November, 3 2016 SENATE DEBATES Thursday, 3rd November, 2016

What is it, Sen. Sijeny?

Mr. Speaker, Sir, I was supposed to table a report but it has not arrived. I ask for your indulgence.

Is that a reason to intervene, surely? Proceed to the next order.

There are no requests for statements. Let us go to responses.

Mr. Speaker, Sir, I sought a response from the Ministry regarding the safety and security of Mr. Bernard Muchere. I was advised as follows;

November, 3 2016 SENATE DEBATES

Order, Sen. Wetangula! You had already made that request. Let the Chairperson respond.

Mr. Speaker, Sir, had the Senator listened to me carefully, I said I talked, myself to Mr. Muchere, personally!

Order, Sen. (Dr.) Machage. I did not hear that.

Mr. Speaker, Sir, I said I sought a response.

That is correct.

Mr. Speaker, Sir, I believe that meant what I have just said.

No, you did not say that. That is why the clarification was being sought. When do we expect the substantive Statement?

What is it, Sen. Sang?

On a point of order, Mr. Speaker, Sir. Could the Chairperson confirm that that response by the said auditor was not also induced? He could have been threated not to give information that he is under threat. It is possible that the said auditor, having been threatened and the story covered in the media that he would be threatened not to talk anymore. Since he is a doctor, he could decipher the demeanor of the said auditor. Can he confirm that the auditor was not under any duress?

Respond, Sen. (Dr.) Machage.

Mr. Speaker, Sir, whereas that is a reality, it was not possible for me to read that kind of insinuation that he was responding that way because he was threatened not to respond the way he should have. I believe he was sincere in his response. In any case, it is very difficult to read somebody’s mind unless one is a qualified psychologist, which I am not.

Chairperson of the Standing Committee on Devolved Governments, yesterday, we allowed a 24-hour notice for the benefit of Sen. Bule. We agreed to proceed without further reference to him.

Proceed, Sen. (Prof.) Lesan!

Mr. Speaker, Sir, I walked in late because I have been out there making an attempt to comply with your order. We have tried the best we can. The earliest we can get the report from the Ministry of Devolution and Planning is on Sunday. However, we are not sitting until Tuesday. Therefore, the earliest I can bring the report to the House is on Tuesday. We have tried as much as we can to make the Ministry understand the urgency. They assured me that as they prepare a report for the Hose, they are carrying out activities in the various affected counties in the country to alleviate the suffering caused by the famine and drought in some of those areas.

November, 3 2016 SENATE DEBATES

The Statement should be brought to the House on Tuesday afternoon. The Chair is just curious that you will be working on a Sunday which means they will be working on a Saturday too. Those two days are not usually working days.

Mr. Speaker, Sir, this is an emergency as you have told me. We have told them that this question needs to be answered in the House. They had assured that we would get the response this next week. They said they wanted to be sure that the report is here. They have asked the officers who are dealing with this to work on this over the weekend.

Order, Chairperson. I will save you the trouble. Get the report on Monday morning at 8.00 a.m. We will not open our offices on Sunday to await your report.

What is, Sen. Haji?

On a point of order, Mr. Speaker, Sir. From the statement read by Sen. (Prof.) Lesan, he seems to have concentrated on Tana River because the questioner is from Tana River County and Kajiado because Sen. Mositet raised the same issue yesterday. I hope on Tuesday, he will bring a report on the whole country.

Mr. Speaker, Sir, unless the Ministry does not want to give the Chairperson the response, we know for a fact and it is in the public domain that the Ministry has already developed an elaborate programme for the drought. They have already allocated up to Kshs5 billion. They have already started distributing food in Samburu and many other places. Therefore, it is a question of whether they are committed to give a response.

The Senate Minority Leader (Sen. Wetangula) : Mr. Speaker, Sir, indeed the question came from Sen. Bule. However, in several riders, we asked the Chairperson to give the Senate the entire profile of the famine situation and food shortage in the country. In so doing, news have come forth that, in fact, what is lacking in this country is not food. What is lacking is proper planning and movement of food from areas where there is food to areas where there is no food; that is, in Nandi, Trans-Nzoia, Uasin Gishu, Bungoma, Kakamega---

Order! Sen. Wetangula, you must learn to take the Chair seriously. There is no matter before us. What are you prosecuting?

Order! Sen. Wetangula, this House must have rules. The Statement will be here on Tuesday. The Chair knows the mood of the House. That matter was visited and nothing has changed.

Mr. Speaker, Sir, indeed the question came from Sen. Bule. However, in several riders, we asked the Chairperson to give the Senate the entire profile of the famine situation and food shortage in the country. In so doing, news have come forth that, in fact, what is lacking in this country is not food. What is lacking is proper planning and movement of food from areas where there is food to areas where there is no food; that is, in Nandi, Trans-Nzoia, Uasin Gishu, Bungoma, Kakamega---

Order! Sen. Wetangula, you must learn to take the Chair seriously. There is no matter before us. What are you prosecuting?

Order! Sen. Wetangula, this House must have rules. The Statement will be here on Tuesday. The Chair knows the mood of the House. That matter was visited and nothing has changed.

November, 3 2016 SENATE DEBATES

Mr. Speaker, Sir, the report has delayed because the famine is experienced countrywide and it affects many pockets of the country. They are attempting to give us a comprehensive report of both what they are doing in terms of the activities going on now and what plans they have for the rest of the country and that will answer the question. I also expect to be informed of other issues that I have raised to them on phone because that might be necessary. It is just that we want to give a comprehensive answer.

Is the Chairman of the Committee on Legal Affairs and Human Rights in? If he is not in, let us have the Vice Chair, Sen. Sang.

Is the Chairman of the Committee on Legal Affairs and Human Rights in? If he is not in, let us have the Vice Chair, Sen. Sang.

Mr. Speaker, Sir, unfortunately, we have not received a response from the Ministry. Our staff went to the Ministry yesterday but nothing is forthcoming as at now. I request that you allow me to update this House next week on Tuesday.

