It will be difficult to challenge decisions made in the House after members of the 11th Parliament enacted a law that insulates proceedings and outcomes from court action.
The controversial Parliamentary Powers and Privileges Bill, passed in October 2015, and assented to by the President in July 2016; and which provides for the powers, privileges and immunities of Parliament and its committees, will take effect when the 12th Parliament convenes on Thursday next week.
Section 11 of the Act provides that no proceedings or decisions of Parliament or the Committee of Powers and Privileges shall be questioned in any court.
It further declares: “No civil suit shall be commenced against the Speaker, the Leader of Majority party, the Leader of Minority party, chairpersons of committees and members for any act done or ordered by them in the discharge of the functions of their office.”
The decision to insulate Parliament from litigation on its business comes in the wake of a deluge of court injunctions the 11th Parliament was subjected to that nearly crippled some of its business that related to its oversight mandate.
The law takes effect after Kakamega Governor Wycliffe Oparanya survived a bid to have him arrested and charged for failing to appear before a Senate committee to answer to questions on alleged misappropriation of money.
High Court judge George Odunga nullified a directive by the Director of Public Prosecutions (DPP), after finding that there was no basis for the Senate to summon the Governor over the allegations.
“Mr Oparanya had already been cleared by the Kakamega County Assembly and there is no basis for the Senate to summon him,” Mr Odunga ruled.
The Governor had made an urgent application seeking to stop his arrest and prosecution, as had been ordered by the DPP.
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Nearly 20 cases were filed against the Senate, National Assembly and their committees, mainly by governors, on accountability issues.
On several occasions, the court issued orders blocking the Senate from summoning governors to answer questions on expenditure, which riled the senators.
Through the Council of Governors, the county bosses sued the Senate to stop some of its members presenting themselves to answer audit queries.
At one point, CoG poured cold water on summons to Isaac Ruto (Bomet), William Kabogo (Kiambu), Mwangi wa Iria (Murang’a) and Jack Ranguma (Kisumu) to appear before the committee on County Public Accounts Investments as an abuse of powers.
“Governors are not accounting officers. The Senate has refused to let members of the County Executive Committee and Chief Officers at the counties who are the actual accounting officers to appear before it in total disregard to the existing county financial management,” the council said through its lawyer Peter Wanyama.
In 2014, the National Assembly was blocked from initiating the process of removing six members of the Judicial Service Commission (JSC) from office which triggered an ugly war of words between the two arms of government.
Then Chief Justice Willy Mutunga criticised Parliament, accusing it of intimidating the Judiciary by ignoring crucial court summons while National Assembly Speaker Justin Muturi insisted that the Powers and Privileges Act, prohibits any person from taking MPs to court over utterances or actions made in Parliament.
In 2015, the CoG filed a case in the High Court seeking to reverse a decision by the Senate to amend budget ceilings for counties, arguing that the House lacked powers to impose ceilings on county governments as they can only be set by the Commission on Revenue Allocation (CRA).
Early this year, Auditor General Edward Ouko sought the intervention of the courts to quash a decision by the Speaker and Clerk of the National Assembly to commit a petition seeking his removal from office before a House committee.
Mr Ouko also sought orders to restrain the Speaker and Parliament from debating the petition seeking his ouster.