Tuesday, 19th April, 2016

Hon. Senators, I wish to report to the Senate that pursuant to Standing Order No.40 (3) and (4) , I have received the following Message from the Speaker of the National Assembly regarding the passage by the Assembly of the Forest Conservation and Management Bill (National Assembly Bill No.49 of 2015) .

Pursuant to Standing Order No.41 (1) and Standing Order No.142 of the National Assembly Standing Orders, I hereby convey the following Message from the National Assembly:-

“THAT, whereas the Forest Conservation and Management Bill (National Assembly Bill No.49 of 2015) was published by the Kenya Gazette Supplement N0.133 on 11th August, 2015 to give effect to the provisions of Article 69 of the Constitution, with regard to conservation and management of forest resources and to repeal the Forest Act 2005;

And whereas the National Assembly considered and passed the said Bill on Thursday, 17th March 2016 with amendments in the form attached hereto;

Now, therefore, in accordance with the provisions of Article110 (4) of the Constitution and Standing Order No.142 of the National Assembly Standing Orders, I hereby refer the said Bill to the Senate for consideration.”

Hon. Senators, Standing Order No.148 requires that a Bill that originates in the National Assembly be proceeded with by the Senate in the same manner as a Bill introduced in the Senate by way of First Reading, in accordance with Standing Order No.129. I, therefore, direct that The Forest Conservation and Management Bill (National

Hon. Senators, pursuant to Standing Order Nos. 220

Mr. Speaker, Sir, I am of the view that the petitioner is not doing justice due to the fact that, in spite of the problem elaborated by my colleague, Professor- --- I think being a chairman is not a permanent employment and therefore to deny somebody a chance simply because he or she is working somewhere else--- The fact that she has worked there and has the experience, I feel it is not fair to remove her from that job of chairperson.

Mr. Speaker, Sir, whereas I sympathize and accept the Petition to the Senate, the reasons that were enumerated are going to be considered. Being a former employee of the institution is not a good reason to deny this individual the opportunity to work in this institution. In fact, it is an answer to this institution because the employee who has been there has insight on the working conditions of this institution. Being a full-time lecturer in Moi University is a plus and a big advantage for this individual.

It is like many other Kenyans who are in positions of chairperson but they are lecturers in various universities in this country. One important aspect is that this person is a lady, considering gender, we should consider and support this individual to run and clean up the mess in this institution. This is a case where both sides of the coin must be examined and this Kenyan be given an opportunity to serve.

Mr. Speaker, Sir, I would like to thank the citizen who has raised this issue. There are some regulations that are supposed to be followed by Government agencies particularly in parastatals. If it is true that if someone resigns and is appointed after three months, is it solicited or a priori? I think it is good to look at this petition and its merits.

Mr. Speaker, Sir, almost two years ago, the Government passed a law whereby nobody is allowed to sit in a board if he or she is working with another Government agency. If you are moving from a university to a parastatal, there is a provision for that by science-based institutions and also in the Ministries of Education and Health. We need to look at the merits carefully so that we do not bring disgruntlement in the systems operating with parastatals.

Mr. Speaker, Sir, let me also take this opportunity to support the Petition. As long as it has complied with constitutional provisions, that is a matter which needs to be interrogated. We are aware that the KEMRI is facing many problems including misappropriation of funds and so on. The other day, we saw the Ministry of Interior and National Coordination purporting to take the military in that area. Through this kind of petition, we might have some opening to scrutinize matters going on at the KEMRI.

Mr. Speaker, Sir, it is very difficult for one to support the decision of Jubilee. Considering the name of this lady, Dr. Lilian Osamong, it sounds that it could be a competent professional born either in Pokot or Teso. For her to have been lucky enough to get a job through a Government that knows only two tribes, we must support her to stay on that job. She has no other way of getting it.

I, therefore, wish to reluctantly persuade the House that when the Committee takes up this matter, they should allow Dr. Lilian Osamong to take the job and the Government to regularize it because that is the only way people from minority communities can benefit in this country.

Mr. Speaker, Sir, while I support the constitutional right of that petitioner to petition, I want to confirm that the lady comes from Teso. This is one of the minority communities in this country. Considering the gender, I wish to say that this is an immensely qualified person. I am not sure whether these “mwongozo” regulations have gone through the proper scrutiny and adoption by the National Assembly and the Senate. We might be subjecting some of these public servants to regulations that have not been properly dealt with. Therefore, I support the Petition because the petitioner has the constitutional right but I hope the Committee will consider the constitutional requirement of minorities in the Government.

Mr. Speaker, Sir, this is an interesting issue but at the same time, it is a very simple and straightforward matter. It does not concern what Sen. (Dr.) Khalwale has raised. It is either in conformity with the law or not. As Sen. Sang says, the regulations are there to bar or allow somebody to hold a certain position. As lawmakers, we must make sure that the law is followed and obeyed.

This is an issue that will easily be laid before the relevant Committee. It is an interesting Petition because the petitioner has clearly set out the law for the relevant Committee to determine whether any law has been breached and whether the qualified lady should continue or should not continue holding that position.

The Senate Minority Leader (Sen. Wetangula) : Mr. Speaker, Sir, I have a feeling that this Petition is incompetent to the extent that it is an assault on affirmative action on two respects. Although women are 51 per cent of the population, they suffer immense prejudices and discrimination at the hands of men. More importantly, this lady comes from a minority community. We must laud her for the success in academia to the level where she is. Like the distinguished Senator for Nandi has said, this Petition should trigger the Committee to investigate and scrutinize the legality and competence of the “mwongozo” code of governance for State corporations.

In many countries, persons who head institutions such as these must be persons in academia. This is a research-based institution. Talk of competence; how many people

they have been parliamentarians? Some of them do not have any qualifications because there are no qualifications for coming to Parliament. People who cannot even read and write have been appointed to various positions in this country. So, where you have a person like this---

The Petitioner should be lauding the very rare occasion where Jubilee has realised that there are other communities in this country. You may have noticed in the last three or four appointments; three weeks ago immediately after the Kericho by-election, seven parastatal heads were appointed and they were shared like this; four to the President’s community and three to the Deputy President’s community. A week later, another four were appointed, two from the President’s community, one from the Deputy President’s community and then they slotted one person from Sen. Yusuf Haji’s community just to colour the appointment.

Therefore, where they go out of their way to appoint from the oppressed minority, we should stand here and laud it. I urge the Committee to investigate the regulations and not the appointment of this lady.

they have been parliamentarians? Some of them do not have any qualifications because there are no qualifications for coming to Parliament. People who cannot even read and write have been appointed to various positions in this country. So, where you have a person like this---

The Petitioner should be lauding the very rare occasion where Jubilee has realised that there are other communities in this country. You may have noticed in the last three or four appointments; three weeks ago immediately after the Kericho by-election, seven parastatal heads were appointed and they were shared like this; four to the President’s community and three to the Deputy President’s community. A week later, another four were appointed, two from the President’s community, one from the Deputy President’s community and then they slotted one person from Sen. Yusuf Haji’s community just to colour the appointment.

Therefore, where they go out of their way to appoint from the oppressed minority, we should stand here and laud it. I urge the Committee to investigate the regulations and not the appointment of this lady.

Order, Sen. Wetangula. You are asking the Committee to do a job not meant for it.

On a point of order, Mr. Speaker, Sir. Is the Minority Leader in order to subvert the intention of the Petition away from its particulars? He has moved completely to another issue. The Senate Minority Leader (

Order, Sen. Billow! The purpose of these interventions is to help the Committee. Therefore, we should not be really at pains to correct each other because Sen. Sang has confirmed the matter to us. It is no longer a question of speculation. I would like us to conclude on this matter.

Mr. Speaker, Sir, I would like to congratulate the lady who has been appointed because she is a woman of substance from a minority community which has been marginalized for the last 50 years. Very few women have been beneficiaries of such appointments in the past from that community. We all know that the Jubilee Government is serious on the issue of affirmative action. Therefore, it is so unfair for us to bring

Mr. Speaker, Sir, I think the Petition is straightforward. The petitioner wants us to look at the procedure and whether it was followed or not. I think it would be wrong for the Members of this House to argue in any other manner other than the Committee to determine the constitutionality of this appointment. Whether a person is a minority or not, the question is about whether the law was followed. With regard to gender, I do not necessarily agree with the Senator for Kakamega. The name can be that but the lady could be married into those communities you have mentioned.

Order, Sen. Billow! The purpose of these interventions is to help the Committee. Therefore, we should not be really at pains to correct each other because Sen. Sang has confirmed the matter to us. It is no longer a question of speculation. I would like us to conclude on this matter.

Mr. Speaker, Sir, I would like to congratulate the lady who has been appointed because she is a woman of substance from a minority community which has been marginalized for the last 50 years. Very few women have been beneficiaries of such appointments in the past from that community. We all know that the Jubilee Government is serious on the issue of affirmative action. Therefore, it is so unfair for us to bring

Mr. Speaker, Sir, I would like to laud this petition because it gives a chance for organizations to look at regulations and the security that goes therein. Most of the processes and regulations are held within the institutions. Therefore, when institutions flout those regulations, it is difficult for outsiders to get into the nitty gritty of that process. Petitions give a fantastic opportunity to tackle such issues. I hope that this process will be replicated in the counties. With regard to personnel issues, ethnicity and nepotism is rampant in the counties. Therefore, such petitions should be encouraged because they will help us to effectively do our oversight role.

Mr. Speaker, Sir, this is a very straight forward issue because it is a matter of law. We, as a House, are mandated to ensure that there is rule of law. We will be setting a bad precedence if we receive such a petition and then reduce our arguments to the level of asking ourselves whether an appointee is from a minority community, marginalized or a woman. The question that we should be asking is whether the law was followed in her appointment. We have a good Constitution, but the problem is that we do not want to follow it. The mandate of the relevant Committee should be to inquire whether the law was followed.

Mr. Speaker, Sir, unless this appointee had been involved in mismanagement of the institution, she deserves to the appointment by the mere fact that she comes from a minority community. It is sad that the petitioner thinks that the minority community should be suppressed further. It is a good move to consider people from minority communities. There are minority communities in this country, including mine; the Sabaots, who since Independence have never been appointed as Ministers, ambassadors, chairpersons of organizations, leave alone managing directors of any parastatal yet they are qualified.

An advertisement was made recently for the post of the Managing Director of the Kenya Seed Company and it appears that the Sabaots will be sidelined yet some have applied and are qualified. The Constitution says that---

What is it, Sen. Sang?

On a point of order, Mr. Speaker, Sir. Is Sen. Ndiema in order to suggest that people from his community have never received any serious appointment like that of chairpersons to parastatals while, as a matter of fact, I know this Government has appointed three chairpersons and several directors from the Sabaot Community?

Mr. Speaker, Sir, unless this appointee had been involved in mismanagement of the institution, she deserves to the appointment by the mere fact that she comes from a minority community. It is sad that the petitioner thinks that the minority community should be suppressed further. It is a good move to consider people from minority communities. There are minority communities in this country, including mine; the Sabaots, who since Independence have never been appointed as Ministers, ambassadors, chairpersons of organizations, leave alone managing directors of any parastatal yet they are qualified.

An advertisement was made recently for the post of the Managing Director of the Kenya Seed Company and it appears that the Sabaots will be sidelined yet some have applied and are qualified. The Constitution says that---

What is it, Sen. Sang?

On a point of order, Mr. Speaker, Sir. Is Sen. Ndiema in order to suggest that people from his community have never received any serious appointment like that of chairpersons to parastatals while, as a matter of fact, I know this Government has appointed three chairpersons and several directors from the Sabaot Community?

Mr. Speaker, Sir, as I said, the recent events are in the right direction. I thank the Government for these recent appointments of people from my community. However, we are still waiting for appointments to the Cabinet, ambassadorial positions or heads of parastatals. Although I am complaining, my community is not even a minority because we are more than 500,000 in population.

Mr. Speaker, Sir, I beg to lay the following Paper on the Table of the Senate today, Tuesday, 19th April 2016.

Report of the Third Global Open Government Partnership (OGP) summit held in Mexico City, from 25th October to 1st November, 2015.

Where is the Chairperson of the Committee on National Security and Foreign Relations?

Mr. Speaker, Sir, I beg to lay the following Paper on the Table of the Senate today, Tuesday, 19th April 2016.

