October 15th , 2015 SENATE DEBATES

Thursday, 15th October, 2015

Mr. Speaker, Sir, I beg to give notice of the following Motion:- THAT, aware that the Parliament of Kenya is an active Member of the Inter- Parliamentary Union (IPU) which is the international organization of national Parliaments, further aware that the IPU provides support to parliaments in areas such as law and policy making as well as representation; noting with appreciation that upon request by the Speaker of the Senate, the IPU sent an expert delegation to Kenya from 12th to 16th July, 2015 to offer advice on the way forward in implementing the constitutional requirement on the two-thirds gender rule; now, therefore, the Senate notes the report of the Inter-Parliamentary Union expert mission to Kenya on the framework to implement the constitutional provision of the two-thirds Gender Rule laid on the Table of the Senate on Thursday, 8th October, 2015 and extends its appreciation to the IPU for support on the matter.

What has become of the senior Chairs of Committees? They have become assisted voters. I was not seeing any indication, but I see Sen. Billow now. Sen. (Dr.) Khalwale, proceed.

October 15th , 2015 SENATE DEBATES

Mr. Speaker, Sir, I beg to lay the following Papers on the Table of the Senate today, Thursday, 15th October, 2015:- The Report of the Auditor-General on the financial operations of Samburu County Assembly for the year ended 30th June 2014. The Report of the Auditor-General on the financial operations of Bomet County Executive for the year ended 30th June 2014. The Report of the Auditor-General on the financial statements of the County Government of Nyandarua for the 16 months period ended 30th June 2014. The Report of the Auditor-General on the financial statements of the County Government of Elgeyo Marakwet for the 16 months period ended 30th June 2014. The Report of the Auditor-General on the financial statement of the County Government of West Pokot for the 16 months period ended 30th June 2014. The Report of the Auditor-General on the financial operations of Machakos County Executive and County Assembly for the period 1st July 2013 to 30th June 2014. The Report of the Auditor-General on the financial statements of Machakos County Government for the 16 months period ended 30th June 2014. The Report of the Auditor-General on the financial statements of Mandera County Government for the year ended 30th June, 2014.

Mr. Speaker, Sir, I beg to lay the following Papers on the Table of the Senate today, Thursday, 15th October, 2015:- The Report of the Controller of Budget on the Annual County Governments Budget Implementation Review. The Report of the Controller of Budget on the Annual National Government Budget Implementation Review.

Hon. Senators, let us start with the Statement listed as 2 (a) . Where is the Chairperson, Committee on National Security and Foreign Relations? Sen. Haji, if you may proceed.

Mr. Speaker, Sir, to save on time, I will not read the requests as such. However, on 29th September, 2015, Sen. Wetangula---

October 15th , 2015 SENATE DEBATES

Order, Senator. I do not see the Member. We shall allow a few minutes as you go through the other statements. But you will deliver the Statement today whether he is present or not. Let us move to the Statement listed as 2 (b) . Sen. Haji, your Vice Chair is not here. Let us move on to 2 (c) . The Member is also not here. Let us move on to 2 (d) , the Statement relating to the Committee on Roads and Transportation. Sen. Obure, you may proceed.

Mr. Speaker, Sir, I will respond to the request by Sen. (Dr.) Khalwale---

Order, Senator. I have just seen the paper being passed on to you. Let us allow you time to interrogate it as we go on to the next Statement. We will come back to you.

Mr. Speaker, Sir, I am ready for it.

I was trying to be of assistance. However, you can proceed.

Mr. Speaker, Sir, I want to seek your indulgence. When Sen. (Dr.) Khalwale requested for this Statement, hon. Wetangula rode on that and sought additional information. Unfortunately, the additional information that Sen. Wetangula sought is not ready. With your indulgence, we want to answer it when we get the information.

Order, Members. I have advised variously in this House that when you have such a matter just approach the Chair so that you do not squander precious time of the House. I remember, in particular, I gave the same advice to Sen. (Dr.) Khalwale who has caused you to repeat the same – I do not want to call it “a mistake”, but I am still looking for a better word - for lack of a better word - the same mistake. Let us move to the Statement listed as 2 (e) . I see the Senate Majority Leader and the Senate Deputy Majority Leader here. Can we move on to the Statement listed as 2 (f) ? I also see the Chairperson of the Committee on Devolved Government.

Mr. Speaker, Sir, the Statement is ready. However, we have consulted with Sen. Khaniri because the Statement came a little bit late. He needs time to read and appreciate it because it has a few annexures. We have agreed that we study it so that on Tuesday when we come and issue it, we will have clear information on follow up questions, if any. So, there is an agreement.

Sen. Khaniri, you have between now and Tuesday. You can get a copy of the response from your counterpart.

Let us move on to Statement 2 (e)

October 15th , 2015 SENATE DEBATES

Order, Majority Leader and your deputy. It is not time for you to consult.

Mr. Speaker, Sir, that just shows how closely we are working. I have just received the Statement. I wanted to request if it is in order if we can be indulged by Sen. Nabwala so that we issue it on Tuesday, next week. This will enable us internalize it in the event of any clarifications that might be sought.

Hon. Senators, even as Sen. Nabwala responds, again, when you have no business to transact, approach the Chair, we will assist both Members at this level. We have plenty of business to transact.

Obliged, Mr. Speaker, Sir. However, on Tuesday I will not be around, I will be out of the country.

That will be done the other Tuesday.