Mr. Speaker, Sir, the reason I asked for the Statement is because every time there is recruitment of police, Kenya Defence Forces (KDF) and the National Youth Service (NYS) , the children from Malewa Ward in Gilgil are always told to go to Naivasha---

Order, Senator. We are not prosecuting the House. The issue is whether Tuesday is okay for the response.

Mr. Speaker, Sir, since the Chair was away, I agree that next week on Tuesday is okay.

Mr. Speaker, Sir, this Statement was requested by none other than the distinguished Senator, Moses Wetangula. Part of the Statement was issued on 19th October, 2016. However, I want to read this supplementary Statement on questions sought by Sen. (Dr.) Khalwale, Sen. Sijeny and Sen. (Dr.) Machage. The first question was why the refugees are finding it difficult to go back to their initial land now that they

Mr. Speaker, Sir, this Statement was requested by none other than the distinguished Senator, Moses Wetangula. Part of the Statement was issued on 19th October, 2016. However, I want to read this supplementary Statement on questions sought by Sen. (Dr.) Khalwale, Sen. Sijeny and Sen. (Dr.) Machage. The first question was why the refugees are finding it difficult to go back to their initial land now that they

November, 3 2016 SENATE DEBATES

November, 3 2016 SENATE DEBATES

Mr. Speaker, Sir, could the Chair confirm or deny that the so called IDPs were actually transported in an inhumane way and assaulted in the process of that exercise to the extent that some had to get medical attention?

Mr. Speaker, Sir, I would like to get information from the Chairman concerning whether the Ministry has information up to date regarding where the various IDPs who went to Uganda or elsewhere and their origin in terms of counties. If that data is still available, what is the Government doing to resettle them?

Mr. Speaker, Sir, it is clear that this Government does not have a coherent policy regarding IDPs. We have IDPs problems across this country in many places. On this particular one, I just wanted to know this because we have a Government in place. Could the Chairman explain who was responsible for the midnight exodus of the refugees from the Gate of Parliament? I am sure the Government works even at midnight. Could he explain who did that? If it was the Government, why would it engage in a

November, 3 2016 SENATE DEBATES

Mr. Speaker, Sir, on the response given by the Chairman of the Committee---

Order, Deputy Speaker!

Mr. Speaker, Sir, I request you to accept my apology. On the answer given by the Chairman of the Committee, I am personally interested in the question of integrated Internally Displaced Persons (IDPs) . It appears that they were not considered in this statement although we have raised that issue many times. Is the Chairman satisfied that the integrated IDPs who have been recorded at every County Commissioners’ office – at least in Murang’a we have the record – have been settled financially or that arrangements have been made for them to go back to secured land which they used to possess before the rising of the post- election violence?

The last two from Sen. Sijeny and Sen. Sang.

Mr. Speaker, Sir, the Chairman has not given us the data concerning the number of women especially the ones who were out here and what precautions are being taken to ensure that the women and the young children even the one who was delivered there are well taken of and they have all the essentials as provided for in the Constitution.

Sen. Sang!

Mr. Speaker, Sir, could the Chair also provide an inventory of the land belonging to all the IDPs who were uprooted from their homes – if at all they were – and who were resettled elsewhere so that we know what happened to their parcels of land and who is occupying them. Finally, in terms of the midnight operation, could the Chairman confirm that it is the Government policy that every time they engage in such an exercise, it has to be done at night?

Let us allow the last one from Sen. Karaba!

Mr. Speaker, Sir, it is like we are dealing with an amorphous problem. Can we be assured by the Chairman that whatever happened in Kenya that time that we have refugees moving to the neighbouring countries would never happen again? We are dealing with the Government. The Government is there to protect every Kenyan. It is like we can allow some people to occupy other people’s property as others turn to be refugees. Has it happened in other places?

Order, Sen. Karaba! Chairman, proceed to respond.

Mr. Speaker, Sir, from the reaction of the House, I do not need to mention all those Senators who have asked this supplementary questions. I strongly feel that they are all valid and important. They need to be attended to. Therefore, we shall endeavor to get an appropriate statement from the Cabinet Secretary. This statement has taken over two weeks. The Senators should bear with us that in another two weeks, we will be required to give an elaborate and proper feedback to this request.

It is so ordered. Next statement! What is it, Sen. Sang?

On a point of order, Mr. Speaker, Sir. Whereas I appreciate your direction on the two weeks, I would be requesting that you dissect the statement. There are more clarifications that we sought. A specific one as to the whereabouts of the

November, 3 2016 SENATE DEBATES

Chairman, I think that is important. I would add that you tell us the destination as related to the origin and who was responsible for the movement. So, you need to confirm whether it was a Government operation and if so, where were they taken?

Mr. Speaker, Sir, I will try to bring the answer on Thursday next week.

Mr. Speaker, Sir, I was there yesterday after a very serious discussion in the Senate. I personally went to see the Cabinet Secretary and I found out that he had already left for Mombasa. I saw the statement on his table but it is not signed. So, we are waiting until he comes back to sign the statement so that it can be tabled here next week. I am taking it seriously. The questioner is also not in.

Mr. Speaker, Sir, I was there yesterday after a very serious discussion in the Senate. I personally went to see the Cabinet Secretary and I found out that he had already left for Mombasa. I saw the statement on his table but it is not signed. So, we are waiting until he comes back to sign the statement so that it can be tabled here next week. I am taking it seriously. The questioner is also not in.

Order, Chairman! How do you access the Cabinet Secretary’s office including the desk in his absence? How can the Cabinet Secretary for Education be so serious to the extent that he does not appreciate digital platforms that the statement can be signed wherever he is and be transmitted electronically? What is it, Sen. Sang?

On a point of order, Mr. Speaker, Sir. While appreciating the enthusiasm by the Chairman of the Committee that he might have given the energy to get to the desk of the Cabinet Secretary, now that he confirms that he saw the letter, could he give a highlight of the statement if he read it?

