June 17th, 2015 SENATE DEBATES

Wednesday, 17th June, 2015

On a point of order, Mr. Speaker, Sir. I request you to indulge me so that we apologise to you. If you notices, when you came in, there was a lot of excitement and loud consultations. That was for no other reason, but to welcome Sen. Wangari who successfully delivered a baby boy called Allan, “the Bull fighter.”

Order, Sen. Dr.Khalwale! Yes, you are right on that one. I came in and wondered what was happening in the House. Usually, when the Speaker enters the Chamber, all should be upstanding and in total silence. I also expected such a point of order to also come from Sen. Khaniri. Thirdly, you should have declared your interest in that particular order. However, the Chair also associates himself with those sentiments and congratulates her.

June 17th, 2015 SENATE DEBATES

Thank you, Mr. Speaker, Sir. I beg to lay the following Petition on the Table:-

A petition made by the residents of Emali, Mulala Ward in Makueni County. The petition reads as follows:-

We, the 43 undersigned citizens of the Republic of Kenya and residents of Emali, Mulala Ward in Makueni County draw the attention of the Senate to the following.

Asante sana, Bw. Spika. Kuhusu maombi ya watu wa Mulala ambayo Sen. Mutula Kilozo Jnr. ameleta, ningetaka kusema hakuna siku watu wa

June 17th, 2015 SENATE DEBATES

Maliza, mhe. Seneta.

Bw. Spika, nimesema hivyo kwa sababu najua ni njia gani Seneta anataka kupitia. Tayari tuna shida nyingi za mipaka katika nchi yetu. Ningemuomba mhe. Seneta Mutula Kilonzo Jnir. Kwanza tubuni sheria za mipaka. Hii ni kwa sababu mizozo ya mipaka nchini Kenya imeleta utata sana. Ningependa Serikali Kuu ihakikishe imebuni kamati maalum ambayo itajumuisha watu ambao walikuwa wakuu wa mikoa na maofisa wa tume ya uchaguzi. Pia tunaweza kuwahusisha maofisa wa Tume ya Swazuri ambayo inahusika na kuangalia mambo ya historia kuhusu ugavi wa ardhi hapa nchini. Baada ya hayo, tuwape siku 90 ili waweze kutupa jawabu kuhusu utata huo wa mipaka. Hivi sasa, ningependa kuwaambia watu wa Emali na wale wa Makueni wakae kwa amani. Amani ndio imewafikisha pahali walipo na wazianzishe vita vyovyote vile kwa sababu ya mipaka ya kaunti hizi mbili.

Bw. Spika, kwa hayo machache, ninaunga mkono.

Mr. Speaker, Sir, this is not the first time that this issue of boundary disputes is coming to this House. When it was formally debated in this House, finally, it has arisen a lot of such complaints elsewhere in the country. Today as I speak, such a complaint has suddenly come up in Vihiga at a place called Maseno.

June 17th, 2015 SENATE DEBATES

Mr. Speaker, Sir, I join my colleagues in saying that this House is the only hope that Kenyans have, especially where we have disputes. I recall a dispute on the West Pokot-Turkana boundary border where criminals have been operating and laying claim to the extent that they end up taking people’s cattle until a new terminology was born called “cattle rustling”. Now other Kenyans are assigning cattle rustling to belong to the Pokots and the Turkana.

Mr. Speaker, Sir, for the last three weeks, we have had very good peace in the two counties of Pokot and Turkana. This is majorly because of the leaders from that region led by the two Senators, the Governors and so on, worked round the clock to make sure that we have relative peace. Today people are moving around and visiting one another. These are people I have never met for the last 20 years.

These boundaries which people want to assign and demarcate for the sake of knowing who should live where and particularly with the arrival of minerals in Turkana and Pokot regions, and the arrival of the railway in Makueni and Kajiado, people on the ground can easily be misled to think you benefit more when you are closer to the resource. It is time the Senate the national Government worked closely to bring peace and order as attempts are being made by a committee recognized in Article 188 to sort out these issues. Over 22 counties seem to have disputes which will not create another country even we solved or did not solve them.

It is time we told Kenyans who are listening to us not to take law into their hands, but instead allow leaders and the national Government to take their role.

The Senate Minority Leader (Sen. Wetangula) : Mr. Speaker, Sir, this matter if not handled properly can bring untold calamities to this country. The Chair, Sen. Ntutu, Sen. Obure, Sen. Muthama, Sen. Billow and a few others were in Bomas during the Constitution making process and you may recall how animated the issue of boundaries in creating counties was until even the very noble idea that would have made counties more valuable and sustainable that came up in Bomas where you remember we said that we needed 16 regions, but nobody could agree on boundaries until we came to an arbitrary agreement that all districts as at 1994 were to be counties. That is why you find very

June 17th, 2015 SENATE DEBATES

Mr. Speaker, Sir, this matter if not handled properly can bring untold calamities to this country. The Chair, Sen. Ntutu, Sen. Obure, Sen. Muthama, Sen. Billow and a few others were in Bomas during the Constitution making process and you may recall how animated the issue of boundaries in creating counties was until even the very noble idea that would have made counties more valuable and sustainable that came up in Bomas where you remember we said that we needed 16 regions, but nobody could agree on boundaries until we came to an arbitrary agreement that all districts as at 1994 were to be counties. That is why you find very

June 17th, 2015 SENATE DEBATES

Mr. Speaker, Sir, I associate myself with the views expressed by the Senator for Kakamega County and the Senate Minority Leader, Sen. Wetangula, in the sense that the Constitution presumes that already defined counties exist. Often times, we have been quoting Article 188 as a basis for demarcating or establishing boundaries between one county and another. However, under Article 188, addresses instances where you want to alter the boundaries. The mandate of the Commission is not to determine where the boundaries are. It is only when you want to alter the boundaries of a county. To that extent, the National Assembly and the Senate will have a role to play in terms of altering boundaries.

Mr. Speaker, Sir, sometime ago when the issue of Maseno came about, I said that we should look at boundaries as bridges, but not walls. I was in Wajir the other day. The people of Wajir said that they know where the boundary between Kenya and Somalia is. They have lived in such a way that at certain times of the year, they take their cattle up to Kismayu in search for pasture. There are times when people on the other side of the border cross to this other side of the border.

Mr. Speaker, Sir, even in Siaya County, you will find that there are large sections of Siaya inhabited by the Luhya Community who are very happy to be in Siaya. In Busia County, there are vast areas inhabited by the Luo Community and they are happy to be in Busia. In fact, you will find Luo chiefs and assistant chiefs on the other side of the border; that is in Busia County.

I plead with this Senate that we should bring a crisis that is not necessary at this point in time. Let us ensure that our people can live together as brothers and sisters. We

June 17th, 2015 SENATE DEBATES

Mr. Speaker, Sir, it is good and important that we are talking about most of the burning or small issues which could turn up to be very big. Boundaries are very sensitive. They should be discussed and an amicable solution reached at. If we do not handle these issues very carefully, they will result into conflict.

