June 15th, 2015 SENATE DEBATES 1

Monday, 15th June, 2015 Special Sitting

Hon. Senators, I wish to welcome you to this Special Sitting of the Senate and to thank you for finding time from your busy recess schedules to attend the sitting. This Special Sitting of the Senate has been convened pursuant to Standing Order No.29 (1) of the Senate Standing Orders upon a request by the Senate Majority and Minority Leaders which was supported by 21 other Senators. The request was made to me vide letter reference No.SML/GEN.CORR/VOL.1 (115) dated 5th June,

June 15th, 2015 SENATE DEBATES 2

Hon. Senators, I would like to report to the Senate that pursuant to Standing Order No.40 (3) and (4) , I have received the following message from the Speaker of the National Assembly regarding the approval of the mediated version by the National Assembly of the Division of Revenue Bill, 2015 (National Assembly Bill No.11 of 2015) .

Pursuant to the provisions of Standing Order No.115 of the National Assembly Standing Orders, I hereby convey the following Message from the National Assembly.

Whereas the Division of Revenue Bill, National Assembly Bill No.11 of 2015 was referred to a mediation committee in accordance with the provisions of Article 112 (2b) of the Constitution, and; whereas the National Assembly on 3rd June, 2015 considered and approved the mediated version of the said Bill as required by Article 113 (2) of the Constitution; now, therefore, in fulfillment of Standing Order No.150 (4) (b) of the National Assembly Standing Orders, I hereby convey to the Senate the said decision of the National Assembly.

Hon. Senators, Article 112 (1) (b) of the Constitution provides as follows: “If one House passes an ordinary Bill concerning counties and the second House-

June 15th, 2015 SENATE DEBATES 3

Thank you, Mr. Speaker, Sir. I beg to give notice of the following Motion;

THAT: WHEREAS on 27th May, 2015, the Mediation Committee on the Division of Revenue Bill, 2015, appointed by the Speakers of the Senate and the National Assembly by letters dated 28th April, 2015 and 27th April, 2015, respectively, concluded its Report on the Division of Revenue Bill, which was subsequently adopted by the Senate at a Sitting held on the same day, 27th May, 2015, and by the National Assembly at a Special Sitting of 3rd June, 2015;

June 15th, 2015 SENATE DEBATES 4

June 15th, 2015 SENATE DEBATES 5

June 15th, 2015 SENATE DEBATES 6

Next Order.

Mr. Speaker, Sir, we must read the Motion as required by the law but considering how long it is--- In obeying the Standing Orders, I will read. Sen. Sijeny was not there when I was reading it so she can benefit now.

Mr. Speaker, Sir, I beg to move:- THAT: WHEREAS on 27th May, 2015, the Mediation Committee on the Division of Revenue Bill, 2015, appointed by the Speakers of the Senate and the National Assembly by letters dated 28th April, 2015 and 27th April, 2015, respectively, concluded its Report on the Division of Revenue Bill, which was subsequently adopted by the Senate at a Sitting held on the same day, 27th May, 2015, and by the National Assembly at a Special Sitting of 3rd June, 2015;

June 15th, 2015 SENATE DEBATES 7

June 15th, 2015 SENATE DEBATES 8

June 15th, 2015 SENATE DEBATES 9

June 15th, 2015 SENATE DEBATES 10

June 15th, 2015 SENATE DEBATES 11

June 15th, 2015 SENATE DEBATES 12

June 15th, 2015 SENATE DEBATES 13

June 15th, 2015 SENATE DEBATES 14

June 15th, 2015 SENATE DEBATES 15

The time is now!

Mr. Speaker, Sir, I am hearing shouts from my side saying that the time is now.

Those of us who have served in the first Senate under the new Constitution have a greater responsibility than those who have not served in this Senate. I am almost

June 15th, 2015 SENATE DEBATES 16

June 15th, 2015 SENATE DEBATES 17

An

He is your friend!

Mr. Speaker, Sir, I also saw him saying that the money being allocated to the Senate was for Senators to go and hold public rallies anywhere and everywhere. How false can that be? We urge our colleagues in the National Assembly to learn from the follies of history. After every election, 75 per cent of them are thrown out. Many of them are on that highway. They are dancing themselves lame before the main dance comes. When the main dance comes, wananchi will show them the way.

