Tuesday, 4th February, 2014 Special Sitting

Order, hon. Senators. We need to determine if we have a quorum.

The Clerk of the Senate (Mr. Nyegenye) : Mr. Speaker, Sir, we have 32 hon. Senators in the House. We have a quorum.

In that case, let us proceed.

Mr. Speaker, Sir, it is my pleasure and privilege, on behalf of the people of Bungoma County, to introduce Moses Masika Wetangula as the Senator- Elect for Bungoma County.

Welcome, Senator. He may now proceed to take the oath. The Oath of Allegiance was administered to the following Senator:-

Sen. Wetangula Moses Masika.

Order, Sen. Wetangula. You have to go back to the bar and come and do that after.

Next order.

Hon. Senators, I have the following Communication to make.

Pursuant to Article 181 of the Constitution and Section 33 of the County Governments Act, No.17 of 2012, on 28th January, 2014, the County Assembly of Embu approved a Motion, and I quote:-

“To remove from office by impeachment, the County Governor and Deputy Governor of Embu County.” By letters dated 29th January, 2014 and received in the Office of the Speaker of the Senate on 30th January, 2014, the Speaker of the County Assembly of Embu informed the Speaker of the Senate of the approval of the Motion by the County Assembly and further forwarded to the Speaker of the Senate the following documents in respect of both the Governor and Deputy Governor:-

Hon. Senators, the hearing of charges for the proposed removal from office of a Governor or Deputy Governor of a county ranks up there among the most important and solemn duties of the Senate under the Constitution of Kenya, perhaps only coming second in order of importance to the processes of impeachment of a President and or a Deputy President at Articles 145 and 150 of the Constitution respectively. This is, therefore, a very important process that has no precedent in the legislative history of our Republic. All precedents from around the world are testimony to the fact that this is a most solemn process, calling for the highest level of responsibility and circumspection from all the Senators, not only in the plenary, but also, should the Motion by the Senate Majority Leader pass, by those Senators who shall be called upon to serve in the Special Committee. This is as much of a judicial process as it is a political process. Some would probably say that it is a judicial process.

Finally, hon. Senators, this process puts to test our nascent Constitution and the instruments of accountability that we have set for ourselves. I urge that we all conduct ourselves, that when the narrative of the impeachment processes in this country is written, we shall stand on the right side of history.

I thank you all.

Mr. Speaker, Sir, I beg to give notice of the following Motion:-

THAT, whereas, pursuant to Article 181 of the Constitution and Section 33 of the County Governments Act, 2012, on 28th January, 2014 the County Assembly of Embu approved Motions “to remove from office, by impeachment,” the County Governor and the Deputy Governor of Embu County; And further, whereas by letters dated 29th January, 2014

and received in the Office of the Speaker of the Senate on 30th January, 2014, the Speaker of the County Assembly of Embu informed the Speaker of the Senate of the approval of the Motion by the County Assembly and further forwarded to the Speaker of the Senate documents in evidence of the proceedings of the Assembly; And whereas, pursuant to section 33

(3)

(b)

of the County Governments Act, 2012 and Standing Order 65

(1)

(b)

, the Senate, by resolution, may appoint a special committee comprising eleven of its Members to investigate the matter;

Now therefore, pursuant to Section 33(3)(b) of the County Governments Act, 2012 and Standing Order 65(1)(b), the Senate resolves to establish a Special Committee comprising the following Senators -

Next order.

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

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

Mr. Speaker, Sir, I seek guidance from the Chair on matters of law and our Standing Orders. Standing Order No.65 gives us guidance on how the Governor can be removed from office by the Senate but it is silent on how the Deputy Governor can be removed from office.

Mr. Speaker, Sir, Article 180 of the Constitution also has the same deficiency; it describes how to remove a Governor but it does not give guidance on how to remove a Deputy Governor, unlike the rest of the Chapter on the Executive which shows exactly how to remove the President and the Deputy President from office.

Mr. Speaker, Sir, I seek guidance on the following; could the Act be unconstitutional because it never followed or it introduced issues that were not in the Constitution on matters of removal of the Deputy Governor? Could you, then, invoke Standing Order No.1 to give guidance on how to remove a Deputy Governor in our Standing Orders?

Thank you, Mr. Speaker, Sir.

Sen. (Dr.) Machage, I did not want to cut you short for all the good reasons you know; but the fact of the matter is that the Motion is not here. So, let us entertain the Motion and then I will respond to your issues.

Proceed, Sen. (Prof.) Kindiki.

Thank you, Mr. Speaker, Sir. I beg to move the following Motion:-

THAT,WHEREAS, pursuant to Article 181 of the Constitution and section 33 of the County Governments Act, 2012, on 28th January, 2014 the County Assembly of Embu approved Motions “to remove from office, by impeachment,” the County Governor and the Deputy Governor of Embu County; AND FURTHER, WHEREAS by letters dated 29th January, 2014

and received in the Office of the Speaker of the Senate on 30th January, 2014, the Speaker of the County Assembly of Embu informed the Speaker of the Senate of the approval of the Motions by the County Assembly and further forwarded to the Speaker of the Senate documents in evidence of the proceedings of the Assembly; AND WHEREAS, pursuant to section 33

(3)

that in moving this Motion, I will stick to the particular issue, which is the establishment of a Committee of this House to investigate the allegations and the charges that have been made by the County Assembly of Embu against the Governor of that County and its Deputy Governor.

Mr. Speaker, Sir, I say so because there are so many other contextual issues arising, not only from Article 181 of the Constitution, but also from Section 33 of the County Governments Act as well as Standing Order No. 65 as read together with Standing Order No.66 of the Standing Orders of Senate. So, in moving this Motion, I will stick to the issue of the establishment of a Committee.