We had Post Election Violence (PEV) and witnessed our country burning. Small issues like these ones could start, but eventually end up being big. We have heard someone questioning about boundary disputes between Kajiado and Makueni counties. We have also heard about boundary disputes in Kakamega and other areas. People may start bringing up boundary disputes having seen others do so. We do not want that to happen. This is a time we are trying to build our nation, improve on cohesion and move forward. We, as a Senate, must ensure that we take the lead and come up with solutions.

I know that these are issues we have been debating on. There is a Bill by the Committee on Legal Affairs and Human Rights that will ensure that there are proper ways and processes of mediation to ensure that we arrive at amicable solutions that can help us handle such situations. This is because year in, year out, and generation to generation, we have witnessed such issues. If they are not handled properly, they will repeat themselves. Therefore, I support that there be a proper way of handling these issues.

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

Mr. Speaker, Sir, I beg to give notice of the following Motion:- THAT, the Speaker do leave the Chair to facilitate consideration of the Tobacco Control Regulations, 2014.

Mr. Speaker, Sir, Sen. Dan Mwazo had requested for a Statement. He has received it, but I cannot see him. I just want to put it in record that the Committee on Roads was ready with the answer, but the Senator is not in the House.

Next order!

Order! Order, Sen. Okong’o. Spare the House more confusion. Let us leave it there. I urge you to make use of your neighbourhood, the Senator for Kakamega.

June 17th, 2015 SENATE DEBATES

Order, Senators! We are now on the Supplementary Order Paper.

On a point of order, Mr. Speaker, Sir. I rise under Standing Order No.39 (2) to find out why public resources have been wasted today in printing a Supplementary Order Paper, when all that was required was for you to apply Standing Order No.39 to achieve what the Supplementary Order Paper appears to want to achieve. Why have public funds been wasted on printing an entire Supplementary Order Paper?

You have a point, Sen. Boni, but we have also requirements which are justified from even the point of order raised by your good neighbour, the Senator for Nyamira; that these things must be made abundantly clear. So, there was need to reorganize the Order Paper. That reorganization could not have been achieved by Standing Order No.39 (2) . There was a notice to be given and need to harmonize the two issues under the Committee of the Whole. But we always take into account your consideration.

Mr. Speaker, Sir, I beg to move the following Motion:- THAT, the Speaker do leave the Chair to facilitate consideration of the Tobacco Control Regulations, 2014.

Mr. Speaker, Sir, the Tobacco Control Regulations were gazetted on 5th December, 2014 under Legal Notice No.169---

Mr. Speaker, Sir, the last time I saw the Senate Majority Leader was in a function in my county, where we had fruitful engagement with the Head of State and many other leaders. I want to appreciate that he has been able to come back to the House to execute his responsibilities as the Senate Majority Leader. I also wish to note that he actually spoke on behalf of the Senate bravely and pointed out the issues that this House has been addressing for the last three days. I want to congratulate him because he stood for the Senate at a time when very few people would be able to stand in the manner that he did.

What is it, Sen. (Prof.) Kindiki?

Mr. Speaker, Sir, I am sorry, I was actually listening.

When you are listening, you do not indicate to me that you want to speak.

June 17th, 2015 SENATE DEBATES

Proceed,

Sen. (Dr.) Khalwale knows the rules. You do not substantiate the obvious.

Proceed,

Maybe it was not so obvious.

Sen. Wetangula, what may be obvious to me may not be obvious to you. So, do not think that you might use that forever. It must be made abundantly obvious.

Sen. Orengo, you have explained it better. When it comes to the Senate, the independence and discharge of your duty should be obvious to all.

Sen. Murkomen, I will also allow you to speak because it is increasingly becoming obvious to you.

Sen. Orengo, you have explained it better. When it comes to the Senate, the independence and discharge of your duty should be obvious to all.

Sen. Murkomen, I will also allow you to speak because it is increasingly becoming obvious to you.

June 17th, 2015 SENATE DEBATES

Proceed, Sen. Sang. I would encourage Sen. Murkomen to look for more friends to appreciate him too.

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

What is it, Sen. Wetangula? Proceed, Sen. Sang. Mr. Temporary Speaker, Sir, studies have shown that some of the health issues affecting tobacco farmers include exposure to large amounts of chemicals needed as well as handling of raw tobacco leaves, often times, with no protective gears. This is particularly addressed in these regulations. The Tobacco Industry Act took close to 13 years before it was passed and enacted into law. Prior to the enactment to the Tobacco Control Act of 2007, the Ministry of Health introduced the Public Health Tobacco Product Control Rules that were aimed at ensuring smoke free places in the country through Legal Notice No.44 of 2006. Regulation No.26 provides for the mandatory disclosure by public officers of any intentions to engage with the tobacco industry.

Regulation No. 45 provides for offences and penalties. This extends to persons who are performing services on behalf of the tobacco industry.

Mr. Temporary Speaker, Sir, as a Committee, we scrutinized these regulations bearing in mind the Statutory Instruments Act. It is important to note – and I want to bring this to the attention of the Senate – that the donated power to the Cabinet Secretary to make regulations, is donated by this House. In donating those powers, this House made clear provisions on how the donated power is going to be executed. One of the most important elements is that of public participation. The constitutional provisions relating to public participation are important and provided for in the Act. The same Statutory Instruments Act provides that before any regulations making authority makes regulations, they should have public participation. It is also important to note that regulations are made pursuant to the parent Act. A cabinet secretary or any regulation making authority must not make regulations that are ultra vires to the parent Act or the Constitution.

We propose that if the House approves this Motion, in the Committee of the Whole we have certain provisions that we have flagged out as issues that the Cabinet Secretary in charge of Health should have looked at. Some of those inconsistencies with the Tobacco Control Act itself, are even unconstitutional. As the Chairperson of the Committee on Delegated Legislation, we have developed a good working relation with

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

Thank you, Mr. Temporary Speaker, Sir. In practice of law, when your worthy opponent has eloquently and substantively gone through something, normally we tell the judge, I have nothing useful to add. Sen. Sang has eloquently and in detail, discussed the Regulations. I wish to confirm that we, as a Committee, did all that we were expected to do. We listened to various stakeholders and invited the Ministry concerned, but you heard that we did not get their full cooperation. I wish to state that we must adhere to the law and we shall not encourage anybody who contravenes the law. As a result of that, we, as a Committee have recommended that Regulations 3, 12, 37, 45 (2) and Part 5 of be Regulations be annulled. With those few remarks, I beg to second. (Question proposed) The Temporary Chairperson (

Sen. Wetangula is not here, so, let me put the question. (Question put and agreed to)

June 17th, 2015 SENATE DEBATES IN THE COMMITTEE

June 17th, 2015 SENATE DEBATES

Mr. Temporary Chairman, Sir, I have also been listening to the presentation by Sen. Sang. I do not know why I feel that the Regulations are far too cumbersome or heavy. I have also looked at parts of the Report and I was wondering if the Committee on Delegated Legislation has examined some these issues being raised about the impact of these Regulations on the livelihoods of people; employment, earnings by tobacco farmers and the impact on foreign exchange earnings in form of balance of payments and all the rest. I did not hear him talk about that in particular, but I am hoping that all these were considered. I think the impact of these Regulations will be far too heavy.