Report of the Third Global Open Government Partnership (OGP) summit held in Mexico City, from 25th October to 1st November, 2015.

Where is the Chairperson of the Committee on National Security and Foreign Relations?

Mr. Speaker, Sir, I beg to lay the following Paper on the Table of the Senate today, Tuesday, 19th April, 2016:-

Report of the Standing Committee on National Security and Foreign Relations on the Reports and Resolutions of the East Africa Legislative Assembly (EALA) , pursuant to Standing Order No.235.

Mr. Speaker, Sir, I beg to give notice of the following Motion:- THAT, the Senate notes the Report of the Third Global Open Government Partnership (OGP) Summit held in Mexico City from 25th October to 1st November, 2015, laid on the Table of the House today, Tuesday, 19th April, 2016.

Mr. Speaker, Sir, I beg to request for a Statement from the Chairperson of the Standing Committee on Finance, Commerce and Budget.

Order! Sen. Sen. (Prof.) Anyang'-Nyong'o, proceed.

Mr. Speaker, Sir, finally, with your permission, I would also like to seek a Statement from the Chairperson of the Standing Committee on Roads and Transportation regarding delayed public works at the Jaramogi Oginga Odinga Teaching and Referral Hospital in Kisumu County. In that Statement, the Chairperson should explain:-

Mr. Speaker, Sir, I rise pursuant to Standing Order No.45 (2) to seek a Statement from the Chairperson of the Standing Committee on National Security and Foreign Relations regarding Kenya’s participation in and commitment to the Open Government Partnership. In the Statement the Chairperson should: -

Mr. Speaker, Sir, finally, with your permission, I would also like to seek a Statement from the Chairperson of the Standing Committee on Roads and Transportation regarding delayed public works at the Jaramogi Oginga Odinga Teaching and Referral Hospital in Kisumu County. In that Statement, the Chairperson should explain:-

Mr. Speaker, Sir, I rise pursuant to Standing Order No.45 (2) to seek a Statement from the Chairperson of the Standing Committee on National Security and Foreign Relations regarding Kenya’s participation in and commitment to the Open Government Partnership. In the Statement the Chairperson should: -

Where is the Chairperson of the Committee on National Security and Foreign Relations?

Mr. Speaker, Sir, I will endeavour to issue the Statement in two weeks’ time.

Where is the Chairperson of the Committee on Roads and Transportation? This is in regard to Statement (c) .

Mr. Speaker, Sir, I request for three weeks to enable me get a proper statement responding to all the issues raised.

W hy three weeks? The senator is not asking you to complete the project.

Mr. Speaker, Sir, I am sure there will be many issues to inquire about. If I get it before then, I will notify Sen. (Prof.) Anyang'-Nyong'o and the Rules and Business Committee (RBC) .

Without any prior reason, let us attempt to issue it in two weeks’ time.

What is it, Sen. Sang?

Mr. Speaker, Sir, Sen. (Prof.) Anyang’-Nyong’o raised a serious concern and a compliant with regard to what he termed as delay in the Speaker’s Office to process his request for statements. Am I in order to request a confirmation that these were the statements that Sen. (Prof.) Anyang’-Nyong’o had sought and that the Speaker’s Office purportedly delayed? Can Sen. (Prof.) Anyang’-Nyongo confirm this?

Sen. (Prof.) Anyang’-Nyongo, did you do so?

Mr. Speaker, Sir, yes, these are the statements that I requested on 24th March, 2016, and I am happy that today, we have dispensed with them.

On a point of order, Mr. Speaker, Sir. In order to put Sen. Sang on the right track, I explained the issue to Sen. (Prof.) Anyang’-Nyong’o. The blame was not on the Speaker’s Office. The requests had been approved immediately and promptly by the Speaker but they have been lying somewhere else. Although Sen. (Prof.) Anyang’-Nyong’o had said that the delay was in the Speaker’s Office, I explained to him and I believe he accepted it. The stamp and the date of approval were clear that the Speaker had acted promptly in the approval of those statements.

It ends there, but I was equally appalled by the accusations because I was watching the proceedings. We take the statements requests seriously and we normally approve them the same day. Sometimes, we approve on the

Mr. Speaker, Sir, yes, these are the statements that I requested on 24th March, 2016, and I am happy that today, we have dispensed with them.

It ends there, but I was equally appalled by the accusations because I was watching the proceedings. We take the statements requests seriously and we normally approve them the same day. Sometimes, we approve on the

Mr. Speaker, Sir, I am officially aware because I read about it in the newspapers. The questions asked are important and valid. Therefore, I will answer them in the next two weeks.

Mr. Speaker, Sir, pursuant to Standing Order No. 45 (2) (b) , I seek a Statement from the Chairperson of the Standing Committee on National Security and Foreign Relations regarding the denial of a visa to Mr. Josephat Kimemia who is a person living with disability to travel to China.

In the Statement, the Chairperson should state whether he is aware that Mr. Josephat Kimemia who is a person living with disability and a senior officer in Nakuru County Government, was denied a visa to travel to China. The Chairperson should explain if the reasons for Mr. Kimemia being denied a visa were connected to his disability status.

The Chairperson should enumerate the steps taken by the Ministry of Foreign Affairs and International Trade to address the matter in order to ensure that in matters of international travel, persons living with disabilities are accorded equal treatment like other Kenyans.

Mr. Speaker, Sir, I am officially aware because I read about it in the newspapers. The questions asked are important and valid. Therefore, I will answer them in the next two weeks.

Mr. Speaker, Sir, pursuant to Standing Order 45 (2) (b) , I seek a Statement from the Chairperson of the Standing Committee on Education regarding the disbursement of free primary and secondary education funds for learners with disabilities. In the Statement, the Chairperson should state:-

Mr. Speaker, Sir, pursuant to Standing Order 45 (2) (b) , I seek a Statement from the Chairperson of the Standing Committee on Health regarding the death of a newborn baby girl; Stella Adhiambo Owino, born to Mrs. Elizabeth Adhiambo at Nakuru Level Five Hospital. In the Statement, the Chairperson should:-

Mr. Speaker, Sir, pursuant to Standing Order 45 (2) (b) , I seek a Statement from the Chairperson of the Standing Committee on Education regarding the disbursement of free primary and secondary education funds for learners with disabilities. In the Statement, the Chairperson should state:-

Mr. Speaker, Sir, pursuant to Standing Order 45 (2) (b) , I seek a Statement from the Chairperson of the Standing Committee on Health regarding the death of a newborn baby girl; Stella Adhiambo Owino, born to Mrs. Elizabeth Adhiambo at Nakuru Level Five Hospital. In the Statement, the Chairperson should:-

Mr. Speaker, Sir, I will attempt to give the answer within two weeks.

Mr. Speaker, Sir, I would like to thank the Vice-Chair for the long Statement that she has presented to this House. I have been a shareholder of Kenya Airways for the last 15 or so years. It is demoralizing to the shareholders that the so- called ‘Pride of Africa’ has been limping; shame on the management. For the last five or six years, we have not received any dividends. The morale of the employees is very low. I would like the Vice-Chair to tell us why Kenya Airways has sold the landing slot in Heathrow that they had for the last 20 or so years. Whereas they have sold the slot, they have leased another from KLM. Why did Kenya Airways purchase aircraft in the last

Order, Vice-Chair. Please, summarize.

Mr. Speaker, Sir, regarding the annexure, I can summarize that the management of KQ reviewed the value, cost and implications, and after consultations with the various stakeholders, they all agreed to sell the morning landing slot. The sale proceeds were shared equally with KLM. That was the best that could be done in the circumstances; the expenses were many, including parking and staff. Therefore, it was not cost-effective to keep the slot.

Appendix 1 shows the summary of audited results for the period ended 30th September, 2015. We are a few months away from the end of the financial year when we will get the proper audited results. The results show losses and what KQ has done to improve the situation.

The rest of the annexure contains an explanation as to why the London landing slot was sold and why the Boeing 787 has been subleased to Oman Air.

Mr. Speaker, Sir, I would like to thank the Vice-Chair for the long Statement that she has presented to this House. I have been a shareholder of Kenya Airways for the last 15 or so years. It is demoralizing to the shareholders that the so- called ‘Pride of Africa’ has been limping; shame on the management. For the last five or six years, we have not received any dividends. The morale of the employees is very low. I would like the Vice-Chair to tell us why Kenya Airways has sold the landing slot in Heathrow that they had for the last 20 or so years. Whereas they have sold the slot, they have leased another from KLM. Why did Kenya Airways purchase aircraft in the last

Order, Sen. (Prof.) Anyang'-Nyong'o. This is not an opportunity for a rebuttal but an opportunity for seeking clarifications.

Mr. Speaker, Sir, the first clarification I would like to seek is why has management not responded to the request that Sen. Leshore made with regard to the specific responses in detail of the resolution of this House?

Finally, with regard to outsourcing, why is it that the answer they are giving is that no new outsourcing contracts have been entered to so far? I thought the Senate recommended that the whole issue of outsourcing should be reviewed and the current

Mr. Speaker, Sir, without prejudicing the response to the questions which I have asked, which I think will come later because they are very specific and they are not answered in this particular response, let me also join my Chairman of the Committee on Finance, Commerce and Budget in saying that this a rather disappointing Statement. By the way, it is out of date. If you have been following what has been going on in the Press, particularly, Business Daily, you will realise that some of the statements made here are out of date with regard to the leasing and sale of planes. I do not think the facts put here are correct.

Again, the Vice-Chairperson has referred to the process of recapitalization. The story is told that the process started last year but there is no evidence that any recapitalization has been done. If you googled Paul J. Taubman (PJT) Partners, you will not in your right mind hire them as a transaction advisor. One of the key partners in the PJT Partners is under investigation in the judicial process in the United States of America (USA) for high corruption. I would not like that company with a one-handed yardstick to come near the Kenya Airways which is dealing with very serious problems.

Mr. Speaker, Sir,---

Order, Sen. (Prof.) Anyang'-Nyong'o. This is not an opportunity for a rebuttal but an opportunity for seeking clarifications.

Mr. Speaker, Sir, the first clarification I would like to seek is why has management not responded to the request that Sen. Leshore made with regard to the specific responses in detail of the resolution of this House?

Finally, with regard to outsourcing, why is it that the answer they are giving is that no new outsourcing contracts have been entered to so far? I thought the Senate recommended that the whole issue of outsourcing should be reviewed and the current

Mr. Speaker, Sir, I wanted to ask the question regarding shareholding. However, I want to propose this because, clearly, there are serious issues about this matter that we should interrogate as a House. Am I in order to propose that the Cabinet Secretary (CS) responsible be invited to the Senate for the whole House hearing, to explain the happenings at the Kenya Airways?

Mr. Speaker, Sir, I hope that the Vice-Chairperson is listening. Could she confirm that, indeed, the Kenya Airways is the official sponsor of the Kenya Rugby Sevens Team that won the other day? If so, could she also explain how possible it is that they could allow the same team that won to fly using Qatar Airways and lose the opportunity to brand themselves with the heroes that have made this country proud? It is completely unfortunate to sponsor a team and only end up selling the same brand to another airline.

Thank you, Mr. Speaker, Sir, for giving me this chance. I want to address the issue of our partnership with the KLM. We have been told that the management said it is being reviewed. When will this review be done? This is a statement that has been mentioned for so long yet we know that one of the main reasons why the Kenya Airways continue to lose money is because of the skewed partnership that it has with the KLM.

Mr. Speaker, Sir, I wanted to ask the question regarding shareholding. However, I want to propose this because, clearly, there are serious issues about this matter that we should interrogate as a House. Am I in order to propose that the Cabinet Secretary (CS) responsible be invited to the Senate for the whole House hearing, to explain the happenings at the Kenya Airways?

