Thursday, 27th July, 2023

Clerk, do we have quorum?

Serjeant-at-Arms, kindly ring the Quorum Bell for 10 minutes.

Serjeant-at-Arms, I am informed that we now have the quorum. So, kindly stop the Bell.

Clerk, proceed to call the first Order.

Hon. Senators, kindly hasten. I need to make some communications.

Hon. Senators, I do have the following Communication to make. Over the last nine years, the Council of Governors, in conjunction with the Senate, the National Government and the County Governments, have hosted an annual Devolution Conference in various parts of the country.

The Conferences have generated conversations around certain thematic areas of concern to the counties, nationally and globally. Key among them being the devolved governance structure established under Chapter 11 of the Constitution following its promulgation in 2010.

The Conferences were geared towards assessing the progress of devolution, identified challenges faced by the county governments, share best practices and provide a platform for stakeholders to exchange ideas and solutions.

The Senate continues to be a critical stakeholder in this discourse, and its participation in the Devolution Conference cannot be gainsaid. During the Sixth Annual and final Annual Devolution Conference held in Wote, Makueni County in 2021, it was agreed that the subsequent conferences be held after every two years. This marked the end of the annual Conferences.

Hon. Senators, the first Biennial Devolution Conference is scheduled to take place at the Eldoret Sports Club in Eldoret, Uasin Gishu County from Tuesday, 15th August to Saturday, 19th August. The theme of the event is, “Ten years of Devolution; the present and the future.” The subtheme is, “Driving transformation from the local level county governments at the centre of economic development.”

This theme would not have come at a better time as more focus is shifting to county Governments as the centres of economic development, inclusivity and sustainable growth.

As the Co-Chairperson of the Steering Committee, which coordinates the hosting of the event, I appointed senators to the Steering Committee to assist in guiding and advising on the participation of the Senate in the Conference.

The representatives of the Senate at the Steering Committee include the following Senators;

I have also the following Communication to make.

Sen. Methu, kindly, take your seat. I have a Petition to present. What is your point of order, Sen. Oketch Gicheru?

Mr. Speaker, Sir, it is not a point of order, but just a point of clarification on the Communication about travel. Does this apply even during recess when the sitting of the House is not affected?

Yes, it applies for the term of your office.

Hon. Senators, I hereby report to the Senate that a Petition has been submitted to the Senate by teachers who are members of the Kenya Union of Post Primary Education Teachers (KUPPET) and residents of Kilifi County concerning alleged discrimination by the Teachers Service Commission on payment of hardship allowance and enhanced housing allowance to teachers in Kilifi County.

As you are aware, under Article 119 of the Constitution, and I quote - “Every person has the right to petition Parliament, to consider any matter within the authority, including enacting, amending or repealing any legislation.” Hon. Senators, the salient issues raised in this Petition are as follows - THAT, on 13th July 2021, the Teachers Service Commission signed a collective bargaining agreement with the Kenya National Union of Teachers, the Kenya Union of Post-Primary Education Teachers and Kenya Union of Special Needs Education Teachers, where the Commission promised to promote teachers serving in arid and semi- arid lands and hard-to-staff areas by issuing hardship allowances until they reach grades that are commensurate to the respective positions;

THAT, in Kilifi County, the Teachers Service Commission listed only Magarini and Ganze Subcounties in Kilifi County as hardship areas, allowing teachers to benefit from the hardship allowance, leaving out Chonyi, Rabai, Kaloleni Sub-Counties, Uyombo area and Marafiki Islands;

THAT, despite Malindi Subcounty being classified as a major municipality for teachers to receive enhanced house allowance under Category 2, teachers working in some schools within Malindi, including Sabaki Primary School, Sabaki Secondary School, Majivuni Primary School and Kibokoni Primary School, get a house allowance for other reserve areas under Category 4 as per the Salaries and Remuneration Commission clusters of teachers’ workstations;

THAT, Mtwapa and Mariakani towns are categorized under reserve areas for teachers to draw enhanced house allowance under Category 4 as per the Salaries Renumeration Commission (SRC) cluster of teachers’ workstations, while the teachers pay high rates of rent occasioned by the towns being major tourist sites;

THAT, the petitioners have made efforts to have the matter addressed by the relevant authorities, all of which failed to have the matter resolved.

THAT, the petitioner, therefore, prays that the Senate to investigate this matter to do the following-

Mr. Speaker, Sir, thank you for giving me this chance. I am a very big fan of Petitions. I find them to be effective and one of the quickest ways in which this House dispenses justice to the people that are represented through the representatives here.

I have listened keenly to this Petition. It raises something that is both legal and extra-legal in the sense that it is a policy decision. The Committee which you will give the opportunity to listen to this Petition will guide us.

You are aware that the Commission on Revenue Allocation (CRA) , conducted an extensive study after being moved by this House. This is because, for a long time, this country was used to a description of hardship areas as certain parts of the country. It began with a very erratic and wholescale definition of what a hardship area is.

If you read the reports of this House, you will realize that there were certain regions that used to be referred to, back in the days, in the previous Constitutional dispensation, as provinces that were considered to be hardship areas. Eventually, with the guidance of the Committee on Finance and Budget of this House, the CRA updated its reading and appreciation of this particular matter.

It noted that while in a county as rich as Kiambu, there are certain parts of that county that qualify as marginalized areas. This is because of their placing, agricultural dispensation and so many other factors that will involve the poverty index and all those things that go into consideration of what an arid and semi-arid area is.

Therefore, listening to the petitioners, first, it is clear that the Teachers Service Commission (TSC) is still living in the old dispensation of classifying hardship areas as constituencies, yet we have moved from constituencies and we now have wards. Out of the 1,500 wards in the country, a good number of them have been classified as hardship areas or arid and semi-arid areas.

Therefore, I expect that the Committee that you will give this Petition will guide us, so that as a country we can have a unified policy that applies to teachers, police, for purposes of the Equalization Fund and all these considerations.

It is the same people, country, and geographical location. We cannot have different classifications for different forms of services. Therefore, that will be the biggest

achievement over and above what these residents and the teachers of Kilifi are looking up to, so that the TSC, just like many other organizations that are yet to update their record, are guided by the constitutionally mandated organ for distribution of resources in this country.

Sen. Cherarkey, what is the problem?

Mr. Speaker, Sir, I am done. That is the point that I wish that---

Sen. Madzayo, you have the Floor. The Senate Minority Leader (Sen. Madzayo) :

Asante Bw. Spika. Kwanza,

Sen. (Dr.) Khalwale, you have the Floor.

Thank you, Mr. Speaker, Sir. Having worked in Kilifi as a doctor, I would be failing if I do not stand in this House---

Sen. Madzayo, Sen. Tabitha Mutinda and Sen. Methu, I call you to order.

Sen. Madzayo, Sen. Tabitha Mutinda and Sen. Methu, I call you to order.

Proceed, Sen. Wambua.

Thank you, Mr. Speaker, Sir for saving us from Sen. (Dr.) Khalwale. The matter raised by teachers from Kilifi County is important and weighty. I have listened carefully to what the Senate Majority Leader had to say about the payment of hardship allowances to teachers. I would like to implore that when the matter finally gets to the Committee to look at the matter beyond the teachers or Kilifi County.

The national Government posts staff to different parts of the country. Different institutions of government apply different levels of criteria in determining which

Thank you, Mr. Speaker, Sir for saving us from Sen. (Dr.) Khalwale. The matter raised by teachers from Kilifi County is important and weighty. I have listened carefully to what the Senate Majority Leader had to say about the payment of hardship allowances to teachers. I would like to implore that when the matter finally gets to the Committee to look at the matter beyond the teachers or Kilifi County.

The national Government posts staff to different parts of the country. Different institutions of government apply different levels of criteria in determining which

Proceed, Sen. Methu.

Thank you, Mr. Speaker, Sir for giving me the opportunity to comment on this Petition. I would be betraying the teachers from Kilifi County if I choose to keep quiet. I have been a resident of the county so I know the areas that have been mentioned in that Petition.

My colleagues have spoken about the injustices that are meted on different civil servants on issues of hardship allowance. Sen. (Dr.) Khalwale and Sen. Cheruiyot have spoken on issues to do with marginalization and equalization; there is something that has come out clearly and needs to be addressed. I wish and pray that the committee will increase the scope of duty so that it tries and addresses most of the issues being raised by Members here.

I know in a short while the teachers from Nyandarua County shall also bring a Petition asking very legitimate questions. A Senator has given an example of two schools in the same ward where one teacher is receiving hardship allowance while the other was not. There is a secondary school in Ndaragwa, which was established from a primary school. They share the same land, title deed and fence. However, the teachers from the secondary school qualify for hardship allowance while the primary school teachers do not. If that is not the kind of injustice we want to cure with this Petition, I do not understand how it shall be addressed.

On classification of schools, some schools find themselves geographically in one area, while the Ministry of Education zoning shows they are in a different area. For example, everybody knows that Nyahururu Boys high school is in Nyahururu. However, it is geographically in Laikipia County. However, the school is in Nyandarua County

Thank you, Mr. Speaker, Sir for giving me the opportunity to comment on this Petition. I would be betraying the teachers from Kilifi County if I choose to keep quiet. I have been a resident of the county so I know the areas that have been mentioned in that Petition.

My colleagues have spoken about the injustices that are meted on different civil servants on issues of hardship allowance. Sen. (Dr.) Khalwale and Sen. Cheruiyot have spoken on issues to do with marginalization and equalization; there is something that has come out clearly and needs to be addressed. I wish and pray that the committee will increase the scope of duty so that it tries and addresses most of the issues being raised by Members here.

I know in a short while the teachers from Nyandarua County shall also bring a Petition asking very legitimate questions. A Senator has given an example of two schools in the same ward where one teacher is receiving hardship allowance while the other was not. There is a secondary school in Ndaragwa, which was established from a primary school. They share the same land, title deed and fence. However, the teachers from the secondary school qualify for hardship allowance while the primary school teachers do not. If that is not the kind of injustice we want to cure with this Petition, I do not understand how it shall be addressed.

On classification of schools, some schools find themselves geographically in one area, while the Ministry of Education zoning shows they are in a different area. For example, everybody knows that Nyahururu Boys high school is in Nyahururu. However, it is geographically in Laikipia County. However, the school is in Nyandarua County

Hon. Senators, I am afraid we have expended the 30 minutes allowable under Standing Order No. 237. Therefore, pursuant to Standing Order No. 238 (1) the Petition should be committed to the relevant standing Committee for its consideration.

