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.

Order, Hon. Senators. Kindly take your seats, so that we start prosecuting the business of the day.

Senate.

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;

Senate.

I urge the identified Senators to cooperate with the Steering Committee and to closely work with the Secretariat to ensure the effective participation of the Senate.

Hon. Senators, in conclusion, I urge all hon. Senators to save these dates and plan to attend and participate at this important event in our Devolution Calendar. Senators may give their confirmation by signing a register to be circulated in the Chamber from today until Wednesday, 10th August, 2023.

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?

Senate.

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-

Senate.

(ii) initiate inclusion of all schools in Malindi Municipality, including Sabaki Primary School, Sabaki Secondary School, Majivuni Primary School, and Kibokoni Primary School, for teachers to receive enhanced house allowance under category two as per the SRC clusters of teacher’s workstations; and, finally, (iii) initiate the inclusion of Mtwapa and Mariakani Towns as major municipalities to allow teachers working there to draw and enhance house allowance of category two under major municipalities. Hon. Senators, pursuant to Standing Order No. 237, I will allow comments, observation, or clarification in relation to this Petition for not more than 30 minutes.

Sen. Cheruiyot, you may proceed.

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

Senate. 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?

Sen. Cheruiyot, please, proceed.

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, ninawapa kongole walimu walioleta Taarifa hii. Tunaelewa ya kwamba sisi zote ni watu waliohitimu kutoka kwa akili na mafunzo ya walimu.

Taarifa hii ni muhimu sana ndani ya Bunge hili la Seneti. Ya kwamba tuweze kuangalia matatizo yanayowakumba walimu katika sehemu zao zote wanazofanya kazi katika inchi nzima ya Kenya.

Taarifa hii imeletwa na watu wa Kilifi. Mimi kama Seneta wa Kaunti ya Kilifi, ninajua matatizo yanayowakumba waalimu katika maeneo waliyoyataja hapa.

Ninaona Petition hii ni ya haki na ukweli. Kuna sehemu zingine ndani ya Kaunti ya Kilifi ambazo zimefika katika kiwango ambacho mapato yao hayalingani na zile sehemu ambazo wanaketi. Ni sehemu ambazo hivi sasa ziko ghali na maisha pia iko ghali. Ndio sababu mimi ninasupport hii Petition.

Ndugu zangu Maseneta, hili ni jambo muhimu ambalo linahusika na walimu. Sisi zote lazima tuungane pamoja ili tuunge mkono Petition hii.

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

Asante Bw. Spika. Kwanza, ninawapa kongole walimu walioleta Taarifa hii. Tunaelewa ya kwamba sisi zote ni watu waliohitimu kutoka kwa akili na mafunzo ya walimu. Taarifa hii ni muhimu sana ndani ya Bunge hili la Seneti. Ya kwamba tuweze kuangalia matatizo yanayowakumba walimu katika sehemu zao zote wanazofanya kazi katika inchi nzima ya Kenya. Taarifa hii imeletwa na watu wa Kilifi. Mimi kama Seneta wa Kaunti ya Kilifi, ninajua matatizo yanayowakumba waalimu katika maeneo waliyoyataja hapa. Ninaona Petition hii ni ya haki na ukweli. Kuna sehemu zingine ndani ya Kaunti ya Kilifi ambazo zimefika katika kiwango ambacho mapato yao hayalingani na zile sehemu ambazo wanaketi. Ni sehemu ambazo hivi sasa ziko ghali na maisha pia iko ghali. Ndio sababu mimi ninasupport hii Petition. Ndugu zangu Maseneta, hili ni jambo muhimu ambalo linahusika na walimu. Sisi zote lazima tuungane pamoja ili tuunge mkono Petition hii.

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---

Senate.

Senate.

Thank you, Mr. Speaker, Sir. As a public servant who has worked in Kilifi as a doctor for many years, I would be failing if I did not stand in this House strongly and supported those teachers in that request.

I know that the Committee is going to be up to the task and will quickly bring the report. However, we need to be careful, colleagues. This thing is bigger.

You have heard the thoughts of the Senate Majority Leader. It is not an area where we can have uniformity and, therefore, concurrence across the Floor.

We need to call the Council of Governors (CoGs) . We need to have a conversation with governors who are starting abstract projects and not committing the devolved funds for the provision of water, fixing of roads, and with the support of the national Government, electricity.

The so-called hardship areas are in hardship because workers and the inhabitants have no access to water and they find it difficult to travel, which are things that can be fixed by governors. So, we need to put a high standard that in the so-called marginalized areas, governors must be persuaded not to pursue abstract projects, but instead, invest in these basic services.

It is 60 years in Independence. Will we continue to separate civil servants so that one gets more and the other one less because of where they are working?

Senate Majority Leader, this is debate. I hope you will not feel that we are challenging you. I want us to think collectively. What was the spirit of the Equalization Fund?

Once upon a time, in this House, the Equalization Fund meant what the Constitution wanted it to be; to quickly bring up the known marginalized areas up to speed to be as close as possible to the rest of the country. What happened later on? The definition of marginalized areas has been changed. They have been equated to areas with high levels of poverty. If you make that mistake, it means the same way a marginalized area in a far-end area in Kilifi County or North Horr deserves to draw funds from this Fund, then even Kibera and Mukuru kwa Njenga in Nairobi County, Malaba slums in Kakamega County and other slums in urban centers will be entitled to this money.

This Senate must have this conversation. Otherwise, we shall be here for 10 years. Others will go while others come back, but the issue of inequality will remain. This is a House of equality. We must bring the country together. Wale watu wa--- Pardon me. I wanted to use Kiswahili so that the people from North Eastern can hear me properly.

Proceed, Sen. Wambua.

Senate. members of staff to earn hardship allowances while serving in the same area. We have a very funny and disturbing situation in Kitui County. There are members of staff from government ministries serving in some wards, which are classified, as hardship, but they do not earn hardship allowance. However, we have teachers in those wards that earn that allowance.

Mr. Speaker, Sir, we must be guided by the same formula that we use. We must also be careful that we do not leave this issue to one institution of government. We must ensure that the same formula we used to identify marginalized areas as opposed to marginalized counties is used to determine the payment of hardship allowances. If an area is classified as marginalized, then every member of staff irrespective of which department of government should earn hardship allowance.

Finally, when I came to the Senate in 2017, I was told the Kitui County cannot benefit from the Equalization Fund because it did not meet certain thresholds. At the time I was getting in, if you asked any random person walking in streets of Nairobi City County to tell you the marginalized areas, Kitui County would be mentioned in the top three. I urge that we come up with a formula and policy direction. A decision made at a level that it devolves then to all other departments of government to ensure equity and uniformity in the payment of hardship allowances.

Mr. Speaker, Sir, with those remarks, I thank the teachers from Kilifi County for raising this issue.

I thank you.

Senate. members of staff to earn hardship allowances while serving in the same area. We have a very funny and disturbing situation in Kitui County. There are members of staff from government ministries serving in some wards, which are classified, as hardship, but they do not earn hardship allowance. However, we have teachers in those wards that earn that allowance.

