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Tuesday, 12 December 2006
 
Parliament met at 2.50 p.m. in Parliament House, Kampala
 
PRAYERS
 
(The Speaker, Mr Edward Kiwanuka Ssekandi, in the Chair.)
 
The House was called to Order
 

COMMUNICATION FROM THE CHAIR
 
THE SPEAKER: Honourable members, I welcome you and thank you for finding time to come to do your work. In the public gallery, we have visitors from Kayunga District. Their group is called Nazigo Womens Group. You are most welcome to your Parliament! There are two other groups, but I do not have the details. As soon as I get the details, I will introduce them to you.
 
The Order Paper will be adjusted to indicate business to follow, to include the motion by hon. Lukwago for Kampala Central on Shimon Demonstration Primary School. I understand copies have been issued to you but it was not included on the Order Paper. There will also be a statement by the Acholi Parliamentary Group on the land issue in the region. These will all be indicated tomorrow.
 
BILLS
COMMITTEE STAGE
 
THE EQUAL OPPORTUNITIES COMMISSION BILL, 2006
 
2.55
Clause 1
 
THE CHAIRPERSON, STANDING COMMITTEE ON EQUAL OPPORTUNITIES (Ms Jalia Bintu): Mr Chairman, I beg to propose that Clause 1 be deleted and the justification is, it defeats the intention of Article 32 (4) of setting the period within which the commission was to be established. The establishment of the commission is useful only if the commission is functional. Leaving the enforcement date to the minister may make the commission dormant for a long period after the enactment of the law. The date of commencement should be left to the general interpretation required, which is the date of publication. I beg to propose.
 
THE MINISTER OF GENDER, LABOUR AND SOCIAL DEVELOPMENT (Mrs Syda Bbumba): Thank you very much, Mr Chairman. We had proposed Clause 1 because establishing a commission like this is an easy process. However, in view of the lateness, which has been justified by the chairperson of the committee, we concede to the amendment.
 
THE CHAIRMAN: Very good.
 
(Question put and agreed to.)
 
Clause 2
 
MS BINTU: Mr Chairman (Interruption)
 
THE CHAIRMAN: Sorry to interrupt you again. Present in the gallery are teachers and members of the management committee of Shimon Demonstration School. I think they have come to see what is happening here. You are welcome! (Applause)
 
MS BINTU: Mr Chairman, in Clause 2 I propose that the definition of discrimination be replaced with the following: Discrimination means any act, omission, policy, law, rule, practice, distinction, condition, situation, exclusion or preference which directly or indirectly has the effect of nullifying or impairing equal opportunities or marginalizing a section of society or resulting in unequal treatment of persons in employment or in enjoyment of rights and freedoms on the basis of sex, race, colour, ethnical origin, tribe, birth, creed, religion, health status, social or economic standing, political opinion or disability. The justification for this definition is to include all forms of discrimination for clarity. I beg to propose.
 
THE CHAIRMAN: Honourable members, that is the proposed amendment. Any comment?
 
MRS BBUMBA: Mr Chairman, the amendment which has been proposed is an expansion of what we had in the Bill. So, we have no problem with the expanded interpretation.
 
MR ARUMADRI: Thank you, Mr Chairman. This interpretation includes discrimination on grounds of political opinion. We are already faced with this problem and I wanted the Bill to be very emphatic as to how it intends to cure this. But it looks like it is just glossing over it.
 
THE CHAIRMAN: Glossing over it? What is your position? Do you agree with this new definition by the committee?
 
MR ARUMADRI: Yes, Mr Speaker.
 
THE CHAIRMAN: Very good.
 
(Question put and agreed to.)
 
MS BINTU: Mr Chairman, there are some more amendments on Clause 2 and I do not know how to proceed. Should I move them all at once?
 
THE CHAIRMAN: Please do.
 
MS BINTU: I propose that the definition of equality be deleted. The justification is that, the only place it is used does not need a definition.
 
The other amendment is on the definition of the expression equal opportunities. I propose that the definition of equal opportunities be inserted immediately after the definition of discrimination as follows: Equal opportunities means having the same treatment or consideration in the enjoyment of rights and freedoms, attainment of access to social services, education, employment and physical environment, or the participation in social, cultural and political activities regardless of sex, age, race, colour, ethnical origin, tribe, birth, creed, religion, health status, social or economic standing, political opinion or disability. The justification is that, the expression is frequently used in the Bill but it is not defined.
 
