September, 13th 2016 SENATE DEBATES

Tuesday, 13th September, 2016 Special Sitting

Hon. Senators, let me take this opportunity to welcome you back for this Special Sitting of the Senate which is the sixth during the current recess. In addition, we shall, tomorrow, Wednesday, 14th September, 2016, and maybe Thursday, 15th September, 2016, hold the seventh and eighth Special Sittings respectively during this recess. Your finding time to come each time you are required to do so during this recess is clear demonstration of your dedication to the service of the people of Kenya and readiness to execute your constitutional mandate. Hon. Senators, pursuant to Article 181 of the Constitution and Section 33 of the County Governments Act, 2012, on 2nd September, 2016, the County Assembly of Nyeri approved a Motion for the Removal from Office of the Governor of Nyeri County. By letter dated 2nd September, 2016, and received in my Office on 5th September, 2016, the Speaker of the County Assembly of Nyeri informed the Speaker of the Senate of the approval of the Motion by the County Assembly of Nyeri and further forwarded to the Speaker of the Senate documents in evidence of the proceedings of the Assembly. Pursuant to Section 33 (3) (a) of the County Governments Act, 2012, and Standing Order No.68 (1) (a) of the Senate Standing Orders, on Wednesday, 7th September, 2016, the Speaker of

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

Hon. Members, before the Clerk reads the details of the charges, let us dispose of the preliminaries. That is by way of introduction. I invite the members representing the County Assembly and their counsel if any, to introduce the team.

Good morning hon. Members. For the County Assembly of Nyeri, my name is Charles Njenga, Counsel acting for the County Assembly of Nyeri. I will be assisted in my task by George Ng’ang’a, Counsel. Then we have hon. Baragu, Member of the County Assembly of Nyeri, then we have Wambui, Legal Counsel, County Assembly of Nyeri and finally we have Mathew who will also be with us from the County Assembly of Nyeri. Mr. Speaker, Sir, those are the persons representing the County Assembly of Nyeri. Thank you.

Can we get the introductions from---

Mr. Speaker, Sir, I thank you. As I was listening to the introductions, they were not proper because they were names in regard to particular persons or individuals, it was one name and there was no prefix; Mr., Mrs., Hon. --- We did not get all that proper introduction for purpose of record – and also designation - I am being reminded by my colleague, the Senator for Kakamega County.

September, 13th 2016 SENATE DEBATES

I could not agree more. You are appearing before the Senators. It is important that we get to know the name and designation. The name must be in full. So, you may wish to proceed along those lines.

Thank you for that guidance. The team from the Nyeri County Assembly is as follows:-

Order Governor. You need to repeat the introductions and be a bit louder. Those introductions are not complete. There is a missing one.

Gov. James Nderitu Gachagua: Mr. Speaker, Sir, my advocate had advised me so because she is not part of the legal team. It may not be necessary but I would like to introduce her. She is:-

Ms. Alice Wachira – Ag. County Secretary

What is it Sen. (Dr.) Khalwale?

On a point of order, Mr. Speaker, Sir. Just for the record and clarification, could the governor confirm whether he is appearing and leading his team in person or he is going to be led in the presentation by his counsel?

Order Governor! I have not invited you. You can dispose that issue at the time you are making your opening statements. Clerk, can you read the charges.

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

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

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

Mr. Speaker, Sir, I rise under Standing Order No.1 to invite you, without advancing the reasons, to ask whether the Governor of Nyeri would like to hear the reading of the charges against him while he is seated.

Order! Sen. (Dr.) Khalwale, let me inquire from the Governor. Are you comfortable in that position or you wish we proceed along the lines suggested by Sen. (Dr.) Khalwale? Gov. James Nderitu Gachagua: Mr. Speaker, Sir, I am very comfortable. Thank you, Sen. (Dr.) Khalwale. I am okay and I see no reason to sit down.

Let us proceed. Sen. (Dr.) Khalwale, you are overruled. Proceed, Mr. Clerk. The Clerk of the Senate (Mr. Nyegenye) : Thank you, Mr. Speaker, Sir.

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

Order! Let us hear the Governor! Gov. James Nderitu Gachagua: I plead, not guilty.

Governor, to all the charges or specific ones? Procedurally, we will take one by one; Charge No.1? Gov. James Nderitu Gachagua: Not guilty.

Charge No. 2? Gov. James Nderitu Gachagua: Not guilty.

Charge No. 3? Gov. James Nderitu Gachagua: Not guilty.

We are done with you, Hon. Governor. You may assume your seat. What is it, Sen. Wamatangi?

On a point of order, Mr. Speaker, Sir. I rise to draw your attention to Charge No.2, before the Governor takes his plea of guilty or not guilty. I would like to enquire whether the county assembly would want to consider amending or correcting that charge.

Order, Senators! Sen. Wamatangi must be heard.

Mr. Speaker, Sir, the figures are wrong. The amount declared there, Kshs615,143---

Oder, Sen. Wamatangi! You may resume your seat. There is an opportunity for that; not now.

Mr. Speaker, Sir, I wanted to draw the attention of the House that the amount pleaded as lost is wrong.

Oder, Senator! Hon. Senators, we have gone an extra length to provide documents to you and in particular, the Rules of Procedure and the programme for the hearing. I can tell you for free that a defective charge is a defence. Therefore, wait for them to do so. Hon. Senators, the next bit is the opening Statements. I would like to invite the County Assembly of Nyeri to proceed with the opening statements. You have not more than 30 minutes.

On a point of order, Mr. Speaker, Sir. You led the Plenary up to Charge No.6 and then there was an intervention by Sen. Wamatangi. You did not continue from Charge No.7 to No.10.

Order, Senators. I appreciate that this is the first time we are doing this and it could be a bit tricky. It means that we should do quite a bit of listening. There

September, 13th 2016 SENATE DEBATES

Thank you, Mr. Speaker, Sir and hon. Members. On behalf of the County Assembly of Nyeri, I am Counsel Charles Njenga. I will make the opening statements. Hon. Members, the question must be why we are here today. We have heard the charges that have been read out against the governor. What are we supposed to do with these charges? Article 181 is an interesting Article within the architecture of the Constitution in that it allows---

Order, Counsel. Just an in-house thing; make sure that somebody or yourself is watching some lights at the Table. When it is yellow, it means that you have five minutes to go. When it is red, you must stop.

Thank you, Mr. Speaker, Sir. I note that they are more like the traffic lights. I am very well guided.

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

Mr. Speaker, Sir and the Hon. Members, my learned friend has set out succinctly the case for the County Assembly of Nyeri in the matter of the proposed removal by impeachment of the Governor of Nyeri County. By way of further introduction, we endeavour to demonstrate that the requirement of political accountability is critical in our devolution design. We shall endeavour to demonstrate that it has come to a time when the Chief Executive Officer of the county must take a personal responsibility of the decisions that are taken by the county government. What you will notice as we proceed to set out our case is that there has been a clear abdication of the responsibility. There has been a clear dereliction of duty where the Governor of Nyeri County has deliberately flouted the Constitution and all known laws regarding accountability and the manner in which the county government structures are supposed to be run. Mr. Speaker, Sir, we shall for instance, demonstrate in the fullness of time that we have a county executive where an individual is serving in an acting capacity in three ministries for over a period of one year. You will find a county government where all chief officers are in an acting capacity. You will find a county government where resolutions are made by the county assembly in furtherance of their oversight duty and there is absolutely no regard to those resolutions. The recommendations are made and the governor does not see to it that those recommendations are implemented. Mr. Speaker Sir, you will find that Bills have been passed. The Governor does not even acknowledge receipt of those Bills, leave alone assenting to them. He does not send memoranda so that at the end of the day; the Bills just proceed. We know those Bills will eventually become law by themselves because, at the end of the day, there is a provision in law. The question this Honourable Senate must ask itself is, why was there a requirement that the County Governor must participate in that process of assenting to Bills? It is because as a CEO, as the head of the County Executive, he is reposed of the knowledge and skills. First is to input his views or the views of the County Executive in the county statute making process so that self-assenting as a provision in the Act does not remedy that mischief. Why is it that you have someone who said “elect me as Governor”; functions and duties are bestowed upon that person but then he deliberately flouts those provisions? Mr. Speaker Sir, and Honourable Members of the Senate, I know there are people who out there are saying, hang on, the people to renew the mandate of the Governor are the masses and we have only got barely one year to go to the elections. However, the provision for removal of a sitting governor is not dependent on the time that is remaining to be served by that Chief

September, 13th 2016 SENATE DEBATES

Next opening statement from the Governor of Nyeri County.

Thank you, Mr. Speaker, Sir. As part of our Opening Statement, I will invite Gov. Nderitu Gachagua to lay the basis of his impeachment and then I will also take time in ten minutes to---

You are reminded about the point of order by Sen. (Dr.) Khalwale. Proceed, Gov. Nderitu Gachagua. Gov. James Nderitu Gachagua: Mr. Speaker Sir, and Honourable Members, in order to get the genesis and the proper perspective of this impeachment, it is in order that I lay a few facts before the House so that we can be able to look at these charges in that perspective and in context. I have been in my career, a Member of Parliament for Mathira Constituency in the Ninth Parliament. I have been a professional---

Order! Order Governor! Let them change that microphone. The other one was clearer. Of course, we are holding his time. Gov. James Nderitu Gachagua: Mr. Speaker Sir, I was elected under Section 180 of the Kenya Constitution by the people of Nyeri, indeed on a minority party because I convinced the people of Nyeri that I was up to the task of being the Governor of Nyeri. In the last three years, Nyeri County has won the following national recognitions. In the Financial Year 2014/2015, the Nyeri County was voted the best County by the Office of the Controller of

September, 13th 2016 SENATE DEBATES

A Budgets in the absorption of the overall budget. In the Financial Year 2014/2015, we received recognition as the best County in terms of remittance of taxes to the Kenya Revenue Authority. In 2015, we were rated by the World Bank as the level county case study in the adoption of the Integrated Financial Management Information Systems (IFMIS). Nyeri County was voted the best county in sanitation development by the World Bank in the Financial Year 2014/2015. Indeed, the County was also recognized by the Commission of the Implementation of the Constitution (CIC) as the best county in the 2015/2016 report in terms of provisions of medical services in our dispensaries and in our health centres and in our Level Four hospitals. Indeed, in that general context, I am happy to say that we have been able to do that kind of work in Nyeri. Mr. Speaker Sir, in early 2015, I had serious challenges with my health but I was “rest assured” that the systems of the County Government were working perfectly well. This is why in 2014/2015, as I have said earlier, we were rated the best performance in the absorption of funds in the stated areas.

Mr. Speaker, Sir, on a point of order. Thank you for giving me an opportunity. I am not assisting the Governor, but being a lay person, it is important to inform him that we are not here to mitigate or for him to give us a record of what he has done but to answer to the charges that are placed before the House. That is very important in case you lose your time in the process.

