Thursday, 28th March, 2013

“LEGAL NOTICE No.56 THE CONSTITUTION OF KENYA FIRST SITTING OF THE SENATE

On a point of order, Mr. Clerk. You have just informed us that a number of people have withdrawn. Whereas we have no problem with that, because of the calling placed on the Senate and the seriousness that the country is viewing the Senate with, it would be important to the country to know why people who had few hours ago, lobbied us and asked some of us to propose and second them have withdrawn. Kenyans know that this Senate will not be for purposes of playing political games where people want to pull towards one region, party or ethnic community. Could we know the reasons these people withdrew their candidature before we vote?

The Clerk of the Senate (Mr. Nyegenye) : Sen. (Dr.) Khalwale, it is the right of any qualified citizen to put in their candidature for the Office of Speaker and the Office of Deputy Speaker and to similarly, at anytime before the commencement of the ballot, to withdraw. The reason that provision has been made specifically in our Standing Orders of the Senate for withdrawal is because of the recognition of the prerogative and right of every candidate to put in their names and withdraw before the commencement of the ballot. They are not required to assign any reasons for such withdrawal. I am unable to take up your invitation to require that reasons be furnished.

We will accordingly proceed in the manner that I was detailing. I direct that the ballot box be now locked in the presence and viewing of the Senate.

On a point of order, Mr. Clerk. We are also curious as to what gadget you will use for the tallying of the votes.

The Clerk of the Senate (Mr. Nyegenye) : Hon. Sen. Omar, you will shortly observe.

Thank you very much. Hon. Senators, Standing Order No.6 (3) requires that the Clerk shall issue not more than one ballot paper to each Senator who comes to the Table to obtain it and each Senator who wishes to vote shall proceed to a booth or designated area provided by the Clerk for that purpose and located next to and within reasonable distance of the ballot box and shall, while there, mark the ballot paper by placing a mark in the space opposite the name of the candidate for whom the Senator wishes to vote, fold the marked ballot paper before leaving the booth or area and place the folded ballot paper in the ballot box.

The polling booths are on my left as displayed.

Pursuant to this Standing Order, I now direct that a ballot paper be issued to each Senator who comes to the Table to obtain it. To facilitate this process, the name of each Senator shall be called out, following which the Senator shall come to the Table, on my extreme left and obtain a ballot paper. Each Senator shall then proceed to either of the two polling booths which are clearly marked and while there, mark the ballot paper and fold it. The Senator will then place the marked ballot paper in the ballot box. We are now ready and shall commence the voting process.

On a point of order, Mr. Clerk. I think that it would be important to have representatives of the candidates of the coalition parties in the tallying and counting of votes.

The Clerk of the Senate (Mr. Nyegenye) : Thank you. That point is noted and acknowledged. At the appropriate time we will invite the agents or any other interested Senator who would like to view the counting and tallying to be present, but we are not yet at that point. So, we are ready to proceed in the manner that I have detailed.

Hon. Senators, Standing Order No.7 (1) provides that a person shall not be elected unless the person is supported in a ballot by the votes of two-thirds of all the Senators, that is, unless supported by the votes of 45 Senators.

Hon. Senators, it is apparent from this result that none of the candidates has met the threshold of 45 votes provided for under Standing Order No.7. Standing Order No.7(2) requires that if no candidate is supported by the votes of two-thirds of all the Senators as has happened, a fresh election shall be held and in that election, the only candidates shall be:-

On a point of order, Mr. Clerk. The Clerk of the Senate (Mr. Nyegenye) : Yes, Sen. Mbuvi!

Could we have the agent for Hon. Maalim execute the Form 36 so that he does not go to the Supreme Court with fabricated results?

The Clerk of the Senate (Mr. Nyegenye): Hon. Senators that is not a valid point of order. We shall await the advent of the Speaker-elect.

On a point of Order, Mr. Clerk. I can confirm that I signed the form. I was not quite sure whether the other agents signed that form.

The Clerk of the Senate (Mr. Nyegenye) : Hon. Senators, the forms have been dully signed, we await the advent of the Speaker-elect. We will meanwhile prepare to Swear-in the Speaker-elect. The clerks will proceed to take their places.

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Hon. Senators, I feel greatly honoured and highly privileged today to have been elected to this esteemed position of the Speaker of the Senate. I am humbled by the immense confidence and the trust that you have demonstrated and bestowed on me. I also wish to salute and to thank my able opponents for upholding a high degree of democracy.

Allow me, hon. Senators, from the very beginning to convey my sincere congratulations to the entire membership of this House for your successful election. I also want to salute you, my Senators, for giving me this onerous mandate of the Office of the Speaker and for entrusting me with this task and noble duty to serve you.