Mr Chairman, I beg to propose that the definition of gender be replaced with the following definition: Gender means the social (Interruption)
 
THE CHAIRMAN: Let us finish with the other one before we come to that. Now, the first amendment proposed, honourable minister.
 
MRS BBUMBA: Mr Chairman, we concede to the amendment by way of deletion of the definition of equality because as the chairperson of the committee stated, it is very scarce. It is stated only once in the whole Bill and therefore does not require a definition.
 
MR LUKWAGO: Mr Chairman, I would like to know the harm it does to have the definition of equality in this Bill. In my opinion, I see no harm in having this clause in the Bill. There is that justification that the only reference to it does not require definition, but I see no harm.
 
THE CHAIRMAN: In other words, you are opposing the deletion.
 
MR LUKWAGO: Mr Chairman, I oppose the deletion.
 
MS BINTU: Mr Chairman, where the term equality is used does not need an explanation. For neatness in the Bill, we needed not to define it.
 
THE CHAIRMAN: Well, honourable members, there is a proposal to retain and there is a proposal to delete. Therefore, since there are two proposals we shall start with the one of deletion. I put the question. Is it clear to you? You see, the word equality is in the Bill; the committee has come out with a proposal that it should be deleted. There is a Member who said, No, do not delete it. Leave it as it is. Since there are now two positions, we shall start with the one of deletion. I put the question.
 
(Question put and agreed to.)
 
THE CHAIRMAN: The second proposed amendment was equal opportunities. Honourable minister, please.
 
MRS BBUMBA: I thank you very much, Mr Chairman. I do not have a problem with inserting the definition, but we thought that since it was the subject matter of the Bill, it did not require a definition. But at the same time, we have no problem with those who feel that the definition should be there. Thank you.
 
THE CHAIRMAN: Honourable members, I put the question on the proposed new definition of equal opportunities.
 
(Question put and agreed to.)
 
THE CHAIRMAN: You do not seem to be following. What we are dealing with are the proposals of the committee. The committee has proposed to expand or to clarify the definition, which they have read to us. Therefore, when you support it, we will replace the earlier definition in the Bill.
 
MS BINTU: Mr Chairman, I propose that the definition of gender be replaced with the following: Gender means the social and cultural construct of roles, responsibilities, attributes, opportunities, privileges, status, access to, and control over resources and benefits between men and women, boys and girls in a given society. The justification is for clarity and having a widely used definition.
 
MRS BBUMBA: Thank you very much, Mr Chairman. We had thought that we would use the summarised version assuming that everybody understood what gender is. But again, if the committee feels that they needed an expanded definition of gender we have no problem. We accept the amendment.
 
THE CHAIRMAN: I put the question.
 
(Question put and agreed to.)
 
MS BINTU: Mr Chairman, I propose that a new definition of sex be inserted immediately after the definition of person as follows: Sex means the natural state of being male or female. The justification is that, it might be deliberately misinterpreted to suit some peoples interests in case we do not define it here.
 
DR BUTURO: Mr Chairman, I support the chairperson of the committee on account that these days we have interest groups which are seeking to argue that it is permissible for a man to marry a man or a woman to marry a woman. This is unacceptable to the majority of Ugandans and so, it is essential that any amendment we make provides for that situation.
 

MRS BBUMBA: Mr Chairman, in view of what is happening globally and what has happened recently in South Africa, I support the amendment.
 
THE CHAIRMAN: I put the question.
 
(Question put and agreed to.)
 
Clause 2, as amended, agreed to.
 
THE CHAIRMAN: Before we move to Clause 3, I think in the spirit of the East African Community Federation, in the public gallery we have visitors from Moro Secondary School in Moro Constituency in Kenya. We welcome our visitors from Kenya! (Applause)
 
Clause 3
 
THE CHAIRMAN: I put the question that Clause 3 stand part of the bill.
 
(Question put and agreed to.)
 
Clause 4
 
MS BINTU: Mr Chairman, I beg to propose that two new clauses be inserted after Clause 3 to read as follows:
1)  Independence of a commission: Subject to the Constitution, the commission shall, in exercise of its functions be independent and shall not be subject to the direction or control of any person or authority.
 
2)  Seal of the Commission:
 
(i)  The seal of the commission shall be:
(a)  in such form as the commission may determine.
(b)  applied in such circumstances as the commission may determine subject to any written law.
(c)  Kept under the custody of the secretary.
 