We are not going to be regulating on every aspect of trade. We should not legislate on every aspect of issues which affect the lives of people. Could we reduce some of these Regulations and go with the bare minimum to make life easier for operators, the industry and everybody else?

For what reasons? (Sen. Sang organized his documents)

On a point of order, Mr. Temporary Chairperson, Sir. Will I be in order to say that since Sen. Sang seems not to have put his documents together, instead of having a long delay let us move on to Order No.13 and then we will come back to this? I do not think there are a lot of amendments.

Mr. Temporary Chairperson, Sir, this is a very serious Bill that we are dealing with. It affects the lives of our people and children. I do not see the amendments on the Order Paper for us to study and speak on them. I happened to be the Minister for Health when some of these Regulations were done and the industry was angry and got very involved. They took people on funny holidays and it even came to a point where they took us to the then Prime Minister, who invited us to discuss the issue with the stakeholders of the tobacco industry – British American Tobacco (BAT) and Mastermind Tobacco. They even sued the Minister. That is how important this Bill is. It was crafted according to the WHO standards and what is good for our people. They argued that we will lose a lot of taxes and treating people is more expensive than what we would gain in taxes. I propose that we do not rush this Bill and annul this and that. Can we be given the opportunity to see what is being annulled so that we can contribute from a well- informed point? The Temporary Chairperson (

Mr. Temporary Chairperson, Sir, Regulation 3 provides for the health warnings in pictures and pictograms. The problem that we raised with this is that the Ministry of Health has not provided these pictograms and pictures to the sector within the industry. We asked the Ministry of Health to appear before us to provide those clarifications, but the Ministry did not. We, as a Committee, said that since the technical repositories and the digital stage devices that are used to generate this are not issues that are available within the country, we asked the Cabinet Secretary to sit down and agree with the sector and ensure that they have been able to address themselves to this particular concern. For that reason, we are requesting to annul Regulation 3.

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

Mr. Temporary Chairman, Sir, the constraint provided for under the Statutory Instruments Act is that Parliament has no power to amend regulations. It only has power to either approve the regulation in total or annul. In this case, when you talk of annulling, you will be telling the Cabinet Secretary to readdress that.

In terms of the resolutions of the House, we will write to the Cabinet Secretary to tell them that the reason we annulled this regulation is for them to address certain issues. This is what we have done with other regulations like the Transport Regulations. Sometimes, it does not even take more than a week or two before the revised regulations are gazetted. Therefore, as a Committee, the regulations that we are proposing to adopt are the ones that we agree with in their entirety. The ones we want annulled are the ones we have reasons that they should be revised and re-gazetted afresh.

The Temporary Chairperson (Sen. Murkomen) : I hope that is clear. Let us hear from Sen. Wako. Then, we will hear from Sen. Wetangula and then Sen. Mugo.

Mr. Temporary Chairman, Sir, I apologise for not going through these regulations properly. However, I seek some explanation on annulment of Regulation No.3. How does it affect the First Schedule which is pursuant to, amongst other regulations, Regulation 3? In other words, does it mean that the whole Schedule will be annulled or just part of it? I just want to be clear on that.

The Temporary Chairperson (Sen. Murkomen) : I do not know if I am allowed, as the Chairman, to ask from here. However, Mr. Chairman, you said that the reason for annulling it is because there are no pictures. However, there are pictures in the Schedule. What does that mean?

Before the Chairman responds, let us listen to Sen. Wetangula then we shall hear Sen. Mugo.

The Senate Minority Leader (Sen. Wetangula) : Mr. Temporary Chairman, Sir, I have an issue with what Sen. Sang said. My understanding is that the regulations come to the House. We either approve them as they are or if we take issues with any, we move a deletion. If we think that the originating Ministry needs to recast, then we completely annul a regulation. We can also report that we have annulled another one and tell them to recast it in another way. That is my understanding. That is how we have done in the previous engagement. When you take them back and ask that they are re-done, we shall be turning this House into a rubberstamp. This House is not a rubberstamp. The purpose for which delegated regulations come to the House is for us either to approve, alter or delete them.

First before proceeding, I will ask the Chairperson to respond to the argument by Sen. Mugo that we need more time to look into these Regulations; whether he accedes to that request and why. If not, why?

Mr. Temporary Speaker, Sir, the Tobacco Regulations were published and gazetted on 5th December, 2014. We started the scrutiny process as provided by the law as a Committee and we tabled this Report which contains the sections and the deliberations of the Committee on those Regulations within the Senate before we went on recess. Therefore, the Committee Report is public document and it is available in the journal’s office.

I want to make it clear that we, as a Committee, went through the process. If Sen. Mugo was around when I moved the Motion, I made clear references to what the Committee did. We invited the Ministry of Health officials and the various stakeholders who made their presentations. We, as a Committee, are guided by the Statutory Instruments Act, the Tobacco Control Regulations Act and the Constitution of Kenya. Therefore, the issues that we are going to raise and the sections of Regulations we are approving and those that we propose to annul are principally based on the interactions

June 17th, 2015 SENATE DEBATES

Mr. Temporary Chairperson, Sir, Regulation 3 provides for the health warnings in pictures and pictograms. The problem that we raised with this is that the Ministry of Health has not provided these pictograms and pictures to the sector within the industry. We asked the Ministry of Health to appear before us to provide those clarifications, but the Ministry did not. We, as a Committee, said that since the technical repositories and the digital stage devices that are used to generate this are not issues that are available within the country, we asked the Cabinet Secretary to sit down and agree with the sector and ensure that they have been able to address themselves to this particular concern. For that reason, we are requesting to annul Regulation 3.

Mr. Temporary Chairperson, Sir, I really oppose annulling anything, especially the pictorial. Pictures are the ones that make a big impact. Even in countries like Australia, they put very scaring pictures on the cigarette packets that will deter people from buying that product. We should not treat it as the Cabinet Secretary’s problem because it is our problem because there are Kenyans who are going to be affected. We should give it more time so that instead of annulling the Cabinet Secretary and industry should do the pictorial. I am aware that they were present. I am surprised when you say that they were not there. I do not know what happened to those pictures because they have been developed. Pictures speak volumes. Young men and women think that it is fashionable smoking and when they see something like that, it rings a bell to them. I oppose the annulment. The Temporary Chairperson (

Mr. Temporary Chairperson, Sir, based on the submissions by a number of Senators, we have no objection, as a Committee, to that. Pointing out that particular issue on pictograms, it clearly indicates that there could be need for some tidying up to be done.

But just to address myself to the issue raised by Sen. Wetangula on annulment, we have two sets of regulations. The example that I would give is the Public Finance Management Regulations where they require the approval of Parliament before they are gazetted and take effect. In scrutinizing such regulations, the House would have the liberty to make amendments and forward them to the regulation making authority.