As you assemble here this morning, it is important to visualize the re- establishment of the Senate with a sense of history. The first Senate existed in the immediate post-independence period from 1963 until 1966 when the Provincial Assemblies were scrapped and the Senate itself got dissolved. The Members of the Senate then were combined with those of the House of Representatives into a unicameral

National Assembly. The independence Senate was conceived as a model of governance that would ensure balanced, equitable and just development within the various regions of Kenya.

Hon. Senators, today we have the greatest honour to have with us Members of the first Senate of the Republic of Kenya. May I take this singular privilege and honour to recognize these pioneer citizens and I would like to recognize them by name. We have the hon. Sen. Henry Malingi from Kilifi, Hon. Sen. Omar Abdi Adulahi from Wajir, Hon. Sen. Philip Toikam Lemein from Narok, Hon. Sen. Mohammed Noor Hussein from Mandera, Hon. Sen. Mohammed A. Msalaam from Lamu, the Hon. Sen. Nathan W. Munoko from Bungoma, Hon. Sen. P. N. Munyasya from Kitui, Hon. Sen. Julius Muthamia from Meru, Hon. Sen. J. M. Nthula from Machakos. Hon. Sen. William Rotich from Baringo, Hon. Sen. G.N. Kalya from Nandi, Hon. Sen. Ondiek Chillo from Central Nyanza, Hon. Sen. Lawi Nkubitu from Isiolo, Hon. Sen. Shadrack Nyaga from Embu and the Hon. Sen. Philip Chemjor from Elgeyo Marakwet.

Hon. Senators, we wish to pay great tribute to these gentlemen and to accord them our sincere gratitude as great sons of Kenya for their patriotism and foresight. For those present here who have spared their time to grace this occasion we commend them for heeding our call to grace this historic occasion of another Senate. We wish them great health and long life. We will always look upon you for inspiration, guidance and encouragement to actualize the long held dream of devolution. We also want to promise you that this time round, we will get it right.

Hon. Senators, as I take the mantle of leadership of the Senate, I am not under any illusion. The task and responsibilities ahead of me and the other leadership that will be elected to various offices are enormous and challenging. The task before us will require exceptional commitment, focus and harmony and the unity of purpose in the performance of our constitutional mandate. Given the high expectations that the Kenyan people have in the devolved system of governance, there is little or no option for us but really to succeed. Devolution is envisioned to be the onerous challenge to take power and resources to the people.

The primary mandate of the Senate as per Article 96 of the Constitution will be to represent the counties and serve and protect the interests of the counties and their governments. The Senate has therefore the constitutional mandate to ensure successful implementation of the devolution process. The Constitution also provides that the Senate will participate in law making by considering, debating and approving Bills concerning our counties. Further, the Senate has the mandate to determine the allocation of revenue among counties as provided for in Article 217 and to exercise due oversight over the national revenue allocated to county governments. In addition, the Senate will participate in the oversight of State officers by considering and determining any resolution to remove the President and the Deputy President from office in accordance with Article

business in this House in a serious manner that will unlock the massive potential of Kenyans and harness it with the various counties for the well being and welfare of the people of Kenya, for faster growth, more equitable development and of the less developed and marginalized counties of the Republic of Kenya.

We invite, therefore, the people of Kenya, all our friends and development partners to work closely with and to support the work of our nascent Senate. I want to assure them that they will find a worthy partner in the Senate leadership and Secretariat.

We are cognizant of the need to develop and nurture strong collaboration with our Government and friends of Parliament in the effort to promote development in our counties in particular and Kenya as a whole. Hon. Senators, you may also wish to recall that the Kenyan Vision 2030 which is the country’s development blueprint aims at transforming Kenya into a new industrializing middle income country providing high quality of life.

We have an obligation as an institution and a duty to ensure that we make a contribution to this particular vision, especially in realizing the potential to promote growth and development at the grassroots levels and to stir rural economies.

The key challenges of development in Kenya remain poverty, unemployment and inequality. Highly developed countries like the United States of America (USA), Japan and China have been able to surmount these challenges by attaining the current levels of development mainly because they have given special attention to empowering their local entities to have increased both quality and volumes of trade especially international exports. This has been made possible by deliberate intensified and focused promotion of effective legislation, representation and oversight over revenues collected and allocated to various levels of governance. Kenyans will, therefore, expect nothing from us but the same so that our Senate can deliver on the promise of devolution.

