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These legal protections are designed not only to protect MPs as they perform their functions but also to maintain the integrity and authority of Parliament itself.
What are Parliamentary Privileges and Immunities?
Parliamentary privileges refer to the special rights and immunities that MPs and Parliament itself possess, which allow them to perform their legislative duties effectively.
These legal safeguards are necessary to ensure that Parliament functions independently and that MPs are not hindered in their duties by outside forces, including the Executive and the Judiciary.
In Kenya, these privileges are enshrined in several legal documents, including the Constitution, the Parliamentary Powers and Privileges Act, 2017, and the Standing Orders.
The Constitution, particularly, guarantees key privileges like freedom of speech in Parliament, immunity from civil proceedings related to parliamentary duties, and the freedom to regulate internal matters without external interference.
Individual and Collective Rights
The privileges granted to MPs in Kenya are divided into two categories: individual and collective rights.
Individual Rights
Freedom of Speech - MPs have the right to speak freely during debates or committee sittings.
Their words cannot be used in court as evidence, offering them legal immunity in relation to parliamentary speech.
Freedom from Arrest - MPs are exempt from being arrested for civil matters while going to, attending, or returning from parliamentary sessions.
This ensures that their legislative duties are not interrupted by legal proceedings.
Exemption from Summons - MPs cannot be summoned to court as witnesses when the house is in session. This privilege allows MPs to focus on their legislative work without being diverted by legal obligations.
Exemption from being served court orders in Parliament - The provision ensures that no civil court process can be served or executed within the premises of Parliament while it is in session. This protects parliamentary activities from external interference. The only exceptions are if the process concerns Parliament staff or involves the attachment of an MP’s salary.
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Collective Rights
Disciplinary Powers - Parliament has the right to maintain order within its walls. It can punish MPs for contempt or any action that undermines the dignity and authority of the House.
Control of Procedures - Parliament has exclusive control over its internal affairs, such as making rules, regulating its procedures, and maintaining decorum in its proceedings.
Immunity in Action
One of the most important aspects of parliamentary privilege is the freedom of speech that MPs enjoy.
This privilege ensures that MPs can speak their minds during debates without fear of being sued for defamation or facing other legal consequences.
For example, if an MP accuses a Cabinet secretary of corruption during a session, that MP cannot be sued for defamation based on that statement.
Additionally, MPs have the right to immunity from legal proceedings based on their actions within the scope of parliamentary duties.
This includes speeches made during sessions, votes cast, and other actions taken in their official capacity as lawmakers.
Such protections allow MPs to engage in robust debate and make decisions that reflect the interests of the people they represent.
Limits to Parliamentary Immunity
While these privileges are essential for the functioning of Parliament, they are not absolute. There are limitations in place to prevent abuse.
For example, MPs can be held accountable for actions outside the scope of their legislative duties, such as criminal activity unrelated to parliamentary proceedings.
Moreover, Parliament itself cannot be above the law. If an MP or parliamentary staff is found to be in violation of constitutional or legal principles, the judicial system has the authority to intervene.
The Parliamentary Powers and Privileges Act, 2017, also limits some of these privileges.
For instance, the Act prevents MPs from invoking parliamentary privilege in civil actions that are unrelated to their work in Parliament, ensuring that their immunity does not provide a blanket shield for personal misconduct.
In a time when the relationship between the legislature, Executive, and Judiciary is increasingly scrutinised, the privileges of Parliament must be protected and understood as essential for democratic governance.
While these privileges shield MPs from some legal challenges, they also come with responsibilities, ensuring that the work of Parliament aligns with the best interests of the people it represents.