October, 22 2014 SENATE DEBATES Wednesday, 22nd October, 2014

Mr. Speaker, Sir, I beg to lay the following Paper on the Table of the House today Wednesday, 22nd October, 2014:-

Report of the Ministry of Energy and Petroleum on the Performance for the Period between July 2013 to June 2014.

Sen. Mwakulegwa, did you present one or two Papers?

Mr. Speaker, Sir, I presented one Paper.

Okay. Next Order. Hon. Members who had the Floor yesterday?

Sen. Chelule, but she concluded!

Sen. Chelule, you actually concluded yesterday. So, any other person wishing to contribute is welcome.

October, 22 2014 SENATE DEBATES THANKS FOR PRESIDENTIAL ADDRESS

Thank you, Mr. Speaker, Sir. I join my colleagues on noting the Address on His Excellency the President that he made on Monday 6th October, 2014 during the Special Sitting of Parliament.

Mr. Speaker, Sir, before the President left for The Hague, there was a lot of anxiety in the country. There were so many people giving different scenarios on what could happen if he went to The Hague. There were many analysts on television and radio justifying their reason he should or should not attend his status conference at The Hague. However, when he addressed the Special Sitting of Parliament, many people were actually caught off guard.

Mr. Speaker, Sir, yesterday as I was coming from a meeting on Ngong Road, I was listening to the radio. I heard the Senate Minority Leader bashing the whole sitting and the whole Motion. However, there were some very reasonable Members, including the Deputy Minority Leader who actually attended the sitting. The President has the leeway to address the Parliament any time that he pleases so long as he follows the procedure as he did. The Address dispelled very many fears that Kenyans had. We heard many people urging the President not to go while others told him to go The Hague. However, he took a very firm stand. When he made the decision to go, he caught many unawares. The best thing for any leader is the ability to make a decision. Even if this decision was touching on Kenyans, at the end of it, it was touching on him as a person. It was touching on his responsibility on over the 40 million Kenyans of whom he is the President. He showed guidance. We saw him go to The Hague. He sat through the proceedings.

We saw how the prosecutor tried to really prove a case that does not exist. We saw the prosecutors trying to make the burden of proof to be on the accused. Lawyers know in every case, especially criminal case, the burden of the proof is on the prosecutor. We were hoping that the ICC, with regard to how it was formed and why it was formed, even if we do not fault it, an office is as good as anyone who is sitting in it. Even the positions we occupy today, we cannot condemn the Senate. You must then condemn each and every Member who sits on their individual capacity. That is why when

October, 22 2014 SENATE DEBATES

October, 22 2014 SENATE DEBATES

Sen. Wangari, I did not wish to interrupt you, but you said “the prayers of Kenyans and women”; where does that live men?

Proceed, Sen. Elachi.

Mr. Speaker, Sir, I also rise to support this Motion and also thank the President for standing firm for the sovereignty of this country. Today, the institution of the Senate finds itself in a dilemma. It is that respect of an institution that we need to uphold so that we can get out respect. That is what the President did for this country. He stood with humility for the sake of the institution of presidency of this country. He stood up for 40 million Kenyans to earn the respect of the whole world.

The President also stood firm to ensure that the relationship we have with the African Union (AU) continues to flourish knowing very well that they stood with Kenya. Therefore, he had to keep that promise. That is why he had to ensure that Kenya continues because Kenya is bigger than any one of us. Indeed, that is what he showed us.

I also want to thank the Deputy President. Whether we like it or not, he also made history. When we document our history, it will be said one time, he was the acting President of the Republic of Kenya. He was, indeed, an acting President at one time, whether it was for one hour or 48 hours.

Mr. Speaker, Sir, yesterday, I interrupted the Senate Minority Leader, who is also my leader from western Kenya and I respect him, because I think the issue of respect of institutions must be upheld. If we need to see that happening, then we must show an example. It is from this Senate that we will get people who will vie for Presidency of this country. Therefore, one will need respect when that time comes. As I speak, we, as Kenyans, need to uphold the rule of law. We must respect the institutions created by our Constitution. It is unfortunate, the way some of us play political games on this issue. In 2007/2008 all of us were in this mess. We know that the Tenth Parliament pushed us to The Hague. We should ask ourselves how Kenya can come out of this mess. It is sad that we have continued politicizing the whole process. We have decided that the ones who are there are the ones who were the perpetrators. That is very wrong. With the new dispensation, it is time we focus ourselves positively on how we deal with these issues.

The Senate must be an institution that will take Kenya to the next level. Kenyans are looking upon us and believe that they can find sanity within the Senate. However, if

October, 22 2014 SENATE DEBATES

Order, Sen. Elachi! A Senator speaks through resolutions. I do not remember any resolution we passed on the basis of ethnicity. So, you may talk of individuals.

Mr. Speaker, Sir, that is what I said. I said that it is for us to search ourselves and remember the institution that we are in. It is an institution that upholds the country together. The country is looking upon us to give direction in a positive way. Therefore, whatever we do out there as individuals, always remember when you come out people will not look at you as a Member of the Senate. That is what I was trying to say. The President requested the two Houses to have a joint session because we are representatives of the people. Therefore, by talking to the two Houses of Parliament, he talked to every Kenyan through their representatives so that they can understand why he has to go to The Hague. He had to uphold the image of Kenya to ensure that the respect we have gained continues.