In this case, I direct that the same be committed to the Standing Committee on Education. In terms of Standing Order No. 238 (2) , the committee is required in not more than 60 calendar days, from the time of reading this prayer, to respond to the petitioner by way of a report addressed to the petitioner and laid on the table of the

Next order.

Hon. Senators, I am afraid we have expended the 30 minutes allowable under Standing Order No. 237. Therefore, pursuant to Standing Order No. 238 (1) the Petition should be committed to the relevant standing Committee for its consideration.

In this case, I direct that the same be committed to the Standing Committee on Education. In terms of Standing Order No. 238 (2) , the committee is required in not more than 60 calendar days, from the time of reading this prayer, to respond to the petitioner by way of a report addressed to the petitioner and laid on the table of the

Next order.

Mr. Speaker, Sir, I beg to lay the following paper on the table of the Senate today 27th July, 2023 -

Report of the Standing Committee on Finance and Budget on the county governments equitable share cash disbursement schedule for

Financial Year 2023/2024.

Next order.

Next order.

Sen. Ali Roba, please proceed.

Sen. Ali Roba, please proceed.

Next order.

Next order.

Sen. Ogola, please proceed.

Sen. Ogola, please proceed.

Sen. Methu, please proceed to read the Statement on behalf of Sen. Kinyua. Next time be alert.

Sen. Methu, please proceed to read the Statement on behalf of Sen. Kinyua. Next time be alert.

Sen. Madzayo, proceed.

Sen. Madzayo, proceed.

On a point of order, Mr. Speaker, Sir.

Sen. Mandago, what is your point of Order?

Sen. Mandago, what is your point of Order?

Sen. Mandago, that is not a point of order. This is a Statement. It will be up to the Committee to come to that conclusion on whether, indeed, that Statement is factual or in error. Let the Committee investigate and return a verdict. They might go by your conclusion or not. Allow the Senator to read the Statement.

Thank you, Mr. Speaker, Sir. Let me complete.

Sen. Wambua, you have read the Statement.

Mr. Speaker, Sir, I sought permission to say a word.

Sen. Wambua, the permission has been denied. Thank you. You are a seasoned Member of this House. Kindly take your seat. You cannot debate your own Statement.

Sen. Omogeni, I will allow limited comments on all these Statements for 18 minutes; nine minutes to the Opposition and nine minutes to the Government side.

Sen. Sifuna, proceed.

Mr. Speaker, Sir, we get a bit concerned with the references of ‘Opposition’ and ‘Government.’ As a leader of this House, you are aware that I drive in a Government of Kenya (GK) vehicle.

Order, Senators! I did not know that Sen. Sifuna is in Government. That is good. Therefore, from today henceforth the left side of the Chair shall be referred as Minority Side and the right side of the Chair will be referred as the Majority Side.

In order to allow as many of you to speak within the nine minutes, I will allow two minutes per speaker.

Thank you, Mr. Speaker, Sir. I wish to react to the Statement by the Senate Minority Leader. I agree with the Government that sometimes it is necessary to withdraw the police, especially from people who are doing illegal demonstrations. How can you send a police officer to fight another?

This is why we have had allegations where bullets have been used by the same bodyguards guarding leaders in the Minority to shoot ordinary Kenyans. This is why one police officer has been killed and over 300 police officers are recuperating in hospital. Chiefs’ houses have been burned in Siaya and Nyamira counties. How can you allow people to use their bodyguards to fight their colleagues?

They are alleging police brutality and it is shocking that when our security detail was being withdrawn by Uhuru Kenyatta and Raila Odinga then, they used to celebrate. There is nothing unusual for Government to get signal and remove your bodyguards. I remember we went to court to challenge, but they told us that the Inspector General ---

What is your point of order, Sen. Oketch Gicheru?

Mr. Speaker, Sir, I rise pursuant to Standing Order No.105. I wanted to know whether my good friend, Sen. Cherarkey – although sometimes emotive – is in order to point at me and say that during the time of President Uhuru Kenyatta or whoever was in the Government denied some people security, I was happy. I was not in this House. Is he in order to point at me and impute improper motive on me?

Sen. Cherarkey, you are out or order. The Senator certainly did not contribute to whatever you went through.

Do not refer to the statement that Sen. Oketch Gicheru referred to regarding withdrawal of security then. I believe that was in the Third Senate. Sen. Cherarkey, is that what you are referring to?

Yes.

Sen. Oketch Gicheru was not in the House. He was not even a political leader then. So, there is no way he could have had influence to warrant that. Kindly do not drug Sen. Oketch Gicheru into that.

Mr. Speaker, Sir, I am aware Sen. Oketch Gicheru was thrashed at that time by the current Governor of Migori then, Sen. (Dr.) Ochillo-Ayacko. Sen. Oketch Gicheru did not make it at that time. However, I have not mentioned names. The HANSARD can bear me witness.

Finally, you cannot say that the Government of the day is illegitimate when you want the same Government to provide security for you. We will not allow that. You cannot talk about police brutality and fail to recognize that the police have been killed and injured.

Therefore, Mr. Speaker, Sir, I oppose this Statement.

Proceed, Sen. Sifuna.

Mr. Speaker, Sir, from my perspective of the doctrine of separation of powers, we have a Constitution that created three Arms of Government.

In my understanding of this particular doctrine, there is no Arm of Government that is superior to the other. In fact, all of us in this House are Members of the

Mr. Speaker, Sir, from my perspective of the doctrine of separation of powers, we have a Constitution that created three Arms of Government.

In my understanding of this particular doctrine, there is no Arm of Government that is superior to the other. In fact, all of us in this House are Members of the

Government of Kenya because of the fact that we are Members of an Arm of Government.

You must always make the distinction in your head between the Government and the political parties in power. There is a big difference between the Orange Democratic Movement (ODM) as a political party and the minority leadership or the minority in Parliament.

I have always asked myself: how did it start that people elected to an Arm of Government such as Parliament required to be provided with the state security? In fact, if you pursue that line of reasoning and tie it with what I have said about the Arms of Government being separate, but interdependent, I would propose that just the way Parliament has its own assets, like the vehicle I have been provided for us a leader in this House, we need to have our own police force that does not take direction from anybody other than the leadership of Parliament.

Mr. Speaker, Sir, the heckling that I experience from the Majority side is what boils my blood sometimes, then I find myself in hot soup from where you sit.

Calm down, Sen. Sifuna.

Calm down, Sen. Sifuna.

Proceed, Sen. Tabitha Keroche.

Thank you, Mr. Speaker, Sir, for giving me this opportunity. I support what Senators of the Minority side are saying. I can imagine how they are feeling without their security. However, they know the solution.

We have a Cabinet Secretary for Interior and National Administration, who is understanding. They just need to go and apologise for the hard and unnecessary work they have made him to do for the past one month.

The business community is also complaining about what they have gone through because they have incurred losses. I am sure you have seen press conferences they have been calling. They are losing Kshs2.8 billion every day because of unpeaceful demonstrations. Some of them are lawyers.

The Senate Minority Leader (Sen. Madzayo) : On a point of order!

What is your point of order, Sen. Madzayo?

The Senate Minority Leader (Sen. Madzayo):

An

Order, Senators. May the Senator for Kilifi be heard in silence, please? I do not see anything funny about that statement.

The Senate Minority Leader (Sen. Madzayo) : Bw. Spika, je, ni sawa kusema kwamba kwa sababu ya yale yaliyojiri nje ya Bunge wala si hapa kwa sababu kazi ya Bunge ni tofauti--- Tukiwa hapa, tunafanya kazi ya Bunge.

Je, ni sawa mtu kuambiwa---

Sen. Madzayo, I have been attentive. Just--- The Senate Minority Leader (Sen. Madzayo) : Amesema twende tuombe msamaha.

An

Bw. Spika, natumia Kipengele

Najua. Naomba unipe nafasi

Sen. Madzayo, I asked you to state the Standing Order upon which you are raising your point of order and you have said Standing Order No.1. Standing Order No.1 is not available to you.

Sen. Tabitha Keroche, proceed, to conclude your statement. Senator for Kilifi, please take your seat.

What is your point of order, Sen. Oketch Gicheru?

Bw. Spika, je, ni sawa kusema kwamba kwa sababu ya yale yaliyojiri nje ya Bunge wala si hapa kwa sababu kazi ya Bunge ni tofauti--- Tukiwa hapa, tunafanya kazi ya Bunge. Je, ni sawa mtu kuambiwa---

Sen. Madzayo, I have been attentive. Just--- The Senate Minority Leader (

Amesema twende tuombe msamaha.

Under what Standing Order is your point of order premised? The Senate Minority Leader (

Mr. Speaker, Sir, I will take less than a minute to respond to the Senator for Migori, Sen. Oketch Gicheru. He knows well that we have one elected President and his helpers are Cabinet Secretaries. So, the Cabinet Secretary for Interior and National Administration acts on behalf of the Government of Kenya.

Hon. Senator, just gather yourself. Please, take your seat. You know that Standing Order is not available to you. The Senate Minority Leader (

Mr. Speaker, Sir, this is an extremely serious matter. When you tell us to give a contribution of this nature for two minutes, then you are not doing justice to this House.

I remind you of the Gazette Notice of 27th July, 2022. The privileges of security that attaches to the Offices of the Speaker, the Senate Majority Leader, the Senate Majority Whip and the leadership of the Minority side is all worded in the same paragraph. They are all together.

Mr. Speaker, Sir, if you read the HANSARD of 28th April, 2021, then you may benefit from the contributions of the Senate Majority Leader. I hope you are listening, Senator.

In his contribution at that time, Sen. Cheruiyot moved this House to adjourn and discuss violations of the rights of three Senators, who were arrested to be stopped from participating effectively in the deliberations and works of this Parliament.

Mr. Speaker, Sir, I sit here at times and listen to us, as we take business of this House as a rollercoaster, where we give it twists and turns. There are issues that touch on the welfare of Members that should be separated from the politics of the day.

As you sit there, I remind you that your predecessor, Speaker Marende, had his security withdrawn. He used to sit as a Speaker of this House. We have ---

Sen. Madzayo, I asked you to state the Standing Order upon which you are raising your point of order and you have said Standing Order No.1. Standing Order No.1 is not available to you.

Sen. Tabitha Keroche, proceed, to conclude your statement. Senator for Kilifi, please take your seat.

What is your point of order, Sen. Oketch Gicheru?