On a point of order, Mr. Speaker. Sir. This Statement is very important to some of us because the El Nino rains might start tomorrow or the day after. When we talk of issuing the Statement in the next two or three weeks, the rains will have overtaken us, and, so, we need the response now.

Agreed. Members, the Standing Orders will guide Sen. Nabwala. I want to agree with Sen. Karaba that this matter is so important that Sen. Nabwala should make arrangements for the Statement to be delivered while she is away.

Order, Sen. Mukite! That is a directive, not for you to respond.

Let us proceed with Statement 2 (a) . Proceed, Sen. Haji.

Mr. Speaker, Sir, on 29th September, 2015,

You are answering the wrong Statement. It should be 2 (a)

What does Statement 2 (a) say?

Order, Senators. Yes, he is answering the wrong Statement but at the same time the right one. If you look at the Statements listed as 2 (a) and 2 (b) , those Statements were to be sought. They will not be sought today. Let us move to Statement 2 (c) . Proceed, Sen. Haji.

October 15th , 2015 SENATE DEBATES

Mr. Speaker, Sir, on 29th September, 2015, Sen. Wetangula sought a Statement from the Cabinet Secretary for Interior and Coordination of National Government. I wish to state as follows:-

Mr. Speaker, Sir, this answer demonstrates the attitude of the Government on the matter of Sen. Muthama; a deliberate effort to torment, frustrate, embarrass and eventually arraign him before a court of law. Could the Senator in charge of this docket tell us why the same principle being applied on Sen. Muthama is not being applied on one Hon. Moses Kuria? Just like Sen. Muthama, Hon. Moses Kuria has also broken the Rome Statute which has been domesticated here. If he has admitted to interfering with witnesses and coaching them, it is a breach. Why has he not been arrested and arraigned in court up to now? Instead they are pursuing---

Mr. Speaker, Sir, this answer demonstrates the attitude of the Government on the matter of Sen. Muthama; a deliberate effort to torment, frustrate, embarrass and eventually arraign him before a court of law. Could the Senator in charge of this docket tell us why the same principle being applied on Sen. Muthama is not being applied on one Hon. Moses Kuria? Just like Sen. Muthama, Hon. Moses Kuria has also broken the Rome Statute which has been domesticated here. If he has admitted to interfering with witnesses and coaching them, it is a breach. Why has he not been arrested and arraigned in court up to now? Instead they are pursuing---

October 15th , 2015 SENATE DEBATES

On a point of order, Mr. Speaker, Sir. The Senator for Kakamega is playing politics with a very important issue. You were consulting with a member of the Speaker’s Panel there, but did you hear him talk about a Member of the National Assembly, Hon. Moses Kuria? In total misrepresentation of facts, he claimed that the Member was interfering with the ICC witnesses. Could he tell us which witnesses he is referring to and where they were? How did he come to that knowledge? This ICC issue is not an issue to joke around with in this House. Also, what is the relevance of that question in relation to follow up to this statement? He took advantage of the fact that you were consulting a member of the Speaker’s Panel.

Mr. Speaker, Sir, if there is anybody trying to play politics, then it is Sen. Murkomen. Hon. Moses Kuria is your ‘baby’. You must bath him, babysit him and accept all that he has been uttering.

Order, Hon. Senator!

Mr. Speaker, Sir, we are referring to the utterances by a Senator which are being used to harass him while another Member of Parliament has made worse utterances and nothing is being done. This is selective justice. I have to say this here. You want me to say it out of this House, so that you harass me also. Here, I enjoy immunity.

Order, Sen. (Dr.) Khalwale! The issue is the relevance of what you are saying to the Statement. That is the most important point.

Mr. Speaker, Sir, the relevance is as follows; that, because it is the same Government that is superintending over both cases, why is the rule of equity not being applied? Why on Sen. Muthama and not on Hon. Moses Kuria?

On a point of order, Mr. Speaker, Sir. The Standing Orders are very clear. You have warned us in this House all the time, that when you are discussing an honourable Member, whether in this House or the “Lower House”, the Standing Orders apply. If the Hon. Senator wants to bring a substantive Motion to discuss Hon. Moses Kuria, he should do so. However, is it in order for my colleague to refer to Hon. Moses Kuria as my “baby”?

Order, Senator! That is a valid point of order, Sen. (Dr.) Khalwale.

Mr. Speaker, Sir, it is common knowledge that the medium of learning from class one up to the time you finish Law School is English. It is also common knowledge that lawyers “comprehend English” better than most professionals. He should know the meaning of figurative language.

Order, Senator! The English language also provides for relevance, dignity and is not demeaning. Just stick to your point of order, withdraw and apologise, then proceed.

Mr. Speaker, Sir, when he stood on a point of order, he never asked me to apologise for anything. So, if I am being asked to apologise for something, may I know what it is that I am apologizing for?

Order, Senator! There were two points of order already. Let us proceed. Sen. Billow.

On a point of order, Mr. Speaker, Sir. There is, in fact, selective application of law when it comes to demonstrations and picketing. Some people are allowed to demonstrate,

October 15th , 2015 SENATE DEBATES

On a point of order, Mr. Speaker, Sir. I seek further clarification. Considering that Article 27 is very important in our Constitution, has the Government considered creating very special areas around Parliament, or the Executive or around the Legislature, where Kenyans can have a right to come and demonstrate? If you go to the White House, Washington DC, there is a specific area where there is a particular demonstrator whom we were told has been there for five years, sitting and opposing the war in Iraq and other wars that the United States of America (USA) is involved in. Is there any process that is being put in place to ensure that properly designated areas are provided for where Kenyans can have a right to come and exercise their demonstrations without interfering with the rights of other citizens? We would be doing poorly contrary to the USA.