Mr. Speaker, Sir, we must be guided by the same formula that we use. We must also be careful that we do not leave this issue to one institution of government. We must ensure that the same formula we used to identify marginalized areas as opposed to marginalized counties is used to determine the payment of hardship allowances. If an area is classified as marginalized, then every member of staff irrespective of which department of government should earn hardship allowance.

Finally, when I came to the Senate in 2017, I was told the Kitui County cannot benefit from the Equalization Fund because it did not meet certain thresholds. At the time I was getting in, if you asked any random person walking in streets of Nairobi City County to tell you the marginalized areas, Kitui County would be mentioned in the top three. I urge that we come up with a formula and policy direction. A decision made at a level that it devolves then to all other departments of government to ensure equity and uniformity in the payment of hardship allowances.

Mr. Speaker, Sir, with those remarks, I thank the teachers from Kilifi County for raising this issue.

I thank you.

Proceed, Sen. Methu.

Senate. according to the classification by Teachers Service Commission (TSC). Nyandarua Boarding high school is geographically at Nyahururu, but it is classified as a school in Nyandarua County.

Mr. Speaker, Sir, I beseech the Committee to not only look at issues to do with Kilifi County, but to expand the scope of this investigation. Let them understand how and why very dry areas of Nyandarua County such as Ndaragua have teachers who operate in adverse conditions. There are some places in Nyandarua, Laikipia, Kakamega and other counties, which have teachers that do not qualify for hardship while their next- door neighbours qualify for the allowance.

Hardship allowance is not supposed to be determined by the geographical location. There are people in Kitui and Marsabit Counties who live in better conditions than another who lives in a very dry place in Nyandarua County. Just because Nyandarua County is the biggest producer of potatoes it does not necessarily mean that every place is agricultural. There are places in Nyandarua County, which are so dry. Therefore, this injustice must be looked into.

I thank you.

Senate. according to the classification by Teachers Service Commission (TSC). Nyandarua Boarding high school is geographically at Nyahururu, but it is classified as a school in Nyandarua County.

Mr. Speaker, Sir, I beseech the Committee to not only look at issues to do with Kilifi County, but to expand the scope of this investigation. Let them understand how and why very dry areas of Nyandarua County such as Ndaragua have teachers who operate in adverse conditions. There are some places in Nyandarua, Laikipia, Kakamega and other counties, which have teachers that do not qualify for hardship while their next- door neighbours qualify for the allowance.

Hardship allowance is not supposed to be determined by the geographical location. There are people in Kitui and Marsabit Counties who live in better conditions than another who lives in a very dry place in Nyandarua County. Just because Nyandarua County is the biggest producer of potatoes it does not necessarily mean that every place is agricultural. There are places in Nyandarua County, which are so dry. Therefore, this injustice must be looked into.

I thank you.

The Chairperson Standing Committee on Finance and Budget.

The Chairperson Standing Committee on Finance and Budget.

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.

Senate.

Senate.

Mr. Speaker, Sir, I have a Notice of Motion to the House on the extension of the mandate of the Ad Hoc Committee to investigate the proliferation of religious organisations and the circumstances leading to the deaths of more than 95 people in Shakahola, Kilifi County.

THAT, aware that the sitting of the Senate held on Thursday 27th April, 2023, the Senate by resolution established an Ad Hoc Committee to investigate the proliferation of religious organisations and the circumstances leading to the deaths of more than 95 people in Shakahola, Kilifi County. ACKNOWLEDGING that the committee has undertaken a tremendous amount of work in the execution of its mandate including meetings with the Cabinet Secretary for Interior and National Administration, the Attorney-General, religious leaders, and visiting families of victims throughout the country, appreciating that the mandate of the select committee is due to lapse on Wednesday 26th July, 2023. NOTING that the event surrounding the Shakahola massacre in the county continues to evolve with the discovery of more bodies in the Shakahola mass graves with the death toll being upwards of 400 people and the need for the committee to visit the new grave sites and engage more stakeholders. NOW THEREFORE, the Senate resolves to renew the mandate of the Ad Hoc Committee by a further period not exceeding 21 days from 26th July, 2023 and to table its final report in the Senate on or before 16th August 2023. Thank you.

Mr. Speaker, Sir, I beg to give the following Notice of Motion - THAT, the Senate adopts the Report of the Standing Committee on Finance and Budget on the county government cash disbursement schedule for the Financial Year 2023/2024 laid on the table of the Senate on Thursday 27th July, 2023; and, pursuant to Section 17 (7) of the Public Finance Management Act and Standing Order No. 189 (3) , the Senate approves the county government’s equitable share cash disbursement schedule for Financial Year 2023/2024.

Mr. Speaker, Sir, I beg to give the following Notice of Motion - THAT, the Senate adopts the Report of the Standing Committee on Finance and Budget on the county government cash disbursement schedule for the Financial Year 2023/2024 laid on the table of the Senate on Thursday 27th July, 2023; and, pursuant to Section 17 (7) of the Public Finance Management Act and Standing Order No. 189 (3) , the Senate approves the county government’s equitable share cash disbursement schedule for Financial Year 2023/2024.

Senate.

Senate.

Thank you, Mr. Speaker, Sir, for this opportunity to request for a Statement on the sharing of revenue generated from the Tsavo National Park.

Mr. Speaker, Sir, I rise pursuant to Standing Order No. 53 (1) to seek a Statement from the Standing Committee on Land, Environment and Natural Resources regarding the status of revenue sharing generated from the Tsavo National Park between the national Government and the County Government of Taita Taveta.

In the Statement, the Committee should: -

Thank you, Mr. Speaker, Sir. I rise, pursuant to Standing Order No. 53 (1) , to seek a Statement from the Standing Committee on Labour and Social Welfare regarding Gender-Based Violence (GBV) in Homa Bay County.

In the Statement, the Committee should -

Thank you, Mr. Speaker, Sir. I rise, pursuant to Standing Order No. 53 (1) , to seek a Statement from the Standing Committee on Labour and Social Welfare regarding Gender-Based Violence (GBV) in Homa Bay County.

In the Statement, the Committee should -

Senate.

Thank you, Mr. Speaker, Sir. You called Sen. Kinyua and I could not remember that I am standing in for him.

Mr. Speaker, Sir, I rise, pursuant to Standing Order No. 53 (1) , to seek a Statement from the Standing Committee on Education on the state of learning at Ngiroriti Primary School in Laikipia County.

In the Statement, the Committee should: -

Thank you, Mr. Speaker, Sir. You called Sen. Kinyua and I could not remember that I am standing in for him.

Mr. Speaker, Sir, I rise, pursuant to Standing Order No. 53 (1) , to seek a Statement from the Standing Committee on Education on the state of learning at Ngiroriti Primary School in Laikipia County.

In the Statement, the Committee should: -

Mr. Speaker, Sir, with your permission I will read the Statement of behalf of Sen. Madzayo.

I rise pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee on National Security, Defence and Foreign Relations on the withdrawal of security detail attached to the Azimio-One Kenya Alliance Leaders. In the Statement the Committee should –

Mr. Speaker, Sir, with your permission I will read the Statement of behalf of Sen. Madzayo.

I rise pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee on National Security, Defence and Foreign Relations on the withdrawal of security detail attached to the Azimio-One Kenya Alliance Leaders. In the Statement the Committee should –

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

Senate.

Senate.