Bw. Spika, si vizuri kunyang’anywa mlinzi lakini ningependa kukumbusha Seneti hii kwamba kulikwa na maandamano Tarehe 7, Julai,

My point of order is that the Senator has argued that for us to get our security back, I want to talk about myself because my security was withdrawn as a Member of Azimio la Umoja-One Kenya Coalition Party, I must go and apologize to the Cabinet Secretary for Interior and National Administration in order to get my security back.

My security is not a function of the Cabinet Secretary for Interior and National Administration. It is a right in the Constitution.

Sen. Oketch Gicheru, that is her opinion. As you are aware, this matter is going to be committed to a committee. I therefore overrule that order.

Sen. Tabitha Keroche, proceed to conclude your statement.

the Executive to be extending and withdrawing our security at its own will. I urge the House that we think about the Institution.

Proceed, Sen. Omogeni.

Mr. Speaker, Sir, this is an extremely serious matter. When you tell us to give a contribution of this nature for two minutes, then you are not doing justice to this House.

I remind you of the Gazette Notice of 27th July, 2022. The privileges of security that attaches to the Offices of the Speaker, the Senate Majority Leader, the Senate Majority Whip and the leadership of the Minority side is all worded in the same paragraph. They are all together.

Mr. Speaker, Sir, if you read the HANSARD of 28th April, 2021, then you may benefit from the contributions of the Senate Majority Leader. I hope you are listening, Senator.

In his contribution at that time, Sen. Cheruiyot moved this House to adjourn and discuss violations of the rights of three Senators, who were arrested to be stopped from participating effectively in the deliberations and works of this Parliament.

Mr. Speaker, Sir, I sit here at times and listen to us, as we take business of this House as a rollercoaster, where we give it twists and turns. There are issues that touch on the welfare of Members that should be separated from the politics of the day.

As you sit there, I remind you that your predecessor, Speaker Marende, had his security withdrawn. He used to sit as a Speaker of this House. We have ---

Haki zetu zinakuja na majukumu. Tuwe tayari kujukumika katika kila haki ambayo tumeitisha katika hii Taifa.

Nimesikia kwa muda mrefu, upande wa Walio Wachache wakililia haki. Tutambue ya kwamba, pale ambapo haki yako inakoma ndipo haki ya mwingine inaanzia. Kuna Wakenya watulivu ambao hawakutaka kuhusishwa na maandamano. Hata huyu mlinzi ambaye unasema umenyimwa na ni haki yako, pia ana haki ya kuchungwa katika Taifa la Kenya.

Asante Bw. Spika.

Bw. Spika, si vizuri kunyang’anywa mlinzi lakini ningependa kukumbusha Seneti hii kwamba kulikwa na maandamano Tarehe 7, Julai,

Proceed, Sen. M. Kajwang’.

Sen. Cheptumo, you may have the Floor.

the Executive to be extending and withdrawing our security at its own will. I urge the House that we think about the Institution.

Proceed, Sen. Miraj.

Bw. Spika, asante kwa kunipa fursa hii ili niweze kutoa kauli yangu. Kile ambacho nataka kusema ni kwamba, hao walinzi hawakuondolewa kwenu kinyume na sheria kwa sababu maandamano yalikuwa tayari yameharamishwa na taasisi husika la Taifa la Kenya.

Hakuna Mkenya pahali popote ambaye hakupata ilani ya kuwa, maandamano yalikuwa yameharamishwa. Ni jukumu la Serikali kulinda wananchi pamaoja na mali ya raia wa Kenya. Ni jukumu la Inspector General (IG) wa Taifa la Kenya, kuhakikisha usalama.

Hata ikiwa hao walinzi wenu wanawachunga nyinyi, wao pia wako na haki za Kikatiba ambazo zinastahili kulindwa. Mlinzi wao ndiye aliyewaambia wao wasije kuwalinda.

Kwa hivyo, ningependa kusema kitu kimoja kama Mkenya. Tusiombe tupewe haki ambazo hatutaki kuchukulia majukumu. Our rights come with responsibilities.

Sen. Miraj, you are out of order.

Haki zetu zinakuja na majukumu. Tuwe tayari kujukumika katika kila haki ambayo tumeitisha katika hii Taifa.

Nimesikia kwa muda mrefu, upande wa Walio Wachache wakililia haki. Tutambue ya kwamba, pale ambapo haki yako inakoma ndipo haki ya mwingine inaanzia. Kuna Wakenya watulivu ambao hawakutaka kuhusishwa na maandamano. Hata huyu mlinzi ambaye unasema umenyimwa na ni haki yako, pia ana haki ya kuchungwa katika Taifa la Kenya.

Asante Bw. Spika.

Thank you, Mr. Speaker, Sir, for giving me this opportunity to contribute. It is sad that we can have hon. Senators cheering and giggling about the violation of the Constitution.

It is absolutely important that the relevant Committee and the Parliamentary Service Commission (PSC) informs Senators whether the privilege of having security as state offices is a privilege that is political. The National Police Service (NPS) is supposed to be neutral and provided to state officers, whether they belong to this or the other political divide. Its weaponization is going to put us in a very bad place.

Mr. Speaker, Sir, I call on all of us to observe what is happening in other countries. Today in Sudan, the police are not in charge. Therefore, do not weaponize and politicize the National Police Service. The police must be reminded to do what they are supposed to do.

It is deplorable to have hon. Members seriously misrepresent what the Constitution provides as though we have ousted the Constitution.

Mr. Speaker, Sir, I call upon all of us to be the adults we are supposed to be. We have students in the Gallery. We cannot have a deliberate misinterpretation of the law to suit yourselves. We need to decide whether the police are withdrawn for all politicians or retained for all of them.

Mr. Speaker, Sir, it is a privilege for all senators to have their security. It is very sad that our Members who are representatives of the people, some of them elected, can stand on the Floor of the House and celebrate when their leaders are saying that the police did a good job by killing people.

It is very sad.

Thank you, Mr. Speaker, Sir, for giving me a chance to add my voice.

The Constitution should not be applied selectively. Article 37 that is being quoted by the Minority side talks about the freedom to demonstrate. However, that particular provision does not take away the rights of other Kenyans to also be protected. We are not celebrating the removal of bodyguards for our colleagues but there must be a reason behind this. There must have been an intelligent report as to why the Government took that decision.

The same principle my colleague was saying of separation of powers, is the function of the State to guarantee security to every Kenyan. The decision to withdraw the security from our colleague was done based on what the Executive thought was improper because security for other people was also at stake.

Mr. Speaker, Sir, I agree that this country belongs to all of us. It is not fair for the Minority side to accuse the Government side, yet what they term as peaceful demonstrations is the complete opposite. It is killing, maiming and destroying. Let us all be fair to ourselves.

If leaders from the Minority side were to speak of peaceful demonstrations---

Sen. (Dr.) Oburu, you may have the Floor.

Thank you, Mr. Speaker, Sir. I am surprised and shocked at my brothers speaking about use of guns. It is very clear how the police should use the gun. The gun for the police is to protect the property and life of mwananchi. It can only be used against mwananchi if they are a threat to the police.

This is a situation where people who have no arms and are demonstrating with their hands and exercising their democratic rights are shot by the police.

My brothers across the Floor---

Thank you, Mr. Speaker, Sir. I take this opportunity to recognize the presence of pupils from Olkiramatian Primary School, which is in Magadi Ward, Kajiado West Sub County.

I congratulate and welcome them to the Senate. Your Senator is Lenku Kanar Seki for those who are not aware. This is the Senate Chamber. I have two of our

Mr. Speaker, Sir, I rise under Standing Order No. 98, 105 and 101 of the Senate Standing Orders.

Is it in order for my big brother and senior youth, Sen. (Dr.) Oburu to allege that the police have been shooting people who are not armed yet we have seen even in media and other outlets that people are throwing stones and rocks and even shooting at the police? That is why one police is dead and 370 police officers are admitted in hospitals as we speak.

Is it in order to state something that is not true? I wish he would have even used the word ‘allegedly’ instead of using it with finality.

Mr. Speaker, Sir, those are the issues that will be investigated by the Committee. I am sure it will come to the same conclusion as I have.

Hon. Cherargei, when your security was withdrawn, you cried. Two wrongs do not make a right. The fact that yours was withdrawn does not make it right to now withdraw the security of others.

Order, Sen. Cherargei. May the good Senator be heard in silence, please.

Mr. Speaker, Sir, it is a privilege for all senators to have their security. It is very sad that our Members who are representatives of the people, some of them elected, can stand on the Floor of the House and celebrate when their leaders are saying that the police did a good job by killing people.

It is very sad.

Order, hon. Senators. Sen. Cherargei, can the hon. Senator be allowed to conclude his comments please.

Hon Senators, before we move to the Statements pursuant to Standing Order No. 56 (1) , I have the following Communication to make.

Thank you, Mr. Speaker, Sir. I take this opportunity to recognize the presence of pupils from Olkiramatian Primary School, which is in Magadi Ward, Kajiado West Sub County.

I congratulate and welcome them to the Senate. Your Senator is Lenku Kanar Seki for those who are not aware. This is the Senate Chamber. I have two of our

Thank you, Hon. Senator, for that Report.

In keeping with the tradition that we have always set, I will allow Sen. Wakili Sigei to welcome the delegation from Bomet.

Hon. Senators, I have a Communication to make.

Hon. Senators, in the Public Gallery, we have 105 students accompanied by three teachers, from Alsuhaim Girls’ High School –Kajiado County who are in the Senate on an educational tour.

Hon. Senators, in our usual tradition of receiving and welcoming visitors to Parliament, I extend a warm welcome to them and, on my own behalf and on behalf of the Senate, I wish them a fruitful visit.

I will ask Sen. Mumma and Sen. Tabitha Mutinda to welcome them.

Thank you, Madam Temporary Speaker. You may not be able to see them. They look so beautiful.

Yes! You can now see them. I wish to welcome the students from Kajiado to this House. I wish to encourage you as girls that this is a House where women participate on an equal basis. Women form nearly 30 per cent of the Senate. I wish to encourage our students from Kajiado---

I know Kajiado is one of the counties that is still considered marginalised but one of the fastest-growing counties. Therefore, consider yourselves privileged and know that you have a good Senator, Sen Seki. You also have Sen. Tobiko who is here taking good care of the issues of Kajiado County. As you listen, have your dreams as high as you can. I know some of you will one day come and serve in this House. I want to encourage you to aim high, dream big and do your very best to get what you want, including the Senate.

Thank you. Karibuni sana.