Mr. Speaker, Sir, I want to start by saying that the issue of whether or not this House should establish a Special Committee to investigate the charges against the Governor and the Deputy Governor of Embu is a matter that is provided for in the law. Looking at Section 33(5) of the County Governments Act, I have noted that the language there is permissive; it states that “the Senate may establish a Committee.” Therefore, one of the issues that arise is whether the route of a committee is the route that is appropriate, and that is upon this Senate to decide.

Mr. Speaker, Sir, the second thing I want to say is that given the huge public interest of this matter; given that this is the first instance of impeachment proceedings in the history of the Republic of Kenya; given that this is the first process of this nature under the new Constitution; given that the removal of a Governor of a county touches at the very root of our constitutional order as well as the system of devolution that many Kenyans are hoping must work; for all those reasons, it becomes important that an issue of this magnitude be placed before a specific Committee, and I say so because even if the Act is permissive, you will see that the intention of the work or the terms of reference of this Committee are actually to prepare ground or, rather, to preside over a very judicial and legal process. It is not a political process and that, in my view, necessitates the need for a special Committee where we can tap into a variety of skills that this House has; legal skills, financial skills, skills relating to public administration, political science and all other relevant matters that need to be addressed through a judicial process or, if you like, a quasi judicial process.

So, Mr. Speaker, Sir, the issue of a Committee, therefore, becomes important and it is in that connection that this Motion recommends the establishment of the Committee. We hope that the usual safeguards are in place in terms of representation of various parties; in terms of diversity in our country; in terms of gender considerations as much as it is practicable. I know that, previously, we have dealt with this issue and the Chair has said that sometimes it may not be practical to ensure that all these considerations are realized 100 per cent. So, what is intended is to provide the widest array of diversity in membership in the representation of the country, in political party membership, et cetera.

So, Mr. Speaker, Sir, be that as it may, I also want to say that through the work of this Committee, the Senate of the Republic of Kenya will be watched very keenly. So, my appeal is that should this Motion pass, I want to remind our colleagues who will be fortunate to sit in this Committee to make this Senate proud. I have no doubt in my mind that the men and women whose names I have read as I moved this Motion are men and women of character.

Mr. Wetangula. The Senator for Bungoma

: Mr. Speaker, Sir, I believe this is my maiden speech and I must be heard in silence by Sen. Murkomen and the likes of him---

Mr. Speaker, Sir, I believe this is my maiden speech and I must be heard in silence by Sen. Murkomen and the likes of him---

the meeting if you wish, provided that when there is a vote to be taken you do not vote, but we do not have to do that. We trust that the Committee we are setting in place will discharge the responsibilities and duties bestowed upon them studiously, courageously and with the fairness that is expected from a House of this magnitude and stature.

Mr. Speaker, Sir, as you said, this is the very first case of its nature and its kind in independent Kenya and more so under the new Constitution. I want to encourage the Committee that whatever you do will be precedent setting. You may choose to engage in trivialities and bring an ignominious report that will bring a bad name to this Senate or you may also rise to the occasion and discharge your responsibility to the admiration and satisfaction of everybody so that even those who are aggrieved, if and when a decision is made in one way or another, they will go away saying, I did not get what I wanted but I got justice. That is what justice is all about and I have no doubt that where you find Sen. Orengo, Sen. Murkomen and Sen. Sijeny, they will instantly be able to give the advice required in matters to do with law. Where it requires firmness, you cannot doubt Sen. (Dr.) Khalwale; where it requires emotions, you cannot doubt Sen. Kittony; where it requires courage, you cannot doubt Sen. Hargura; where it requires charm and colour, can you doubt Sen. Lesuuda?

Mr. Speaker, Sir, I want to end by urging the House that we have only ten days to finish the work and report back to the Plenary. If we are in agreement with the names, we should move expeditiously to approve so that they can retreat to constitute themselves into a proper Committee and start their work. With only ten days, given the contention that may arise in the matter, we must give them ample time, and your office must give them all the facilities they require so that they give us a product that we can all say, it was a pleasure being in this Senate at this time and in this Republic.

With those few remarks, I beg to second.

Hon. Senators, before I propose the question, I would like to dispose of the issues canvassed by Sen. (Dr.) Machage when he rose on a point of order.

Order, Sen. Wako! You are making it even more difficult but let me hear you.

On a point of order, Mr. Speaker, Sir. Thank you for giving me this opportunity. While responding, I wanted you to also respond to this other point. This is the point that I am seeing in the Motion. I do not know what was before the County Assembly; was it one Motion or were there two Motions or were they approved Motions, which would imply that there was one Motion for the Governor and another one for the Deputy Governor. I want to raise this issue because what we are discussing here is very important’; that is, the removal of Governor and his deputy. From what I can see, there is no impeachment process that impeaches two offices at the same time in one sitting. Even in America where my learned friend quoted Nixon, of course, he was wrong to say that he was impeached because when they embarked on the process, he resigned. In America where the President and the Vice-President are elected together, it does not mean that

both must go. In other words, the impeachment process was only against the president and not against the vice president.

I am raising this point knowing very well that there could very well be situations in which the facts that relate to the Governor and the facts that relate to the Deputy Governor---- I do not know because we do not know how the proceedings were. For those who have read them, they can guide us. You might as well find that the facts as relates to the Governor are different from the facts as relates to the Deputy Governor. I would not want to say that the Governor or Deputy Governor are prejudiced in any way in their defence of their cases by the fact that their two cases have been joined together in one case. Therefore, I would also want you to comment on that issue and inform us whether they are two offices and should be dealt with together. Will the Committee deal with one office first and then the other or will they handle them together? We need some guidance on this matter.