Mr. Speaker, Sir, my point of order is in reference to statement of facts. Sen. Wambua has said that they held peaceful demonstrations. What we witnessed were not peaceful demonstrations. We witnessed looting, stoning, punching people’s cars and destruction of motorbikes. That is not peaceful demonstration by any means.

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.

It is true. It is my entitlement as a leader in the Senate. I propose that we maintain the ‘Minority’ and ‘Majority’ references because we are in a Presidential System where there is no Government or Opposition in this House.

Senate.

I will start with Sen. Cherarkey.

Senate.

I will start with Sen. Cherarkey.

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.

Senate. 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.

Senate. 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.

Order, Members. May the Senator be heard in silence?

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.

Mr. Speaker, Sir, I will do my best. I have a group of Catholic bishops who are praying for me to ignore people who try to provoke me on this side.

The point I was making is that just the way Parliament has its own assets and budget, when it comes to the security of Members, the same should apply.

I thank you.

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 (

Senate.

The Senate Minority Leader (Sen. Madzayo): Bw. Spika, singependa kumwingilia dadangu katikati---

An

Kumwingilia katikati? (Laughter)

Senate.

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

Under what Standing Order is your point of order premised?

The Senate Minority Leader (Sen. Madzayo) : Bw. Spika, natumia Kipengele cha 1 katika Kanuni za Kudumu za Seneti.

An

Kumwingilia katikati? (Laughter)

Bw. Spika, wale ambao hawajui Kiswahili---

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 (

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. 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.

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.

We have many lawyers on the other side and they know what Article 37 of the Constitution says--

Proceed, Sen. Omogeni.

Bw. Spika, natumia Kipengele cha 1 katika Kanuni za Kudumu za Seneti.

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

Senate.

Najua. Naomba unipe nafasi niweze ku---

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?

Mr. Speaker, Sir, I rise under Standing Order No.105 on responsibility for statement of fact and specifically Standing Order No.105 (1) on accuracy of facts. In fact, read together with Standing Order No.101 in terms of some of things that a Senator might find offensive.

Mr. Speaker, Sir, is it in order for the Senator for Nakuru to imply in this House that my security is a function of right because of the Cabinet Secretary for Interior and National Administration or it is my constitutional right?

I ask this seriously because I have been in hospital. While I was in the hospital, my security was withdrawn in the middle of the night. Up to date---

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

Senate.

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.

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.

We have many lawyers on the other side and they know what Article 37 of the Constitution says--

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 ---

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.

Proceed, Sen. Munyi Mundigi.

Order, Senators.

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

Proceed, Sen. M. Kajwang’.

Mr. Speaker, Sir, I want to join those who believe in the institution of the Senate and the Constitution. Today, we could be celebrating the withdrawal of security of those in the Senate Minority side. However, you never know what is going to happen.

Many of us have sat in this House with a sense of self-entitlement, that we had Government. However, it came to a time that those who were celebrating the Government and its injustices were the first to be thrown out of the window.

Mr. Speaker, Sir, some of us sitting on the Minority side found ourselves chairing Committees that were reserved for those on the Majority side. Those who lost those positions, not too far back, had been celebrating how that Government was alpha and omega and as white as cotton.

Mr. Speaker, Sir, let us draw the line between the rights and privileges that are extended to Members of this House by the Constitution and the Parliamentary Powers and Privileges Act, and separate them from the political shenanigans.

I would not want to see Sen. Cherarkey in a boot of a Subaru, whether I agree with him or not. I would also not want to see Sen. (Dr.) Lelegwe Ltumbesi again in the boot of a Subaru. Let us not celebrate injustice and actions that kill the institution of the Senate or fly in the face of the Constitution.

That is my appeal to Members as we debate this. Let us think of the Senate, constitutionalism and the sacrosanct role of Parliament in a democracy. We cannot allow

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---

What is your point of order Sen. Cherargei?

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.

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.

Proceed, Sen. Mumma.

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.

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.

Sen. Cheptumo, you may have the Floor.

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.

Senate. colleagues in the Senate, Sen. Montet and Sen. Tobiko. I wish you well and a fruitful journey back. I am sure you will learn quite a lot as you continue to follow the proceedings of this Senate.

God bless you as you go back home. Thank you, teachers.

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

Thank you, very much, Mr. Speaker, Sir. I was already concerned when you directed that Sen. Seki was to welcome the team from Kajiado County.

I take the opportunity to welcome the students of Meswondo Secondary School, which is in the tea growing zone of Bomet County, a sub-county by the name Konoin Constituency.

I would like to encourage them to take back home lessons that they will have picked from this House, particularly with regard to what goes on here. This is a House where Senators debate matters affecting our counties and, in this case, the 47 counties in the Republic of Kenya.

I am very sure that at the end of your visit, you will have learnt, not only what goes on in the Senate, and how debate is done, but you will also be inspired so that you go back, work hard and come back to this House as Senators, clerks, the Speaker or as any other person that works within this particular House.

I welcome and encourage you to learn from what is going on here. After the small session, we will have to shake hands out there and share a tête-à-tête before you go back home.

I thank you.

We have Statements pursuant to Standing Order No. 56 (1) (b) . We will start with the Chairperson, Standing Committee on Information, Communication and Technology (ICT) .

Sen. Miraj, are you reading that Statement?

Let us move to the second statement by the Chairperson Standing Committee on Justice, Legal Affairs and Human Rights.

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.

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.

Senate.

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

These are -

design and framework for civic education in Kenya; (ii) Statement sought by Sen. Kibwana, on the early release of inmates convicted of minor offences; and (iii) Statement sought by Sen. Wafula, regarding pending bills occasioned by the Senatorial by-election in Bungoma County. The Committee met with the respective Senators who sought the Statements as well as the relevant stakeholders, wherefore the Statements were responded to. The Committee also identified areas for further engagement arising from the said meetings and deliberations.

Madam Temporary Speaker, yesterday the Committee met the Independent Electoral and Boundaries Commission (IEBC) secretariat who tabled before us a report on the Statement by Sen. Wafula. The report confirmed that there has already been compliance on the part of the IEBC in the payment of the outstanding bills to the service providers who had been contracted during the by-election in the relevant county.

What also transpired yesterday in the meeting that the Committee held with IEBC was that there were certain legislative proposals and electoral reforms, which would be relevant to the House and the entire electoral system of this country, as well as additional pending bills. It is worth noting that we discovered that there is a huge pending bill, amounting to over Kshs3.9 billion, which is yet to be cleared by IEBC to various service providers who were contracted during the 2022 General Elections, and some dating back to the 2017 General Elections.

Madam Temporary Speaker, these are the issues that the Committee has an obligation to engage on the way forward and to advise the relevant agency as well as the House in the manner it is supposed to handle the matter because they are stakeholders.

Madam Temporary Speaker, during the three months under reference, the Committee considered four Petitions –

the Torobeek Community. (ii) Petition by the Kipsigis Community Clans Organization members concerning historical land injustices suffered by the Kipsigis Community. (iii) Petition by Ms. Zipporah C. K. Seroney regarding mistreatment, harassment, property loss and human rights violation meted on the family of the late Hon. Jean Marie Seroney. (iv) Petition by Mr. Nayan Savla regarding the delay in launching the victims’ rights charter under the Victims Protection Act (No. 17 of 2014). In considering the Petitions, the Committee held deliberations with various stakeholders, and undertook site visits as follows –

County, where it received submissions on the Petition concerning historical injustices suffered by the Torobeek community.