Order, Sen. Sang! We do not operate that way. We deal with certified statements. What is it, Sen. Kembi-Gitura?

On a point of order, Mr. Speaker, Sir. I am getting concerned about the Chairmen of Committees having to hustle by going to the offices of Cabinet Secretaries to follow up or to push them to do what they should be doing. Every day we listen about this issue, it is about chairmen saying how they have hustled so much and how many trips they have made to the offices. This cannot be allowed to go on because chairmen of committees are supposed to transmit the requests and get answers in good time without them being reduced to messengers. It is not acceptable. It is time we hold meetings between the Senate, chairmen of Committees and the Cabinet offices so that they can understand that a chairman of a committee is an important person. He has a duty to do and they cannot be reduced to be running up and down following statements which is something that Cabinet Secretaries and their officers should to do. It is degenerating to a serious situation when we hear that a Senator has been camping at the Cabinet Secretary’s office. Why should that happen? Why should a Chairman of a Senate Committee be camping outside an office even now forcing Sen. Karaba to peep into his office to see that the statement is lying on the desk unsigned? It is wrong. We need to---

November, 3 2016 SENATE DEBATES

Mr. Speaker, Sir, the issue that Sen. Kembi- Gitura has raised raises a much more fundamental issue. That is in the way in which the Senate manages the answers to this question. I do not think that the answer to a question from a Cabinet Secretary (CS) should depend on the Chairperson interacting with the CS’s office nor do I think it should be the responsibility of a chairperson to search for that answer anywhere. That should be the responsibility of a particular office in charge of answers to questions in the Senate. That office should simply convey an answer to a particular chairperson and not devolve that function to chairpersons.

Sen. (Prof.) Anyang'-Nyong'o, you are repeating what the situation is. However, circumstances are such that the chairpersons will wait for those statements to come, but they are not forthcoming. When answers are brought to the House, we deal with chairpersons and not that other office. So, we can understand where the chairpersons are coming from.

Order, Sen. (Prof.) Anyang'-Nyong'o! There is no amount of deliberations here that will save the situation.

I said that Sen. Kembi-Gitura had put a proposition which we will consider. That is a way of solving the issue. For now, what you have said is correct. What everybody knows is correct, but it is not working. So, we must find ways of making it work.

Mr. Speaker, Sir, I am of the opinion that your office writes a very strong letter to all the CSs warning that it is important that they adhere to whatever comes from the Senate. If it is from the Speaker’s office, they will understand the seriousness. We are really frustrated by those officers. We have gone to an extent where we even try to plead with them. It is like those are our statements yet when we come here, not many people will understand the predicament we face. We are faced with an avalanche of questions and insinuations which are not very palpable to some of us. So, please, intervene on our behalf.

I hear you, Mr. Chairman.

Mr. Speaker, Sir, for those of us who have worked in the public service before, there used to be a circular which specifically said that parliamentary business takes priority over any other business. What need to be done is to ask the Head

November, 3 2016 SENATE DEBATES

On a point of order, Mr. Speaker, Sir. Sen. (Prof.) Anyang'-Nyong'o has made a very serious reference to a circular in the Jubilee Government. Would I be in order to request that he tables the same circular giving details of when it was written and by whom so that we do not engage this House in a circus? Is he in order to trivialize a very important issue? He should be able to substantiate by tabling that particular circular.

On a point of order, Mr. Speaker, Sir. Sen. (Prof.) Anyang'-Nyong'o has made a very serious reference to a circular in the Jubilee Government. Would I be in order to request that he tables the same circular giving details of when it was written and by whom so that we do not engage this House in a circus? Is he in order to trivialize a very important issue? He should be able to substantiate by tabling that particular circular.

On a point of order, Mr. Speaker, Sir. With great respect to Sen. (Prof.) Anyang'-Nyong'o, I do not think that that statement should be left to just go and be recorded in the HANSARD for posterity. It is a very serious statement. Sen. (Prof.) Anyang'-Nyong'o is also a very senior legislator. That statement is an extremely dangerous because he said that everybody knows that the most important circular in the Jubilee Government is the one that he has referred to. Unless he tables it because he has been a Cabinet Minister himself and he has referred to a document that he purports exists in his own words. It will be incumbent upon him to either substantiate by tabling that circular like Sen. Sang has requested or withdraw and apologise, not just to the House, but to the entire Republic.

He made it in the hallowed walls of the Senate where unless you make an order as the presiding officer of the Senate, then this is very dangerous. We are live on television talking about our nation and everybody is watching, including our children. What message is he sending out? That is extremely dangerous statement coming from such an important leader who sits as the Chairperson of the County Public Accounts and Investments Committee (CPAIC) . There must be an apology given.

On a point of order, Mr. Speaker, Sir. Is it in order for Sen. (Prof.) Anyang'-Nyong'o to talk about looting in Jubilee while he knows very well that corruption was initiated by the current Opposition leaders when they were Cabinet Ministers in the nusu mkate Government? He was himself mentioned in the National Hospital Insurance Fund (NHIF) scandal and the Senate Minority Leader was named in the Tokyo Embassy saga. What is he telling us? There is also the Kisumu Molasses Plant and the maize scandal. They are the initiators of corruption in this country.

On a point of order, Mr. Speaker, Sir. Sen. (Prof.) Anyang'- Nyong'o stood on a point of information and I believe he wanted me to give an okay. I do not recall allowing him to inform me. So, on what basis was he given the Floor to inform me? Who was he informing?

November, 3 2016 SENATE DEBATES

Mr. Speaker, Sir, the effect of my statement confirms an English saying that ‘the guilty are afraid.’

Secondly, I will definitely produce the circular in four days time. Order, Sen. (Prof.) Anyang’-Nyong’o. The Standing Orders allow you to produce evidence in the next sitting. Being a Thursday, the next sitting is on Tuesday. Did you count Friday, Saturday, Sunday and Monday? You may wish to be on record, because the Standing Orders can only allow you to substantiate today or the next sitting. You do not have the luxury of the number of days.