Mr. Speaker, Sir, the President knew very well that we are a young democracy and many Kenyans might not understand. The only way was to come and explain to Kenyans. It is for us now to learn from that. It is time we went out and let Kenyans understand what our role is in the society. They are also asking us what our role is. We, as a young institution, have a big challenge to ensure devolution works in this country.

Mr. Speaker, Sir, another lesson we learnt from the President is that we, as leaders, have been part of the progress of this country and we need humility in dealing with fellow Kenyans. With humility, we can go far and earn respect from our fellow Kenyans. As we move on, we have many challenges, including supremacy battles with different institutions.

October, 22 2014 SENATE DEBATES

Mr. Speaker, Sir, I take this opportunity to support. I am one of the few from the CORD Coalition who attended the session. I am proud because it was something that I was expecting the President to make a decision. The decision that he took was good and courageous. There are four things that he did. One, he separated personal and official responsibilities. That is why he told Kenyans that he will leave the presidency and go to The Hague as a private citizen called Uhuru Kenyatta. To me, that was a bold and courageous decision which I admired. He also set a good example for the rest of Africa. The other heads of states had requested him not to go, but looking at the fact that he might put this country in cross-roads and blame, he decided to do something not only for himself, but for the good of this country. He decided to go.

There were so many opinions on that matter. That is why I had to come and hear what he had to say. First and foremost, there was a gazette notice from the Speaker recalling the House. Therefore, I came knowing that I represent the people of Taita Taveta County. Even on my own personal capacity, I wanted to hear from the horse’s mouth his decision. If he would have made a contrary decision, I would have given my views otherwise. However, he did what I expected him to do. It was a good decision.

As we discuss, we also hope and wish that the victims also get a fair hearing so that justice is seen to be done to both sides. We, as Kenyans, must be careful. We have

October, 22 2014 SENATE DEBATES

Mr. Speaker, Sir, thank you very much. I also rise to add my voice in congratulating the President, for not just a very informed speech, but also very informed actions. In doing what he did and telling Kenyans what he told them, he emphasized that Kenya is a nation that respects the rule of law, not just internally, but also externally.

There are those who had advised him not to take this particular action and not to present himself to The Hague, but I think what he did was wise. It is wise, not only because of the fact that we, as a nation, are seen to be respectful of the international community, but also because in a sense it was also a set up. There are those who would have wanted him not to go to The Hague, so that The Hague could then turn around and issue a warrant of arrest saying that he had refused to attend the court hearing. Therefore, they would have assumed that he is a criminal forthwith. Therefore, in a manner of speaking, the President called the bluff of the ICC.

Mr. Speaker, Sir, like Sen. Mwazo, I was sitting in that chamber. It was embarrassing moment, not for the President, but the ICC. This is because the President

October, 22 2014 SENATE DEBATES

October, 22 2014 SENATE DEBATES

October, 22 2014 SENATE DEBATES

Asante sana, Bw. Spika. Ninachukua nafasi hii kuunga mkono Hotuba iliyotelewa na Mhe. Rais wa Kenya. Kwanza ningependa kuwapongeza Wabunge wa mrengo wa CORD ambao walikuja kuhudhuria kikao hiko kufuatia mwito wa Rais kwa sababu yeye ni Rais wa kila mtu katika taifa hili. Ilikuwa na faida gani kutengewa viti kwenye Bunge na kuamua kutohudhuria na bado unaonekana kwenye runinga ukiongea mambo mengine. Ilikuwa ni aibu kubwa sana. Kwa nini msiitikie mwito badala ya kukaa nyumbani na kujifanya hamna haja huku mnataka kujua kile ambacho anahutubia Bunge. Hilo ni jambo la huzuni sana.

Bw. Spika, Rais wa Kenya alijitoa mhanga na kuonyesha ushujaa wake. Tunajua kwamba si rahisi kiongozi kupeana nafasi kwa mwenzake akalie kiti chake cha uongozi. Mbona wewe hunikaribishi kwenye kiti cha Spika ili nikalie hata kwa dakika mbili ili katika historia ijulikane kwamba nimewahi kukalia kiti cha Spika. Ukiangalia historia ya nchi ya Kenya, kuna watu ambao wakati huu wameaga dunia, lakini wangepewa hicho kiti kwa dakika mbili tu, wangefufuka kutoka makaburini mwao. Hilo ni jambo la kihistoria ambalo Wakenya watalikumbuka milele. Dunia nzima itakumbuka ule uhusiano wa Rais na Naibu wa Rais kama ule ambao hauna kifani; ni undugu na ujamaa ambao hakuna mtu anayeweza kueleza.