Mr. Speaker, Sir, I rise pursuant to Standing Order No. 56 (1) (b) of the Senate Standing Orders to make a Statement relating to the activities of the Standing Committee on Justice, Legal Affairs and Human Rights for the months of April to June, 2023.

During the period under reference, the Committee had 25 Sittings, at which it considered various legislative Proposals, Bills, Statements and held stakeholder engagements as set out below.

Mr. Speaker, Sir, the Committee conducted pre-publication scrutiny of four legislative proposals which were referred to the Committee pursuant to Standing Order No. 130(3)(a) of the Senate Standing Orders.

Madam Temporary Speaker, on Statements, the Committee considered three Statements during the reporting period.

These are -

Thank you, Hon. Senator, for that Report.

Hon. Senators, I have a Communication to make.

Hon. Senators, in the Public Gallery, we have 105 students accompanied by three teachers, from Alsuhaim Girls’ High School –Kajiado County who are in the Senate on an educational tour.

Hon. Senators, in our usual tradition of receiving and welcoming visitors to Parliament, I extend a warm welcome to them and, on my own behalf and on behalf of the Senate, I wish them a fruitful visit.

I will ask Sen. Mumma and Sen. Tabitha Mutinda to welcome them.

This comes at the hindsight of many issues being raised considering constitutional matters and the place of Opposition in this country. We want to move the Opposition from streets to come and do their job.

The second and final observation is on the issue of review of election laws. You are aware the Selection Panel of the Independent Electoral and Boundaries Commission (IEBC) is ongoing. Your Committee met the IEBC and you and the Chair were prominently there. I did not hear the update on the review and ensuring that the election laws can be discussed.

I am happy Sen. Wafula noted the payment of service providers. I wish the Committee went further because I still have some matatu owners and other people who ferried election materials and they are yet to be paid. I wish the Committee would table the pending bills by IEBC, including legal fees. As we speak, Senior Counsel (SC) and Commissioner, Sen. Omogeni - I am happy he is around today – there are still challenges of pending bills such as legal fees and many Kenyans who used matatus to travel.

Second is on the aspect of the future of election laws. Third is on the Selection Panel of IEBC. What is their fate? This clamour that we are seeing, the exchange and difference in ideas, is on the ongoing selection panel of IEBC. The Chair of the Committee could note those concerns and maybe in the next quarter include those aspects.

Finally, I welcome the beautiful girls and wish them well as they go back. Kindly, you have noted the Senators who have welcomed you. Take a picture with them and they will ensure you get mkate as you go back home.

Thank you.

Thank you, Sen. Cherargei. We were on Statements. Let us have the Chairperson of the Committee on Labour and Social Welfare, Sen. Murgor.

Thank you, Madam Temporary Speaker. Standing Order No.56 (1)

Sen. Orwoba, do you have a Statement?

Imekataa. The Temporary Deputy Speaker (

Clerk, can you assist?

Madam Temporary Speaker, I also wish to join my two colleagues to welcome Kajiado girls. My advice to you is that discipline is 50 per cent of success. Please, girls, stay disciplined in order to achieve 50 per cent of your success. The rest is your effort to your education and respect to your parents and teachers. Be disciplined, respectful and hardworking for you to achieve your goals.

Nothing comes on a silver platter; you have to work for everything. Everything has a price to pay and it all depends on the foundation you build for your life. If you build a good foundation, you will have a good life. If you build a bad foundation, it will be too bad. From the way you are dressed and the way you look, I believe you must be having a good foundation and you will succeed.

Karibuni sana. Thank you.

Proceed, Sen. Cherargei.

Madam Temporary Speaker, I want to comment on the Statement by your Committee on Standing Order No.56.

I thank Sen. Wakili Sigei. Yesterday the Senate Majority Leader raised a serious issue; that of tabling of statements by committees as being not just for the sake of it. You remember, whether you ruled or I was not there, the President had written to you and the National Assembly Speaker about creation of the Official Opposition office. I did not hear the Committee on Justice, Legal Affairs and Human Rights saying something about that. I thought that was a very critical and important issue that we should be dispensing of.

Madam Temporary Speaker, I have followed all processes in expressing my challenges or dissatisfaction on each and every matter that I have mentioned here to the extent that I have decided to now stand under Standing Order No.58 to give a Personal Statement.

Concerning impersonation in my office, I have taken proper steps. I have reported to the police and it is now a matter under investigation. I went through certain offices to get the intervention of even bringing down the board that had my name.

After I had written an official letter saying it was not my office, it still appeared to be a challenge for the relevant offices to act and bring down the board that had my name on it. I wanted to take charge of the situation and that is why I went to the police station.

Madam Temporary Speaker, I would also like to speak about two other incidents very quickly. Aside from the passport issue, where the relevant office did not submit my

Thank you, Sen. Cherargei. We were on Statements. Let us have the Chairperson of the Committee on Labour and Social Welfare, Sen. Murgor.

Sen. Orwoba, I believe that your Personal Statement is now on HANSARD and will be acted upon by the relevant offices in the Senate, the Speaker’s Office, and the Clerk’s Office.

I see there is one request on that, but under the Standing Order No.58, it cannot be debated.

I will call upon the Next Order. The Senate Majority Leader to come and give his Statement

Sen. Orwoba, do you have a Statement?

Madam Temporary Speaker, I rise pursuant to Standing Order No.58 to make a Personal Statement on my participation in the United Nations 53rd Human Rights Council Session on Menstrual Health and Gender Discrimination. If you allow me, I think I have 15 minutes.

On 14th May, 2023, I was invited to participate in the United Nations 53rd Human Rights Council Session in Geneva. This was based on all the work I have been doing in terms of period poverty campaign.

As our protocol in Parliament, I submitted my documentation such as the passport. I wrote a letter asking for facilitation of the same by the Parliament. However, I was informed that it was impossible to be facilitated due to certain reasons.

I went back to the people who had invited me and told them that Parliament could not facilitate certain logistical issues. They agreed to pay for the trip and facilitate everything because they wanted me as a panellist in that particular event.

I submitted my passport and after three and half months, that was in May - the Conference was supposed to start on 6th July - I started following up on my visa with the relevant offices and I was informed that the issue was being handled by the Embassy and everything was ongoing. Since I had confidence in the systems put in place, I became patient.

On the day before I travelled, I was still following up on my visa issue. I was informed that the visa had not been given. It was unfortunate to find out the night before I travelled that my passport had not been submitted to the Embassy. This is on record from both parties and it got me thinking.

Following up with the relevant offices, I found out that my passport had not been submitted and no application had been made. Because of that, I was unable to travel to go and carry out my legislative and advocacy agenda.

Madam Temporary Speaker, that made me to start reflecting on many incidences that have been happening to me in Parliament. As new legislators, sometimes we do not understand how things work. I have been letting go many challenges, acknowledging the fact that I am a new legislator and perhaps sometimes I do not understand how things work.

After that particular event, I had a self-reflecting moment and took an account of all the incidences where I have faced serious challenges in terms of my work as a legislator and representative of the people.

Madam Temporary Speaker, as you are aware, I have five Bills, one of them being the Konza Technopolis Bill. I experienced serious challenges with relevant departments processing the Bill so that it comes to fruition.

I started reflecting on what it meant. Is it an issue of me not understanding how things work or are there clear deliberations of subverting my legislative agenda and other things?

This is in the public domain. Recently there were issues to do with my office. I had been allocated an office without my consent and the same premises was being run. I followed proper channels to report the incident. I followed all the advice I had been given but it took serious interventions for something to be done. They said that someone was running an office and impersonating me, claiming that is my office.

I must acknowledge the challenge we have for non-appearance of a number of Cabinet Secretaries. I pointed out yesterday that the House was terribly disappointed by the two Cabinet Secretaries for Health and Foreign and Diaspora Affairs for their late request for permission not to appear before the Senate.

We commended the Cabinet Secretary for Ministry of Labour and Social Protection; hon. Florence Bore for filing in proper time, her inability to appear before the House. We did not have a problem with her.

Madam Temporary Speaker, that confirms that as a House we are not malicious. We are just saying that they need to be diligent, file their response to this House and take its work seriously.

I hope that the Secretariat organized a letter to them in equal wording to the fury that was expressed by colleague Senators here.

The Senate Business Committee (SBC) on the other hand will deliberate on this matter in the next meeting and determine a way forward with these Cabinet Secretaries.

Finally, on 7th July, 2023, the Senate received the proposed County Government Equitable Share Disbursement Schedule from the National Treasury for the Financial Year 2023/2024.

This document was referred to the Standing Committee on Finance and Budget for consideration. We are expecting the Committee to shortly table its report on the matter after which the Senate, by way of Motion, debate and make a determination on the report of the Standing Committee pursuant to Standing Order No. 189(3).

Madam Temporary Speaker, that is a very important exercise. I will also mention that today, the President made an announcement to the entire country. I wish my good friend Sen. Oketch Gicheru to hear this. We told them that we were proposing Kshs385 billion because we felt the need to be truthful and sincere to ourselves in order for us to move from how things were done in the past where astronomical figures were set and were not able to be managed prudently.

For the very first time, since devolution happened in this country, county governments have received their Equitable Share that is due for the month of July, today. That has never happened.

Sen. Ali Roba who has been a governor for 10 years knows that, for a fact. Many times, county governments have to wait until September. However, to show our commitment to devolution and that we want our counties to be better managed, by this afternoon, all 47 county governments have received their Equitable Share for the month of July. We have been in this House for long and that has never happened. That is how to prudently show commitment to devolution. I wish that the governors will be prudent in the management of those resources.

I am happy that we have just crossed and concluded on the first financial year. In the next few days, we shall be waiting for the audit reports for all our 47 county governments for the just concluded financial year. Many times governors appear before us and tell us that some issues were done by previous administrations. There is no more room for excuses.

No, Madam Temporary Speaker. The nature of this Personal Statement is on the challenges I am experiencing as a legislator and I have been guided to steer clear of mentioning names, but just give my challenges and explain the story, which is what I am doing. It is permitted under Standing Order No.58.

I was only inquiring so that we see whether---

Have you ventilated in other platforms?

Madam Temporary Speaker, I have followed all processes in expressing my challenges or dissatisfaction on each and every matter that I have mentioned here to the extent that I have decided to now stand under Standing Order No.58 to give a Personal Statement.

Concerning impersonation in my office, I have taken proper steps. I have reported to the police and it is now a matter under investigation. I went through certain offices to get the intervention of even bringing down the board that had my name.