(ii)    Judicial notice shall be taken of the seal of the commission and any document sealed with the seal shall be admissible in evidence.
 
The justification is to highlight the type of body established and to provide for the seal of the commission. These clauses are re-allocated from other clauses of the Bill to suit the sequence. I beg to propose.
 
MR WACHA: Mr Chairman, I have a small matter on the independence of the commission. I think we should remove the comma from after shall and bring it immediately after functions so that it reads: Subject to the Constitution, the commission shall, at the exercise of its functions, be independent and shall not be subject to&.
 
MS BINTU: Mr Chairman, I am most obliged.
 
MRS BBUMBA: Mr Chairman, we had not provided for the independence of the commission in the Bill on the assumption that being a constitutional body set up by the Constitution, its independence is clearly defined as an oversight committee. We thought that would suffice. However, for emphasis and clarity, I think it does not cause any harm if we inserted the new Clause 4. The seal of the commission is referred in Clause 5. I think it is common practice with such bodies to have a seal, which is managed in the way proposed here.
 
MR LUKWAGO: Mr Chairman, I beg to differ on the issue of the judicial notice of this document, which bears the seal of the commission for two reasons: This clause has an effect of amending the Evidence Act, which is a different legislation altogether. The Evidence Act has a list of documents, which do not require proof and which court can take a judicial notice of. This then affects the Evidence Act without necessarily bringing a Bill to amend it.
 
Secondly, there are dangers involved in this concept of judicial notice. We need to be careful when we are legislating on such documents because they should be tested before they are included. (Interjections) I seek your guidance, Mr Chairman. Should I proceed?
 
THE CHAIRMAN: Please, proceed.
 
MR LUKWAGO: Thank you, Mr Chairman. Taking judicial notice of documents is a requirement of law and it might be dangerous for us to have this as a document without necessarily subjecting it to scrutiny, especially that it has a seal of the commission; that it is admissible without going through the necessary procedures of admitting public documents. Mr Chairman, for those two reasons, I beg to disagree with this proposed amendment.
 
THE CHAIRMAN: You mean your first one is that this, if taken, will be amending the Evidence Act by infection and that amendment by infection should have been accepted as a way of amending - Is the Evidence Act not subject to amendment?
 
MR NANDALA-MAFABI: I support what the honourable member is saying. It would have been neater, if you wanted this document to be considered, to add it on the list of those, which occur in the Evidence Act rather than hiding it in this special one. There is no reason, which has been given as to why you think it is necessary for this particular commission, for its seal to be taken judicial notice of. You stand the risk of people being tempted to forge documents in respect of this. There is nothing special, which you are going to achieve by taking judicial notice of this document. I think there is no reason why it should be added.
 
MR NDEEZI: Thank you, Mr Chairman. I need guidance from the people who are opposing this provision. When we were considering this Bill, we noted that this is not the first commission we are creating. Our task was to compare the provisions of this commission with the provisions of other commissions, including the Uganda Human Rights Commission, Education Service Commission and other commissions of this nature.
 
We believed and concluded that almost all the commissions currently in operational do have this specific provision. So, what is the problem with including it in this commission, if it has done no harm in the other commission?
 
THE CHAIRMAN: Well, honourable members, there is a proposal, which has been made by the committee, the details of which were given to you by the chairperson of the committee. But some Members have opposed these formulations. Now, I think you must have appreciated the reasons for supporting and opposing. Now I want to put the question.
 
(Question put and agreed to.)
 
Clause 4
 
THE CHAIRMAN: Are there still more amendments on clause 4?
 
MS BINTU: Mr Chairman, on Clause 4, I beg to move that the clause be replaced with the following under the composition of commission:
 
i)  The commission shall consist of five members, who shall include a chairperson and vice-chairperson, at least one of whom shall be a person with a disability or a youth, and two women appointed by the President with the approval of Parliament.
 
ii)  Members of the commission shall be persons of high moral character and proven integrity and possess considerable experience in and a record of commitment to matters relating to the provision of equal opportunities or human rights.
 
iii)  In addition to the qualifications under sub-section (ii) the chairperson shall be a person qualified to be appointed a judge of the High Court.
 
The first justification is that, in sub-section (i), to streamline the provision and include a youth in the membership of the commission as the youth are also marginalized.
 
The second justification is to provide for extra qualification for the chairperson of the commission.
 