Order, Governor. Let us change the microphone. Let it be adjusted to close proximity to the governor. Governor, maintain the proximity once you get the right fix. Gov. James Nderitu Gachagua: The Members of the County Assembly of Nyeri County had, through intimidation of my officers with the threat of impeaching them, managed to allocate for themselves contracts worth Kshs6 million each in every ward, contrary to Article 174 of the Constitution, Section 87 of the County Governments Act and particularly, Section 9 of The Nyeri County Public Participation Act of 2015. I stopped the implementation of these projects because they were contrary to the law. A Public participation forum to comply with Section 9 of the Act was organized on 23rd April,

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

Mr. Speaker, Sir, for the record, my name is Peter Wanyama, the Legal Counsel for the Governor. It is important that we lay this basis because if you look at these charges, you will get the feeling that the County Assembly has not done what is expected of it. This is because impeachment is a political process that must meet the legal and constitutional threshold. The process of removal of a Governor is a process that is laid in Article 181 of the Constitution. If you read the provisions of Article 181 of the Constitution, you will see that there are certain fundamental criteria, safeguards and guidelines which the Constitution requires must be met before any impeachment is accepted. One of the most important safeguards which is constitutionally provided is gross violation. The law on impeachment has now been settled. We are not grappling in the dark. We have a definition of the words “gross violation”, “gross misconduct,” and “abuse of office.” The law, as it is, is that whenever a charge is indicated that it is “gross”, first of all, it must specifically state the word “gross.” Secondly, the charge in question must specify the section of the Constitution that has been violated. For example, if you look at charge No.1, you will see it has a major and incurable defect. First, there is no provision of law which has been cited as having been violated. Secondly, there is no provision of the Constitution which has been cited as having been violated. If you look at charge No. 2, they have charged the Governor with a charge known as “failure to comply with the law”. Is that a charge which is available under the provisions of Article 181 of the Constitution? Is there an express charge under Article 181 of the Constitution, known as “failure to comply with the law?” yet, it exists in the charge instrument. It is our submission by way of introduction that the charges as drafted, have not at all met the threshold laid down by reading of Article 181 of the Constitution. Secondly, the evidence which has been submitted by the County Assembly, there is no evidence at all which links the Governor to these allegations. Yes, it can be said that the Governor is the Chief Executive Officer of the county. However, in terms of accountability, the Governor is accountable at a policy decision level; for everything at the county level. But what is the law governing impeachment? The law governing impeachment as laid down by my colleague from the County Assembly has been settled. This is the law. There must be nexus between the Governor and those allegations. For instance, if the Governor wrote a letter or directed either verbally or by way of any other direction for something illegal to be done, then that is a test which will meet the threshold. If you look at the charges as drafted, it says that as Chief Executive Officer of the County, you are responsible or accountable for this. In accordance with this documentation and the evidence admitted, we are saying that there must be nexus. What it is the Governor did, in terms of wrong doing, to warrant culpability?

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

Hon. Members, that brings us to end of this particular session. So, the House will adjourn until 2.00 p.m. this afternoon.

Hon. Senators, welcome back to the afternoon session. We will now proceed with the presentation of the case. We will start with the presentation of the county assembly including presentation of witnesses. We expect this session not to take more than two hours. We expect the cross-examination of witnesses, if any, to take another 30 minutes and clarification and questions by Senators to take one hour. Nyeri County Assembly, please proceed.

Mr. Speaker, Sir, we shall proceed with the case of the county assembly. I shall take the Senate through the first seven charges and as from No. 7, my colleague will take over. We have one witness who shall only adopt his witness statement and he shall be available for cross-examination by the governor’s counsel.

September, 13th 2016 SENATE DEBATES

Counsel, it will be helpful when you clarify the charge and you use the particulars to prosecute your case. If you are referring to documents – because all of us have the documents available – you can specify which document and on which page.

Mr. Speaker, Sir, I have just read charge No.1. I will be referring to the County Assembly documents, volume III and it is marked in blue.

Order counsel! The charge, if I could be of help for our purposes, we have three charges. The rest are the particulars for the charge. So, for charge number one; gross violation of the Constitution of Kenya, 2010, the County Governments Act, 2012, the Public Finance Management Act, 2012, the Public Finance and Management Act, 2012 and the Public Procurement and Disposal Act, 2005. That is the charge.

Thank you Mr. Speaker, Sir, for that clarification and assistance. Article 201 of the Constitution which sets the background to this charge and the particulars, principles of Public Finance and Management Act, 2012; I will only read 201 (a) , it says:- “There shall be openness and accountability including public participation in financial matters” There is a constitutional imperative for openness and accountability. There is a requirement by the law and by the Constitution. This is not discretion. It is not an elective duty. It is not a matter where a public officer can decide to do or not to do. It is a constitutional provision that requires observance to the strict letter of the law in all matters of public finance. There is a deliberate distinction on the two facets of Article 201 (a) :-

Openness:The requirement is; be open to the public, county assembly, Office of the Controller of Budget, Auditor-General and to the Senate on all aspects of expenditure and funds that come to your disposal by virtue of your position. That is the Constitution. I will quickly refer the Senate to page four of the County Assembly document volume III, you will see the Budget Implementation Status Report Financial year 2015-2016. This is a document that is issued from the county treasury. It is issued from the Governor’s Government. It is a blue document. I think four is on the flipside, look at page five. I referred to the title for identification of the document we are considering. That document is made pursuant to our legal obligation on the part of the Governor to report on all matters of public finance and in particular budget implementation to the county assembly. That obligation for good order can be found in Section 30 (2) of the County Governments Act. Let me read it for your information because it refers directly to the Governor. It says: “the Governor shall”, when you go to Section 30 (2) (j) , it states:- “Submit to the County Assembly an annual report on the implementation status of the county policies and plans”. This includes the budget. This is a specific statutory duty given to the Governor. The Governor shall. In this report that we have, if you go with me to page eight, where the heading or the subtitling is “Overall Budget Outlook and Implementation Report, at No.12, there is a report on the total expenditure on development for the year which was Kshs1,161,269,008 as total expenditure on development. That is the number they have given as money expended for

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

Mr. Speaker, Sir, objection.

What is it, counsel?

Mr. Speaker, Sir, (inaudible) where evidence is required to be fully and frankly disclosed to us. What we are witnessing is a deliberate manipulation and misreading of figures. It is important that he discloses that to us. We want to specifically see what he is reading so that we can contextualise. We do not want to be taken round in circles that this and that document, some of which have not been disclosed to us, contrary to the rules of this Senate. Thank you.

September, 13th 2016 SENATE DEBATES

Mr. Speaker, Sir, I have the original document with me. I can give it to the counsel. I think the particular page in the photocopy was not annexed to the volume. However, the report has been ---

Order, counsel! It does not work that way. You should have submitted it with the rest of your documentation.

Mr. Speaker, Sir, in fact, if you look at the volume, there are many extracts from this particular document. It is only this page. I will just refer to the page without referring to the document. The Senate has power to call this document which is public. You can walk right to the Office of the Controller of Budget and get a copy. On page 216, you will see that number. I will not refer to the document again. This Senate is investigating this matter. It has the right to look for whatever information that can facilitate its investigation. This is not an Assembly document. We are just saying the balance, as disclosed by the Controller of Budget, is Kshs5,600,000. The local revenue reported in their own account is Kshs709 million. So, in simple arithmetic, the total should be about Kshs715 million. So, their explanation is not valid. If it were valid, then the two numbers should add up to Kshs846,706,900. If you go by their response that this number that was not disclosed is local revenue plus cash balances, it does not add up. No amount of argument or explanation, however ingenious it is, can add 709 and five to make 846. Mr. Speaker, Sir, this is the mischief we are saying has been persistent in the reporting by the County Treasury under the Governor in the same report. We urge that the Senate does find that in the making of this report, there was material non-disclosure which is not justifiable in the circumstances. I do not wish to dwell on that anymore because of time. Let us consider the issue of utilising. I am now looking at the particulars No. 2 of ground (a) : Utilizing local revenue at source contrary to Article 207. Mr. Speaker, Sir, for good measure, let me read Article 207 to contextualise my submission. Article 207 (1) of the Constitution reads:-

“There shall be established a Revenue Fund for each county government, into which shall be paid all money raised or received by or on behalf of the county government, except money reasonably excluded by an Act of Parliament” Mr. Speaker, Sir, that is the material provision relevant to this ground. All funds shall be deposited in the Revenue Fund received by or on behalf of the county government, except money reasonably excluded by an Act of Parliament. This Article goes on to say:-

September, 13th 2016 SENATE DEBATES

Mr. Speaker, Sir, I am reading page 74 the last paragraph that says “An analysis of total expenditure.” This suggests that some counties were utilising locally collected revenue at source in contravention of Article 207 and Section 109.

Order, Counsel. Which document and which volume are you referring to? Charles Njenga: Mr. Speaker, Sir, I am referring to County Assembly Documents Vol. 3, page 74.

Proceed.

Mr. Speaker, Sir, those are the examples of the counties which have run afoul of this stringent and particular requirement of the Constitution and not even the statute. They are Nairobi, Taita Taveta, and West Pokot among others. We see Nyeri County at

What is it, Sen. Murkomen?

On a point of order, Mr. Speaker, Sir. The Counsel should take us to the specific lines and pages so that we can move faster. This is in terms of referencing so that it does not eat into his time.

Order Counsel. I think I had already made that kind of directive. For Members, on such small matters that you find necessary, approach the Chair so that we give them all at once.

Mr. Speaker, Sir, the document is paginated. I can only direct to the paragraph because the lines are not numbered. I believe that you can follow.

The direction is the Volume. Counsel, sometimes you state volume of whether it is the County Assembly’s or the Governor’s, the page and the paragraph, if it is there.

Mr. Speaker, Sir, I am referring to the County Assembly documents Vol. 3 at page 74 where I read the narrative by the Controller of Budget.

That is on the analysis on the last paragraph. Did you move to page 75?

Mr. Speaker, Sir, before I move to page 75, there is table at page 74 on top which is important to note that the source of this information is the Office of the

September, 13th 2016 SENATE DEBATES

It is at row six from the bottom and then the last column.

Mr. Speaker Sir, yes Kshs615 million. The actual authorised amount was Kshs535 million. So, there is an excess of Kshs70 million. The violation is spending money at the source without depositing the same as designated and as provided by law into the revenue fund. Let us consider the response made by the Gov. Nderitu Gachagua. This is on page 8 going through to 9 of the documents by the Governor Volume 2. Therefore, we would say implicitly from the response, there is an admission of a difference but now the Governor explains the difference. He says that the difference of Kshs70 million is a variance between commitments in the system already deducted by the system versus the actual release of funds.

That is page 9, second paragraph.

Thank you, Mr. Speaker, Sir, for your guidance. This explanation cannot be true. This is for the reason that the figures and the numbers reported by the Controller of Budget is actual expenditure. That is a number supported by invoices and payment vouchers. It is not a commitment, it is an actual expenditure amount disclosed of Kshs615,143,048. A commitment which is defined under the PFM Act as a contract or an intention to spend cannot be accounted for as an actual expenditure. A commitment would be, for example, issuing an LPO or an LSO. The effect of a commitment is that it reduces the balance available per vote so that if we had a roads budget of Kshs100 million and then you commit Kshs20 million, the balance available under that road from the budgetary allocation would be reduced by the commitment amount. However, it does not reduce or does not impact at all on a number that is directly provided as actual expenditure. The sum of Kshs615,143,048 was actually expended without authority of the Controller of Budget and directly from the revenue fund. This, in the anticipation and the contemplation of the applicable law, is a direct violation. I wish to have Honourable Senators note the provisions of the Public Finance Act, they are reproduced for your convenience and record at page 76 of County Assembly documents Vol. 3, Section 109. This is deliberate. On page 76, County Assembly Vol. 3, there is a reproduction of Sections 109 of the Public Finance Management Act as read together with Article 207 which is at page 77 of the same bundle. Mr. Speaker Sir, at this juncture, allow me to read Section 102 of the Public Finance Management Act because it would advise us on the role of the Governor. As you can see from Section 109, these are responsibilities falling directly under the purview and the management of the County Treasury, which is under the CEC Finance and who is a member of the County Executive Committee. However, the law deliberately provides – this is very profound because it avoids the defects of “it is not me, it is the other person, it is the County Treasurer, it is the Chief Officer.” The law anticipated such explanations. On matters of public finance, the law was deliberate and I am reading Section 102 (2) . The law provides:

“The County Executive Committee shall observe principles of collective responsibility in exercising their functions under this Act.”