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

What is it, Sen. (Prof.) Anyang’-Nyong’o?

Mr. Speaker, Sir, whereas I appreciate the point being raised by Sen. Wako, I would like to prefer this as something that the Committee itself would clarify to the Senate because the Senate does not have the forest of all the facts to that case. We should give that responsibility to the Committee to clarify those issues rather than try and do it here.

Hon. Senators, on that note, Sen. (Prof.) Nyong’o has said what I wanted to say. I can form an opinion but I do not want to prejudice the workings of the Special Committee that we will establish today. Those are the issues that would be canvassed before the Committee which will definitely look at the merits and demerits. As I said in my Communication, this is a formality to ensure that we get a Committee and the Mover and the seconder have stated why we need the Committee. This was for purposes of giving a fair hearing to the Governor and his deputy. There are merits in the issues you have raised and also there are arguments. So, it is up to the Committee to look at them and make their judgment. This is why the documents have been attached. They will still come back to us and convince us the route they took. At that point, they will then make an argument.

The second issue is whether there were two Motions or not. This is a fairly obvious matter but for the benefit of the Senator for Busia, there were two processes of impeachment; one for the Governor and another one for the Deputy. The proceedings of the Committee will also be along the same lines. There will be issues for the Governor and issues for the deputy. So, we will expect the Committee to comment on each one of them separately. That should dispose of that matter.

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

What is it Sen. Kajwang?

Mr. Speaker, Sir, I am just following on what happened. I know what happened recently when the petition court found that we should go back for the election for the governor for Siaya. What happened is that he left office with his entire government including his deputy. For a while there was no government in Siaya. It would

seem that the consequence of what we will decide, for example, if we decide that the impeachment was correct, then there will be no government for Embu.

The Speaker!

I guess Sen. Kajwang has been assisted by the rest of the Senators. So, I am not going to comment on it.

Order, Sen. Musila! I allowed Sen. Wako to respond or to add to the issues that were canvassed by Sen. (Dr.) Machage. I also allowed professor Anyang’-Nyong’o; his contribution was my own contribution and I said as much. We said that the issues raised by Sen. (Dr.) Machage should be canvassed at the Committee. Sen. Orengo, you are very fortunate because you will actually be in the Committee. I actually have an opinion but I felt I should not prejudice the work of the Committee. We do not want to prejudice the Committee from the Plenary. You can give the information to the Committee and I am sure it will be appreciated more, especially at this stage.

So, let me go ahead and propose the question.

Mr. Speaker, Sir, I rise to support the Motion. I just wanted to emphasize what the Senate Majority Leader said earlier. In the year 1801, there were similar proceedings in the USA. When the matters came before the Senate on Saturday, 23rd February, that year, the counsel who addressed the Senate by the name Luther Martin said this, and I quote:-

“I see two hon. Members of this court (Senate) Mr. Dayton and Baldwin, who were with me in the convention who like myself, know perfectly why this power to try for impeachment was placed in the Senate. It was because among all our speculated systems, it was thought that this power could know where it would be less likely to be abused.” I perfectly concur with these sentiments. The events of this trial would show that we could not have disposed of that power. In contradiction, a Member of the House of Representatives, who was among the members who were contributing before the Senate, said this:-

“We have performed our duty; we have bound the criminal and dragged him to your altar” So, we are going to make a choice and I think the wisdom and the sentiments of both the Leader of the Majority and the Leader of the Minority that this power was donated to the Senate in the constitutional arrangement is something that we cannot ignore. In fact, I wanted to mention to the Senate that in the proceedings to impeach the president or to remove the president because of incapacity, the president would not appear before the National Assembly and I think that is for a good reason. In these proceedings if there were similar impeachments, the president would have an opportunity

to appear before both the Committee and the Senate. There are very good reasons for this because Senators are very honourable men and women.

Similarly, you can see that from Section 33 of the County Governments Act, the Governor was not given the opportunity to appear - I am talking not from the facts but from the law - he is not by law guaranteed to appear before the county assembly, but in the Senate, he is. Again, he is entitled to appear before both the Committee and the Senate and that is for a good reason. What I would plead with my colleagues - because of this momentous occasion historically and because of this very honourous duty, I would urge the House that at whatever stage that we deal with this matter, we do so as Senators and brethren. If you belong to any party or any organization, you should not look at this case as a partisan issue but on the basis of what the Speaker pronounced earlier; that this is a judicial process, although there are political intonations.

I hope that by the end of this process and I am privileged to be in the Committee, at the end of the day, as I saw in the dailies the Senate was rated highly by the Kenyan people, that we will be rated even higher on the basis of how we would have handled these proceedings.

For those reasons, I beg to support.

