THE PARLIAMENT OF KENYA

Mr. Speaker, Sir, I beg to lay the following Paper:- A Report on the Tobacco Control Regulations 2014.

The Speaker (Hon. Ethuro)

Sen. Fatuma Dullo, I am told that you have some business to transact. However, you have not indicated any interest on my screen.

Yes, Mr. Speaker, Sir. I beg to lay the following four Papers on the Table:-

COPIES OF RULES OF INTER-PARLIAMENTARY GAMES TOURNAMENT

PROPOSED AMENDMENTS TO THE TREATY BY EALA

RESOLUTION OF NANYUKI III

May 28th, 2015 SENATE DEBATES

REPORT ON THE COUNTY GOVERNMENT DISASTER MANAGEMENT BILL, 2014

ANNUAL ESTIMATES OF REVENUE AND EXPENDITURE FOR THE NATIONAL GOVERNMENT, JUDICIARY AND THE PARLIAMENTARY SERVICE COMMISSION FOR THE FINANCIAL YEAR 2015/2016

Hon. Senators, I would like to lay the following Paper on the Table:-

Report of the Standing Committee on Finance, Commerce and Budget on the Annual Estimates of Revenue and Expenditure for the National Government, Judiciary and the Parliamentary Service Commission for the Financial Year 2015/2016.

REPORT ON THE CLIMATE CHANGE BILL (NATIONAL ASSEMBLY BILL NO.1 OF 2014)

Sen. Kivuti

Mr. Speaker, Sir, I beg to lay the following Papers on the Table:- Report of the Standing Committee on Land and Natural Resources on the Climate Change Bill, 2014, (National Assembly Bill No.1 of 2014)

On a point of order, Mr. Speaker, Sir. I have a response to an issue which is in today’s Order Paper. I am also supposed to give a response on the Forthcoming State Visit by the President of the United States, Mr. Barack Obama. I do not know which one to begin with.

May 28th, 2015 SENATE DEBATES

COMMUNICATION FROM THE CHAIR

RETREAT OF THE SENATE WITH THE TRANSITION AUTHORITY

The Speaker (Hon. Ethuro)

We are not there yet. You may need to approach the Chair first.

Order, hon. Senators! Before we commence Order No.7, I have two communications to make. The first one is about the retreat for the Senate with the Transition Authority.

The Transition Authority, in collaboration with the Senate, has organised a two- day retreat for the Senate from 18th June to 21st June, 2015. The retreat is aimed at sharing experiences in the transition to devolved Government, taking stock of what has been done and how much remains to be done for the full transition to a devolved Government.

The retreat will afford Senators an opportunity to critically discuss issues that have impeded the realization of devolution. The expected output of the retreat is to define the next steps, determine the type and kind of support required to complete the unfinished work and an exit mechanism.

Additional information can be obtained from the Office of the Clerk. I wish to take this opportunity to request all Senators to attend and participate in this very important workshop.

I deliberately did not communicate the venue. It will be communicated through the Office of the Clerk. The most important thing is for you to mark your calendar.

SPEAKER’S COMMENDATION TO SENATORS FOR DILIGENTLY DISCHARGING THEIR MANDATE

May 28th, 2015 SENATE DEBATES

On a point of order, Mr. Speaker, Sir. I would like to lead the rest of my colleagues in graciously acknowledging the compliments that you have accorded us today. However, in respect of the report on mediation on the Division of Revenue Bill, the consequence is that counties will get more resources. This calls for even greater concern by this Senate on how the increased resources will be spent by the county governments.

As you know, the matter lying at the High Court has made it difficult for the Committee on County Public Accounts and Investments to discharge its mandate.Is there any way that your office can find out what is going on at the Judiciary? If possible, use the counsels that were representing us to ensure that the urgency of the matter is put before the Judiciary.

On a point of order, Mr. Speaker, Sir. I join you in thanking our colleagues for living up to the expectations of the Republic of Kenya. However, I am only concerned about one issue which was raised by Sen. Muthama yesterday.

Under Article 114 of the Constitution, the Mediation Committee Report must be taken for assent within seven days of being passed. Considering that we passed the mediation report yesterday, and that our colleagues in the National Assembly have taken a break or adjourned without giving a specific date of coming back, it is only fair that the country is informed of the direction that this matter will take if this is not done within the seven days contemplated under the Constitution.

Sen. Kagwe

Mr. Speaker, Sir, as you appreciate the work that the Senators have done, and we thank you for it, it is only right that we too, as the Senate, appreciate that these things are also done under your leadership as the Speaker, Deputy Speaker and those who sit in the Speaker’s Panel.

The Speaker (Hon. Ethuro)

As we conclude, I want to thank all of you for the support. Sen. (Dr.) Khalwale, we have taken note of your issues.

As for Sen. Mutula Kilonzo Jnr., of course, you know that we only deal with our business and expect everybody else to do theirs. The country is watching.

What is it, Sen. Wetangula?

May 28th, 2015 SENATE DEBATES

The Speaker (Hon. Ethuro)

Sen. Billow, you keep appearing and disappearing from my screen.

Mr. Speaker, Sir, I also want to thank you for those kind remarks on the performance of the Members. I also thank your team and the leadership for that effort. I think we have done more in this Session than in the other Sessions.

I want to highlight the issue raised on the Division of Revenue Bill. These issues have timelines. So, I want to urge our colleagues in the National Assembly to take the opportunity to stand up with the people of Kenya and pass that Bill expeditiously, so that counties do not get into crisis. There is a thought going on in some of the Executive circles that the national Government will have 50 per cent of the Budget to spend and that the counties will not have money. However, let it be known to all and sundry that the national Government of Kenya will take responsibility if the county governments will not have money. As it happened last year, law or no law, they will to look for money in the interim because it really does not help anyone to deny counties what is rightfully theirs.

It is important to note that this Bill was passed after it had been negotiated through a mediation process. It is important that we pass that message to our colleagues that they need to live up to the expectations of Kenyans, as this House has done.

STATEMENTS

The Speaker (Hon. Ethuro)

Let us take Statements. We have been deferring Statements, but today we will take as many of them as possible. However, in order to do so, I will also be a bit hard; that you seek specific clarifications, not making another statement of your own. We will start with requests.

Sen. Kagwe.

DEPRECIATION OF THE KENYA SHILLING AGAINST OTHER MAJOR CURRENCIES

Sen. Kagwe

Mr. Speaker, Sir, I rise pursuant to Standing Order No.45 (2) (b) to seek a Statement from the Chairperson of the Standing Committee on Finance, Commerce and Budget, regarding the depreciation of the Kenya Shilling against other major currencies.

In the Statement, the Chairperson should address the following, among others:-

May 28th, 2015 SENATE DEBATES

The Speaker (Hon. Ethuro)

Mr. Chairman, Committee on Finance, Commerce and Budget.

Mr. Speaker, Sir, that is a very important question. The issue of the depreciation of the Kenya Shilling is a matter that is of concern to many Kenyans. In the last few weeks, the Kenya Shilling has depreciated to almost Kshs99 against the Dollar. In fact, on the counter it is slightly over Kshs99. That is a matter that we are all worried about.

Yesterday we raised this matter with the Treasury. We should be able to give a comprehensive Statement the first Thursday after we come back from recess.

In the meantime, I want to urge the Treasury to take whatever measures are necessary to stall the further depreciation of the Kenya Shilling. It is really affecting adversely, not just those who are paying fees and importing, but also the cost of living in the country. We all know that our imports far exceed our exports. This is a matter that the Government needs to take seriously even as we wait to address it comprehensively.

Sen. (Prof.) Lesan

Mr. Speaker, Sir, I want to add a rider on the question asked by Sen. Kagwe. To date, there is no substantive Governor of the Central Bank of Kenya (CBK) . We would really like to know when we are going to have a substantive Governor of the CBK who will go a long way to stabilize the depreciating Shilling. We want somebody who will give direction.

Mr. Speaker, Sir, one of the problems with the currency is the CBK Act which has not been enacted. It is stuck somewhere in the pipeline. Could the Chairman in the process, clarify to the nation the status of the proposed CBK Act

which should have been enacted immediately after the commencement of the new Constitution? The Act is expected to dictate how the Governor of CBK will be appointed. This crisis appears to be premeditated or orchestrated.

Sen. Machage

Thank you, Mr. Speaker, Sir. In response, could the Chairman also highlight whether this trend of devaluation of the Kenya Shilling is at the same rate of devaluation of the Tanzania, Uganda, Rwanda and Burundi shillings?

The Speaker (Hon. Ethuro)

We expect a response on the first Thursday after we resume from recess.

Is there any other request? Please, proceed Sen. Mutual Kilonzo Jnr.