After I had written an official letter saying it was not my office, it still appeared to be a challenge for the relevant offices to act and bring down the board that had my name on it. I wanted to take charge of the situation and that is why I went to the police station.

Madam Temporary Speaker, I would also like to speak about two other incidents very quickly. Aside from the passport issue, where the relevant office did not submit my

Thank you, Madam Temporary Speaker. The Equalization Fund (Administration) Bill (Senate Bill No. 14 of 2023) was published on 12th April, 2023, and read for the First Time in the Senate in the sitting held on Thursday 14th May, 2023.

Thereafter, pursuant to Standing Order No. 145 of the Senate Standing Orders, the Bill was committed to the Standing Committee of Finance and Budget for consideration. The Bill proposes to establish administrative structures for the management of the Equalization Fund to ensure effective and efficient implementation and utilization of the Fund.

Equalization Fund is established under Article 204 of the Constitution. It provides that the Fund may be used to provide services---

Hon. Senator, have you moved the Bill yet? You better proceed and move.

Thank you Madam Temporary Speaker. I rise pursuant to Standing Order No.57 (1) to present the business of the Senate for the week that commences Tuesday, 1st August, 2023.

The legislative business before the Senate includes a total of 22 Senate Bills and two National Assembly Bills. Out of these Bills, 17 are at the Second Reading stage while seven are at the Committee of the Whole stage. A further three Senate Bills are pending conclusion in the National Assembly.

As indicated in today's Order Paper, six Bills are scheduled for Division at the Second Reading and at the Committee of the Whole stage. They are listed at Order Nos.8, 9, 10, 11, 12, and 13.

I take this opportunity to urge all Senators to remain in the Chambers, for the Divisions to be undertaken; a cry that is coming albeit late, when the many of the Senators have stepped out or are in the lounge, but nonetheless, I will mention it.

I would like to inform the Senate that the leadership is engaging with the National Assembly’s Leadership on the critical matter of concurrence on Bills, as there are a number of outstanding issues to be resolved. Once a consensus is reached the process of concurrence will be streamlined.

It is also envisaged that discussions will give rise to fast tracking of Senate Bills pending at the National Assembly.

Twenty-three Motions are pending conclusion before the Senate and accordingly scheduled by the Senate Business Committee (SBC) , in the program of the Senate business for each week.

I urge the respective Movers of the Motions to be available in the Senate when the Motions are listed in the Order Paper.

The Senate has so far received 31 Petitions. Of these, only three have been reported upon by the respective Standing Committees. Of the 28 Petitions that are pending conclusion, 16 are due for reporting pursuant to Standing Order No.238 (2) . That is simply to say they are already out of time and those committees need to have reported on that business.

I take this opportunity to commend the Senate Standing Committee on Labor and Social Welfare and the Standing Committee on Justice and Legal Affairs and Hhuman Rights for considering and submitting reports on the three Petitions reference above.

I see Sen. Wakili Sigei, the Chairperson of the Senate Standing Committee on Justice, Legal Affairs and Human Rights in the House. Sen. Murgor was in just a few minutes ago. I celebrate their dedication and diligence in concluding, together with the committees that they lead and the Members of their committees.

The committees that are here to report on the Petitions and are due include first, the Senate Standing Committee on Aagriculture; Sen. (Dr.) Murango and your team.

Second is the Senate Standing Committee on Devolution; Senator Abass, with your colleagues, you have two pending petitions that are due and already out of time.

Madam Temporary Speaker, the Equalization Fund (Administration) Bill (Senate Bill No. 14 of 2023) was published on the 12th April 2023, and read for the First Time in the Senate in the sitting held on Thursday 14th May, 2023.

Thereafter, pursuant to Standing Order No. 145 of the Senate Standing Orders, the Bill was committed to the Standing Committee of Finance and Budget for consideration. The Bill proposes to establish administrative structures for the efficient management and utilization of the fund.

Equalization Fund is established under Article 204 of the Constitution of Kenya. It provides for improvement of basic services such as water, roads, electricity and health services to counties that were considered marginalized.

I have heard quite a bit of discussions in the House where marginalization was equated to poverty and vice versa. It is worthwhile to create an understanding that marginalization is not equal to poverty and vice versa. Marginalization is a state of under- development and poverty arising from deliberate resource denial by successive Governments starting from the colonial administration to date.

The drafters of the Constitution envisaged the Equalization Fund to address this and bring these areas that are gravely underdeveloped to enjoy a level of services enjoyed by the rest of the country.

Initially, to operationalise the Equalisation Fund, in 2015, the National Treasury had developed guidelines for management and administration of equalisation fund. It is worth noting that the High Court in the case Petition No. 272 of 2016 declared these guidelines on administration of equalisation fund unconstitutional hence null and void. This was on the basis that the 2015 guidelines negated the responsibility of the county government to have a role in management of the equalisation fund.

Madam Temporary Speaker, thereafter, this House passed a new Equalisation Fund Administration Regulation in 2021. The current Bill seeks to give effect to those regulations in order to make sure that the administration of the Equalisation Fund is anchored in substantive law. The Equalisation Fund

mirrors the existing Public Finance Management

(PFM)

Equalisation Fund Administration Regulation 2021 and seeks to ensure administration of the Fund is anchored in an Act of Parliament rather than the PFM Regulation.

The Bill proposes establishment of Equalisation Fund Advisory Board comprising of –

I must acknowledge the challenge we have for non-appearance of a number of Cabinet Secretaries. I pointed out yesterday that the House was terribly disappointed by the two Cabinet Secretaries for Health and Foreign and Diaspora Affairs for their late request for permission not to appear before the Senate.

We commended the Cabinet Secretary for Ministry of Labour and Social Protection; hon. Florence Bore for filing in proper time, her inability to appear before the House. We did not have a problem with her.

Madam Temporary Speaker, that confirms that as a House we are not malicious. We are just saying that they need to be diligent, file their response to this House and take its work seriously.

I hope that the Secretariat organized a letter to them in equal wording to the fury that was expressed by colleague Senators here.

The Senate Business Committee (SBC) on the other hand will deliberate on this matter in the next meeting and determine a way forward with these Cabinet Secretaries.

Finally, on 7th July, 2023, the Senate received the proposed County Government Equitable Share Disbursement Schedule from the National Treasury for the Financial Year 2023/2024.

This document was referred to the Standing Committee on Finance and Budget for consideration. We are expecting the Committee to shortly table its report on the matter after which the Senate, by way of Motion, debate and make a determination on the report of the Standing Committee pursuant to Standing Order No. 189(3).

Madam Temporary Speaker, that is a very important exercise. I will also mention that today, the President made an announcement to the entire country. I wish my good friend Sen. Oketch Gicheru to hear this. We told them that we were proposing Kshs385 billion because we felt the need to be truthful and sincere to ourselves in order for us to move from how things were done in the past where astronomical figures were set and were not able to be managed prudently.

For the very first time, since devolution happened in this country, county governments have received their Equitable Share that is due for the month of July, today. That has never happened.

Sen. Ali Roba who has been a governor for 10 years knows that, for a fact. Many times, county governments have to wait until September. However, to show our commitment to devolution and that we want our counties to be better managed, by this afternoon, all 47 county governments have received their Equitable Share for the month of July. We have been in this House for long and that has never happened. That is how to prudently show commitment to devolution. I wish that the governors will be prudent in the management of those resources.

I am happy that we have just crossed and concluded on the first financial year. In the next few days, we shall be waiting for the audit reports for all our 47 county governments for the just concluded financial year. Many times governors appear before us and tell us that some issues were done by previous administrations. There is no more room for excuses.

Sen. Oketch Gicheru, you will be able to ask our good friend, Gov. Ochillo- Ayacko, to give an account of the resources we devolved to Migori County in the last financial year.

We shall take good time to study his use of resources and whether they have been prudent; how much money went to development and recurrent expenditures. Did it benefit the people that you represent in this House? That audit report shall be in this House by next month or early September at the very least.

I hope Members can take time to read and put governors to task so that devolution can succeed in this country.

With those very many remarks, I support and lay the Statement on the Table of the Senate.

I thank you.

Thank you, Sen. Cheruiyot for the well-stated Statement.

We now proceed to the next Order. I want to reorganize the Order Paper under Standing Order No. 45. I request the Clerk to call out Order No. 15.

I did not see any Senators interested in reacting to the Statement. That is why we are moving to Order No. 15

Thank you, Madam Temporary Speaker. The Equalization Fund (Administration) Bill (Senate Bill No. 14 of 2023) was published on 12th April, 2023, and read for the First Time in the Senate in the sitting held on Thursday 14th May, 2023.

Thereafter, pursuant to Standing Order No. 145 of the Senate Standing Orders, the Bill was committed to the Standing Committee of Finance and Budget for consideration. The Bill proposes to establish administrative structures for the management of the Equalization Fund to ensure effective and efficient implementation and utilization of the Fund.

Equalization Fund is established under Article 204 of the Constitution. It provides that the Fund may be used to provide services---

From the year 2013 when I first spoke in this Senate up to the end of 2021 Parliamentary period, Sen. Okiya Omtatah was not in this House. Since I am not speaking of him in a derogatory manner, I do not have to move a Motion, I am acknowledging his good work. He was doing his good work outside Parliament. He waited until he came here and brought a lot of confusion. He has created a matter to be Sub Judice, to the extent that Government cannot collect taxes.

This is a matter which is clearly taken care of in Article 114. When the judges will read his complaints and then apply Article 114, his case will collapse. It is not an issue. Nonetheless, he is holding the whole country and making members of the public who are not suspecting, to go to the streets thinking there is a Bill before the courts that will help them to get what they want. Since this is Sub Judice, I will not go there.

Pardon. Madam Temporary Speaker, I beg to move that the Equalization Fund (Administration) Bill (Senate Bill No. 14 of 2023) be now read a Second Time.

Proceed.

Madam Temporary Speaker, the Equalization Fund (Administration) Bill (Senate Bill No. 14 of 2023) was published on the 12th April 2023, and read for the First Time in the Senate in the sitting held on Thursday 14th May, 2023.

Thereafter, pursuant to Standing Order No. 145 of the Senate Standing Orders, the Bill was committed to the Standing Committee of Finance and Budget for consideration. The Bill proposes to establish administrative structures for the efficient management and utilization of the fund.

Equalization Fund is established under Article 204 of the Constitution of Kenya. It provides for improvement of basic services such as water, roads, electricity and health services to counties that were considered marginalized.

