Tuesday, 27th October, 2015

Mr. Speaker, Sir, I beg to lay the following Paper on the Table of the Senate today, Tuesday, 27th October, 2015. The Bi-Annual Report on Alcohol and Drug Abuse from the National Authority for Campaign against Alcohol and Drug Abuse (NACADA)

Hon. Members, because of the number of Statements listed on the Order Paper, if you are not here the first time, we will drop that Statement. Let us begin with Statement “a” as listed on the Order Paper.

Mr. Speaker, Sir, I have the Statement requested by Sen. Dullo to include specific information on the suspension of radiotherapy treatment at the Kenyatta National Hospital (KNH) .

Order, Sen. Kittony. We are dealing with Statement “b”.

Mr. Speaker, Sir, the Statement is ready, but the signature of the Cabinet Secretary has not been appended. He was out of office. We shall issue the Statement tomorrow.

Sen. Khaniri, your Statement will come up tomorrow. It is so ordered, there is not much you can do.

Let us have the Statement listed as 2 (c) to be answered by the Committee on National Security and Foreign Relations.

Mr. Speaker, Sir, I apologise. Let me proceed and respond to the Statement.

Mr. Speaker, Sir, I want to thank the Chairman for this response, though you will appreciate that this was an urgent matter but it has taken the Ministry more than two months to respond. In the Statement given by the Chairman, I want to seek a number of clarifications. One, on the incident in Mosoriot, the Chairman has indicated that the Government is aware that on the night of 12th and 13th August, 2015 three suspects were apprehended by members of the public. He goes on to tell us that they were booked in a police station but they escaped. We are talking about a police station with more than ten police officers. How possible is it that suspects are able to escape from a police cell, whatever time of the night when we know that the security around a police station is provided 24hrs, seven days a week? Can he clarify how the suspects escaped from police custody in a police station that is supposed to be manned 24 hours in a day? Secondly, if you have a situation where suspects are apprehended by members of the public, then you have police officers being unable to explain how the suspects escaped---

Order, Sen. Sang. This is clarification time.

Mr. Speaker, Sir, the second clarification on that particular one is, even with the opening of the inquiry file, has any of the police officers who are responsible for the manning of the police station on that particular night been forced to step aside? Have they been interdicted? Secondly, the Chairman has indicated that on 15th September, 2015 about 400 boda boda riders armed with crude weapons rode from Eldoret towards Nandi. It is shocking for the Chairman to imagine that anybody can believe that there were 400 boda boda riders with crude weapons, riding from Langas to Eldoret, all the way to Kapsabet. This incident of indiscriminate shooting happened in Kapsabet. How possible is it that security officers would have allowed these 400 boda boda riders, carrying crude weapons, to ride from Eldoret all the way to Kapsabet, which is approximately 40 kilometres away? Is it not possible that they would have been intercepted in Eldoret or anywhere before they got to Kapsabet? Finally, the Chairman says that the two children aged eight and one were injured by stray bullets. The families of these two children went to Kapsabet Police Station. Is the Chairman aware that at Kapsabet Police Station they were denied the P3 forms and they had to go all the way to Nandi Hills to report the incident and be given these forms? These are the same police officers who were responsible for the shooting. The last one on this; what is the Government doing to ensure that these police officers, both in Mosoriot and in Kapsabet who do not abide by the code of regulations of the force are met with the rightful force of the law, by ensuring that they are interdicted so that we can have confidence between members of the public and the police being enhanced?

Chair, you can now respond.

Mr. Speaker, Sir, it is not strange for people who have been arrested to escape from police stations. Kamiti Maximum Prison has one of the highest security alert systems. However, sometimes you hear that prisoners have escaped. Secondly, according to the Statement, an inquiry file has been opened. When it is concluded and they are found guilty of letting prisoners run away, they will be dealt with. There was also the issue of the 400 boda boda riders who were travelling from Nandi to Langas. Even during weddings, so many bike riders operate freely, unless they are suspected of an intention to commit a crime. Therefore, one police officer on the road cannot do much. That is why a big number of police officers were sent to stop them from causing any havoc. With regard to the P3 form, I am not aware. This is a totally new question. However, I will find out from the CS why these people have been refused P3 forms where the offence was committed. I will, therefore, answer him at an appropriate time.

Mr. Speaker, Sir, this is about the Statement on the Suspension of the Radiotherapy Treatment at the Kenyatta National Hospital. It was requested by Sen. Dullo Adan and she wanted the specific information as follows; May I have your indulgence? Sen. Dullo Adan requested me to give her time to read the Statement first. She pleaded with me to present it tomorrow. Would I be in order to do so?

Mr. Speaker, Sir, I have not seen the Statement---

Order, Senators! Both of you cannot be standing at the same time.

Mr. Speaker, Sir, I have not seen the Statement. That is why I requested her to do it tomorrow after I have gone through it and interrogated it.

What do you mean? How did you request for something if you are not aware of its existence?

Mr. Speaker, Sir, I have not seen the response.

You must have seen it. It is only that you have not read it.

Mr. Speaker, Sir, I have not seen it.

Order, Members. I have had an occasion to state and I want to restate that those kind of administrative issues can be canvassed with the Chairpersons of Committees instead of being done at the plenary. So you can do it tomorrow afternoon.

Most obliged, Mr. Speaker, Sir.

In any event, the Vice Chairperson was trying to issue that Statement. It is only that, that was not the Statement for that particular moment. So, you had enough time to approach the Chair and tell me what you had agreed on. Let us proceed.