June 17th, 2015 SENATE DEBATES

Mr. Temporary Chairman, Sir, the constraint provided for under the Statutory Instruments Act is that Parliament has no power to amend regulations. It only has power to either approve the regulation in total or annul. In this case, when you talk of annulling, you will be telling the Cabinet Secretary to readdress that. In terms of the resolutions of the House, we will write to the Cabinet Secretary to tell them that the reason we annulled this regulation is for them to address certain issues. This is what we have done with other regulations like the Transport Regulations. Sometimes, it does not even take more than a week or two before the revised regulations are gazetted. Therefore, as a Committee, the regulations that we are proposing to adopt are the ones that we agree with in their entirety. The ones we want annulled are the ones we have reasons that they should be revised and re-gazetted afresh. The Temporary Chairperson (

Mr. Temporary Chairperson, Sir, I thank the Chair of the Committee for that magnanimity. I just want to inform him – and I hope he will take my information

June 17th, 2015 SENATE DEBATES

Mr. Temporary Chairman, Sir, as I move I ask Sen. Mugo, knowing her past experience and work within the Ministry if she can also talk to the Cabinet Secretary. We will invite the Ministry and if they feel like sending us the professor, that would make more sense to us so that we can to have that engagement with the Ministry. That should help the Committee.

I beg to move that the Committee of the Whole report progress on its consideration of the Tobacco Control Regulations, 2014 and seek leave to sit again on a day to be appointed by the Speaker.

Mr. Temporary Chairman, Sir, I have an issue with what Sen. Sang said. My understanding is that the regulations come to the House. We either approve them as they are or if we take issues with any, we move a deletion. If we think that the originating Ministry needs to recast, then we completely annul a regulation. We can also report that we have annulled another one and tell them to recast it in another way. That is my understanding. That is how we have done in the previous engagement. When you take them back and ask that they are re-done, we shall be turning this House into a rubberstamp. This House is not a rubberstamp. The purpose for which delegated regulations come to the House is for us either to approve, alter or delete them.

June 17th, 2015 SENATE DEBATES

Mr. Temporary Chairman, Sir, what I have is more or less what the Senate Minority Leader has said. We should make it clear that it is not completely annulled. We should make it clear that it will be recast as opposed to leaving it blank. The Temporary Chairperson (

June 17th, 2015 SENATE DEBATES

Next order!

June 17th, 2015 SENATE DEBATES

Sen. Sang, I am actually convinced that as the Chair you might need more time. What do you think? Can you convince us?

Mr. Temporary Chairperson, Sir, based on the submissions by a number of Senators, we have no objection, as a Committee, to that. Pointing out that particular issue on pictograms, it clearly indicates that there could be need for some tidying up to be done.

But just to address myself to the issue raised by Sen. Wetangula on annulment, we have two sets of regulations. The example that I would give is the Public Finance Management Regulations where they require the approval of Parliament before they are gazetted and take effect. In scrutinizing such regulations, the House would have the liberty to make amendments and forward them to the regulation making authority.

June 17th, 2015 SENATE DEBATES

Yes, I do. I have today’s Supplementary Order Paper and the Committee Chair has signed against this particular Order. That he is happy for me to move the amendments on behalf of the Committee. I also had earlier discussions with both the Chairperson and the Vice Chairperson of the respective Committee.

The Temporary Chairperson (Sen. Mositet) : Proceed, Senator. You have to indicate whether you are withdrawing some amendments.

Mr. Temporary Chairperson, Sir, is it for Clause 4 or are we still in Clause 3?

The Temporary Chairperson (Sen. Mositet) : We are on Clause 3. Just approach the table.

Therefore, you should move for us to report progress.

Mr. Temporary Chairperson, Sir, I thank the Chair of the Committee for that magnanimity. I just want to inform him – and I hope he will take my information

June 17th, 2015 SENATE DEBATES

Mr. Temporary Chairman, Sir, as I move I ask Sen. Mugo, knowing her past experience and work within the Ministry if she can also talk to the Cabinet Secretary. We will invite the Ministry and if they feel like sending us the professor, that would make more sense to us so that we can to have that engagement with the Ministry. That should help the Committee.

I beg to move that the Committee of the Whole report progress on its consideration of the Tobacco Control Regulations, 2014 and seek leave to sit again on a day to be appointed by the Speaker.

Those are the amendments from the Committee for Clause 3.

The Temporary Chairperson

(Sen. Mositet)

: You have to indicate that you are doing it on behalf of the Committee.

Yes. Clause 4

Mr. Temporary Chairman, Sir, the first part of Clause 4 is my recommendation.

I beg to move:- THAT, Clause 4 of the Bill be amended by inserting a new paragraph immediately after paragraph (e) -

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

- THAT, Clause 7 of the Bill be amended—

- THAT Clause 3 of the Bill be amended in subclause (1) by inserting the phrase “natural resources as defined in Article 260 of the Constitution including” immediately after the words of “the exploitation of”.

Mr. Temporary Chairperson, Sir, the reason for this is that there is an addition of natural resources to clarify that specific law. There is a direct reference to what the issue is and then at the end put “including” as defined in Article 260 of the Constitution. The reason for this amendment is that during public participation, there was a feeling that some of the specific natural resources had been left out.

Moreover, Article 260 of the Constitution directly gives reference to these particular natural resources. So, we intend to amend that specific Clause so that not only do we have the natural resources mentioned, but also make reference to Article 260 which is more inclusive.

We also have an amendment from the Chairperson of the Committee on Land and Natural Resources. There is another set of amendments where they have also indicated that they needed to add in that particular Clause two more specific areas; that is energy and wind.

June 17th, 2015 SENATE DEBATES

Mr. Temporary Chairperson, Sir, there is also an amendment from the Committee. The Committee includes two new areas of natural resources. They added energy and wind. The Temporary Chairperson (

I am withdrawing part (a) .Then, I plead that we incorporate that particular amendment from the Committee.

The second part of the amendment is deleting the whole of sub-clause 5 and substituting therefor the following new sub-clause;-

“In nominating and appointing persons as members of the Board, the nominating authorities and the Cabinet Secretary shall have regard to the principles of nondiscrimination on the basis of gender, disability, youth and marginalized persons under the Constitution”.

Mr. Temporary Chairman, Sir, when we debated in this House, there were feelings that in terms of the constitution of the Board, that these specific groups had been left out. I remember that Sen. Omondi was very specific that we need to be more inclusive. This tries to expand the Board so that we are more inclusive. However, even as I move this amendment, I also wish to add that now at the end of that sentence, we shall have “and the requirements of Chapter Six of the Constitution”. This amendment came from the Committee and I felt that it is important to also have aspects of Chapter Six in terms of leadership and requirements of leadership be incorporated in the members who will be part of that particular board.

Thank you, Mr. Temporary Chairman, Sir, The Temporary Chairperson (Sen. Mositet) : Sen. (Dr.) Zani, please move the amendment by the Committee as well.

Thank you, Mr. Temporary Chairman, Sir. I beg to move:- THAT, Clause 7 of the Bill be amended-

June 17th, 2015 SENATE DEBATES

On a point of order, Mr. Temporary Speaker, Sir. The Temporary Chairperson

(Sen. Mositet)

: Sen. Wako, please wait for me to propose the question.