I have heard quite a bit of discussions in the House where marginalization was equated to poverty and vice versa. It is worthwhile to create an understanding that marginalization is not equal to poverty and vice versa. Marginalization is a state of under- development and poverty arising from deliberate resource denial by successive Governments starting from the colonial administration to date.

The drafters of the Constitution envisaged the Equalization Fund to address this and bring these areas that are gravely underdeveloped to enjoy a level of services enjoyed by the rest of the country.

Initially, to operationalise the Equalisation Fund, in 2015, the National Treasury had developed guidelines for management and administration of equalisation fund. It is worth noting that the High Court in the case Petition No. 272 of 2016 declared these guidelines on administration of equalisation fund unconstitutional hence null and void. This was on the basis that the 2015 guidelines negated the responsibility of the county government to have a role in management of the equalisation fund.

Madam Temporary Speaker, thereafter, this House passed a new Equalisation Fund Administration Regulation in 2021. The current Bill seeks to give effect to those regulations in order to make sure that the administration of the Equalisation Fund is anchored in substantive law. The Equalisation Fund

mirrors the existing Public Finance Management

(PFM)

Equalisation Fund Administration Regulation 2021 and seeks to ensure administration of the Fund is anchored in an Act of Parliament rather than the PFM Regulation.

The Bill proposes establishment of Equalisation Fund Advisory Board comprising of –

Sen. Tabitha Mutinda, please proceed.

Madam Temporary Speaker, I rise to second the Equalisation Fund (Administration) Bill (Senate Bills No. 14 of 2023) . This is a very important Bill to this House because we have the Equalisation Fund. It is one thing to have the Fund and another to have structures for administration of the Fund.

As we know, the key mandate of the Equalisation Fund was on the four areas that have been mentioned; roads, water, electricity and health. Since I tabled the Equalisation Fund Bill last time, funds have already been rolled on the ground in the over 1,400 marginalised areas in the different 34 counties.

This Bill is going to give an opportunity for the different counties that are receiving the Equalisation Fund to have better structures. One of the key things coming out is the technical committees ranging from the county and sub-county technical committees as well as the Project Identification and Implementation Committee. It is important to note that these committees will play a key role in ensuring that projects are completed and not duplicated.

What is wrong with Sen. Cherarkey today?

Sen. Cherarkey, let him finish.

He is a man who stands in the highest regard of almost all Kenyans in this nation and has given you the priority of being in this House. Is the Senator in order?

From the year 2013 when I first spoke in this Senate up to the end of 2021 Parliamentary period, Sen. Okiya Omtatah was not in this House. Since I am not speaking of him in a derogatory manner, I do not have to move a Motion, I am acknowledging his good work. He was doing his good work outside Parliament. He waited until he came here and brought a lot of confusion. He has created a matter to be Sub Judice, to the extent that Government cannot collect taxes.

This is a matter which is clearly taken care of in Article 114. When the judges will read his complaints and then apply Article 114, his case will collapse. It is not an issue. Nonetheless, he is holding the whole country and making members of the public who are not suspecting, to go to the streets thinking there is a Bill before the courts that will help them to get what they want. Since this is Sub Judice, I will not go there.

days’ notice has been given, calling in question the conduct of that Senator or Member of the Assembly.”

Keep to the debate on the Bill before the House and contribute your views or opinions on that Bill.

Madam Temporary Speaker, I stand guided. I would like to guide the young Senator although they somehow get irritated when you tell them that they are new. You could still do it during your debate and then counter me. You do not have to come up on a point of order. You just take notes and when it is your time to speak, you counter me and shoot my ideas down.

However, as far as the guidance from the Chair is concerned, I agree and I find it very wrong for me to veer into the persona of another Senator. If the HANSARD is showing that, may I withdraw and apologise.

Having said that, it leaves me with only two points. I am supporting this Bill because the Bill wants to ensure that the administration of that fund is not abused. It should be done within the framework of law. However, as I do so, I am worried because in the memorandum of objects and reasons, we are told that these are services to be rendered in marginalized areas.

Under the Constitution of Kenya, marginalised are identified in this Constitution. In this Bill – and there is nothing the Chairman can do – the fund is being administered to areas with the perceived highest levels of poverty. The intention was for the marginalised areas. So, the criteria for which we cannot blame ourselves which was allowed by our predecessors, they veered from marginalised areas and admitted a criterion that expands the number of counties that are beneficiaries purely because pockets of poverty have been found in those areas.

A hardworking Kenya who is a stickler to the law can go to court and actually find that this Bill is unconstitutional. This because it is attempting to administer money to areas of highest poverty instead of money going to marginalised areas. Nevertheless, that is debate for another day when the Commission on Revenue Allocation (CRA) brings the formula that they are working on. I support it nevertheless but now I am on record.

Secondly, we are extending the dependency of the period for affirmative action. This is because we have not used the money in the beginning. We must support this. I suspect that even after we have extended the period we have given, at the end of it there might still be need to extent it even more. Why? It is because I feel bitter that children in the former frontier districts drink dirty water. This is the same water where livestock such as camels and even wildlife pee. The children of Kenya, purely because of being in marginalised areas, are forced to use that kind of unhygienic water. I am against it.

Therefore, my dream is that this House will one day humble itself and allow all Equalization Funds to concentrate only in those 14 counties that we had identified in

Point of order.

Hon. Senators, in the Public Gallery, we have 100 students, accompanied by eight teachers, from Cardinal Otunga High School Mosocho – Kisii County. They are in the Senate on an education tour.

Hon. Senators, in our usual tradition of receiving and welcoming visitors to Parliament, I extend a warm welcome to them. On behalf of the Senate and my own behalf, I wish them a fruitful visit.

I thank you.

Sen. Cherarkey, allow him to prosecute his case.

Madam Temporary Speaker, is my brother Sen. (Dr.) Khalwale, in order to prosecute a colleague Senator, a man who stands on high stature in this Nation? We are a House---

I am going to convince Sen. (Dr.) Khalwale - which is a name that you have heard many times - and Sen. Cherarkey to come out there and shake the hands of these young boys and encourage them to be the future leaders.

Madam Temporary Speaker, during the times of Father Anthony, this school used to produce serious athletes. I remember when we used to meet them in sports events, we used to fear their 4 by100 metres team. So, it is a school that has also made contribution in the field of sports.

We are proud to have you, our future leaders. We want you to go back encouraged and inspired. I hope in the future when Sen. Onyonka has retired, we will have a Senator from this team. Thank you for coming and have a safe trip back to Gusii.

I thank you.

What is your point of order, Senator?

Thank you for giving me this opportunity. I am standing under Standing Order No.105. Is the Senator for Nyamira County in order to conclude his appreciation of these great children from Cardinal Otunga, without giving due recognition to George Moseti Anyona, the greatest leader from this family who used to sit on this side? Is it a case that you are against George Moseti Anyona to appreciate Sen. Onyonka at his expense?

Is he in order? Madam Temporary Speaker, allow me to remind the children that this was the House of the late Hon. George Anyona. Hon. Anyona was like no one else in the history of this country.

Sen. Omogeni, you have been called to order.

days’ notice has been given, calling in question the conduct of that Senator or Member of the Assembly.”

Keep to the debate on the Bill before the House and contribute your views or opinions on that Bill.

I thank you.

Madam Temporary Speaker, I thank you for granting me this opportunity to recognize the presence of students and teachers from Cardinal Otunga High School, under the stewardship of one strong man, the Chief Principal, Mr. Albert Ombiro, who hails from my Constituency of Bomachoge Borabu.

The school is on the border between Luos and Kisiis at a place called Mosocho. It is near the home of the former Minister, Hon. Zachary Onyonka, the father of the current Senator for Kisii, Sen. Onyonka, who is not here.

I welcome the rugby powerhouse and academic giants. For your information, they were among the top nationally in the 2022 Kenya Certificate of Secondary Education (KCSE) examinations. I would equate Cardinal Otunga to Kenya High School where I went. I therefore welcome the boys to this House.

We have inter-generational shift. As you can see, we also have young legislators here like myself, who are learning from seasoned politicians like the Senator for Kakamega, Sen. (Dr.) Khalwale.

I urge you to put emphasis on your academics and obey your parents. Your future lies on yourselves. You are privileged to be in such a school because there are people who do not have that privilege.

Opportunity comes once. Please make use of it. You do not have to be a Senator like myself. You can become a doctor, pilot or many other professions.

Madam Temporary Speaker, this is the same school that the former MP, Hon. Simon Ogari, went to. He was the MP for Bomachoge Chache Constituency. Therefore, it is a home of giants and I am proud to have you here this afternoon.

To the teachers, this Government is working hard to ensure that you are comfortable as you teach our students, so that they can solve the challenges we face as a country.

Thank you, Madam Temporary Speaker, for giving me the opportunity to welcome our students. You should mention the prestigious Cardinal Otunga High School in Kisii County.

On behalf my neighbour Sen. Onyonka who is not here, I extend a warm welcome to students from Cardinal Otunga High School. That is one of the schools that we are most proud of as a region. Most leaders from Gusii, including those from our neighbouring counties even the current Member of Parliament for Kilgoris, went to Cardinal Otunga. It is a school that has moulded many leaders not just from Kisii region but from the country.

I am happy that these future leaders are here to come and see what we do as their leaders. I encourage them as some of us, like Sen. (Dr.) Khalwale, went to schools we never got the benefit or opportunity to visit then National Assembly of the Republic. However, you are so privileged to get a chance to come here with your teachers to see the proceedings of the Senate.

I am going to convince Sen. (Dr.) Khalwale - which is a name that you have heard many times - and Sen. Cherarkey to come out there and shake the hands of these young boys and encourage them to be the future leaders.

Madam Temporary Speaker, during the times of Father Anthony, this school used to produce serious athletes. I remember when we used to meet them in sports events, we used to fear their 4 by100 metres team. So, it is a school that has also made contribution in the field of sports.

We are proud to have you, our future leaders. We want you to go back encouraged and inspired. I hope in the future when Sen. Onyonka has retired, we will have a Senator from this team. Thank you for coming and have a safe trip back to Gusii.

I thank you.

What is your point of order, Senator?

Thank you for giving me this opportunity. I am standing under Standing Order No.105. Is the Senator for Nyamira County in order to conclude his appreciation of these great children from Cardinal Otunga, without giving due recognition to George Moseti Anyona, the greatest leader from this family who used to sit on this side? Is it a case that you are against George Moseti Anyona to appreciate Sen. Onyonka at his expense?