Mr. Speaker, Sir, I also rise to support this Motion. As the Mover and the other Senators have said, this is a very important Motion. The question of impeachment is one of the fundamental responsibilities of the Senate. We have a responsibility to do what is in the best interest of this nation. It is a fundamental constitutional mandate and in my view, of checks and balances, that this Senate is mandated to undertake impeachment process. Checks and balances are very important in our system of governance. It is in this context that I would urge those Members who have been proposed to sit in this Committee to do what is fair and just. Article 181 of the Constitution is very clear on the grounds on which this impeachment can succeed. It is my understanding that the county assembly has already done some files and it is the duty of this Senate to convict or to acquit based on the evidence that will be placed before them. I want to quote Alexander Hamilton of the USA Constitutional Convention that

Thank you, Mr. Speaker, Sir. This Motion comes at a time when for some reason governors have sought not to read the Constitution, understand it and appreciate the powers of the Senate. It comes at a time when governors have intentionally refused to acknowledge and accept summons sent to them by our committees. It also comes at a time when their own houses are burning at the grassroots. Like the Swahili saying goes – and I quote – “usione simba amenyeshewa ukafikiri ni paka”---

finance or impropriety of whatever nature, we have capable minds which can handle this. I think it is a very important task and we all look forward to their report. One thing that has come out clearly from the presentation given earlier is that our Constitution allows the governor and his deputy to be heard. I think that it is important that they not only be heard, but be given an opportunity to actually appear, present their evidence, bring their witnesses, come with their lawyers and argue their case. I think that, that is really a very important thing in terms of determining whether the facts support the conviction.

Mr. Speaker, Sir, I support the names and rest my case.

Thank you, Mr. Speaker, Sir. This Motion comes at a time when for some reason governors have sought not to read the Constitution, understand it and appreciate the powers of the Senate. It comes at a time when governors have intentionally refused to acknowledge and accept summons sent to them by our committees. It also comes at a time when their own houses are burning at the grassroots. Like the Swahili saying goes – and I quote – “usione simba amenyeshewa ukafikiri ni paka”---

Order! Sen. (Dr.) Machage, please, desist from other issues. I would actually have stopped you, but I heard your language. You said: “It comes at a time.” So, when you are describing a context, it becomes a bit difficult to stop. But I am glad that Sen. Abdirahman has quickly intervened. You can gauge from the applause to the remarks by Sen. Abdirahman that the mood of the House is not in that direction.

Mr. Speaker, Sir, indeed, I appreciate Sen. Abdirahman’s comments and actually what you had commented, but these are facts. I will try very much to ignore what is known in the public domain.

situation, I believe that there is a way forward and that lacuna will not in any way prevent this House from making a historical ruling.

Mr. Speaker, Sir, my introductory remarks were actually meant – if I was not curtailed from continuing with the same – to request the Committee not to look at what is going on now and the attitude of governors towards Senators. Our humility that has been expressed very openly to the Republic of Kenya and the Kenyans, and more so to the governors, should continue and be a guiding factor in their deliberations on this matter and decision. I fully support this Committee that is of historical nature. I wish that I was in the Committee, but there are only 11 Members but we believe that they are up to the task.

Mr. Speaker, Sir, I support.

Mr. Speaker, Sir, to the extent, therefore, that this is a quasi-judicial process, whereas I accept that every Senator--- In fact, we could have just picked the top eleven Senators and said: “Go there!” This is because we are all men of repute. But the eleven had to be chosen, but to the extent that---

Order, Sen. Wako! You have said that we are all men of repute. Are you oblivious that there was a woman next to you?

Thank you very much, Mr. Speaker, Sir, for giving me this opportunity as well to support this Motion and, indeed, echo the fact that the Senators who have been selected for this task are up to it.

Mr. Speaker, Sir, in supporting the Motion, I also want to urge that, as the Senate Majority Leader said, let only justice be our defender. I urge the Members who are going

Order, Sen. Wako! You have said that we are all men of repute. Are you oblivious that there was a woman next to you?

to be selected to this Committee to ignore a lot of the issues that will come to them. I can foresee canvassing that will come from various quarters. I would urge that the Members ignore that. Since we cannot gag the other members of the public from discussing this matter, there will be many comments and commentaries in the media. It will be important for the Committee to ensure that the opinions that are expressed in the media and elsewhere will not be the basis upon which they will make a decision. Only the facts in front of them should be the determining factor, whether indeed, the matter before them will go one way or another.

Mr. Speaker, Sir, it is instructive that we have got 11 Members of the Committee, just one short of the 12 that are in the Bible. It is only that they are not a “Jesus committee” and that is the only reason that they are 11, otherwise, they would have been 12 Members. But I have no doubt in my mind that these people hold the whole Senate in their hands, in terms of the image that the Senate will carry from now henceforth. The Senate is under test. The test is going to determine whether the future Governors and Deputy Governors, the people of Embu and Kenya will have faith in the House. Indeed, the decision that we are going to make and the manner in which we make it is going to impact on not just the system that we have in our country, but in Kenya as a respected nation and country where due process and law reign supreme.

Mr. Speaker, Sir, in the United States of America, when they form a jury, sometimes they ask it to go into a session where they can read or hear nothing. We are simply asking our Select Committee to act as a jury and close their ears to anything else that can influence their decision. They should not listen to the politics that might be around the decision, but only the facts that might be around the decision. They should not look at the impact of their decision on politics, but on justice only, so that when the decision comes to us, at the end of the session that they will have had, we will have made a decision that carries the weight that is higher than that 11 people who are in that Committee. It is a significance that is so high, that we must be very careful as we proceed forward as a Senate.

Mr. Speaker, Sir, I also urge the Members that will be approved to be in this Committee to ensure that even if this is a quasi-judicial process, as my colleagues have said, there are also other very important matters, as raised by Sen. Billow, that will inform the decision that will be made, particularly in matters of finance and propriety as far as procurement and other matters are concerned. This will ensure that the Committee makes an all-round decision that will have considered all matters in front of them and only ending in the respect of the Constitution.

Mr. Speaker, Sir, in addition to the 11 people, let us not lose sight of the fact that there are 67 other wise people who sit in this House. These people will impact the decision that the 11 people will make. So, this is not a decision of 11 people but of 67 people. It is the image of the 67 people that we must guard.