May 28th, 2015 SENATE DEBATES LIFTING OF THE MORATORIUM ON TIMBER HARVESTING BY THE CS FOR ENVIRONMENT, WATER AND NATURAL RESOURCES

Thank you, Mr. Speaker, Sir. I need a clarification. You had made an order for a Committee of the Whole on the lifting of the moratorium on timber harvesting. It appears as if the Committee on Land and Natural Resources has either ignored or forgotten. I can see the Vice Chairperson here.

The Speaker (Hon. Ethuro)

Chairperson! Please proceed Sen. Khaniri

Sen.Khaniri

Thank you, Mr. Speaker, Sir. I have no brief on this particular one. We will consult in our next meeting and report back to the House on the first day of Sitting after recess.

The Speaker (Hon. Ethuro)

So ordered. Please, proceed Sen. Dullo. You had a response yesterday. You may start with that one.

FORTHCOMING STATE VISIT BY THE PRESIDENT OF THE UNITED STATES, MR. BARACK OBAMA

Thank you, Mr. Speaker, Sir. I managed to use the time given to me so that I could discuss further the issues raised in the House regarding the visit by the President of the United States of America (USA) . I had a meeting this morning with the representative of the Ministry of Foreign Affairs who sits in that committee. I shared with them all the concerns raised in the House. One of the concerns was how our youth should be considered in the coming of the USA President in terms of entrepreneurship.

With regard to his address to Parliament, I wish to share with you that at this stage, we are unable to have a final programme of the visit. We also do not have any information yet on the visit to Kogelo. However, they said that if anything will be brought up in that discussion, they promised to let us know in due course.

On the issue of pulling out of Kismayu, that is out because we had an objective why we went there, in the first place. There is no way that we can pull out of Kismayu for now. Security is on top of the agenda during the USA President’s visit. It is a matter that will be discussed when he visits us.

On the issue of the Senate’s involvement in the conference; that is something that I shared with the committee. They said that they will discuss with the full committee and see how the Senate will be involved in that process, especially with regards to entrepreneurship that is going to affect devolution in this country.

About the dual citizenship of President Obama, it is something that has to be generated by the President himself. If he will make a request, we have no objection, but to comply.

Thank you. The Senate Minority Leader (Sen. Wetangula) : On a point of order, Mr. Speaker, Sir. When the Vice Chairperson says that pulling out of Kiamayu is out, is that

May 28th, 2015 SENATE DEBATES

On a point of order, Mr. Speaker, Sir. When the Vice Chairperson says that pulling out of Kiamayu is out, is that

May 28th, 2015 SENATE DEBATES

The Speaker (Hon. Ethuro)

Order, Sen. Wetangula! You have made your case. Please, proceed Sen. (Dr.) Machage, so that she can respond at once. Hon. Senators, remember that she was responding to the clarifications you sought yesterday.

On a point of order, Mr. Speaker, Sir. As the country cries and weeps every day, including yesterday, how much more lives does the Government want us to pay as cost to convince them that it is time we moved out of Somalia?

Mr. Speaker, Sir, I want her to clarify because the statement that she made does not go down well with many Kenyans. Initially, this was “Operation Linda Nchi”. However, three, four or five years later, it has turned into something else. The Government should evaluate our presence there and what the benefits are, so that they make an informed decision. Have we really reduced the incursions from the across the border? Can she give us an indication on when the Government plans to exit? If they do not plan to exit, what is the benefit? Could she also share with us whether there is any impact assessment by the Government on the presence of these people in Kismayu?

Mr. Speaker, Sir, further related to yesterday’s case that happened in Yumbis, the northern part of Kenya, we saw disconnected communication from the Government as to what really took place. Could the Chairperson give us the true Government position, relating to how crime is being handled in that region, rather than to mislead Kenyans with one version after the other?

The Speaker (Hon. Ethuro)

Please, proceed Sen. Mutula Kilonzo Jnr. and then finally, Sen. (Dr.) Khalwale will seek clarifications.

Mr. Speaker, Sir, since Sen. Dullo spoke with such finality, it would be nice to know how many of our troops are in Kismayu. What exactly are they doing? How exactly are they protecting Kenya by being there, so that we can understand the finality in the statement?

Thank you, Mr. Speaker, Sir. Kenyans do not know whether the Jubilee Government reads reports by international institutions. It is only last week, when the United Nations released a report which said that trade in charcoal in Kismayu and the profits now made by Al Shabaab have gone up compared to where it was before our soldiers went there. Could the Chairperson tell us whether the Jubilee Government has blessed the trade in charcoal by our generals in Kismayu?

Thank you, Mr. Speaker, Sir. I would like to respond by saying that some of the issues that have been requested by Senators are new to me in terms of

May 28th, 2015 SENATE DEBATES

The Speaker (Hon. Ethuro)

Order, Senators. I think we have exhausted this matter. Sen. Adan Dullo, maybe you could give a clarification as to how longer we shall be in Kismayu in comparison to Operation Linda Nchi.

Mr. Speaker, Sir, I would be lying if I say that they are going to be there for two or three years. I have said that this is a matter that we need to discuss with the relevant authorities and give feedback to this House. That will depend on the request that has been made by my colleagues in terms of evaluation. That would also be relevant to the objective of going to Kismayu.

The Speaker (Hon. Ethuro)

Mr. Speaker, Sir, this is a Statement that was requested by the Senator for Kisii, Sen. Obure regarding the recent road accident near Daraja Moja in Kisii County involving a truck and a trailer registration number KAD 162N. The hon. Senator requested to be informed why a police officer was driving the truck at the time of the accident and whether he is licensed to drive this class of motor vehicles.

Further, he wanted to know why security officers failed to stop the riots in time and maintain law and order. He also wanted the Committee to confirm whether the Government will compensate members of the public who suffered injuries and those who lost their property as a result of the breakdown of law and order.

Mr. Speaker, Sir, I beg to state as follows:- On 14th May, 2015, at around 6.00 p.m. traffic police officers intercepted a Mitsubishi lorry, KAD 162N along Keroka-Kisii Road. The lorry was loaded with 42 electricity poles which were protruding dangerously. Mr. Lucas Okello, No.8655 police constable, was assigned to escort the lorry to the police station. The vehicle was being driven by Mr. Stephen Mureri Raini, holder of driving licence No.C of C No.J67930222 authorised to drive Class A, B, C and E.

On reaching a point near Gusii Institute of Technology, the driver lost control of the vehicle which veered off the road fatally knocking down two pedestrians, Teresia Kwamboka aged 35 years and Mercy Barong’o aged 28 years, both employees of the

CIRCUMSTANCES LEADING TO THE ROAD ACCIDENT AT DARAJA MOJA IN KISII COUNTY

May 28th, 2015 SENATE DEBATES

Mr. Speaker, Sir, first of all, I want to say that sometimes I feel very sorry for the kind of answers which are brought to this House.

You have heard that police officers intercepted this truck which was loaded with electricity poles which were dangerously protruding and, therefore, posing a danger to the public. This vehicle was intercepted at a place called Kegati along Keroka-Kisii Road---

The Speaker (Hon. Ethuro)

Sen. Obure, concentrate on the clarification because all of us heard the story.

Mr. Speaker, Sir, why would police officers allow this vehicle to proceed from the point where it was intercepted for another 12 kilometres when it was clearly posing danger to the public?

I have also spoken to the driver of this truck and he confirmed that he was not driving the vehicle. I have also spoken to members of the public, including those who rescued the police officer after he sustained injuries. They also confirmed that it was the police officer who was driving the vehicle. I also spoke to the person who had hired the vehicle and he confirmed the same.

Therefore, I seek your direction; where do we go from there when we are certain we are not being told the truth.

Sen. Khaniri

Mr. Speaker, Sir, the Chairperson has told us that in trying to quell the riots, police used live bullets or ammunition on citizens. I want to know what is the

May 28th, 2015 SENATE DEBATES

Mr. Speaker, Sir, my questions have been well executed by Sen. Khaniri.

Mr. Speaker, Sir, the information I have about whether the police officer was the one driving the vehicle or not, is that he was not the one driving. However, this is a matter that I would put to the relevant authorities and get further clarification and then give the true position.

Regarding the issue of the use of live bullets, the answer is that; they were used by the police to quell the riots. The policy of the Government is that one cannot use a live bullet on a citizen unless their lives are actually in danger. However, in this circumstance, we really do not know why they used live bullets unless, maybe, their lives were in danger. I will ensure further investigations are done to make sure that those who are responsible are held accountable.

Mr. Speaker, Sir, the Chairperson has not stated whether the policemen who were responsible for shooting members of the public will be prosecuted.

Secondly, as I speak, I am very sure that this driver is at the police station recording a statement. He has told me he was not driving the vehicle. In the circumstances, could you provide directions as to what should happen?