Mr. Speaker, Sir, I hope that the Vice-Chairperson is listening. Could she confirm that, indeed, the Kenya Airways is the official sponsor of the Kenya Rugby Sevens Team that won the other day? If so, could she also explain how possible it is that they could allow the same team that won to fly using Qatar Airways and lose the opportunity to brand themselves with the heroes that have made this country proud? It is completely unfortunate to sponsor a team and only end up selling the same brand to another airline.

tickets and collect revenue. However, you cannot buy a Kenya Airways ticket in Europe. You have to buy through the KLM which will then remit that revenue to the Kenya Airways after a period of their own discretion. You are also aware that in part of the agreement between the KLM and the Kenya Airways, the KLM has a veto power on the Board. If there is anything during the deliberations of the Board that they are not in agreement with, they have a very strong veto. So, it is not fair for the---

Mr. Speaker, Sir, I am also concerned about the composition of the directors of the Kenya Airways and the decision they make. Recently, they terminated a contract to expand the Airport yet the contractor had already mobilised all the resources and machinery which were on site. This will lead to a very huge loss.

On a point of order, Mr. Speaker, Sir. Is the hon. Senator in order to confuse the Kenya Airways with the Kenya Airports Authority (KAA) ?

An

Sawa! Sawa!

The House cannot act in vain. This matter is so grave and important to the nation. We have already done our bit and we want to get the assurance from the Executive that they are also doing their bit.

Sen. (Prof.) Anyang'-Nyong'o, do you have a Statement for the Senator of Murang’a County?

Mr. Speaker, Sir, the case of the Kenya Airways is very serious. This House spent a long period of time investigating this matter. As we speak, if there is any brand that has marketed this country far and wide, it is the Kenya Airways. Any acts or omissions that led to the collapse of this airline are actually economic sabotage to this country. Could the Chairperson of the Committee and through you, agree to the proposition by the distinguished Senator for Nyeri County; that matters surrounding Kenya Airways and issues to be resolved may not be adequately dealt with by the Chairperson of the Committee. We should summon the Cabinet Secretary (CS) here and interrogate him thoroughly on what the Government is doing about all matters surrounding Kenya Airways, including the implementation of the outcome of the Sen. (Prof.) Anyang-Nyong'o’s committee that made very far reaching recommendations on how to save this airline from imminent collapse that we are staring at.

Mr. Speaker, Sir, yes, I have a Statement for the Senator for Murang’a County, Sen. Kembi-Gitura. It is a response regarding the issues that he raised.

At a sitting of this House held on 1st March, 2016, the Senator for Murang’a County sought a Statement from the Chairman of the Sessional Committee on County Public Accounts and Investments, regarding the Report of the Special Committee on the proposed removal from office by impeachment of Hon. Mwangi Wa Iria, the Governor of Murang’a County.

In particular, the Senator requested the Chairperson of the Committee to address the following issues:-

An

That is correct.

Mr. Speaker, Sir, from the mandate above, it is clear that the Committee on County Public Accounts and Investments has the power to examine the audited accounts of Murang’a County Government, accordingly. Since the Committee on County Public Accounts and Investments is, pursuant to Article 229 (7) and (8) of the Constitution and Standing Order No.212 (3) (c) , mandated to examine audit reports of Murang’a County, the Committee will examine the audit reports of the period 2013/2014.

The issues raised under Allegation 2 are, therefore, issues that the Committee would consider in the examination of the Report. The Committee may deliberate and assign a timeline within which they are to consider the Report for purposes of satisfying the House when delivering the Statement.

Paragraph 219 Relating to Allegation 10 reads as follows: “Violation of Article 227 (1) of the Constitution of Kenya and Section 30 of the Public Procurement and Disposal Act, 2005, through splitting of tenders with different LPO numbers for the same contractor. For instance, proposed opening of Kahuruko- Ngatho Junction under the Department of Transport and Infrastructure was split 11 times with different LPO numbers according to the debt owing report form the CEC Finance, IT and Planning as at 14th August, 2015.

The Committee unanimously found that the allegation was not proved and not substantiated. In the event that the issue of the removal of the governor was made on the same charges arises, a motion by the county assembly for the removal of the governor on the same charge may only be introduced, as I said earlier, after expiry of three months.

All procurement issues as they exist under the Auditor-General’s 2013/2014 reports will also be examined and subsequently addressed as they exist in the report.

Mr. Speaker, Sir, let me go to allegation 11 relating to charge 1, paragraph 220, relating to allegation 10 which reads as follows:-

Contravention of Article 201 (a) (e) , the Constitution of Kenya on principles of public finance in regard to accountability, responsible finance management and clear fiscal reporting, Section 155 (5) of the Public Finance Management Act 2013, by failing to ensure that an Internal Audit Committee is established. This has exposed the county executive operations to lack of checks and balances on financial controls especially in the county treasury and lack of decentralized payment systems particularly at the departmental level.

This is evidenced by irregular practices such as opening of unauthorized bank accounts contrary to the guidelines of the Transition Authority (TA) , lack of maintaining cash books for some accounts and unsurrendered imprests, lack of adherence to the budget implementation, among other irregularities also highlighted in the Auditor- General 2013/2014 and the Controller of Budget Third Quarter Report, 2013/2014. This

public funds.

The special committee on impeachment unanimously found that although there was violation of the law, the violation did not rise to the level of gross violation and was, therefore, not substantiated. Due to the complex nature of this land purchase transaction, the committee recommends that the Public Procurement Oversight Authority (PPOA) and the Ethics and Anti Corruption Commission (EACC) investigates this matter and reports to the Senate the outcome of the investigation.That was the recommendation of the committee that looked into the impeachment issue.

Mr. Speaker, Sir, it should, therefore, be noted that the committee conclusively dealt with this matter and it was to be handled by the PPOA and the EACC.

The Committee on County Public Accounts and Investments (CPAIC) has prioritized a meeting with the Murang’a County Executive on the 27th and 28thApril, 2016 to commence proceedings on the Murang’a County audit reports by the Auditor- General for the period 2013/2014 which will conclusively envelop all the issues raised in the statement.

Thank you.

Mr. Speaker, Sir, I wish to start by thanking the Chairman and his Committee for the expeditious manner in which they have dealt with this issue which was of grave concern to me and the people of Murang’a County.

Mr. Speaker, Sir, this statement raises several important issues. I will start from where the Chairman ended because on the issue of the purchase of 34 acres of land for Kshs340 million, meaning that each acre was bought for Kshs10 million, whereas valuation was less than Kshs2 million per acre, on that specific issue alone, the Committee, chaired by Sen. Musila, found that due to the complex nature of this land purchase transaction, the Committee recommends that the PPOA and EACC investigates this matter and reports to the Senate on the outcome of the investigations. That is the importance of this matter.

The Committee dealt with and finalized the issue once and for all like Sen. (Prof.) Anyang’-Nyong’o’s Committee has found. So, this is not an issue that is going to be reopened. What I wanted to know from this committee is this: Is this Committee going to refer the issue to the relevant institutions of this country; the EACC and PPOA, to decide on whether to charge or whether or not the Kshs340 million expropriated from the people of Murang’a County will be refunded?

Mr. Speaker, Sir, in the Ninth Parliament with Sen. (Dr.) Khalwale and others, I sat in the Public Accounts Committee (PAC) and these are the most powerful watchdog committees of Parliament. I do recall that PAC did on several occasions, or at least had the power to order that the person affected be found not to be fit and proper person to hold public office. That is where we have strong public accounts committees.

I really appreciate that the Committee is going to call the Governor of Murang’a County and that it is going to be an open forum and we are going to raise these issues with him including“Shilingi kwa shilingi”, the splitting of tenders so that they do not extend beyond Kshs4 million in which case, there will be a public tender because there are many ways of skinning a cat and even avoiding the law.

That is correct.

Mr. Speaker, Sir, from the mandate above, it is clear that the Committee on County Public Accounts and Investments has the power to examine the audited accounts of Murang’a County Government, accordingly. Since the Committee on County Public Accounts and Investments is, pursuant to Article 229 (7) and (8) of the Constitution and Standing Order No.212 (3) (c) , mandated to examine audit reports of Murang’a County, the Committee will examine the audit reports of the period 2013/2014.

The issues raised under Allegation 2 are, therefore, issues that the Committee would consider in the examination of the Report. The Committee may deliberate and assign a timeline within which they are to consider the Report for purposes of satisfying the House when delivering the Statement.

Paragraph 219 Relating to Allegation 10 reads as follows: “Violation of Article 227 (1) of the Constitution of Kenya and Section 30 of the Public Procurement and Disposal Act, 2005, through splitting of tenders with different LPO numbers for the same contractor. For instance, proposed opening of Kahuruko- Ngatho Junction under the Department of Transport and Infrastructure was split 11 times with different LPO numbers according to the debt owing report form the CEC Finance, IT and Planning as at 14th August, 2015.

The Committee unanimously found that the allegation was not proved and not substantiated. In the event that the issue of the removal of the governor was made on the same charges arises, a motion by the county assembly for the removal of the governor on the same charge may only be introduced, as I said earlier, after expiry of three months.

All procurement issues as they exist under the Auditor-General’s 2013/2014 reports will also be examined and subsequently addressed as they exist in the report.

Mr. Speaker, Sir, let me go to allegation 11 relating to charge 1, paragraph 220, relating to allegation 10 which reads as follows:-

Contravention of Article 201 (a) (e) , the Constitution of Kenya on principles of public finance in regard to accountability, responsible finance management and clear fiscal reporting, Section 155 (5) of the Public Finance Management Act 2013, by failing to ensure that an Internal Audit Committee is established. This has exposed the county executive operations to lack of checks and balances on financial controls especially in the county treasury and lack of decentralized payment systems particularly at the departmental level.

This is evidenced by irregular practices such as opening of unauthorized bank accounts contrary to the guidelines of the Transition Authority (TA) , lack of maintaining cash books for some accounts and unsurrendered imprests, lack of adherence to the budget implementation, among other irregularities also highlighted in the Auditor- General 2013/2014 and the Controller of Budget Third Quarter Report, 2013/2014. This

Mr. Speaker, Sir, the conclusion by the Chair of the Committee is something that I find very unacceptable. I think it is unnecessary for the Committee to again invite the same governor to discuss the audit. The issue before this House is to invite those institutions like the EACC and others and to demand action to be taken on the recommendations that have already been made by the select committee and not to go through a whole process of trying to speak to the same Governor where the select committee of this House has already determined a wrong doing.

Mr. Speaker, Sir, why would we want to repeat the same exercise by inviting the Governor to go through the same motions again in clarifying issues that have already been clarified?

Mr. Speaker, Sir, the Musila Committee found that the governor paid for the land at the rate of Kshs10 million per acre on the strength of the valuation report. Could the Chairman, for purposes of clarity, also confirm that the valuers who gave those fake valuation reports will also be invited so that they are busted and exposed for their connivance in theft of public funds?

the same committee. I believe that the committee has the power even without going through impeachment to make strong recommendations. So, the point I am making here is that although this Committee is going to summon the governor of Murang’a County in its way forward to look at the audited report which I appreciate, I believe that the Committee must in the first instance, deal with the issues that are clear and direct like the ones that need to be referred to the EACC---

Order Sen. Kembi-Gitura! What clarification are you seeking?

Mr. Speaker, Sir, the clarification I am seeking is whether the Committee is going to follow the recommendation of Sen. Musila’s Committee and refer this issue to the relevant committee so that we, the people of Murang’a County, either get restitutive justice where this money is returned to us or what is going to happen because this is not personal money. It is money that is coming from the sweat of people and it is taxpayers’ money. The Musila Committee had made almost final findings on the way forward on this issue.

the PPOA and EACC do their work, we will definitely accept the responsibility by the Senate and summon those particular institutions to give us a progress report.

The Statement that Sen. Kembi-Gitura wanted was related to Kshs28 million and whether it was to be paid back. Indeed, when I gave my Statement, I said that the Committee has the responsibility to ensure that this is done. It is good that we sit at a conjuncture where this issue is raised in the Auditor-General’s Report on the County Government of Murang’a. Rather than do two things separately, we decided to summon the Auditor-General to give that Report and at the same time summon the Governor of Murang’a to respond to the audit queries, as we usually do. As we do that, we also pursue the matter that was raised by the Impeachment Committee, which we have said does not amount to the Senator reopening the issues, because that would not be constitutional and legal. Therefore, we shall pursue the refunding of the money and ensure that the two institutions that were given the charge by the impeachment Committee do their work.

Finally, with regard to whether or not the Governor of Murang’a can be declared unsuitable to hold office, after he appears before our Committee, I am not a lawyer and would not like to pre-judge the Governor before he appears in our Committee. Even the impeachment Committee that looked into this matter did not impeach him. My Committee has no locus standi whatsoever to re-open that issue.