Mr. Speaker, Sir, I will do so during the next sitting.

Next Tuesday.

Mr. Speaker, Sir, I will substantiate. I will come with my full dossier on Tuesday. For instance---

November, 3 2016 SENATE DEBATES

Mr. Speaker, Sir, I concur with you. On Tuesday I will come with the dossier on the National Hospital and Insurance Fund (NHIF) saga, maize scandal---

Order, Sen. Sonko! This is a House of rules. Once an order has been given, you are under duty to comply. You will bring the details on Tuesday; we do not need them now.

Much obliged, Mr. Speaker, Sir. I will come with the details on Tuesday.

Sen. M. Kajwang. Mr. Speaker, Sir, I am limited by the number of days in the Standing Orders. If I had more days, I would have substantiated. You are aware that there is a matter before the labour court.

Order! My instructions are clear and I am so plain today that you do not need to try to interpret my statements. Tell us whether you are substantiating and proceed, or if you are not substantiating, withdraw and apologise. If you cannot substantiate today, you have Tuesday.

For your information, Senators, I will not accept any reason for any Senator who has committed himself to Tuesday. Failure to substantiate on Tuesday, I will enforce the Standing Orders as they are.

Mr. Speaker, Sir, under the circumstances, I withdraw. I promise you that once the evidence is gathered, I will resurrect the matter, but for now I withdraw and apologise.

Order, Members. I take it that Sen. M. Kajwang has withdrawn and apologised. I take it too that Sen. (Prof.) Anyang’-Nyong’o has not substantiated and he will do so on Tuesday, which is the next sitting day as provided for under our Standing Orders. I also confirm that Sen. Mike Mbuvi Sonko, the Senator for Nairobi, has not substantiated today and he will do so on Tuesday, which is the next sitting day after today.

I want the two Senators to know that they must be in the House on Tuesday to do what they have promised the House and Kenya. Failure to do so, it cannot just be a matter of abdicating responsibility; it will meet the necessary implications as per the Standing Orders.

On a point of order, Mr. Speaker, Sir. Sen. Kembi-Gitura, I hope not on this matter because we have disposed of it.

Mr. Speaker, Sir, with great respect, I would like to have your direction on a small issue on this saga because it is an extremely important and deep issue. The Senator says he will substantiate on Tuesday, next week. What is the effect of a Senator coming on Tuesday and saying, “I am unable to substantiate, I now wish to withdraw and apologise?”

November, 3 2016 SENATE DEBATES

Mr. Speaker, Sir, I appreciate the directions you have given. This being a House of debate, statements may be pronounced on the Floor, but the information or documents that you need to use to substantiate them are sometimes held by other persons other than yourself. If, for example, you go for a particular document and you know for a fact that it exists, but the very authorities that hold it, may be reluctant to give it to you. Therefore, you are then left with no other option than to appear in the House and say that you are unable to access it. So, we should have some bit of latitude because if we have a strict provision with regard to substantiation, then we will curtail debate in this House. Nobody will make an attempt to provide substantiate anything in this House.

Mr. Speaker, Sir, even as you give directions, it should be understood that most of the time the substantiation is with regard to documents that are not within Senator’s possession, but other authorities that he may not have control over.

Order, Members! I had disposed of this matter. The Deputy Speaker should not be anticipating debate. He has attempted to go ahead of the game.

Sen. Sang, I am afraid I cannot help you. If you make an allegation, first, Standing Orders require that whatever you say should be accurate or factual. So, make an allegation knowing that you have already done your homework and you are in possession of the documents. That is the time you make the allegation. If you do not have or you are frustrated or you are unable or you cannot for one reason or the other, do not make the allegation. That is why you have the option of withdrawing and apologizing just in case it slipped your mouth without you knowing. So, it is just as simple and clear as that. However, I do not think it is as frustrating as you create the impression. The legislative history of this country is full of opportunities where Members have been able to substantiate things and carry the day. So, it is not that gloomy.

Finally, Sen. Billow, I sympathise with you. We have Senate Standing Orders not Kenya National Assembly where you served. Now you are the Senator for Mandera County. We are referring to Standing Order No.94 (1) . Let me just read because it is important for people to know that we are not allowing anything to go beyond what is required in our Standing Orders. It says:-

“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.”

That is where the Member challenges the other instantly. Paragraph (2) says: “If a Senator has sufficient reason to convince the Speaker that the Senator is unable to substantiate the allegations instantly, the Speaker shall require that such Senator substantiate the allegations not later than the next sitting day.”

November, 3 2016 SENATE DEBATES

November, 3 2016 SENATE DEBATES

Mr. Speaker, Sir, at the sitting of the Senate held on 23rd March 2016, Sen. M. Kajwang requested for a Statement on the Status of the National Security Communication System, particularly so to be informed on:

November, 3 2016 SENATE DEBATES

Mr. Speaker, Sir, there is no point in Sen. M. Kajwang being worked up and picking on the Chairperson. The Chairperson is just a messenger who is relaying the message. In any case, not everything has been lost. This matter can still be pursued because the Statement says that it cannot be discussed in an open forum. We can summon the Cabinet Secretary and do it in camera, if you so wish, but there is no way I can improve on what has been said.

On a point of order, Mr. Speaker, Sir. Yesterday, you issued clear directions to the Chairperson of the Committee on Education. Is it in order for Sen. Haji, Senator for County No.007 to suggest that he is a messenger on behalf of somebody? I propose that you rule him out of order following your determination yesterday on what Sen. Karaba similarly said.

Mr. Speaker, Sir, again, with a lot of respect to the Chairperson, I do not want to shoot the messenger even though I believe that as the Chairperson of the Committee, he is more than a messenger. I have canvassed nine issues in that Statement. Not all of them can be issues of high national security. These are issues that concern Kenyans and are alive. This is a project that has been called ‘Safaricom Gate’. This is a project that is seen to---

Order! Initially, I allowed you a lot of leeway; do not repeat. Let me dispose the matter.