The commission will hear complaints of marginalisation and discrimination and therefore should have qualities of a court. It will be a quasi judicial body and it is necessary for its head to have the qualities of a judge. Mr Chairman, I beg to move.
 
MRS BBUMBA: Mr Chairman, I have no problem with the first amendment because it brings on board all those categories who are generally marginalised, especially the youth who are marginalised from so many angles. I support that, but I have a problem with the qualifications under (iii):
 
The chairperson shall be a person qualified to be appointed a judge of the High Court. I find this one discriminative since we have given the general qualifications under (ii), where it says: Members of the commission shall be persons of high moral character and proven integrity and possess considerable experience in and a record of commitment to matters relating to the provision of equal opportunities or human rights. I feel that the qualifications under (ii) are sufficient; we do not need the qualifications under (iii).
 
MR OYET: Thank you, Mr Chairman. I want to seek clarifications from the committee chairperson. When you look at the report of the committee, on page 7 bullets four, it says that commissions like Equal Opportunities and Human Rights should be contested for favourably, yet here they are saying that the President will appoint it with the approval of Parliament. Isnt that a contradiction? I seek some clarification. Thank you.
 
THE CHAIRMAN: No, why do we not first of all dispose of the first objection; the issue is about qualifications as stated in (iii). I think the minister is saying that (iii) is restricting the appointment. Actually it means that the appointment will be restricted to people who are lawyers and the minister disagrees with that. I think it should be open. Could we dispose of this issue first and then proceed to the others? Can I put the question or there are contributions to be made on this subject?
 
MR MATHIAS NSUBUGA: Thank you very much, Mr Chairman. We should say that for a person to qualify, he/she should be of a rank or status of a judge of the High Court, but not to restrict it to the lawyers only. I think somebody who is qualified (Interjections)
 
THE CHAIRMAN: No, what the minister is saying here is that there is no need to restrict it to people who are able to work in court. She is saying that one can be an agriculturalist, an engineer, a farmer or something like that, she is opening it.
 
MR WADRI: Mr Chairman, I have a cause to support the honourable minister. The issues that this commission is going to be entrusted with are of subjective nature. So, you do not need to go to Makerere and get a degree in law in order to know whether you are being discriminated against. You are not going to be in court. What is expected of you is maturity and being very objective in analysing issues which, therefore, means that what we should be emphasising is more of the moral aptitude, more of maturity, basic educational qualifications but not necessarily law. I feel that the minister is quite right. Otherwise, that in itself will be an act of discrimination.
 
MR WACHA: I am sorry, but if you emphasize maturity, what do we do with the youths? (Laughter)
 
MRS SENINDE: Mr Chairman, I would like to support the committee because in the first place, the chairperson gave a justification as to why they are deciding that way. And I believe that if this commission is going to have the powers similar to that of a court, then I do not see the reason why the chairperson is not supposed to be of that level. So, I support the committee.
 
MR LUKWAGO: Mr Chairman, I rise to support the position of the minister. You know, this requirement for a chairperson to have qualifications equivalent to those of a judge, should be put into proper perspective and should not be with due respect vulgarised. You see, for a body to be chaired by a person of those qualifications, it should be a body, which is going to exercise judicial, quasi-judicial functions of powers. This commission, in my opinion, is not necessarily going to exercise judicial powers though it is required to take judicious decisions. Judicious decisions and resolutions do not necessarily require quasi-judicial or judicial powers. That is not what it presupposes.
 
So, I think that qualification will come when we are debating the Electoral Commission Bill. (Laughter) There it would be more relevant, Mr Chairman. I thank you.
 
THE CHAIRMAN: Why do we not dispose of this? There are three proposals made: The minister had no problem with the first or even the second one, but there is this one restricting the categories of people who can be appointed. Can we dispose of that?
 
(Question put and negatived.)
 
THE CHAIRMAN: Now, there was a clarification, which a honourable member sought, I think in respect of (i), he thought that membership should be competed for. What is the position?
 
MS BINTU: Mr Chairman, if the Member read the report and understood it, we observed that such commissions like the Equal Opportunities, the Electoral Commission and Human Rights Commission will in future be competed for favourably.
 
But as the committee went on discussing all the necessary procedures, it was stuck somewhere that if we allowed this commission to be competed for, there was need for other related laws to be amended. And, therefore, that is why we have recommended it that in future such commissions should be contested for not only to be left for the appointing authority. And that is why we have made it under the recommendations and we have carried this one forward. So, it is not in any way contradictory.
 