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

Order, Senator. We know yours is pending. However, we have to go through the list. Sen. Khaniri, I hope you have taken note that he rose on a point of order when it was supposed to be a Statement. Vice Chairperson for the Standing Committee on Health, can you respond on part (g) ?

Mr. Speaker, Sir, the Senator who requested for the second Statement is not present.

Order, Sen. Kittony! You should go as per the Order Paper. It has an appendix. We are on page 765 under item (2) (g) .

Mr. Speaker, Sir, that Statement has not reached us. So, I have no information. I will find out and bring you the answer tomorrow.

Mr. Speaker, Sir, I am taken aback when the Chairperson says that the Statement has not reached her. It is on record that this Statement was requested about three months ago. Is she in order? I requested for this Statement in June.

Vice Chairperson, why has the Statement delayed?

Mr. Speaker, Sir, that Statement has not come to us. I promise to table it tomorrow.

Table it tomorrow afternoon, including the reasons for delay.

Most obliged, Mr. Speaker, Sir.

On parts (h) and (i) , I do not see the respective Members. So, it will be given in a week’s time. So, we go back to 2 (a) . Where is the Vice Chairperson for the Standing Committee on Land and Natural Resources?

Mr. Speaker, Sir, after we sent the second reminder to the Cabinet Secretary (CS) for Lands, Housing and Urban Development, we received a Statement which I got just an hour ago. Sen. Kembi-Gitura had asked five substantive questions in the Statement. However, question one and two are not properly answered. It is unsatisfactory. I do not want to deliver this kind of answer to the House. The answer is a bit rude, particularly to this House. In the first question, the Senator wanted---

Order, Sen. Khaniri! You said you have an answer that you are not comfortable with.

Yes, Mr. Speaker, Sir.

So, why are you splitting it? Why would you want to answer one and not the other? You either answer in totality or answer none.

Mr. Speaker, Sir, I want to seek your guidance on this matter. We directed the Statement to the Ministry of Lands, Housing and Urban Development. The CS has

How many parts did the Statement have?

Mr. Speaker, Sir, it had five parts. Three have been answered.

You will be advised appropriately.

Mr. Speaker, Sir, I have also seen the answer this afternoon. When we were Assistant Ministers, we were often given the role of answering Questions in Parliament. We were not allowed to answer Questions we did not know how to. For example, you could not say; “refer to (a) above” when answering a different part of a Question. This is rude. I have never seen anything like this. Why did he answer parts 3, 4 and 5? He could have sent us to get all the answers from the Nairobi County. It is unsatisfactory and an insult to the Senate. I agree with Sen. Khaniri that the matter should go back to the CS for a proper answer. If they have the answers for the three parts, then they must be having answers to part one and two.

It is so ordered. Let the CS be directed to respond to all parts of the Statement. Can we get the response within a week? The job is easier now. There are only two parts remaining.

Yes, Mr. Speaker, Sir. In fact, I have already instructed the Clerk to do so. We will write and request for the answers. We will give the progress report in a week’s time.

We are about to complete that particular order. Could we get a request?

Mr. Speaker, Sir, I want to request the following Statement, if I could refer to it; “by private notice” because the matter is very urgent. Recently, there was banditry attack at Kithiorone near Kaongoka-Mpiyo-Kabashi location, Amwathi ward, Meru County. Five locals lost their lives, over 800 head of cattle were stolen and property of unknown value was destroyed by bandits from Isiolo County.

Order, Senators! In fact, I will save you from more than just consultations. It is out of order to stand in between a Member and the Chair when the Member is on the Floor.

Mr. Speaker, Sir, I request for an urgent Statement from the Chairperson of the Standing Committee on Security and Foreign Relations clarifying the following issues;

Order, Senator. Could you seek your Statement and stop prosecuting the issues?

Mr. Speaker, Sir, when will the Government fix civil beacons to mark the existing boundary between Meru and Isiolo County as it is specified in the Districts and Provinces Act of 1992 because that is the cause of all the insecurity on that border? Thank you.

Sen. Hassan, make a very brief intervention because the Statement is not yours.

On a point of order, Mr. Speaker, Sir. Just to add to that, what measures is the Government taking to ensure that the boundaries issue does not degenerate into inter-tribal or inter-ethnic conflicts because I can feel the tone of the distinguished Senator?

Mr. Speaker, Sir, first and foremost, I want to send my condolences to the bereaved families and all those who might have lost their livestock. Secondly, this Statement, ideally, should be given on Wednesday next week. That is one week from now.

It is so directed. The Statement will be issued in one week’s time. Order, Members, that is the end of that particular Order. Before we proceed, I have a communication and a petition. Let me dispose of the communication first.

Hon. Senators, I would like to acknowledge the presence, in the Speaker’s Gallery this afternoon, of visiting county assembly staff from Lamu County. The County Assembly staff is here on a one week attachment programme. They will be attached to the Directorate of Committee Services, the Directorate of Legislative and Procedural Service and the Directorate of Information and Research Services. I request each one of them to stand when called out so that they may be acknowledged in our great Senate tradition.

Mr. Speaker, Sir, I wish to join you in welcoming the delegation from Lamu County because I am their neighbour. I welcome them to the Senate and hope that they will learn something during their stay here. I wish them best of luck when they go back home.