Mr. Speaker, Sir, before I pursue my point of order, could you restrain the distinguished Senator for Kericho from heckling?

Order Sen. Wetangula! I cannot restrain a Member from what he has not done.

Order Sen. Wetangula! I cannot restrain a Member from what he has not done.

Mr. Speaker, Sir, did you hear the distinguished Chairman, Senator for Garissa saying that the CS is not aware of any application to demonstrate? Under what law does anybody apply for a license to demonstrate, unless the Chairman is operating under the old school and old Constitution?

October 15th , 2015 SENATE DEBATES

Mr. Speaker, Sir, when I read the statement, not withstanding---. Saying “license” was a slip of the tongue. I wanted to say that they had not notified the police. Equally, I am not aware about the women who are said to have demonstrated here and whether they had notified the police or not. Secondly, the ICC matter is not for me to deal with. I understand the matter is already in court. Therefore, it is not proper for us to discuss it in the House. As to what has been asked by Sen. Billow, I am not aware also that there is selective application of how people conduct demonstrations. The requirement of the law is for the people to inform the police. If police are informed, unless there is any special reason, people cannot be denied the right to demonstrate. Regarding the question by Sen. Murkomen, that is totally a new question which I am not prepared to answer. He can put a question and it will be answered appropriately.

Mr. Speaker, Sir, the Chair has declined to respond to my inquiry about ICC on the grounds that the matter is in court. The sub judice rule is very clear. He has to give us the pleadings so that we know what it is that is in court. Is he in order to ‘hide’ in sub judice principle when he has not demonstrated that, indeed, this matter is active and ongoing in a court of law?

Order Senators! I agree with the Chairman that that matter is not relevant to the Statement. So, he is under no obligation to respond to you. The Senate Minority Leader (Sen. Wetangula) : Mr. Speaker, Sir, the Chairperson of the Committee has repeatedly operated under the smoke screen of not being aware. Now that we have made you aware as the Chairperson, could you assure this House that the events of 29th September, 2015,which is a scar and a blot to the image of Government, where you can block and chase away one group of demonstrators and literally ensconce another group at the gates of Parliament because they are shouting obscenities against a Member of the Senate that you do not like, and Kenyans, that the Government you represent here will not apply the law selectively, regardless? That Kenyans who want to demonstrate, as long as they notify the police will be allowed to demonstrate, whether they are demonstrating against the reckless Hon. Moses Kuria or the sober Sen. Johnstone Muthama.

Order Senators! I agree with the Chairman that that matter is not relevant to the Statement. So, he is under no obligation to respond to you. The Senate Minority Leader (

Mr. Speaker, Sir, as I stated, the Constitution is very clear. So long as people will comply, there is no reason why they should not be allowed to demonstrate. There is no need for me to give any assurance because the law is there. The application of the law is that people must notify the police. If they do not, the law will take its course.

October 15th , 2015 SENATE DEBATES

On a point of order, Mr. Speaker, Sir. I noticed that my friend, Sen. Khaniri, ---

Order, Senators, including Sen. Murkomen! We have enough numbers for voting and I do not want us to lose that opportunity. Proceed, Sen. Kembi-Gitura.

Before the next Order, I would like us to dispose of Order No. 12.

On a point of order, Mr. Speaker, Sir. I noticed that my friend, Sen. Khaniri, ---

Order, Senators, including Sen. Murkomen! We have enough numbers for voting and I do not want us to lose that opportunity. Proceed, Sen. Kembi-Gitura.

Mr. Speaker, Sir, on 29th July, 2015, I sought a Statement from the Committee on Lands and Natural Resources regarding a development that is going on at the junction of Lower Kabete Road and Loresho Ridge. I mentioned that it is a construction that had been stopped when the late Hon. Wangari Maathai, the Nobel Laureate was around. It was also stopped by the then Minister for Land, Housing and Urban Development. The construction is going on in a riparian area and I still have not got an answer. I notice that the Vice-Chairperson of that Committee is here. I do not know when to expect this because it has taken inordinately long.

Mr. Speaker, Sir, my good friend, Sen. Kembi-Gitura will agree that we responded to the substantive Statement that he had sought. There was a subsequent request that he made, if I may recollect. Following that, we wrote a letter dated 5thAugust, 2015 to the Cabinet Secretary (CS) , Prof. Judy Wakhungu, on the same matter. Up to now, we have not received any response. I have a copy of the letter and I can table it for the House to peruse but we will definitely make a follow-up. However, I think we responded to the substantive Statement.

Mr. Speaker, Sir, I am sure my learned colleague is---

October 15th , 2015 SENATE DEBATES

On a point of order, Mr. Speaker, Sir. I do not know whether you are aware of the words used by the Speaker of the National Assembly. I will not go into that but the long and short of it was that, as Senators, we are abetting wasteful usage of funds by counties. The Speaker of the National Assembly is the head of the National Assembly and you are the head of the Senate. Maybe, you will also tell us - if you are aware - what you are doing as the Speaker of the Senate by way of a rebuttal? The Senate Minority Leader (Sen. Wetangula) : Mr. Speaker, Sir, I join the distinguished Senators for Mandera and Kakamega in seeking your direction under Standing Order No. 90. My reading of the Standing Orders is that we are stopped by this Standing Order

Mr. Speaker, Sir, whereas I agree with my colleagues, I seek your guidance in the sense that, are we allowed to refer to media reports? Sen. Billow is referring to the media reports and that is his basis of invoking Standing Order No. 90 (1) . It is good to clarify whether there was a ruling from the Chair and whether it was somewhere and if at all we go by the statement which I saw in the media, then we do not know if it is true or not. Before we even go into that, I think it is good to ascertain the issues first.