MS JUDITH AKELLO: Thank you, Mr Chairman. I have a small problem with the first one, where it says: The commission shall consist of five members, who shall include a chairperson and vice-chairperson, at least one of whom shall be a person with disability&. Unless if it was a technical or a computer mistake, I do not think the English would sound so well. Because there are some people who may be having many forms of disabilities. Then, if here you mention that a person with a disability - I have a problem with that. (Laughter) Thank you, Mr Chairman.
 
MS BINTU: Mr Chairman, a person with disability. So, we delete the a. Thank you. It is a typographic error (Laughter) 
 
THE CHAIRMAN: Okay. Now, I think let us dispose of the (Interruption)
 
MR ODIT: Mr Chairman, I listened to the clarification from the chairperson. She is saying that in future, these posts would be competed for, and the future is open. How long will this future be before the law can be revisited? This is speculation.
 
Secondly, I am also very uncomfortable with sub-section (i), where the commission will consist of five members who shall include a chairperson, whose sex is silent, vice-chairperson, whose sex is also silent, at least one of whom shall be a person with disability, a youth and two women appointed by the President.
 
Now, if women have been emphasised as a qualification for two persons and the other areas are quiet, there is a high possibility that the chairperson can be a woman; this person with disability can also be a woman and the youth as well. I want some clarification there.
 
THE CHAIRMAN: I thought this is to make sure that at least there will be a woman, at least there will be a person with disability and a youth. I think that is all.
 
MRS BBUMBA: Mr Chairman, this commission is about correcting imbalances. We all know that the women are unfortunate among the most marginalized according to the history of our tradition. In whatever form they are, and if you go to the people with disabilities, it is still the women with disabilities who are more marginalised than the men with disabilities. When you go to the youth, again the female youth suffer more. When you go to the general public, again it is the women.
 
So, I do not see any harm even if the whole commission was comprised of women. (Laughter) However, the appointing authority, I am sure in his wisdom, will balance because he has to balance this commission to ensure that it reflects the true character of what it is supposed to do. I have not seen the appointing authority appointing only women. But even if he did, there will be no harm.
 
MR MATHIAS NSUBUGA: Thank you very much, Mr Chairman. The purpose of bringing this Bill to this House is for us to make guidelines for the appointing authority, among other reasons. Now, when you say that the appointing authority will use his discretion, then the purpose of bringing this Bill here is defeated. For example, I want to have a distinction between affirmative action and equal opportunities. Affirmative action was brought to encourage women and the youth so that they can be brought to the limelight.
 
Now, when we talk about equal opportunities, for example, even all of us people on opposition are marginalised, both men and women. So, I am saying let us be straight and say - because when you say, five people will be on the commission, supposing all the five are on one side, what happens to the marginalised side of the opposition? So, we want to be straight and guide the appointing authority.
 
MAJ. (RTD) KINOBE: Thank you, Mr Chairman. I want to inform the honourable member on the Floor that when you look at Clause 4, the appointing authority is the President and the approval is by Parliament. So, Parliament is enjoined with the President in finally constituting this commission. In the wisdom of this House, if the appointing authority errors in any way, then the guidance can still come from this House at that stage of constituting the commission. So, I think that is really well taken care of at the time of constituting the commission.
 
MR MATHIAS NSUBUGA: Thank you very much, honourable member. But for me, I just want guidelines to guide the appointing authority so that when he is appointing, the opposition is recognised. The political shades in this House should be put on this commission.
 
MR OKUMU: Mr Chairman, I also want to comment on (i). First, I want to agree with my colleague that we should indicate in the law that the opposition should also be represented on this commission.
 
Secondly, I think we should indicate that the composition of this commission should include people from all the regions in the country because regions have become a big concern in as far as opportunities and marginalisation are concerned. Thank you, Mr Chairman.
 
MS KABANDA: I would like also to agree that there should be a very clear distinction between equal opportunity and affirmative action. That is why equal opportunity is about the best for the job, while affirmative action is positive discrimination and everybody is talking about no discrimination and yet there is discrimination. So, my view is that the committee should go back and have very clear guidelines on what and where affirmative action should apply. They should formulate something on affirmative action, expand it a little bit in accordance with the Constitution.
 
While I agree that this commission should be set up, I still feel that there could be some room for manoeuvres by those who may not understand actually the reason why equal opportunities has been set up. This is why men could come up and contest the existence of only women on this commission in case the appointing body appoints only women. Someone could say, We have been discriminated against.
 