Is he in order? Madam Temporary Speaker, allow me to remind the children that this was the House of the late Hon. George Anyona. Hon. Anyona was like no one else in the history of this country.

Sen. Omogeni, you have been called to order.

Madam Temporary Speaker, this is one of the points of order that I fully agree with.

I agree with Sen. (Dr.) Khalwale that I am completely out of order, not to have recognized the late Hon. George Moseti Anyona. He was a great leader from my County of Nyamira. He was a former Member of Parliament (MP) for Kitutu, a man that all of us, sons and daughters of Nyamira, are proud of.

I want to go on record that if there was a man who was a pacesetter for students who went to Cardinal Otunga those days, then it was George Moseti Anyona. If you know the history of the late Hon. George Moseti Anyona, as it was the tradition, from Cardinal Otunga High School, he proceeded to Alliance High School for his Form 5 and Form 6.

Most people from Gusiiland remember the late Hon. George Anyona as an ex- Alliance more than Cardinal Otunga student. Nonetheless, you are completely right that he did his Form 1 to Form 4 at Cardinal Otunga High School. Therefore, he is an alumnus of Cardinal Otunga.

Madam Temporary Speaker, I only mentioned Sen. Onyonka as the current Senator for Kisii. I am not in any way trying to downplay the role that the late Hon. George Moseti Anyona played in ensuring that this country is democratic. I accept that point of order from my friend Sen. (Dr.) Khalwale.

Sen. Cherarkey, do you wish to be informed?

Yes. I can be informed by Sen. Omogeni.

Madam Temporary Speaker, I am embarrassed on behalf of lawyers in this country that it takes a medical doctor to correct a lawyer on who is not a senior counsel. These are things that Sen. Cherarkey, whom I worked hard on to ensure he is admitted to the bar the other day and who is also my good friend, should know. He should know the list of senior counsels! I do not want him to mislead the whole country and more so lawyers.

Madam Temporary Speaker, you are a lawyer. You know that to be conferred as a senior counsel, there is a committee chaired by a judge with status not less than that of a judge of the Court of Appeal. You have to undergo a rigorous process through that committee before that title is conferred on you. Being a former Chair of the LSK adds to the other requirements that you have to meet.

I think I did a mistake when I was the Chair of the LSK by exempting lawyers from Continuing Legal Education (CLE) because we had seasoned lawyers like Hon. Paul Muite. However, looking at the performance of Sen. Cherarkey this afternoon, I am

Proceed, Sen. Cherarkey.

Madam Temporary Speaker, I equally welcome the great students from Cardinal Otunga to the Senate. I think my colleagues have said it all.

I went to one of the best schools that has produced two presidents. That is the late President Daniel Toroitich Arap Moi and also the Fifth President, Hon. (Dr.) William Samoei Kipchirchir Arap Ruto. Maybe yours truly will become one because we do not know about the future. My alma mater is Kapsabet Boys High School. I know it is in an equal league with Cardinal Otunga whose students and teachers are before us. Therefore, I wish them well.

As you have been told, work hard, be steadfast and remain focused. The future depends on how you make it. Cardinal Otunga is one of the best schools. Therefore, there is nothing much we can tell you. You are the people we will depend on in the future.

Madam Temporary Speaker, if you have heard, the Senior Counsel title was an addition because he was the Chairperson of Law Society of Kenya (LSK) . I inform him that I have been attending CLE seminars.

I do not know what he means because all lawyers attend CLE seminars, unless there are exemptions. One of the conditions for him to become a senior counsel was because he was the LSK Chairperson.

Sen. Oketch Gicheru, what is your point of order?

Just sit.

Sen. Oketch Gicheru is not a lawyer, why would he be interested in this matter?

Madam Temporary Speaker, I rise on Standing Order No. 105 and 101. Sen. Cherarkey has got very bad manners of degenerating and wiggling around and disobeying the point of orders of this House. If you are not careful he ends up doing an injustice to this House. For instance, right now, he is actually directly discussing the Senior Counsel and Commissioner, Sen. Omogeni without a substantive Motion.

I have a problem with this because he is a lawyer who does not even read the Standing Orders of this House. Is he in order that, instead of answering, he is discussing a Senator of this House without a substantive Motion and imputing improper motive. This is not correct.

Sen. Omogeni is in the House fortunately. Sen. Cherarkey, respond to that concern.

Madam Temporary Speaker, I do not know what is wrong with Sen. Oketch Gicheru since he came back. I have been excusing him because he is recovering. We do not know whether it is because of the illegal demonstrations.

However, you heard Sen. Omogeni discussing me and I did not have a problem. Why is Sen. Oketch Gicheru interested? Does he want to please the Commissioner to get some perks.

Madam Temporary Speaker, let me proceed to state that I support this Equalization Fund. I am happy that Nandi County will be the biggest beneficiary. Nandi and Tinderet Constituencies, parts of Kapchorwa ward and Songo-Soba among others. Nandi County will get Kshs157,016,515 that will go to improvement of schools, roads and hospitals among others. I think this is important.

I remember, hon. Gladys Boss Shollei’s Committee in the previous session tried to come up with regulations for this Equalization Fund. I am happy we are putting in place the law. I have always insisted that this House, as the protector of devolution under Article 96, continues to enrich devolution by ensuring that we give life to Article 204.

Madam Temporary Speaker, I am embarrassed on behalf of lawyers in this country that it takes a medical doctor to correct a lawyer on who is not a senior counsel. These are things that Sen. Cherarkey, whom I worked hard on to ensure he is admitted to the bar the other day and who is also my good friend, should know. He should know the list of senior counsels! I do not want him to mislead the whole country and more so lawyers.

Madam Temporary Speaker, you are a lawyer. You know that to be conferred as a senior counsel, there is a committee chaired by a judge with status not less than that of a judge of the Court of Appeal. You have to undergo a rigorous process through that committee before that title is conferred on you. Being a former Chair of the LSK adds to the other requirements that you have to meet.

I think I did a mistake when I was the Chair of the LSK by exempting lawyers from Continuing Legal Education (CLE) because we had seasoned lawyers like Hon. Paul Muite. However, looking at the performance of Sen. Cherarkey this afternoon, I am

On a point of order, Madam Temporary Speaker.

On the faith-based groups, village administrators and Assistant County Commissioner, I agree---

Sen. Cherarkey, we have a point of order from Sen. (Dr.) Khalwale.

From who?

from Sen. (Dr.) Khalwale.

Sorry.

Madam Temporary Speaker, since this is debate, it is good for us to listen and get the clarity of the thinking of a Member so that he can carry us with him.

Under what Standing Order?

Madam Temporary Speaker, Standing Order No. 105 on responsibility for statement of fact.

Could the Senator for Nandi help me here? When you ask me to go and sit in this board that is playing the executive role of administering funds, how will I oversight myself when I come to Nairobi? For example, I have been part of a mess in Kakamega County and when I come to Nairobi, I am expected to oversight that. Can he tell me how a Senator can have that dual function?

It does not sound like a point of order. You should have stood under a different Standing Order.

Please, allow Sen. Cherarkey to continue. Consult your Standing Orders.

Madam Temporary Speaker, Sen. (Dr.) Khalwale has helped us identify senior counsels. I will also help him to understand what I am saying which is simple.

I have even used an example of a National Government-Constituency Development Fund (NG-CDF) model. Let him allow me to finish.

A Member of the National Assembly is a patron of a CDF and does not directly manage the funds. That is what I am proposing.

I am not saying that this technical committee will be in charge but it will just oversee. For example, the project identification implementation committee will just appraise. I am not saying that they will deal with procurement or give tenders. The technical committee will be an advisor of what should be done with the Fund.

There is a point of information. Do you wish to be informed by Sen. Ali Roba?

No, Madam Temporary Speaker. I have sufficient information.

From who?

from Sen. (Dr.) Khalwale.

Sorry.

Madam Temporary Speaker, since this is debate, it is good for us to listen and get the clarity of the thinking of a Member so that he can carry us with him.

Under what Standing Order?

What do I mean by this? I have seen my brother Sen. Cherarkey struggling with the concept of having even a Senate representative visible in the Budget Implementing Structure that we are proposing in this Bill. The complexity emerges because perhaps the understanding of many people is not that this fund is for counties. If you read Article 204

It does not sound like a point of order. You should have stood under a different Standing Order.

Please, allow Sen. Cherarkey to continue. Consult your Standing Orders.

Thank you, Madam Temporary Speaker. I also rise to support but with a rider that I hope the chair who has moved this Bill will agree that we enrich the contents with some ideas which will make it more useful to the people who reside in our counties.

Madam Temporary Speaker, first, I want to agree with the sentiments of Sen. (Dr.) Khalwale this afternoon. Article 204 on Equalization Fund was meant to bring to speed counties that have been lagging behind because of bad government policies. To be very fair, imagine Nandi County being compared with Nyamira or Kericho Counties. How can my neighbours, Kericho, with those huge tea estates and the dairy farming that is being undertaken in Kericho, with the good rivers and the supply of piped water, be called a marginalised county?

If you have gone to Nyamira County, there is an area called Keroka. The population in Keroka is like that of an urban centre. That is how bad it is. We do not have piped water, but there is this argument that Kisiis are hardworking. We are able to build houses that have iron sheets so we are able to tap rainwater and use it. The government argues that Kisii is blessed with good rainfall, we can harvest water and use it. We do not need piped water.

The truth of the matter is that this was a very good idea. I commend the first Senate. They came up with a good formula and picked the right counties that were meant to benefit, the first 14 counties. We look at the names of the first counties that were to benefit from this fund and you cannot fault it. If you have been to Turkana, you will be out of your mind to doubt that Turkana needs an Equalization Fund. The same case applies to the County of Mandera. We have sat with governors who gave us horrendous stories. The distance that people have to walk in Mandera before they get a health facility. The distance that they have to walk before they can get water.

Sen. Ali Roba, you can correct me if I am wrong, I think the first tarmac road f hit the furthest point of northern Kenya during the tenure of President Kibaki. It is about ten years ago. When you hear the stories, you appreciate that there are counties that honestly deserve to benefit from this Equalization Fund. You go to Tana River, you find pastoralists who, God forbid, if they fall sick, do not know where to get a health centre. When you are told about an Equalization Fund, that is what it should be.

This one of putting 34 counties where people are actually living happily, is not right. I hope that when we look at the formula next, we will do justice to the Kenyan people. We only allow counties that are most deserving to be the only ones that are benefiting from this Equalization Fund. We have had a lot of hiccups. You remember in 2015, the first implementation matrix was struck off by the courts because we did not get it right. Money has been stuck in Treasury for a long time.