With those few remarks, I beg to support.

Thank you, Mr. Speaker, Sir. When this matter first became public, we were in Mombasa for a retreat as Senators. It immediately became clear that this was a matter of grave national importance. We had an important press conference

and immediately thereafter people wanted us to state our position on this matter. We told them only one thing; that due process would have its way.

Mr. Speaker, Sir, having listened to your communiqué, it is clear that due process is not set by you. It is there in black and white. Therefore, what the Senate Leader of Majority is addressing this House on has to be given a shot at the Committee Stage before we come to the whole House. That is part of the due process that we promised Kenyans.

I, therefore, support this Motion. What I saw in Mombasa--- I was being taken round by my taxi driver and he asked me to assure him that this Senate is capable of handling a matter of such magnitude. He was not alone. I have received many messages especially after the television footage flashed my name as part of the Committee of the

Thank you, Mr. Speaker, Sir. When this matter first became public, we were in Mombasa for a retreat as Senators. It immediately became clear that this was a matter of grave national importance. We had an important press conference

and immediately thereafter people wanted us to state our position on this matter. We told them only one thing; that due process would have its way.

Mr. Speaker, Sir, having listened to your communiqué, it is clear that due process is not set by you. It is there in black and white. Therefore, what the Senate Leader of Majority is addressing this House on has to be given a shot at the Committee Stage before we come to the whole House. That is part of the due process that we promised Kenyans.

I, therefore, support this Motion. What I saw in Mombasa--- I was being taken round by my taxi driver and he asked me to assure him that this Senate is capable of handling a matter of such magnitude. He was not alone. I have received many messages especially after the television footage flashed my name as part of the Committee of the

Thank you, Mr. Speaker, Sir, for giving me an opportunity to support this Motion. Let me also begin, like the Senator for Busia, in stating that the women and men in this Committee are people of high integrity. They will be bringing a wealth of experience. I note that we have lawyers in this Committee; we have doctors, engineers, women of great wisdom and other considerations of youthful Senators. This is a good selection. I am pleased that we have tried to meet the gender consideration. I would have been very happy if we had four women in this Committee. However, as it is, we will make it with the three women that we know are highly experienced Senators. They also bring a wealth of experience to this Committee.

Thank you, Mr. Speaker, Sir. I would like to further tell this Committee that they must be men and women who are beyond reproach just like Caesar’s wife because the integrity of this Senate lies in the decisions that they make. Many a times, we have heard that legislators take kickbacks. I know that this is a Committee of men and women of high integrity and that they must fly the flag of the Senate. I hope that they will remember that the Senate is the guardian of devolution.

In their deliberations, I would like to join other Senators who have said before that they must take a bipartisan approach. They must leave their party considerations at home as they deliberate on these issues. Let us put politics aside. Let us show that this is the House of wisdom, the Upper House, in the way that the Committee will handle this

Thank you, Mr. Speaker, Sir, for giving me an opportunity to support this Motion. Let me also begin, like the Senator for Busia, in stating that the women and men in this Committee are people of high integrity. They will be bringing a wealth of experience. I note that we have lawyers in this Committee; we have doctors, engineers, women of great wisdom and other considerations of youthful Senators. This is a good selection. I am pleased that we have tried to meet the gender consideration. I would have been very happy if we had four women in this Committee. However, as it is, we will make it with the three women that we know are highly experienced Senators. They also bring a wealth of experience to this Committee.

matter. Kenyans are watching. Kenyans want justice. Let justice be the guiding criterion for this Special Committee. No other consideration should be looked at. I beg that they take that into consideration.

I end by saying that the Senate, as the guardian of devolution, should look into this matter in a very careful and respectful way. I speak this from my heart because we must know that the outcome of this Committee and what this Senate decides will set an example and of how devolution matters will be managed in this country in future. We do not want to open a pandora box that will bring this Senate down on how we deliberate.

With those few remarks, I beg to support.

Thank you, Mr. Speaker, Sir. First of all, I would like to say something about the 12 and inform my colleague, Sen. Mutahi Kagwe, that there is a reason why the framers of the Constitution thought they should be 11. In fact, it is fair that you know that in all court proceedings of this nature, the numbers are always odd and that is why we have 11 and not 12.

With regard to my contribution, first, I would like to agree with the Senators who have stated that the persons who have been selected are people of integrity. I agree entirely. I would, however, like to add that Article 181 of the Constitution has provisions that appear to be criminal in nature. Therefore, in its determination, the Committee must be aware that, that might lead us to other court processes against the Governor and the Deputy Governor.

Secondly, it is fair for them to know that constitutional lawyers in Kenya will be waiting at the door to sue the Senate for many reasons, constitutional or otherwise, if they do not follow the law, rules of natural justice or in any event or if they consider extraneous matters that are not before them or worse, if they do not frame charges against these two.

Sen. Murungi, I and Sen. Fatuma Dulo took a trip to the Australian Senate. We found out that these people have a good practice which we should adopt. That practice is that where we have Members in a Committee like we do, in case one of them disagrees, that person ought to have a separate report included in the main report. They call this a minority report. This makes people know that in their consideration, just like any other court, there was a dissenting voice of somebody who disagreed or agreed. As we debate these issues, we should also address the minority report like any other court which determines matters of this nature.

Sen. (Dr.) Machage has raised certain fundamental legal issues and like any other court, since we are lawmakers, where there appears to be a lacuna or what we call in legal terms casus omissus, we should come here and have a separate report on provisions of law which ought to be amended or included so that we guide the country in knowing what to do in case of impeachment of a Governor or a Deputy Governor. We should know what legal frameworks exist. If there are any lacunas, we should cover them so that we are not challenged by the constitutional lawyers who cannot wait to take this matter to the High Court and make a mockery of this.