So, we should have guidelines, especially on affirmative action; expand what the Constitution says about affirmative action and then go ahead. It does not mean that I do not agree with the motion, the commission should be set up, but there should be that distinction.
 
MR KAWANGA: The last speaker has actually brought out the issues here, and I wanted to point out that really the language of this clause should be looked at again. It is causing confusion. It reads, The commission shall consist of five members, who shall include a chairperson and vice-chairperson, at least one of whom shall be a person with disability&.
 
It reads like the disability will be the chairperson and the vice-chairperson and then there is a comma, then &a youth and two women appointed by the President. It sounds as if it is the youth and two women appointed by the President. So, the whole clause really requires re-drafting.
 
THE CHAIRMAN: No, if it requires re-drafting, how are you re-drafting it because we have to move -(Interruption)
 
MR LUKWAGO: To improve on it, I think this sub clause should be broken down into two: one about the composition of the commission and two, about the chairperson and vice-chairperson. So, we should have them as two separate clauses.
 
THE CHAIRMAN: Make the formulation.
 
MR LUKWAGO: The commission shall consist of five members at least one of whom - (Laughter) Mr Chairman, allow me draft it and then I read it out.
 
MR WACHA: Let me try:
 
(i)  The commission shall consist of five members appointed by the President.
 

(ii)  In making the appointment under clause (i), the President shall ensure that either the chairperson or the vice- chairperson is a person with disability. (Laughter) I said I was trying; you failed. (Laughter)

 
(iii)  Of the other members of the commission, one of the members shall be a youth and two other members shall be women then you continue from there. Now I saw the chairperson jumping up and down; you jump at me.
 
THE CHAIRMAN: It seems we have agreed on the principle so what we need is the language or the formulation. Maybe what we can do is to give some people time to go down and write it out as we proceed with others. Is that okay?
 
Clause 5
 
MS BINTU: Mr Chairman, Clause 5 on the tenure of office of a member of the commission, I beg to propose that new sub-clauses be inserted after sub-clause (3) as follows:
 
(4) A member of the commission shall not be removed from office -
(a)  under paragraph 3(a) unless the medical board certifies that the person concerned is unable to perform the functions of his or her office;
(b)  under paragraphs 3(b) to (d), unless the person concerned is notified in writing and given an opportunity to defend himself or herself.
 
 (5) Where a member is removed from office under this section, the President may appoint another person in accordance with Section 5 to replace that person and the person appointed shall hold the office for the remainder of the term of the member removed.
 
The justification is to give a process of removal from office of members of the commission so that a member is not removed without being given a chance to be heard. Sub-clause (5) also deals with filling of a vacancy of a member removed from office to bring it near to where the vacancy comes into existence. Mr Chairman, I beg to move.
 
MRS BBUMBA: Thank you very much, Mr Chairman. What the committee has proposed is fair, as it should not be allowed for people to assume that somebody has gone berserk and is given a termination letter. The medical board will have to certify and I think according to the law of natural justice, it is proper that people are given an opportunity to be heard. I concede to the amendment.
 
MR WACHA: Under (4)(a), Sir, A member of the commission shall not be removed from office under paragraph 3(a) unless the medical board certifies that the person concerned is unable to perform the functions of the commission. We are talking about the commission in this case.
 
THE CHAIRMAN: That is okay.
 
MR WASIKE: Thank you, Mr Chairman. I am getting problems with where we set up laws. Each commission, much as it is similar to another commission, be provided with different conditions of service, different ways of removal and different ways of coming on board. I would have been comfortable if, for example, we looked at how an Electoral Commission or Human Rights Commission member get off the commission. How does any other member of a commission leave a commission so that we apply the general principles? This is because when we have separate principles for separate commissions, it is a bit disturbing. My view is that we generalize the principles.
 
THE CHAIRMAN: Why do you think that these proposals are different from others?
 
MR WASIKE: I have looked at the ones for Public Service Commission, Judicial Service Commission and even the courts ruling on how you can remove a Judicial Service Commission member and they are very different. But all these are commissions, therefore, we should have general principles.
 
THE CHAIRMAN: And therefore?
 
MR WASIKE: Mr Chairman, I would propose that we use the principles as provided for in the (Interruption)
 
THE CHAIRMAN: When a proposal is made, you are entitled to move an amendment.
 