I was initially opposed to this extension of 10 years, but looking at the time that we have lost, maybe there is wisdom in proposing that in line with Article 204, we can give a non-renewable extension of 10 years, but with a rider that we will have to re-look at the formula and ensure that this money only benefits counties that are most deserving.

Secondly, regarding the proposal that has been made on the Floor by Sen. Cherarkey, I want to persuade Senators, including Sen. (Dr.) Khalwale, to look at that proposal objectively. Let us also borrow from the practices that we have seen from our

There is a point of information. Do you wish to be informed by Sen. Ali Roba?

No, Madam Temporary Speaker. I have sufficient information.

Proceed.

Sen. Ali Roba is my friend. I respect him as my elder brother. I know he will buy me tea after this to give me more information.

Madam Temporary Speaker, the functions of the project identification and implementation committee shall be to undertake public participation.

We need to agree that all the things that we are doing will be important. Clause 22 (c) states that- The functions of the Project Identification and Implementation Committee shall be to-

Thank you, Madam Temporary Speaker, for this opportunity to contribute to this very important law that has been delayed for many years.

Mr. Speaker, I know I will not have enough time. I will continue at a later stage.

What is your point of order, Senator?

What do I mean by this? I have seen my brother Sen. Cherarkey struggling with the concept of having even a Senate representative visible in the Budget Implementing Structure that we are proposing in this Bill. The complexity emerges because perhaps the understanding of many people is not that this fund is for counties. If you read Article 204

Thank you Sen. Oketch Gicheru.

Sen. Omogeni, you may have the Floor.

Thank you, Madam Temporary Speaker and Sen. Omogeni for correcting me. Chairperson, Sen. Ali Roba, allow me to bring us back. My view is that this law must be aligned with the mandate of the Senate, to protect counties and their governments and it must help us to implement Article 204.

My general comment is that as currently structured, this law undermines county governments. This law has elected to create a mechanism that will work in the county in parallel to the county government. It will sit and require the County Executive Committees (CECs) to make decisions and report to it. It will oversee the implementation and one that will then go to monitor that implementation.

I hope that I can pursued you to change the route and structure this law in a manner that will respect the functional assignment between the National Government and the county government as provided for in this Constitution.

Madam Temporary Speaker, Article 204 contemplates that the Equalization Fund will be deployed towards marginalized areas and it is intended to help provide basic services including water, roads, health facilities and electricity to marginalized areas. Those are county functions.

Article 204 (3) (b) contemplates that this money will of course come from monies collected nationally. It would be held by National Government. I am proposing that we make a law that opts to focus forwarding this money as conditional grants to county government to then carry out the functions as provided.

Why do I say so? I do not think county planning contemplates that CIDP will look at the needs of a county; and leave out other things for somebody from outside to come and plan for a different place. Properly speaking, when you are planning for your county, I am planning for county Busia, I need to know I have so many facilities, I still need so many health facilities out of the areas in my county, the most marginalised is that area.

However, maybe the money I have is not adequate for me to deliver in those places. So, when the equalization fund selection area comes, I would then be able to say that this area is the most marginalized in Busia, can it be considered for purposes of this? What the Fund ought to do is then give conditional grants that Busia County---

brothers in the National Assembly. Sen. Cherarkey is not proposing that Sen. (Dr.) Khalwale goes and sit in this Project Identification and Implementation Committee. He is not proposing that Senators should go and sit as members in that committee, but he is making a proposal, which I fully identify and agree with, that your office, as Senator of Kakamega, should get an opportunity to nominate people from your office who will sit in that committee that we should call PIIC.

How does the Constituency Development Fund (CDF) operate? The people at the local constituency identify the Member of Parliament as the person who dishes out bursary, the one who identifies road projects that should get money, and the one who decides which school gets money. I am sure Sen. (Dr.) Khalwale knows this better than I do because he has been an MP. The only entry for an MP is that mandate given to him to nominate people. In fact, nowadays, it is not even to nominate, the law has changed. Nowadays, they pick representatives to sit in the committee that interviews people who will sit in the CDF board. Since he picks people from his office who sit in the interviewing panel, the way it is done here with the Sub- County administrator or the Deputy County Commissioner (DCC), he has representatives whom he picks, which makes him have an entry of having a say on the operations of CDF. The law only says that when the projects are being launched, the committee will invite the MP to come and witness. Why can we not borrow that legal framework, Sen. (Dr.) Khalwale?

All that we are saying, as Sen. Oketch Gicheru has reminded us, if you read Article 204, this is a national Government Fund. This is not a fund that is managed by a Governor. It is not. In the last Parliament, we had a big fight on this Floor. What was the fight about? We were just trying to expand the presence of elected leaders in determining which roads should get funds from the Rural Roads Board Authority.

The National Assembly had amended the law and decreed that the MP will pick two representatives to sit in that board. We said, so that we have parity, let also the office of the Senator pick two nominees. Just two. It was a big fight. They said we do not want to see the presence of a Senator anywhere. These guys are going to make us share power. We do not want. That is not the way it should be.

Let the country accept that we have now embraced a devolved system of government. We do not sit here like the House of Lords. We are elected directly by the people. I do not know the number of votes Sen. (Dr.) Khalwale got, but I am sure it is not less than 100,000 votes. It could even be 200,000. You can imagine.

How can somebody, who has direct mandate because they queued and voted for you with 300, not have a say at all in picking somebody who will have a say on what roads need to be put some murram? It is a fallacy because we are treated like we are the House of Lords.

Madam Temporary Speaker, the House of Lords in England are never elected by anybody. The best we can compare this House to is the Senate of Australia and the Senate of the United States of America (USA) because those ones also get direct mandate from the people. In those jurisdictions, because of the area you campaign--- Sen. Khalwale campaigns in 12 constituencies and I am lucky mine is four. We then serve a term of five years like a Member of the National Assembly, who campaigns in a smaller area.

Americans recognise that it is so rigorous to campaign in the entire State and so, they give them a tenure of six years. The area for the House of Representative is small, usually a constituency of 700,000. They serve for two years.

Therefore, there is an injustice. I hope that we will get an opportunity during the tenure of the United Democratic Alliance (UDA), to review the Constitution in a manner that is very objective – not in a partisan way but in a very impartial and non-partisan way – so that we correct some of these injustices.

Senators in Australia serve for a period of six years. The House of Representatives serve for four years. It is because it is appreciated that when you campaign in a bigger area, you get a longer period.

I persuade my Chairman to agree with this proposal. We can put our heads together so that we come up with an amendment that will give room for the office of the Senator to pick representatives in this Committee. There will be no conflict. We have stated that there is a good example – the roads. MPs have and County Development Fund (CDF) have representatives.

Otherwise, I identify the vibrance with which you have taken your assignment. As the Chair of the Committee on Finance and Budget, you have done very well. We are proud of you. Initially, some of us did not want to hear Governors coming here to be Senators. Having seen what you are able to do – together with my friend, Sen. Mandago – I welcome more Governors to bring that experience. You have done very well Senator Captain. We are proud of you. You have done good work in this Committee. I hope you will put the icing on the cake by bringing some amendments that will give Senators some presence in the Equalization Fund.

Finally, I hope we will find a way of ring-fencing this money from this cancer called corruption. At times I wonder how Kenyans are wired. This money is supposed to enhance our health facilities, assist the sick, give access to water to poor people who cannot afford generators in their homes and to build good roads for the people we represent. Again, we want to steal the same money. We pretend to be good Christians and Muslims yet stealing money meant for poor people.

I hope we can find solution to this. I am not trying to cast aspersions but the accountability mechanism on the use of county money has not been up to a level we can all be proud of. I have not seen anybody who has faced consequences. So, the message we are sending to the country is that there is no corruption at the counties.

All Governors who have served for the last 10 years are all free. If they have used money meant for hospitals and roads to amass wealth, they are walking and roaming in the streets. I hope we can find a solution to corruption so that the good ideas that are in the Constitution, 2010 can help our people. I hope I have persuaded Sen. (Dr.) Khalwale on this proposed amendment so that we can move together.

Madam Temporary Speaker, I support with the rider that there will be some amendments.

Thank you.

Thank you, Senator. Proceed, Sen. Mumma.

Thank you, Madam Temporary Speaker, for this opportunity to contribute to this very important law that has been delayed for many years.

Mr. Speaker, I know I will not have enough time. I will continue at a later stage.

What is your point of order, Senator?

Sorry, Madam Temporary Speaker. I have corrected myself. It is Madam Speaker.

The Hon. Member called you “Mr. Speaker”. Is she in order to refer to you as “Mr. Speaker”, in a time like this when we are celebrating our women? The whole country is proud to see a woman on the Speaker’s seat.

Sen. Omogeni, she is definitely out of order and she has corrected herself. She is allowed to continue.

Thank you, Madam Temporary Speaker and Sen. Omogeni for correcting me. Chairperson, Sen. Ali Roba, allow me to bring us back. My view is that this law must be aligned with the mandate of the Senate, to protect counties and their governments and it must help us to implement Article 204.

My general comment is that as currently structured, this law undermines county governments. This law has elected to create a mechanism that will work in the county in parallel to the county government. It will sit and require the County Executive Committees (CECs) to make decisions and report to it. It will oversee the implementation and one that will then go to monitor that implementation.

I hope that I can pursued you to change the route and structure this law in a manner that will respect the functional assignment between the National Government and the county government as provided for in this Constitution.

Madam Temporary Speaker, Article 204 contemplates that the Equalization Fund will be deployed towards marginalized areas and it is intended to help provide basic services including water, roads, health facilities and electricity to marginalized areas. Those are county functions.

Article 204 (3) (b) contemplates that this money will of course come from monies collected nationally. It would be held by National Government. I am proposing that we make a law that opts to focus forwarding this money as conditional grants to county government to then carry out the functions as provided.

Why do I say so? I do not think county planning contemplates that CIDP will look at the needs of a county; and leave out other things for somebody from outside to come and plan for a different place. Properly speaking, when you are planning for your county, I am planning for county Busia, I need to know I have so many facilities, I still need so many health facilities out of the areas in my county, the most marginalised is that area.

However, maybe the money I have is not adequate for me to deliver in those places. So, when the equalization fund selection area comes, I would then be able to say that this area is the most marginalized in Busia, can it be considered for purposes of this? What the Fund ought to do is then give conditional grants that Busia County---

Hon. Senator, it is now 6.30