Bw. Spika, naungana nawe kuwatakia ndugu zetu kutoka Lamu ambapo kitovu chao na cha Mombasa kimeshikana kabisa kwa undugu. Ninawatakia wakati mwema katika Seneti. Natumai watakuwa washikadau wakubwa katika mstari wa mbele kutetea ugatuzi kwa kuondoa watu wetu katika hali ya dhulma kwa sababu Lamu ni mojawapo ya kaunti ambazo zimedhirika na kudhulumiwa kwa miaka mingi. Wana fursa, kupitia ugatuzi, kuhakikisha kuwa wamerekebisha yote ili yaambatane na matarajio ya watu wao. Karibuni! Mungu awape wakati mwema katika ziara yenu katika Seneti ya Kenya.

Hon. Senators, I have a Petition to the Senate by the Nandi County Civil Society Network and the Nandi County Chamber of Commerce and Industry concerning alleged corruption and wastage of public funds by the Nandi County Government.

Mr. Speaker, Sir, I thank the two patriotic groups from Nandi County; the Nandi County Chamber of Commerce and the Nandi County Civil Society Network for their vigilance. Although the responsibility of oversight on what is happening in counties is vested in the county assemblies, and to some extent the Senate, it is absolutely important that members of public participate in this oversight exercise. They should be vigilant because we want devolution to work. We will not entrust this job to the county assemblies alone. When they see things like the ones they have observed, it is important that they bring it to the Floor of this House. The issues raised are very grave because they involve corruption, mismanagement of public funds and abuse of office. Mr. Speaker, Sir, we ask that you refer this matter to the relevant Committees as required by our Standing Orders so that they can expedite the investigations and unearth the truth. If this is happening, it has to be stopped. I support.

Members will not talk for more than two minutes.

Thank you, Mr. Speaker, Sir. I will definitely not talk for more than two minutes. Following the footsteps of my dear neighbour, Sen. Khaniri of Vihiga County, the many requests coming to the Senate through petitions will demonstrate to the nation the faith that the people of Kenya have in this House to put devolution on its right course. Secondly, in most county governments, what comes out clearly is that the structures of devolution have not been fully put in place. If I was to do a survey, I would find that few counties have established village councils so as to be accountable to wananchi up to the village level. Mr. Speaker, Sir, if they have not done this, the people feel divorced or alienated from the county government, hence the many petitions. We welcome this Petition and I hope we shall look at it expeditiously. Thank you.

Mr. Speaker, Sir, I join hands with my colleagues in acknowledging the faith Kenyans have in the Senate. This shows that we are developing our democracy in a manner that is robust and meets the threshold that the people of Kenya want oversight to be discharged. In the Petition, the investigations sought are extremely broad in nature without specificity. They are asking for investigations into corruption, abuse of office and wastage of public resources. That is like an audit of the entire office of a county. In petitions, is it not in order to be specific from what I have seen in the petitions from Kisumu, Wajir and Mandera counties, where it pointed to particular areas of abuse of office and wastage of public funds? My appeal is that we need to be more specific in such petitions.

For your information, there is an attachment from the petitioners. We have only summarised the details to the attachment.

Mr. Speaker, Sir, I join in congratulating the patriotic Kenyans who have brought this Petition. You will note that, recently, we have been receiving a lot of petitions to the Senate to look into issues of misappropriation of funds in counties. Misappropriation of funds in counties is so rampant. I dare say that I know of no county that is not misappropriating funds. This is an indictment on the part of the Auditor-General because he is not doing his job properly and that is why wananchi have to resort to petitions on misappropriation because he is sleeping on the job. Mr. Speaker, Sir, may I appeal to the Auditor-General to cause offices to be opened in all counties and audit our counties so that devolution may succeed. Thank you.

Thank you, Mr. Speaker, Sir. I also thank those citizens from Nandi County for finding it fit to petition the Senate. I encourage all citizens in all counties to follow this example. There are counties where mismanagement is occurring, resources are being misused and the public do not know where to seek assistance. Sometimes they blame the Senators individually and collectively for not doing much yet they have not brought the facts to the Senate. I encourage them to follow suit and have confidence in the Senate that can deliver.

Mr. Speaker, Sir, I thank the two groups from Nandi County for bringing this issue to the attention of the Senate because they are serious matters. Devolution is about prudent use of resources but if there is corruption, wastage of public funds and abuse of office, then it affects devolution negatively because we may not succeed when money is channeled to

Mr. Speaker, Sir, like my other colleagues, I congratulate these two organizations for taking up the matter with the Senate. Some of our counties are facing serious challenges. Last weekend, I visited one of the water projects that have been allocated over Kshs.5million only to find nothing. Therefore, there is reason to believe that there is need for us to support our residents in our counties in addressing these issues. I support.

Thank you, Mr. Speaker, Sir. My concern here is that all the county governments have problems. The day they will know that we are capable of dealing with their protests, they will bombard this place with a lot of petitions. My question is whether we have the personnel to deal with this matter other than what I see when we go to the Committee. They just come and present themselves with those against the system putting their case and inviting those defending. Mr. Speaker, Sir, we are doing a great job where we are capable of taking a serious decision that will be taken as a deterrent to others or we just talk and receive petitions. Thank you.

Mr. Speaker, Sir, I wish to thank the National Chamber of Commerce of Nandi and the civil society for bringing this Petition to us. We indeed encourage all Kenyans to be doing that. This shows that the systems at the county level are not working. These are some of the things that ought to be settled at the county level; by the county assembly or the county governments. Therefore, there is realization that the Senate is the fall back position, which is good realization for the place of this Senate in the well-being of this country.