Order, Senators! I was equally perturbed to read that piece in the newspaper. As I was contemplating on what to do next, the Speaker of the National Assembly called me and said that there was no such communication with the media. That is what he told me. He was obviously agitated. Even if you look at that piece, they never attributed it to a particular reporter. So, in a way, I was willing to give it the benefit of the doubt in the sense that the report was under a Nation newspaper reporter and you all know under what kind of circumstances such reportage takes place. The reporter could be avoiding victimization. He could also be avoiding to be taken to task over the veracity of the assertions. I have requested him to set the record straight and so, let us give the matter time. If the record is not straight, you know what to do. Let us leave it at that stage for now. I think it must be very clear to everybody; to Senators, Members of the National Assembly, governors, Members of the County Assembly (MCAs) and to the general public that the Senate does not need to account to another House of Parliament. We represent the people of the Republic of Kenya and that is where our accountability is. So, all those others are opinions which are still subject to the same public. Let me not go beyond there. Thank you.

On a point of order, Mr. Speaker, Sir. Thank you very much for the varied explanation that you have given us as a House, but I was wondering whether I would be in order to persuade you as the leader of this House---

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

Mr. Speaker, Sir, I was also wondering the position of the Kshs1 billion supposed to equip this House in order to oversight the counties that was held in the National Assembly and we were wondering that since the National Assembly Speaker is the one that presided over the issue, are we in order to ask your office to pursue this matter so that our Kshs1 billion can be brought back to us so that we can effectively oversight the counties? Mr. Speaker, Sir, we will have a situation where this House can be denied money so that it can be accused of not “oversighting” properly. I thank you.

Order, Sen. Kagwe. I was very clear. With or without money, we have been working and we will continue to work. I think the only point you are making is that somebody is not trying to frustrate more efficiency and more effectiveness and then still blames you for that. That is the only contribution I am taking from you in terms of that. Let us leave it as I had suggested. Sen. Ndiema!

Order, Members! We still have a vote to take. So, if you are just outside, come back to the Chamber.

October 15th , 2015 SENATE DEBATES

Thank you Mr. Speaker, Sir. Pursuant to the provisions of Standing Order No. 45 (2) (c) , I beg to seek a Statement from the Chairman of the Standing Committee on National Security and Foreign Relations on the killing of Mr. Joshua Mungai, son of Mr. Kariuki of Khalwengwe village in Trans Nzoia county. In the Statement, the Chairman should give the following:-

Thank you Mr. Speaker, Sir. I wish to take this opportunity to pass my condolences to the family that has lost their son. It is really an unfortunate situation. I request the Senator to give the Committee a week to be able to respond to this particular Statement, preferably, Thursday next week.

October 15th , 2015 SENATE DEBATES

It is so ordered. We now go to Order No. 12 then we come back to order No. 8.

Thank you Mr. Speaker, Sir. Pursuant to the provisions of Standing Order No. 45 (2) (c) , I beg to seek a Statement from the Chairman of the Standing Committee on National Security and Foreign Relations on the killing of Mr. Joshua Mungai, son of Mr. Kariuki of Khalwengwe village in Trans Nzoia county. In the Statement, the Chairman should give the following:-

Thank you Mr. Speaker, Sir. I wish to take this opportunity to pass my condolences to the family that has lost their son. It is really an unfortunate situation. I request the Senator to give the Committee a week to be able to respond to this particular Statement, preferably, Thursday next week.

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

Mr. Speaker, Sir, I was interrupted last evening at the close of business when I was in the process of appreciating the work of the Select Committee for a job well done. By looking at the report, I notice that the Committee held many meetings and workshops before producing this report. I also noticed that this report goes to considerable length in analyzing the key issues and they have gone further to give comparison of the situation in similar jurisdictions. Mr. Speaker, Sir, I am aware that this was a complex assignment, but the quality of the members in the Select Committee is clearly reflected in the quality of the report produced. The terms of reference of the Committee, included among others; the assignment to inquire into the design and structure of Parliament as presently constituted and to determine whether the design and structure is appropriate for the purpose of protecting and safeguarding the devolved system of government. Secondly, the Committee was expected to examine and make recommendations on the ideal relationship between the Senate and the following institutions; the national Government, the National Assembly, county governments and other state organs and agencies. The current Constitution has been in operation since 2010. We have since witnessed some of the weaknesses, challenges and conflicts which have arisen when trying to implement some of the provisions of the Constitution. In any case, even when Kenyans adopted this Constitution, they were aware that it was not a perfect everlasting document. In my view, the time is now for us to address some of the challenges that we have experienced in attempting to implement the Constitution. Mr. Speaker, Sir, one of the main problems that this nation faces today is that the role of each House of Parliament is not clearly understood even by the Members of Parliament themselves, leave alone the general Kenyan population. This has resulted into confusion and