September, 13th 2016 SENATE DEBATES

Mr. Speaker Sir, I seek your indulgence at this point. Before the counsel, can one seek clarification on an issue before he moves away from it?

Not now.

Mr. Speaker Sir, it is okay. My concern was that the point may get lost.

Order, Senators! Sen. Wamatangi has the right to seek clarifications and the Chair will assist him. The best way not to lose the point is to put it down in writing.

Mr. Speaker, Sir, I am actually armed with a pen and several papers. I thought that the point I was raising is critical that even Counsel could lose trail to come back to it. With your indulgence---

Order, Senator. The procedures are very clear; we will hear submissions from the county assembly and they have a maximum of two hours. The governor will then have an opportunity to respond. Your point might be disposed by the governor. That limits Senators to those few remaining points. Just put it down, now that you have confirmed that you are fully equipped with a pen and paper. There will be a one-hour session for the Senators to make those interventions. If anybody else forgets, the Chair never forgets; I will remember you. Proceed, Counsel.

Thank you, Mr. Speaker, Sir and hon. Members. At No.3 of the charges, we have a charge of irregular procurement, contrary to the Public Procurement and Disposal Act 2005. We are aware that this Act has been repealed, but this was the applicable law at the time. The basis of this ground is that there were complaints made to the county assembly by contractors within the county. The nature of their allegations was that they were instructed to

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

Order, counsel! Just to help you. You have one hour to go.

Mr. Speaker, Sir, thank you. I read this provision to avoid the very tempting argument that is likely to be made that: “Yes, there could have been malpractices in procurement, but it was not me, it was not my act, I did not participate, I did not sign anything, I did not call anyone, I did not procure anyone to do any job. This is the mischief that is sought to be cured by section 27 (3) . It obligates the Governor at his area of responsibility which is that he is the chief executive, the chairperson of the County Executive Committee (CEC) . The question must be: What did he do in the face of these malpractices? If you evaluate and consider the Senate report which is in the record: In the matter of the Proposal to Remove Governor Wambora from Office, the report adopted on the 13th May, 2014, the Senate applied this particular standard. The Senate quoted and cited this legal provision in finding that in matters procurement, a governor has a direct role to ensure that there is compliance with the procurement procedures and regulations within his county. I urge and seek that you may be persuaded by your own finding in that select committee report which is as a matter of record the standard that obtains here in the Senate. The select

September, 13th 2016 SENATE DEBATES

On a point of order, Mr. Speaker, Sir. With due respect, I request that where counsel is referring to---

Order Sen. Orengo, our procedures have not been suspended on this one. I noticed that actually two Members got away with it. That is why I am alive to it now.

I thought that rules changed in my absence.

September, 13th 2016 SENATE DEBATES

Counsel, you have heard the Member.

Mr. Speaker, Sir, I am guided and I do not wish to mislead the Senate.

I know you may find it a bit difficult repeating yourself in terms of the volume you are referring to. There is no harm because Members will be consulting documents at different stages. So, just state whether it is Governor’s or County Assembly documents, the volume and the page.

Mr. Speaker, Sir, I am so guided. The document I am referring to is in the County Assembly Documents, Volume III. The heading or identity of the document can be seen at Page 386 of the same volume. What I was reading at Page 244 is an extract from this Document. It is the Kenya National Audit Office Report of the Auditor-General on Financial Operations of Nyeri County Executive for the Period; 1st July, 2013, to 30th June, 2014. Page 244 is an extract from that particular Report. In fact, it is at Page 14 of the entire Report and I was reading the last paragraph. If you flip over to the next page which is Page 245, there is a very elaborate narration given by the Auditor-General that another expenditure of Kshs41,340,946 was incurred on renovation of the Governor’s Office. It was not explained why the county government was spending a total of Kshs81,384,118, being Kshs41,340,946 for renovating the Governor’s Office and Kshs29,176,000 for Karsons House. Together and above that, we were also paying Kshs10,866,240 for rent. This amount prudently applied would have been sufficient to construct a modern office block for the county government. There is a recommendation there; to apply prudence. Mr. Speaker, Sir, allow me to refer to Page 253 to further fortify that point that in this matter of Karsons House, there was what I can only call “impunity”. This is because regarding the initial award of tender for the renovations at Page 253 of Volume III of the County Assembly Documents, we have a letter there from the Office of the Governor awarding the tender to refurbish Karsons Photo House to Petlico Agencies for the sum of Kshs14,098,860.40. That is the award sum for that project but from the Auditor-General Report, the county executive, for the same job, used Kshs29 million. This is more than double. How did it jump to this particular number? How did you expand the scope of works or what really happened? These are questions that must be answered. The Senate must ask very hard questions because the probity for use of public funds depends on the determination that we shall make in regard to this matter. On Page 433 in the same volume, there is a table showing how the tenders for this particular works were split into five. That is why we have a specific complaint and ground that there was a violation of the procurement law that prohibits expressly splitting of tenders contrary to Section 30 of the Public Procurement and Disposal Act. Mr. Speaker, Sir, because of time, I will allow my colleague to highlight on the other few grounds. Thereafter, we shall call our witness just to respond to questions that will arise concerning this document from the Governor’s advocates and also from the Senate. I thank you.

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Mr. Speaker, Sir, I will proceed with the further prosecution of the Assembly’s case by dealing with Charge A which is on the gross violation of the Constitution, the County Governments Act---

Order, counsel; I wish to bring to your attention that you have only dealt with one charge and there are two others. Given the time remaining, you may wish to---

Yes, I will deal with them collectively. I am referring you to volume No. 1 and 2 of the County Assembly document with respect to Charge A, particularly No. 7. It is on the gross violation of the Constitution that the governor has deliberately and grossly violated Section 137 of the Public Finance Management Act, 2012. I do not know whether we are there.

Order, counsel; you proceed until you are interrupted.

Very well. The Governor has failed to establish the county budget and economic forum. This is in contravention of Section 137 of the Public Finance Management Act, 2012. You will find that the requirement obligates the governor to constitute that forum. So, the obligation is on the Governor personally. What has the governor in this case sought to do? When this issue was raised, you will find in Volume No.3 at page 485 of the assembly document, there are guidelines which were communicated to all governors in a circular dated 3rd Mach, 2015 and you will notice it is from the Commission of Revenue Allocation and it sets out that CRA in its mandates under Article 216 on matters concerning financial management by county government is bringing the attention of governors to the requirement of Section 137 of the Public Finance Management Act, 2012 on the constitution of the County Budget Economic Forum. Honourable Senators, you will notice that the County Government of Nyeri is one of the very few counties that have not constituted this important forum. You will notice that this forum plays a very important role in matters of budget formulation and management of funds. In fact, under Section 137 of the Public Finance Management Act, 2012, you will notice that it is mandated with matters of budgeting, the economy and financial management at the county level. Perhaps part of the reason why there is an impasse in the budget process in Nyeri County is because we do not have this forum in place. You will notice that since the governor came into office, there has been no attempt to constitute this forum. Mr. Speaker, Sir, that obligation is on him personally. What you will notice is a letter at page 496 of Vol. No. 3 of the assembly documents which is a letter dated 10th March, 2015 signed by the Chief Officer for Economic Planning. He is acknowledging that there was a complaint by the assembly with respect to failure to constitute this forum. This is what the Chief Officer is telling the assembly; that within a period of 30 days, the County Budget and Economic Forum will be appointed to perform their responsibilities as envisaged under the above section. That remains a statement of intent. So, since 2015, 30 days have lapsed, no forum, no obligation, a direct obligation on the office of the governor’s personal responsibility. There is a direct nexus. Someone has violated the law and has not tendered any explanation for not doing that. Mr. Speaker, Sir, on charge A; particular No. 8 on Volume Nos. 1 and 2 on undermining the legislative authority of the county assembly which is a contravention of Article 185 of the Constitution. The documents in support of the particulars of that charge will be found at page 500-680 of Vol. No. 3 of the Assembly documents. The county assembly approves budget estimates in line with the Constitution. There has been this thinking that it is the executive that

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Order, counsel! You may wish to remember that you have a witness. Unless you have dispensed with him, all that has to be within your time. I think you have about two minutes.

Mr. Speaker, Sir, thank you for your guidance. From the programme, there is the presentation of the case for two hours and then cross-examination of the witness. The witness will simply just adopt and we will hand him over for cross-examination. So, I thought we are still within.

That adoption has to be done within the two hours. So, you may wish to just do it towards the very end. Cross examination is from the Floor and the counsel.

Mr. Speaker, Sir, this is the last point that I am making on the gross violation of Section 35 (1) (2) of the County Governments Act. This is on the appointment of the chief officers. Hon. Senators, as you have noticed, all the chief officers are in an acting capacity. I have made reference to page 721 of Volume III; Acting CEC Finance, Acting CEC Public Administration, Acting CEC trade, land and roads officers and Acting county secretary. Our submission is that when you create that state of affairs, which has been created by none other than the Governor, then you grossly violate section 35 (1) (2) . By doing so, you deprive the County Assembly.

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

On a point of order, Mr. Speaker, Sir. To my mind, this eloquent prosecution of the case is going a long way in making it easy for many of us to be seized of the mater. Could I request that under Standing Order No.1, you allow the prosecution an extra five minutes?

Order, Members! We are not going to converse. We had the opportunity to agree on these timelines. In fact, when you are more eloquent, the easier for the understanding of the Members. Just deal with the matter within two hours. My job here is to enforce the time limit.

Mr. Speaker, Sir, this state of affairs of creating acting appointments contravenes very grossly, Section 35 (1) (2) of the County Governments Act on the procedure for appointment of chief officers. These chief officers are the accounting officers and Principal Secretaries (PSs) within the county. So, when you have accounting officers who are acting, then quite substantially, their independence is eroded and they will always pander to the whims of the appointing authority. That undermines devolution in a very big way because then, you will not have prudent management of resources. The totality of that evidence is that we have shown that the obligation lies squarely on the Governor and there is a nexus. Who else nominates

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Well! Your learned friend had indicated that he can recognise the traffic lights before him. If it is just a matter of presentation, you can do it within the yellow lights.

Mr. Speaker, Sir. I am well guided.

Proceed.

Mr. Speaker, Sir, and Hon. Members, the witness statement of our witness is found in the County Assembly documents, volumes I and II, the ones in blue. It is not paginated. It is a two page folder that is not paginated but it is the last document. That is the witness statement of Hon. Baragu Mutahi.

Hon. Members, he is referring to volumes I and II of the very last document. That should be easy to find on the County Assembly documents. Proceed, Counsel.

Mr. Speaker, Sir, I wish that the witness be given a copy so that he can adopt it for the record. The witness can introduce himself before this honourable House and take the oath.

Mr. Speaker, Sir, my name is George Baragu Mutahi.

Mr. Mutahi, what do you do for a living?

Mr. Speaker, Sir, I am a Member of the County Assembly of Nyeri County representing Kiganjo/Matare Ward. I am also the chairperson of the Public Accounts Committee.

With regard to this matter, do you have the document written “Witness statement of Hon. Baragu Mutahi?”

Mr. Speaker, Sir, yes, I have.

I want you to confirm that, it is your witness statement and that you signed it.

Mr. Speaker, Sir, yes, it is.

Do you wish to adopt that particular statement for its use as your evidence before the Senate?

Mr. Speaker, Sir, I do.

Mr. Speaker, Sir, we wish to avail the witness for any cross- examination based on the statement and our documents that may be directed to the witness. He

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Order, Members. The next bit is cross-examination of the witness. Kindly make use of the equipment before you to make your request to cross-examine the witness.