There is, in the County Governments Act, a provision which says that after this Special Committee addresses this issue, the Governor will be heard again. So, it is fair, as they deliberate on this, to consider whether the two hearings that are contemplated under

that Act constitute of two or one hearing. It is fair that they check that in all provisions, except the one of setting out this Special Committee, all the words used are followed by the word “shall” so that after the ten days, there “shall” and the hearing “shall” and even the case of calling the Governor should be “shall.” Therefore, it is mandatory that they comply with those provisions so that we are proud of the 11 Senators.

I dare say that this is most likely the largest hearing because the Supreme Court has less, the Court of Appeal has less and the last time that a court of this nature sat was during the petition of Sen. Abu Chiaba. I had a privilege of appearing before this one and here we had nine. So, we are the largest. It would be fair to say that we are setting precedence in more ways than one. I urge this Committee to make us proud; not only in terms of conducting a fair hearing following the rules of natural justice--- Since the senior counsel are present, they should comply with the burden of proof in matters which appear to be criminal in nature and not use a balance of probability. Where it is beyond reasonable doubt, give us a finding and a report that we will put on our shelves and say that this is the HANSARD of the impeachment of the Governor of Embu as precedence to be followed, not only in Kenya but also in other jurisdictions.

I beg to support.

Thank you, Mr. Speaker, Sir, for giving me this chance to add my voice to this Motion. From the outset, I support this Motion. I congratulate the Whips for giving us a balanced proposed special Committee in terms of expertise, regions and gender. I am sure the women in this Committee will do a good job. I fully support my friend, Sen. Ong’era because she would be very useful in this Committee. I would have loved to see four women in the Committee. However, the three will definitely add, not only colour and charm, but also brains to the whole process.

Mr. Speaker, Sir, I am sure in 2063 when we will be celebrating 100 years after Independence, this process will be one of the landmark issues to appreciated in many years to come. It will be read by the children who are growing up today and passed on to the next generation. It is a landmark process. I know the people of Embu County would have loved to be in the news for different reasons apart from this. They would have loved to see devolution bringing services closer to them and their county government working well. I note with admiration that the drafters of the Constitution had anticipated this. They had good reasons to place this noble responsibility on the Senate. This responsibility is a preserve of this House.

Mr. Speaker, Sir, if this Motion is adopted today, and I am sure this will happen, we can be sure that the expectations of not only the people of Embu County, but the whole country are weighing on our shoulders. We will definitely come back here to interrogate that report. The 56 of us who are not in that Committee will be relying on them to shine and make our name. This House must be respected. This process will place us where we belong.

Mr. Speaker, Sir, I do not know if my friend Sen. Kajwang remembers, but at one time, he narrated to me a story of how he was sent away from the university. He was walking along the streets of the University of Nairobi when he was told that he had been sent home without being given a hearing. This was contrary to the provisions of law. The law states that the gentleman and lady of Embu County will be given a chance to be

heard. As Sen. Kagwe has said, we may not be able to gag what the public says or what goes to the media. As we hold our side of dignity and ensure that this process is respected, we would like to appeal to the said Governor and Deputy Governor to also do the same from their end. I know they have been in the media. Last night, we saw them on television stations addressing the media. I hope that this time they will respect this process. I also appeal to them not to behave like members of the public who can say anything on this issue. They will be accorded an opportunity to express themselves in the Committee. Let them give this Committee the respect and support it deserves. We will, in ten days, be able to interrogate this report and give a direction to this country and the people of Embu County.

Mr. Speaker, Sir, with those remarks, I beg to support.

Mr. Speaker, Sir, noting the fact that this Committee will only have ten days and from what we are hearing from various hon. Senators, the message is very clear. The Senate is on trial and hon. Senators have to deal with this issue professionally, impartially and objectively. Hon. Senators seem to be repeating themselves. Would I be in order to call the Mover to reply?

heard. As Sen. Kagwe has said, we may not be able to gag what the public says or what goes to the media. As we hold our side of dignity and ensure that this process is respected, we would like to appeal to the said Governor and Deputy Governor to also do the same from their end. I know they have been in the media. Last night, we saw them on television stations addressing the media. I hope that this time they will respect this process. I also appeal to them not to behave like members of the public who can say anything on this issue. They will be accorded an opportunity to express themselves in the Committee. Let them give this Committee the respect and support it deserves. We will, in ten days, be able to interrogate this report and give a direction to this country and the people of Embu County.

Mr. Speaker, Sir, with those remarks, I beg to support.

I will allow a few hon. Senators to contribute to the Motion. But I plead with you to be brief. You have noted the mood of the House. I will allow two from either side and give you not more than five minutes each. That is 20 minutes then I will put the question.

Sen. (Prof.) Anyang’-Nyong’o has been on his feet for a while. Proceed.

Mr. Speaker, Sir, I will be very brief. I plead with Sen. Kiraitu to allow us at least to speak during this first impeachment debate.

First, to Sen. Kagwe, I think the number 11 is very appropriate. We left out the 12th disciple because he was a traitor, Judas Iscariot!

Mr. Speaker, Sir, I believe that the membership is consultative, inclusive and diverse. For that reason, I support.

I also wish to say that we are exercising a certain power that has been donated to us by the people of Kenya. This is because all sovereign power belongs to the people of Kenya and can be exercised by this Senate on behalf of the people of Kenya. I want to urge that as this Committee sits and hears the evidence, they will not have any consideration for Embu, because this is not a matter for Embu County, although the specimen comes from Embu County.