October 15th , 2015 SENATE DEBATES

Mr. Deputy Speaker, Sir, I also rise to give my support to this Motion. I was privileged to be among Members of the Committee that did this work. There is no doubt that a lot has changed since we embraced this new political dispensation about five or six years ago. A lot has changed in the way we govern ourselves, where Kenyans hold their governments to account. We have also changes in the powers of the Executive; the checks and balances, the role of many public institutions and the bicameral nature of Parliament. A lot of the changes that have been introduced have fundamentally changed the way we govern ourselves. Mr. Deputy Speaker, Sir, the Constitution is very clear. To interpret the Constitution, we must do it in a manner – this is according to Article 159 – that promotes its purpose, advances the rule of law and contributes to good governance and the development of law. I am not a lawyer but I can tell you for a fact that the Constitution, even with this very clear prescription has, in fact, been interpreted in various ways in the past few years. Many institutions, including Parliament, have had to go before the Supreme Court to seek clarification or advisory opinion on the meaning of certain provisions in the Constitution. It is because of that, that among other reasons, this hon. House felt it necessary to look at the Constitution and recommend amendments to the same. Mr. Deputy Speaker, Sir, I will go specifically to a number of areas in this Report that I support. One of the key challenges that we have today is on finances and the budget. We all know that in the past two weeks, we have been treated to a lot of information in the media that our Government is, indeed, facing serious financial crisis. I do not think anybody doubts that when a Government or any institution for that matter fails to meet its obligations, then, that means that the institution is in the red. There are serious challenges when salaries cannot be paid on time, development budgets have not been implemented significantly in the First Quarter of this Financial Year and transfers to county governments have only been effected for one month out of the three months of the First Quarter of this Financial Year. When you look at it critically, the genesis of this financial crisis is the manner in which the budgetary system or process of this country is being handled. We said that this year in June when we were looking at the Budget. The Budget is managed by one institution. The National Assembly literally determines who gets money and who does not and what the expenditure should be. Mr. Deputy Speaker, Sir, the law that we have today has literally placed the Treasury in the hands of one House of Parliament. Because of that, we have a situation where a country whose annual revenues are estimated to be Kshs1 trillion could come up with a budget of

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

Mr. Deputy Speaker, Sir, I also rise to give my support to this Motion. I was privileged to be among Members of the Committee that did this work. There is no doubt that a lot has changed since we embraced this new political dispensation about five or six years ago. A lot has changed in the way we govern ourselves, where Kenyans hold their governments to account. We have also changes in the powers of the Executive; the checks and balances, the role of many public institutions and the bicameral nature of Parliament. A lot of the changes that have been introduced have fundamentally changed the way we govern ourselves. Mr. Deputy Speaker, Sir, the Constitution is very clear. To interpret the Constitution, we must do it in a manner – this is according to Article 159 – that promotes its purpose, advances the rule of law and contributes to good governance and the development of law. I am not a lawyer but I can tell you for a fact that the Constitution, even with this very clear prescription has, in fact, been interpreted in various ways in the past few years. Many institutions, including Parliament, have had to go before the Supreme Court to seek clarification or advisory opinion on the meaning of certain provisions in the Constitution. It is because of that, that among other reasons, this hon. House felt it necessary to look at the Constitution and recommend amendments to the same. Mr. Deputy Speaker, Sir, I will go specifically to a number of areas in this Report that I support. One of the key challenges that we have today is on finances and the budget. We all know that in the past two weeks, we have been treated to a lot of information in the media that our Government is, indeed, facing serious financial crisis. I do not think anybody doubts that when a Government or any institution for that matter fails to meet its obligations, then, that means that the institution is in the red. There are serious challenges when salaries cannot be paid on time, development budgets have not been implemented significantly in the First Quarter of this Financial Year and transfers to county governments have only been effected for one month out of the three months of the First Quarter of this Financial Year. When you look at it critically, the genesis of this financial crisis is the manner in which the budgetary system or process of this country is being handled. We said that this year in June when we were looking at the Budget. The Budget is managed by one institution. The National Assembly literally determines who gets money and who does not and what the expenditure should be. Mr. Deputy Speaker, Sir, the law that we have today has literally placed the Treasury in the hands of one House of Parliament. Because of that, we have a situation where a country whose annual revenues are estimated to be Kshs1 trillion could come up with a budget of

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

Mr. Deputy Speaker, Sir, thank you for giving me this opportunity to speak on this very important Motion. Along with my colleagues, I wish to congratulate the team that we appointed to look into these issues. It was a quality team with reflected the face of Kenya. It was a team of the young and old. It was a team that cut across religious loyalties. Most importantly, it was a team in which both sides of the political divide sat and deliberated. The fact that they have produced this good report, demonstrates that important issues facing this country can be dealt with when both sides come and reason together. That is the African way of doing things. The Senate is the House of elders and in the tradition way, the African elders sat together under a tree and agreed even on the most difficult issues. I am, therefore, pleased by the remarks that were made by the Mover of the Motion when he appealed that just as this Committee worked together, he hoped that the togetherness will continue when we come to the campaigns during the referendum for the adoption of this report. Just as the team worked in a non-partisan way, we also hope that when we adopt this report and go to the public, it will also be done in a non-partisan way. That is why I want to focus on the way forward because referendums can be very dicey. Most of the referendums that have been held, for example, in Europe on whether the country should join the European Union, you will find that the referendum is defeated, not so much on the advantages or disadvantages of the country joining the European Union, but because of some local issues. So, people vote not so much on the major issues but on local issues generated by the politicians. We even witnessed here when we were campaigning for this Constitution. You saw that the debate was not always on the substance of the Constitution as a whole but on an issue which had been misinterpreted. For example, it was said that the Constitution permits abortion. Therefore, a lot of emotions went into that. Mr. Deputy Speaker, Sir, these good constitutional amendments that we have, I am very keen that the way we handle the way forward should not derail the result of the referendum due to concentrating on issues other than these very noble amendments. As Sen. Mutula Kilonzo Jnr. said, most of the major amendments to a constitution have been within one year of the promulgation of that constitution in many countries including the United States of America (USA) and India. We have not been able to do so within one year. When we were newly elected, it was our intention to have a constitutional amendment because of the challenge presented to the Senate but we cannot debate a very important Bill on Division of Revenue. We wanted to have a constitutional amendment on this but we could not do so due to other factors. Having said that, we are in a situation where we are now half way through our term and my fear is that the political temperatures are rising and the enabling environment to consider these issues soberly is becoming very difficult. This Committee has pointed the way, that in spite of the difficulties we may face, if we can do things in a non-partisan manner and focus on issues,