Your time is up! Sen. Murungi.

Mr. Speaker, Sir, first, I would like to encourage my brother, Senator number one, not to be so pessimistic about the work of the Senate. Many petitions have been brought to my Committee and we have done a thorough job. We have invited all the people involved and we have made very good recommendations, some of which have been acted on by the Government. For example, the Task Force on Tea has been gazetted by the Minister. This means that we are achieving something. Mr. Speaker, Sir, let me say that it is our duty as the Senate to encourage public participation in all the functions of the Senate. Under Article 118 (1) (b) of the Constitution, one of the functions of the Senate is oversight and, therefore, it is our duty to involve members of the public and the civil society. We might not have the capacity to be in every corner of this country but when we get petitions like this, we should encourage petitioners to communicate with us.

Your time is up, Senator. Sen. Karaba!

Mr. Speaker, Sir, I also want to join other Members of the Senate in appreciating Nandi County. Nandi County is setting the pace and I would like other counties to emulate them. There are many counties suffering from the same problem but it is only that for fear of the unknown, they are not able to come out forthright to tell us what is ailing the counties. The problems are immense. Let us congratulate Nandi County and ask other counties to wake up.

Mr. Speaker, Sir, I want to join my colleagues in supporting and encouraging the groups from Nandi who have raised the Petition to the Senate. This Petition is very important because it touches on very pertinent issues like corruption and wastage of funds in the county. It is our job to oversight and when an issue like this comes to the House, it is our duty to make sure that we look at it critically and take corrective measures. Other counties should follow suit. We are having many problems and the country is facing a cash crunch. Therefore, issues of corruption and wastage of funds should be taken seriously by this House and we should come out and pronounce ourselves.

Mr. Speaker, Sir, as I join my colleagues in supporting the Petition, what comes to mind as I listen to the Petition and knowing that there have been several petitions including from my own county, Kiambu, regarding wastage of funds, I think it is time for us not to wait for a crime or misappropriation to occur then we lament or complain at the end. We should take pro-active actions. This House formed a Committee to look into the aspects of the Constitution which require to be amended to strengthen the Senate. One of the main aspects is that we lack pro- active powers to stop the pilferage and the wastage before it occurs. As a House, we should recommend to the relevant Committee of this House to engage the Committee that was formed to look into the aspects that can be reviewed and include powers to stop this theft or pilferage before it happens so that we can play our role according to Article 96 of the Constitution.

The numbers seem to be increasing but I want to close. Finally, Sen. Keter and then Sen. Kembi-Gitura!

Mr. Speaker, Sir, from the onset, I want to thank those Kenyans from Nandi County for being bold enough and having confidence in this Senate. Those issues highlighted are not only in Nandi but across most counties. It is only strong people like those ones of Nandi who can save our counties. I want to encourage all people to be bold enough so that they can highlight issues affecting them. I want to assure the people that the issues that have been raised will be dealt with accordingly so that the people of Nandi can get what they deserve. Therefore, I support the Petition.

Mr. Speaker, Sir, listening to you reading that Petition on behalf of the people of Nandi, I read frustration on their part and the fact that they know their rights but they are frustrated because either the county assembly is not playing its oversight role properly as per Article 185 of the Constitution or there is no public participation at all in Nandi County. My thinking is that it is time the Senate decided to take up a pro-active role and to see whether we can work out and have outreach programmes because what is lacking with our people is the knowledge about the actual role of the Senate. I am very happy to see the people of Nandi appreciate the role of the Senate.

Your time is up, Senator.

Thank you very much, Mr. Speaker, Sir, although you gave me less than two minutes which you had promised everybody else.

Sen. Kembi-Gitura, I absolutely have no reason to discriminate against you. You sit here often and know how this thing counts time. Order, Senators! Subject to Standing Order No.227) (1) , the Petition stands committed to the relevant Standing Committee which is the Committee on Legal Affairs and Human Rights.

I, therefore, direct that we move to Order No.11. I am also directing that, tomorrow, you will dedicate all your time. We will take the roll call seriously. In the morning we will deal with the impeachment and in the afternoon we will dispose all business for the Committee of the Whole and for any votes that have to be taken. Tomorrow, failure by any Senator will lead to dire consequences from the Chair.

Mr. Speaker, Sir, I had pressed the button for the Bill, not as a point of order.

Sorry; for Order No.11?

Yes, Mr. Speaker, Sir.

Okay, hold your horses for now. Proceed, Sen. Adan, then Sen. (Prof.) Anyang’-Nyong’o.

Mr. Speaker, Sir, on Thursday last week, I was asked by the House to report on when the Cabinet Secretary for Interior and Coordination of National Government can appear before it to respond to some of the issues that are pending. I wish to confirm to the House that I had a meeting with him yesterday. We went through all the issues that are pending before the House. I asked them to look at the HANSARD. He has told me to inform the House that on Thursday he will give a definite date when he will appear before the Senate.

Thursday you will report back. What is it, Sen. Musila? I know this matter is very close to your heart.

Yes, Mr. Speaker, Sir. However, I just want the Vice Chairperson to clarify if the Cabinet Secretary will come on Thursday or did she say she will tell us? If it is on Thursday, I will not be around.