Regarding the valuers and their connivance, obviously, I think that this is part of the Auditor-General’s Report. When we hear the governor, his team and the Auditor- General, these issues will arise and we will be in a position to call the valuers to answer for their sins of conniving to steal public property.

On a point of order, Mr. Speaker, Sir. You have heard the Chairperson say that his Committee has no powers to declare the governor unfit to hold public office. It is the practice in Parliament that where a select Committee has determined that a particular public officer has been involved in misappropriation or irregular procurement, it recommends that, that person is not fit to hold public office.

Therefore, his Committee has the locus standi. It is, therefore, misleading to say that the Committee has no locus standi on that matter.

On a point of order, Mr. Speaker, Sir. The point of order raised by Sen. Billow is extremely important. It will help the Chairperson of my Committee if he remembers that in the last Parliament, the Public Accounts Committee (PAC) in its Report found the then Governor of Central Bank of Kenya, Prof. Njuguna Ndung’u, and hon. Kimunya not fit to hold public office.

The Cocker Commission that was subsequently appointed by President Kibaki to look into the sale of Grand Regency Hotel agreed and recommended that the two gentlemen were not fit to hold public office. Therefore, nothing will preclude us, as a Committee, from finding that Governor Mwangi wa Iria is unfit to hold public office.

Mr. Speaker, Sir, I wish my colleagues could listen to me carefully. I said that, as of now, before the governor appears before the Committee, it will be wrong for me to say that we shall find him unfit to hold public office. How can you make judgment before you hear the accused? We have the responsibility and---

the PPOA and EACC do their work, we will definitely accept the responsibility by the Senate and summon those particular institutions to give us a progress report.

The Statement that Sen. Kembi-Gitura wanted was related to Kshs28 million and whether it was to be paid back. Indeed, when I gave my Statement, I said that the Committee has the responsibility to ensure that this is done. It is good that we sit at a conjuncture where this issue is raised in the Auditor-General’s Report on the County Government of Murang’a. Rather than do two things separately, we decided to summon the Auditor-General to give that Report and at the same time summon the Governor of Murang’a to respond to the audit queries, as we usually do. As we do that, we also pursue the matter that was raised by the Impeachment Committee, which we have said does not amount to the Senator reopening the issues, because that would not be constitutional and legal. Therefore, we shall pursue the refunding of the money and ensure that the two institutions that were given the charge by the impeachment Committee do their work.

Finally, with regard to whether or not the Governor of Murang’a can be declared unsuitable to hold office, after he appears before our Committee, I am not a lawyer and would not like to pre-judge the Governor before he appears in our Committee. Even the impeachment Committee that looked into this matter did not impeach him. My Committee has no locus standi whatsoever to re-open that issue.

Regarding the valuers and their connivance, obviously, I think that this is part of the Auditor-General’s Report. When we hear the governor, his team and the Auditor- General, these issues will arise and we will be in a position to call the valuers to answer for their sins of conniving to steal public property.

Mr. Speaker, Sir, I am a Member of the Committee and agree with my Chairman---

Sen. (Prof.) Lonyangapuo, proceed to your Statement. That matter is finished.

Mr. Speaker, Sir, I have a small and simple Statement to seek---

What is it Sen. Kembi-Gitura?

Order, Sen. (Prof.) Anyang'-Nyong'o.

Mr. Speaker, Sir, it is clear that I was the Chairperson of the Public Investment Committee (PIC) for three years and I declared people unfit to hold public office. But I cannot declare people unfit to hold public office before I listen to them. It is the rule of natural justice that they come; we listen to them and make a decision.

Order, Sen. (Prof.) Anyang'-Nyong'o. I want to agree with the Chairperson because he was clear. Sen. Billow, you cannot take us back for failing to listen or not listening carefully, seconded by Sen. (Dr.) Khalwale who was not listening as well.

Mr. Speaker, Sir, I am a Member of the Committee and agree with my Chairman---

Sen. (Prof.) Lonyangapuo, proceed to your Statement. That matter is finished.

Mr. Speaker, Sir, I have a small and simple Statement to seek---

What is it Sen. Kembi-Gitura?

So ordered. Hon. Senators, we have Statement No. (b) on the Order Paper to be issued.

Mr. Speaker, Sir, I did not know that we had finished with the Statement by Sen. (Prof.) Anyang'-Nyong'o. I thought that you would give me a right of reply. I thought Sen. (Prof.) Anyang'-Nyong'o was still on his feet and Sen. (Prof.) Lonyangapuo was raising a point of order on what--- Order, Senator. Let me make it abundantly clear that we have been on this Statement for a long time. Sen. (Prof.) Anyang'- Nyong'o responded and he is the one with the last word. The response is that this is work-in-progress. They will use the opportunity of the Report of the Auditor-General to interrogate these matters that are still pending. They will also follow the recommendations of the Committee in terms of summoning the relevant authorities - the EACC and PPOA - in order to find out. That was the initial intervention by Sen. Billow, which I thought was useful and the Chairperson took it on board. So, let this matter rest there for now. Sen. (Prof.) Lonyangapuo, proceed with your request for a statement.

Mr. Speaker, Sir, this is a request for a Statement on the affirmative action assistance to pastoralist communities.

I rise pursuant to Standing Order No.45 2 (b) to seek a Statement from the Chairperson of the Standing Committee on National Security and Foreign Relations regarding affirmative action assistance to pastoralist communities.

In the Statement, the Chairperson should:-

Pokot, Turkana, Baringo, Elgeyo-Marakwet and Samburu counties were affected by cattle rustling for many years, but for the last one year, calm and peace has been restored.

Mr. Speaker, Sir, we will respond to that Statement in two weeks’ time if that is okay with the Senator.

Order, Sen. Adan. Let me have a feel of it first. You may resume your seat, Sen. Adan. I will give you time later. Let us move on to the next statement.

I see that the Chairperson of the Committee on Lands and Natural Resources is here to respond to Sen. Mositet’s request, Statement (d). Is the Chairperson of the standing Committee on Education here to respond to the Statement (e) that was requested by Sen. (Dr.) Khalwale?

On a point of order, Mr. Speaker, Sir. Last week, the Chairperson of the Committee on Finance, Commerce and Budget wanted to issue a Statement on Thursday in response to a requisition from me concerning the funding of the Council of Governors (CoG) . However, it is not on the list. The Chairperson is here and ready with the answer. He has even given me a copy of his response. Could you kindly allow us to hear the response if time allows?

Hon. Senators, I have time and again advised that we can canvass such things without bringing them to the Plenary. We already have more than enough statements to be issued. I do not know whether the Members are around. I can see that Sen. Leshore is not here. Sen. (Prof.) Lonyangapuo who requested Statement

Mr. Speaker, Sir, the statement that was requested by Sen. (Prof.) Lonyangapuo is not ready. It has just been delivered to the Clerk of the Senate this afternoon. We will deliver it tomorrow if it will be ready. However, I am ready with the Statement that Sen. (Dr.) Khalwale requested that was scheduled for this week.

Let us deal with the other Statements the Order Paper before we come back to that Statement that was requested by Sen. (Dr.) Khalwale.

Mr. Speaker, Sir, it is unfortunate that no Member of the Committee on Education is around. However, I undertake that the response will come at the earliest opportunity possible. If this House adjourns at the end of the day as agreed, they will respond to the statement by Tuesday, next week.

Order, the Senate Deputy Majority Leader! You are not supposed to anticipate debate. I order that the Statement be availed to the House on Thursday, this week.

Given the urgency of the Statement that was sought by Sen. (Dr.) Khalwale and the Chairperson of the Committee on Finance, Commerce and Budget, Sen. Billow is ready, he may proceed on the statement concerning funding the CoG.

Mr. Speaker, Sir, a statement was sought by the Senator for Kakamega County, Sen. (Dr.) Khalwale, regarding the funding of the CoG activities. In

straight to the specific interventions that were sought by the Senator.

The first question was to explain how the CoG is funded. The CoG is funded through the National Treasury, contributions from the county governments and development partners. Pursuant to Section 37 of the Intergovernmental Relations Act, the operational expenses of the CoG shall be provided for in the annual estimates of revenue and expenditure of the national Government and that is budgeted for by the Ministry of Devolution and Planning

The second question that was sought in the Statement was to explain whether the CoG has a fund into which the county governments make a monetary contribution annually. The CoG has a contributory account to support the CoG operations, but it is not a fund. I will give the amounts as we go along.

The third question was whether the fund was established. The contributory account was established on 5th June 2014 vide the CoG resolution at a meeting held on 8th May 2014. The minutes are attached.

Mr. Speaker, Sir, I just came in. I am, therefore, not sure about the details. Allow me to, first consult Sen. (Prof.) Lonyangapuo to find out the details.

It is a simple thing. Just get your Order Paper and look at the last page. The Chairperson of the Committee on Education is not around to respond to Statement (e) .

Mr. Speaker, Sir, it is unfortunate that no Member of the Committee on Education is around. However, I undertake that the response will come at the earliest opportunity possible. If this House adjourns at the end of the day as agreed, they will respond to the statement by Tuesday, next week.

Order, the Senate Deputy Majority Leader! You are not supposed to anticipate debate. I order that the Statement be availed to the House on Thursday, this week.

Given the urgency of the Statement that was sought by Sen. (Dr.) Khalwale and the Chairperson of the Committee on Finance, Commerce and Budget, Sen. Billow is ready, he may proceed on the statement concerning funding the CoG.

Mr. Deputy Speaker, Sir, allow me to thank the Chairman. This is a very professional answer. On the face of it, it is acceptable. However, as the lawyers say, the devil is in the detail. To this extent, when you scrutinize the contribution by the Council of Governors (CoG) and what the donors have given, I do not think it was in the thinking of the drafters of the Constitution that we create an account like this; that, all of a sudden, you would find Kshs1.3 billion banked into it. When you dissect it, you find the Kshs1.3 billion is being used on all manner of things. However, I would like the Chairman to clarify just two things on those expenses:-

straight to the specific interventions that were sought by the Senator.

The first question was to explain how the CoG is funded. The CoG is funded through the National Treasury, contributions from the county governments and development partners. Pursuant to Section 37 of the Intergovernmental Relations Act, the operational expenses of the CoG shall be provided for in the annual estimates of revenue and expenditure of the national Government and that is budgeted for by the Ministry of Devolution and Planning

The second question that was sought in the Statement was to explain whether the CoG has a fund into which the county governments make a monetary contribution annually. The CoG has a contributory account to support the CoG operations, but it is not a fund. I will give the amounts as we go along.

The third question was whether the fund was established. The contributory account was established on 5th June 2014 vide the CoG resolution at a meeting held on 8th May 2014. The minutes are attached.

governors for what I call “opulence”? They are massaging their egos with big carpeted offices, toilets, among others. We must say this.

Sen. (Dr.) Khalwale, was that your statement?

Sen. Murkomen, are you on a point of order or do you want to seek a clarification?

Then wait, that is not a point of order. Proceed, Sen. (Dr.) Khalwale.

Mr. Deputy Speaker, Sir, allow me to thank the Chairman. This is a very professional answer. On the face of it, it is acceptable. However, as the lawyers say, the devil is in the detail. To this extent, when you scrutinize the contribution by the Council of Governors (CoG) and what the donors have given, I do not think it was in the thinking of the drafters of the Constitution that we create an account like this; that, all of a sudden, you would find Kshs1.3 billion banked into it. When you dissect it, you find the Kshs1.3 billion is being used on all manner of things. However, I would like the Chairman to clarify just two things on those expenses:-

Mr. Deputy Speaker, Sir, it is very important to understand the expenditures. We need to interrogate office rent, for instance. In 2013/2014 they spent Kshs41 million. What happened in 2014/2015? They went overboard to spend a whooping Kshs134 million. They spent this on office rent in Nairobi yet we passed a Motion the other day that we have county governments that do not have offices in their counties. We are looking for money to build those offices. This is double expenditure considering that they also have offices in Nairobi. We need to curb this.

In addition, there is expenditure on fuel and lubricants. Is this for the staff or do governors spend money for fuel in the counties then, again when they come to their Nairobi offices, they claim mileage allowances? We need to look into this.