Bw. Spika wakati Kenya inashinda medali michezoni sisi sote hufurahia. Vile vile tukifiwa, sisi sote huwa na huzuni kwamba mmoja wetu amefariki. Sioni ni kwa nini wakati huu tuna dua ya kuku au dua mbaya wakati mmoja wetu anatarajia kuhukumiwa kule The Hague. Ni lazima tuwe wazalendo; jambo likimkabidhi mwenzetu inafaa sisi sote tusaidiane kama jamii moja. Pia ningependa kusema kwamba, inafaa tuwaangalie wale waathiriwa wa michafuko ya 2007/2008. Watu hao wakiweza kuishi vizuri kama Wakenya wenzao, tutafutika machozi kidogo.

October, 22 2014 SENATE DEBATES

Thank you, Mr. Speaker, Sir. I also rise to join my colleagues in congratulating the Head of State for the manner in which he decided to address the anxiety and all the confusion that was almost to arise as a result of the summon that he received. Acknowledging this, he quoted Article 132 of the Constitution that provides him such a time to address Parliament. For that reason, he was not there as an intruder. He came legally in the House in order to give a speech and address the nation on any matter that may be of interest. He also mentioned as he spoke that he came in as a representative of the people as indicated in Article 1 of our Constitution. On anything that may be touching on them and sovereignty, an elected representative of the people must address them. I will quote that Article 1 (3) of the Constitution. It says:-

October, 22 2014 SENATE DEBATES

October, 22 2014 SENATE DEBATES

October, 22 2014 SENATE DEBATES

October, 22 2014 SENATE DEBATES

Yes, Sen. Keter? Sen. Leshore, I have just seen you now. I saw you briefly on my screen, but you disappeared.

Thank you, Mr. Speaker, Sir, for giving me this opportunity to contribute on this important Motion. From the outset, I want to say that I am one of those Members who have really been to The Hague since it started, even before the six were named. This is because of one thing, which I believe; I will always maintain that nobody planned violence in Kenya.

I will say that daytime and at night because I remember very well for those of us who were in the Orange Democratic Movement (ODM) . We were campaigning all over the country. We went round looking for votes. After that, there was violence after the announcement of the presidential results. When the results of all the respective Members of Parliament were announced, there was nothing. However, violence erupted after the delay of the presidential results. It is good that my colleague, Sen. Ongoro, across there, was with me in ODM. We went round together soliciting for votes. There was violence

October, 22 2014 SENATE DEBATES

October, 22 2014 SENATE DEBATES

Sen. Keter, I thought that you are doing the third term now.

Yes, Mr. Speaker, Sir.

In 10 years, we have two terms in which you also served as an Assistant Minister.

Yes, Mr. Speaker, Sir. I was only there for two years. I cannot say I have been in the Government because the years I was in the opposition are more than the years that I was in the Government. In any case, it was a nusu mkate Government so I cannot say I have been in there.

Mr. Speaker, Sir, the questions which Bensouda was asking our President are from the witnesses who had sat somewhere and wrote statements saying that the President called them and did this or that to them. These are the same witnesses appearing also in the case of the Deputy President. I remember before the Ocampo six were mentioned, we were on record saying that these witnesses had been compromised and paid to fix some people. Therefore, it is high time for the ICC to get to know that.

Regarding the telephone numbers which they are asking, why is it that these witnesses never gave out those numbers?

October, 22 2014 SENATE DEBATES

Sen. Keter, you have exhausted your entire allocation and yet you are saying that you do not want to say much. You have already said all that you needed to say.

Thank you, Mr. Speaker, Sir. I want to join my colleagues as well in congratulating His Excellency the President for the action he took during the difficult times of decision-making with regard to the case at The Hague.

I would like to congratulate the President for making a decision to address Parliament because he could have done it in any other way. However, I thought and I am still thinking that the act of addressing Parliament, although Constitutional, is a sign of great humility by His Excellency the President. He recognised

October, 22 2014 SENATE DEBATES

October, 22 2014 SENATE DEBATES

Thank you, Mr. Speaker, Sir, for giving me this opportunity to join my colleagues in contributing to the Speech made by His Excellency President Uhuru Kenyatta on the 6th of October 2014. First, I wish to congratulate the President because he acted within the Constitution. He respected the other arm of the Government known as the Legislature. He respected the sovereignty of our country. He respected the people who have been elected to represent the people of Kenya by calling us and addressing not only Parliament, but the entire nation.

Mr. Speaker, Sir, before the 6th of October, 2014, I was so confused whether to tell the President to go or not to go because I was weighing these two options. I was asking myself: If he will not go to The Hague, what will happen to him and Kenyans? If he goes to The Hague as a President, what will happen? But thank God. God loves Kenya. Indeed, God loves Kenya because through the wise counsel given by his lawyers he came up with a solution which made the entire country happy.

October, 22 2014 SENATE DEBATES

October, 22 2014 SENATE DEBATES

Members of the Senate, may I recognise the pupils of Moi Airbase Primary School, from Nairobi County, seated in the public gallery. They are 138 pupils who are visiting Parliament. They are accompanied by six teachers.

Welcome.

October, 22 2014 SENATE DEBATES

Thank you, Mr. Temporary Speaker, Sir. I rise to add my comments to this debate.