The Speaker (Hon. Ethuro)

Mr. Speaker, Sir, I have two Statements to give. One is a Statement sought by Sen. Khaniri which I gave commitment to give some progress today. I have talked to the Senator for Vihiga. The Statement sought by him had two components; one relating to ---

BOUNDARY CONFLICT BETWEEN RESIDENTS OF VIHIGA AND KISUMU COUNTIES IN MASENO

The Speaker (Hon. Ethuro)

Order! Sen. Sang, could you be relevant to the issue?

Mr. Speaker, Sir, I am going to be relevant and I am relevant.

The Speaker (Hon. Ethuro)

We have not reached the matter of Sen. Khaniri. You know he is usually very clear and alert. I am wondering why he is not here today.

May 28th, 2015 SENATE DEBATES PLANS TO OPEN MORE CONSULATES IN USA TO SERVE AS POLLING CENTRES

The Senate Minority Leader (Sen. Wetangula)

May 28th, 2015 SENATE DEBATES

I thank you, Mr. Speaker, Sir.

May 28th, 2015 SENATE DEBATES

I thank you, Mr. Speaker, Sir.

Mr. Speaker, Sir, this is a clear case of what the Kenya Power (KP) calls “Mulika mwizi.” You can see the attempt to run away from a mischief that the Government was trying to do.

(Applause)

May 28th, 2015 SENATE DEBATES

(Applause)

Sen. Murkomen

Point of order, Mr. Speaker, Sir.

The Speaker (Hon. Ethuro)

Order, Sen. Murkomen!

Mr. Speaker, Sir, is it, therefore, true that one of the cardinal duties of the taskforce was to lay the ground for rigging?

Sen. Murkomen

On a point of order, Mr. Speaker, Sir. Did you hear Sen. (Dr.) Machage say that there is “a distinct smell of the Opposition”? Could he explain how they smell and how one can distinguish civil servants in the Opposition and one for the Government? I thought civil servants serve everybody.

The Speaker (Hon. Ethuro)

That is the most substantive one.

Hon. Senator

(Laughter)

The Speaker (Hon. Ethuro)

Mr. Speaker, Sir, the Chairman has told us one reason they are opening consulates is because of considerations of commerce. Vietnam is number five on the top 18 countries where we source tourists from. In fact, in the year 2013, we got 1.7 million tourists, having gone up by 25.2 per cent. This is the fastest growing. Could he tell us why he has not considered having a consulate in Vietnam for that reason? More importantly, could he tell us how many polling centres he will open in Uganda, the United Arab Emirates, Saudi Arabia, Rwanda and Tanzania because we have a heavy presence of Kenyans in those countries?

Finally, Mr. Speaker, Sir, could the Government tell us how it intends to level the playing ground for presidential candidates given that candidates might lack the capacity to go and look for votes abroad? Is this a deliberate effort to help the incumbent President to use state facilities to reach voters at the expense of his opponents the way the Nyayo Government used District Commissioners (DCs) at the expense of its opponents?

(Laughter)

May 28th, 2015 SENATE DEBATES

Sen. Khaniri

On a point of order, Mr. Speaker, Sir. In the response by the Vice Chairperson, he says:-

Mr. Speaker, Sir, I appreciate the fact that the Article of the Constitution being referred to in the Statement does not really refer to the exact Article. I want to believe that that is a typo. The right Article is 88.

It is important to note that the Government has the overall responsibility of supporting all institutions, including constitutional commissions. The budgets of the various constitutional commissions are still generated by the Executive though they are subject to parliamentary processes. The national Government---

Sen. Khaniri

On a point of order, Mr. Speaker, Sir. The Vice Chairperson should get serious about this matter. He is now telling is that it is not Article 82, but 88. Could he read Article 88 to see if it meets the provisions that he has just stated in his answer? It is not true.

Mr. Speaker, Sir, Article 88 refers to the establishment of the IEBC and gives its functions over and above the Articles quoted by the Senate Minority Leader on the independence of constitutional commissions. The other element is establishing polling stations. I will verify and give the right answer. Let me seek the indulgence of the Members to get the exact Article. It is important for Members to appreciate that we will get the exact Article and I will share with you.

Hon. Senators

No! No! No!

The Speaker (Hon. Ethuro)

Order, hon. Senators! Le the Vice Chairperson proceed. He will get the Article at the end of his Statement. Failure to cite an Article does not make your arguments irrelevant because it is somewhere in the Constitution.

Mr. Sang

Mr. Speaker, Sir, we have several clarifications sought by the hon. Members. I request the Chair to allow me to address the others then I can revisit this particular one.

The Speaker (Hon. Ethuro)

Those are my directions. I hope your team is assisting you to get the correct information.

Mr. Sang

Mr. Speaker, Sir, I am informed that it is Article 82 (1) (e) . I will be able to come back to that.

Sen. Wetangula wanted to know on what basis the Cabinet Secretary or the Ministry is establishing consulates in the five areas and yet, we do not know the population.

It is important to note that the Senator asked what the population of Kenyans eligible to vote is and we said that we cannot tell the population of Kenyans eligible to vote. However, we can get the population of Kenyans living abroad. Therefore, I think that should be clear for the Senator.

May 28th, 2015 SENATE DEBATES

The Speaker (Hon. Ethuro)

(Applause)

May 28th, 2015 SENATE DEBATES

The Senate Minority Leader (Sen. Wetangula)

He has lost it!

(Applause)

May 28th, 2015 SENATE DEBATES

hon. Senator

What is it, Sen. Kembi-Gitura?

Mr. Speaker, Sir, is it in order for the Senate Minority Leader to continue misleading the House on this issue? Is it not obvious that voting of Kenyans in the diaspora cannot be done in vacuum? There have to be places for them to vote. Is the Member not aware that IEBC has no capacity or mandate to create consulates? This can only be done by the Government to give an enabling environment for voting by Kenyans in the diaspora.

If you look at the answer here, it says clearly---

Order, I am on a point of order.

(Loud consultations)

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

The Speaker (Hon. Ethuro)

What is it, Sen. Kembi-Gitura?

Sen. Kembi-Gitura

If you look at the answer here, it says clearly---

Order, I am on a point of order.

(Loud consultations)

The Speaker (Hon. Ethuro)

Order, Sen. Kembi-Gitura! Now you are answering on behalf of the Chairperson.

Order, Sen. Wetangula! You have made your case. I am sure that other Members might also support your case. I thought Sen. Kembi-Gitura would read, “To facilitate voting by Kenyans in the diaspora in line with the Constitution.” I thought that was also significant.

Proceed, Sen. Mutula Kilonzo Jnr. Members, let us be specific.

May 28th, 2015 SENATE DEBATES

Sen. Kembi-Gitura

Indeed, you are.

The Speaker (Hon. Ethuro)

Mr. Speaker, Sir, the Vice Chairperson is a good lawyer, but I think he did not interrogate the answer that he was given. Somebody is trying to mislead him. My leader is correct. The Cabinet has no mandate whether in law, imagined or otherwise, to attempt to create polling stations anywhere. The question of capacity does not arise at all. In fact, if my Vice Chairperson went back to the Constitution, it contemplated that there would be an Act of Parliament. That is what I want to read so that we can have continuous education on these things.

Order, Senator! If you just cite Article 82, we will appreciate. We shall read for ourselves.

The Speaker (Hon. Ethuro)

Mr. Speaker, Sir, I am sure you do not know this one.

(Laughter)

The Speaker (Hon. Ethuro)

Order, Senator! If you just cite Article 82, we will appreciate. We shall read for ourselves.

Mr. Speaker, Sir, I am sure you do not know this one.

(Laughter)

The Speaker (Hon. Ethuro)

Mr. Speaker, Sir, may I remind the Vice Chairperson of this Committee, who declared himself to be one of the most senior and powerful members of the Jubilee Government; Chapter 1, Article 2 (2) of the Constitution states:-

“No person may claim or exercise State authority except as authorised under this Constitution.”

This Constitution as per Article 2 (1) is supreme. Your answer is totally breaching Article 249 (2) of this Constitution which only mandates the IEBC to do, not what you desire to do using the Cabinet. You need to apologise to the country for violating the Constitution.

On a point of order, Mr. Speaker, Sir. The Senate Minority Leader claimed that the Jubilee Government came into power fraudulently. Could he substantiate or withdraw? They went to court and the court gave its verdict. Do you have your own mechanism of determining that this Government came into power fraudulently?

May 28th, 2015 SENATE DEBATES

Sen. Wetangula, you have been challenged by Sen. Mugo.

The Senate Minority Leader (Sen. Wetangula) : Mr. Speaker, Sir, I will start with Sen. Elachi, before I go to the challenge. This is the danger you run into and the possible embarrassment you suffer, like you are now, in jumping into a debate that you did not follow. This is because if you read the questions that I asked, the incompetent answers we received and the rejoinders we have made, then you would not stand up and irrelevantly bring the name of Raila Odinga into a debate that he has nothing to do with.