June 15th, 2015 SENATE DEBATES 18

June 15th, 2015 SENATE DEBATES 19

June 15th, 2015 SENATE DEBATES 20

June 15th, 2015 SENATE DEBATES 21

Mr. Speaker, Sir, as I finish, I want to salute one man in the National Assembly called T.J Kajwang. In the mediation, hon. Musyimi attempted in all manner possible, in every way he could, ways that are most unreligious even us he masquerades to be a reverend to get T.J Kajwang to stand with them against the Senate.

How can I deny the counties an extra Kshs7 billion when I am saying they should get 45 per cent of the national budget? We salute him and what he did is not in vain or wasted.

June 15th, 2015 SENATE DEBATES 22

Order, Sen. Wetangula! I think you should call them honourable. They are honourable Members.

The Senate Minority Leader (Sen.Wetangula) : Mr. Speaker, Sir, okay. Hon. Musyimi, the Chair of the Budget and Appropriation Committee whose conduct is highly dishonourable.

Last year, he presided over the Budget and Appropriations Committee which purported to allocate Kshs100 million to each Member of the Budget and Appropriations Committee for projects of their choice, over and above the CDF. Is this a man of God? So, one can even go and build a personal residence in his constituency as long as he colours it with “public utility”. That is the hon. Member we are talking about. Despite the rules, I am sure that you will agree with me, that the hon. Member is the most dishonourable.

Mr. Speaker, Sir, I beg to second.

Sen. Wetangula, the rules are that you call them “honourable.”

Mr. Speaker, Sir, thank you for giving me an opportunity to also add my sentiments to this very important Motion. First of all, I want also to congratulate and thank my colleagues, Sen. Murkomen and Sen. Wetangula, for what they have said in this House. I do not know whether it is because yesterday was a Sunday and we are filled with the Holy Spirit. They kept making reference to the Holy Scriptures. This is because what we do as legislators is what God demands of us and what leadership is all about. It is not just about politics, but when we are given a chance to be leaders then we are called upon to lead in a manner that also pleases God. It is also unfortunate that hon. Musyimi, who is the Chairman of the Budget and Appropriations Committee, as Sen. Wetangula said, is so aware of what the Holy Scriptures say. It is said better one who goes against it who is not aware of it, than that one who is aware of what is demanded of that person.

June 15th, 2015 SENATE DEBATES 23

June 15th, 2015 SENATE DEBATES 24

June 15th, 2015 SENATE DEBATES 25

Thank you, Mr. Temporary Speaker, Sir. I rise to contribute to this both timely and important Motion, ably moved by Sen. Murkomen on behalf of the Senate Majority Leader and seconded by the Senate Minority Leader. In the spirit of the Sunday sermons that we have had in this House today, let me say, Father forgive them for they do not know what they are doing. I would like to appeal to the Senate that this “Lower House” really does not know what it is doing.

First and foremost, regarding the relative issue of Monica Juma, she was my student at the University of Nairobi and she was an able student. I have many students who have risen to high places, including Sen. Kagwe in this House, hon. Mukhisa Kituyi and many more. So, I am a very proud teacher of very able students.

Mr. Temporary Speaker, Sir, having said that, if you look at the reductions that the House did, take for example, IFMIS; that is extremely important. We, in the Senate Committee on Finance, Commerce and Budget and the Committee on Public Finance know that one of the problems that we have in the counties is the uptake of IFMIS, particularly in county assemblies. Without the county assemblies using IFMIS, it is very difficult for them to have good financial management, but further to also be effective oversight bodies in the counties. It is extremely agent that IFMIS is properly resourced so that good financial management is enhanced in order to avoid both impunity and mismanagement of finances of other counties both in the assemblies and the executive.

That also goes to the Kshs1 billion that has been slashed from the Senate. This money was meant specifically to capacitate Senators for purposes of oversight and nothing more. This morning the Mover of the Motion very capably explained how this capacitation of the Senate was going to be done. A proper institution has been set up by the Senate, chaired by Sen. Murungi, to ensure this.

Mr. Temporary Speaker, Sir, unfortunately, the Cabinet Secretary, Treasury, has become unnecessarily beholden to the National Assembly. He is more or less held hostage by the National Assembly. He begins listening to information from the National Assembly and does not care to check that information before he makes up his mind on anything. This is extremely important. If the Cabinet Secretary had contacted the

June 15th, 2015 SENATE DEBATES 26

June 15th, 2015 SENATE DEBATES 27

June 15th, 2015 SENATE DEBATES 28

June 15th, 2015 SENATE DEBATES 29

Your time is up!

