After about two hours of debate in the Senate Tuesday evening, Busia senator Amos Wako appeared to have realized what was going on and urgently asked Speaker Ekwee Ethuro for a chance to speak.
He did not, like his fellow Cord senators, launch into debate on the preliminary question of whether the Senate should debate the Security Laws Amendment Act. Instead, he simply asked Mr Ethuro to rule.
But the Speaker could not.
Moments before Mr Wako, the former Attorney General, stood, Elizabeth Ongoro (ODM, Nominated) had walked over to the Speaker, who was leaning back in his seat, and pleaded for a chance.
That moment marked the breakdown of Cord’s strategy in the Senate, where they ended up fuming in anger after Mr Ethuro denied the House the opportunity to toss the controversial security laws in the wastepaper basket.
Unwittingly, by playing a part in the prolongation of the debate on a mere point of order by Majority Leader Prof Kithure Kindiki, Cord played into the hands of their rivals and three hours were spent on a preliminary matter rather than the actual substance. They thus lost the chance to score political points during debate and possibly force the House to vote on whether to declare the controversial Act unconstitutional.
“There is no limit to how (long) the debate would be. The debate is determined by interest,” Mr Ethuro told me the following day.
“There was an equal interest from members even from their side and the moment Senator Amos Wako said we should stop debate, I said…some of their own members had threatened me, asking ‘Why are you not giving us a chance to contribute?’” he said.
When Mr Wako sat, the Speaker gave chances to Ms Ongoro as well as to Janet Ongera (Nominated, ODM) and then to create a balance, to Kipchumba Murkomen (Elgeyo-Marakwet, URP)and then Naisula Lesuuda (Nominated, TNA).
By extending the debate for three hours, the Jubilee side ensured focus remained on an issue that in ordinary circumstances would have been ruled upon by the Speaker after taking contributions from just three members on either side.
The extension also spared Jubilee senators the dilemma of whether to support the Senate and demand that the Act be declared unconstitutional because they did not handle it or defend it as a product of the administration they support.
“When we got informed there is a special session and the agenda in line with the law has been stated, we prepared. That’s why we were consistent and did not veer off into other issues,” Prof Kindiki said.
Jubilee senators stuck to the argument that parliamentary debates have to be conducted within the law and thus pushed the argument that the Senate shouldn’t get involved in matters that are in the courts.
Cord also ignored the fact that by the time Prof Kindiki rose to ask the Speaker to rule on the matter, there was as yet no motion on the floor because Moses Wetang’ula, the Minority Leader, had not initiated debate.
The normal practice in the House is for anybody opposed to the existence of a motion to wait until it is initiated, known in parliamentary parlance as “moving”, before questioning it.
By raising the question on procedure even before Mr Wetang’ula had kicked off the debate, Prof Kindiki robbed Cord of the opportunity to take potshots at the government. He would have had an hour to do that, placing him in the limelight as a nation on holiday watched and listened in the afternoon. The motion’s supporter, possibly Siaya Senator James Orengo, would have had 30 minutes to also disparage the Jubilee administration.
Mr Wetang’ula had spent the bulk of the three hours sitting calmly and listening as the debate progressed, apparently unaware of the filibustering Jubilee were engaged in, tiring his side out with winded arguments.
He appeared to realize what had been going on too late, after Mr Ethuro had ruled against Cord, and he was then not slow to make his point of view clear.
“My worst fears came to pass that the deliberate prolongation of the point of order raised by the distinguished senator for Tharaka Nithi was in fact a conspiratorial process to make it difficult for this motion to be debated in this House,” he said, bristling in anger.
The Speaker disagreed.
“The prolongation was deliberate to the extent that we needed to give a fair chance to more people. There are more senators who can tell you I denied them the chance to speak. You have to marry the time and the interest of the members. If you terminate the discussion early enough, one party would not have exhausted the objections. When you make the objections, one side will always claim that you have gagged us, you curtailed us…,” Mr Ethuro said in an interview.
He was of the belief that had he made the ruling earlier, when only a handful of senators had made contributions, that would have been “at the behest of Jubilee proper.”
“Deep inside them, they know,” he added.
Mr Ethuro said some Cord senators had already approached and told him of their intention to ask for an extension of the sitting, which would have been asked for 30 minutes to the scheduled end of the sitting, and he had agreed.
That would eventually not be necessary as the Speaker ruled against Cord, ending their planned assault on the legislative front and sending it back where it remains for now, the court.