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

Senate. colleagues in the Senate, Sen. Montet and Sen. Tobiko. I wish you well and a fruitful journey back. I am sure you will learn quite a lot as you continue to follow the proceedings of this Senate.

God bless you as you go back home. Thank you, teachers.

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

Thank you, very much, Mr. Speaker, Sir. I was already concerned when you directed that Sen. Seki was to welcome the team from Kajiado County.

I take the opportunity to welcome the students of Meswondo Secondary School, which is in the tea growing zone of Bomet County, a sub-county by the name Konoin Constituency.

I would like to encourage them to take back home lessons that they will have picked from this House, particularly with regard to what goes on here. This is a House where Senators debate matters affecting our counties and, in this case, the 47 counties in the Republic of Kenya.

I am very sure that at the end of your visit, you will have learnt, not only what goes on in the Senate, and how debate is done, but you will also be inspired so that you go back, work hard and come back to this House as Senators, clerks, the Speaker or as any other person that works within this particular House.

I welcome and encourage you to learn from what is going on here. After the small session, we will have to shake hands out there and share a tête-à-tête before you go back home.

I thank you.

We have Statements pursuant to Standing Order No. 56 (1) (b) . We will start with the Chairperson, Standing Committee on Information, Communication and Technology (ICT) .

Sen. Miraj, are you reading that Statement?

Let us move to the second statement by the Chairperson Standing Committee on Justice, Legal Affairs and Human Rights.

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.

Senate.

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.

and Privileges Amendment Bills, 2023,

(ii) The draft Constitution of Kenya Amendment Bill, 2023, sponsored by Sen. Crystal Asige. (iii) The draft County Government Amendment Bills, 2023, sponsored by Sen. Crystal Asige. (iv) The draft Election Amendment Bills, 2023, sponsored by Sen. Kinyua. In considering the Legislative Proposals, the Committee held discussions with the respective sponsors and considered the legislation and practice in comparative jurisdictions. Subsequently, the comments and recommendations of the Committee were submitted to the Hon. Speaker of the Senate, pursuant to Standing Order No.133 (a) This is a process of work in progress where the Bills will be placed before the House upon publication for further processing.

Mr. Speaker, Sir, the Committee commenced consideration of one Bill, namely, the Constitution of Kenya Amendment Bills, (Senate Bills No. 15 of 2023), following its introduction in the Senate on 4th May, 2023. Being a Bill to amend the Constitution, the Committee has a timeframe of 90 days within which to conduct public participation and table its report in the Senate.

In considering the Bill, the Committee observed that there have been 12 attempts previously made during the previous terms of Parliament towards enacting legislation on the two-thirds gender principal. Seven of these attempts were through constitutional amendment bills, all of which failed to garner the required thresholds to pass the Second Reading stage. The current Bill is therefore the 13th legislative attempt towards realizing the two-thirds gender principle in Parliament.

That being the case, and noting the need to secure broad-based support across the Floor in both Houses, the Committee resolved to nominate Sen. Veronica Maina to the Multi-Agency Working Group on the two-thirds gender rule, and to further request for the inclusion of Sen. Beth Syengo, the sponsor of the Bill, as a Member of the working group.

Mr. Speaker, Sir, I am happy to inform this House that the working group has held several meetings with the objective of building consensus on a framework and Bill to implement the two-thirds principle. As a Committee, we await the outcome of this process, which will then inform the recommendations that we will be presenting to the House regarding the Bill for further processing.

Senate.

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

These are -

design and framework for civic education in Kenya; (ii) Statement sought by Sen. Kibwana, on the early release of inmates convicted of minor offences; and (iii) Statement sought by Sen. Wafula, regarding pending bills occasioned by the Senatorial by-election in Bungoma County. The Committee met with the respective Senators who sought the Statements as well as the relevant stakeholders, wherefore the Statements were responded to. The Committee also identified areas for further engagement arising from the said meetings and deliberations.

Madam Temporary Speaker, yesterday the Committee met the Independent Electoral and Boundaries Commission (IEBC) secretariat who tabled before us a report on the Statement by Sen. Wafula. The report confirmed that there has already been compliance on the part of the IEBC in the payment of the outstanding bills to the service providers who had been contracted during the by-election in the relevant county.

What also transpired yesterday in the meeting that the Committee held with IEBC was that there were certain legislative proposals and electoral reforms, which would be relevant to the House and the entire electoral system of this country, as well as additional pending bills. It is worth noting that we discovered that there is a huge pending bill, amounting to over Kshs3.9 billion, which is yet to be cleared by IEBC to various service providers who were contracted during the 2022 General Elections, and some dating back to the 2017 General Elections.

Madam Temporary Speaker, these are the issues that the Committee has an obligation to engage on the way forward and to advise the relevant agency as well as the House in the manner it is supposed to handle the matter because they are stakeholders.

Madam Temporary Speaker, during the three months under reference, the Committee considered four Petitions –

the Torobeek Community. (ii) Petition by the Kipsigis Community Clans Organization members concerning historical land injustices suffered by the Kipsigis Community. (iii) Petition by Ms. Zipporah C. K. Seroney regarding mistreatment, harassment, property loss and human rights violation meted on the family of the late Hon. Jean Marie Seroney. (iv) Petition by Mr. Nayan Savla regarding the delay in launching the victims’ rights charter under the Victims Protection Act (No. 17 of 2014). In considering the Petitions, the Committee held deliberations with various stakeholders, and undertook site visits as follows –

County, where it received submissions on the Petition concerning historical injustices suffered by the Torobeek community.

(Sen. Shakila Abdalla’s microphone was off)

Sen. Shakila Abdalla, would you like to say a word to the students?

Senate.

I wish to inform the House and the Hon. Senators that the retreat took place. We met and held extensive deliberations with 17 key stakeholders who attended the retreat.

The Committee drew many lessons and action points from the retreat, which continued to inform the meetings that we have held as well as the upcoming sessions.

On county visits, over the past three months, the Committee made visits to the counties of Nakuru, Kericho, and Nandi during the consideration of the Petitions that I have afore stated. In this case, we have already submitted what became of those visits. The Committee further held deliberations with the county assembly delegations on benchmarking visits to the Senate including the County Assembly of Kakamega and the County Assembly of Kilifi. It is noteworthy to report to the House that these two particular county assemblies had stakeholder engagements with the committee and reported that they did not appreciate and understand the role of Justice and Legal Affairs Committees in the Assemblies; hence, they have never had sessions.

It was an eye opener for the committees in their respective counties to seek to establish the committees so that they do perform the role that they are expected to in supporting the processing of Bills and participate in that which the Committee is expected to.

Under the court matters affecting the Senate and the devolved system of government, the Committee on Justice, Legal Affairs and Human Rights has a standing agenda every month where it receives status reports, deliberates on and gives directions on cases pending in court relating to the Senate and devolved system of government. Where appropriate, we bring this to the attention of the Senate in Kamukunjis or both, for information and to enable the Senate to adopt a common position.

