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AN OPINION ON THE CONTROVERSY SURROUNDING THE PARLIAMENTARY

PASSAGE OF THE SAFE ABORTION BILL ON 8th DECEMBER, 2015
BY J.A. CARPENTER----CONSULTANT TO THE SPEAKER OF PARLIAMENT

1.     INTRODUCTION
Much energetic argument has been proferred in the case for and against THE SAFE ABORTION BILL. 
The passionate testimonies and submissions conflict and reveal our democracy burgeoning into a most welcome profundity for the public good. In the context of this exhaustive mass of critical personal convictions directed towards a controlling propagation, a welter of the conceit of unfair pontification upon the personal and private lives and rights of others in a dynamic empirical world (as opposed to a purely conceptual world) our complex world of growing consciousness and progressive sensibilities, I shall try to adopt a perspective that avoids monotonous repetition. Suffice it to say at this point that, much as moral pronouncements may be non-naturalistic, they are required to persuade through exemplary iconic pillars on the ground.

2.     THE CONCEIT OF CONFRONTATION
The step taken by the Inter-Religious Council, after parliamentary passage of the SAFE ABORTION BILL ,
to ask His Excellency the President not to sign it into law on the primary grounds that they were not consulted in
the legislative process is destructively confrontational on two fronts. Firstly,
it reveals a negative attitude of resentful reaction to an illusion of slight.
Secondly this ungraduated escalation of power-play in an ego-challenge can cause a national crisis.
A clear evidence of this, in my viewpoint, is the judicious,
ambivalent handling of the matter by His Excellency the President.
While exercising his supreme authority as National President to execute his responsibility to all his people,
he has avoided the head-on collision with Parliament proposed by the I.R.C.
Significantly the President has present in his thoughts his experience as Minority Party Leader of the House in Parliament.

I heard in a B.B.C interview that the President refused to sign the Bill into Law as the influential I.R.C. proposed. 
That is not my interpretation of the present situation, 
which steps back into space and time not expressly contemplated by the Constitution.
The Presidential decision to sign or not to sign is, in my opinion, in abeyance.

3. PROCEDURE FOR PASSAGE OF BILLS IN THE HOUSE

The Majority Party Leader of the House and Leader of Government Business,
Hon. Ibrahim R Bundu (Constituency 52, Port Loko District) and other M.P.s have been at pains to explain
the governing procedure in our Standing Orders and the consultation process involved, precedent to and throughout
the passage of the Bill. I do not intend to repeat what has been over-explained. Now, evidently, contrary to their claim
to social and moral responsibility the I.R.C. did not peacefully signal the omission to consult them, cause an extension of
the parliamentary outreach programme, or arrange to come up to Parliament and engage their recognized
representatives prior to the passage of the bill. Instead their initial step was to move the President to reject the act
of Parliament. Their pugilistic choice of immediate escalation invoked subsection 7 of SECTION 106  of the Constitution:

(7) Where a bill has been passed by Parliament but the President

refuses to sign it, the President shall within fourteen days of the
presentation of the bill for his signature cause the unsigned Bill to
be returned to Parliament giving reasons for his refusal.

The I.R.C.s proposed divisive confrontation follows immediately in subsection (8)
(8) Where the Bill is returned to Parliament pursuant to subsection(7) and that Bill is thereafter passed by the votes of not less than two-thirds of the Members of Parliament, it shall immediately become law and the Speaker shall thereafter cause it to be published in the Gazette.

However, given that, in my opinion, His Excellency did not react under  subsection(7) to the I.R.C.’s representation--- he did not refuse to sign the Bill, he only asked judiciously and graciously for further consultation--- Parliament cannot, for its part correctly follow on with either subsection(8) or STANDING ORDER 58(6) without a substantial modification which drops the concept of override, since there is nothing to override.  Rather, the House may wish to move through STANDING ORDER 83 (1) and (2) to enter the STANDING ORDERS OF THE KENYAN PARLIAMENT and borrow a leaf from the section--- REFERRAL OF BILLS BY PRESIDENT. The Bill may then be sent again to His Excellency for his signature, held in abeyance, with a report on the action taken by the House along the lines he suggested, and supported by a parliamentary resolution on a majoritarian not an absolute majority threshold.