The Temporary Chairperson

(Sen. Mositet)

: Please, proceed, Sen. Wako.

Thank you, Mr. Temporary Chairman, Sir. I just want clarification and to confirm whether my understanding is correct. It appears as if paragraph (g) was initially the Kenya Association of Manufacturers (KAM) and the Chairperson felt that the Kenya Private Sector Alliance (KEPSA) was a better representative, and that the ultimate now is to delete both of them and leave it as “a recognized umbrella body representing the interests of the private sector in Kenya.” I would like to know whether my understanding is correct and that we are not having both KEPSA plus another recognized body representing the interests of the private sector in Kenya.

Thank you, Mr. Temporary Chairman, Sir. That is the position. This is because, initially, when we went through the negotiations especially in sectors that are very well formed, it is very difficult to get a representative umbrella body that everybody agrees with. In the initial instances, we put Kenya Association of Manufacturers as the representative body but later on, when we had more consultations with stake holders, they said that KEPSA seemed to be the right one. After that, we decided not to get into the dynamics of which organization will be the representative that will be nominated and left this to them by coming up with an amendment that will allow them to do this within an umbrella body that is agreeable among themselves.

Thank you, Mr. Temporary Chairman, Sir. The Temporary Chairperson (Sen. Mositet) : Thank you, Sen. (Dr.) Zani. That is very clear. The question will come at the end, so let us proceed to the next clause. Clause 8

The Temporary Chairperson (Sen. Mositet) : There are no amendments to this clause. Therefore, we will vote on it at the end.

Clause 9

We are on Clause 3. Just approach the table.

No, that is okay. I beg to move that Clause 3 be amended as proposed so that that part of the Bill concurs with what is in the Order Paper. This is one of the amendments from the Committee. (

Thank you, Mr. Temporary Chairman, Sir. I beg to move:-

THAT clause 24 of the Bill be amended-

June 17th, 2015 SENATE DEBATES

Thank you, Mr. Temporary Chairperson, Sir. I beg to Move:- THAT, Clause 26 of the Bill be amended-

June 17th, 2015 SENATE DEBATES

Okay, I see that. The Temporary Chairperson (

Thank you, Mr. Temporary Chairperson, Sir. I beg to Move:- THAT, the Bill be amended by deleting Clause 32. The reason for this is that when we printed the final copy of this Bill, we realised that Clause 32 already appeared elsewhere in the Bill so, it completely replicates another section of the Bill.

Mr. Temporary Chairperson, Sir, I think we had passed it. It is just that I had wanted at the appropriate place for her to guide or inform me whether the phrase “lead agency” is defined in the Act. It is not in the main section which makes definitions but it may be in the body of the Act. I am just requesting for a confirmation because we are now using it quite a bit.

- THAT, Section (a) of Clause 3 be dropped and that we incorporate Section (b) by inserting the following new paragraphs immediately after paragraph (g) -

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

Thank you, Mr. Temporary Chairperson, Sir. I beg to Move:- THAT, Clause 37 of the Bill be amended in sub-clause (1) (b) by deleting subparagraph (i) and substituting therefor the following new subparagraph – (i) the financial statements of the Authority including—

You have to indicate that you are doing it on behalf of the Committee.

Yes. Clause 4

Mr. Temporary Chairman, Sir, the first part of Clause 4 is my recommendation.

I beg to move:- THAT, Clause 4 of the Bill be amended by inserting a new paragraph immediately after paragraph (e) -

- THAT, Clause 6 of the Bill be amended in sub-clause (1) by inserting the following new paragraphs immediately after paragraph (i) -

June 17th, 2015 SENATE DEBATES

Mr. Temporary Chairman, Sir, the amendments that I have moved are those that were from the Committee, but it is good that I have also covered them because they would have come as my amendments.

Mr. Temporary Chairman, Sir, I beg to move:- THAT, Clause 6 of the Bill be amended in subclause (1) by inserting the following new paragraphs immediately after paragraph (i) –

“ ( j) ensure and promote value addition of natural resources;

June 17th, 2015 SENATE DEBATES

Who is seconding you?

- THAT, Clause 7 of the Bill be amended—

I beg to move:- THAT, the Bill be amended in sub-clause (1) by deleting paragraph (g) and substituting therefor a new paragraph (g) -

Yes, I am withdrawing an aspect of it. As I move the one for the Committee, it will negate this particular one.

June 17th, 2015 SENATE DEBATES

I am withdrawing part (a) .Then, I plead that we incorporate that particular amendment from the Committee. The second part of the amendment is deleting the whole of sub-clause 5 and substituting therefor the following new sub-clause;- “In nominating and appointing persons as members of the Board, the nominating authorities and the Cabinet Secretary shall have regard to the principles of nondiscrimination on the basis of gender, disability, youth and marginalized persons under the Constitution”. Mr. Temporary Chairman, Sir, when we debated in this House, there were feelings that in terms of the constitution of the Board, that these specific groups had been left out. I remember that Sen. Omondi was very specific that we need to be more inclusive. This tries to expand the Board so that we are more inclusive. However, even as I move this amendment, I also wish to add that now at the end of that sentence, we shall have “and the requirements of Chapter Six of the Constitution”. This amendment came from the Committee and I felt that it is important to also have aspects of Chapter Six in terms of leadership and requirements of leadership be incorporated in the members who will be part of that particular board. Thank you, Mr. Temporary Chairman, Sir, The Temporary Chairperson (

June 17th, 2015 SENATE DEBATES

I believe it was properly seconded by Sen. Ong’era.

Sen. Ndiema, you had a balance of five minutes. You can utilise them.

June 17th, 2015 SENATE DEBATES

What is it, Sen. Kanainza?

Sen. Wako, please wait for me to propose the question. (Question of the amendment proposed) The Temporary Chairperson (

Thank you, Sen. Kanainza. I understand the confusion caused by having many Order Papers on your table. However, there is a Supplementary Order Paper.

Sen. Ndiema, you may proceed.

Mr. Temporary Speaker, Sir, as I said yesterday, the amount of funds that were allocated to the counties is a far cry of what counties require. Nevertheless, whatever has been availed should run counties. I called upon county governments to utilise the funds prudently. This is because what we are getting from most counties and the report from the Auditor-General is that there is a lot of misappropriation and misuse of funds.

Mr. Temporary Speaker, Sir, before we adjourned yesterday, we talked about the Fuel Levy Fund. We are punishing county governments when we allocate them only15 per cent of the Fuel Levy Fund and leaving a whopping 85 per cent to the national Government. A majority of the road network in this country are in the rural areas in counties. Currently, there are roads in the counties which need repair and maintenance. Come next year, we should – as a Senate – struggle to increase the amount to the level that is commensurate with the responsibilities that have been given to counties to maintain roads.