My name is Peter Wanyama and I am the counsel for the Governor. Mr. George Barugu, what qualification do you have? Do you have a degree or a diploma?

Mr. Speaker, Sir, I have a Diploma and I am pursuing a Bachelor of Arts Degree.

Any specific qualifications in public finance?

Mr. Speaker, Sir, no qualifications but I have been doing---

Do you have any qualification in public finance?

Mr. Speaker, Sir, I do not have but I have been doing---

Members, in order to help the Chair to allocate the time, kindly put your requests if you intend to cross-examine the witness. I will balance the time between the counsel and the Members.

On a point of order, Mr. Speaker, Sir. In regard to what you have just said, the witness statement the way it appears is just a broad statement. It is not even evidence the way I look at it. The problem is that you will have to tell us whether we are free to ask the witness the questions on behalf of the county assembly. I doubt whether they should be in a position to answer questions on behalf of the county assembly. Are the counsels who appeared for the assembly the ones to answer questions on behalf of the county assembly? If they answer, will that be evidence or commentary? It is important that it is put on record.

On a point of order, Mr. Speaker, Sir. I second the position raised by Sen. Orengo. The statement sworn by the Member of the County Assembly who is now a witness, is so broad that we have to make a determination whether he is the person to answer questions on and on behalf of all the county assembly in term of the documents that are before us before one can determine how many questions we will ask. Having been in this process in the past with Sen. (Dr.) Khalwale who was my chair then, it was the witness statements that we received that were concise. We could identify that a particular witness was supporting particular evidence. On this one, we have been told that the witness is a County Assembly Member and was the Mover of the Motion. The door has been opened for us to ask anything and everything. Mr. Speaker, Sir, you have to guide us if we have to cross-examine. I do not know what the counsel will do about him because we need to know exactly what the property value of the document that he has sworn.

Mr. Speaker, Sir, while the same concerns raised by Sen. Murkomen and Sen. Orengo are valid, if you look at the sworn statement by the Honourable Member under paragraph six it reads:- “I hereby adopt the evidence before the Senate, the contents of the Notice of Motion and Motion that was adopted by the county assembly.”

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Order, Sen. Sang. That is the more reason that you have that opportunity to cross-examine. So, that is not a point of order.

Mr. Speaker, Sir, Mr. John Baragu Mutahi, is leading us through the charges. So, we should not be seen to put pressure on him on any specific charge beyond the mere fact that he should clarify areas that might be unclear to us in a specific charge. To me, the person to be put to task will be the Governor and the witnesses he will bring when he will be responding to charges.

There are points of orders from Sen. Wamatangi and Sen. (Dr.) Machage.

On a point of order, Mr. Speaker, Sir. To be certain whether the questions we will pose to the witness are restricted to only what we see as the broader view of the matter at hand or are we going to ask questions specific to what the counsel has said? As you have noticed, there were many times when I wanted to seek clarifications on various issues. I think it is important that it comes out that on matters which have already been prosecuted by the counsel and requires clarifications, should we pose them at this time to this witness? How will they be dealt with by the counsels?

Sen. Machage.

Mr. Speaker, Sir, my name is Sen. (Dr.) Machage.

Mr. Speaker, Sir, I am worried of the comment made by Sen. (Dr.) Khalwale that the onus to prove he accusations should be shifted to the accused. In the justice system of this country, the accused does not hold that responsibility. It is always the accuser who has that onus.

My apologies Sen. (Dr.) Machage, what was your issue?

Mr. Speaker Sir, whereas it is difficult to rewind what you said like a tape recorder, but I will attempt. I was worried about the comment by Sen. (Dr.) Khalwale that the onus of proof of accusation should be shifted to the accused.

Those are his own words. I never used those words.

Order, Sen. (Dr.) Khalwale!

Mr. Speaker, Sir, thank you for the protection. That responsibility lies on the accuser and not the accused.

Order! By the way, Sen. (Dr.) Machage, when Members make points of order, it is their views and opinions, it is not a determination. A Member should not feel under compulsion to respond to them, but you can always make your intervention in order to make the Chair dispose the various points of order. So, do not blame another Member, you just put another perspective. On that basis before I dispose this matter I am wondering whether the counsel to the County Assembly has something to say after hearing all those interventions by the Members.

Thank you, Mr. Speaker, Sir, together with Honourable Members of the Senate. Sen. Sang’s point of order or clarification captures our thinking and our position

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Order, Senators! When you feel so aggrieved, I can always ask him to repeat. We do not have to be so aggrieved to the extent we are breaching our own Standing Orders.

Mr. Speaker Sir, I was saying that the contribution by Sen. Sang captures our position in the matter that we did not need to reiterate word for word the contents of the notice of Motion and the reference to the documentation in support of the Motion. However, the witness has adopted or accepted or owned the entirety of the Motion and the documents and any questions on the factual position espoused in these documents can be posed to him. We shall make, as counsel, commentaries on the legal position that may require some clarification or that may require further submission from our end.

What is it, Sen. Murkomen? I thought we should just dispose the matter?

Mr. Speaker Sir, the senior counsel, Sen. Orengo and Sen. Wako, will help me here. If that is the case that this witness is going to be there to answer all questions related to the case that have been put forward by the lawyers, how then should we proceed? If we cross-examine him at the moment, we are going to do partly work, maybe do the case of the Governor first at the moment. If we were going to deal with it later after the Governor has done his case, it becomes now easy for us to seek the clarification. If we do it before hand, before the Governor does his case, to the best of my knowledge, at the moment, considering that the lawyer is saying he is answering everything related to what was presented, means that we will preempt at some instance the case of the Governor which may appear to be that in some instance, we are assisting the Governor. Would it then be better for us if we are going to ask clarifications as Senators to postpone that after the Governor has done his case because that witness will still be around to deal with that matter? That is just out of an observation. Thank you.

Order! Order, Members! I wish you were patient enough to hear how I will dispose the matter then you can react because my ruling could have satisfied you. I therefore rule on the following basis: For better clarity, the cross-examination of the witness will be done at this stage by the Counsel for Gov. Nderitu Gachagua. First, this is an affidavit by the witness, so we were opening this session of the affidavit for the defense and the rest of you including what Sen. Sang has captured for those kinds of clarifications. To avoid any doubts, let us stick to the cross-examination by the defense side. Then after that you have re- examination, if you look at the programme. That will be done by the Counsel for the County Assembly. Then (d) which is clarification and questions by Senators, then we will restrict both. Actually the issues are there because the witness is for the County Assembly, so whatever issues we will be directing to the County Assembly. It is up to the County Assembly to decide who will answer them.” So, that is the way we should proceed. Sen. (Dr.) Machage.

Mr. Speaker Sir, will I be order to seek your guidance on clarification on the status of this document because you have just alluded to it being an affidavit? Is an affidavit similar to a statement? If that is so, please, tell us.

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Let us say it is a statement which is signed and the owner is here. The author is physically present.

Mr. Speaker Sir, since this is a quasi-judicial body, I would urge you that the witness do not just adopt the statement. This is because we are taking a very serious action on the power that we have been supplied with documents and some of them are not authored by the County Assembly. They are relying on, for example, documents which have been written by contractors. We do not know whether those contractors could admit that indeed those are their letters. There are a lot of documents which are not primary documents in this bundle. Therefore, the only alternative for the witness to take is if he is going to help us in this process; he is not just to say that he adopts the evidence, he has to declare that he adopts the Witness Statements as the truth having been sworn, not just to adopt the witness in general terms but adopt----

Order! Order, Sen. Orengo! If you read paragraph 6 which Sen. Sang cited, “I hereby adopt in my evidence before the Senate.”

Mr. Speaker Sir, That is not good enough.

(7) : “I make this Statement in support of the said resolution of the County Assembly.”

Mr. Speaker Sir, That is not even good enough because it should have been a declaration under the Oaths and Statutes Declaration Act; something which he can be pinned down on because we do not want a situation where evidence which is being given before the Senate can be recanted. He should recant it knowing that there would be consequences. Unfortunately, I would have taken a very different position as Sen. Murkomen did indicate. We have been used to calling witnesses. For example, in this Volume we would have said okay you have given us your evidence but we are going to call these individual witnesses including the Auditor General so that the statements then would be collaborated. As it stands now, it will be very difficult for me as long as this is a quasi-judicial body to take a bundle of documents which are not authenticated, they are just photocopies. We have presented photocopies before you here and you have told us that you need to look at them before you can allow us to produce them. Today we have here and in the morning even before we could read it, they were allowed to go through it without authentication. So, all I am asking is that you should not just adopt the statement but he should declare that what is contained in that statement is the truth, the whole truth and nothing but the truth, so that we can hold him to account.

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

What is it Sen. Mutula Kilonzo Jnr.?

Mr. Speaker, Sir, I would like you to clarify one little thing. I have been watching Senators scribbling a lot of questions. Although our order suggests that we will be seeking clarifications, in actual sense, the Senators will cross-examine the witness. Ideally, in Law, the re-examination should come after the cross-examination. Where it reads ‘re- examination and then clarifications,’ you ought to change it, so that the re-examination can come after the questions have been asked. The questions here are actually cross-examination.

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Mr. Speaker, Sir, as the governor’s side, I think we have a right to be heard and express ourselves on these issues. With your permission, I will proceed to express ourselves on these issues.

Sen. Wamatangi, let me hear you.

Mr. Speaker, Sir, although we already have our procedure documented, in light of these developments and for the sake of ensuring that we go through a process that will live up to the intended integrity, would I be in order to suggest that where it becomes necessary we extend or expand the programme to accommodate the required procedures? I entirely agree with what Sen. Wetangula has said; that we should follow a procedure that will be exhaustive, but also lead, as they say in Law, to justice being seen to have been done.

The more we make interventions the more they come.

Mr. Speaker, Sir, with your permission, we have a right---

Order, Counsel. I have not disposed of your matter; it is still being canvassed. Just relax. You may even wish to assume your seat and listen to the Members.

Mr. Speaker, Sir, the issue we are dealing with today is weighty. It is of public interest that we have to give time. We need to hear each and every person who is in this Senate. We need to extend the time allocated so that everybody can be heard. We could take two or three days, but we want Kenyans to know that the Senate is a serious House that wants them to get their rights. Thank you, Mr. Speaker, Sir.

Mr. Speaker, Sir, I want to add my voice on these issues. First of all, we are a House of records and precedent. Having sat in one of such Committees, I would take a different view in terms of Sen. Wetangula’s presentations. In the programme; the presentation of the case of the county assembly, (a) sets out clearly that it is the presentation of the case of the county assembly including presentation of witnesses, if any. I am not a lawyer but the way someone presents their witnesses is a personal issue. The Counsels for the county assembly have said clearly that they do not intend---

Sen. Wangari, I am sure you mean something else.

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Mr. Speaker, Sir, it is a methodology that can be adopted at a personal level by the prosecution. The Counsels for the county assembly have said clearly that they do not intend to actually lead the witness. In fact, they offered and volunteered that they would just want them to adopt. Personally, I think it is a methodology that anyone can adopt. If we tell them to lead the witness, then, we will be doing the prosecution for them. Let us go your way; we should not tell them to lead the witness. Let us go with what they have presented, but do the clarifications after we hear the side of the governor.