Since this is a substantive matter, I will separately issue a Statement updating the House on the status of the key matters that are very relevant and important for this House to be informed for serious and informed decisions to be made. On priorities for the next quarter, during the current quarter, three of the second session, which is also the first quarter of the Financial Year 2023/24, the Committee will continue to expeditiously process the business referred to it for consideration, including legislative proposals, Bills, Statements and Petitions.

Additionally, the Committee intends to hold targeted high level meetings on thematic areas falling within its mandates including the policy and legislative framework on elections and electoral laws reforms. This is what I had earlier on alluded to, that we had an engagement with the Independent Electoral and Boundaries Commission (IEBC) as well as receiving proposals on the areas which they have identified and earmarked. For instance, we have the issue of the upcoming boundary review, which as per the Constitution is supposed to be done within the next 12 months or so.

Secondly, in partnership with the Committee on Devolution and Inter- Governmental Relations intends to do civic education, public participation, the promotion, protection and enforcement of human rights, legal education, training and alignment of laws to the devolved structure of government.

As I conclude, I wish to thank your office for the support accorded to the committee in undertaking its work. I also wish to acknowledge the secretariat’s support that the committee has received from the office of the Clerk.

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.

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.

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

Senate. the Petition concerning illegal fraud by the First-Choice Recruitment and Consultancy Agency Limited, the Committee has engaged all the shareholders involved.

On the Petition concerning unfair terms and conditions of universal health care coverage, staff and delay in the internship posting, the Committee met the Chairperson of labour, Council of Governors (COG) today and will be meeting the Cabinet Secretary for Health on Thursday, 3rd August, 2023.

The Petition concerning the unlawful deductions of salaries by the Kenya Women Teachers Association (KEWOTA), the Committee met the petitioners and all the shareholders on 18th July, 2023. The Committee is scheduled to meet the shareholders on 1st August, 2023 on the Petition by the County Football Association (CFA) concerning the mismanagement of football in the country by the Football Kenya Federation (FKF).

The Committee will be briefed on the Petition concerning discrimination against other health workers in the Ministry of Health on Thursday, 3rd August, 2023, after which it will meet with the petitioners on 8th August.

Madam Temporary Speaker, the Committee has so far received 45 Statements. We have concluded on 15 statements, after we received responses from the various agencies and shared with the relevant Senators. The statements are as listed below:

Regarding the Statement sought by Sen. Wambua concerning the plight of Kenyan migrant workers in the Kingdom of Saudi Arabia and other countries in the Middle East, the Committee held a meeting with the Ministry of Labour and Social Protection and the Ministry of Foreign and Diaspora Affairs to apprise itself on the implementation status.

The Committee has written to the National Treasury and Economic Planning seeking for a progress report on the Statement sought by Sen. Wambua on the status of payment of the one-off honorarium to former councillors.

Madam Temporary Speaker, the Committee has not received responses on the following Statement from the Ministry of Youth Affairs, Sports and Arts, despite writing to them several times:

following poor performance at the 2021 Tokyo Olympics.

all 47 counties.

The Committee resolved to schedule a date and invite the Cabinet Secretary to respond to all the pending Statements. Similarly, the Committee also resolved to schedule a date to invite the Cabinet Secretary for Education to respond to the Statement raised by Sen. Wakili Sigei concerning discrimination of locals in the recent employment at Bomet University College. The Ministry has not responded despite being issued with reminder letters.

The Committee is awaiting responses for 26 Statements listed below and will report them accordingly.

The Statements are as follows:

Thank you, Madam Temporary Speaker. I take this opportunity to gladly welcome the princesses from Kajiado County. I am privileged to always sit with your Senator, Sen. Seki. He has stepped out for a very urgent meeting. He is very proud of you. We as Senators are also very proud of you.

I always say that education is what your parents can give and nobody can take it away from you. Always dream big, focus, aspire and enjoy your education because this is a stage that you are in. Tomorrow you are not going to be there. You will be on another level. In every step that you take ensure that you put Allah first and continue focusing, and dreaming big. You look very beautiful. Continue with the neatness that I see. As the saying goes, cleanliness is next to godliness. Keep shining, Kajiado County.

I thank you.

(Sen. Shakila Abdalla’s microphone was off)

Sen. Shakila Abdalla, would you like to say a word to the students?

Senate.

who were imprisoned at Kapenguria during the fight for the country’s independence.

Community in the fight for Kenya’s Independence.

Madam Temporary Speaker, most labour and welfare issues are matters of concern and the committee is committed to follow up and monitor the progress of implementation of various programmes under its mandate.

Thank you so much, I beg to table.

Sen. Orwoba, do you have a Statement?

Clerk, can you assist?

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.

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.

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?

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

Senate. the Petition concerning illegal fraud by the First-Choice Recruitment and Consultancy Agency Limited, the Committee has engaged all the shareholders involved.

On the Petition concerning unfair terms and conditions of universal health care coverage, staff and delay in the internship posting, the Committee met the Chairperson of labour, Council of Governors (COG) today and will be meeting the Cabinet Secretary for Health on Thursday, 3rd August, 2023.

The Petition concerning the unlawful deductions of salaries by the Kenya Women Teachers Association (KEWOTA), the Committee met the petitioners and all the shareholders on 18th July, 2023. The Committee is scheduled to meet the shareholders on 1st August, 2023 on the Petition by the County Football Association (CFA) concerning the mismanagement of football in the country by the Football Kenya Federation (FKF).

The Committee will be briefed on the Petition concerning discrimination against other health workers in the Ministry of Health on Thursday, 3rd August, 2023, after which it will meet with the petitioners on 8th August.

Madam Temporary Speaker, the Committee has so far received 45 Statements. We have concluded on 15 statements, after we received responses from the various agencies and shared with the relevant Senators. The statements are as listed below:

Regarding the Statement sought by Sen. Wambua concerning the plight of Kenyan migrant workers in the Kingdom of Saudi Arabia and other countries in the Middle East, the Committee held a meeting with the Ministry of Labour and Social Protection and the Ministry of Foreign and Diaspora Affairs to apprise itself on the implementation status.

The Committee has written to the National Treasury and Economic Planning seeking for a progress report on the Statement sought by Sen. Wambua on the status of payment of the one-off honorarium to former councillors.

Madam Temporary Speaker, the Committee has not received responses on the following Statement from the Ministry of Youth Affairs, Sports and Arts, despite writing to them several times:

following poor performance at the 2021 Tokyo Olympics.

all 47 counties.

The Committee resolved to schedule a date and invite the Cabinet Secretary to respond to all the pending Statements. Similarly, the Committee also resolved to schedule a date to invite the Cabinet Secretary for Education to respond to the Statement raised by Sen. Wakili Sigei concerning discrimination of locals in the recent employment at Bomet University College. The Ministry has not responded despite being issued with reminder letters.

The Committee is awaiting responses for 26 Statements listed below and will report them accordingly.

The Statements are as follows:

Senate.

royalties in Kenya.

Government.

officers in the Kenya Police.

and unprocedural recruitments by the Kisumu County Public Service Board.

Fund for the Disabled of Kenya (NFDK).

Disabilities (PWDs) as reflected in the National Census of 2019.

employees of the Kenya Railways Corporation (KRC).