Mr. Speaker, Sir, much obliged, but the prayer by the Chairperson that this matter be prosecuted in camera is not acceptable.

On a point of order, Mr. Speaker, Sir. What is it, Sen. (Dr.) Machage?

Mr. Speaker, Sir, I rise under Standing Order No. 92. Would I be in order to refer Sen. M. Kajwang to this Standing Order that refers to matters of sub judice and/or secret?

Sen. M. Kajwang, Sen. (Dr.) Machage is responding to the issue you raised about whether a matter can be secret and be dealt in camera. We can confirm that some matters are secret and will be dealt with accordingly. Some matters are sub judice and we have provisions on how to dispose them.

The request by the Chairperson that the matter should not be addressed in the open is not, in principle, a bad idea, but you are contesting that it cannot be that all particulars are secret in nature. That is the issue that the Chairperson needed to convince

November, 3 2016 SENATE DEBATES

Mr. Speaker, Sir, I forgot to mention that Sen. Haji is remembered as one of the most effective public administrators in the country. Therefore, he cannot be a messenger.

Indeed what I have said about Sen. Haji cannot be the complete curriculum vitae. He served as a Provincial Commissioner in Rift Valley not just once, but twice. That is the home of the second President of the Republic of Kenya. You do not serve twice in such areas. You can give Sen. Haji that information quietly and privately. Let us have Sen. M. Kajwang’ who is requesting for a Statement.

Mr. Speaker, Sir, my request for Statement is much briefer than the other one.

Order, Sen. M. Kajwang! Some statements are unhelpful and actually harmful. That was not in contestation. You have the right to seek a Statement. I am aware ,and I have given you the chance. Do not qualify.

November, 3 2016 SENATE DEBATES

November, 3 2016 SENATE DEBATES

Chairperson! Proceed, Sen. Obure!

Mr. Speaker, Sir, that seems like a very weighty request. However, we will attempt to make a response in two weeks’ time.

Order, Sen. Obure! You may just be polite. However, the use of the word ‘attempt’ does not inspire confidence.

Mr. Speaker, Sir, we will give a response for that request in two weeks’ time.

It is so ordered!

Mr. Speaker, Sir, I am reading this Statement on behalf of the Senate Majority Leader.

Hon. Senators, pursuant to the provisions--- Order, Sen. (Dr.) Machage! You may resume your seat.

Order, Members! We had occasion to deliberate on this matter. I refer Members to Standing Order No.45 (c) ;

“The Senate Majority Leader or, in his or her absence the Senate Minority Leader or, in the absence of both the Senate Majority and the Senate Minority Leader, a Member of the Rules and Business Committee designated by the Senate Majority Leader for that purpose shall, every Thursday or on the last sitting day of the week, present and lay on the Table, a statement informing the Senate of the business coming before the Senate in the following week.”

I would like Sen. (Dr.) Machage to confirm where he belongs here.

Mr. Speaker, Sir, I am reading this Statement on behalf of the Senate Majority Leader.

Hon. Senators, pursuant to the provisions--- Order, Sen. (Dr.) Machage! You may resume your seat.

Order, Members! We had occasion to deliberate on this matter. I refer Members to Standing Order No.45 (c) ;

“The Senate Majority Leader or, in his or her absence the Senate Minority Leader or, in the absence of both the Senate Majority and the Senate Minority Leader, a Member of the Rules and Business Committee designated by the Senate Majority Leader for that purpose shall, every Thursday or on the last sitting day of the week, present and lay on the Table, a statement informing the Senate of the business coming before the Senate in the following week.”

I would like Sen. (Dr.) Machage to confirm where he belongs here.

November, 3 2016 SENATE DEBATES

Mr. Speaker, Sir, defend me from Sen. Mutula Kilonzo Jnr. Order, Senator! I cannot defend you when you have exposed yourself.

Mr. Speaker, Sir, defend me from Sen. Mutula Kilonzo Jnr. Order, Senator! I cannot defend you when you have exposed yourself.

Mr. Speaker, Sir, if it is that it was not from you, then, first, the messenger must be reprimanded. Secondly, I apologize.

What is it, Sen. Kiraitu?

Mr. Speaker, Sir, let me not say what I was about to say because he has apologized. Imputing any improper motives on the Speaker himself is gross misconduct which would warrant him being excluded from this House.

He has apologized. He is an honourable Member who has a presence of mind to apologize. He does not have to be pushed. Other honourable Members including the leadership must appreciate. Therefore, I take and know for a fact that he was doing it in good faith.

Majority Leader, are you there?

Yes, Mr. Speaker, Sir. I would like to take you from your last statement. I equally apologize to the House for my delay without any reservations or conditions. I was caught up in other businesses related to this House. There are some Bills we are working on. I also apologize to Sen. (Dr.) Machage for putting him in some form of hazard. However, all is well, that ends well. May the House kindly take my apology.

November, 3 2016 SENATE DEBATES

November, 3 2016 SENATE DEBATES

Senate Majority Leader, do you have a response to that?

Mr. Deputy Speaker, Sir, I would like to thank Sen. Mutula Kilonzo Jnr. for the intervention he has made. I agree fully that we need concrete steps on how this matter will be addressed. I will be consulting with the rest of the leadership to make sure that next week we are in a position to give suggestion. What I can say is that no single one of us has a silver bullet for this matter. We need to initiate something and I am sure with the support of colleagues, we can rest this matter or at least take it to a different level other than lamenting here from time to time.

Mr. Deputy Speaker, Sir, I thank you and once more thank Sen. Mutula Kilonzo Jnr.

On a point of order, Mr. Deputy Speaker, Sir. Our Constitution gives a guideline on what happens to Bills that have been passed by this House and not assented to by the President beyond a certain period. What makes the Senate Majority Leader think that the Bills did not take the normal path of automatic assent when that period indeed expired?