MR NDEEZI: Thank you, Mr Chairman and thank you honourable member, for giving way. The information I want to give is that, the committees proposal takes into account the concerns of the honourable member. In the Bill there have not been sufficient attempts to link the powers, say, to other commissions. What we are trying to do is to ensure that the powers are similar to that of other commissions. Therefore, I want to assure my friend, your concerns are taken into account by this amendment.
 
MR WASIKE: Mr Chairman, I would request for some minutes so that I can get the provisions of these other commissions I am referring to and then I will come back.
 
MR KAWANGA: I suspect the honourable member wants to suggest that the formulation, which occurs in other commissions, should be the one that should be used here. But on my own behalf, I just want to find out under (b), when you say, &unless the person concerned is notified in writing and given an opportunity to defend himself or herself, before who? In what form? It will be very useful to indicate.
 
THE CHAIRMAN: No, it is clear in that, a person who wants to remove another person has to notify the person concerned so that if he wants to defend himself, he does so. I think it is implied.
 
MR LUKWAGO: I think here the appointing authority is the President, Mr Chairman, and we have a problem with that. For a President who is vested with powers to appoint and disappoint to issue a notice to a chairperson of a commission that, Please, come and defend yourself before me before I sack you, I think it will be difficult. Under such circumstances, I support the idea that we probably come up with a tribunal composed of people of higher integrity and those other requirements, which are there like he was drawing a parallel with those in judicial service that you cannot remove a judicial officer before an inquiry is done.
 
Even with the LC 3 or LC 5 chairperson, there is a tribunal established to investigate their allegations. In this case, Mr Chairman, I think that was the proposal.
 
Again, Mr Chairman, there is this sub-clause (5) where they have used the word may. I am again seeking clarification why may and not shall? Because they are saying, Where a member is removed from office under this section, the President may appoint any other person, when it is mandatory in the previous clauses that the commission shall be composed of five members. So here you are giving room to the President whether to appoint or not. Therefore, the commission can remain with four or even less members in case the President exercises his discretion in such a way that he does not appoint. I think the drafting of this clause also needs some amendment.
 
THE CHAIRMAN: Yes, but the impression that I am getting from members submissions, especially regarding defective formulations, is that although these reports were distributed to members sometime back they have not read them. This is because if you had read the report and the proposed amendments and you disagreed with the formulation you should have come with an amendment. You do not just think of an amendment when the proposal is read here.
 
You had this over the weekend but -(Interruption)- so, you did not have the copies? You see, last week we dealt with the general debate and we had the second reading. Actually if it was not a question we would have gone even to the committee stage but we adjourned so that the committee stage is considered today. So, by the time we adjourned members had the reports. It is only that maybe for one reason or another they had not read them. Otherwise, we are going to be bogged down by people requesting for more time to go and make formulations. Is that what you think?
 
MRS SENINDE: Mr Chairman, I just want to seek a clarification from the chairperson on part (b) where it says under paragraph 3(b),  A person concerned is notified in writing and given an opportunity to defend himself or herself. The clarification I seek is, to whom?
 
THE CHAIRMAN: The person who is going to be removed is the one you address.
 
MR OCHIENG: Mr Chairman, I am seeking clarification on sub-clause (5) where it says, The President may appoint any person in accordance with Section 5. I have looked at other formulations and I will give you an example of electoral laws of this country where they say that sometimes replacing people within a short period, when their term is almost expiring, is a problem.
 
I see a scenario here where when we use the word may it may be okay but if we use what the shadow attorney general is saying, then it will mean that even if it is within two weeks or one month to the expiry of the term, it will be mandatory for the President to appoint a person who will only go there and serve for one or two weeks as we see the formulation here. I find it a bit wanting that we make this clear. Thank you.
 
MS BINTU: Mr Chairman, I take the amendment by hon. Wacha that instead of his or her office, we include, the functions of the commission.
 
As regards what hon. Lukwago was raising, I concur with my colleague because in case a member dies when he is remaining with two weeks to the end of the term and you include there the word shall that means the President will be compelled to fill that office be it within one week or two days to the end of the term of the commission. So, I ask my colleague, hon. Lukwago, to accept the proposed amendment by the committee and leave there the word may so that we leave it flexible to the appointing authority. Thank you.
 
THE CHAIRMAN: I put the question.
 
(Question put and agreed to.)
 
Clause 5, as amended, agreed to.
 
Clause 6