Mr. Speaker, Sir, one of the cardinal principles of natural justice is the rule against bias and the right to be heard. For that reason and given the extraordinary role that this House is playing this afternoon, I support the view of more flexibility and more time, so that the assembly can properly lay their case and prosecute it, considering that they only have one witness. That is the silver bullet that they have. The Senate should not entertain a situation where we look like we must help them make the case or we are in a hurry. In particular, I am afraid that the statement that has been presented here is not even adequate. I hope they can be given as much time as possible to make the best out of their witness. This should be the case when the time comes for the governor. Otherwise, as we say in natural justice, justice must not only be done, but must be seen to be done. The people of Kenya want to see how this Senate is handling both parties. We should not make a quick decision that can be contemptuously ridiculed by those who will come after us and people who are strangers to this House.

Order, Members. I am afraid that the Senate Majority Leader is trying to do an overkill. The matters before us are very simple. The county assembly has not asked for more time. They have all operated under the time given. In fact, they did not even conclude that time. They have only one witness whom they have presented. They do not even want that witness to do much, except for the statement the witness has made. To agree, to some extent, with the Senate Majority Leader in terms of fairness, and to agree with Sen. Wangari, it is not our business to aid them. It is up to them to do the business the way they wish to. That leaves an opportunity for the other side to poke holes into that manner. It is not our business. My direction will remain the same for the sake of clarity. While we had anticipated that the Senators might also wish to cross-examine the witness because this was the only opportunity for the witness to make the intervention and be dispensed with. In order to avoid the evident confusion, therefore, I direct that the witness of the County Assembly will be cross-examined by the Governor’s side and then the County Assembly will examine its own witness so that we dispense with that side of things first. Secondly, we have the final opportunity as the Senators to dispose of the matter. We, as Senators, cannot cross-examine the witnesses. Today was the day for the County Assembly. Hon. Senators, your input will be to deal with all those issues that the County Assembly has given us, including what the witness may have decided or will decide on how best to respond on them. Finally, on the issue of admissibility of the documents and the rest, my understanding is that, one, we are at the appellate stage in this process. Basically, there is an act of faith in terms of what the County Assembly is bringing to us. They could as well have brought nothing. It is for

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

Order, Sen.Wako! You run the risk of abusing privilege knowing that with your reputation we cannot deny you. Proceed.

Mr. Speaker, Sir, I support your ruling. However, in furtherance of that ruling, I would request that if the witness is going to be examined, he has to be examined on evidence because we only examine on evidence which is before us. So far, we have only heard submissions by the counsel which may not, in themselves be evidence. Therefore, in this affidavit, some of the first questions that must be asked is that the witness should, not only just adopt what is before us, but he should state that he is aware of the contents, has personal knowledge of the contents. Where he does not have personal knowledge of the contents, he has to state that he is aware to the best of the knowledge that he has, and he truly believes that it is true. In other words, it should go beyond adoption and say, “that is my evidence, and I truly believe in it.” This is so that it can now be the basis for cross-examination.

Hoja ya nidhamu, Bw. Spika.

What is it, Sen. Boy?

Bw. Spika, ulikuwa umeshatoa uamuzi ya kwamba haitakuwa kazi yetu kuwasaidia washtaki. Nidahmu anayorejelea tena Sen. Wako anapinga amri ile ile uliyokwishatoa ya kwamba mshtaki aachwe aendelee na kesi yake na sisi kazi yetu ni kusikia. Baada ya kumpa mwanya sen.wako anarejelea kulekule ambako wewe tayari umeshatoa uamuzi. Je, hii ni sawa?

Nakubaliana nawe Sen.Boy Juma Boy. Uamuzi ni uleule nillioutoa. Sen.wako mwenyewe alikubaliana nao lakini anajaribu kupitia kwa njia ya kando. Njia ya mkato, kutumia mwanya kama ulivyosema. Proceed, counsel.

Mr. Speaker, Sir, I will proceed with my cross-examination. Mr. George Baragu, in charge No.1, you said that the Governor cannot account for the sum of Kshs352,796,913 million. Are you aware how the IFMIS works? Hon. Baragu Mutahi. Mr. Speaker, Sir, I am only aware of what was given as expenditure and what was accounted by the Executive.

Do you know of IFMIS?

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I know of that system, but I was not using it to get my judgment on this.

Are you the Chairperson of the Public Account Committee (PAC) ?

Yes, I am.

How often do you engage with the County Executive Committee Member for Finance (CEC) ? Do you write letters to him? Do you meet in his office to understand how financial operations are done at the county level?

Normally when there are queries, and they must be from the Auditor-General, we invite them for meetings.

You invite them for meetings?

Yes, But I---

Have you gotten to learn how they make payments within the county executive? Through that computer, have you gotten to learn?

I think the issue here is not the IFMIS---

I am asking you a very simple question. Just answer it. If no, you say “no.”

No!

You have not gotten to learn how they run the system. On what basis do you say that this Kshs352,796,913million cannot be accounted for?

No! I have evidence to show that.

Where is the evidence? Please, show me the evidence that this money cannot be accounted for.

Mr. Speaker, Sir, if you allow me.

Proceed.

Are you referring to the page 4 of Volume III of the County Assembly Document?

Wait, Mr. Counsel.

I am assisting you. Is it Volume 3 of the County Assembly Document?

You know that when you assist me, you might take---

Order! Both of you! Counsel, be a bit patient.

Mr. Speaker, Sir, I am assisting the Senators also so that we are on the same page. We are making reference to Volume III of the County Assembly Document.

Order! When the Senators need your assistance, they will ask for it through me.

Mr. Speaker, Sir, thank you very much

Mr. Speaker, Sir, I have a report here from the Executive that is on page 19.

Page 19 of which document?

The Budget Implementation Status Report.

You mean Page 4 of the County Assembly---

I am talking about Page19. That is where I am.

Of which volume, honourable?

The County Assembly Documents Volume III, Page 19

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Proceed.

Annex 3 at the bottom of the page is about development expenditure by 30th June, 2016. The second last column is about the actual expenditure. Thereunder, we have the totals of Kshs1,161,269---

Just read the entire figures. You know these are figures.

Mr. Speaker, Sir, we have the total amount of actual expenditure on projects on Page 25 of this document. When you add all the totals of the expenditure on projects, you get Kshs846,702,900. So, if you get the difference from the actual expenditure, you will get the Kshs352,976,913. That is simple and that is how we have done it and it is what we have from the executive.

Let me ask you a simple question. The charge here is that this money was not disclosed or rather not accounted for. If you add this figure of Kshs846 million, Kshs702,000 and Kshs900,000 plus this amount which you claim has not been disclosed of Kshs352,976,913, how much does it come to? If you add these two figures, how much does it come to?

You are talking of---

There are two figures. The accusation is that the amount has not been disclosed and you are saying that Kshs352,976,913 is the amount specifically which has not been disclosed. You are saying that the only amount which was disclosed was Kshs846,702,900. Is that right?

Yes.

If you add these two figures, the amount you claim has not been disclosed and this amount which has actually been disclosed, how much does it come to? It comes to Kshs1,161,269,008. Right?

That is Kshs846,702,900 plus Kshs352,976,913

Go to Page 19 of that document at the bottom corner. Do you see a figure there of Kshs1,161,269,008?

I can see it.

Thank you very much.

Mr. Speaker, Sir, the issue is not the addition of figures. It is about nondisclosure of monies approved by County Assembly. That is what we are arguing. They did not disclose Kshs352 million.

Let me be specific. You are saying that Kshs352,976,913 has not been disclosed, right?

Yes.

You are saying that that amount has not been disclosed and the implication is that probably that money has gotten lost. Here I am reading to you a Budget Implementation Report, the same document where there is a figure of Kshs1,161,269,008 which you have admitted includes Kshs352 million. So, where is that aspect of nondisclosure?

On a point of order, Mr. Speaker, Sir. I would like Advocate Wanyama to help me. The charge here is that the amount of Kshs352 million was not disclosed and that it only happened after these proceedings were preferred against his client. So, why is he now shifting the responsibility of the witness to account for the Kshs352 million instead of just accepting that the disclosure was made or it was not made? The disclosure they made at the end ended up being done but it did not account for all the money. Could he help us on that?

September, 13th 2016 SENATE DEBATES

Mr. Speaker, Sir, I appreciate that comment. The basis of this cross-examination is that the County Assembly claims that Kshs352 million has not been disclosed. How they came to Kshs352 million is their own calculation. My basis is that this Kshs352 million is part of global figure which has been disclosed on Page 19 of that document. If you look at the end of the document on Page 19, you will see that there is Kshs1.1 billion which contains that amount which they say has been disclosed and the amount which has not been disclosed. So, that is the basis of that cross-examination. Mr. Speaker, Sir, allow me to proceed because later, the CEC for Finance will explain this issue to the benefit of everybody here.

Mr. Speaker, Sir, what I am saying regarding the issue of nondisclosure is that what has been disclosed by the county executive is only the Kshs846,702,900 which went to the implementation of projects but Kshs352 million has not been disclosed and that is the question we are raising to the Governor.

So, what are the components of Kshs1.1 billion?

It should contain the Kshs352 million but it is not there.

Exactly, thank you very much.

The money is not there and it has not been disclosed. We have Kshs846,702,900 which was used for projects but what projects was Kshs352 million used for? That is the question. You did not disclose that and the Governor violated the law in this case.

Mr. Speaker, Sir, I will proceed.

Proceed.

Now go to Page 63 of the same document if you may, please. That is the County Assembly Documents Volume III. It is the document containing the Controller of Budget’s Report of 13th June, 2016.

Correct.

My question here is very simple. Have you, as the County Assembly of Nyeri, asked the CEC for Finance or the Governor to explain this issue before? Have you done it before? This is a report dated 13th June, 2016 and those are three months ago.

This is a report from the Executive.

I am asking this, before you drafted this Motion to do the impeachment, did you seek any comments from the CEC for Finance or the Governor on this issue to explain this thing you call discrepancies?

This is a report from the Executive. It is their report.

It is the Controller of Budget’s Report. From the heading, it is from the Office of the Controller of Budget then it came to your possession as the county assembly doing oversight. Did you summon the county executive to explain these discrepancies before bringing this impeachment Motion?

But how can you give a status report to me and then ask me to explain to me again?

Order, Honorable! That is a straight forward question. You either answer or you are declining to answer rather than saying the source of the report. The issue is not the source. Just repeat your question counsel.

Thank you Mr. Speaker, Sir. The report from the controller of budget came to your possession and is dated 30th June, 2016. Before debating this impeachment

September, 13th 2016 SENATE DEBATES

No, I did not.

Thank you. On page 66 on the same bundle on Vol. No. 3 on the county assembly document, can you confirm who did this calculation for the record? Is it the County Executive?

This was our summary.

The County Assembly summary?

Yes.

Thank you very much. Coming to page 74, we have the Controller of Budget report. As the chairperson of this important committee, do you usually experience these challenges? Are these issues you are raising as impeachment issues, are they issues you interact with on a day to day basis as the chair of the committee?

No, these are gross matters, this time round.

I am saying for instance, if the county executive has spend money at source, is it an issue that you would ordinarily write to the executive asking questions as the Chairperson of the Committee or summoning them before the committee?

It is not easy for the executive to reveal if they spend money from the source. So, it is not something that we have experienced.

Again, have you summoned the CEC for Finance or the governor to explain these issues before the assembly?

You know, we have had history with the executive.

You have powers under Section 145. Have you summoned?

Yes, we had summoned the executive sometimes back but he did not come.

Do you remember when it was?

I do not have the dates but it should be last week but one. He did not turn up but he said he was busy going to the controller of budget office.

After you have brought this Motion?

What I mean is that there was an invitation but we did not hold that meeting.

But you summoned the CEC for Finance after you have brought his motion?

Not after the Motion. At that time, you could not have summoned the CEC after the motion.

No, you said last week.

Before 2nd September, 2016.

Not last week?

The important thing is that we had an invitation because there are letters.

