KAMPALA–A senior city lawyer has stated Parliament cannot use its legislative powers to amend the Constitution.
Peter Mulira was appearing before the Legal and Parliamentary Affairs committee this morning to offer his views on the age limit bill.
He told the MPs that the provisions under which the Constitution can be amended as spelt out in Article 259 can only be fulfilled through a procedure which is not specified. He states that this procedure can only be based on an act of Parliament which has never been passed.
The eminent lawyer argues that governments and parliaments govern through laws and not through the constitution.
He further states that this procedure to amend the constitution cannot be found in the ordinary rules of parliamentary procedure because the power to amend the constitution does not emanate from Chapter 6 which gives parliament legislative powers. Constitutional matters are not legislative he argues.
“When the Kenyan constitution was enacted they passed 49 laws to implement it, what I have seen in our case is we pass laws as we go by and we use the constitution as the authority to justify what we are doing and I think that is unconstitutional,” Mulira observed.
Mulira argues that any bill to amend the constitution must be moved under procedures that should be clearly spelt out in a law which is absent.
Mulira also criticized the MPs for proceeding with the debate without basing on the constitution but rather discussing politics.
He noted that his submission before the committee was aimed to trigger a debate that would move in the correct direction.
He also rubbished the manner in which consultations have been carried out by the MPs, he points out that a constitution is a complicated matter which one does not address at a rally like he has seen several MPs doing. He says the relevant citizens have not been consulted.
“You have not consulted people who are relevant to the formulation of constitutional provisions….instead we go to public bazaars and dance and dish out money and say that we have consulted, I disagree.” He remarked.
Apart from highlighting the constitutional principles that he believes the MPs should be aware of Mulira also offered his thoughts on the contentions proposed amendment to article 102(b).
He argues that the age limit is restrictive in nature rather than constituting as qualification.
He stated that age has no relation to the capacity of a person to execute their duties, he cited the example of Ronald Reagan a former US president who was 78.
He, however, refused to be drawn into giving his personal opinion on whether or not be believed the age limit should be lifted saying he had come merely to raise the awareness of the MPs regarding the matters before them.
Ajuri County MP Dennis Obua tried to get him to commit himself on Article 102(b), “You stated that age has no relation to the ability of a person to perform….would this committee take it that this is a key recommendation from counsel Mulira?” Obua queried.
Mulira declined to offer his personal view on the clause, “If I were to approach this problem in a constitutional manner it means that I don’t come with preconceived ideas that article 102 is bad, I come to listen…..and as a thinking person I decide where to fall,” he argued.
He also points out a contradiction raised by Article 102(c) of the Constitution which states that a person qualifies to stand for president if they qualify to be a member of parliament and yet an MP is not restricted by an age cap.
Mulira branded article 102(b) as clumsy. “If we are to look at it constitutionally you can see that it was drafted badly.” He told the committee.