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

Your time is up but I am giving you one minute to wind up.

Thank you, Mr. Deputy Speaker, Sir. My comments go to all other amendments that have been proposed. The issue of approving constitutional office holders is very important, because the Senate at the end is the guarantor of the Constitution. These constitutional commissions and independent offices have been given a specific role of implementing the Constitution, the way it is. Just like the other House approves the appointment, we must also approve the appointment of the officers. With those few remarks, I beg to support.

Thank you, Mr. Deputy Speaker, Sir. Let me add my voice in supporting this particular proposal for amendment. First, I would like to congratulate and commend the team that worked on this proposal. This team has a lot of experience and wealth of knowledge. It is important for us to appreciate the work they have done. Let me let talk about the budget-making process. As a country and as a Senate, we have been having problems, when it comes to the budget making process. The Senates is involved at the last minute especially when it has remained a very short time to the conclusion of the process. As a result, the Senate is denied the oversight role which is very critical, because if we are not involved from the initial stages in the budget-making process, then we lose the right of oversight. Mr. Deputy Speaker, Sir, last week, I was in the county with the ad hoc Committee on infrastructure and what is happening in those counties it is like there are a lot of problems. Monies allocated for certain services, are diverted for other processes. It is because the Senate is not involved in prioritizing the activities and the areas that require funding. This is very critical. Members of the public are also denied the responsibility of oversight, especially in the usage of their budget within the counties. The Governors and the people in the county do not involve members of the public in terms of how development is supposed to take place. This is a constitutional provision and the public is denied its right. That is why it is important for us to enforce and emphasize that the Senate should be at top or be involved at the initial budget- making process.

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

Bw Naibu Spika, asante kwa kunipa nafasi ili niunge mkono Hoja hii iliyopendekezwa na Sen. Murkomen. Wakati mwingi majuto ni mjukuu. Sio kwamba hatukujua kwamba kulikuwa na udhaifu kwa Katiba. Haya yalisemwa na wahenga wakati ule lakini sikio la kufa halisikii dawa; hawakusikia. Tunayoyaona leo kuhusu mamlaka ya Seneti ni udhaifu uliotabiriwa kwamba tunaunda Seneti ambayo haitakuwa na mamlaka na kutakuwa na upotevu wa pesa za umma. Sasa imebidi tuanze kufikiria ili tutekeleze yale ambayo tungeyatekeleza jana. Tumefikiria kwamba kura ya maoni ni muhimu wakati huu ambapo Serikali iko taabani, haina pesa. Kura ya maoni ni gharama kubwa. Tuna pengo la deni la zaidi ya Kshs1.3 trilioni. Serikali imeanza kukopa kutoka kwa benki nchini ili kugharamia huduma za kila siku. Sisi tuko na matatizo ambayo yanalenga ukweli na umuhimu ili kuliziba hili pengo ambalo limefanya Serikali na nchi ya Kenya kuwa na shida ambayo tumepata kwa sababu ya udhaifu wa Bunge la Kitaifa. Bunge hili limepitisha Miswaada kiholelaholela bila Seneti kuwajibika, kuangalia na kuchunguza kwa undani na dhati yaliyomo. Umuhimu wa Mswada huu lazima utiliwe maanani. Wakati umefika lazima mamlaka ya Seneti yaangaliwe na yarekebishwe vilivyo kwenye Katiba. Kwa mfano, Kaunti ya Migori imewaka moto sasa hivi. Jana na juzi katika runinga, Spika wa bunge anadaiwa ameiba pesa kiasi cha Kshs12 milioni. Kamati ya Bunge ya Kaunti ya Migori iliketi, ikachunguza na kupata kwamba hela hizo zilitumika vibaya kwa sababu ya Spika. Spika mwenyewe alienda kutafuta vijana kutoka sokoni na kuwajaza Bungeni. Wabunge wa Kaunti walipotaka kuanza kupiga kura, vijana walianza kupiga kelele na Spika akahahirisha Bunge. Bw. Naibu wa Spika, mambo kama hayo yasingekuwa hivyo kama Bunge hili la Seneti lingekuwa na nguvu hata ya kusema: “Bw. Spika, kwa sababu umefanya dhambi kama hiyo, wakati ukichunguzwa kaa kando kwa mujibu wa amri ya Seneta.” Wajua Seneti ina amri hiyo lakini lazima sasa njia ndefu ifuatwe. Mara kupitia petition na haya ni mambo yasiyopendeza. Baada ya Spika huyo kufanya hivyo, aliandaa msafara mrefu kupita miji yote katika Kaunti ya Migori akijitukuza kana kwamba amefanya jambo nzuri sana. Haja hii inaipa Seneti nguvu za kuangalia uteuzi, sio wa Mawaziri tu bali pia viongozi wa tume mbalimbali, kabla ya kupewa wajibu huo. Hizi ni tume muhimu ambazo uteuzi wao si wa kiholelaholela. Lazima usomwe, uangaliwe na aliyeteuliwa achunguzwe na wazee wa Seneti. Tuliitwa “Jumba la wazee” na sio tusi wala kosa kwa sababu ni Bunge lililojaa watu wenye hekima. Kwa mfano, lazima Seneti hii iangalie ni nani huyu ambaye atahudumu kama mwangalizi wa mambo ya kaunti au hata mkuu wa polisi. Serikali ikitaka kuenda vitani, Seneti hii iangalie ni kwa nini. Kuna umuhimu wa kufanya hivyo. Serikali ikitaka kutumia jeshi kufanya kazi ya polisi, Seneti iamue. Ni kwa sababu hapa kuna watu walio na kipawa cha umri na wala sio kukimbilia mambo, kuyasema na kuyatelekeleza bila kufikiria na kujua undani wake. Ninaomba Seneti hii ipewe uwezo wa kutekeleza hayo yote.