Sen. Mugo

On a point of order, Mr. Speaker, Sir. I understand the debate and I know he was the Minister for Foreign Affairs at one point. Is he in order to tell the country that when we did the elections in 2013, we never followed the law? We wanted Kenyans in diaspora vote, but they could not because we did not have enough resources.

The Senate Minority Leader (Sen. Wetangula) : Mr. Speaker, Sir, again, that goes into deeper irrelevance. The diaspora vote will be achieved progressively and it is the exclusive responsibility of the IEBC. We have diaspora in Somalia. If you go to Somaliland, we have more than 10,000 Kenyans working there. Why are we running to the United States and not Somaliland?

Since I do not want to go into some areas, let me respond to Sen. Beth Mugo. If she does not know that the Government she is serving came into power through fraud,

Sen. Elachi

May 28th, 2015 SENATE DEBATES

The Speaker (Hon. Ethuro)

On a point of order, Mr. Speaker, Sir. Is the hon. Senator, who is the Senate Minority Leader, in order really to insinuate that it is the contents of a petition that was thrown out and trashed by the Supreme Court, which should actually be a subject of discussion in this august House?

Secondly, is he in order to suggest that it is wrong to have the IEBC to organize elections in the consulates in United States, but he has no problem with all the other areas? Why is there a lot of concern on the law for these consulates? It was done in the other countries without a law, but just through a gentleman’s agreement in the National Accord. To him, it was not a problem?

Sen. Mugo. The Senate Minority Leader (Sen. Wetangula) :

Order, Senators! Senate Minority Leader, you need to be fair to your fellow Members. I think what Sen. Elachi was just asking is a matter of fact. She had knowledge to believe, which you all do, that maybe you were even in a better position.

The Senate Minority Leader (Sen. Wetangula) : Mr. Speaker, Sir, in fact, I brought this question to the Floor because of my superior knowledge in the matter and some things that I may not wish to say here.

I did ask the distinguished Senator for Nandi, in execution of its mandate, whether there is any document, communication or evidence that the IEBC requested the Executive to assist it to set up these consulates, so that they can be polling centres. There is none.

Mr. Speaker, Sir, you have done better than lawyers in this Chamber, by the way, and I dare say this. The point of contention is Article 249 (2) (b) of the Constitution which says that the IEBC shall act in its duties without the control and direction of any person or authority. Here we are told that the Cabinet directed the Ministry of Foreign Affairs, the Attorney General and the IEBC. This is a violation of the Constitution. We can pontificate on anything else.

Mr. Speaker, Sir, I will start with Sen. Elachi, before I go to the challenge. This is the danger you run into and the possible embarrassment you suffer, like you are now, in jumping into a debate that you did not follow. This is because if you read the questions that I asked, the incompetent answers we received and the rejoinders we have made, then you would not stand up and irrelevantly bring the name of Raila Odinga into a debate that he has nothing to do with.

Sen. Elachi

(Loud consultations)

Mr. Speaker, Sir, again, that goes into deeper irrelevance. The diaspora vote will be achieved progressively and it is the exclusive responsibility of the IEBC. We have diaspora in Somalia. If you go to Somaliland, we have more than 10,000 Kenyans working there. Why are we running to the United States and not Somaliland? Since I do not want to go into some areas, let me respond to Sen. Beth Mugo. If she does not know that the Government she is serving came into power through fraud,

May 28th, 2015 SENATE DEBATES

The Speaker (Hon. Ethuro)

Mr. Speaker, Sir, I will take the point of information.

The Speaker (Hon. Ethuro)

What is it, Sen. Billow?

Mr. Speaker, Sir, I want to inform my colleague that the directive here is a passive direction, similar to the one the President gave to the Ethics and Anti Corruption commission (EACC) , to complete an investigation in 60 days, to which we gave a standing ovation.

(Loud consultations)

May 28th, 2015 SENATE DEBATES

The Speaker (Hon. Ethuro)

Mr. Speaker, Sir, for the very fact that IEBC appreciated the importance of the task force by sending a member of the IEBC to sit in that task force---. I also want to make it clear that the task force does not relate to only the new consulates in the USA. The task force is to advise on all consulates, including Tokyo in Japan and any other embassy in any other place. It is, therefore, important to note that the task force was going to advise not only on the aspect of voting within the USA, but across the globe.

The Senator for Makueni read a section of the Elections Act. I appreciate that the Elections Act talks about polling stations and in the task force, there is no reference to polling stations. We are not talking about polling stations. We are talking about the general process of appreciating and advising Kenyans.

What is it, Sen. (Dr.) Machage?

On a point of order, Mr. Speaker, Sir. It is evident that the Vice Chairperson, an eminent lawyer and Senator in this House, may not have read the Statement that he was given to execute on the Floor of this House. It is also evident that matters of the Constitution and its violation are evident. Will I, therefore, be in order to request that the Vice Chairperson is given another chance to relook into the Statement and give us a proper one befitting his status as we know him in this House?

On a point of order, Mr. Speaker, Sir. In line with what the Senator for Migori County has said, could the Chair further direct that even after being given an opportunity to have a second chance to answer, the current answer be completely withdrawn and struck out of the record for the following reasons? One, something seems to be happening in East Africa. Today, Burundi is burning because of elections. This week, two million people gave signatures in Rwanda so as to change the

The Speaker (Hon. Ethuro)

May 28th, 2015 SENATE DEBATES

On a point of order, Mr. Speaker, Sir. I rise under Standing Order 94 (1) which is express. As I read it, the rules of engagement in this House apply equally and seriously with equal weight to all of us, as Senators. This Standing Order reads clearly that:

“A Senator shall be responsible for the accuracy of any facts that the Senator alleges to be true and may be required to substantiate any such facts instantly”

Mr. Speaker, Sir, the Senate Minority Leader stood on the Floor of this House and alleged that the Jubilee Government came into power fraudulently. When asked further, he stated that it was on the basis of a petition that was trashed by the Supreme Court. It is a fact---

Mr. Speaker, Sir, I am on a point of order.

(Loud consultations)

The Speaker (Hon. Ethuro)

Order, Senators! That is not very useful information to the Vice Chairperson.

(Loud consultations)

The Speaker (Hon. Ethuro)

Order, hon. Senators. Let us listen to the Senator for Kiambu County.

Mr. Speaker, Sir, we will be setting a very dangerous precedent for debate in this House if a Member can rise to make such allegations, sit down, trash it and get away with it. We cannot allow that.

Sen. (Prof.) Anyang’- Nyong’o

Order, Senator! You have made your point.

May 28th, 2015 SENATE DEBATES

Sen. Wamatangi

Please, proceed Sen. (Prof.) Anyang’- Nyong’o and then the Senate Minority Leader will contribute after that.

The Speaker (Hon. Ethuro)

May 28th, 2015 SENATE DEBATES

Sen. Wamatangi

On a point of order, Mr. Speaker, Sir. I have been sitting here quietly listening to the conversations in this House---

(Loud consultations)

The Speaker (Hon. Ethuro)

Order, hon. Senators. Let us listen to the Senator for Kiambu County.

Sen. Wamatangi

Mr. Speaker, Sir, we will be setting a very dangerous precedent for debate in this House if a Member can rise to make such allegations, sit down, trash it and get away with it. We cannot allow that.

The Speaker (Hon. Ethuro)

Order, Senator! You have made your point.

Sen. Wamatangi

Mr. Speaker, Sir, let the Senate Minority Leader substantiate or apologise and withdraw.

The Speaker (Hon. Ethuro)

Please, proceed Sen. (Prof.) Anyang’- Nyong’o and then the Senate Minority Leader will contribute after that.

May 28th, 2015 SENATE DEBATES

(Loud consultations)

The Speaker (Hon. Ethuro)

Order, Senators! This House cannot be turned into something else.

The Senate Minority Leader (Sen. Wetangula) : Mr. Speaker, Sir, before I respond, I want to truly thank the Chair for giving enough time to this issue because of its significance and importance to the future of this country. I want to say what I said earlier. This country nearly burnt up because of a bungled election. We are trying to forestall this by constantly reminding everybody, including the executive that we must and we owe this country a duty to do things right. We must avoid any issues, conduct or any behaviour that tend to indicate that we are interfering with the conduct of one of the most critical independent commissions in this country, the IEBC. Therefore, the very idea that IEBC has been directed, even if the commissioners were directed to go and have tea, it will be a violation of the Constitution.

Now to respond to the issue raised by Sen. Billow, if a wrong is done, you do not right it with another wrong. Two wrongs do not make a right and they never will. We are together in this. We have the capacity to tell you here and now that we are able to chastise ourselves where we see that we are doing wrong. We are not seeing the wrong that you are doing only. When anybody on this side does wrong, we will say so, because we mean well for this country.