Lastly, concerning capacity building; the Committee on Finance, Commerce and Budget has questioned it and asked the National Treasury to take action. It is time we stopped this.

Regarding consultancy fees; despite having staff and the so called public economic officers and advisors, they have spent Kshs8 million on consultancy fees. We need to interrogate whether this office was created to use the backdoor to have a county government office in Nairobi rather than having them in the 47 counties.

to the House the criteria for these contributions?

When you look at Nairobi County, the largest county with the largest revenue base has contributed Kshs 11million. Lamu County the smallest county that receives the least allocation of resources has contributed Kshs 15million. How do you explain enormous contributions from impoverished counties like Turkana Country that contributed Kshs 58million?

Mr. Deputy Speaker, Sir, Meru County has contributed a whooping Kshs 44million. It is the second highest after Turkana County. How do you explain Bungoma County that sent Kshs 17million and I am sure it has not been approved by the county assembly? Others like Laikipia County contributed Kshs 4million and Machakos with all its challenges contributed only Kshs 340, 000. Is the participation of Machakos County in the activities of Council of governors equal to Turkana and Meru County?

Bomet and Embu counties have contributed Kshs 28 million and Kshs29 million respectively. When you look at this, you cannot help to conclude that this could be a conduit for siphoning funds from counties. The counties that have had challenges of a legal nature have put in more money. Is this a process of paying legal fees to lawyers through the Council of Governors?

May I request the Chair that after the Chairperson has given an answer; you direct that a forensic audit on how these funds left the counties to the Council of Governors be carried out. Under what budget items are they accounted for?

Sen. Murkomen, you may seek your clarification.

governors for what I call “opulence”? They are massaging their egos with big carpeted offices, toilets, among others. We must say this.

Mr. Deputy Speaker, Sir, this Statement has revealed the fears of the Senators on how the governors have been living large and how they have been evading responsibilities.

As the other Members have said, this is what we need to interrogate clearly. When I look at the table on the expenditure - before I mention what my county has contributed for this Council of Governors - in the first year, they said they did not purchase any vehicle. However, there was an expenditure of Kshs 25million on fuel. The question is whose vehicle was fueled.

Mr. Deputy Speaker, Sir, they talk of personnel salaries and allowances. The expenditure for that vote alone is huge. We need to be told how many officers have been employed. Does it mean a staff from every county government giving a total of about 47? We need to know if there are officers seconded by every county to work in the Council of Governor’s office.

I read in the second page where they sated that the Council plays a coordinating and facilitating role amongst the 47 county governments on matters of policy, legislation and administrative functions among others. I thought the Senate is tasked with legislation.

Order Senator. I must remind you that you are seeking a clarification.

Mr. Deputy Speaker, Sir, when I find governors talking about legislative work, I wonder if they have created another Senate or assembly. They should submit their issues to the Senate through their respective Senators. The Senator represents the county and protects the interests of a county. Lastly, I am surprised that the Governor for West Pokot County which is one of the counties that was referred to as a “closed county” - not even marginalised - could afford to contribute Kshs 19million. When I look at the money and compare with the problems we have in the county, I get worried. I did not know this until today when I saw the Statement. We should know why the Auditor-General has not been able to pick an expenditure that has been misused? If this can be discovered here and now, how much more money has disappeared to other conduits that we do not know? Mr. Deputy Speaker, Sir, these are key things that we want to hear so that we know where we are heading to. The Senate Minority Leader (

funds until such time that this House will be respected in the manner in which it oversights county governments and that we can account for counties’ resources. Any Senator who will go to loiter in Meru will just be going there to confirm the worst of our fears.

Thank you. Sen. Murkomen, I know I that I am not supposed to contribute on my own Motion as the Chair. However, it is not in order to talk about Senators loitering. It is good that you should get a better word to use than that.

Mr. Deputy Speaker, Sir, can the Chairman confirm to this House whether all these payments have been budgeted for

to the House the criteria for these contributions?

When you look at Nairobi County, the largest county with the largest revenue base has contributed Kshs 11million. Lamu County the smallest county that receives the least allocation of resources has contributed Kshs 15million. How do you explain enormous contributions from impoverished counties like Turkana Country that contributed Kshs 58million?

Mr. Deputy Speaker, Sir, Meru County has contributed a whooping Kshs 44million. It is the second highest after Turkana County. How do you explain Bungoma County that sent Kshs 17million and I am sure it has not been approved by the county assembly? Others like Laikipia County contributed Kshs 4million and Machakos with all its challenges contributed only Kshs 340, 000. Is the participation of Machakos County in the activities of Council of governors equal to Turkana and Meru County?

Bomet and Embu counties have contributed Kshs 28 million and Kshs29 million respectively. When you look at this, you cannot help to conclude that this could be a conduit for siphoning funds from counties. The counties that have had challenges of a legal nature have put in more money. Is this a process of paying legal fees to lawyers through the Council of Governors?

May I request the Chair that after the Chairperson has given an answer; you direct that a forensic audit on how these funds left the counties to the Council of Governors be carried out. Under what budget items are they accounted for?

Sen. Murkomen, you may seek your clarification.

Mr. Deputy Speaker, Sir, I rise to seek clarifications, very well aware of the Intergovernmental Relations Act which makes it very clear that funds for funding the Council of Governors (CoG) and the Summit shall be contributed by the Treasury.

What legal framework informed county governments to make the contributions we are talking about here? I am asking this question knowing very well that the amount of money contributed by the 47 counties purposely for meetings, exchanging ideas and consulting is about Kshs1 billion. It is only Kshs2 million less to make it Kshs1 billion. We all know what Kshs1 billion can do. We know to what extent it could change lives.

Elgeyo-Marakwet, for example, contributed Kshs6.8 million. At least it was Kshs6 million in the first instance. I think they gave up somewhere in the middle and contributed Kshs100,000 only in the subsequent year.

However, Kshs6 million could have been used to construct a road from a place called Kipsaos to somewhere near Fluorspar. I have just come from home and I can assure you that there is neither a road from a place called Sisiya to Aror nor Wiwo to Sambalat, which are marginalised locations yet officials of my county complain that they have very little allocation to the county. Where do they get the excuse to spend Kshs6 million for that kind of expenditure?

Mr. Deputy Speaker, Sir, we were here and debated day and night about giving money to Tharaka-Nithi and Tana River counties to build offices. Where does Tharaka- Nithi get the excuse to use Kshs22 million? Tana River has given out Kshs39 million for

highest order?

We need to ask very clear questions. As Senate, for the past three years, we have been saying that there is no need for spending nearly Kshs300 million for legal fees. I am sorry because most of us here are lawyers. You and the Senate Minority Leader are senior lawyers. Sen. Mutula Kilonzo Jnr., is about to be a senior lawyer among all of us who are here. Is it not possible that the legal profession and the small coterie of lawyers are the CoGs’ lawyers?

I have seen some of them bragging about how much money they have made in the short time in their lives. Is it not possible that the money they are making is a conduit for stealing public money so that there are kickbacks going back to counties? Is there a correlation that the current CoG Chairman has the highest contribution while the former Chairman of the CoG, who is the Governor for Bomet County spent Kshs28 million through the CoG’s Forum? Is it possible that the choppers they have been hiring and parking in their homesteads are being funded through these resources?

Mr. Deputy Speaker, Sir, we want to be given a clear breakdown. If, indeed, these are the kind of expenditures to be incurred without any support of the law, people must be charged in court. They must be charged and I second what the Senate Minority Leader said. We must be shown that Elgeyo-Marakwet County Assembly allocated Kshs6 million for the Governor of Elgeyo-Marakwet to spend, or Bomet County Assembly approved Kshs28 million to be spent. From there, we can follow up the issues to find out why the Controller of Budget allowed defraying of resources through items that are not devolved functions. It is only the devolved functions which are stated in Part 4 of the Fifth Schedule that can be financed.

Lastly, I want to ask one question: When a governor is impeached or there is an attempted impeachment like that of your governor or the Governor of Embu,---

Order! You should just say the Governor of Murang’a.

Mr. Deputy Speaker, Sir, the Governor of Murang’a who, unfortunately, is your Governor and you must accept that part. There was also the attempt of impeaching the Governor of Kericho, the Governor of Makueni and the Deputy Governor of Machakos. Is it a devolved function for some counties to spend money in paying lawyers to defend public officers facing impeachment charges?

My understanding of the law is that when you are facing a criminal charge such as an impeachment or an impropriety like impeachment, it is personal. You cannot use devolved money to defend yourself.

Mr. Deputy Speaker, Sir, unfortunately, having been the Deputy Senate Majority Leader in this Senate, it is the very reason that I want to conclude that going to Meru to celebrate stealing of public funds will be the most unfortunate thing if any Senator does that.

funds until such time that this House will be respected in the manner in which it oversights county governments and that we can account for counties’ resources. Any Senator who will go to loiter in Meru will just be going there to confirm the worst of our fears.

Thank you. Sen. Murkomen, I know I that I am not supposed to contribute on my own Motion as the Chair. However, it is not in order to talk about Senators loitering. It is good that you should get a better word to use than that.

Mr. Deputy Speaker, Sir, I will be brief because I think much has been mentioned. I would like to just get a clarification on where the budgets for this money came from. There was an agreement that this money is being put into the kitty but

Mr. Deputy Speaker, Sir, maybe, the word “loitering” is too strong. I would like to replace it with traveling to Meru “with intent to do nothing”.

Mr. Deputy Speaker, Sir, I think the reason why we need to seek more clarity on this matter is that it will unravel one of the mysteries which has baffledSenators for quite a long time. The mystery is, how governors manage to find a “bypass”. We all understand that a county treasury is organised in such a way that before any funds are drawn, they are committed through a budgeting process. Any time there is expenditure, it is from a particular vote.

For a long time, we have been wondering how governors manage to get through this, likely on paper, very stringent process and ensure that they get some money off the county treasury, which we see them distributing in various harambees over the weekends. I think if we pursue this matter properly and know how they were able to draw, for example, this Kshs20 million from Kericho County, then it will lead us to a position where we can get answers. We may even get to know the other places that money has been drawn from, yet there was no budgetary allocation. It will be very important to get that clarification.

Mr. Deputy Speaker, Sir, I will be brief. The disparity of the amounts that have been deposited in this account by the various counties raises a lot of suspicion. We need clarification on whether there was an agreed uniform amount.

Secondly, is it possible that each governor is deciding on his own how much to deposit in this account? For that matter, it would be important that we are told how much was spent from each county, for example, whether I would want Trans-Nzoia County to

want to know how this money has been used becauseit could have gone to better use. Our roads are not so good, it would have put a few students to school through bursaries and so forth.

On the issue of legal fees, I believe when each county has a legal issue, it should handle it from the county level and not the CoG level. Why is it that this money is being hidden here? Or is it for a rainy day? Is it for purposes of campaigns, come 2017? This is because there is quite a substantial balance that is yet to be used.

Mr. Deputy Speaker, Sir, I do not want to repeat what my colleagues have said.

Sen. Murungi you have put your microphone far from you.

Yes, Mr. Deputy Speaker, Sir.

clear.

The budgets were through participatory processes within counties and so they have a mandate, even to the citizens of those counties in terms of how the money has been spent. This is why it is important for us to continually want to know where the money has gone to. It seems to have been diverted and gone to different places. When these budgets are given, they are given for specific socio-economic activities that need to be conducted within counties.

Secondly, Kwale County contributed Kshs27 million and I would like to know, where there was a shortfall. Can that shortfall be indicated? What suffered as a result of that money going into this kitty? Was it somebody somewhere who missed a bursary or a particular allocation? We need to know that.

Thirdly, what is the role of the county assemblies as oversight agents within counties? Could we have more clarification as to how so much money has disappeared in counties, without county assemblies even raising a finger, mentioning or talking about it?

Last is the amount that has been collected vis-à-vis what has been spent. There seems to be almost a whole proportion of 80 per cent that continuously remains in the kitty. Obviously, this county is collecting far more than it really needs to collect. What is the reason for that?

Is it probable that there might be some money that is being used specifically to gain interest for the particular counties? I think we need to tell this to the governors on their faces. No puncture will happen to the cars that will go to Meru County. We need to speak from the same forum and say it as it is so that as they say something, we tell them the alternative point of view. I think we owe it to the counties.