I want to start by stating that in my own opinion, when the President asked to address the nation, I did not really find anything, particularly wrong with that. He is the Head of State and asked to address the nation. Anybody had their democratic right to be in attendance, not to be or watch. I have no particular issue with that. Actually, if I had any issue at all, then the events that followed closely after his address convinced me then that he needed to have that sitting to prepare all of us psychologically for what was supposed to follow, which he did with a lot of pomp.

Secondly, the decision to travel to The Hague was also okay, because he had been summoned. As a leader and somebody who needed to defend his position, I find absolutely nothing wrong, first, with the summons and, secondly, his attendance. I want to reiterate to those who have already spoken, that when you speak in this Senate, know that your statements are kept in the HANSARD. You will be held accountable whether by this generation or another. So, what we should avoid is forcing others to sing a song. We are here as legislators and everybody is free to speak their mind.

If you want to carry a sword because somebody is making a statement that is uncomfortable with you, that is your own cross. I will stand in this Senate and speak my mind at all times, without fear or intimidation. I will debate it as I think right and stand by my statements, not just here, but outside this Parliament at any time and not just in this dispensation. It is a pity that I am giving my contribution when my colleague, Sen. Keter, is out of the Chamber. This is because he reminded me of what happened in the Tenth Parliament.

Thirdly, politics is about perception. The President did something very interesting by giving us the impression that he handed over power to his Deputy. To be honest, I am not still convinced that he handed over any instruments of power. But let me be honest that he is a very shrewd politician, because politics is about perception. To ordinary minds that wanted to see that power was handed over, it was a very smart move because it built a lot of strength and security in the minds that thought that the President was out of the country. We saw a ceremony of handing over of power. However, I am yet to be convinced by anybody that any serious instrument of power was handed over. Was it the fleet or the limousine? I am also not convinced that the President needed to hand over any power to anybody even for one minute, one day or whatever. The Constitution is very clear on what happens when a Head of State leaves. It is enshrined in the Constitution that when he steps out of the country, his Deputy takes over temporarily. So, he was not doing anything that was unconstitutional or a surprise.

October, 22 2014 SENATE DEBATES

October, 22 2014 SENATE DEBATES

On a point of information, Mr. Temporary Speaker, Sir.

Do you want to be informed?

Mr. Temporary Speaker, Sir, I would like to be informed by Sen. Muthama.

Mr. Temporary Speaker, Sir, the information I want to give to Sen. Ongoro is that in that Tenth Parliament, I was the Government Chief Whip. I led the PNU coalition members together with other Members from the ODM, to reject the process of the tribunal being set up here rather than going to The Hague. I participated and led a good number of Senators, including Sen. Beth Mugo, to reject the local tribunal.

On a point of order, Mr. Temporary Speaker, Sir. Is the Hon. Senator in order not to tell the whole truth to the House, that I rejected the Motion to go The Hague. I was on the Government side and the President was in the House when we were voting as Government to create a local court for our people to be tried locally. Even in the Cabinet, I stood firm on having a local process.

Very well! You can only re- examine yourself and I find nothing wrong whether you said that people should not be vague, but go to The Hague. I know your Chair was in a group of very many who wanted the case to proceed to The Hague. The reason was that we thought it was going to be a lengthy process that nobody will ever be prosecuted. So, whichever way you look at it, that is the truth. Sen. Ongoro, is just saying the truth.

Thank you, Mr. Temporary Speaker, Sir. Tell them so that those doubting Thomasses will know that even you and the many others defeated us on the Floor of the House when we were supporting a local tribunal and insisting that nobody should be taken to The Hague.

There was a loud leg thumping and we defeated you.

Mr. Temporary Speaker, Sir, they were shouting: “Do not be vague, go to The Hague”. The Chair was one of them and Sen. Muthama has even confessed that he was given facilitation to mobilize people to defeat us.” So, Sometimes when you are talking from a point of not knowing something very well, then just stand up to support the Motion and do not go into the details.

When you are debating, you must bring the historical perspective of any matter. We must ask ourselves why and how we got to The Hague. That is the bottom line. What you are sharing with Kenyans now is what we were sharing with Kenyans in the Tenth Parliament when we were saying that no Kenyan should stand before any foreigner for trial. You defeated us and we honourably conceded defeat and let you drag those

October, 22 2014 SENATE DEBATES

Very well, Sen. Ongoro. I am sure you can volunteer a whole page to write your whole experiences and views.

Thank you, Mr. Temporary Speaker, Sir, for giving me the opportunity to support the President’s Speech. Personally, it was good for him to address the nation and Parliament before going to The Hague. Initially before calling Parliament, many had anticipated that he would not go and this had brought a lot of anxiety among Kenyans. It is good that he talked to Parliament and Kenyans and reassured them not to

October, 22 2014 SENATE DEBATES

Thank you, Mr. Temporary Speaker, Sir, for giving me the opportunity to also contribute to the ongoing debate. I would like to start by saluting and congratulating both His Excellency the President and his Deputy President, Mr. William Ruto, for the manner they have handled themselves since they took power. They have proved to the whole world that they believe in the rule of law. They have also proved to the whole world that they are mature, responsible and trusted leaders. Africa as a continent is accused of lacking these qualities. The action of the President has been applauded across the globe because of the humility and the maturity. It is a pity to hear some of our own people here in the country criticizing that very noble act.