Mr. Temporary Speaker, Sir, polytechnics are very important especially for our youth. The Government stated that it is committed to ensuring that our youth are empowered. However, this does not seem to be reflected in the allocation of funds for polytechnics. In my county, for instance, we decided to have polytechnics; not village polytechnics. We want to have polytechnics in every ward which are fully equipped with all necessary teaching facilities and tools.

However, resources that have been allocated or transferred to the counties for that function are very little. I would have thought that in the same spirit that we encourage and allocate a lot of funds to the National Youth Service (NYS) , we should also look at the youth who do not join the NYS and allocate funds to them. It is time that we consider

June 17th, 2015 SENATE DEBATES

Order, Sen. Ndiema, your time is up.

Thank you, Sen. (Dr.) Zani. That is very clear. The question will come at the end, so let us proceed to the next clause. Clause 8 The Temporary Chairperson (

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

On a point of order, Mr. Temporary Speaker, Sir. I do not want to take the oomph from my colleague, the Senator. But I just want to point out that percentage is one thing and numbers are another. You can have a very high percentage of a very low number. So, you need to compare oranges with oranges.

Mr. Temporary Speaker, Sir, I think my good friend, the Senator, should have the patience to live with facts, especially when they are coming from a doctor of Medicine. A birth rate of 45 means that for every 1,000 women, there are 45 deliveries. In Kiambu, it is 37. When you now factor it into the general population, Kakamega has more people than Kiambu. So, you cannot run away from it. People are just practicing bad governance. Let me not concentrate on that; you can challenge me in your own contribution.

Mr. Temporary Speaker, Sir, the next thing that I want to talk about is the conditional allocation to compensate health facilities for foregone user fees of revenue. This is another area where Members might again need to know that the national Government is shortchanging the county governors. “Foregone user” means that if the national Government has stopped any little levies, for example, Kshs20 for a card, Kshs50 for a laboratory test and so on, then it is supposed to take to that hospital the equivalent amount, as if those people had paid.

If I use my county as an example, Kakamega County is being given Kshs38 million for the whole year, yet in practice, it collects Kshs18 million every four months, which translates to Kshs54 million a year. So, if Kakamega had been allowed to be managed the way we were managing it – and I have worked there for several years – it was going to run better than when the Government sends them the Kshs38 million. But now it ends up sending Kakamega less money. That applies across all the hospitals.

Mr. Temporary Speaker, Sir, regarding conditional allocations for leasing of medical equipment, the Government after dilly dallying has finally brought that money. My advice to them, because it is not too late, is that you are going to waste money by buying equipment and taking it to, for example, Lamu or Kathiani where I have worked. They will simply not be able to use that equipment for two reasons; they do not have capacity and human resource. So, the wise thing for the Government to do is that instead of burning all these billions buying them, let them first equip the 11 Level 5 hospitals in the country, so that people in Nyanza region can go to Kisumu and others to Kisii. Some of those in western region can go to Moi Teaching and Referral Hospital, Eldoret, and others to the former Kakamega Provincial General Hospital. That is the way to do it.

Mr. Temporary Speaker, Sir, I now want to speak to the conditional allocation of the County Emergency Fund. My able Chairman of the Mediation Committee, Sen. Kagwe, I think we won. Regarding the Kshs4.4 billion which hon. Mutava Musyimi thought he had defeated us over, we faced Dr. Kamau Thugge in the eye, and I am glad that he has eventually included this money. Governors will now have money for emergencies on the spot.

There are no amendments to Clauses 10, 11,12,13,14,15,16,17,18,19,20,21,22 and 23. Therefore, we will vote for them at the end. (Question, that Clauses 10, 11, 12, 13 ,14,15,16,17,18,19, 20,22,22 and 23 be part of the Bill, proposed) Clause 24

June 17th, 2015 SENATE DEBATES

Thank you, Mr. Temporary Chairperson, Sir. I beg to Move:- THAT, Clause 26 of the Bill be amended-

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

I will put the question at the end. Clause 31 (Question that Clause 31 be part of the Bill proposed) The Temporary Chairperson (

June 17th, 2015 SENATE DEBATES

Mr. Temporary Speaker, Sir, from the outset, I want to say that I support the Bill. I qualify that even though I support the Bill; there are many aspects of the Bill that I would like to see differently. I disagree with those who say that devolution has had no effect on communities and people because the Committee on Information and Technology last week completed visiting 27 counties.

In two years, we have seen every aspect of people’s lives get different from before devolution. That is why I wonder what the enemies of devolution think when they say that they do not like or want to see devolution. For the first time in a county like Nyeri, we have ambulances that pick the sick from villages. For the first time in our counties, we are seeing hospitals that are beginning to work. This is the first time that this is happening as opposed to popular opinion. The other aspect that we must remember about devolution is that we must keep in mind that economics works on the basis of money that has been devolved downwards through the multiplier process.

Money is multiplied because it is with the people. The more money you can multiply in different people’s hands, the bigger the economy and the greater the Gross Domestic Product (GDP) . It is an aspect that we never talk about or do not see, but that is probably the biggest aspect of devolution; that there are those youths and workers in hospitals who can spend a little bit more money in the counties because that is where they are working. There are Government or county officers who can buy a little bit more unga from the kiosk and because they can do so, the person working in the kiosk can employ one more person. That is how the economy begins to move and work all over the world.

Mr. Temporary Speaker, Sir, for us to pretend that we cannot see that, and for those who do not like devolution to pretend that it was always the case, prior to devolution, is at the very least dishonest. While we can see that money has been allocated to the various counties, never mind the pros and cons of it, I think that one of the things that we must also remember is that the ultimate ambition of devolution is that counties are supposed to sustain and develop themselves to the extent that like other nations of the world, there will be counties that will actually contribute backwards to the economy, rather than just accepting money from the national Government.

If you look at some of the most devolved countries, for example, in India, where 65 per cent is devolved counties, you will find that there are some counties there that actually give net wise money to the Government and not the other way round. I think that it is good for us to have a vision about tomorrow’s devolution. How will counties be devolved tomorrow? What sort of devolved system are we going to have in another 50 years, long after we are not here? It is today that the foundation of what is going to happen in the next 50 years has got be laid.

If we do not do that, in the next 50 years, when our grand children will be sitting in this House, they will still be talking the same language. That will be failure on our part.

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

I will put the question at the end. (Question that Clauses 33, 34, 35 and 36

June 17th, 2015 SENATE DEBATES

Thank you, Mr. Temporary Chairperson, Sir. I beg to Move:- THAT, Clause 37 of the Bill be amended in sub-clause (1) (b) by deleting subparagraph (i) and substituting therefor the following new subparagraph – (i) the financial statements of the Authority including—

Thank you, Mr. Temporary Chairperson, Sir. I beg to Move:- THAT, Clause 2 of the Bill be amended by inserting the following new definitions in their proper alphabetical sequence-

June 17th, 2015 SENATE DEBATES

Mr. Temporary Chairman, Sir, pursuant to Standing Order No.139, I beg to move that the Committee of the Whole reports progress on its consideration of The Natural Resources (Benefit Sharing) Bill (Senate Bill No. 34 of 2014)

June 17th, 2015 SENATE DEBATES REPORT THE NATURAL RESOURCES (BENEFIT SHARING) BILL (SENATE BILL NO. 34 OF 2014)

Mr. Temporary Speaker, Sir, I beg to report that the Committee of the Whole has considered The Natural Resources (Benefit Sharing) Bill (Senate Bill No. 34 of 2014) and seeks leave to sit again tomorrow.