Mr. Deputy Speaker, Sir, I think the reason why we need to seek more clarity on this matter is that it will unravel one of the mysteries which has baffledSenators for quite a long time. The mystery is, how governors manage to find a “bypass”. We all understand that a county treasury is organised in such a way that before any funds are drawn, they are committed through a budgeting process. Any time there is expenditure, it is from a particular vote.

For a long time, we have been wondering how governors manage to get through this, likely on paper, very stringent process and ensure that they get some money off the county treasury, which we see them distributing in various harambees over the weekends. I think if we pursue this matter properly and know how they were able to draw, for example, this Kshs20 million from Kericho County, then it will lead us to a position where we can get answers. We may even get to know the other places that money has been drawn from, yet there was no budgetary allocation. It will be very important to get that clarification.

Mr. Deputy Speaker, Sir, I will be brief. The disparity of the amounts that have been deposited in this account by the various counties raises a lot of suspicion. We need clarification on whether there was an agreed uniform amount.

Secondly, is it possible that each governor is deciding on his own how much to deposit in this account? For that matter, it would be important that we are told how much was spent from each county, for example, whether I would want Trans-Nzoia County to

Mr. Deputy Speaker, Sir, having said that, I want to contribute, but unfortunately, I do not know whether you are reading me on your screen.

I am not reading you, but I have now heard you. May be your system is not working.

Sen. Murungi, go on.

Thank you, Mr. Deputy Speaker, Sir. Maybe you should recognize Sen. Adan so that she can stop interrupting me.

Yes, Mr. Deputy Speaker, Sir.

Use your microphone, I cannot hear you. Please, move to the Dispatch Box.

Mr. Deputy Speaker, Sir, let me tell Sen. (Dr.) Khalwale that despite my first term in this House, I am not that illiterate.

report to the Law Society of Kenya (LSK) to ensure that lawyers and LSK will not be used as a conduit of things of this nature.

Mr. Deputy Speaker, Sir, now I know why governors have so much money to spend. If a governor can give to the CoG Kshs60 million without approval of the county assembly, then this is a scandal. This is a decision that he just makes in the comfort of his office. He looks at the clouds and says the CoG deserves Kshs60 million even if there is a road which has not been done in the last three years. Looking at Lamu County which gets less than Kshs100 million for development, they contributed over Kshs15 million to the CoG. This is very sad.

Mr. Deputy Speaker, Sir, I am very happy that I am not in Meru. I am happy for the moment that I am not a governor although I know with this, there is a good case for all the governors to go home. I cannot find any exception. Even in instances where I find there is a reasonable contribution in relation to the others like Nairobi County which has a bigger budget, but the total amount is Kshs11 million. My problem is not about the figure or the contribution; in the first place, why the contribution was made and whether there was legal authority to make that contribution.

Mr. Speaker, Sir, at the end of the day, looking at the reaction to the requests, there is a case to ensure that the oversight of county funds is strengthened. As a Senator, I am just learning now that my county has contributed so much money. I know they have contributed to other things in a similar fraction, even for little celebrations like when there are new tractors going to the counties. There is also a contribution towards feeding people, for example, when President Obama plans to visit the county and he is unable to. At the end of the day, the Senate should be sufficiently strengthened to do oversight without fear or favour or thinking of the CORD or Jubilee. This is because the role of oversight is beyond our alliances or compliance with our political parties. This in itself shows that there is a level of impunity.

The Republic of Kenya, in its contribution to the African Union (AU) or to international organisations, has to be authorized by Parliament. The Senate Minority Leader, who is a former Cabinet Secretary for the Ministry of Foreign Affairs and the Speaker have experience in these areas. Contributions are determined on some basis. Kenya makes contributions on a basis which is pre-determined.

The Senate Minority Leader (Sen. Wetangula): In fact, an assessment is made.

Precisely. The amount of money that the counties we believe are marginalized are paying to the CoG, does not meet their description. I, therefore, commend Members who are here and are not going to Meru. I am happy with the king of Meru for taking a stand. I am in solidarity with him for not going to Meru.

Mr. Deputy Speaker, Sir, a lot has been said, but I have one or two points to contribute. My question goes to the donors because they are really particular about the usage of their money. Why are development partners acting as conduits of money siphoning by the governors? The donors should go back to the drawing board and inquire how the money is used.

The second point that has already been raised is in regard to the person who approved the allocations. We, as Senators, sit here and ask for money to be allocated to

Thank you, Mr. Deputy Speaker, Sir. Maybe you should recognize Sen. Adan so that she can stop interrupting me.

Mr. Deputy Speaker, Sir, I will not go back to what my colleagues have asked on the issue of how these contributions are determined. However much has been contributed, these are public funds and we have expenditure items. I would like to know whether the expenditures are submitted to the public procurement requirements or the money is just spent by the CoG without following the public procurement requirements, yet these are public funds.

Mr. Deputy Speaker, Sir, this is a very important day for the people of Kenya, especially those from my county. It is sad for my county which only gets about Kshs4 billion. Part of this money ends up in the pockets of the governor and contractors. Most governors have at least ten contractors whom they use as “fishing baskets.” Tana River County is one of the counties which have problems in terms of accountability. The pending bills were presented in this House recently and Tana River County was not included. The Auditor-General has also clearly stated that Tana River County has not presented its report. However, I recently read in the newspapers that Tana River County is clean and free from corruption and does not have any pending bills.

Sen. Bule, you are supposed to seek a clarification on the Statement issued by the Chairman of the Committee on Finance, Commerce and Budget and not debate.

Sen. Bule: Mr. Deputy Speaker, Sir, governors have grown horns and the Senate should stand firm. We should ensure that we dehorn these fellows. My appeal goes to the---

Sen. Bule, however angry you may feel, they are still governors and not “fellows.” Please, refer to them properly.

report to the Law Society of Kenya (LSK) to ensure that lawyers and LSK will not be used as a conduit of things of this nature.Mr. Deputy Speaker, Sir, now I know why governors have so much money to spend. If a governor can give to the CoG Kshs60 million without approval of the county assembly, then this is a scandal. This is a decision that he just makes in the comfort of his office. He looks at the clouds and says the CoG deserves Kshs60 million even if there is a road which has not been done in the last three years. Looking at Lamu County which gets less than Kshs100 million for development, they contributed over Kshs15 million to the CoG. This is very sad.Mr. Deputy Speaker, Sir, I am very happy that I am not in Meru. I am happy for the moment that I am not a governor although I know with this, there is a good case for all the governors to go home. I cannot find any exception. Even in instances where I find there is a reasonable contribution in relation to the others like Nairobi County which has a bigger budget, but the total amount is Kshs11 million. My problem is not about the figure or the contribution; in the first place, why the contribution was made and whether there was legal authority to make that contribution.Mr. Speaker, Sir, at the end of the day, looking at the reaction to the requests, there is a case to ensure that the oversight of county funds is strengthened. As a Senator, I am just learning now that my county has contributed so much money. I know they have contributed to other things in a similar fraction, even for little celebrations like when there are new tractors going to the counties. There is also a contribution towards feeding people, for example, when President Obama plans to visit the county and he is unable to. At the end of the day, the Senate should be sufficiently strengthened to do oversight without fear or favour or thinking of the CORD or Jubilee. This is because the role of oversight is beyond our alliances or compliance with our political parties. This in itself shows that there is a level of impunity.The Republic of Kenya, in its contribution to the African Union (AU) or to international organisations, has to be authorized by Parliament. The Senate Minority Leader, who is a former Cabinet Secretary for the Ministry of Foreign Affairs and the Speaker have experience in these areas. Contributions are determined on some basis. Kenya makes contributions on a basis which is pre-determined.

clarifications. If there could have been some regulations with regards to how the money was contributed, could the Chairperson seek from the CoG what assessment formula was used to assign the amount of money that was to be contributed by each county? From what we have heard, it has neither rhyme nor reason, given what we know from the counties on population, GDP or level of poverty.

Secondly, I would like to raise two questions with regard to the funds that have been utilized. I notice that in office rent, they used over Kshs41 million in the 2013/2014 Financial Year which then shot up to over Kshs134 million in 2014/2015, then it went down to Kshs62 million in 2015/2016 Financial Year. This could mean that the governors suddenly shrunk the office facilities and decided to use fewer offices in terms of rent. Was that the case?

On the issue of office maintenance and partitioning, there is shrinkage and ballooning similar to the office rent. I would like to get clear clarification from the auditor to know whether this is creative accounting or this kind of accounting reflects reality.

Mr. Deputy Speaker, Sir, the Senators have made an extremely important point that whereas we have been struggling as a Senate to increase the money that goes to the counties so that critical services like health and Early Childhood Development Education (ECDE) are financed and whereas the governors have always been chiding the national Government for not sending them money in time for them to use, when it comes to the contributions of money to this fund; they seem to have been done that rather promptly. This puts our pressure to take money to county in jeopardy at this point in time. We are not convinced by this kind of presentation that we have governors who can use money responsibly.

I would like to give an example of my county, Kisumu County, which to date has contributed Kshs27 million to this fund. I know for certain that in terms of implementing the ECDE facilities, we are behind. Therefore, the priority given to financing essential services at the county level and given the scarcity of funds that the Government has been talking about, is not evidenced or supported by this kind of expenditure. Therefore, in our communication to the Auditor-General, the Ministry of Devolution and the CoG themselves, it should be made clear that the Senate, in our oversight capacity, have made this object observation.

As Sen. Orengo said earlier, this is evidence that it is high time the governors bowed out and created room for much more responsible people to look after public funds. This is in national interest as well as in the interest of preserving devolution by the community of devolution, which includes the Senators, the county executives and the county assemblies.

That is why the devolution conference that is to start tomorrow in Meru County was misplaced in its conception. This because although we are talking about devolution to be discussed by the devolution community, only one member of that community, the governors have allocated themselves the responsibility of reviewing devolution. It is incumbent upon us, as Senators, that sometime later this year or early next year, do a comprehensive and sensible evaluation of devolution and give the nation a way forward.

In fact, an assessment is made.

What is your point of order, Sen. (Dr.) Khalwale?

On a point of order, Mr. Deputy Speaker, Sir. You can see the level of interest and the seriousness of the issues being raised. We have established a tradition in this House where when matters are weighty as these are, we normally request the Chairperson of the Committee to invite the Cabinet Secretary in charge of the line Ministry to come to the Committee of the Whole. Will I be in order to request that you consider asking the Chairperson to invite the Cabinet Secretary in charge of Devolution and National Planning as well as the Chairman of the CoG, so that they could shed light on these important matters that need clarifications?

Sen. (Dr.) Khalwale, I still have two more requests from the Floor. Let me listen to what they have to say so that we give everybody an equal chance before we give the Chairperson of the Committee an opportunity to respond. After that, we shall see whether what you are asking is a matter that can be accommodated.

unfortunate for the Senate.

How is each and every county benefiting from this allocation or contribution? Does it mean that the more a county contributes, the more it benefits or the less the contribution the more the benefit? It is important for us to know. Why do we have double allocation both from the county and the CoG?

further ahead to spent an extra Kshs1 billion, way above what should have been the expenditure.

In addition, you may also be keen to note the kind of money that has been spent on an item called photocopying and printing. It is unbelievable that they would have the audacity to spent Kshs76 million on printing and advertising. It is indicated in the audited accounts.

Owing to the fact that my colleagues have spoken about other issues; the legal fees and so on, in summary, this must be the easiest conduit that is used to fund other activities of governors, including possible siphoning of public funds.

Furthermore, for goodness sake, if you look at some of the committees the governors have formed; they have more than 19 committees with several governors sitting in them. What sitting allowances does a governor earn to sit in more than six committees? Some of them are in more than six committees as per the list that they have provided. You may remember that there was a time it was claimed that one county government had gone to the extent of opening a foreign office in a foreign country. One of the committees is on foreign affairs. So, who said that foreign affairs is a devolved function? What would the CoG be up to having a committee on foreign affairs?

Mr. Deputy Speaker, Sir, finally, we also need to get clarification from the Auditor-General. Is he under specific instructions from the CoG, that the way and format of reporting on their audit should be special from any other government institution? I say so, because deep down in the report, in one of the pages, at the beginning of it, there are two pages of the photographs of governors and some office holders. I have not seen this in any other audited report. Who told the Auditor-General that the CoG is such a special unit that he should include photographs of governors?