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

Time is up Sen. (Dr.) Machage. One minute you wind up.

Nashukuru, Bw. Naibu Spika. Kusudi taifa letu tulijenge sote kwa dhati na kwa uangalifu, tukuze uchumi bora, maendeleo yawe ya kisasa na bora, watoto wafundishwe bila walimu kuenda mgomo, watu wapate matibabu kwa wakati uliofaa, tusiwe na vifo ambavyo havifai kama juzi wakati mgonjwa aliachwa ndani ya ambulansi kwa masaa kumi na nane, aibu. Ni wajibu wetu sisi tukiwa viongozi kuangalia udhaifu kama huu kwa Katiba na kurekebishwa. Naunga mkono.

Maybe now you can be able to withdraw the one you said that nakuonea.

Mheshimiwa Naibu Spika, nashukuru. Wewe ni mtu mwenye hekima na huna uonevu hata kidogo.

Asante sana nashukuru. Sen. Mukiite.

Thank you very much, Mr. Deputy Speaker, Sir. I would also like to join my colleagues to add my voice to this very important Motion by the Select Committee on the Constitutional and Legal Review that was laid before this House on the 23rd September 2015. The Committee did a great job as seen from the comprehensive report read on the Floor of the House. If looked at critically, I think it will help our country to move forward. First and foremost, I would like to talk about the financial crisis that is facing our country right now. We need to know from the Treasury Cabinet Secretary what happened to the envelop that we allocate at the end of July 2015; that was the new Financial Year. We were told that there was over Kshs1 trillion, we sat down as the Committee on Finance, Commerce and Budget and allocated the money. The Bill came to this House and the House approved the allocations, it went to the National Assembly, and now we are being told there is no money and counties are facing a problem. Counties have further been instructed to borrow money from banks. This is going to be abused, and before we realize it, counties will be in more debt than what the Government has borrowed. I think this country needs to be given answers to what is happening. Secondly, we have also realized that two banks have collapsed; Dubai Bank and Imperial Bank. That is not a very good sign particularly to the investors. If banks start to collapse, the next thing you will hear is that things have come to a halt. Like we have seen, electricity and water to Parliament had been disconnected which is a very distinguished House. One wonders if the county government can disconnect water and the Kenya Power disconnects power for the Parliament, then there is something seriously wrong which needs to be addressed. The other problem is the passage of Bills which has been mentioned in the Report. In the past, this House has looked at money Bills, which go to the National Assembly, they also agree with us that that is how the money should be allocated, but where there is a disagreement, we have had to go to the Mediation Committee. But even after Mediation Committee, when the Bill is taken back to the National Assembly, they go ahead to reallocate the funds and you realize that some institutions, organizations and the Senate are disadvantaged. When they say that the Senate is not doing the oversight role, it is because we do not have funds. We proposed that Senators be given Kshs1 billion and the same National Assembly

October 15th , 2015 SENATE DEBATES

Mr. Deputy Speaker, Sir, thank you, for giving me the opportunity to support this Motion which seeks to adopt the report of the Select Committee that was appointed by this House for purposes of looking at the Senate with a view to amend the Constitution and give the Senate a strong foundation in the Constitution.

I was a Member of this Committee, Therefore from the outset, let me say that I am familiar with the report and I support it. However, allow me to point out a few things in support and for emphasis of certain aspects of the report. The broad terms of the Committee as stated in page eight of this report states that the Committee was to inquire into the design of legislature and in particular the institutions set out in the Constitution with a view to protecting the interests of the county governments and safeguarding the system of devolved government established in the Constitution and make recommendations of the appropriate roles to be played by the Senate in budget making process, revenue allocation, legislative process and oversight over the national and county governments. Mr. Deputy Speaker, Sir, without going further, it is very clear that the Senate, as presently constituted under the Constitution, and as operating currently, does not have sufficient capacity to make laws or carry out oversight functions in any meaningful manner that can benefit our people in the counties. If we continue with the present trend, the Senate will be as good as dead. I know that many Senators are not here today because they have travelled to Mombasa, but there is a creeping feeling that this House is acting in futility in a number of issues.