More importantly, I want to remind the distinguished Senator for Kiambu that if he believes and thinks that he is coming here to stifle debate or gag Members, the Constitution is here. There is freedom of thought, freedom of expression, freedom to hold opinion and so on. It is my opinion that the elections were won fraudulently. That is my opinion. The Constitution guarantees me to hold my opinion. You can hold yours that it was not fraudulent, you are entitled to it. I will stand with my opinion that you won elections fraudulently until the chicken comes home to roost.

Mr. Speaker, Sir, knowing how fair you have been, I want to encourage you to walk in the footsteps of the great, the late Jean Marie Seroney. He ruled that a Member shall not be called upon to substantiate what is obvious.

Sen. (Prof.) Anyang’- Nyong’o

On a point of order, Mr. Speaker, Sir. This is a House that we must honour and respect by setting precedence that we shall be proud of when we leave. We cannot use the Floor of this House to justify or trash the provisions or the rules of the

Sen. Hassan

May 28th, 2015 SENATE DEBATES

Sen. Wamatangi

Order, Senators!

May 28th, 2015 SENATE DEBATES

The Speaker (Hon. Ethuro)

Order, Members! I want to proceed along these lines. I will give one opportunity to Sen. Billow and another one to the Senate Leader of Minority in view of Standing Order No.94 (1) .

Mr. Speaker, Sir, I want to address the issue of the directive which is the main borne of contention. When Hon. Raila Odinga was the Prime Minister, he gave a directive to the IEBC in broad daylight regarding the Biometric Voter Registration (BVR) . Why was that directive not interfering with the functions of an independent commission and yet the directive being given now is the same?

(Loud consultations)

The Speaker (Hon. Ethuro)

Order, Senators! This House cannot be turned into something else. The Senate Minority Leader (

(Laughter)

Sen. Wamatangi

Order, Senators! By the way, the Senate Minority Leader, he respects your profession and that you are certified and qualified. I am sure that even professionally, you owe him that acknowledgement.

In fact, Sen. Sang has been so generous to you that if you have the capacity to chew, you can be a carnivore. I would have attributed something else like cannibalism.

(Laughter)

The Speaker (Hon. Ethuro)

May 28th, 2015 SENATE DEBATES

Order, Senators! This matter cannot be exhausted through exchange of opinions. There will be one opinion which will matter and will be binding. That will be my opinion. I will look at the HANSARD of today. You can go on recess knowing that you will come back and you will meet the full force of the Chair.

(Loud consultations)

The Speaker (Hon. Ethuro)

Order, Members! One thing I will never allow is for us to use this House for issues that are not relevant to the debate on the issue at hand. Secondly, if you have been asked to substantiate an allegation, it is very simple; you either substantiate or withdraw. There should be no debate about it. May I ask the Senate Minority Leader that if he has something to substantiate let him do so. If there is nothing, let him withdraw and we proceed. Since you are given the next sitting day to do so, I will look at the HANSARD and – let me pronounce from where I stand – make a ruling that will be definite. I will look at all those sources and also seek the necessary actions in terms of disorderly conduct. The Senate Minority Leader (

Thank you, Mr. Speaker, Sir, for that clarity. Before I deal with that, let me tell the Senator for Nandi that in the entire afternoon I have been debating issues. I have been talking about the Constitution, the law and the inadequacy and his failed ability to answer a simple question that we brought

May 28th, 2015 SENATE DEBATES

(Laughter)

Sen. (Dr.) Khalwale, I had actually approved your request almost along similar lines. Would you like to proceed with it?

(Laughter)

The Speaker (Hon. Ethuro)

Sen. (Dr.) Machage, please be brief.

(Laughter)

May 28th, 2015 SENATE DEBATES

The Speaker (Hon. Ethuro)

May 28th, 2015 SENATE DEBATES

On a point of order, Mr. Speaker, Sir. I beseech that you also look at Standing Order No.94 (2) as you make your ruling because Sen.Sang also has a duty to convince you that actually Sen. Wetangula was mischievous in the House.

The Speaker (Hon. Ethuro)

Order, Sen. Machage! You serve in my panel and I have said I am going to look at the HANSARD and raise all issues, including, may be for your purpose, words like “trash” or “trashing” and “chew”. Those are the words I will be looking for.

I will also check whether the opposite of beautiful is horrendous or ugly. Whatever was said, I will look at them with a tooth comb. I will also look at what has transpired before because I think it is time that we bring some things to finality. From there henceforth, we will not entertain any other contrary opinions to that particular opinion, just to use the same word known as “opinion”.

On the matter of Sen. Sang, I think there are many gaps in that particular Statement. Elections are an extremely important matter. That is the process through which you came here. We must deal with it accordingly. We will give you the opportunity to interrogate the matter further and then I will give you an opportunity to raise the issues.

DELAYED SUBMISSION OF AUDITED ACCOUNTS OF COUNTY GOVERNMENTS FOR FINANCIAL YEAR 2013/2014

Sen. Kembi-Gitura

Mr. Speaker, Sir, I rise under Standing Order No.45 (2) (b) with your permission to seek clarification on a point that has been going on for some time now.

Mr. Speaker, Sir, as all of us are aware, the major role of the Senate is to protect the interests of counties and their governments. We have the County Public Accounts and Investments Committee (CPAIC) which is chaired by Hon. Sen. (Dr.) Khalwale. We have been doing a follow up to know when the audited accounts of counties will be made available. Sen. (Dr.) Khalwale has been telling us that he is in consultation with the Auditor-General and that the audited accounts will be made available as soon as possible. This has been going on since December last year.

Mr. Speaker, Sir, we shall be negating our duty – as Senators and the people with the oversight role over counties – if we are caught up with another financial year before we have seen and interrogated the audited accounts of the counties. However, we know – I say this with the privilege of being in the Senate – that audited accounts can be manipulated. We would like to have those accounts as soon as possible so that we interrogate them through the Committee chaired by Sen. (Dr.) Khalwale and in this House.

May 28th, 2015 SENATE DEBATES

The Speaker (Hon. Ethuro)

Thank you, Mr. Deputy Speaker, Sir. I want to thank the Senator for Migori County for that answer which he read on behalf of the Chair. I appreciate the answer. I think we all have seen how bad this situation is. The reasons given here are definitely obvious, but we have had drought in the past and we had somehow managed to control cholera outbreaks in this country for quite some time now.

Whereas I appreciate the explanations, I do not see other than that stakeholder’s meeting, what other interventions are going to be done so that we do not continue to have the spread of cholera. Cholera is very bad for us, as a country, and worse still if the World Health Organization (WHO) puts Kenya on the corridor of cholera; which would mean that when Kenyans travel they have to produce a cholera vaccination and when people come to our country the same thing is done.

I am part of this Committee and I know that the Members have tried but if we could go further and ask what interventions would be done so that we do not continue getting this outbreak. I know that prevention and response interventions such as public education, hygiene and sanitation--- we understand that there are some counties which are not well equipped or have the capacity to do this. Is this a function that we could propose that the Ministry of Health continues to perform and empower the counties to take such responsibility? We cannot watch as the people continue to be killed by cholera outbreak until they improve.

There are those counties which are able prevent cholera outbreak; only that it did not get to their counties. It is alarming that counties which have never had cholera before now have cholera. I think we should go back to the drawing board and see whether there are counties which might need support from the health Ministry, especially where disease surveillance and prevention is concerned.

Thank you.

Mr. Deputy Speaker, Sir, cholera epidemic is an end product of many of several system failures including environmental management, sewage disposal and poor dissemination of funds when emergencies occur. To say that this epidemic is a fact that the county level health services are failing, is being a little bit myopic. Especially so, taking into cognizance the fact that a lot of funds in our budgeting system that are supposed to be disseminated directly to the counties, are held by the national Government. I would have thought otherwise but if you listen to the answer from the Ministry, apart from supplying a few personnel, no money was given to the counties to manage the epidemic. Is it sabotage from the national Government to the county governments? I think so. Cholera is a primary health issue. It is a disease that occurs because of:-

May 28th, 2015 SENATE DEBATES

Sen. (Dr.) Machage, please be brief.

Mr. Speaker, Sir, it is indeed disheartening and very discouraging to hear this kind of report from our own Chairman of a very relevant committee in this House that audited reports have been left unsigned for a period that exceeds what he thinks is normal and acceptable in that regard. The Committee has also powers like the High Court to order that the reports to be signed and delivered to this House. Would I, therefore, be in order to beg that this Committee exactly does that, then you execute whatever reality of eventuality will be thereafter if they refuse to sign and deliver the reports to the House?

