that such money would help solve, rather than having it tied up on seats.

He didn’t come up with the estimates. That was the work of the Public Works ministry, whose wasteful tendencies are legendary.

But because he has to ensure that a new Parliament looks honourable, the Speaker had to defend the architects, project managers and contractors.