Many of us have said that the Auditor-General’s office is moribund. You may remember the debacle we were treated to in Kisumu when these guys painted the town literally red with their photographs, from the airport to the bedrooms of the hotel where they stayed. If this infection has gone down to the Auditor-General, then he needs to answer to this Senate why he finds it befitting to have the photographs.

Lastly, I would like to ask the Chairperson of the Committee if it is possible that the Committee on Finance, Commerce and Budget could initiate the process of coming up with a Bill to regulate the expenditure and contributions by counties to the CoG. If we had that kind of law – this is the Senate – our role pursuant to Article 96 of the Constitution is to cast oversight over funds allocated to county governments. These are such funds. So, it is very much in order for us to pass such a law to ensure that funds which are allocated to counties are used in a proper way by way of legislation which would have been passed by this House.

Thank you, Senator. We will have two more interventions only. I hope they will be brief so that we can finish.

Proceed, Sen. Okong’o. Mr. Deputy Speaker, Sir, I will be brief because most of the issues have been captured by my colleagues. First, I would like to know from the Chairperson

supposed to perform the primary role of oversight at the counties.

Secondly, I have seen items regarding development partners; monies given by donors to the tune of over Kshs7 million. I would like to get clarification why these monies were given in cash. My understanding of the civil society and development partners is that if a donor wants to assist, they capacitate whatever they want to. For instance, if it is human resource or civic education, they hold the function on your behalf. If cash was given, we need to know the criteria which were used for such money to be given to the counties.

I also agree that there is no need for us to go to Meru to face the same debacle which our colleagues faced last time.

Mr. Deputy Speaker, Sir, mine will be brief. I would like to get a clarification on how the money is incorporated in the budget of the counties. Budget making in the counties begins by public participation where people present their views on what needs to be done. After that, the executive sits down and comes up with a budget which is later interrogated by the county assembly. So, at what point do these contributions come in?

I am also wondering whether this kitty has been set aside by the governors to get funds to facilitate the next elections. This is a lot of money. In Kajiado County, for example, for the last three years, almost Kshs19 million has been spent. They have spent this money yet there is a ward called Mosiro which is in need of water. It is just the other day that we got a single borehole in a ward with almost 10,000 people. It is a very dry area. I believe that with the Kshs19 million, we could have sunk another six boreholes to solve the water problem.

Mr. Deputy Speaker, Sir, it would also be good to know how the Controller of Budget allowed the withdrawal of that money. I believe that before they are allowed to have that money, they make a request through the Controller of Budget. Therefore, how does she allow that to happen?

Thank you, Senators. It has been a long session of clarifications. Sen. Billow, are you able to do all that now? If “yes,” bear in mind the point of order that was raised by Sen. (Dr.) Khalwale. Let us find the way forward.

Mr. Deputy Speaker, Sir, I thank all the Members who sought clarifications. In fact, there is no Member who did not seek a clarification. This is an important matter because it is about accountability and how public funds have been used. Before I go on to specific questions - from the mood of the House and what the Members have asked - I propose that we organise a Kamukunji for all the Senators and invite the Controller of Budget, the Auditor-General, the Chairman of the CoG and the Cabinet Secretary of the National Treasury. Although these are county functions, the Cabinet Secretary for National Treasury may be invited nonetheless.

They will explain issues relating to these funds. The reasons are very clear. They are as follows: The mandate of the CoG is clearly set out in law. The basis for their funding is also provided for in legislation. In fact, the Transition to Devolved Governments Act is clear that the CoG is a national Government entity. That is why it is

approved annual estimates by the National Treasury. It is Kshs265 million. Therefore, it is important to convene the meeting. I will liaise with the Speaker’s Office and that of the Clerk to organise for a meeting at the earliest opportunity.

Secondly, Mr. Deputy Speaker, Sir, I agree with the proposals that have been made. We get the Auditor-General to do forensic audit, particularly in regard to the payments of over Kshs200million for legal fees, among others. It is interesting to note that the Auditor-General in the reports of 2013/2014 and the 2014/2015 gave a clean bill. The Auditor-General said that he is satisfied with the financial report and the state of affairs of the institution. Therefore, it is essential that we demand a forensic audit on the legal fees and other payments that we think represent some sort of slush fund.

Thirdly, there is possibility of surcharging officers in the county governments. It is apparent that the county governments’ allocations to the CoG are not legal. The functions for which the county government funds are to be spent are provided for under Schedule Four of the Constitution. It does not include funding a national government entity for which the National Treasury is mandated in law to finance.

Mr. Deputy Speaker, Sir, this is why the allocation varies from one county to another. It is discretional and one county agrees to pay, but the other refuses. This year one county may pay and declines the following year. Therefore, it is arbitrary. There is no provision in law. If it were lawful, every county would be mandated to pay the amounts. The amounts have been set through the minutes of the CoG. In the first year, they decided on Kshs15 million. In the second year, it was over Kshs20 million. Although they did not attach the minutes, I know others will pay and some will decline.

Since there is no legal provision that the county governments provide funding to an entity for which there is funding from the national Government, it is an illegality. Therefore, there is room for surcharging some of the officers.

Mr. Deputy Speaker, Sir, fourthly, it is appropriate to warn the county assemblies. I know that these monies have been provided for in the county budgets. The county assemblies have approved those budgets. When we visited the County Assembly of Embu, we were told that there was a time they delayed the approval of the budget because they wanted the amount to be removed from the budget. Therefore, the county assemblies need to know that approving such a fund within their budgets to be paid to the CoG is an illegality. They must decline to approve any funds to the CoG. The institution is funded by the national Government and is provided for in law.

Lastly, I suggest that the Senate writes to the Ethics and Anti-Corruption Commission (EACC) to investigate some of the payments and transactions relating to these. They have been claiming they hired aircrafts and may have used these monies for other illegalities. We know there is a possibility of irregular transactions that have been conducted by the Council.

Mr. Deputy Speaker, Sir, those are the five general points that I propose. It is also surprising that donors and, in particular, the United Nations Development Programme (UNDP) can give nearly Kshs60 million to an entity that is funded. The UNDP understands the challenges of poverty, water and health in our communities in this country. It is surprising that many other institutions are funding.

and the World Vision gave Kshs5 million. It is surprising that some of these institutions can go ahead and do this before checking that the institution is getting a lot of funding. The Kshs 1.3 billion in three years is about Kshs40 million a month. Therefore, for an institution whose role is simply to provide coordination and facilitative role for the counties, to spend Kshs40 million monthly is waste of money.

Sen. Billow, you have made a good proposal which is acceptable and can be expanded to summoning all the relevant persons to appear before the committee and the Senators in a Kamukunji to answer the raised questions. Do you want to deal with them individually or you want it to be dealt in a Kamukunji? However, you have given a good preamble and a proposal.

Mr. Deputy Speaker, Sir, it is not exactly that way. I have no intention of going through each of them, but I just need any item that may not have been captured in the five points that I have mentioned.

There are many issues that were raised. The Senators wanted an in-depth clarification from the persons that you have mentioned. Since you have come up with the proposal yourself - which Sen. (Dr.) Khalwale had raised in a point of order - that will be the correct way forward.

Mr. Deputy Speaker, Sir, that will be the right way to go. We will get all those specific sets of questions from the HANSARD and our committee will prepare that. First, we will then invite the Auditor-General and then the Controller of Budget, the Cabinet Secretary for the national Treasury and the CoG. After that, we will then take necessary actions.

In the meantime, we need to also invite the EACC to examine that account as a matter of urgency because there are claims that the money could have been used as a slush fund to finance some of the governors. At the same time, we could act on other issues that I have mentioned. We could suggest that they conduct special forensic audit in that meeting. Therefore, I agree on the way forward.

Very well, Sen. Billow. The issue has been very well articulated and ventilated. It is my view that it is a matter that we must pursue so that we get the answers because my take from the Senators’ contribution is that they are acting pursuant to the powers under Article 96 of the Constitution; to protect the interests of the counties and county governments. So, this is very important and it is good that it has gone that way.

Sen. Billow, it will depend very much on you on how fast you can move the process to have the relevant persons or officers and the CoG come before the Senate to answer all those very pertinent questions that have been raised. I will order that the HANSARD be made available to your committee as soon as possible because you will need it to summon or invite all these persons to come before us. They must be made aware of the several issues and questions that have been raised. They must also deal with them to the satisfaction of your committee and this Senate. That is so ordered.

Next Order!

On a point of order, Mr. Deputy Speaker, Sir. You intent that we move on to the next Order, but the Speaker, before he left, had agreed that Statement (d) will be issued.

Could I have a copy of the Order Paper?

(The Clerk-at-the-Table handed a copy of the Order Paper to the Deputy Speaker(Sen. Kembi-Gitura)) Are you the one to issue the statement?

Yes. I can see Sen. Mositet is here. Are you ready to give the statement?

Yes, Mr. Deputy Speaker, Sir. Okay, that will be the last statement. Mr. Deputy Speaker, Sir, I will try to be very brief.

supposed to perform the primary role of oversight at the counties.

Secondly, I have seen items regarding development partners; monies given by donors to the tune of over Kshs7 million. I would like to get clarification why these monies were given in cash. My understanding of the civil society and development partners is that if a donor wants to assist, they capacitate whatever they want to. For instance, if it is human resource or civic education, they hold the function on your behalf. If cash was given, we need to know the criteria which were used for such money to be given to the counties.

I also agree that there is no need for us to go to Meru to face the same debacle which our colleagues faced last time.

Mr. Deputy Speaker, Sir, mine will be brief. I would like to get a clarification on how the money is incorporated in the budget of the counties. Budget making in the counties begins by public participation where people present their views on what needs to be done. After that, the executive sits down and comes up with a budget which is later interrogated by the county assembly. So, at what point do these contributions come in?

I am also wondering whether this kitty has been set aside by the governors to get funds to facilitate the next elections. This is a lot of money. In Kajiado County, for example, for the last three years, almost Kshs19 million has been spent. They have spent this money yet there is a ward called Mosiro which is in need of water. It is just the other day that we got a single borehole in a ward with almost 10,000 people. It is a very dry area. I believe that with the Kshs19 million, we could have sunk another six boreholes to solve the water problem.

Mr. Deputy Speaker, Sir, it would also be good to know how the Controller of Budget allowed the withdrawal of that money. I believe that before they are allowed to have that money, they make a request through the Controller of Budget. Therefore, how does she allow that to happen?

Thank you, Senators. It has been a long session of clarifications. Sen. Billow, are you able to do all that now? If “yes,” bear in mind the point of order that was raised by Sen. (Dr.) Khalwale. Let us find the way forward.

Mr. Deputy Speaker, Sir, I thank all the Members who sought clarifications. In fact, there is no Member who did not seek a clarification. This is an important matter because it is about accountability and how public funds have been used. Before I go on to specific questions - from the mood of the House and what the Members have asked - I propose that we organise a Kamukunji for all the Senators and invite the Controller of Budget, the Auditor-General, the Chairman of the CoG and the Cabinet Secretary of the National Treasury. Although these are county functions, the Cabinet Secretary for National Treasury may be invited nonetheless.

They will explain issues relating to these funds. The reasons are very clear. They are as follows: The mandate of the CoG is clearly set out in law. The basis for their funding is also provided for in legislation. In fact, the Transition to Devolved Governments Act is clear that the CoG is a national Government entity. That is why it is

approved annual estimates by the National Treasury. It is Kshs265 million. Therefore, it is important to convene the meeting. I will liaise with the Speaker’s Office and that of the Clerk to organise for a meeting at the earliest opportunity.

Secondly, Mr. Deputy Speaker, Sir, I agree with the proposals that have been made. We get the Auditor-General to do forensic audit, particularly in regard to the payments of over Kshs200million for legal fees, among others. It is interesting to note that the Auditor-General in the reports of 2013/2014 and the 2014/2015 gave a clean bill. The Auditor-General said that he is satisfied with the financial report and the state of affairs of the institution. Therefore, it is essential that we demand a forensic audit on the legal fees and other payments that we think represent some sort of slush fund.