The Speaker (Hon. Ethuro)

Hon. Members, the Chair of the Committee brought to the attention of the House, previously, the predicament he has seen in terms of these reports and various court orders that have been given. The Deputy Speaker has also brought that to our attention. He said if the process is not expedited, it could lead to tampering of the reports and other issues.

First, I want to say that my position has been clear. Any matter that is before the Committee must be prosecuted according to the Standing Orders. The matter of sub judice is covered in Standing Order No. 92. Whoever thinks that a matter is sub judice

May 28th, 2015 SENATE DEBATES

OUTBREAK OF CHOLERA IN THE COUNTRY

The Speaker (Hon. Ethuro)

May 28th, 2015 SENATE DEBATES

Order, Senator. Please conclude. This is Statements time. Just seek a clarification. The reason why I allowed you to continue is partly because of your personal experience about the issues and the importance of the issue.

[The Speaker (Hon. Ethuro) left the Chair]

May 28th, 2015 SENATE DEBATES

Sen. Mugo

Yes, Mr. Deputy Speaker, Sir.

Please remember that it is clarification. Like I said, the reason I allowed Sen. (Prof.) Anyang’-Nyong’o and Sen. Mugo to talk more than seek clarification, was mainly because of the unique position and knowledge about this having served as Ministers for Health in their respective times.

Please, proceed and seek a clarification.

May 28th, 2015 SENATE DEBATES

The Deputy Speaker (Sen. Kembi-Gitura)

Sen. Mugo, are you satisfied?

Sen. Mugo

Mr. Deputy Speaker, Sir, I concur with some of the sentiments from the Senator for Migori but I think capacity building also takes time. Even if you give all the money you can give; without capacity, know-how and adequate staff who are properly trained in that area, I do not know if we will win the war. That it is something that needs to be discussed between the two levels of Government.

The Deputy Speaker (Sen. Kembi-Gitura)

Thank you. That appears to be the end of Statement time. There are no other requests.

Proceed, Sen. (Prof.) Anyang’-Nyong’o.

Mr. Deputy Speaker, Sir, I want to add one or two things on this issue of preventive healthcare or public health that my colleagues, Sen. Mugo and Sen. (Dr.) Machage have been discussing. It is true, as Sen. Mugo said, that we need capacity at the local level; in villages, townships and so on to deal with cholera. You will find out that the geographical occurrence of cholera is usually in the highly populated rural or urban communities, where, as Sen. (Dr.) Machage said, certain environmental and sanitation issues arise.

One of the most dangerous things in Kenya and I have always said so, is this continued reliance on pit latrines in places like Kibera, Mathare and in rural areas. As population increases, more people will inhabit very small pieces of the earth. Therefore, digging pit latrines raises the danger that when it rains or when people build, you will expose yourself to the faeces.

First, these environmental and sanitation practices can be stopped by law and application. Secondly, they could be stopped by better infrastructural development in terms of having no pit latrines but modern ways of getting rid of faeces. If you look at small countries like Cuba, Costa Rica and even Rwanda for that matter, with what I call less developed economies but better local governance, respect and implementation of law, you will find that they do not easily become predisposed to problems of public health or sanitation.

Mr. Deputy Speaker, Sir, if you focus your mind back to colonial times, you will find that the chiefs had a lot of power. This was not devolution; it was deconcentration. Power was deconcentrated from the top to the grassroots. The chief had a lot of power. He or she implemented public health and sanitation laws. The chief’s word was final. You had to do what he said. This was the colonial way of making sure that public health and sanitation in rural areas and in popular cottiers were respected. What we need now is to make sure that this responsibility for water resources, land use, health, sanitation and so on are fully handled at the local level the way the chief handled it in colonial times and the way it is handled in such societies, for example Costa Rica, Cuba and so on where systems of local governance like we have here, which is now devolution, are properly and effectively put in place.

May 28th, 2015 SENATE DEBATES

The Deputy Speaker (Sen. Kembi-Gitura)

Mr. Deputy Speaker, Sir, I rise under Article 40 (2) (b) of our Constitution---

Is it the Constitution or Standing Orders?

The Deputy Speaker (Sen. Kembi-Gitura)

Mr. Deputy Speaker, Sir, it is Standing Order No.45. It also touches on our Constitution, under Article 40 (2) (b) .

As the House is aware, there have been skirmishes in my county, in the south of Lake Naivasha which have led to destruction of property. This morning, the road to the south of the lake and to most flower farms was closed. The Maai Mahiu Road was also closed by residents who are annoyed due to the fact that a corridor leading to Lake Naivasha has been closed by a private developer.

Mr. Deputy Speaker, Sir, this is not the first time that this is happening. Within that area, there have even been deaths that are associated with this problem. Lake Naivasha hosts a lot of floricultural companies that bring a lot of money to our country in terms of foreign exchange. So, the disruptions yesterday and this morning have cost our economy immensely. In this matter, the police have been used to suppress the local people who have a right under the Constitution to access the lake. If this matter is not addressed, it can spill over and lead to serious disruption of activities in Naivasha and the surrounding shopping centres.

I would like to urge the Government to realize that the sovereignty of this country lies with the people of Kenya. When the citizens feel that they are being alienated from their rights, the Government’s popularity becomes dented. It is, therefore, important that

May 28th, 2015 SENATE DEBATES

The Deputy Speaker (Sen. Kembi-Gitura)

Thank you, Senator. We hope that a solution to that problem is going to be found much sooner than later.

Hon. Senators, we still have a Motion for adjournment which is coming later. I would like to rearrange the Order Paper for today, so that we are in time for all those things. We will skip the Motion at No. 8 on the Order Paper so that we deal with it when we resume, if we actually go on recess.

We are also going to skip the Natural Resources (Benefit Sharing) Bill (Senate Bill No. 34 of 2014) , Order No.9. We will then take Order No. 10 on the Order Paper, the Reproductive Health Care Bill (Senate Bill No. 17 of 2014) , which is a resumption of debate interrupted on Tuesday, 26th May 2015.

Mr. Deputy Speaker, Sir, this issue is of great concern to many Kenyans. The Chair has said that in the last three months we had 3,000 victims, out of which 61 lost their lives. We are just concerned by what is happening in the whole country, especially when it comes to the issue of Cholera. We know very well that it is spread due to lack of coordination.

Recently I moved a Motion on the Floor of the House seeking to have Athi River and Tana River water protected from pollution. We went with the Chairman of the Committee on Implementation to the main reservoirs at Kasarani and Ruai. We saw and heard a lot there. The experts will tell you that all the sewage in Mathare is dumped into the river. The same applies in Mukuru Kwa Njenga. Despite all this happening, Kenya is still rated one of the best countries in the African continent.

Also, we have no medicine in hospitals. The Kangundo District General Hospital does not have medicine; not even panadol. When the President visited Machakos the day before yesterday, about 20 dead bodies were dropped by the roadside, in an attempt to dispose them before the President inspected the hospital. The mortuary was built to preserve dead bodies, yet somebody gave instructions for the bodies to be taken away and disposed so that the President could find an empty mortuary.

Therefore, the Chairman has a lot of work to do. We talk about the environment and many other things, but unless Kenyans are committed to work round the clock for the

May 28th, 2015 SENATE DEBATES

The Deputy Speaker (Sen. Kembi-Gitura)

We will proceed to Order No. 10. Sen. Muthama was on the Floor and still has 12 minutes.

However, but before we do that, please, proceed with your point of order, Sen. Muthama.

On a point of order, Mr. Speaker, Sir. I rise to refer the House to the Standing Order No.45. There is a Statement that has been prepared by the Senate Majority Leader. Since he is not in the House, I can read it on his behalf.

The Deputy Speaker (Sen. Kembi-Gitura)

May 28th, 2015 SENATE DEBATES

CLOSURE OF THE ROAD TO LAKE NAIVASHA BY A PRIVATE DEVELOPER

Sen. Mungai

Mr. Deputy Speaker, Sir, I rise under Article 40 (2) (b) of our Constitution---

The Deputy Speaker (Sen. Kembi-Gitura)

Is it the Constitution or Standing Orders?

Sen. Mungai

Mr. Deputy Speaker, Sir, it is Standing Order No.45. It also touches on our Constitution, under Article 40 (2) (b) .

May 28th, 2015 SENATE DEBATES

The Deputy Speaker (Sen. Kembi-Gitura)

May 28th, 2015 SENATE DEBATES

ESTABLISHMENT OF SELECT COMMITTEE TO LOOK INTO THE AFFAIRS OF THE KENYA AIRWAYS LIMITED

May 28th, 2015 SENATE DEBATES

COMMITTEE OF THE WHOLE THE NATURAL RESOURCES (BENEFIT SHARING) BILL (SENATE BILL NO. 34 OF 2014)

The Deputy Speaker (Sen. Kembi-Gitura)

We will proceed to Order No. 10. Sen. Muthama was on the Floor and still has 12 minutes.