Mr. Temporary Speaker, Sir, I beg to move that the House do agree with the Committee in the said Report.

Who is seconding you?

Mr. Temporary Speaker, Sir, I would like to request Sen. (Dr.) Ong’era to second.

Gender! Gender! Sen. Ongera seconded.

Next Order.

On a point of order, Mr. Temporary Speaker, Sir. The Clerk read the next order too fast. I had already indicated that I wanted to rise on a point of order. Just as a matter of cleaning the record of the House, normally when Members comment even when they are not on their feet properly, what they say sometimes gets on the HANSARD. Sen. (Dr.) Zani had clearly indicated that Sen. Ong’era was the one to second but then there was another Senator who was shouting “gender, gender”. Can that record be cleared so that in the future somebody reading the HANSARD will not think that there was a Senator called gender?

June 17th, 2015 SENATE DEBATES

I believe it was properly seconded by Sen. Ong’era.

Sen. Ndiema, you had a balance of five minutes. You can utilise them.

Thank you. Mr. Temporary Speaker, Sir, for giving me time to continue from where I had left.

What is it, Sen. Kanainza?

On a point of order, Mr. Temporary Speaker, Sir. Looking at today’s Order Paper, after Order No.12 which we have just completed, we were supposed to go to Order No.13 which is the Reproductive Health Care Bill. However, we have moved to Order No.14.

Thank you, Sen. Kanainza. I understand the confusion caused by having many Order Papers on your table. However, there is a Supplementary Order Paper.

Sen. Ndiema, you may proceed.

Mr. Temporary Speaker, Sir, as I said yesterday, the amount of funds that were allocated to the counties is a far cry of what counties require. Nevertheless, whatever has been availed should run counties. I called upon county governments to utilise the funds prudently. This is because what we are getting from most counties and the report from the Auditor-General is that there is a lot of misappropriation and misuse of funds.

Mr. Temporary Speaker, Sir, before we adjourned yesterday, we talked about the Fuel Levy Fund. We are punishing county governments when we allocate them only15 per cent of the Fuel Levy Fund and leaving a whopping 85 per cent to the national Government. A majority of the road network in this country are in the rural areas in counties. Currently, there are roads in the counties which need repair and maintenance. Come next year, we should – as a Senate – struggle to increase the amount to the level that is commensurate with the responsibilities that have been given to counties to maintain roads.

Mr. Temporary Speaker, Sir, polytechnics are very important especially for our youth. The Government stated that it is committed to ensuring that our youth are empowered. However, this does not seem to be reflected in the allocation of funds for polytechnics. In my county, for instance, we decided to have polytechnics; not village polytechnics. We want to have polytechnics in every ward which are fully equipped with all necessary teaching facilities and tools.

However, resources that have been allocated or transferred to the counties for that function are very little. I would have thought that in the same spirit that we encourage and allocate a lot of funds to the National Youth Service (NYS) , we should also look at the youth who do not join the NYS and allocate funds to them. It is time that we consider

June 17th, 2015 SENATE DEBATES

Order, Sen. Ndiema, your time is up.

Mr. Temporary Speaker, Sir, I rise to support this Bill. However, I am supporting it purely for purposes of record. I would like it to be recorded in the HANSARD that we spoke, the Government heard but it chose to hide in the “Lower House”, ignored the wisdom of the “Upper House” and the country did not move at the pace it could have moved. I say this because in the first year, when we did the Division of Revenue Bill, we were ignored. We went to the Supreme Court and threatened to amend the Constitution. That caused that Bill to be brought here in the second year. Now, in the third year when we thought things were moving, we ended up in a mediation which was ignored. However, they have heard and history has recorded that we have said.

Mr. Temporary Speaker, Sir, I would like to start, thereafter, by announcing to the people of Kakamega that the Senate of the Republic of Kenya has successfully agreed and supported my request that Kakamega County, for the next financial year, be given a whopping Kshs8,908,229,519. I thank colleagues for that. Just like you supported the figure for Kakamega County, I assure the people of Elgeyo-Marakwet that I will also support the figure for that county just like I would do for all other counties.

Mr. Temporary Speaker, Sir, each county government’s allocation under sub- section 1 shall be transferred to the respective County Revenue Fund in accordance with a payment schedule approved by this Senate and published in the Kenya Gazette by the Cabinet Secretary. It is important that this provision in this Bill be read out to the public the way I have done. This is because when you meet governors in a public function, they say that “The figures that Sen. Orengo is talking about are his. We have not seen the

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

On a point of order, Mr. Temporary Speaker, Sir. I do not want to take the oomph from my colleague, the Senator. But I just want to point out that percentage is one thing and numbers are another. You can have a very high percentage of a very low number. So, you need to compare oranges with oranges.

Mr. Temporary Speaker, Sir, I think my good friend, the Senator, should have the patience to live with facts, especially when they are coming from a doctor of Medicine. A birth rate of 45 means that for every 1,000 women, there are 45 deliveries. In Kiambu, it is 37. When you now factor it into the general population, Kakamega has more people than Kiambu. So, you cannot run away from it. People are just practicing bad governance. Let me not concentrate on that; you can challenge me in your own contribution.

Mr. Temporary Speaker, Sir, the next thing that I want to talk about is the conditional allocation to compensate health facilities for foregone user fees of revenue. This is another area where Members might again need to know that the national Government is shortchanging the county governors. “Foregone user” means that if the national Government has stopped any little levies, for example, Kshs20 for a card, Kshs50 for a laboratory test and so on, then it is supposed to take to that hospital the equivalent amount, as if those people had paid.

If I use my county as an example, Kakamega County is being given Kshs38 million for the whole year, yet in practice, it collects Kshs18 million every four months, which translates to Kshs54 million a year. So, if Kakamega had been allowed to be managed the way we were managing it – and I have worked there for several years – it was going to run better than when the Government sends them the Kshs38 million. But now it ends up sending Kakamega less money. That applies across all the hospitals.

Mr. Temporary Speaker, Sir, regarding conditional allocations for leasing of medical equipment, the Government after dilly dallying has finally brought that money. My advice to them, because it is not too late, is that you are going to waste money by buying equipment and taking it to, for example, Lamu or Kathiani where I have worked. They will simply not be able to use that equipment for two reasons; they do not have capacity and human resource. So, the wise thing for the Government to do is that instead of burning all these billions buying them, let them first equip the 11 Level 5 hospitals in the country, so that people in Nyanza region can go to Kisumu and others to Kisii. Some of those in western region can go to Moi Teaching and Referral Hospital, Eldoret, and others to the former Kakamega Provincial General Hospital. That is the way to do it.