Mr. Temporary Speaker, Sir, there comes a time when one must stand for his country and not for self. I went to The Hague and I have been there three times. I have followed the debate and what the judges and the prosecutor have been saying there, especially the lead prosecutor. Even before the confirmation of the case against the President, the world was amazed because everybody thought that there was no case. However, the charges were still confirmed. I want to support Sen. Keter, this is a political case. When the Americans themselves withdrew from The Hague, they said that it is a political court and there is nothing about justice in it. I want to believe that the court was created for the Africans. In fact, it was created to promote neo-colonialism for them to control Africa. You just need to see who is being taken to The Hague and from which continent. It does not mean that the others do not commit even worse atrocities than Africans.

Mr. Temporary Speaker, Sir, from what transpired at The Hague, it was quite clear that there is absolutely no case, especially both against the President, the Deputy President and Mr. Sang. This is because they do not have credible witnesses. It came out that the witnesses have been bribed to orchestrate this case. Who led this campaign? It is the west. It is well known that they were hiding behind human rights, civil society and the victims. The victims have said, time and again, that they have forgiven one another and they are now working together in the villages. So, who are these people? Who are these

October, 22 2014 SENATE DEBATES

Yes, Sen. Muthama, what is it?

On a point of order, Mr. Temporary Speaker, Sir. With all due respect and as much as I respect my older sister here, Sen. Beth Mugo, who I worked very closely in the Tenth Parliament, is she in order to say that it is the civil society activists who took this case to the ICC when you know very well, being part of the Tenth Parliament, that the majority of parliamentarians voted for the case to be taken to the ICC? Is she in order to leave that truth out and blame the blameless?

Very well, that is Sen. Mugo’s opinion on what she thinks about the whole issue. I cannot interfere with her opinion.

Thank you, Mr. Temporary Speaker, Sir. I hope that I will not be interrupted again on those flimsy grounds.

Order! Order!

Mr. Temporary Speaker, Sir, I was at The Hague. It is well know that the lawyer for the victims was hired for them by the civil society. I keep on saying the case should be dismissed because they have nothing now to hold on until 2017. We are not really fools. So, what I am saying is what they were saying at The Hague. Whereas the victims themselves have repeated that they have no case, I want to tell The Hague and the judges that there will be no evidence because they have charged the wrong people. The accused persons had nothing to do with the violence. Therefore, the court will not find evidence against them even if they keep them there for more than 100 years. If they are interested, they should charge the right people who instigated and called for mass action. They should charge those leaders who called people to demonstrate in the streets and fight. Those are the ones who bear the biggest responsibility. As I keep on saying, this is a political case. Some people have even volunteered to give evidence and they have not been asked to do so. It is a pity that those who should be charged have not been charged.

Mr. Temporary Speaker, Sir, I know we have very good lawyers in this House. They will agree with me that when a prosecutor says she has no evidence, the case should not continue. Why should they continue shifting the goal posts if they do not have evidence? I believe the accused have rights, just like the victims. They have rights like everybody else. Therefore, to keep on punishing the wrong people because of political ends, is devilish. It is not Godly. We want to call on the ICC to come out and say “enough is enough.” They should not allow themselves to be used any more by those who want a short cut to State House because that is what is happening.

October, 22 2014 SENATE DEBATES

On a point of order, Mr. Temporary Speaker, Sir. Once again, is my sister, Sen. Mugo, in order to turn the Chamber to be a witness box where she is giving evidence of what is happening at the ICC? We are here to debate a very important issue and Sen. Mugo is turning herself to be in the witness box. Is this the right place to give evidence on who is right and who is wrong when there are victims suffering outside there? These victims also want to see justice, no matter how small they are in the eyes of God.

I am the Speaker of this House. I am not a judge. We do not have witnesses in the House. We only have Senators!

Thank you, Mr. Temporary Speaker. During the Tenth Parliament, as a Cabinet Minister, I was with my friend, Sen. Moses Wetangula and former President Kibaki in New York. He attended a meeting of leaders representing the President. The meeting was about Africa and the troubles in Somalia and Sudan. He then came and told us what the West said. The former President Sarkozy of France said that they would pump out the African leaders out one by one. That is what Wetangula told us. He told us that they would start with Muamar Gaddafi and they did. So, is that the plan?

Hon. Sen. Mugo, I am beginning to accept Sen. Muthama’s view. Be careful because you are discussing a Member who is not here to either accept or refute your sentiments.

Mr. Temporary Speaker, Sir, I take your advice. Let me say that some of the things that the prosecutor is asking for beat all logics. What do tax returns of President Uhuru have to do with The Hague? Have they now turned into handling a case for Kenya to see who does not pay their taxes and those who pay?

Sen. Mugo, may I overrule you and remind you of the rule of sub judice in Parliament? Please, observe that. We may not be doing anything better for the President and his Deputy regarding this. These issues are in court and this Senate must respect that.

