Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR controversial as they did not seek to correct anomalies, inconsistencies or outdated terminology or errors but instead brought about significant changes to the law and introduced wholly new concepts. To buttress this argument, the decision in the 2016 Law Society Case is identified as explaining the circumstances under which statutory amendments can be made by use of Statute Law Miscellaneous legislation. It is its submission that the five-judge bench which heard the matter looked at the position in various countries and ultimately concluded that while there is no internationally accepted position on the legality of omnibus Bills, both on policy and good governance, omnibus amendments in the form of Statute Law Miscellaneous legislations ought to be confined only to minor non-controversial and generally house-keeping amendments. 648. On the authority of the case of Josephat Musila Mutua & 9 Others v Attorney General & 3 Others (2018) eKLR the 6th Interested Party contends that provisions that affect fundamental rights and freedoms are substantial amendments. It submits that the introduction of the new markers or identifiers into the Act were not minor or insignificant amendments but were significant changes with serious import on the fundamental rights and freedoms of Kenyans, clawing back on the autonomy of Kenyans and the right to be informed and to have a say on such significant matters of constitutional significance. 649. The Respondents counter the arguments by the Petitioners and Interested Parties who support them by arguing that there is no constitutionally prescribed procedure for amendment of any statute. According to the 1st Respondent, the Constitution envisages that it is the legislature that will formulate the procedure for enactment of legislation, provided the procedure facilitates public participation and public access as required under Articles 118 and 124 of the Constitution. Further, that legislative procedure and policy are exclusively within the ambit of the legislature under the doctrine of separation of powers and the court and any other arm of government ought not to question the wisdom of Parliament in preferring one procedure over another provided such procedures are facilitative of public participation and access. The 1st Respondent takes the view that global jurisprudence on when and how omnibus Bills can be used is contradictory. 650. As regards the procedural propriety of the enactment of the impugned amendments, the 2nd and 3rd Respondents submit that the law was complied with. They contend that Article 124 of the Constitution allows the National Assembly to establish its own procedures for the conduct of its proceedings. Further, that Article 109 vests in Parliament absolute power to exercise legislative powers through Bills. It is their case that pursuant to the practice of the National Assembly, a Miscellaneous Amendment Bill connotes a Bill that amends various legislations. They state that the Bill in contention was indeed titled “A Bill for an Act of Parliament to make various amendments to statute law,” and was not described by the phrase “minor amendments”. More importantly, that during the enactment of the Bill, each Departmental Committee examined respective clauses of relevance to their dockets as if they were distinct legislations. That in particular, Clause 9, which forms the subject matter of these proceedings was examined by the National Assembly Committee on Administration and National Security. The 2nd and 3rd Respondents observe that during the debates on the Bill, the chairpersons of the respective committees were given an opportunity to submit the views of their respective committees and the public. 651. It is the 2nd and 3rd Respondents’ further argument that as was held by the Supreme Court in its advisory opinion in the case of Speaker of the Senate & another v Attorney-General & 4 others [2013] eKLR, courts should not supervise the workings of Parliament. They therefore urge the court to allow Parliament to regulate its internal matters as affirmed by the Supreme Court. Further, that it cannot be argued that the usage of a Statute Law (Miscellaneous Amendments) Bill militated against effective public participation for the simple reason that the National Assembly took steps to ensure that the quality of public participation was not compromised. 652. On their part, the 4th and 7th Respondents submits that the Petitioners’ allegation that introducing substantive amendments through omnibus means is unconstitutional lacks any constitutional foundation. Their case is that the Petitioners have failed to set out with a degree of precision the constitutional provision alleged to have been infringed. In their view, in the absence of a claim that the legislation passed by the legislature or the process by http://www.kenyalaw.org - Page 103/174