Do you have those letters before this Senate for records?

The letters are with the clerk.

Thank you very much. Let us proceed on the issue of procurement.

That is on which page?

September, 13th 2016 SENATE DEBATES

The same bundle on page 79. Let me summarize the issue here; from the testimony, the county assembly received queries from contractors most of which you have annexed here from page 89-180. Right?

Yes.

What was the gist by these contractors? What were they saying, for the record?

Mr. Speaker, Sir, this case arose when contractors were given tenders through word of mouth on roads. So, the county assembly came to know about the issue because it was raised by many contractors because they were not getting their payments. So, the county assembly, after going through those issues decided to form an ad hoc Committee through a motion to investigate those cases of irregular procurement.

Hold on there. I am just following that train. You said the county assembly committee investigated?

I did not say it investigated. I said an ad hoc committee was formed.

To do what?

To investigate.

Thank you very much. During the course of your investigations, did you summon the CEC responsible or the governor to explain these pending bills?

Mr. Speaker, Sir, we summoned many of them and there are so many letters here.

No, from the executives not from the---

We wrote asking the documents from the executive if the counsel can allow me and the efforts were completely frustrated. In the same week, the governor went ahead and formed a taskforce---

We will come to that. I want us to go systematically so that we understand the efforts that you did. You said that the committee investigated these pending bills. What I am asking is; did you summon the County Executive?

We did not investigate. I said we formed the, committee but it was frustrated by the executive and we did not do our work because we were not given documents that we asked for from the executive and no executive could come and sit with us.

So, you never investigated these allegations?

We did not investigate. During the course of that problem, the governor went ahead and formed a taskforce to regularize irregular procurement.

Thank you. That statement brings us to page 79 where that taskforce is. Are you there?

Yes, I am there.

Who formed this taskforce? On page 80, there is a name there. You can read it for the record.

You are saying on which page?

Page 80. There is the name of the person who gazetted this taskforce.

Mr. Joseph Kiragu, CEC member. But I would want say that---

September, 13th 2016 SENATE DEBATES

Let me ask you a question; is it within the mandate of the executive to form a taskforce to look at the issue of pending bills or is it a mandate of the county assembly?

Both of them have a mandate to form committees.

Okay. So, looking at the executive, one, on this particular issue, was it wrong for the county executive to form a committee to look at this issue of pending bills?

Very wrong because it was frustrating the ad hoc committee of the county assembly. It was regularizing something which was irregular.

Let me ask you another question; are you aware as to whether any of these contractors came to the committee to present their issue?

Which committee?

The committee which was formed by the governor.

I am not aware because the committee never tabled any report in the county assembly.

Thank you. Go to page 92; one example then we move to the next issue because I do not want us to dwell on this issue too much. There is a document there from First World Solutions Limited on the same bundle. I am just picking one document.

I have it.

This one is addressed to the County Secretary. Are you there?

Yes.

Thank you. It is addressed to the County Secretary. What is the date on the letter? There is a date up there. It is dated 13th ---

I cannot see the date.

There is a date on top of the document.

It is dated 13th October?

Page 92 of the bundle of the County Assembly Vol. III. Are you aware of the legal framework governing procurement? Just say if you are not aware.

There is the law. The Procurement and Disposal Act.

Under the legal framework, you cannot make any payment to anybody until a contract has been signed. Is that right?

That is right.

Until a contract has been signed.

Yes.

So, if someone came with such a letter to the Governor saying I want to be paid, what would have happened if the Governor paid? He has come to the Assembly and the Assembly has said these are pending Bills and then they ask the Governor to pay. Will it be okay for the Governor to pay a pending Bill using this document that you have annexed here as evidence?

It will be wrong and illegal.

It will be wrong. Thank you very much.

Let us go to the next issue. The next issue is on page 244 of the County Assembly bundle. It is the same document. There is a charge there on lack of prudence in refurbishing Karsons Building.

Yes.

September, 13th 2016 SENATE DEBATES

Page 244 is an extract from the report of the Auditor-General. Is that correct?

Correct.

From this extract, particularly the observations at paragraph one, can you tell from this extract when the refurbishment was done? Was it 2014, 2013 or 2016?

This report of the Auditor-General is---

I am just saying in terms of the date, when was this refurbishment done from this report?

Mr. Speaker, Sir, if you can protect me. I may not remember the date of the refurbishment of the building, but this report is from the Auditor-General. We went through it as PAC. What is sure is that there was no value for money in this. Putting money in a private house, that is Kshs29million and paying rent of Kshs10 million. I do not think there is any logic in that. What we are saying---

This is what I am asking so that you do not go around. The issue is very simple. When was this alleged refurbishment done? Was it done in 2013?

Yes, it was done during 2013/2014 Financial Year.

2013/2014 Financial Year

Exactly.

Are you aware that at that time the team managing these resources was the Transition Authority (TA) ? Are you aware that it is the TA which spent this money?

The TA never spent the money. We called the TA team in our meeting and they had letters to show that they did not. There is also a task force that was appointed by the Governor to oversee refurbishment of that house.

Where is that letter?

I have it here. I will produce it in due time.

Perhaps, to help you, go to page 253. Can you remember when governors were sworn in to office?

I cannot remember the date, but the letter I am talking about is on page 251. That is the letter showing that the Governor appointed a task force to oversee procurement of that building.

Look at 253, just two pages after that then we move on.

Order, Counsel! I initially thought I am unable to protect the Hon. Member, but I think there is a case for doing so. You had requested for a letter and he said he was going to produce. It is only fair that you must appreciate it when he has now found it and then you can move to page 253.

Okay. Thank you Mr. Speaker, Sir.

Yes it is fair that he accepts that---

Order! I have already aided you.

Thank you, Mr. Speaker, Sir.

Where is that letter that you said so that we dispose of that matter? It is on which page?

It is on page 251.

Page 251? I will go there. Could you, please, read that letter?

Mr. Speaker, it says: “Office of the Governor. Task force on offices, renovation works.”

September, 13th 2016 SENATE DEBATES

Thank you. Tell us when the letter is dated then we can move on.

It is dated 10th May, 2013, signed by Hon. Nderitu Gachagua.

You are not aware that there was a team by TA to manage funds at the counties?

This letter is from the Governor. This is not a TA---

I am asking you a simple question.

There was the TA, but they were not in-charge of this.

Thank you very much. Go to page 254 so that we bring that issue, once and for all, then we move on to the next issue for us to save on time. Can you go to page

I am here.

That letter is from---

The yellow light is on.

Thank you, I will finish in a short while. Can you read it. That letter is from who? TA, right? When is it dated?

It is dated 23rd April, 2013.

It is addressed to who?

By who?

By the TA.

Yes. It is about that money. Right? The money for refurbishment.

Yes. They were actually guiding the Executive to use the money prudently.

Thank you very much. Go to page 266 very quickly as we wind up. Do you have any evidence that you brought before this Committee to support this allegation that there was splitting of tenders? Any evidence from your bundle here apart from this extract of law? Is there any evidence that you have brought? Just here from your bundle, if you do not have it just say that you do not have and that you will avail it later. From your bundle as contained in page 266. Do you have any evidence?

I am checking, please.

We can move on if you do not have. Can you now go to page 267. If you do not have, you simply say so, so that we move on to save on time.

Yes, I have the bundles.

From your evidence

Yes. 433 is where the bundles are.

Can you go to page 267. We are now at 267.

Did you get the bundles first?

Which page?

Page 433. Did you see the tenders?

September, 13th 2016 SENATE DEBATES

Page 433. These procurement items which you say--- Does it amount to splitting of tenders or they were separate tender items? Just from the document itself.

What is it, Sen. Muthama?

On a point of order, Mr. Speaker, Sir. The document that the witness is being referred to by the Counsel has page 266 (a) and 266 (b) . Could he clarify which one he is referring him to so that we can read from the same page?

Counsel.

Mr. Speaker, Sir, initially I was at page 267.

Before you moved to page 267 you had made reference to page 266. The Members is asking which one; (a) or (b) ?

Mr. Speaker, Sir, for the record I did not make reference to page

Which page were you on before you moved to page 267?

Mr. Speaker, Sir, from my document page 266 is an extract from the Public Procurement and Disposal Act.

That is not the issue, Counsel. The issue is whether page 266 has (a) and (b) .

Mr. Speaker, Sir, I do not see any (b) from my bundle.

Proceed!

Kindly, let us move to page 433.

That is where I am.

Do these procurement items have different tender numbers?

Yes.

Thank you very much. Kindly go to page 500 of the bundle.

I will allow another five minutes.

Thank you very much, Mr. Speaker, Sir. Are you on page 500 of the bundle?

Yes.

Are you aware that there are ceilings which have been set by this House on recurrent expenditure at the county level? Are you aware whether there are any ceilings set, such that you cannot do a budget that overshoots those ceilings, because we do not have money as a country?

There are ceilings.

In this budget making process, did you overshoot those ceilings by any amount?

No, we did not. According to my knowledge we did not. That is not the cause of the problem in budgeting here.

I am just asking you a simple question. Did you overshoot the ceilings or not. If not, then say: “We did not”. Did you overshoot the ceilings?

We did not.

Let me ask you about your relationship with the County Executive Committee (CEC) Member for Finance. If you look at the Act, the budget making process is an intense process with timelines.

September, 13th 2016 SENATE DEBATES

Yes.

Which deadline?

The county executive never sat with any sectoral committee.

Which deadline did they miss?

Meeting the sectoral committees to decide on the budget. The time they brought their estimates was the last day before the budget.

Therefore, you are saying that the county assembly never delayed in the budget making process?

It never delayed, but the executive refused completely to sit with the assembly to discuss the budget.

Who were you dealing with on this issue?

Obviously it is the CEC Member for Finance and the other CECs in the departments.

Okay. He will be here tomorrow to testify. Finally on the issue of appointments, you say from your charge that the county governor has illegally appointed an acting county secretary. Can you, for the record, name this acting county secretary? Do you know her name?

Yes. She is Alice Njamiu.

Alice?

Yes.

What other portfolio does she hold in the county government?

She has been acting.

What other portfolio?

I do not think there is any other. What I know is that the Assembly---

Do you not know that she is a chief officer?

I do not think so; she is not. She is the acting secretary of the county. I do not know if she is a chief officer. I know that the assembly, through the committee on legal affairs tabled a report which was very clear that the secretary is not qualified to hold that position. There is a report to that effect.

Mr. Speaker, Sir, I am winding up. Are you aware of the names of the chief officers that the county assembly approved? You say that Alice is not a chief officer. Are you aware that the county assembly approved chief officers, and that Alice is one of them?

Alice is not a chief officer; she is an acting secretary.

I am talking about the substantive portfolio. The governor cannot appoint someone from outside, who has not been vetted by the assembly, to be an acting officer. I am asking you a simple question: Did you approve the appointment of Alice as a chief officer or not? If not, we will end the matter there.

Earlier on she was approved as a chief officer, but she is not qualified to hold the position of county secretary.

Was she approved as chief officer?

Yes.

September, 13th 2016 SENATE DEBATES

Thank you, very much. Are you aware of the efforts that have been made by the executive to recruit---

Counsel, you time is up. Maybe just one last burning one.

Thank you, Mr. Speaker, Sir. Just one last burning one. Are you aware of the efforts made by the county public service board to recruit chief officers? Are you aware of any advertisements? The board chairperson will be here tomorrow.

I am not aware. But the procedure that has been---

Thank you very much. That is all, Mr. Speaker, Sir.

The procedure that has been followed by Gov. Gachagua’s administration is to put people in acting positions.

That is all, Mr. Speaker, Sir.