However, but before we do that, please, proceed with your point of order, Sen. Muthama.

May 28th, 2015 SENATE DEBATES

BUSINESS FOR THE WEEK COMMENCING TUESDAY, 2 ND JUNE, 2015

Mr. Speaker, Sir, I rise under Standing Order No.45, to present to the Senate business for the coming week. As Senators will note in the Order Paper, Order No. 19, the Senate Majority Leader will move the Motion for the adjournment of the Senate, in accordance with the Standing Order no. 28 (3) , and as per the Senate calendar, for the House to adjourn for approximately two weeks until Tuesday, 16th June,

MARGINALIZATION OF KOLA WARD BY MACHAKOS COUNTY GOVERNMENT

May 28th, 2015 SENATE DEBATES

As you are aware, under Article 119(1) of the Constitution says:- “Every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal any legislation.” Hon. Senators, in his Petition,

Hon. Festus Ndeto states as follows

May 28th, 2015 SENATE DEBATES

On a point of information, Mr. Deputy Speaker, Sir. It is not really the people who voted for us. In this particular respect most of the time it is the people who we campaigned for. In Siaya County it is the person I campaigned for. They are the people who are doing these things.

The Deputy Speaker (Sen. Kembi-Gitura)

Mr. Deputy Speaker, Sir, Sen. Orengo is very right. On the ground, you may find some of the Members of County Assembly (MCAs) we campaigned for dishing out money. They said that the Senator carried them on their back. Suddenly, they turn out to be monsters and start doing things that do not make sense. In my county – the same applies in almost all counties – if an MCA has a bad relationship on phone or otherwise with a Senator, the Senator discriminates against the ward which the MCA represents.

Mr. Deputy Speaker, Sir, these are some of the things that are painfully found on the ground. There exists a County Assembly Service Board (CASB) which is chaired by the Speaker. Is there no way such an issue could be raised in the board where the minority leader, majority leader and one extra member sit? We want to see how the Senate could give teeth to the Board so that it intervenes in the matters before they rise to this extent.

Mr. Deputy Speaker, Sir, I am aware of some governors, including mine, who went boldly to say that Senators have been given money for oversight in the next financial year; that is money wasted. Article 96 (3) talks about oversight. The oversight is done day and night. The money for oversight is supposed to be obtained from the funding that goes to counties and is voted by this Senate. However, because they have amalgamated the funds, it is time we go full throttle in dealing with such petitions. We need to encourage counties that are suffering to bring petitions as fast as possible. The Senate is capable of doing its work especially now that we will be given some little amount of money to get fuel in order to run faster around the counties. I know the money is not enough but we can do that.

Mr. Deputy Speaker, Sir, I do not agree that this is the way forward.

Thank you. I think that is about it.

May 28th, 2015 SENATE DEBATES

The Deputy Speaker (Sen. Kembi-Gitura)

Thank you, Senator. There is some interest on this matter and like I said, you cannot exceed 30 minutes. I am going to allow a maximum of five minutes so that everybody can have something to say.

Mr. Deputy Speaker, Sir, I just wanted to speak very briefly on this issue. I am the Chairman of the petitions sub-committee of the Committee on Finance, Commerce and Budget and we have realized that we are going to get more and more of these petitions, the reason being that there seems to be no understanding in counties that these are governments just like the national Government. In this Senate, we come from various parties and coalitions but when we make decisions about counties, we do so in the interest of those counties where the people of Kenya live. It looks as if some counties, when it comes to making use of public resources, public officials begin taking into account political sympathies or affiliations, which is completely undemocratic because all these people are taxpayers.

Mr. Deputy Speaker, Sir, I want to propose that we should look at possibilities as quickly as possible of making sure that Ombudsman’s offices are in every county so that when things like these happen, residents have an office they can run to, to complain about the conduct of public officials. This may help mitigate this tendency in counties of people getting punished because of their political views, support for governor or ward representatives, or lack of support therein.

Therefore, one of the things we should consider is to have the Ombudsman’s offices located in all counties so that people can have a place to run to. More importantly, as you can see, these petitions are increasing.

The Parliamentary Service Commission (PSC) should really think very seriously about capacity building or having special services to support petitions. For example, I am currently handling two petitions; one from Kisumu and another from Vihiga. I have realised that the staff that we have lack the capacity to help us handle these petitions expeditiously. So, we may find that these petitions, for them to come, we need to send a quick fact finding mission on the ground, not the Senators themselves but maybe civil servants from the Senate who will go and establish the facts like Sen. Orengo said and verify what is on the ground so that it shortens the time of listening to these petitions. Sometimes, certain facts can be exaggerated or understated but if you have a quick

May 28th, 2015 SENATE DEBATES

Thank you, Mr. Speaker, Sir. This Petition originates from my county. It is not different from other petitions which have been lodged in this House by Kenyans from other counties. I do not want to say much because it is on record that probably I am one of those who are not satisfied with the operations of my county. For that reason, I refer the House to Article 96 (1) which says:-

“The Senate represents the counties, and serves to protect the interests of the counties and their governments.” The people of Machakos through MCA Ndeto, the writer and the Petitioner, are coming before this House to present their grievances and problems to the Senate so that they can be listened to.

I request the concerned committees that these petitions are going to be very many. There is no one county that is not raising issues. It is said that justice delayed is justice denied. For that reason, the committees must work with the fastest speed possible to ensure that the life of this House does not expire and leave pending issues. The hope of Kenyans wherever they are when it comes to devolution is on this Senate.

I do not want to say much. I wish the Committee the best of luck and ask them to work to fulfill the expectations of Kenyans. There is no other place where these petitions can be dealt with other than on the Floor of this House. As I said, since they are going to be too many and in big volumes, it is up to the committees to work round the clock to make sure that they deliver justice to Kenyans.

Sen. Sijeny

Thank you, Mr. Speaker, Sir. I also wish to commend the petitioner because he is resorting to peaceful means of solving a problem which is so dear and crucial to not only him but the people of Machakos and Kenya. Devolution is still new, and I believe that these are teething problems and that is why people are still not guided on the right way of including all Kenyans.

I heard one leader who comes from one of the marginalized areas say that for the first time, they can actually say that Kenya has achieved Independence. This is because resources are now trickling down to the marginalized and remote areas. It is not only Nairobi and a few selected areas that benefit. It is very key and crucial that leaders deal with these aspects of devolution carefully. We should not allow a situation where a leader

May 28th, 2015 SENATE DEBATES

Thank you, Mr. Deputy Speaker, Sir. This Petition reveals a lot of distress that some wards and counties are going through as a result of some decisions that are one man or woman show in the counties. Some MCAs have been made to kneel down before some governors for their wards to be given their share. This is very strange because the funding that goes there has never been sourced and delivered by a governor. The Senate sits here and toils to the extent that even as late as yesterday, there was still an attempt to add more money to the counties. When it reaches there, we are quickly shut off and the people who voted for us are made to look like they have to be in favour of one person. This is a story that is told in all the counties.

I join my colleagues in thanking this MCA who was bold enough to come all the way to bring this Petition to the Senate.

Mr. Deputy Speaker, Sir, I do not agree that this is the way forward.

The Deputy Speaker (Sen. Kembi-Gitura)

Thank you. I think that is about it.

May 28th, 2015 SENATE DEBATES

THE REPRODUCTIVE HEALTH CARE BILL (SENATE BILL NO. 17 OF 2014)

THE PUBLIC APPOINTMENTS (COUNTY ASSEMBLY APPROVAL) BILL (SENATE BILL NO. 20 OF 2014)

THE COUNTY EARLY CHILDHOOD EDUCATION BILL (SENATE BILL NO. 32 OF 2014)

THE COUNTY ASSEMBLY SERVICES BILL (SENATE BILL NO. 27 OF 2014)

May 28th, 2015 SENATE DEBATES

THE UNIVERSITIES (AMENDMENT) BILL (SENATE BILL NO. 31 OF 2014)

THE COUNTY HALL OF FAME BILL (SENATE BILL NO. 33 OF 2014)

THE INTERGOVERNMENTAL RELATIONS (AMENDMENT) BILL (SENATE BILL NO. OF 36 OF 2014)

ISSUANCE OF IDENTITY CARDS TO ORPHANS AND VULNERABLE CHILDREN ON ATTAINING 18 YEARS OF AGE

ESTABLISHMENT OF NACC COUNTY OFFICES

May 28th, 2015 SENATE DEBATES

The Deputy Speaker (Sen. Kembi-Gitura)

Next Order.