Sen. Adan, if I understood you; you met the Cabinet Secretary yesterday arising from last Thursday’s request by Members, and he gave you a firm undertaking on which date he will appear before the House. So, he will not appear on Thursday, but we hold you responsible. The rest are details. We hold you responsible and not the Cabinet Secretary; you will inform this House, as you have done today on the date the Cabinet Secretary will come to the House, preferably, at the earliest time possible next week. Proceed, Sen. Adan. Just confirm.

Mr. Speaker, Sir, let me confirm that I will do that on Thursday. I wish to inform---

Order, Senator! You will do what?

Mr. Speaker, Sir, let me confirm to Sen. Musila that one of the issues we discussed with the Cabinet Secretary yesterday concerns his. I hope and believe that when he appears before us, he will give us a definite solution to the issues affecting Sen. Musila’s County.

Order, Senator! You are exceeding your brief which is: Is the Cabinet Secretary appearing on Thursday or the following week, a date to be determined and which you will communicate on Thursday this week?

Mr. Speaker, Sir, I will confirm on Thursday when he will appear before the House.

Mr. Speaker, Sir, I was waiting to speak on the next Order; on the Bill, not now.

Order, Members! I appreciate the enthusiasm. So, let us go to Order No.11.

Mr. Speaker, Sir, thank you, for the opportunity. I rise to support the Office of the County-Attorney Bill, (Senate Bill No. 37 of 2014) . The Committee on Legal Affairs and Human Rights, through Sen. Wako, has conducted public hearings on this Bill. It has been received with a lot of enthusiasm at the governors’ level, the county assembly level and other organs of the county. Mr. Speaker, Sir, in drafting the County Governments Act, there appears to have been a lacuna in Section 43 which suggests that the counties can seek the assistance of the Attorney- General when they require legal services. The only problem with Section 43 is that it is discretionary. Therefore, the county governments have taken advantage, obviously not in the right way, in hiring private legal counsels. I am not ashamed to say that there is a battery of lawyers who are making a killing out of county governments. It is also in the public domain - and is being investigated by the Senate County Public Accounts and Investments Committee - that all counties have or are contributing Kshs18 million to a kitty of the Council of Governors ostensibly to hire lawyers who would defend these counties. That turns out to be a lot of billions of shillings which counties, in my view, have been exploited in order to get legal representation. Mr. Speaker, Sir, this is the answer to the plunder of resources for hiring lawyers when they do not need to do so. We are aware that the only county in this Republic that has a Bill on Legal Counsel is Bomet County. As a result, it has managed to save a lot of legal resources by hiring external lawyers.

Madam Temporary Speaker, I rise to support this Bill; the Office of the County Attorney Bill, 2014, brought to this House by the Committee on Legal Affairs and Human Rights. This Bill is extremely important as, indeed, my dear friend, Sen. Mutula Kilonzo Jnr., has been saying. It will not only serve to reduce the temptation by county governments and assemblies to outsource legal work to private practitioners who bleed counties of substantial resources, it will also domesticate legal work within the county executive and county assemblies, to such an extent that there will be a depository of legal practice in counties that will provide continuity in dealing with cases within counties and between counties and other institutions. We know quite often that the speakers of county assemblies as well as county governors, need legal advice specific to issues arising in the county. When they pay for such services from private legal practitioners, there is a delay in time because these legal practitioners do not know the internal workings of the counties which are not necessarily legal, but quite often are loaded with political overtones. An inside counsel or lawyer to the workings of the county government and assembly will be in a better position to understand the political goings on and undertones which supersede legal resolutions. Therefore, the Senate is taking an extremely important step to ensure that the current gridlock in counties in dealing with legal problems is overcome, by developing an internal capacity for legal work within counties. This Bill, therefore, is very important in terms of capacity building in counties. If we had had this institution in counties, the slow motion in establishing proper structures and institutions in counties would not have occurred. Previously in the House today, I pointed out that there are extremely very few counties which have fully established the requisite structure within counties.

Order, Senators! This is a debating Chamber. If you have to consult, do it in low tones

Thank you, Madam Temporary Speaker. I was competing against vendors of ideas rather than listening to the great speech that I am giving.

Order, Sen. (Prof.) Anyang'-Nyong'o. You are now spoiling a very good debate--- I had already saved you and the House was quiet. Withdraw that statement of vendors of ideas. These are hon. Senators who are just consulting.

Madam Temporary Speaker, I withdraw that statement and apologise.

Okay, proceed.

Madam Temporary Speaker, let me take you to Clause 13 of the Bill which I think is very important, but I would like to plead to the Committee on Legal Affairs and Human Rights to amend. It deals with the power of the governor to remove the county attorney from office. I would like to read this clause because it is an extremely important clause for the attention of lawyers like Sen. Sang, Sen. Mutula Kilonzo Jnr. and Sen. Hassan who sit in that Committee. The clause says:-

“The governor may, with the approval of the county assembly, remove the County Attorney from office only for:-

- “The governor may, with the approval of the county assembly, remove the County Attorney from office only for:-

Senators, kindly allow the Senator for Mombasa to conclude his contribution. Please, proceed, Sen. Hassan.