Mr. Speaker, Sir, kindly allow me to add something, because I have been taken through a speed that I am not used by a lawyer. I am not a lawyer.

Order, witness. You had that opportunity, which you declined. We went to the next stage of cross-examination, which we have concluded. Therefore, you may assume your seat.

Thank you, Mr. Speaker, Sir.

Order, Members. You need to stop reading my lips and start listening to my words. I talked about cross-examination. I am yet to talk about re-examination; it is a whole world of difference.

Order, Sen. Wetangula! I cannot be wiser. I have been repeating the procedure from morning and particularly to your good self. Let us now move to the re-examination stage. I repeated a few minutes ago when the clarifications were being sought on how we will proceed.

Mr. Speaker, Sir, and Hon. Members, we shall have very few questions in re-examination. Hon. Baragu, could you advise the Senate – arising from the questions that you are led – why you as the Mover of the Motion that precipitated these proceedings, thought that the violations exposed in this Motion are gross and sufficient for purposes of Article 181? Just be brief and to the point.

Mr. Speaker, Sir, the reasons that I took were informed by the violations of the Constitution and the law on matters pertaining to County funds and governance. Clearly, they are gross. In this report, for example, the amount of money that we are talking about here is close to Kshs1.4 billion that has not been disclosed. The issue of procurement and the law has been breached especially in that part of the Karsons building and a footpath that cost the county Kshs48 million. The footpath is just four kilometers and the width is one metre and some inches. It was murramed, compacted and bitumen poured on top. That matter is grave. You can see a kilometre of that road, just a stretch, cost Kshs12 million. If you break down further,

September, 13th 2016 SENATE DEBATES

Let us move to the details now. You have been asked about the figure of Ksh352 million that you allege or have stated that was not disclosed. Quickly, from the report that you received from the executive, was that figure disclosed? That is a direct question.

The Kshs352 million was not disclosed.

Was it nowhere?

It was nowhere.

In that report, was it explained to which particular expenditure of how it was expensed, the sum of Kshs352 million that was in the approved development expenditure that the executive admits to have spent?

There was no project relating to the Kshs352 million.

So, how did you arrive at that number, just for clarity?

Mr. Speaker, Sir, I took the actual expenditure Kshs1,161,169; that is on page 19 and subtracted the total amount that went to projects in page 25 of this document. It was Kshs800 million – I cannot get the figure – and I got the Kshs352 million which was not disclosed and remains so.

So, had you not done that arithmetic, you would not have discovered that there is no report or account for that amount?

We went through the whole status report and we could not discover or see where the Kshs352 million is.

Okay, very well. To the question that you did not consult the County Executive Committee (CEC) Member; just a confirmation; where did you get this annual budget implementation status report? Where did it come from? What is the source of that document?

It is from the CEC, Finance.

It is from the CEC, Finance?

Yes

Was it forwarded to the County Assembly?

Exactly.

Now, on the issue that you raised about the procurement for these contractors and the works thereof, just for clarity and in consideration of the charges that you have forwarded, is the issue of payment based on those documents or procurement of those contractors without any procedure?

It was unprocedural in the way tenders were given.

So, your issue in bringing these charges was that those contractors had been procured without due process?

Exactly

Is that what you have put in your charges?

That is true.

Did you ever receive any report from the taskforce appointed by the Governor?

September, 13th 2016 SENATE DEBATES

The taskforce appointed by the Governor never tabled a report in the County Assembly.

Do you know whether it tabled any report anywhere?

It did not table any report.

Can you state that for a fact from your own knowledge?

From where I sit, there was no report to do with the taskforce in the Assembly.

From where you stand. Not sit.

Yes, where I stand.

Now, on page 251, there is a letter where you were referring the Senate to. It is the one on the taskforce on offices renovation works. Hon. Senators, I am referring to County Assembly documents, volume 3. Hon. Baragu, do you have the letter?

The letter is there. It is on page 251; task force on offices renovation works.

So, by way of this letter, who is the Governor appointing or nominating?

The Governor is appointing county works engineer, the town engineer, county architect and the county quantity surveyor to oversee those works.

Now, is there any reference, whatsoever, to that letter to the tender committee?

There is no reference.

There is no reference at all to a tender committee.

Not at all.

Mr. Speaker, Sir, that is all from me. However, hold on for a question from my co-counsel.

Thank you, Mr. Speaker, Sir. I wish to seek one clarification from the witness. Mr. Baragu, you have been asked a question with respect to the acting county secretary. You have been asked whether she has the qualifications to serve as the chief officer. The clarification I want to seek from you is whether the academic qualifications for appointment to the position of county secretary are the same as those for appointment to the position of the chief officer.

Mr. Speaker, Sir, they are not the same.

Thank you. Mr. Speaker, Sir, that is all.

The witness may assume his sit. We now move to the next bit of clarifications and questions by Senators to the County Assembly of Nyeri.

Mr. Speaker, Sir, I have three questions. First, please clarify to us on the charge 9 (a) that is on Bills. According to the County Governments Act, the governor has 14 days to assent to the law failure to which the law is deemed to have been assented to. Under Section 25, the law is supposed to be gazetted upon assentment. Please clarify under charge nine on the Bills that you have specified here so that we understand where the default is. What is the date that the assembly passed each Bill? On what date did it lapse? On what date was it gazetted? Secondly, is on Section 137 of the Public Finance Management Act (PFMA) which is on Economic and Budget Council; on the three budgets that Nyeri County Government and

September, 13th 2016 SENATE DEBATES

The county assembly team, you will take all the questions as they are asked by the Senators. Sen. Mutula Kilonzo Jnr. has already provided leadership in terms of operating within the two minutes we had suggested.

Mr. Speaker, Sir, I will use one-and-half minutes. My first question is to the county assembly. There is this officer-I believe is the chief officer who is currently acting-whom you have referred to as lacking the prerequisite qualifications. Can you confirm her curriculum vitae? Secondly, in your opening remarks, counsel for the Governor, you had asserted that there was no indication from the side of the county assembly on the specific areas of the Constitution that were grossly violated. In the evidence that that has come before us, the county assembly has clearly referred to the violation of Article 201 (a) , 207 and 201 (d) of the Constitution. So, is it still the county assembly’s position that you did not specify the Articles of the Constitution under which you claim that the Governor had violated the Constitution?

You have taken two minutes as opposed to the one-and-half minutes.

Mr. Speaker, Sir, I have two questions. First, why was the Governor not given a right to be heard by the county assembly? Can you state whether this is a requirement in the county assembly’s standing orders. The question on qualifications of the county secretary has already been asked. Lastly, why have you not stated to us the actual procedure of how you went about in impeaching the Governor? If I heard right, there was a question of the right to be heard.

Mr. Speaker, Sir, mine is partly what Sen. Ong’era has asked. I was looking through the material that we have been given from the county assembly. I was hoping to find some evidence of a notice to appear before the county assembly served on the Governor like we have done in these proceedings and being given an opportunity to be heard. Unfortunately, we do not have the HANSARD. Is it possible that you point to us in the proceedings where that right was given to the Governor? Undoubtedly, the charges that you have presented against the Governor are serious. I have two issues to be clarified. The Auditor-General’s Report for the period 1st July, 2013/2014 was tabled in the assembly on 21st July, 2015 and the County Public Accounts Committee dealt with it. A Report was given by that Committee. It appears that the Committee was dealing with the report of the Auditor-General. In the Committee itself, I do not see any accusations against the Governor but against accounting officers. This is in relation with the question of refurbishment of the Governor’s

September, 13th 2016 SENATE DEBATES

Members, do not say mine is like the other one. Do not even mention it at all because it is on record. Sen. Obure.

Thank you, Mr. Speaker. Sir. Mine is in relation to the procurement process relating to the refurbishment to the Karson Photo House offices. I want to make reference to page 51 Vol. 3 of the Assembly document where a Taskforce was being formed to carry out these works. I heard the lead counsel raise the question of whether the matter had been referred to the Tender Committee. However, I see that on the following page which is page 252, estimates were indeed carried out by the County Works Officer. On page 53 I see that there was an award of tender to some company called Betilico Agencies Limited. I wanted to confirm whether these works went through the tendering process as required.

Thank you, Mr. Speaker Sir. I have three questions. First, one of the critical issues in impeachment is the nexus between the officer being impeached and the action. In the case of Embu, it was clear that the County Assembly wrote numerous letters and attempted resolutions that were sent straight to the Governor and brought to his attention and then they brought a case of inaction. Did the County Assembly attempt to bring directly to the attention of the Governor any of these acts of maladministration, whether it is the tendering, whether it is the action of a chief officer or the actions of a County Executive Officer (CEC) so that then we can establish nexus? Secondly, most of the tender issues were about whether the tender process was followed. Was there any attempt at any stage in this process in your investigations where Public Procurement Oversight Authority (PPOA) was involved in the matter of tenders? Finally, on the question of assenting to Bills, I did not hear very well what Sen. Mutala Junior said. You are saying that there is a gross violation of the law, but the law itself says in 14 days if there is inaction on the part of the Governor, it automatically becomes law. So, which law has been violated there and how is it grossly violated?

Thank you, Mr. Speaker, Sir. I would like to ask two questions. The first one is whether the Senatorial office in Nyeri County had anything to do with the reconciliatory process in the county. Secondly, I wanted to know whether the list of the officers that is given in this volume is the same names that were there originally after elections? Were there some who were either sacked before business was made or this is the actual names or list of the people who were initially employed after 2013? Mr. Speaker Sir, since I still have time, I would like to know whether the process of impeachment was properly conducted given that we were reading that some of the ladies were in the hall the whole night with children.

Thank you, Mr. Speaker Sir. Can you allow me to speak seated? I cannot stand. I have to push my books off.

You can move to your preferred position of the dispatch box.

The problem was not speaking from here but the books were all over.

September, 13th 2016 SENATE DEBATES

I am wondering about this concept of absolute clarity.

Mr. Speaker Sir, I want to raise one issue. It involves the squandering of Kshs352,976,913 and another Kshs70 million. This brings a total of Kshs422,976,913 million. There is a ruling that was given by a Judge recently where he said a person cannot pluck an amount of money there without evidence and ask someone to pay. For this amount to be written here, a forensic audit probably could have been done and establish who exactly received this money. For money to be withdrawn from the account it is either through a cheque that has been paid to someone or the money is drawn in cash and then distributed. Can you tell us how this money actually left the bank account and to whom it went? How the money was received, how it was distributed and the third party who received the money if it was in form of cash or RTGS? Thank you.

Thank you, Mr. Speaker, Sir. One of the charges is failure to comply with the law and I need a clarification. First, the Governor is accused of not remitting statutory dues. When the Governor made his opening remarks he cited that the county had been recognised for tax compliance, that it was the best in tax compliance. The charges by the County Assembly do not indicate the period within which these dues were not remitted. Could you clarity on that? Secondly, the County Assembly talked of illegal establishment of sub-counties. A sub- county is a national government administration structure. Did the Governor establish a sub- county or he appointed sub-county administrators that were more? Finally, under the charge on gross violation of the Constitution, the County Assembly has talked of lack of prudence in the use of public funds. As given as evidence by the report of the Auditor General, what is the status of this report? Has it been adopted by this Senate? Thank you.

Thank you, Mr. Speaker, Sir. I have only one question on the procurement process. There has been some requests or demands made by contractors on work done on the roads and the amounts are huge. The first one is Kshs1,372,800 and there are other two roads also. Were these development projects factored in the budget which was either approved or not approved by the County Assembly? Thank you.

Sen. Gwendo.