Thank you, Mr. Speaker, Sir. First, let me thank the members whose names have been set out in this Motion.

(Consultations)

Order, hon. Senators! This is a Motion affecting counties, so it is important that you are all represented.

Proceed, Sen. Kajwang.

Mr. Speaker, Sir, I believe that the membership is consultative, inclusive and diverse. For that reason, I support.

I also wish to say that we are exercising a certain power that has been donated to us by the people of Kenya. This is because all sovereign power belongs to the people of Kenya and can be exercised by this Senate on behalf of the people of Kenya. I want to urge that as this Committee sits and hears the evidence, they will not have any consideration for Embu, because this is not a matter for Embu County, although the specimen comes from Embu County.

The exhibits can also come from Embu County. The real issue is that this is a matter for Kenya. People will be watching very carefully. We are walking a very tight rope because we are supposed to protect devolution. But at the same time, we are also supposed to oversight that devolution. So, we should be seen to be doing both at the same time and walk that tight rope. We should convince Kenyans that we have done it justly. If we do it justly nobody will blame us because we will be doing our job.

But there will definitely be huge public interest in this matter. People will be accusing us of trying to roll back devolution because of threatening governors, trying to compete for power and so on. As we do all this, we should be sensitive to the fact that people will be watching and commenting about the interplay which we have seen in the press or who is more powerful than the other and all sorts of things.

The responsibility that has been given to us is a heavy one. It is a weighty matter. I have been looking at Article 181 of the Constitution. I have noted this is a very serious matter. It is either a violation of the Constitution or a crime, abuse of office, which is also a crime or gross misconduct which I am not so sure about. That is where the skills and the experience of the hon. Members will be required. If the issue amounts to gross misconduct, what is gross misconduct? That is a grey area on which we will need direction and help. But I pray that this Committee deals with this issue in the interest of Kenya.

After this, we might, of course, end up having an avalanche of this in all counties. We might be overwhelmed by so many impeachment proceedings if we treat this issue lightly. But if we set the benchmarks correctly, then it will tell the other assemblers whose responsibility it is to oversight the executive at that level that it is not every other resolution that impeaches a governor. Then we will have governors, assemblies and the Senate acting correctly.

Mr. Speaker, Sir, with those remarks, I beg to support the Motion.

Mr. Speaker, Sir, from the outset, I wish to say that I support this Motion. I thank my colleagues and particularly the leadership of this House for putting me to be part and parcel of this Committee.

Mine is basically to let the nation, the Governor and Deputy Governor of Embu County to know what the Bible says in Proverbs 21:15. It says:-

“When justice is done, it brings joy to the righteous, but terror to evildoers” Being guided by that verse, we will ensure that justice is not only done, but seen to be done.

I have heard and listened to my colleagues. The responsibility upon our shoulders is huge. As Sen. Kajwang said we are walking a tight rope between protection of the county governments and, at the same time, providing oversight.

There is a very interesting issue I wish to point out. When I was a member of the taskforce on devolved government I contributed to the drafting of the County Government Act. What is interesting is that the person who ensured that I was appointed in that taskforce is Sen. Orengo. I never knew that in less than one year as Senator, myself and Sen. Orengo would have this serious responsibility of presiding over the first impeachment, if this House agrees. I believe we will be true to the requirements of the law to protect the integrity of this House and devolution. I have faith in my colleagues

that we will discharge this function before us. What we only ask the nation and this House is to give us the maximum support in terms of presentation of whatever documents you think is useful for us. I would like to tell

Mr. Speaker, Sir, first, I would like to thank you for having noted that I am here and the fact that I am more senior than anybody in this House. A lot has been said. In fact, I had just given up, that I was not going to speak. But I am lucky that, finally, I did catch your eye.

Mr. Speaker, Sir, I would like to say a few things on this issue. We have been saying that the Senate is on trial. But what is on trial today is not the Senate. It is the Committee that we will appoint. They will be in a very serious trial because if the recommendations will be rejected by this House we will have no alternative, but to blame them forever. The Committee must be very serious in dealing with this matter. Let us not see as if this matter is so big that it has never happened elsewhere. It has happened elsewhere. This is just a process. We are fulfilling our mandate as Senators. There is nothing new that we are doing. It is what is entrenched in our Constitution. A time will come when the Senate will be called upon to deliberate on a situation like this one. We have had a lot of misunderstandings out there, whether the Senate has any job to do in this country. Some have been recommending that the Senate should go. I respect Kenyans because they are patient people.

Finally, they have realized that it is the Senate which is going to maintain devolution the way it is supposed to be. In fact, the Senate is not for anything else other than supporting and protecting the counties. By protecting the counties, it is not that we are going to protect county assemblies or the Governors. We are protecting the institution that is known as the county government because we are the heart of these institutions.

Mr. Speaker, Sir, this process needs to be handled with a lot of care, especially considering that Kenya is an open society these days. If the Committee is not careful, it

Thank you, Mr. Speaker, Sir. Nitazungumza kwa Lugha ya Kiswahili ili wale ambao hawako karibu nasi na wanafuatilia Hoja hii waweze kuelewa vizuri.

Ninaunga mkono Hoja ambayo iko mbele ya Seneti siku ya leo. Pia ninaunga mkono majina yote ambayo yameletwa hapa. Hawa ni watu wenye uwezo na maarifa mengi. Ingawa akina mama na vijana wameshirikishwa katika kamati hii, ningependa pia walemavu katika Seneti hii wapewe nafasi ya kutoa mchango wao. Hata hivyo, ninaunga mkono wanachama wa kamati hii ambao wamependekezwa. Nimependekeza walemavu wahushishwe katika kamati kama hii siku zijaazo ili walemavu wengine ambao wako nje ya Kenya wajue ya kwamba Sen. Godliver, Leshore na mimi tunawakilisha vilivyo katika Seneti hii. Sisi tuna uwezo wa kufanya hivyo.