Mr. Temporary Speaker, Sir, I want to join my colleagues in supporting this Motion. On the outset, we need to correct the impression that the Kshs1 billion which was given to the Judiciary was floating; money which was an after-thought. That money had been budgeted for and was not an additional fund that was generated this financial year so that, suddenly, the National Assembly chopped off that money which was erroneously added so that they had to find other use for it. This was money which was budgeted for. Even in the previous year, this money had been allocated to the Judiciary. We have affected very many things in the process of removing the Kshs1 billion from the Judiciary. We have affected development which had been going on in every county because the Judiciary had gone into rehabilitating and building new law courts in most of the counties. If there was work that was ongoing, it stalls.

The Judiciary was doing recruitment. Recently they put up an advert to recruit more staff so that their work could go on. The National Assembly Members never looked at these facts. They just thought of an imaginary enemy to them and it came out of what was overruled by the Judiciary when they said that the Constituencies Development Fund (CDF) is unconstitutional. It is written in the Constitution; Chapter 1, Article 2 (4) that any law, including customary law that is inconsistent with this Constitution of 2010 is void to the extent of the inconsistency and any Act – and that includes the CDF Act - or omission in contravention of this Constitution is invalid. The courts did not just wake up one morning and attack the CDF because it was only constitutional prior to August 2010 and it is extremely unconstitutional. A proviso was given to remove it with time.

Mr. Temporary Speaker, Sir, CDF was mooted to assist development at the grassroots level that time because there was no other channel. But with the arrival of the new Constitution, it came with money called devolved funds going to one particular point called the county where constituencies are subsets of the county. Therefore, every development that was being purported to be done by the CDF like roads was ceded to the counties. Nursery schools are now being done by the counties. It is a devolved function in Schedule Four. Dispensaries and hospitals have also been devolved. That is why the wisdom of this House as indicated in Article 96 states that “We the Senate participates in the law making functions of Parliament by considering, debating and approving Bills concerning counties, including money Bills that touch on counties”. That is why we deal with the Division of Revenue Bill as provided for in Article 103 to 113.

The Senate also determines allocation of national revenue among counties which is our prime duty. This is provided for in Article 217 and exercises oversight over national revenue allocated to the county government. Just as the National Assembly has erroneously been entertaining CDF for three years after 2010, it does not mean that the Constitution does not declare it illegal. Therefore, it must be ratified. After 2013 money for oversight was supposed to be set aside in 2013 and 2014, but it was not done. We are

June 15th, 2015 SENATE DEBATES 30

An

There is a stranger in the House!

Mr. Temporary Speaker, Sir, I think the hon. Member is not a stranger unless you rule it so.

Order, hon. Senators! We have no stranger in the House. I only saw Sen. Mbuvi at least with a good hair cut.

Mr. Temporary Speaker, Sir, we may restore the peace haircut tomorrow. The other function was to monitor and prepare reports on implementation of projects and programmes. Almost all the Senators here, including the National Assembly Members do not know what projects are ongoing in the counties and in the constituencies. This is the oversight that was supposed to be done by this unit. They were also supposed to research and analyze all current and emerging issues of national policy and also research and advise Senate on emerging issues in the counties which are restricting the entrenchment of devolution. Did the National Assembly Members dare read this?

It looks like they did not. It is as if they closed their eyes when it came to the Judiciary when they were ruled out of place. I do not know whether Members can remember the amount that has been allocated to the CDF. This year, the amount that has been allocated as CDF is Kshs37 billion while last year it was Kshs35 billion. An increase of Kshs2.8 billion has gone to them yet they never saw it fit to remove that money. They quickly remembered to kill the SRC, the Judiciary and the Senate yet they

June 15th, 2015 SENATE DEBATES 31

June 15th, 2015 SENATE DEBATES 32

An hon Senator: Referendum!

Order, Senator! Your time is up. Proceed, Sen. Wako.

Thank you very much, Mr. Temporary Speaker, Sir, for giving me this opportunity to speak on this very important Motion. First of all, I thank the Senate Majority and Minority Leaders for the way they moved this Motion which shows that, indeed, the Senate is a mature House and we debate at a higher level.