On a point of order, Mr. Temporary Speaker, Sir. With a lot of due respect to your guidance on the issue, if we are discussing the contents of the Address and make reference to the issues that he raised, would that still be subjected to the rule of sub judice?

October, 22 2014 SENATE DEBATES

Mr. Temporary Speaker, Sir, I was just seeking clarification. Could you sit down? I have ruled you out of order.

Sen. Mugo, please, continue.

Thank you, Mr. Temporary Speaker, Sir. As I come to an end, I would like us to add here that we went into elections in 2013. I would like to congratulate Kenyans for a peaceful election and urge Kenyans to maintain the peace because we have already learnt our lessons, not from Ocampo as he may want to take the credit. We did not carry out a peaceful election because of Ocampo, The Hague or anybody. We did it because we are Kenyans. We wanted our country to remain peaceful. They should stop interfering with the internal affairs of our country. They should let the country spearhead its course.

On a point of order, Mr. Temporary Speaker, Sir. With all due respect, is Sen. Mugo in order to keep on mentioning the issue of the ICC when yesterday, a ruling was made by the same court? They said that we should be careful as Kenyans not to discuss confidential matters that concern the ICC. One of them had to do with the properties that are owned by the President of the Republic of Kenya. It is clear that Kenya stands to be isolated---

Order, hon. Senators! You are now forcing me to read to you Standing Order No.92 (1) . I want Sen. Sang to listen. It is on the Matters of sub judice or secret. It says:-

“Subject to paragraph (5) , no Senate shall refer to any particular matter which is sub judice or which, by the operation of any written law, is secret.

October, 22 2014 SENATE DEBATES

Thank you, Mr. Temporary Speaker, Sir. I was only saying that the issue has been in the Press. I was referring to the Press Conference that Mr. Ocampo made. I was not going outside that. I end there.

October, 22 2014 SENATE DEBATES

Thank you, Mr. Temporary Speaker, Sir. I was only saying that the issue has been in the Press. I was referring to the Press Conference that Mr. Ocampo made. I was not going outside that. I end there.

On a point of order, Mr. Temporary Speaker, Sir. My point is this: If the case is taking place outside the country and has an international connotation, how would it be affected by the sub judice rule now that it is not taking place in Kenya? Sen. G.G. Kariuki, let me refer you to Article 2 of your own Constitution. This is on the domestication of laws. I do not need to continue.

Sen. Sang, you have a tendency. I would like to advise you, as your Speaker, that when the Speaker rules, you have to keep your cool. Continue, Sen. Beth Mugo.

Mr. Temporary Speaker, Sir, as I come to an end, I want to appeal to the ICC to dismiss these cases against Kenyans. Let us handle the cases here. One judge said that the cases are a Kenyan issue and should not be at The Hague. I will also ask Kenyans to unite. We should be proud of our country. We should be proud of the Presidency because it is a national institution.

Let us wait for 2017 because it is not yet here.

The report by Justice Waki ought to drive we, the legislators, to tears, because there are people in this country who will never recover. I have heard

October, 22 2014 SENATE DEBATES

The report by Justice Waki ought to drive we, the legislators, to tears, because there are people in this country who will never recover. I have heard

How do you reconcile a family member, like Mr. Ndege, who lost 13 people? What do you reconcile with that person? How do you reconcile when we do not have a person who confesses and says:- “Dear Kenyans, I was responsible. Please, forgive me.” Then, we can have true reconciliation in this country.

October, 22 2014 SENATE DEBATES

On a point of order, Mr. Temporary Speaker, Sir. What is it Sen. G.G. Kariuki?

Mr. Temporary Speaker, Sir, my colleague here has just come in and I had already shown interest in the debate---

October, 22 2014 SENATE DEBATES

Mr. Temporary Speaker, Sir, thank you for giving me this opportunity. As a matter of fact - I think sometimes technology lies – I found Sen. G.G. Kariuki in the Chamber.

Very well, would you like to forfeit your chance for now?

Yes, Mr. Temporary Speaker, Sir. That is very good and patriotic. That is a gentleman’s behaviour. Proceed, Sen. G.G. Kariuki and thank the youthful Senator. However, he may have lost his chance; I may not think of giving him an opportunity.

Yes, he must lose his chance. Mr. Temporary Speaker, Sir. I also want to be counted in this debate by saying a few words. First of all, I want to thank the President of the Republic of Kenya and the Deputy President for finding it wise to inform Kenyans that the President took a very serious action by going to The Hague.

This was not a small matter and I think all of us know very well that this matter was so confusing. There were some people calling upon the President not to go to the Hague while others were asking him to go. He ended up making the right decision and we should thank him for that because he removed agony from Kenyans who were suffering from indecision.

Mr. Temporary Speaker, Sir, if you look at the Speech which was delivered by the President, it did not call for so many statements. This Speech is asking people to note. He willingly volunteered to give this Speech although under Article 132, it provides that he comes and gives the statement of whatever nature if he finds it necessary to do that and if he thinks it is useful to the nation. The President found it very important to call the two Houses and tell them; my dear brothers and sisters, here we are, I am required to go to the Hague and I have decided to go as Uhuru Kenyatta and not as your President.