Madam Temporary Speaker, thank you for the intervention. As I conclude, I reiterate a point that was raised by other Senators before me; that this is a flagship legislative where the Senate intends to avoid or mitigate the massive legal cost that counties are incurring. I have seen counties give briefs to lawyers on payment of up to Kshs15 million or Kshs20 million on very basic issues that can be done even by an intern. I have seen certain county governors

Thank you, Madam Temporary Speaker, for allowing me to contribute to this important Bill, which seeks to set the counties on a proper footing, particularly legislative wise. The role of the county attorney is very important; there has been a vacuum in that we have county governments right now which have got no legal minds to advise them. County assemblies and the county executive require advice. No wonder for the few years that we have been having devolution, we have seen many situations where things have not been done in an accountable manner; that we can in all cases, defend as being legal. The coming into place of a county attorney is timely and I do fully support. The other area in the county assembly that I feel should be considered is the issue of accountability. The audit results we are getting are that in some counties, the audit reports and the statements do not conform to international standards. This means that the persons employed to do accounting in counties are not professional accountants. In some cases, counties have not been able to legislate as fast as we would wish them to do, and effectively as they should, because they lack legal minds to assist them in drafting Bills and also in advising. Right now, there are many cases, conflicts and stalemates, between county assemblies and the executive especially on budget issues. In my county, for instance, there is a budget stalemate.

I imagine that if there was a county attorney in the county, he would have been in a better position to advise the assembly and the executive on how to settle that conflict; because each side is arguing that they are on a legal right. The county assembly thinks that they are the ones to decide the budget; while on the other hand, the executive thinks that they are the ones who have the final say on the budget. The coming into place of the county attorney will be of great use to counties. Counties are incurring a lot of costs, engaging consultants in almost every field; planners, political advisers, lands surveyors and so on, yet, some of them could be housed in-house in the counties. A lot of funds have been used to hire lawyers to defend the simplest of cases. The worrying part of it is that counties are signing contracts committing counties to colossal sums of

Madam Temporary Speaker, I rise to contribute to this very important Bill, The Office of The Attorney Bill, 2014. The Bill seeks to establish offices for the attorney in the counties. This is long overdue. We should have started this maybe in 2013 when we set pace for devolution, because we are aware of the challenges that county governments have been going through. The capacity of legislation in some counties is wanting. Therefore, the introduction of the office of the county attorney will support county assemblies in drafting and legislating their laws. When we have good laws in place, that is the only way that the Senate would oversight because our main mandate is to oversight counties and see to it that they have good laws in place in order to manage their financial affairs. This Bill, therefore, seeks to replicate the duties of the Office of the Attorney-General to counties in view of decentralised governance. I, therefore, support it. However, I will add that it should be an independent office because if governors are the ones who will appoint the attorneys, then, it means that the attorneys will be answerable to the governors and will have to sing the governors’ music. If we want to help counties, let the office be independent so that the county attorney can represent the county without being intimidated. The Bill also outlines ethical values and principles, something which is very important. As we are aware, there is a lot happening. Sometimes when you go to court, you will not find fairness in the judgments delivered. Therefore, if ethical values and principles are adhered to, I think, we will be moving in the right direction to try and improve the quality of legislation and drafting of laws in counties. In the past, we have seen governors coming with lawyers they have hired when they appear before a committee of the Senate and that is costly. If we have the office of the attorney in the counties, we will cut out on huge costs which governors incur while hiring the attorneys. Sometimes, they pay very huge amounts for legal fees which cannot be justified. Once we have

Thank you, Senator. I now call upon the Mover of this Bill to reply. Could you move to the Dispatch Box?

Madam Temporary Speaker, I profusely thank Senators who have very ably contributed to this important Bill. We had the Vice Chairman, Sen. Sang, Sen. (Prof.) Lonyangapuo, Sen. (Dr.) Khalwale, the number one Senator – the oldest Senator who is still in this House – Sen. G.G. Kariuki, who made a very effective contribution on the matter which lasted more than 15 minutes up to the time we adjourned and he still had ideas to go but he could not to do so, Sen. Mutula Kilonzo Jnr., Sen. (Prof.) Anyang'-Nyong'o, Sen. Hassan, Sen. Ndiema and our own, Sen. Nabwala. They have all made very important contributions on this Bill. They have all reminded us that this Bill will reduce the cost of legal services. Madam Temporary Speaker, when we did our first case, we wanted certain lawyers to represent us. However, because we were getting money from the public coffers, it had to go through procurement process and the amount was limited. We ended up having one advocate only against governors who, because they have a kitty where they have put a lot of money for legal counsel, hired a number of senior counsel, senior advocates and so on. We won because the law was on our side. However, I believe that the amount of money that must have been spent on that case was more than Kshs100 million. That was just on legal costs. There are also costs of entering into investment agreements, costs of contract and so on. Therefore, that will save a lot of money for county governments to devote to the welfare and wellbeing of the people of the counties. Madam Temporary Speaker, a number of ideas have been mooted. One of them revolves around the issue of security of tenure for the county attorney. There have been those who believe that the county attorney should have security of tenure that outlasts the governor. I believe Sen. Ndiema is one of them. We also have those, like Sen. (Prof.) Lonyangapuo, who believe that the county attorney should go with governor. If the governor can appoint him or her, then, the governor can still reappoint them. Therefore, there are conflicting ideas. However, the spirit behind the County Attorney’s Bill was to line the provisions of the Attorney-General at the national level with the county attorney. At the national level, the Attorney-General is appointed by the President. He is a Member of the Cabinet and goes with the President. As opposed to the previous situation under which I served, in the old Constitution, the Attorney-General had security of tenure. I managed to serve as the Attorney-General for 21 years only. I left when we got the new Constitution. We have conflicting ideas but I feel that we should align the appointments with the national Government where the county attorney will come in with the governor and go with the governor. We can improve a bit on the issue of who to appoint. However, we must realise that the President, just like the governor also elected by the

Sen. Wako, you are aware that this Bill affects counties and we do not have the numbers in the House. I expect you to put a request.