Mr. Temporary Speaker, Sir, the pain that I have is to see our Constitution being flouted left and right and one institution emerging. We fought against the tyranny of the executive and the imperial presidency, but it is now the tyranny of the National Assembly

June 15th, 2015 SENATE DEBATES 33

Mr. Speaker, Sir, I have taken trouble to read the HANSARD on this debate. I do actually respect hon. Musyimi. He is a friend of mine and we have gone through many struggles together. I know that he is for the new Constitution and devolution. But when I read this HANSARD, I do not see that appearing. For example, if you read page 20 of the HANSARD, you will find that actually

June 15th, 2015 SENATE DEBATES 34

June 15th, 2015 SENATE DEBATES 35

Order, Senator! Your time is over.

Mr. Temporary Speaker Sir, thank you for giving me this opportunity to contribute to this very worthy Motion which from the outset I would like to fully support. I would also like to congratulate those Members who took it upon themselves to call us yesterday from our county duties to come and deliberate on this very important matter.

The Constitution grants extensive powers to the National Assembly. However, they must exercise these powers on behalf of the people of Kenya in a just and fair manner. But in the last two weeks, the Constitution has been violated. I say this because of the actions of the National Assembly. What they did is not lost on all of us. The National Assembly has reduced or taken away funds from the Judiciary amounting to Kshs800 million; it has also taken out from the SRC a total of Kshs200 million and the IFMS to a reduction of Ksh325 million and finally to this honourable House, Kshs1 billion.

Their action was not based on the budgetary needs nor on any criteria of similar objectives; rather, it was based on what was perceived by various Members to be the conduct of these institutions, including ourselves, against the interest of the National Assembly and its Members. How far from the truth is that? This was a personal vendetta by the National Assembly against these institutions. It was an onslaught against this House.

The actions of the National Assembly can be equated to releasing the foxes into the chicken coop. Today we have about Kshs3 billion going to the counties with no

June 15th, 2015 SENATE DEBATES 36

June 15th, 2015 SENATE DEBATES 37

Mr. Temporary Speaker, Sir, thank you for giving me this opportunity. First, I support the Select Committee although I think that it is top- heavy. However, the Senators who have been selected are the best in the business.

One of the things that I want to agree with Sen. Moi about is that we should not lament too much. We should move ahead and give this country direction. All the places that we have gone to, the people of this Republic have disagreed with the National Assembly in the work that they have done. As far as I am concerned, just like everybody has quoted the Bible, the writing is on the wall for the Members of the National Assembly.

Therefore, just like the parable by Sen. Murkomen on King David, what he did not say is that Prophet Nathan told King David that he must pay for his sins.

Sen. M. M. Kajwang, do you have an intervention?

On a point of order, Mr. Temporary Speaker, Sir. The good Senator for Makueni County has talked about some people who have been selected to sit in the Select Committee. To the best of my knowledge, that has not been tabled here yet. Is the Senator in order to anticipate debate on this matter?

Mr. Temporary Speaker, Sir, my good brother came in late and maybe he was given a wrong document. This document has been distributed while we were seated here. My brother, Sen. M. Kajwang, the last page at the bottom reads: “And resolves to establish a Select Committee.” Most of the contributors before me have made recommendations on this committee, unless I am wrong.

An hon. Senator: Which document was distributed?

The document containing the names was distributed. The document is here on the front desk. It has names at the end.

The Temporary Speaker (Sen. Mositet) : Sen. Mutula Kilonzo Jnr., you are supposed to debate the Motion as it was moved. There were no names which were read.

Mr. Temporary Speaker, Sir, this document was actually brought after---

The Temporary Speaker (Sen. Mositet) : The Motion which was read was clearly read without names. Strictly stick to that.

Sen. Mutula Kilonzo Jnr., you are supposed to debate the Motion as it was moved. There were no names which were read.

Mr. Temporary Speaker, Sir, this document was actually brought after--- The Temporary Speaker (

Then the Serjeant-at-Arms made a mistake to give us a document that should not be debated. Then that contribution should be expunged from the HANSARD, if that is possible.

Mr. Temporary Speaker, Sir, on the question of the violation of these institutions; when I read the bodies whose funds have been reduced; unfortunately, the National

June 15th, 2015 SENATE DEBATES 38

Sen. Mutula Kilonzo Jnr., you have a balance of 11 minutes when debate resumes.

Then the Serjeant-at-Arms made a mistake to give us a document that should not be debated. Then that contribution should be expunged from the HANSARD, if that is possible.

Mr. Temporary Speaker, Sir, on the question of the violation of these institutions; when I read the bodies whose funds have been reduced; unfortunately, the National

June 15th, 2015 SENATE DEBATES 38

Sen. Mutula Kilonzo Jnr., you have a balance of 11 minutes when debate resumes.