The Constitution is very clear that when the President leaves the country the Deputy President takes over his position. This was a situation of its own nature where the President boards an aircraft for the Hague as an ordinary Kenyan. This is why I think this was a very serious step that he took. It is not true for anybody to suggest that the President did not know what the Constitution says with all his advisors and that it is only in this House that we understand better. Personally as a student of international law, I believe that the President did the right thing, particularly to surrender the Presidency. This Speech does not require anybody to start talking about the case because it has no business with the case. It was a mere report that he was going to the Hague and for that reason, every Kenyan should be satisfied that he should go. This Speech should not be

October, 22 2014 SENATE DEBATES

October, 22 2014 SENATE DEBATES

No, Mr. Temporary Speaker, Sir.

Mr. Temporary Speaker, Sir, I know that Sen. Mungai would be the last person to interrupt me; he is my good friend. If it was my friend seated next to me here, he definitely would.

Mr. Temporary Speaker, Sir, as I conclude. I would like to say; let us take advantage of what President Uhuru said in his Speech, that; “nurturing a young democracy in a treacherous world of despotism---” We all know that to create a democracy in that situation is not easy. It is very, very difficult. I have been involved in despotic regimes and I know what it means. Therefore, I think the President needs to be applauded because he says that nurturing a young democracy in a treacherous world of despotism, terrorism and extremism is never going to be an easy task.

We have a lot in this country that we must do, particularly to nurture the democracy that we have now seen. Sometimes I feel very hurt when I see somebody talking against the current Constitution by wanting to change the Constitution. They do not know where we have come from. I wish they knew where we have just come from. We were all in the prison of one person when the country became the property of the President. So, this personal rule has really messed so many people in this world and we must pray very hard to God that we should never ever attempt to go back to that situation. We can talk of Governors “eating” money and being impeached. We can talk about the misconduct of Senators and MPs - we have all the right to do that - but we must know that we have a pillar that we all must defend and that is our Constitution.

Mr. Temporary Speaker, Sir, thank you very much for having seen me and for giving me the priority to contribute to this Motion because my son can wait but I cannot wait.

Thank you very much and God bless you.

Thank you, Mr. Temporary Speaker, Sir, for allowing me to contribute to this Motion on the Presidential Address. I have listened to a number of people since yesterday and I kept on waiting to get my chance. So, I thank you very much. I want to begin by saying that I am one of the few people from the CORD affiliate parties who attended Parliament sitting during the Presidential Address.

I did this mainly because I thought the Constitution provides for the President to address Parliament in a special sitting and at any other time. The Constitution gives him that

October, 22 2014 SENATE DEBATES

October, 22 2014 SENATE DEBATES

Thank you Mr. Temporary Speaker, Sir. I rise from the outset, to support and thank the President, His Excellency the President for his unprecedented move of accepting that this is a country governed by the rule of law. When the ICC requested the President to appear on the status conference, many people imagined that he would not appear. There was a lot of anxiety in this country and many people thought that the President would not appear before the ICC. Without discussing the issues before the ICC, in accordance with your guidance, Kenyans saw the process that took our people to the ICC since the post election violence and the formation of the Waki Commission that went around this country.

We know the report that was produced by the Commission. We know the steps that the Commission recommended in its report. We are also aware of the attempts by this country to establish local mechanisms to deal with the post election violence of 2007/2008. We all understand the difficulties, challenges and the issues that led us to the ICC. We have also seen the processes being carried out at the ICC and whether investigations were done properly. We have seen the pre-trial process and the confirmation of charges all the way up to where we are now. We started with six Kenyans but now we have three Kenyans at the ICC. Kenyans have seen some of the greatest challenges that the ICC has gone through. Kenyans have seen some of the loopholes and issues that we think the ICC court, considering its stature, should have done. An international court of the ICC stature should have done better.

We appreciate the fact that when the President and the Deputy President were seeking the mandate to run this country, they made commitments that the cases facing them at the ICC were personal challenges and they would handle them at a personal level and not drag the entire country into the whole process. It was a great relief to note that the President lived to that promise. Sitting down in the Joint Session of Parliament and listening to the President all the way to the conclusion of his Speech, in his own words he made it clear that he did not want a situation where

October, 22 2014 SENATE DEBATES

October, 22 2014 SENATE DEBATES

October, 22 2014 SENATE DEBATES

Mr. Temporary Speaker, Sir, from the outset, I would like to congratulate His Excellency the President for delivering this very important Speech.

When I heard that the President had requested the Speaker of the National Assembly and Speaker of the Senate to allow him to address a joint sitting of Parliament, I knew that it was a very serious issue, because it is a constitutional provision. I also knew that we were about to make history, in the sense that we were operationalizing certain provisions of our Constitution; that basically when we passed that Constitution, it was never imagined. For example, it was never imagined by many people that within the first two years of the first President under our new Constitution, we would have the person elected as the President relinquish his office and allow another person to be in office.