Bw. Spika, kwa hayo machache, ninaunga mkono.

will find itself messed up by the press. But it is not the press which is going to start the process of messing them up; it is them failing to keep their mouths shut, especially after the deliberations of any Committee meeting. Things can really go wrong if other people start talking about this Committee.

Mr. Speaker, Sir, we have been saying that we have nominated Members of very high integrity to this Committee. I want to assure this House that any Member of the Senate is a person of high integrity; it is only that we could not all become Members of this Committee. Therefore, I appeal to those who are involved, through the Chair, that what is going to be presented on this Table in 10 days’ time must be a document that people will read and be satisfied that we really tried as a Committee of the Senate. I am not a Member of this Committee, for example; nobody will use me or any other Member who is not a Member of the Committee if the Committee will not report what we think is good for this nation. This must be understood from the beginning.

Mr. Speaker, Sir, once again, thank you very much for allowing me to speak.

Mr. Speaker, Sir, first, I would like to thank you for having noted that I am here and the fact that I am more senior than anybody in this House. A lot has been said. In fact, I had just given up, that I was not going to speak. But I am lucky that, finally, I did catch your eye.

Mr. Speaker, Sir, I would like to say a few things on this issue. We have been saying that the Senate is on trial. But what is on trial today is not the Senate. It is the Committee that we will appoint. They will be in a very serious trial because if the recommendations will be rejected by this House we will have no alternative, but to blame them forever. The Committee must be very serious in dealing with this matter. Let us not see as if this matter is so big that it has never happened elsewhere. It has happened elsewhere. This is just a process. We are fulfilling our mandate as Senators. There is nothing new that we are doing. It is what is entrenched in our Constitution. A time will come when the Senate will be called upon to deliberate on a situation like this one. We have had a lot of misunderstandings out there, whether the Senate has any job to do in this country. Some have been recommending that the Senate should go. I respect Kenyans because they are patient people.

Finally, they have realized that it is the Senate which is going to maintain devolution the way it is supposed to be. In fact, the Senate is not for anything else other than supporting and protecting the counties. By protecting the counties, it is not that we are going to protect county assemblies or the Governors. We are protecting the institution that is known as the county government because we are the heart of these institutions.

Mr. Speaker, Sir, this process needs to be handled with a lot of care, especially considering that Kenya is an open society these days. If the Committee is not careful, it

Thank you, Mr. Speaker, Sir. I know we are pressed for time, but I think it is not courteous if I do not thank my colleagues for the contributions they have made in support of this Motion.

Having done so, Mr. Speaker, Sir, it is my humble privilege and duty to move this Motion.

Mr. Speaker, Sir, I beg to move.

Order, Members! I, therefore, wish to put the Question. Again, this is a matter affecting counties; so, the voting shall be by county delegations. Ring the Division Bell for eight minutes.

Thank you, Mr. Speaker, Sir. I know we are pressed for time, but I think it is not courteous if I do not thank my colleagues for the contributions they have made in support of this Motion.

Having done so, Mr. Speaker, Sir, it is my humble privilege and duty to move this Motion.

Mr. Speaker, Sir, I beg to move.

Order, Members! I, therefore, wish to put the Question. Again, this is a matter affecting counties; so, the voting shall be by county delegations. Ring the Division Bell for eight minutes.

Order Senators! May you resume your seats? Close the doors and draw the bars! Order, Senators! We will now take the roll call vote and the Tellers are as follows; for the Ayes, Sen. Ben Njoroge; for the Noes, Sen. Daisy Nyongesa.

Proceed, Mr. Clerk.

Hon. Senators, the results of the Division are as follows:-

Hon. Senators, I have the following Communication to make. As you are aware, under Standing Order No.181 of the Senate Standing Orders, the Clerk is required to appoint a place, date and time for the first meeting of a Select Committee within seven days of its constitution by the Senate or such further period as the Speaker may approve; and as soon as the Committee is present the Clerk shall by a secret ballot conduct the election of the Chairperson and vice-chairperson of the Committee.

Pursuant to this Standing Order I have, therefore, directed the Clerk to appoint today 4th February, 2014 as the date of the first meeting of the Special Committee. This meeting is to be held here, in this Senate Chamber, 30 minutes after the rise of the Senate.

On a point of order, Mr. Speaker, Sir. The Act requires that this Committee reports within ten days. When do the ten days start running?

Order, Senators! I am wondering whether Sen. Murkomen is doing any justice to the robust petition by Sen. Amos to include more lawyers.

Thank you. I think that everybody is fully aware.

Order, Sen. Murkomen! I appreciate that, but I want to give you now the opportunity to respond, if you so wish.

Mr. Speaker, Sir, we had a debate a little bit earlier with my colleagues and it was for the benefit of everybody that a decision comes from the Chair. I do not think that there is any provision in the law that would have allowed me to communicate that without raising it from a point of order. So, I did this for the benefit of everybody.

Thank you. I think that everybody is fully aware.

Hon. Senators, that brings us to the end of the business as it appears on the Order Paper. I have already communicated that the Committee meets 30 minutes after the rise of the House. The Senate, therefore, stands adjourned until when it shall next be convened by Notice in the Kenya Gazette to receive the report of the Special Committee.

The Senate rose at 5.05 p.m.