Mr. Temporary Speaker, Sir, I now want to speak to the conditional allocation of the County Emergency Fund. My able Chairman of the Mediation Committee, Sen. Kagwe, I think we won. Regarding the Kshs4.4 billion which hon. Mutava Musyimi thought he had defeated us over, we faced Dr. Kamau Thugge in the eye, and I am glad that he has eventually included this money. Governors will now have money for emergencies on the spot.

June 17th, 2015 SENATE DEBATES

Order, Sen. (Dr.) Khalwale. Your time is up.

Proceed, Sen. Muthama.

Mheshimiwa Spika wa Muda, ninashukuru sana, lakini moyo wangu ni mzito. Ninasimama hapa bila maneno ya kuzungumza kwa sababu nimewaza baada ya kuusoma Mswada huu, nikaangalia na nikasikiza maneno yaliyotajwa na wenzangu. Lakini sarakasi yenyewe ni kwamba hata tupiganie pesa hizi usiku na mchana

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

Mr. Temporary Speaker, Sir, from the outset, I want to say that I support the Bill. I qualify that even though I support the Bill; there are many aspects of the Bill that I would like to see differently. I disagree with those who say that devolution has had no effect on communities and people because the Committee on Information and Technology last week completed visiting 27 counties.

In two years, we have seen every aspect of people’s lives get different from before devolution. That is why I wonder what the enemies of devolution think when they say that they do not like or want to see devolution. For the first time in a county like Nyeri, we have ambulances that pick the sick from villages. For the first time in our counties, we are seeing hospitals that are beginning to work. This is the first time that this is happening as opposed to popular opinion. The other aspect that we must remember about devolution is that we must keep in mind that economics works on the basis of money that has been devolved downwards through the multiplier process.

Money is multiplied because it is with the people. The more money you can multiply in different people’s hands, the bigger the economy and the greater the Gross Domestic Product (GDP) . It is an aspect that we never talk about or do not see, but that is probably the biggest aspect of devolution; that there are those youths and workers in hospitals who can spend a little bit more money in the counties because that is where they are working. There are Government or county officers who can buy a little bit more unga from the kiosk and because they can do so, the person working in the kiosk can employ one more person. That is how the economy begins to move and work all over the world.

Mr. Temporary Speaker, Sir, for us to pretend that we cannot see that, and for those who do not like devolution to pretend that it was always the case, prior to devolution, is at the very least dishonest. While we can see that money has been allocated to the various counties, never mind the pros and cons of it, I think that one of the things that we must also remember is that the ultimate ambition of devolution is that counties are supposed to sustain and develop themselves to the extent that like other nations of the world, there will be counties that will actually contribute backwards to the economy, rather than just accepting money from the national Government.

If you look at some of the most devolved countries, for example, in India, where 65 per cent is devolved counties, you will find that there are some counties there that actually give net wise money to the Government and not the other way round. I think that it is good for us to have a vision about tomorrow’s devolution. How will counties be devolved tomorrow? What sort of devolved system are we going to have in another 50 years, long after we are not here? It is today that the foundation of what is going to happen in the next 50 years has got be laid.

If we do not do that, in the next 50 years, when our grand children will be sitting in this House, they will still be talking the same language. That will be failure on our part.

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

Thank you, Mr. Temporary Speaker, Sir, for giving me this opportunity to support this Bill on equitable allocation of revenue among county governments. The Kshs259 billion proposed in this Bill to be divided among the 47 counties is, in fact, nearly equal to the Kshs258 billion that this Senate considered adequate to meet the needs of counties two years ago in the Financial Year 2013/2014. Since then, Senators transferred a number of key functions from the national Government to counties. Unfortunately, the marching resources have not been transferred which means counties will not be enabled to perform those functions.

My opinion is that we could be setting up counties for failure. I am, therefore, of the strong view that far too much money is being retained by national Government Ministries. This is demonstrated by the fact that in a Budget of Kshs1.8 trillion, only Kshs283 billion which includes additional conditional allocations is going to counties. I need to emphasize that we need more money in the counties and we will continue to fight for more money to go to counties.

Mr. Temporary Speaker, Sir, look at the whooping Kshs25 billion that has been given to the National Youth Service (NYS) which is an institution working under the Ministry of Devolution and Planning. The money is meant to construct dams and roads and yet this is a devolved function. This money should be given directly to counties so that if they wish to engage NYS, then they are at liberty to do so.

Irrigation under the Ministry of Agriculture Livestock and Fisheries has been allocated a huge sum of money and yet the function of agriculture and livestock has been devolved. In health, Kshs59 billion is being retained at the Ministry of Health headquarters and yet we know that health services were devolved. Health care facilities such as dispensaries, health centres and hospitals are under the care of county governments. This is the precise amount that we are giving to seven of our largest counties in terms of population. Look at the amounts given to Nairobi, Kiambu, Nakuru, Kakamega, Mandera and Kisii counties. That is precisely the amount that we are giving

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

Mr. Temporary Speaker, Sir, I begin, first of all, by thanking the team of Sen. Kagwe, Sen. Elachi and Sen. (Dr.) Khalwale for the wonderful job they did when we had a stalemate on the question of division of revenue. I also thank, hon. T.J. Kajwang’, a Member of the National Assembly, not for remaining firm and supporting the team from the Senate but because he was doing right for the country. I hope that the spirit of bipartisanship which our team demonstrated when they went for negotiations will colour other businesses that we will deal with in the Senate.

Mr. Temporary Speaker, Sir, as a starting point, Sen. Kagwe gave me an idea that I do not want to take for granted. He said that some people are talking of scrapping off the Senate and he thought that that was a wild idea. I want to convince him that it may not be a wild idea because there was once a Senate and it was scrapped off in broad daylight. There was a Senate and Parliament that felt that it was necessary to scrap off the Senate. They did not only scrap off the Senate but also abolished regional governments. An imperial presidency was established. The eight or nine regional governments that were in existence at that time were no more.

Therefore, Mr. Temporary Speaker, Sir, when somebody in leadership in the National Assembly says that they will scrap the Senate, I do not take it as an idle engagement or a joke. We must be prepared for this new threat to devolution. Indeed, historically, the narrative has not just been about the Senate. You will remember that there was a time when the former President, the late Mzee Jomo Kenyatta and others were in detention. During that time, people said that when we become free, nobody, man or woman of this country, will ever be detained. Within three years of the Independence Government, it was not just those who were enemies of the freedom fighters who were detained. They sent each other, amongst themselves, to detention. Over the next five or six years, more than 20 national leaders went into detention.

Another wild idea came that Kenya is too busy to have a multiparty system and, therefore, it only needed one party. It took an afternoon in the National Assembly to get rid of other political parties. Subsequently, again, it took less than an hour for the

June 17th, 2015 SENATE DEBATES

June 17th, 2015 SENATE DEBATES

Order! Sen. Orengo, you will have six more minutes when debate on the Bill resumes tomorrow.

Hon. Senators, it is now time to adjourn the House. The House, therefore, stands adjourned until tomorrow, Thursday 18th June, 2015, at 2.30 p.m.

The Senate rose at 6.30 p.m.