MOTION FOR ADJOURNMENT ADJOURNMENT OF THE HOUSE PURSUANT TO THE APPROVED CALENDAR FOR THE 2015 SESSION

Mr. Deputy Speaker, Sir, first, I support this Motion of Adjournment. Secondly, I share the sentiments expressed earlier on by the hon. Speaker in appreciating the work of the Senators particularly this time round. We laud the commitment demonstrated and the concentration in the House which has enabled us to accomplish so much more than we have been able to do in the past. I, therefore, feel that we deserve this recess to go out there and reenergize, have the opportunity to consult with the citizens in our counties and refresh ourselves.

Mr. Deputy Speaker, Sir, it is clear that there are many challenges which are emerging in the counties, some of which are very huge; challenges to do with sections of counties being denied devolved resources, Members of County Assemblies (MCAs) being intimidated for whatever reason, mismanagement of county resources and so on; all that is demonstrated by the kind of petitions which are beginning to come to this House. I guess that in the days ahead, the number of those petitions will be on the increase. Out there, the hope of the citizens in the counties is vested in this House. There is a lot of

- THAT, this Senate adjourns until Tuesday, 16th June, 2015. Mr. Deputy Speaker, Sir, the Speaker – at the beginning of this afternoon sitting – commended this House for the remarkable work we have done in this particular session of the House. Several useful Bills have been passed by this Senate including those that had constitutional deadlines. However, more relevant to this House were Bills that touch on the core mandate of the Senate like the Division of Revenue Bill and the Public Audit Bill which are fundamental for good governance. It is, therefore, appropriate to give Senators time to focus for the next few weeks on oversight functions in their respective counties and attend to other issues of representation by their constituents.

Mr. Deputy Speaker, Sir, some of the Bills that we have passed like the Division of Revenue Bill – I want Members to be alert to the fact that – the National Assembly has adjourned without debating it. They will, probably, come back next week to discuss it. The information already filtering to us is that some Members of the National Assembly feel that the Division of Revenue Bill is a money Bill. For that matter, they argue that a money Bill should not come to the Senate. That is the decision they are selling to various quarters to justify why they may not agree to the mediated version of the Bill.

As we go to our respective counties, Members should continue emphasizing, especially to the counties, that they should strongly come out to demand that the Bill be processed and signed because the mediated version of the Bill was signed by the Chairman of the Mediation Committee from the National Assembly. That was done in the context of the Constitution. The National Assembly, more than anyone else, has a responsibility of complying with the Constitution. It is a constitutional requirement for a

May 28th, 2015 SENATE DEBATES

The Deputy Speaker (Sen. Kembi-Gitura)

Hon. Senators, before Sen. Orengo seconds, there is a lot of interest in this matter and so in fairness to everybody – I heard Sen. Orengo saying tuachie time kidogo – I am going to control the time. It is going to be five minutes for each Member contributing. Sen. Orengo you have five minutes within which to second the Motion.

I thank you, Mr. Deputy Speaker, Sir, and the Senator for Mandera, for giving me the opportunity to second this Motion which I support. I want to begin by urging the Membership of this House that belongs to the Jubilee Coalition Government that it would appear like we are whining. I would like to appeal to them that since now we have a decision by the Supreme Court on the question of which Bills must come to the Senate and what is the procedure for enactment of legislation, it is no longer a question where we should be begging but it is a question of the rule of law which is the principle of our Constitution and that indeed, the membership of the Senate on the opposite side have the responsibility to bring to the attention of the Executive that they would not be seen in good light if they are seen to be acting contrary to the decision of the supreme judicial organ in the country, which is the Supreme Court and secondly, the

May 28th, 2015 SENATE DEBATES

The Deputy Speaker (Sen. Kembi-Gitura)

As I had said, there is quite some interest in this matter. For now, I will grant you five minutes. I could change that with your consent should the need arise.

Proceed, Sen. G.G. Kariuki.

Sen. G.G. Kariuki

Mr. Deputy Speaker, Sir, I also rise to support the Motion of Adjournment of the House until 16th June, 2015. While I do that, I want to also add my voice to what others who have spoken before me have said. As a Senate, we need to assert our position. You find that it is so easy for us to talk about the national Government which is outside our responsibility. As politicians and leaders of this country, we have a right to air our views and correct the national Government whatever the case but our main responsibility is to speak for the county governments. We seem to be running away from that responsibility all the time with the excuse that we have no money for oversight.

Mr. Deputy Speaker, Sir, it is time we accepted our responsibility which is not so easy. As we do not have enough time, I would like to suggest that when we come back, we should think about areas of concern. For instance, if we think that Siaya County is not

May 28th, 2015 SENATE DEBATES

The Deputy Speaker (Sen. Kembi-Gitura)

Order, Senators. It is now 6.30 p.m. It is time to adjourn the Senate. The Senate, therefore, stands adjourned until Tuesday, 16th June, 2015 at 2.30 p.m.

The Senate rose at 6.30 p.m

May 28th, 2015 SENATE DEBATES

Mr. Deputy Speaker, Sir, I also join my colleagues in supporting this Motion for Adjournment. With your permission, Sen. Leshore of Samburu County, Sen. Munyes of Turkana County, Sen. Moi of Baringo County and I have been away for almost two weeks now, literally because of the issues of cattle rustling that we have in the common border. We are dealing with a security matter, which essentially is a function of the national Government. We were forced to use the little resources in the county to hire choppers. Every county hired one chopper to move around and we saw a lot of challenges. Our people trust the Senators most. Wherever we went with the Governors, people wanted to listen to the Senators, because that is where their hope is. Some of the governors are facing petitions regarding the way they are spending money.

If we had money and support as Senators, we would have utilized the coming two weeks to address some of the issues that are emerging in the counties. But I face a challenge moving with my car up to the tip of the Pokot-Turkana border.

Secondly, this is also a time to sit down and listen to some of the fairy tales of how the monies that we have allocated to the counties are benefiting or not benefiting our people in the counties. I would also love to be invited by my boss, Sen. Obure, for a visit. When I was his Permanent Secretary, he used to call me “the only one,” because we had no other Permanent Secretary. Last time, you invited me it was very good talking to your people. We also visited Sen. G.G. Kariuki’s county although we did not reach his home. It is an opportunity that we can utilize quite well.

This is the time that the Kshs170 billion that the Minister for Interior and Coordination of National Government has should be used. Given the challenges in north eastern, how do we expect Sen. Billow to move around without support? It would be brilliant and great that we utilize this opportunity to the best of our abilities, but some of us will not be able to move because we do not have the means.

Given what happened yesterday, we are hearing about chest-thumping in the “Lower” House; that they do not approve of that little money that was increased in the budget for counties and agreed on by the meditation team from the two Houses. When

May 28th, 2015 SENATE DEBATES

Mr. Deputy Speaker Sir, I rise to support this Motion of Adjournment. I concur with the Chairperson, Sen. Billow, that the Senate has done a tremendous job more so, when I remember the 2013/2014 Financial Year when we had a lot of difficulties in this House on how to increase funds to the counties. In the 2014/2015 Financial Year, we also had a lot of difficulties where proposals were made on the Floor of the House. The Committee itself could not manage to move an inch towards increasing the funds.

However, I am so happy that for the first time, in this Financial Year 2015/2016, the Chairman, together with the Mediation Committee that we appointed, has succeeded to negotiate and come out with something. Although they did not get the Kshs 7.7 billion that we wanted, we got close to what we wanted. This is a very clear demonstration that we are moving out of what Sen. G.G Kariuki termed as “political parties’ politics” and also the regional alignments of our country.

I want to remind those who doubt the ability of this House’ work to refer to Article 96 (3) of the Constitution which says:-

“The Senate determines the allocation of the national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the county governments.” The words are not “the Senate will” or “the Senate shall”, but it is involved in determining. It is therefore our responsibility to make sure that it is done and the funds are given to the counties.

Mr. Deputy Speaker Sir, as we adjourn to go on recess, we are going out there to face a lot of challenges that will be posed to us by the people who sent us here. The one challenge that all of us will face is the issue of insecurity in the country. When you go to church, mosque or any other gathering, wananchi raise the issue of insecurity. When you address them, you say: “I want to ask the Government”. We have lived with those words since 1963 to date. Fifty years down the line, we are still issuing such statements to the people who elected us. The Common mwananchi does not know the difference between a Senator and the President when it comes to issues of insecurity. They do not know what the difference between the Executive and Parliament is.

Mr. Deputy Speaker Sir, time has come for the leaders in this country to go by what was said by Sen. G.G Kariuki; that it is about Kenya, our children and grand children. We need to face the challenges of this country with the truth. If you look at the opinion polls that came out, which we read in the newspapers today, one of the issues that is bringing President Uhuru Kenyatta’s popularity down is the failure to cope with criticism. Criticism must be accepted. For now, we do not want to be seen circumventing criticism, as politicians, Senators and leaders.

May 28th, 2015 SENATE DEBATES

The Deputy Speaker (Sen. Kembi-Gitura)

Please, proceed Sen. (Dr.) Khalwale.