Senate Majority Leader, that is directed to you.

Mr. Deputy Speaker, Sir, if I have heard the Senator for Migori correctly, I do not think the Constitution anticipated this kind of scenario. If it were inaction by the Executive, there is a solution where, by default, the law comes into operation. However, the inaction between the two Houses was not anticipated. Therefore, that is a constitutional issue that we must confront but I am sure we will find a way.

In the long term, I have been a proponent of the view that we need to amend the Constitution so that if inaction by either House of Parliament persists, then there could be some kind of recourse including automatic enactment of that law after a certain period has elapsed. Otherwise with this kind of thing, you can cause a paralysis. The law is silent but in the long-term, through constitutional review, that issue can be resolved.

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Very well. Sen. Mutula Kilonzo Jnr., you do not seem convinced.

Mr. Deputy Speaker, Sir, Sen. (Dr.) Machage has a point which is that Bills from the National Assembly that concern the Senate but have not come to the Senate have gone for assent directly and those laws have come into force. Similarly, what prevents the Senate from using a similar process by sending Bills to His Excellency the President for assent and, therefore, become law because this has happened before? Senate Majority Leader, we are trying to help you precipitate something that is useful. However, Sen. (Dr.) Machage has raised a very valid point.

Senate Majority Leader, that is an important point. Let me hear your response.

Mr. Deputy Speaker, Sir, the proposal by Sen. (Dr.) Machage supported by Sen. Mutula Kilonzo Jnr. sounds attractive but unfortunately, it is illegal. What the National Assembly has been doing is illegal. I do not think the Senate should also engage in an illegality. It is illegal because the law is clear on the mutual relationship on law-making.

I have been expecting some public spirited Kenyans to challenge those laws because they are illegally enacted. That is my position.

You said that you have been expecting some public spirited Kenyans to challenge the laws, are you not one?

Mr. Deputy Speaker, Sir, I am. However, there is a concept in law especially the law on property. This is the concept of encumbrances. In future, once I am free from any encumbrances, maybe I will assume that role. For now, by virtue of what I do at the moment, I am encumbered from doing that.

Mr. Deputy Speaker, Sir, on a serious note, this is a serious constitutional and governance issue. I long for the day when somebody will answer this in one way or the other. A message has to be sent that the Constitution is a sacred document that represents the will of the people and it cannot be subverted by the whims of an individual or an institution.

I want it to go on record that I believe in comments I have made about those laws and I have no apologies to make to anybody. I hope in future in the fullness of time, this matter will be addressed and somebody will be held culpable and responsible for subverting the will of the people of Kenya in the Constitution.

Mr. Deputy Speaker, Sir, I have listened to the Senate Majority Leader. We are actually talking about a very serious matter. In fact, the matter of crisis proportions that we sit in this House, deliberate on Bills and pass them but somebody decides that that will be the end of the road for those Bills. I request the Speaker to work with the entire leadership of this House and find a way forward in respect of this matter so that it is resolved once and for all and as quickly as possible.

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Mr. Deputy Speaker, Sir, as legislators and as a Senate, we cannot run away from the responsibility of implementing to the full the Bills that we have passed. We cannot pass it to the citizens who have elected us to represent them and to ensure that we defend them. It is high time we got a full list of all those laws.

We have the Committee on Implementation which should look into the matter. We also have legal experts in this House. Therefore, there is nothing that prevents us from even going to the courts of law to ensure that the law is followed and the Bills are brought to finality. That is the option that is open. Perhaps, we have not pursued it to the fullest.

Thank you, Sen. Ndiema. Sen. (Eng.) Muriuki.

Mr. Deputy Speaker, Sir, this issue is very crucial to the life and image of this House. However, having said that, let us be realistic. The issue is not just a Bill which was passed by this House and got stuck in the other House or it has not been consented to yet. The law is much wider. When we passed the new Constitution in our own goodwill as Kenyans, we separated the Executive, the Judiciary and the Legislature. It was in word before but now it is there in reality.

Mr. Deputy Speaker, Sir, before, MPs were not independent. There was the appendage that someone could remember you and appoint you as Minister or an Assistant Minister. What has happened is that in the Constitution, we thought the powers and also the economy of it would also be separated fully. Now that that it is not the case, the Executive is even more powerful than it was before which was not what we intended. As a result, our Senate Majority Leader will not have the courage to do what we want done.

This House has been going to the High Court to ensure there is constitutionality and there is nothing to prevent us from doing it now. It is only that we are just being timid. We need a driver. As far as I am concerned, if the leadership of the House, especially the Senate Majority Leader, does not raise the flag on our behalf, then I do not know who else will do it on our behalf as the Senate Majority Leader has said.

So, let us take courage and do what is supposed to be done, which is to ensure that we are heard. Ministries still get money which was supposed to be devolved. That means instead of you going to your governor or your county government to do things, you still go to the Executive. It makes the Executive even much more powerful such that you do not want to appear being anti or against or having reservations or issues with the Executive.

This is where the issue is. I would urge Members of this House to stand up and be counted and make sure that the Constitution is adhered to. It is failing because we have failed to ensure we guard it.

Sen. Murungi!

Thank you, Mr. Deputy Speaker, Sir. I understand the frustration of the Senate Majority Leader. The Senate has passed many important Bills over the last four years which go into some limbo and we are not told what happened to them. I do recall that one of the Bills is an important Bill for this country. The Bill which was passed by this House brought by the Senate Majority Whip, Sen. Elachi, which was establishing the National Food Security Council and cascaded committees which would oversee the

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Senate Majority Leader, I am sure that you must have also taught them that equity assists the vigilant and not the indolent.

Mr. Deputy Speaker, Sir, that was the second maxim. I am sorry for referring to the seventh maxim without first mentioning the second maxim. I agree with you fully that equity also aids the vigilant and not the indolent. So, I agree with the Chair and the other Senators who have spoken that this is the time for us to be vigilant and we do not have to apologise for that.