Programme (OPCT) in Embu County.

James Finlay (Kenya) Limited in Kericho and Bomet counties.

of service for clinical officers.

County Government of Marsabit.

children.

recruited during the tenure of Nairobi Metropolitan Service (NMS).

in the Kenya Police.

County Government of Taita-Taveta.

employment quota for PWDs in the public sector recruitment.

bearing names of former presidents and leaders.

Early Childhood Development Education (ECDE) teachers in Kirinyaga County.

under the OPCT Programme.

distances drivers and conductors.

Senate.

who were imprisoned at Kapenguria during the fight for the country’s independence.

Community in the fight for Kenya’s Independence.

Madam Temporary Speaker, most labour and welfare issues are matters of concern and the committee is committed to follow up and monitor the progress of implementation of various programmes under its mandate.

Thank you so much, I beg to table.

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.

Senate.

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.

Senate.

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

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

Have you ventilated in other platforms?

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---

Senate. passport and facilitate me for the trip where I had been invited as a legislator, there is the issue of Bills and impersonation of my office.

I have also raised several Statements on the Floor of the House where I am playing oversight, which is my role as a legislator. At one time, a Committee came and said that they have dealt with it but it was established to be false information.

I am giving an account of certain things that are happening with my legislative agenda and my work here. I have concluded that the challenges I am facing are not unique.

Madam Temporary Speaker, because of your interjection, I ask if you can add me three minutes. I can see the amber light is on.

After doing my research, I found out that the challenges that I am facing are serious emissaries and agents who are against this House. When they observe that there is a certain legislator who is pushing for certain things, they make sure they divert the course.

I have suffered because of representing women. In certain instances, you have seen it on the Floor of the House. Even if you look and check through the HANSARD, you will see that during the impeachment case of Gov. Mwangaza, I raised certain issues.

I have suffered and been punished because of defending the girl child and the woman. As I speak, I have been blacklisted - this is a fact - from any trips to represent the Senate of this country.

Without being emotional and because I know that I am guided under Standing Order No.58 not to mention names, certain things are so obvious. Certain offices here in the Senate, are directly targeting me as a legislator and ensuring that I am unable to prosecute my work as a legislator in the Senate of Kenya.

This being my Personal Statement, I would like to say that all the issues that I am raising here might not be unique to me. I know other legislators who might not have the courage per se, to come and give Personal Statements and personal accounts that are dealing directly with individuals or offices who are operating as cartels in the Senate.

This is a serious issue and I do not know what Standing Order No.58 says but this is my last attempt at getting justice and being allowed to prosecute my duties as a legislator. This is because there is an office in the Senate that has targeted me as a legislator; as Sen. Orwoba. The office holder is aware and---

Senate.

Senate.

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 –

Senate. with the national Government representation. As such, the committee from the public participation that we presided over, recommends that the membership to the board by the CoG be increased by a further one board member.

County Technical Committee in line with the previous regulation. This Bill recommends that co-chairing be done and the advisory board at the national level do the appointment of this Technical Committee.

on Revenue Allocation should provide a clear description of

the term ‘marginalised areas’. The misunderstanding where poverty is equated to marginalisation and marginalisation equated to poverty where urban poor and pockets of poverty have been identified as marginalised areas, need to be corrected.

A clear term of what marginalisation entails which is resulting from a state of deliberate resource denial by successive governments starting from the colonial government followed by all other governments before the advent of devolution that created a situation of grave under development in selected counties. That was initially the constitutional term of marginalised areas. However, this has been subjected to quite a bit of definition from many participants to a level that has been diluted so much that equalisation is supposed to mean poverty and arguments follow that line.

Equalisation Fund should only be utilised indirectly as conditional grants to counties as per the ruling of the court in line with the case I have just mentioned.

found unnecessary since the main role of the office is mainly oversight of implementation of the Fund.

Therefore, the Committee having considered all these inputs, the Bill to be approved by the Senate as amended and recommended by the committee.

I beg to move and request Sen. Tabitha Mutinda to second.

Senate.

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.

Senate.

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---

Senate.

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.

Senate.

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 –

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---

What is wrong with Sen. Cherarkey today?

Sen. Cherarkey, let him finish.

Senate.

We have situations where some projects are still half way, not commenced or are pending. Some projects have been completed but have not been handed over because of a few challenges. This Bill proposes the formation of a committee. The committees will play a key role in strategising to ensure the four devolved functions are achieved.

The members proposed to be nominated to sit in the Equalization Fund Advisory Board include the Chairperson who shall be appointed from the National Treasury, the office of the Principal Secretary in the National Treasury and the Principal Secretary in Devolution and Planning Ministry. This will bring synergy between the Office of the Principal Secretary in charge of Finance and Devolution because it touches on the four devolved functions that the fund takes care of.

The Bill has also given a representation of the pastoralist communities. This is a key and important area. The over 1400 marginalised areas are within the rural areas, hence people will have an opportunity to identify their own key and needful projects. The representation of the pastoralist communities on the board is a big plus.

The Equalization Fund Advisory Board shall also have a person nominated by the Senate. One person nominated by the Council of Governors (CoG) was drawn from areas identified as marginalised by the Commission on Revenue Allocation (CRA). This combination means that projects can first be identified and then implemented. The board will ensure that services required by the people are given.

The Bill has also talked about the duration of the fund and capped it at 10 years. Depending on the happenings, it has room for extensions. However, 10 years are enough to see change. The County Technical Committees are also a creation of job opportunities for our people in the marginalised areas. The members of the committee will earn sitting allowances and other allowances when playing their roles. Also, when the infrastructures are built, like facilities, we will have more job opportunities in these institutions. Also, when there is access to water in the agricultural areas, then most marginalised regions will be food secure.

The Equalization Fund Administration Bill is key at this particular time. We are happy as the 13th Parliament to table this Bill. We are sure that this Bill will reduce the number of years for implementation of projects. With the County Technical Committees proposed in the Bill in place, the pending projects will be completed.

With those remarks, I second the Bill.

Thank you, Senator.

Senate. 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.

Senate.

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.

Senate. little Fund. This is why I say, let us rise above these things and just let the money go to pull up those Kenyans.

I came from Britain the other day and a thought stuck me. When I was landing in the morning, I looked at London and wondered what they see when they are landing here? It is going to take us probably 200 years to remove our manyattas and renew our slums. So, if there is something that we can do affirmatively so that the correction can be done, let us do it.

Madam Temporary Speaker, with those many remarks, I support very strongly that this money be administered well.

I thank you. (Interruption of debate on the Bill)

Madam Temporary Speaker, I rise under Standing Order No.105 read together with Standing Order No.101. I sit in the same Committee with my brother Sen. (Dr.) Khalwale also known as “the bullfighter”. I do not know why his bullfighting tendencies are being brought here. The way he has opened his contribution on this matter is basically accusing and seeking to discuss the character and the motivation of a Member of this House without a substantive Motion, notwithstanding the fact that what he is raising about Sen. Okiya Omtatah is not relevant to this Bill.

This Bill is on ensuring that there is effective administrative structures ---

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.

I will now invite Sen. Omogeni from the neighbouring county and Sen. Okenyuri to welcome the visiting delegation.

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.

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---

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?