Thank you, Madam Temporary Speaker, for reminding me. Sometimes you forget when you are standing. The faithful Members of this Senate are only five. If we have to vote, the three of us who are elected can lead our delegations. Sen. Mugo and Sen. Omondi can be nominated to lead the delegation of Nairobi and Kakamega counties respectively. I move under Standing Order No. 54 (3) that we defer putting of the question of voting on this matter to the following day.

You put the request but the decision on when to put the question lies with the Chair. Proceed to put your request.

Madam Temporary Speaker, I ask that putting of the question be deferred to the following day pursuant to Standing Order No.54 (3) or any other day that the Chair may deem fit but definitely not today.

Very well, you have communicated your request and we are going to defer putting the question to the next sitting, tomorrow at 2.30p.m.

Madam Temporary Speaker, much obliged.

Before we proceed, I still want it to be on record of the Senate that this trend of ending up with an empty Senate when we are discussing matters affecting counties which are very weighty that we have an obligation to debate, is very disturbing. The leadership of this Senate, especially the Whips, the Majority and Minority leaders should do something about it. It is disturbing. Next Order!

Madam Temporary Speaker, I beg to move that the Kenya National Examinations Council (Amendment) Bill (Senate Bill No.7 of 2015) be read a Second Time. This is a matter that has lasted for long. Parliament has addressed itself to it severally but, unfortunately, we appear not to have come to a solution to the problem. Madam, Temporary Speaker, without tiring the House, allow me to give a short history of this matter. On 3rd November, 2004, Parliament, then the National Assembly passed the following Motion:-

“THAT, noting the with concern that students who have sat for the Kenya Certificate of Secondary Education (KCSE) continue to be denied their certificates on account of school fees balances; aware that the bursaries allocated to schools are inadequate to cater for all the needy students; conscious that academic testimonials are statutory requirements for career and job opportunities; appreciating that schools require adequate funds to meet the cost of their maintenance; this House recommends that all certificates held by schools on account of fees balances be released forthwith; that no more certificates shall be withheld by schools on account of fees balances in future; that the Ministry finds ways and means of compensating the affected schools.” Madam Temporary Speaker, this was on 3rd November, 2004. I am very happy that some of the people in this House were present when we passed that Motion. I appreciate that Sen. Mugo was, in fact, the Assistant Minister for Education and my good friend, the Senator for Kirinyaga, Sen. Karaba, was the Chairperson of the Committee on Education. Madam Temporary Speaker, following the passage of that Motion, the Government dragged its feet in implementing it to the extent that in 2007, three years later, and after persuading the Government privately and officially, I decided to take the Government to court to release certificates of my constituents which had been held for over 10 years. I am glad that I hired Sen. Mutula Kilonzo Jnr. as a lawyer. He prosecuted the case in court as a petition. In addition, in the same year, I presented a petition addressed to none other than His Excellency President Mwai Kibaki, signed by Members of the National Assembly; petitioning on behalf of the students whose certificates had been held. I would like to emphasize that we did this because we have seen students suffering, finishing their examinations and not getting their

Thank you, Madam Temporary Speaker. I rise to support this amendment. Allow me to congratulate Sen. Musila, who we have walked with through this journey since 2004. Allow me also to revisit its history because I remember it very well. We had filed a court case. However, the then President Mwai Kibaki was clever enough at that time to issue an order waiving all rates for students and somehow stole the thunder from Sen. Musila and the matter that we were fighting with the Attorney-General was spent. Madam Temporary Speaker, I have this experience because I have attempted to get certificates for various students in Makueni County using this law. The only reason principals and head teachers do not budge is because they get this strength to resist this law from their unions and they allege that the students owe money. I have grappled with this thing even in my capacity as a Senator, but have wondered and continued wondering. Every weekend we have harambees for schools and harambees of this nature or the other. Every weekend and every week, Members of Parliament are giving through Constituency Development Fund (CDF) cheques for building this or the other. What I am so much against is what is called “brick and mortar” sought of investment which does not help this country. Madam Temporary Speaker, the reason is because it does not make logical sense to spend so much money building libraries, schools, and yet when these people who you want to get into these classrooms are through with their education, they cannot get their certificates because they are poor. We must change the narrative. This is the narrative that a child who is 17 or 18 years old and the time that they are in Form Four, does not have an earning capacity. So, when you deny that child the certificate because the parent who is unlike me or the rest of the Senators here, cannot raise money in order to get their certificate, and then we advocate for rights of children, a contradictory position, a fallacy, a nation of hypocrisy and pretense. The national Government has waived the fees for examination yet after you waive that fees, that student will not get the certificate. The certificates remain in cartons for many years. Madam Temporary Speaker, I have similar examples. At the time that we filed the petition in 2004 - that is why I think Sen. Musila is passionate about this - the number of students in Makueni and Kitui at that time was 350,000 who had withheld certificates. At that time, the Ministry of Education gave us the statistics. The chances are that the number is either the same or it has increased. The owners of these certificates also do not have an opportunity of obtaining an Identification Card (ID) , a leaving certificate, a job and et cetera. The tragedy that continues to befall this nation is something that ought to be discussed as a matter of national importance. Students in university can borrow through the Higher Education Loans Board (HELB) . Some Members of Parliament - even some seated here - have not finished paying their loans for university. I recall distinctly that there was a move by HELB suggesting that Members of