We have become a mere debating club as opposed to a House of Parliament. We have now been in existence for more than two years yet the President has only assented to five Bills from the Senate. I know that we are busy generating more legislative proposals, but unless this House is taken much more seriously by the Executive, it will not play the important roles that Kenyans expected would be played by the Senate. We are aware that it was originally imagined by “Wanjiku” in the making of the Constitution that the Senate would be a very powerful body like that of the United States of America (USA) , Nigeria or India where all the laws debated in the Lower House are finally confirmed in the Upper House. In terms of personnel, the Senate has the capacity. We have the most experienced leaders of this country sitting here, including former ambassadors, like you. We also have former Ministers of Government like I and others. We also have many other professions who include surgeons, lawyers, former chief whips, professors and many others. This House is full of talents and experience. However, all the qualifications and talents here are going to waste because this House is held and trapped in various ways. Mr. Deputy Speaker, Sir, we have made many attempts to empower this House which did not succeeded. I remember the Bill that was sponsored by Sen. Sang. The oversight function of the Senate cannot be postmortem. We cannot wait for funds to be looted or wasted by governors, then sit here and listen to postmortem reports of how things happened. The oversight role should start at the planning stage. Planning should be done by the governors in accordance with the Constitution. We should check that governors endorse public participation. Half of the projects that we would like to be done in the counties should be captured in the County Integrated

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

Your time is up, Sen. Murungi.

October 15th , 2015 SENATE DEBATES

Mr. Deputy Speaker, Sir, thank you, for giving me the opportunity to support this Motion which seeks to adopt the report of the Select Committee that was appointed by this House for purposes of looking at the Senate with a view to amend the Constitution and give the Senate a strong foundation in the Constitution.

I was a Member of this Committee, Therefore from the outset, let me say that I am familiar with the report and I support it. However, allow me to point out a few things in support and for emphasis of certain aspects of the report. The broad terms of the Committee as stated in page eight of this report states that the Committee was to inquire into the design of legislature and in particular the institutions set out in the Constitution with a view to protecting the interests of the county governments and safeguarding the system of devolved government established in the Constitution and make recommendations of the appropriate roles to be played by the Senate in budget making process, revenue allocation, legislative process and oversight over the national and county governments. Mr. Deputy Speaker, Sir, without going further, it is very clear that the Senate, as presently constituted under the Constitution, and as operating currently, does not have sufficient capacity to make laws or carry out oversight functions in any meaningful manner that can benefit our people in the counties. If we continue with the present trend, the Senate will be as good as dead. I know that many Senators are not here today because they have travelled to Mombasa, but there is a creeping feeling that this House is acting in futility in a number of issues.

We have become a mere debating club as opposed to a House of Parliament. We have now been in existence for more than two years yet the President has only assented to five Bills from the Senate. I know that we are busy generating more legislative proposals, but unless this House is taken much more seriously by the Executive, it will not play the important roles that Kenyans expected would be played by the Senate. We are aware that it was originally imagined by “Wanjiku” in the making of the Constitution that the Senate would be a very powerful body like that of the United States of America (USA) , Nigeria or India where all the laws debated in the Lower House are finally confirmed in the Upper House. In terms of personnel, the Senate has the capacity. We have the most experienced leaders of this country sitting here, including former ambassadors, like you. We also have former Ministers of Government like I and others. We also have many other professions who include surgeons, lawyers, former chief whips, professors and many others. This House is full of talents and experience. However, all the qualifications and talents here are going to waste because this House is held and trapped in various ways. Mr. Deputy Speaker, Sir, we have made many attempts to empower this House which did not succeeded. I remember the Bill that was sponsored by Sen. Sang. The oversight function of the Senate cannot be postmortem. We cannot wait for funds to be looted or wasted by governors, then sit here and listen to postmortem reports of how things happened. The oversight role should start at the planning stage. Planning should be done by the governors in accordance with the Constitution. We should check that governors endorse public participation. Half of the projects that we would like to be done in the counties should be captured in the County Integrated

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

Your time is up, Sen. Murungi.

Mr. Deputy Speaker, Sir, it is quite difficult to contribute to a debate once the King of Meru has made his contribution. However, I would like to start by congratulating the team that worked on the proposals that we are debating today. I also would not want to forget the secretariat. Many a times, we forget them yet they are the ones who do a lot of the heavy lifting in the background. We gave them quite a short timeframe to execute their mandate and they have done the job fairly well. Mr. Deputy Speaker, Sir, there has been a historical concern on revision and strengthening of the role of the Senate. I know that even in this Senate, my predecessor, the late Sen. Gerald Otieno Kajwang, was one of those who were passionate about revisiting and revising the role of the Senate. I know many Senators here who have also been passionate about that and even those who sit in this House and are part of political party leadership. I know that the Senate Minority Leader (Sen. Wetangula) has been very vocal about looking at the Constitution and making sure that it is realigned with the realities of Kenya. Therefore, I give a lot of credit and respect to the people who have seen that we cannot be static and that there is need to make some changes to see to it that the Senate becomes relevant. Mr. Deputy Speaker, Sir, when I joined this Senate around March; I remember I was sworn in, in March around the time when the Division of Revenue discussion came.

October 15th , 2015 SENATE DEBATES

Which year was that?

That was this year, Mr. Deputy Speaker, Sir.

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

October 15th , 2015 SENATE DEBATES

Mr. Speaker, Sir, I beg to support.

October 15th , 2015 SENATE DEBATES