Finally, I agree with Sen. Murungi’s remarks and opinion that a political strategy is important and would, perhaps, yield urgent and better fruits. However, I would not say inciting, but Sen. Murungi’s speech was very energizing and has created a warfare mood. I assure him that I have taken the gauntlet and put all my warfare paraphernalia and I am willing to do battle.

Let me suggest that the judicial option should not also be discarded. For the political option, you can even get a compromise and get a short term solution.

The Senate Majority Leader, my direction to you was that you table the pending Bills. I am a reasonable person so, I agree with your further proposal that you also table those from us that we have dealt with. I also directed that you give a way forward by way of opening a debate. So, the issues that you are now dealing with are issues that I was hoping you deal with then you table what I have asked you to table on Tuesday, next week.

Mr. Deputy Speaker, Sir, thank you for that guidance. In conclusion, the same way we went to court with regard to the Division of Revenue Bill is the same way we should go to court on all the outstanding Bills. In fact, two years ago, we almost went to court, but we got a short term political solution that sedated us for a while and that is why we are back to square one. So, without violating your order, the judicial route must also be pursued, but on Tuesday, I will table

November, 3 2016 SENATE DEBATES

Mr. Deputy Speaker, Sir, in addition to the list of Bills from both Houses, we should also get a separate list of Bills which we passed, but have been plagiarised or amended and brought in as fresh Bills from the National Assembly and we have passed them. They are quite a number. We pass Bills here, they go to be changed and come as fresh Bills from the National Assembly. It is important he tables them because there is no good faith from the other side. We need to know and the public should know.

Thank you very much, Senators, for that very important debate.

Now, I have to reorganize the Order Paper. We do not have sufficient numbers to go to Division. So, I will stand down Order Nos.8, 9, 10, 11, 12, 13, 14 and 15.

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Mr. Deputy Speaker, Sir, I would like to thank the Senate Majority Leader for Moving this Bill. I have been away for some time and I have not had time to interrogate the Bill, but the Senate Majority leader has given us a preview of what it entails. I will not belabour many points.

It is true that this is an important Bill that seeks to amend Article 204 of Constitution. Many of the problems that we are dealing with as a nation can be traced to the issue of inequality and the fact that some regions in this country feel left behind in matters development for many years. It is also true that if we want to decentralise development and all other matters, the word ‘regional’ is quite big and does not talk to the real issues at the grassroots. Therefore, transferring the issue and matter of consideration to the level of constituency could make a lot of sense that seeks to give this

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Thank you, Mr. Deputy Speaker, Sir, for giving me the chance to contribute on this Bill. An amendment to the Constitution is a provision which is to be exercised by Parliament sparingly and when it is absolutely necessary. This can only be done if we feel those who drafted the Constitution may have fundamentally erred or left a loophole that we have to revisit.

Having said that, let us appreciate that there are many funds. For example, before the Constitution of Kenya 2010 was promulgated, we had the Women Enterprise Fund, Roads Fund, Constituencies Development Fund (CDF) and many others. Each one of them was brought about to fill in some gap that was there. Legislators felt that in order to fill that gap there was need to set aside some funds. The Committee of Experts saw that it was a good idea to set up an Equalisation Fund. They also spelt out how those funds would be spent. The responsibility was given to the national Government. As much as the Senate has the mandate to determine who gets what, the Committee on Revenue Allocation (CRA) had the mandate or the obligation to propose which areas or counties are marginalized.

There has also been a debate in the country as to whether we are talking of a marginalized county or a marginalized area. Sometimes it may be a very well-endowed county, but you might find an area in the same county which is seriously marginalized. When you look at it from the national level, it is easier for people in that marginalized area to state their case. However, if you take this money and share it like the CDF money in the constituency, in my humble opinion, we will not do what was envisaged to be achieved through this Fund.

To that extent, I do not find merit in changing the Constitution. Instead, we need to leave that responsibility to the organs mandated to do so by the Constitution. Constituencies should be left to fund their own projects which are of importance to specific areas and, therefore, we oppose this amendment to the Constitution. I do not think going the way the National Assembly has proposed and passed, we will achieve the objectives of what was intended in creation of the Equalisation Fund.

As I mentioned, we are looking at the marginalized counties, constituencies, areas, people or disadvantaged groups who are not economically empowered. These people are living in this Republic. It is not fair to share this money according to the constituencies.

For that reason, I oppose this Bill.

Thank you, Mr. Deputy Speaker, Sir. I rise to oppose this amendment. In the first instance, this amendment is unconstitutional. On the outset, I want to say that even the memorandum and objects of reasons by the author of this Bill is in itself unconstitutional. This is because it suggests that; “the enactment of this Bill shall not occasional additional expenditure and no referendum is required.” I am going to tackle that in a short while.

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Thank you Senator. Sen. Ndiema.

Thank you, Madam Temporary Speaker. I stand to oppose this Bill which seeks to set the clock of devolution backwards. It looks like we were not serious in implementing the Constitution. Several years down the line, while the Constitution stipulates clearly that 0.5 per cent of the national funds should be allocated for equalisation, it is sad that up to now, no money has trickled down to help those who are disadvantaged. As if to add injury, we are now seeing a proposal which goes to make it worse for those who were supposed to benefit.

Madam Temporary Speaker, I would have expected the percentage of the Fund to be increased by amending this Bill. The current figure of 0.5 per cent is too little to solve problems of all marginalized counties, constituencies, wards and communities. What we should be getting from the National Assembly, if they were serious to ensure that marginalization is addressed in all areas, is a proposal to increase this amount so that when we are allocating revenue to the counties, the issue of poverty does not arise because there will be adequate funds through this Equalisation Fund. We shall be talking

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Madam Temporary Speaker, thank you for giving me the opportunity to add my voice to this Bill. I oppose it in totality because it aims at bringing

November, 3 2016 SENATE DEBATES

Thank you, Madam Temporary Speaker. I join my colleagues in opposing this Bill. When Kenyans passed the Constitution (2010) , it was clear that we accepted that we are not at the same level because different parts of this country have been marginalised. That is why this Equalisation Fund was created. It was a noble idea.