Madam Temporary Speaker, from the outset, I thank Sen. Musila and congratulate him because he has from time to time revisited this issue without tiring. It is true that I was in Parliament when the Acts were passed and I was the Assistant Minister for Basic Education then. I support this amendment unreservedly and say that nobody has a right to deny children the right to education. The whole reason for education is not the end. The end is for those children to finish their education and get their certificates. Those who have an opportunity to pursue higher education and get employment should be facilitated. Madam Temporary Speaker, this cannot happen if their certificates are not released to them because they have to prove to institutions of higher education and employers their performance. I do not think there is anyone even in the Ministry of Education, Science and Technology who is not in agreement with that. Sen. Musila knows that I strongly supported this Act and that the Government and the Ministry wrote to all head teachers directing them to release all the certificates. I say it here without any fear of contradiction that the Government is fully in support of this issue. I want to put the whole blame on the teachers and the unions. As Sen. Mutula Kilonzo Jnr., has said, if the Government gives a direction, it should be adhered to. Again, they are supported by the unions to defy those directions. I want to very much support this amendment that proposes the establishment of a tribunal, or a body that will look into this issue very deeply. I also support the fact that this tribunal be given teeth so that it can even prosecute the teachers who do not adhere to directions given by the Government. This tribunal must have powers similar to those of a court of law. Madam Temporary Speaker, most of the time, the children who are denied these certificates come from homes which are not very well to do. They are the ones who really need help the most. The whole purpose of free primary education, and subsidized education in secondary, is that everybody can get an equal chance of accessing education and improving their

Thank you very much, Madam Temporary Speaker, for giving me this chance to contribute in support of the Bill which is on the Floor of the House. I thank my friend, Sen. Musila, for consistently finding time and not losing patience in pursuit of what we will call “the necessary step”. This is the right thing in the right direction. As the Chairman of the Committee on Education, I have pushed for clauses which I believe will be of use and could be used in the education sector in Kenya where nobody will exploit the other one. Madam Temporary Speaker, when the Bill was tabled, I was the only one who opposed it. Later on, we agreed with the Senator on modalities of how to approach such issues. By then, I had come from school and I knew what heads were saying. I had come from a headship position and I knew what it meant to release certificates. However, with time, I have realised that it is necessary to change the tune and think about what happens when a child is not issued with a certificate. Personally, I have had quite a number of cases where I had to intervene at the KNEC or a school to implore a head teacher to release a certificate to a given child because of needy problems. We are talking about a school which allowed a child to join Form One on admission and they paid money to be admitted. The same child is allowed by the same head teacher to go to Form Two, despite having not completed fees. My earlier argument was that, what would happen if the head teacher refused the boy or girl to proceed to Form Two, so that he or she could claim a certificate? That issue was solved by the introduction of free primary and secondary education. The Government did quite well to introduce free education to that level and we thank it for that. The Government also came up with guidelines of how much money should be paid by each child in secondary schools and colleges. The same Government also waived examination fees and we thank it for that because that was another problem. Students would be taught, but they would not get the examination fees when it came to registration. That still added the burden to the parent. Madam Temporary Speaker, a certificate is a paper issued upon completion certifying that someone has been to Form Four or Standard Eight. That is the only paper that one can show to prove that they went to school up to those levels. The certificates are required by employers and for transition to other levels of education like colleges and universities. Therefore, it is important that we discuss about certificates because without them, somebody cannot join the next level of education. They cannot even secure courses which could lead to employment. For example, one cannot sit for the Kenya Accountants and Secretaries National Examinations Board (KASNEB) in order to get the necessary accounting abilities without a Form Four certificate. The certificate is very important, but it has been misused and abused by some of the parents who have failed to pay fees for their children in schools. For that reason, head teachers have found it very difficult to provide facilities and services for the same children who are supposed to sit for the Form Four examinations in order to acquire certificates. For somebody to get a certificate, they must have been taught and studied in a school with a library. Therefore, books, equipment and chemicals for various practical in the laboratories must be bought. Laboratories must be put in place and the necessary environment provided. If that can be

Madam Temporary Speaker, with those remarks, I beg to support.

Madam Temporary Speaker, with those remarks, I beg to support.

Madam Temporary Speaker, I start by congratulating the distinguished Senator for Kitui because he has been very painstaking on this matter. I remember him bringing a Motion in the last Parliament where he wanted to obligate head teachers to release certificates to students after sitting examinations without any delay or conditions.

On a point of order Madam Temporary Speaker. We are discussing amendment of the Kenya National Examinations Council (KNEC) and the Kenya Certificate of Secondary Education (KCSE) . However, I am surprised that Sen. Wetangula is taking us to greater heights which are not even related to education. Is he in order? Temporary Speaker (

Order, Senator! The Senate Minority Leader is giving his opinion. He can relate it to any issue that he feels is relevant. He is expressing himself. The Senate Minority Leader (

Pardon me, Madam Temporary Speaker. Education is meaningless if a child in El Moro can get his or her certificate, that Sen. Musila is fighting for, and cannot get a job because, people from the mountains have taken the jobs. Education is meaningless if after you get the certificate Sen. Musila is fighting for, you cannot even enter a queue for a job. I beg to support.