Mr. Speaker, Sir, I have one question in regards to the employment done by the governor without observing the gender rule. Considering that the County Executive Committee (CEC) Members have served for a long time, what did you do when you realised that the governor did not observe the gender rule? Did you wait for this impeachment to come for you to bring the matter here?

September, 13th 2016 SENATE DEBATES

Finally, Sen. Sang.

Mr. Speaker, Sir, I want to seek three clarifications. The first one is with regard to the Auditor-General’s report that you have extensively quoted in your case. Did the Public Accounts Committee (PAC) in the county assembly address itself to the Auditor- General’s report and was the committee’s report tabled, discussed and approved by the county assembly? The second one is with regard to the acting chief officers, which are important positions in the county because they are accounting officers. If you have six chief officers in acting capacities, what did the county assembly do to try and address this? Is there any procedure, for example, summoning the governor to specifically address himself to this particular aspect of the acting chief officers? Finally, I want you to confirm whether there were external forces that were working with the county assembly in bringing up this impeachment Motion. Already, a former aspirant for the Senator’s position who now intends to run for governor has been mentioned. Could you confirm that this was a process by the county assembly alone or there were external forces that worked with you in framing up these charges?

There are two new entrants and they shall be the last ones. Sen. Sijeny.

Thank you, Mr. Speaker, Sir. I only have one question to the county assembly. Were the people of Nyeri County given an opportunity to participate before this impeachment was done against their governor?

Order, Sen. Sijeny. What do you mean when you ask whether they were given an opportunity to participate?

Mr. Speaker, Sir, to participate in the decision to impeach the governor; whether they were given the chance to comment or participate.

Bw. Spika, hakuna afaye akakosa mzishi. Naomba kuwauliza swali watu wa Kaunti ya Nyeri. Adhabu ya kaburi aijuaye ni maiti. Gavana alisema kuwa amekuwa mgonjwa na mara kwa mara hali yake ya kiafya haijakuwa ya kupendeza. Mara nyingi amekuwa nje ya kazi. Wakati alipokuwa hospitalini, nani alikuwa anamshikilia gavana wadhifa wake? Ni kama Bw. Gavana amebwaga zani. Ukibwaga zani, hubwaga zani kwake. Asante, Bw. Spika.

Methali na maswali ndio hayo.

County assembly, you may wish to respond now. Counsel, you have 30 minutes to respond.

Mr. Speaker, Sir, I will make my responses. On the questions that I will not respond to, my colleagues will help me. We are confirming the dates regarding the question of Bills that was asked by Sen. Mutula Kilonzo Jnr. You shall be given immediately after this. Regarding the question of how budgets were passed before in the other years and the resolution of any disputes, the issue is that at that time, and in the other instances, we did not see a refusal to forward an Appropriations Bill after passing of the estimates by the assembly. For some reason, this time round, the governor has determined that even after the assembly has passed the estimates, no Appropriations Bill has been forwarded for consideration by the

September, 13th 2016 SENATE DEBATES

In what form was the invitation?

Mr. Speaker, Sir, it was by letter, which I can make available to the Clerk of the Senate as we continue. The Senate Minority Leader (Sen. Wetangula) : On a point of order, Mr. Speaker, Sir.

What is it, Sen. Wetangula? The Senate Minority Leader (Sen. Wetangula) : I hope that my distinguished learned friend knows that the way of invitation to proceedings of this nature is to send a letter to the Governor and have a counter letter signed or an acknowledgement of delivery, so that you prove your case. Just bringing a letter here may not be helpful.

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

What is it, Sen. Wetangula? The Senate Minority Leader (

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

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

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

Mr. Speaker, Sir, it is not a funeral announcement by all means. We do not announce such in the County Assembly. However on page 722, you will see the content of the announcement. The typed part is written in the Kikuyu language. I do not know whether Sen. (Dr.) Khalwale will be able to read that. However, for your benefit and that of the entire Senate, we have translated it into English language. This is what---

Counsel, you may not wish to underestimate the capacities of Sen. (Dr.) Khalwale.

September, 13th 2016 SENATE DEBATES

Mr. Speaker, Sir, I will proceed to react to some of the questions that have been asked but not dealt with by my friend. Regarding the question that has been asked by Sen. Mutula Kilonzo Jnr. on the status of the various Bills, this is the status. This is at Page 680 of Volume III. We have the first Bill which is Nyeri County Cooperative Societies Bill,

September, 13th 2016 SENATE DEBATES

Counsel, you may not wish to underestimate the capacities of Sen. (Dr.) Khalwale.

Mr. Speaker, Sir, I did not want to venture to underestimate him. I know he is a man of many capabilities which are in the public domain. On page 726 also, there is the description of the payment. On Kameme Fm you will see that the presenters mentioned: Public Notice of Impeachment of Governor. Therefore, there is no equivocation around it. It was a clear notice to the public on that matter. On the issue of who was in charge if I got the question that was put in fluent Kiswahili, I will hazard a response. Constitutionally, the deputy governor should at all times be in charge when the governor is not available for any reason. The expectation of the County Assembly was that all functions, duties, structures within the County Government would continue running uninterrupted because this is not a personal enterprise of the Governor, but a county with structures that should survive at any time when somebody is indisposed and is unavailable for one reason or another, to administer and discharge that office. To that response, I can only answer on the provision of the law and the constitution that clearly says the deputy should be in charge.

I will invite my colleague to make any other responses. Before he comes, there was an issue about whether there was external influence that we had first from the Governor. We wish this Senate will invite the persons he so adversely mentioned in their absence like Eng. Ephraim Maina. What I can say and I have instructions to state is that there were no such meetings, there was no such connivance or facilitation and the entire Motion and the proceedings before the County Assembly and before this honourable House were in the free will and in the statutory and constitutional duty of the MCAs and we should not underestimate their capacity. We should not be heard to say that our MCAs cannot conceive, analyse and develop such grounds based on circumstances and facts. We should give them the respect and regard that is due to them, that this is their Motion and it is not facilitated by third party operatives.

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

Counsel, I thought that the dates were critical for that particular matter.

Yes, there are dates set out at Page 680. What is not there is information like it is pending gazettement at the Government Printer but effectively it has been forwarded. You will notice that Section 25 (2) of the County Governments Act states that:-

“Subject to subsection (3) , the county assembly legislation shall come into force on the fourteenth day after its publication in the county Gazette and Kenya Gazette, whichever comes earlier, unless the legislation stipulates a different date on or time at which it shall come into force.” So, there is a publication requirement that has made it impossible for it to become law. To answer Sen. Mutula Kilonzo Jnr.’s question, what is critical is that Section 30 (2) (g) confers an obligation on the governor. In fact, I want to read it verbatim because it is very critical. It states that:-

“Subject to the Constitution, the governor shall consider, approve and assent to Bills passed by the county assembly.” Whereas there might be a mechanism through which that Bill can become law without the assent, what justification is there for the Governor not to assent yet there is a direct obligation imposed on him by that Section to approve and assent? Whereas he does not necessarily have to assent, you will notice that even in situation where he is unhappy and chooses not to assent, he is supposed, under Section 24 (2) --- This is what Section 24 (2) states:-

“The governor shall within fourteen days after receipt of a Bill—

September, 13th 2016 SENATE DEBATES

September, 13th 2016 SENATE DEBATES

Thank you Mr. Speaker, Sir. On the establishment of the sub- county as asked by Sen. M. Kajwang, Section48 (1) (b) of the County Governments Act, 2012 sets out how you establish a sub-county. They have been established by law. Now, you have eight sub-county administrators who are supposed to be serving in six sub-counties. We have six constituencies within Nyeri County. We have two constituencies that have been split into two in contravention of this Section 48 (1) (b) so that there can be a sub-county administrator; Kieni East and West and Mathira East and West. Those are now four sub-county units but from two constituencies and Section 48 (1) (b) of the County Governments Act, 2012 is very clear. When you do that, there would be resources to fund so that the agenda might be noble that you want to bring services closer to the people. If the law tells you that you can only do six, let that law first be amended before you go ahead to appoint two additional sub-county administrators at public expense. On the gender rule; invitations were issued by the respective committees to the CECs. In fact, there is a pending court case where when adverse action was supposed to be taken on some CECs who declined to honor the invitations and the assembly sought assistance from the Office of the Director of Public Prosecution (DPP) to charge them, they have filed a constitutional petition in Nyeri challenging the invitations to appear and say it contravenes the doctrine of separation of powers. This shows you the attitude of the county executives that we have headed by the county governor yet no action is taken. On the governor’s invitation so that I sit, I have noticed that at page four of Vol. No. 4 of the governor’s bundle, he has attached the letter dated 26th August – the pagination is at the top. This document is with regard to the right to be heard. The county assembly takes that right seriously. You will notice that this document appears from the governor’s own document. So, he must have received it to attach it to the response. One of the things you will notice, there is no ambiguity in paragraph three. The motion is scheduled to be debated on Friday, 2nd September, 2016 at 9.30 a.m. and in accordance with Standing Order No. 64 (3) of the County Assembly of

September, 13th 2016 SENATE DEBATES

What is it Sen. Murkomen? It must remain small.

On a point of order Mr. Speaker, Sir. It is very small. If I can ask my learned friend and the counsel Mr. George who was incidentally a class ahead of me, if I heard the governor well, it was not that he was not invited. It is that his counsel was denied to address the county assembly. Is there anything you can say about that?

September, 13th 2016 SENATE DEBATES

Mr. Speaker, Sir, I am surprised that out of the three questions that I asked, none was answered. One is about the role of the Senator of Nyeri as a mediator. Second question was about the final list of the CECs. Is that a final list or there was another one which was there earlier which is not provided here because I am aware of a situation. Third, the last time that you were trying to impeach the Governor, did you have a regular meeting because we are told there was a lady who had a child according to the newspapers who sat there to vote?

Thank you, Mr. Speaker, Sir.

It must be a point of order.

Mr. Speaker, Sir, I am not rising on a point of order, but I have a very important question that I want to ask the County Assembly of Nyeri. This is the fourth year of devolution. The County Assembly of Nyeri has not been born today. It has been there and this is the fourth year---

What is the question? We have been around for the same duration. We will appreciate the dimensions.

Mr. Speaker, Sir, how comes the County Assembly of Nyeri has not approved the appointment of the Executive that has been made and they have not raised alarm for the last three years?

Order, Senator! First and foremost, the time for asking questions is and was over so we are not going to entertain that question. We are finally going to have Sen. Mutula Kilonzo Jnr.

Mr. Speaker, Sir, I am still on the question of Bills. For us to make a proper determination and confirm that, in fact, the Bill was forwarded, the schedule is not enough. There should be a letter of forwarding to the Governor and there should be another letter forwarding the Bill which has not been assented to, to the Government Printer. The statement made by my learned friend cannot be supported by evidence. I would like to accept it, but it cannot be accepted as evidence.

Order, Members! This is not the end of it. Some of the issues that Members have raised in terms of points of order can still be dealt with after the submissions by the Governor’s side. We are not going to support a cause for either party. If the County Assembly does not respond to questions, they know that would be against them and so

September, 13th 2016 SENATE DEBATES

Mr. Speaker, Sir, I am still on the question of Bills. For us to make a proper determination and confirm that, in fact, the Bill was forwarded, the schedule is not enough. There should be a letter of forwarding to the Governor and there should be another letter forwarding the Bill which has not been assented to, to the Government Printer. The statement made by my learned friend cannot be supported by evidence. I would like to accept it, but it cannot be accepted as evidence.

Order, Members! This is not the end of it. Some of the issues that Members have raised in terms of points of order can still be dealt with after the submissions by the Governor’s side. We are not going to support a cause for either party. If the County Assembly does not respond to questions, they know that would be against them and so

September, 13th 2016 SENATE DEBATES