However, it has limitations in the sense that the amount is not sufficient because it is 0.5 per cent. Again, the period of 20 years is not enough to cure that marginalisation. While we are still findings ways of enhancing the funds and maybe even increasing the period, we have seen the Members of the National Assembly trying to make sure that the equalisation is not attained in any way. The drafters of the Constitution knew that there is

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Thank you, Sen. Hargura. Proceed, Sen. Obure.

Thank you, Madam Speaker, for giving me the opportunity. I will make very brief remarks.

First and foremost, I would like to say an emphatic “no” to this Bill. I strongly believe that we, as lawmakers, must all work towards fulfilling the spirit of the Constitution at all times. We all know that the injustices of the past led to the existence or creation of marginalized areas in our country. Those injustices have caused so much pain and suffering to Kenyans living in those unfortunate areas which we now refer to as marginalized areas.

In the wisdom of the drafters of our own Constitution, they proposed the establishment of an Equalisation Fund to restore equity and fairness; a fund which would be used to provide basic services; water, roads, health facilities, electricity and such other amenities at those marginalized areas in order to bring those areas to the level enjoyed by citizens in the rest of the country.

Article 204 (3) is very categorical and makes a lot of sense to me. That the national Government may use the Equalisation Fund either directly or indirectly through conditional grants to counties in which marginalized communities exist. This is very sensible because it is consistent with the enhancing the objectives of devolution. You will also remember the same Constitution has told us that devolution will only exist at two levels; the national Government and county governments. There is no mention anywhere in this Constitution about constituencies because at the constituency level, there is no capacity and they cannot implement these projects. They do not have technical expertise and do not have staff dedicated for purposes of implementing projects of this kind. It can only be done at the level of the counties. That is what was envisaged in the Constitution, in the first instance, for a good reason.

Therefore, I strongly oppose this Bill and advise my colleagues of this Senate to oppose it. They should oppose it completely so that it does not undermine the objectives of devolution.

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Thank you for those compliments. I now call upon the Mover to reply.

Thank you, Madam Temporary Speaker. I beg to move.

Given that we do not have the numbers, I request under Standing Order No. 54 (3) that you defer the putting of the question to next week.

Request granted. We will have it on the Order Paper next on Thursday.

Next Order!

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Thank you, Madam Temporary Speaker. I thank the Senate Majority Leader for being eloquent in moving this important amendment to the Constitution. I will be very brief in my remarks.

I start by saying that this Bill is long overdue. The Constitution gives Members of Parliament, Senators and MCAs powers to perform legislative and oversight roles. It is important that in performing those roles Members are given protection. The immunity must be extended to them in order for them to feel that they are sufficiently protected to effectively perform those roles. This Bill will give the legislatures at the county and national levels the independence they require to perform their roles more effectively. The institutions involved; the Senate, the National Assembly and the County Assemblies and their Members, will be more confident in discharging their constitutional duties. When they do this in good faith, based on information they have been given which they believe to be truthful, they should be given immunity as proposed in this Bill.

The Senate Majority Leader has spoken has spoken about the need to review the Constitution. Of course, there is a general feeling around the country that the Constitution as it is today should be left intact. However, even at the time when we were passing this Constitution, we had reservations. We felt that the Constitution was largely good for Kenyans to the extent of 80 per cent but you will also acknowledge that approximate 20 per cent of it was objected in certain respects. The time has come when we must seriously consider a general review of the Constitution. This will ensure that we remove those shortcomings and weaknesses in order that the entire population of Kenya is fully satisfied with the Constitution that governs us.

Madam Temporary Speaker, issues actively being pursued in the legislature. I agree with the Senate Majority Leader that there should be no interruption of issues that are actively being pursued in the Legislature or are under debate or consideration by

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Thank you, Madam Temporary Speaker, for allowing me to contribute to this Bill that seeks to amend the Constitution of Kenya. I support this Bill simply because it is an amendment that seeks to bring some sanity and draw lines between the organs of Government.

It also seeks to allow Parliament to carry out its mandate without interference. It reaches a time when our hands are tied and we cannot deliver or carry out our day to day constitutional requirements. Our Constitution still has some grey areas that need to be amended. However, we must only carry out amendments that will add value to the people of Kenya, without infringing on their rights. I will support any amendment on the Floor of this House that seeks to improve the lives of Kenyans through service delivery. As the Senate, we should not allow any amendment that infringes on the rights of the people of Kenya.

Madam Temporary Speaker, we represent the people of Kenya who are in the counties. For a common mwananchi to feel represented, we must support what benefits them and makes their lives better than it was 50 years ago. We should not legislate to benefit ourselves, but the people we represent.

I wish to remind Kenyans who live above the poverty line not to forget where they came from. Where we came from, we were not able to get a cup of water and we have Kenyans who are undergoing such a life. As we represent them, we must represent them having it in mind that we are working towards bringing down the poverty level. We can only bring down the poverty level when we legislate laws that are friendly to the users, that is, the people we represent.

Madam Temporary Speaker, many a times we come up with good laws but the law enforcement brings this country down. It is so shameful nationally and internationally that we have the laws in place but we are not able to use the law to bring sanity in this country. One of the areas that we feel ashamed is when we see the country facing a lot of corruption that leave Kenyans in poverty. Kenyans sleep on empty stomachs when people in power who are supposed to deliver quality services to the people have looted everything and the law is in place. It is because we are biased as a nation and as a Government. There are people who are untouchable. It is so annoying and I say that violation of the Constitution is against the law. The Constitution is above everyone. If we can legislate laws that are implemented, having the strength of the Constitution, I know we can achieve and deliver quality services to the people of Kenya.

With those few remarks, I support.

Thank you, Senator. I now call upon the Mover to reply.

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Honourable Senators, it is now 6.30

Honourable Senators, it is now 6.30