Sen. (Dr.) Khalwale, you began well by cautioning yourself about the Sub Judice rule but you veered off. I would like to read for you Standing Order No.101 (4) –

“No Senator shall impute improper motive to any other Senator or to a Member of the National Assembly except upon a specific substantive Motion of which at least three

Senate. 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

Proceed, Sen. Cherarkey.

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.

I will now invite Sen. Omogeni from the neighbouring county and Sen. Okenyuri to welcome the visiting delegation.

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.

Sen. Cherarkey, I believe you are a counsel yourself. Therefore, you should have the roll of senior counsels of the Republic of Kenya. Can you respond to that?

My apologies. I meant Hon. Amos Wako. How can a medical doctor know who a senior counsel is and who is not? It escaped my mind.

Sen. Omogeni is the one who introduced the rules for senior counsels when he was the Chairman of the Law Society of Kenya (LSK) . He said that if you serve as the Chair of the LSK, you must be a senior counsel. How did he become a senior counsel? I am not doubting him because he has defended me before and he did well but I stand guided.

On a point of information, Madam Temporary Speaker.

Sen. Cherarkey, do you wish to be informed?

Yes. I can be informed by Sen. Omogeni.

Senate.

I thank you.

Senate. going to make a recommendation that we bring back CLE for some cadre of lawyers serving in the Senate.

Madam Temporary Speaker, I wanted to inform the Member here, so that he does not mislead the nation.

Proceed, Sen. Cherarkey.

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?

Senate.

Socrates said that we are sojourners on this earth. When our time comes to an end, they will take over the reins and offices and become Senators, leaders, presidents, lawyers and doctors.

I am happy a medical doctor, Sen. (Dr.) Khalwale, and our senior counsel have welcomed them. At the moment, we have only two senior counsels; Sen. Omogeni from Nyamira and my former lecturer Sen. (Prof.) Tom Odhiambo Ojienda, SC, the Senator for Kisumu.

Previously we used to have two senior counsels; Hon. Wetangula, the current Speaker of the National Assembly and Hon. Orengo, who is now the Governor of Siaya. We also have a medical doctor in the House who is the Senate Majority Whip.

Madam Temporary Speaker, for your information, Sen. (Dr.) Khalwale is the Whip of the majority side and---

On a point of order, Madam Temporary Speaker. I am sorry to interrupt Sen. Cherarkey. However, since this is a House of record, I rise under Standing Order No.105. Will I be in order to request him to withdraw his statement that the Speaker of the National Assembly, Rt. Hon. Moses Wetangula, is a senior counsel?

Sen. Cherarkey, I believe you are a counsel yourself. Therefore, you should have the roll of senior counsels of the Republic of Kenya. Can you respond to that?

My apologies. I meant Hon. Amos Wako. How can a medical doctor know who a senior counsel is and who is not? It escaped my mind.

Sen. Omogeni is the one who introduced the rules for senior counsels when he was the Chairman of the Law Society of Kenya (LSK) . He said that if you serve as the Chair of the LSK, you must be a senior counsel. How did he become a senior counsel? I am not doubting him because he has defended me before and he did well but I stand guided.

On a point of information, Madam Temporary Speaker.

Senate.

Looking at the architecture and design of the Constitution, we now import Article 204 which creates the Equalization Fund by giving it life through such Equalization Fund Administration Bill, 2023.

Madam Temporary Speaker, in Clause 6, I note that one person has been nominated by Senate which I think is important. I have a problem with the Advisory Board though which will in consultation oversee, monitor and evaluate. I have heard conversations about marginalization and affirmative action regarding the traditional marginalised and hardship areas.

Can you believe, 60 per cent of Gross Domestic Product (GDP) is in Nairobi? Some areas like Mukuru kwa Njenga, Kibra and Mathare among other slums can be regarded as hard ship areas. Today we are giving Kilifi part of the Fund.

I will be looking forward to Terik Ward in Nandi County being given a hardship allowance. I have been looking forward to most parts in Nandi Hills and Tinderet Constituencies being given full hardship allowances. Even other slum areas such as Nyalenda in Kisumu because we have what we call urban poverty.

The danger in this country is no longer the traditional marginalised areas. If you look at Commission of Revenue Allocation (CARA) report on poverty index, in fact, the traditional areas of the Norther Frontier are wealthier.

This is because, when you look at the statistics that was done by CARA before, the poverty index in for example Busia is very high. We must agree that the issue of marginalisation and affirmative decisions must be made. This Board is very critical.

Since I wanted to use a few minutes so that I can allow Sen. Oketch Gicheru to give his input. Clause 16 is very important. I am happy that in these marginalised areas such as water and sanitation, roads, health facilities, electricity and other basics as shall be identified CARA has been noted very well. It is just an import of Article 204 of the Constitution 2010.

I have a problem with Clause 17 that says; “Each County Commissioner of an eligible county shall establish and convene a County Technical Committee comprising of-

are disbursing? The issue of provincial administration is unconstitutional, first of all. The Constitution of Kenya did away with traditional provincial administration.

I think the Committee should amend this. We must have a representative of the Senator at the County Technical Committee. We cannot be appropriating money and give other people to implement. The Chairperson of Finance and Budget should take note because we have the County Commissioner and CECM of Finance. Why can a Senator not give a representative?

We are not saying this is the committee that will manage money but so that as a Senator, you are aware of where money is going. This is about oversight so that you do not just allocate money and dispense. Somebody can argue that, it will be a conflict of interest. How can it be?

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

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?

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.

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.

Senate.

The Member of National Assembly is doing legislation, oversight and representation but they are patrons of County Development Fund (CDF). They do not directly run the CDF but they are patrons. That is the role we should import.

The Women Representative is a patron of the Women Affirmative Fund. She does not directly handle but there is a board and a Fund manager.

As a Senate, that is how we become relevant. Sen. Omogeni, SC, you remember, in the last session, we fought over the establishment of County Roads Board. The National Assembly selfishly ensured that they have a representative from the constituency level but they did not put a Senator. Yet, they wanted us to pass it.

That is why we become relevant. That is why you get people like Sen. Omogeni and Sen. Okiya Omtatah going to court to try and create space for us where we are running away. We are edging ourselves out of the space. That is why, even Ministers do not appear in the Senate because they have a condescending attitude because they imagine we do not bite. We must stop this. The Senate must occupy its rightful place.

Madam Temporary Speaker, Clause 20 must be amended. That, a Senator of a county should be given power to give a representative to sit in that Technical Committee. Personally, I would want to know about the Kshs157 million plus that is going to Nandi but I am in Senate.

The law should allow me to elect my representative, maybe a county manager to go and sit in that Technical Committee and be aware. I do not have a problem with Clause No. 21. It is also about appointing the Project Identification and Implementation Committee. The County Commissioner can appoint your opponent. We need to be careful. What we are creating is very dangerous. We could be feeding a dangerous animal.

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?

Senate.

Madam Temporary Speaker, I hope Sen. (Dr.) Khalwale is getting the notes bullet by bullet. The only problem I have here is the involvement of counties which are bastions of corruption.

Today, I saw Sen. (Dr.) Khalwale attending a programme on the state of the Nation.