As your Speaker, I wish to adopt and nurture collegiate leadership that will transform our Parliament by ensuring the following:-

Hon. Senators, in conclusion, Kenyans in particular and indeed the East African region and the entire world will be keenly watching us as a Senate. We will be expected to engage in objective, constructive and value adding deliberations. Therefore, we have to prioritize matters of national interests especially the promotion of peace and democratic ideals as we undertake our duties. It is, therefore, important that we make credible contributions to advance the image and the overall development of our country. Therefore, as a model legislative House for the country, we will be expected to offer the requisite inspiration, guidance and confidence to them. Hence, we have a duty to conduct ourselves with decorum, consistently observe the due process and to uphold the rule of law, legality and the culture of constitutionalism.

On my part, hon. Senators, I want to promise that under my stewardship, my commitment to the people and to you, is to be a faithful servant and diligently discharge my duties. I shall respect and uphold the rule of law and nurture the culture of constitutionalism, protect and defend our Constitution and always safeguard the role of the senate. Therefore, I call for your support and co-operation and welcome all of you to work with and the entire Senate leadership for the success of our country and prosperity.

Thank you all and God Bless Kenya.

On a point of order, Mr. Speaker, Sir, allow me to congratulate you and inform you that I wish to withdraw my candidature for the election to the Office of the Deputy Speaker of the Senate before the commencement of the ballot. Will I therefore be in order to proceed and table my withdrawal letter?

Hon. Senators, you will just appreciate that I have just assumed office. So, we are still learning.

Sen. (Dr.) Machage, you are at liberty to do so and you may come forward to the Clerk.

Hon. Senators, Standing Order No.13 (1) provides that as soon as practicable after the election of a Speaker following a general election, a deputy speaker shall be elected. Standing Order No.13 (3) further provides that a procedure for electing a deputy speaker shall, with necessary modifications be the same as that prescribed for the election of the Speaker.

Hon. Senators, for the position of the Deputy Speaker, the following candidates were validly nominated as at the close of the nomination period:-

The Senator shall then place the marked ballot paper in the ballot box. We shall now commence the voting process.

Order, hon. Senators, Standing Order No.6 (6) provides;

“When it appears to the Speaker that all Senators present and who wish to vote have placed their ballot papers in the ballot box, the Clerk shall unlock the box, examine the ballot papers and, having rejected those ballot papers that are unmarked or spoilt, report the results of the ballot; and no Senator who has not already recorded his or her vote shall be entitled to do so after the Clerk has unlocked the ballot box.” Pursuant to this Standing Order, it, therefore, appears to me that the Senators who are present and who wish to vote have placed their papers in the ballot box. I now direct that the ballot box be unlocked and each ballot paper be examined.

On a point of order, Mr. Speaker, Sir. You forgot to call out the representatives of the candidates at the tallying point.

Order, Sen. Muthama! I thought that was out of request by the Senators. So, put the request and it will be granted.

Mr. Speaker, Sir, I put in my request and propose that Sen. Ongoro represents Sen. Khaniri, and Sen. Mositet will represent Sen. Kembi Getura.

Hon. Senators, pursuant to Standing Order No.6 (6) , I will now proceed to announce the results of the ballots as follows:-

On a point of order, Mr. Speaker, Sir. Since there are only two candidates, the rule of two-thirds does not apply.

Order, Sen. Kuti! The rule is not applicable to the number of candidates but to the number of votes you get in the first round of voting. So,

it is required that you get a clear majority of two-thirds for you to be declared in the first round. Failure to do so, we have to go to the second round.

I, therefore, declare that we go to the second round.

Hon. Senators, whoever wanted to vote has voted and so we would wish to start the counting of the votes and their scrutiny but since there was an interest in the agents, maybe the agents can come and witness the counting of the ballot papers.

Order, hon. Senators! Standing Order No.7 (4) requires that:-

“The candidate who receives the highest number of votes in the fresh election shall be declared elected as Speaker.”

The results of the second round of voting are as follows:-

(On arrival, the Speaker thereupon administered the Oath of Allegiance to the Deputy Speaker-elect, Mr. Kembi Gitura James)

Order, hon. Senators! We have come to the conclusion of that particular exercise, but I need to give you the requirements on the custody of ballot papers.

- “Immediately the results are declared, all the ballot papers used in the election of a Speaker shall be packed and sealed in the presence of the Senate and kept in the custody of the Clerk for a period of six months and shall thereafter be destroyed.” This provision also applies to the election of the Deputy Speaker.

Hon. Senators, the Clerk shall now proceed to pack and seal all the ballot papers on the election of the Speaker and the Deputy Speaker for safe custody in terms of Standing Order No.10.

Hon. Senators, there being no further business, the House now stands adjourned until such date as shall be notified as the date set for opening of Parliament.

The Senate rose at 1.55 p.m.