Thirdly, there is possibility of surcharging officers in the county governments. It is apparent that the county governments’ allocations to the CoG are not legal. The functions for which the county government funds are to be spent are provided for under Schedule Four of the Constitution. It does not include funding a national government entity for which the National Treasury is mandated in law to finance.

Mr. Deputy Speaker, Sir, this is why the allocation varies from one county to another. It is discretional and one county agrees to pay, but the other refuses. This year one county may pay and declines the following year. Therefore, it is arbitrary. There is no provision in law. If it were lawful, every county would be mandated to pay the amounts. The amounts have been set through the minutes of the CoG. In the first year, they decided on Kshs15 million. In the second year, it was over Kshs20 million. Although they did not attach the minutes, I know others will pay and some will decline.

Since there is no legal provision that the county governments provide funding to an entity for which there is funding from the national Government, it is an illegality. Therefore, there is room for surcharging some of the officers.

Mr. Deputy Speaker, Sir, fourthly, it is appropriate to warn the county assemblies. I know that these monies have been provided for in the county budgets. The county assemblies have approved those budgets. When we visited the County Assembly of Embu, we were told that there was a time they delayed the approval of the budget because they wanted the amount to be removed from the budget. Therefore, the county assemblies need to know that approving such a fund within their budgets to be paid to the CoG is an illegality. They must decline to approve any funds to the CoG. The institution is funded by the national Government and is provided for in law.

Lastly, I suggest that the Senate writes to the Ethics and Anti-Corruption Commission (EACC) to investigate some of the payments and transactions relating to these. They have been claiming they hired aircrafts and may have used these monies for other illegalities. We know there is a possibility of irregular transactions that have been conducted by the Council.

Mr. Deputy Speaker, Sir, those are the five general points that I propose. It is also surprising that donors and, in particular, the United Nations Development Programme (UNDP) can give nearly Kshs60 million to an entity that is funded. The UNDP understands the challenges of poverty, water and health in our communities in this country. It is surprising that many other institutions are funding.

and the World Vision gave Kshs5 million. It is surprising that some of these institutions can go ahead and do this before checking that the institution is getting a lot of funding. The Kshs 1.3 billion in three years is about Kshs40 million a month. Therefore, for an institution whose role is simply to provide coordination and facilitative role for the counties, to spend Kshs40 million monthly is waste of money.

Sen. Billow, you have made a good proposal which is acceptable and can be expanded to summoning all the relevant persons to appear before the committee and the Senators in a Kamukunji to answer the raised questions. Do you want to deal with them individually or you want it to be dealt in a Kamukunji? However, you have given a good preamble and a proposal.

Mr. Deputy Speaker, Sir, it is not exactly that way. I have no intention of going through each of them, but I just need any item that may not have been captured in the five points that I have mentioned.

There are many issues that were raised. The Senators wanted an in-depth clarification from the persons that you have mentioned. Since you have come up with the proposal yourself - which Sen. (Dr.) Khalwale had raised in a point of order - that will be the correct way forward.

Mr. Deputy Speaker, Sir, that will be the right way to go. We will get all those specific sets of questions from the HANSARD and our committee will prepare that. First, we will then invite the Auditor-General and then the Controller of Budget, the Cabinet Secretary for the national Treasury and the CoG. After that, we will then take necessary actions.

In the meantime, we need to also invite the EACC to examine that account as a matter of urgency because there are claims that the money could have been used as a slush fund to finance some of the governors. At the same time, we could act on other issues that I have mentioned. We could suggest that they conduct special forensic audit in that meeting. Therefore, I agree on the way forward.

Very well, Sen. Billow. The issue has been very well articulated and ventilated. It is my view that it is a matter that we must pursue so that we get the answers because my take from the Senators’ contribution is that they are acting pursuant to the powers under Article 96 of the Constitution; to protect the interests of the counties and county governments. So, this is very important and it is good that it has gone that way.

Sen. Billow, it will depend very much on you on how fast you can move the process to have the relevant persons or officers and the CoG come before the Senate to answer all those very pertinent questions that have been raised. I will order that the HANSARD be made available to your committee as soon as possible because you will need it to summon or invite all these persons to come before us. They must be made aware of the several issues and questions that have been raised. They must also deal with them to the satisfaction of your committee and this Senate. That is so ordered.

Next Order!

On a point of order, Mr. Deputy Speaker, Sir. You intent that we move on to the next Order, but the Speaker, before he left, had agreed that Statement (d) will be issued.

Could I have a copy of the Order Paper?

(The Clerk-at-the-Table handed a copy of the Order Paper to the Deputy Speaker(Sen. Kembi-Gitura)) Are you the one to issue the statement?

Yes. I can see Sen. Mositet is here. Are you ready to give the statement?

Yes, Mr. Deputy Speaker, Sir. Okay, that will be the last statement. Mr. Deputy Speaker, Sir, I will try to be very brief.

by the community who turned hostile after the incident and went on a rampage spearing one elephant and injuring others.

Mr. Deputy Speaker, Sir, regarding the status of compensation, the two cases have been confirmed by the KWS staff. In accordance with Section 25(1) of the Wildlife Act of 2013, the next of kin for the two cases were facilitated with compensation forms which they filled and submitted to Kajiado County Wildlife Conservation and Compensation Committee. The Committee sat on 24th February, 2016, and recommended payment of Kshs5 million for Mr. Saitoti Santamo Oleku as required by law. The Committee will hopefully sit at its next meeting to consider compensation for young John Ntompo Ntoipo Nchaiyo.

Regarding measures taken by the KWS, I want to confirm that the KWS has taken a number of measures to deal with the danger posed by wildlife to people in that particular area. Both aerial and ground elephant drives have been conducted. The ground patrols are conducted both in the morning and evening. The KWS also set up a temporary camp at Masimba and Merrueshi areas in February this year to ensure swift action in service delivery.

There is also the intention to undertake translocation of problematic species of animals believed to be causing many conflicts. Further, the procurement and fixing of carnivore and elephant collars to aid in the animal surveillance and monitoring is also being undertaken. Furthermore, there has been strengthening of the ranger force in the area in order to undertake early morning and night patrols within the areas as most conflicts are experienced during that time.

Kajiado County is now headed by a senior KWS officer, whose job description includes handling human-wildlife conflicts and participating in community barazas to create awareness among the communities on what should be done or not pertaining to wildlife.

Lastly, in addition, KWS has developed and is maintaining a database of conflicts. This has enabled the Service to map out areas with high conflict rates which allows for strategic decision making like translocating problematic animals from an eco- system whose carrying capacity is exceeded, to suitable ones with less of such species.

Thank you very much, Senator. Sen. Mositet, do you want to seek a clarification?

Mr. Deputy Speaker, Sir, I also thank the Chairperson for trying to answer the few questions that I had asked. First of all, you heard the representative of the Chairperson say that the three year old child was trampled on by elephants on 6th March, 2016 and Mr. Oleku was also killed on 1st February, 2016. He then stated that the Committee which is mandated to look at the compensation sat on 24th February, 2016. I really doubt whether by 24th February, 2016, the child was still alive. So, I do not know how the child’s compensation had been picked up by the Committee. That is something that I want the representative of the Chairperson to clarify.

You heard that Mr. Saitoti Santamu Oleku was killed while guarding his water pan. That is very sad. That is the pan that his family, the neighbourhood and their animals depend on. While guarding the water pan, the elephants came, trampled on Mr. Saitoti

Yes, Mr. Deputy Speaker, Sir. Oaky. You only have one minute.

Thank you, Mr. Deputy Speaker, Sir. I also stand to support this report. As we have discussed, the allocations are quite clear. There are very few changes for equitable sharing that has increased. That is good because it means more equitability within the counties. Poverty has reduced which should be as a result of counties having improved from equitable share last time.

members from various stakeholder communities have been incorporated in the discussion. Over time, they have been able to impact into the formula and we have been able to look into the experiences from other communities and bring this on board to ensure that county optimization takes place. This will lead to stable and predictable allocation of revenue within the counties and that development, both economic and social, is possible within these counties.

Mr. Deputy Speaker, Sir, moving forward, other factors such as infrastructure and urbanization might need to be put into consideration so that we make this formula more robust.

Thank you and I beg to support. There is no more interest.

There being no more interests, could I request that we defer the voting on this particular Motion to a later time when we have quorum in the House?

We defer voting or the putting of the question?

Mr. Deputy Speaker, Sir, we defer putting of the question and subsequent voting to when we have requisite number in the House.

Thank you. Very well, the putting of the question is deferred to tomorrow, Wednesday, 20th April, 2016 at 2.30 p.m. so that we can be done with the business.

by the KWS, for example, to organize separate water pans for the people and separate ones for the animals, these are commitments which were made and various answers have been given in this statement which the Senators challenged. What we intend to do is to request the KWS Director and his staff to come to our meeting. We will raise the various concerns which the Senator has raised and deal with the statement you have talked about, including aerial and ground elephant drives. We have been told from the ground that they are not undertaking any such drives. What is the actual position on the ground?

In fact, information given to us has been challenged by the Senator. That is why it is important to get the people, tell them what the Senators said, tell them what the feelings on the ground are and tell them about the procurement of collars, for example, which the Senator has challenged and let us understand what is going on in the ground. Is what they say in the statement they have given us what exists on the ground? That is what we intend to do.

Mr. Deputy Speaker, Sir, the issue of human-wildlife conflict has arisen and the Sen. (Dr.) Zani has raised that issue as well. We know that this is something occurring all over the country where we have conservancies or reserves. We had discussions with the KWS on this matter and they have given undertakings of the various measures they intend to put in place in conjunction with the local communities in those areas. Whether that will work to the satisfaction of everybody is one question, but I know that arrangements have been made to reduce the conflicts between humans and wild animals.

Thank you very much, Sen. Obure. That is the end of statements.

Next order! Hon. Senators, I request you to stay in so that we can finish the business of the day for the few minutes.

Mr. Deputy Speaker, Sir, I rise to support this Motion that the Senate adopts the report of the Standing Committee on Finance, Commerce and Budget on the second basis for equitable sharing of revenue among the county governments which was laid on the Table of the House on Wednesday, 30th March, 2016.

Mr. Deputy Speaker, Sir, this matter has been thoroughly discussed in various fora and recommendations made by the Commission of Revenue Allocation (CRA) which has been accepted by the Committee on Finance, Commerce and Budget. To me, this is a very good formula for us to use in the next three years. Population had been given recognition of 25 per cent. All the counties will equally share 26 per cent. Poverty in terms of affirmative action which should also be read together with the development factor is going to uplift the areas which have been previously considered as marginalized and it takes care of them. Also, expansive areas like Marsabit land area at 8 per cent, is also a very good consideration.

Mr. Deputy Speaker, Sir, the most important is fiscal responsibility. Many counties are not able to make sufficient budgetary arrangements and are not able to put in place proper accounting mechanisms. Giving them 2 per cent for capacity building is a wise consideration.

Without wasting much time, I would like to support the report of the Committee on Finance, Commerce and Budget on the second basis for equitable sharing of revenue among county governments.

Thank you.

Thank you, Senator. Sen. (Dr.) Zani, you wanted to contribute to this debate?

Yes, Mr. Deputy Speaker, Sir. Oaky. You only have one minute.

Thank you, Mr. Deputy Speaker, Sir. I also stand to support this report. As we have discussed, the allocations are quite clear. There are very few changes for equitable sharing that has increased. That is good because it means more equitability within the counties. Poverty has reduced which should be as a result of counties having improved from equitable share last time.

members from various stakeholder communities have been incorporated in the discussion. Over time, they have been able to impact into the formula and we have been able to look into the experiences from other communities and bring this on board to ensure that county optimization takes place. This will lead to stable and predictable allocation of revenue within the counties and that development, both economic and social, is possible within these counties.

Mr. Deputy Speaker, Sir, moving forward, other factors such as infrastructure and urbanization might need to be put into consideration so that we make this formula more robust.

Thank you and I beg to support. There is no more interest.

There being no more interests, could I request that we defer the voting on this particular Motion to a later time when we have quorum in the House?

We defer voting or the putting of the question?

Mr. Deputy Speaker, Sir, we defer putting of the question and subsequent voting to when we have requisite number in the House.

Thank you. Very well, the putting of the question is deferred to tomorrow, Wednesday, 20th April, 2016 at 2.30 p.m. so that we can be done with the business.