We are also going to hold the Devolution Conference in Uasin Gishu. The biggest clogging system, threat and cancer of the functionality of devolved units in this country, is corruption.

Madam Temporary Speaker, yesterday, there was a complaint that it looks like we have gone back to the default settings of 2013 where money was just being released to counties and there were no accountability measures.

As the Vice Chairperson of the County Public Accounts Committee (CPAC), if you look at the heart, body, blood and system of counties, it is infected by corruption and lethargy.

Corruption continues to eat our counties. I do not find any wisdom where a governor runs around to look for scholarships for children outside the country while the roads in the village are not passable or water cannot be accessed.

Where do they get this energy of running to look for scholarships and not fixing feeder roads, water, or drugs in hospitals? Nowadays, I see them busy lobbying for national Government projects. That is not their business.

When we budget in Parliament, it should guide them. Governors have now left their jobs of fixing feeder roads, water, Early Childhood Education Development (ECDE) and drugs in hospitals. They are now busy doing other things; coming to the Council of Governors (CoGs) and perpetuating many issues that do not tally with the Fourth Schedule.

Madam Temporary Speaker, I want to ask that during the Devolution Conference, Sen. Omogeni Senior Council (SC) be given an opportunity to school governors about their role as per the Fourth Schedule because we are going back.

Someone would ask why we are coming up with Sen. Ali Roba’s Equalization Fund (Administration) Bill and the Conditional Grants Bill. We are ring-fencing the law because governors cannot use the money well. We have to guide them and tell them where to put money. Devolution should work.

I hope people like Sen. Ali Roba will be given an opportunity to speak to governors on how devolution can change the lives of people, the way it has changed in Mandera County.

I know Kakamega is in a sorry state. I do not want to say much of that because I am their neighbour.

Madam Temporary Speaker, that is one of the biggest challenges that we are still undergoing. I say this with tremendous respect.

I ask the Committee of Finance and Budget to give us the opportunity to amend this Bill when it reaches the Committee of the Whole Stage.

Let the Senate not remove itself from the role that it should be participating. Before we know it, this Senate will have to be closed. This is because slowly by slowly, we are relieving ourselves from the role that we should be doing.

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?

Senate.

Senate. and defining projects at the grassroots and coming back here to oversight ourselves. It is not possible.

This Bill will ensure that there is ultimate transparency with governance across the jurisdiction of the Equalization Fund. Why do I say this? In the current formation, we have had struggles with the National Treasury to even know the nature of funds that have been released, to whom, which kind of projects have been done by whom, and which ones are stalling. Why? Because of the lack of these administrative functions. There are some places where the National Government did projects in the healthcare space. However, with no clarity of administrative structure, to date, we do not know whether they succeeded or not. This functional unit will ensure ultimate transparency.

Lastly, the Equalization Fund cannot succeed without account accountability and operational efficiency. It should not just be a framework. It should be efficient. If you look at the work that this Committee did, it tried as much as possible to devolve the units to the ground to the best level possible.

As I finish, it should also interest this Senate and keenly so that as a Committee, we have proposed that we acknowledge that the sunset clause of this Bill gives it up to 20 years. However, due to these challenges, it is almost 12 to 13 years now and this Equalization Fund has not taken properly root. We only have about seven years to think about attaining the purpose of this Fund. That is not adequate time. We can never do justice enough to the constituencies of people, particularly the 14 counties that were marginalized by the Sessional Paper No.10 of 1965. We can never do them justice enough alongside other pockets of marginalized areas that have been identified by the CRA if we adhere to the sunset clause.

If you look at this Bill in the context of Clause 204 (7) which provides for the lifetime of the Fund and how it can be reviewed in the context of Clause 204 (8). We need to rethink the idea of what I would call absolute equity. It is the idea of great fairness and impartiality. There was no impartiality when these counties were marginalized.

Madam Temporary Speaker, I would urge my colleagues, the Senators to keenly look at that provision of this Bill and endorse the fact that we can add about 10 more years so that the need principle, the capacity principle, the effort principle, the efficiency principle, the basic minimum principle and the fair process principle can be achieved for the people who have been marginalised over time, so that we can have equity this country in terms of these marginalised areas coming to par with other areas of this country.

Therefore, Madam Temporary Speaker, I absolutely support this Bill and appreciate so much the Chair and the Vice-Chairperson of the Committee on Budget and Finance for their tremendous work, commitment and passion to ensure that at long last, Equalization Fund can work for this country so that we can be a nation, not nations staying in their own enclaves.

Madam Temporary Speaker, I support. Thank you so much.

Thank you Sen. Oketch Gicheru.

Sen. Omogeni, you may have the Floor.

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.

Senate. 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.

Senate.

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.

Senate.

One of the roles is to protect the interest of counties, which does not only involve sending money but also oversighting it and representing the people.

Madam Temporary Speaker, with those remarks, I support this Bill. When it comes to the Committee of the Whole, I will have a few amendments to put here and there.

I am happy that Sen. Oketch Gicheru is at least doing legislative work. I also want to advise him that meaningful change can only be done on the Floor of the House and not in the streets of Nairobi.

Thank you, Madam Temporary Speaker.

Senate.

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.

Senate.

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

why Sen. Cherarkey has left the House. This one he should have listened to.

Article 204(2) of the Constitution states – ‘The National Government shall the Equalization Fund only to provide basic services including water, roads, health, facilities and electricity to marginalized areas to the extent necessary to bring the quality of these services to those areas to the level generally enjoyed by the rest of the nation, so far as possible.’ This means that while the marginalization problems of not having these functions manifest in counties and while also while some of the functions that are indicated here like water, and health have been devolved to the counties, the fact remains that this money is for the National Government to do these interventions. Our work is to ensure that we unlock the growing regulatory complexities of those functions that end up being in the hands of the county. It will be wrong for any Senator to propose that we have a Member of the Senate or any person from the Office of the Senate be in the implementing arm or any other structure of this Fund. That would be problematic.

Secondly, on a light note on that point, Sen. Cherarkey should learn that we keep on insisting that this is the ‘Upper’ House. This is because of the majoritarian responsibility that we have. A county represents a varied number of Constituencies. If the National Assembly chooses to disregard their role under Articles 93 and 94 of the Constitution to the extent that they want to mix legislative, oversight and representative functions with the Executive functions, to the extent of insisting that the National Government- Constituency Development Fund (NG- CDF) is constitutional. The National Assembly wants to have their hands in the NG-CDF and implementing a project. However, we in the Senate believe that it is unconstitutional. Anywhere in the World, you cannot have the same oversights implementing projects and want to oversight itself.

There is no reasoning other than we should do the same misnomer that the National Assembly is doing just to compete with the National Assembly. We are not the National Assembly. We are the Senators of Kenya. We must stamp our feet as the Senate that we will remain loyal to the Constitution of Kenya. Where we are tempted to get some executive powers of going to implement projects on the ground just to get some money and campaign with people on the ground because you have executed some projects that we will not do. It is unconstitutional. We cannot have our hands in the functions that are executive in nature.

Let the people who are implementing the executive programs do so and let us on the other hand oversight them once they have done their job. That is why I agree with Sen. (Dr) Khalwale that we cannot have our hands going to the pot of implementation

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.

Senate.

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

Senate. 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.

Senate.

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.

Senate.

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