As from 5.00 p.m. when the President relinquished his presidency and left the Deputy President to hold office, he was in town. It happened in Harambee House and I was there. The President just became an ordinary person, used an ordinary vehicle, went to his home and allowed his Deputy to act as the President when he was in the country.

Very few people would have had the confidence and courage to allow another person to sit in that seat. It happens in other offices, like when you and I sit on the Chair on behalf of the Speaker, but some other public officers, particularly at the county level, find it impossible to allow even the deputy governor to act, even when they are out of the country. So, we must commend the President for basically showing selfless leadership and confidence in the office, being ready, believing in the people that he works with and in the person of the Deputy President. I also want to commend him for assuring the rest of the Government that he has confidence in the Deputy President. That was historical in itself.

Mr. Temporary Speaker, Sir, it was also historical in the sense that the President was honouring the constitutional requirement that when he is required in a foreign court, he will go. That was not an easy thing. Any other President in the world would have taken refuge in the office of the President to try to avoid attending such summons. He was being summoned just to go and sit down in a conference. He was not even required to speak. It is unfortunate that the ICC, that is expected to abide by certain minimum standards of law, would want a President to just go and sit there, be embarrassed and let go.

Mr. Temporary Speaker, Sir, I am a proud Kenyan to have witnessed the President addressing Parliament, particularly capturing salient provisions of Article 132

October, 22 2014 SENATE DEBATES

October, 22 2014 SENATE DEBATES

Order, Sen. Ndiema. You

Mr. Temporary Speaker, Sir, as I said, it was first of all the confidence that the President had in the Deputy President. I laughed the other day because I saw one Member of the “Lower House” in a funeral somewhere complaining that when the Deputy President was acting, he did not have powers. The question is: Did the Deputy President complain? Why do people sometimes instead of appreciating implementation of an Article in our Constitution, try to also behave as though they were in the mind of the President or the Deputy President? It was not about the Deputy President having the power; it was about service, trust and confidence. The people of Kenya can have confidence that when their President is not around, the Deputy President can carry out the responsibilities that that office has and that that section of the Constitution can properly be implemented. It was not about who was powerful and who was capable of hiring who, who was capable of firing who et cetera. It was about service continuing for Kenyans.

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

Those are the people I was talking about.

Mr. Temporary Speaker, Sir, I usually do not like to interfere when my good friend and legal authority, Sen. Murkomen is speaking, but this is a very technical issue. Whenever they focus the camera where Sen. Murkomen is speaking from, there is usually a line that runs across that screen. This means that there is need for the technical people to take that into consideration so that we do not otherwise broadcast a very eloquent speech or document something that has a technical fault. I have seen it happen several times.

Mr. Temporary Speaker, Sir, I think the point is valid because of where the camera has been put. Sometimes if you sit at the corner, you will basically

October, 22 2014 SENATE DEBATES

On a point of order, Mr. Temporary Speaker, Sir. What is it Sen. Sang?

Mr. Temporary Speaker, Sir, when Sen. Hassan rose on a point of order, did you hear Sen. Murkomen say “those are the kind of people I was talking about;” alluding to the fact that he had mentioned some people in funerals saying certain things? When Sen. Hassan rose on a point of order, he mumbled something close to that. Was he in order?

Well, to my knowledge, I do not think he was referring to Sen. Hassan. He was referring to “those people.”

Continue, Sen. Murkomen.

Thank you, Mr. Temporary Speaker, Sir. For your information, when I talked about “a Member of the Lower House,” it was not a Member of this House who had actually said what I referred to.

As a country, we must learn the spirit of servant hood. In future, I hope that our brothers – who decided not to coming when the President was addressing the Parliament

Yeah; that is why I am saying that it is a contradiction---

Maybe they even listened and watched it longer than the rest of us.

October, 22 2014 SENATE DEBATES

On a point of order Mr. Temporary Speaker, Sir. I would really love to restrain myself from interrupting my brother, but he is talking of “idiotic” court orders. Can he substantiate that?

Mr. Temporary Speaker, Sir, I was just quoting the President of the Supreme Court and the Chief Justice who told us that we must obey all court orders, however idiotic they may be. I have answered him before and said “we have refused to be idiots.”

Mr. Temporary Speaker, Sir, finally, we must, as a people obey the law; we must follow the legal process. If you are a land grabber in Lamu, Machakos, Makueni or Karen, or if you are a suspect of grabbing large tracts of land anywhere, whether it is an embassy abroad or whether it is land locally, you must be willing to follow the legal process.

On a point of order Mr. Temporary Speaker, Sir. I would really love to restrain myself from interrupting my brother, but he is talking of “idiotic” court orders. Can he substantiate that?

Mr. Temporary Speaker, Sir, I was just quoting the President of the Supreme Court and the Chief Justice who told us that we must obey all court orders, however idiotic they may be. I have answered him before and said “we have refused to be idiots.”

Mr. Temporary Speaker, Sir, finally, we must, as a people obey the law; we must follow the legal process. If you are a land grabber in Lamu, Machakos, Makueni or Karen, or if you are a suspect of grabbing large tracts of land anywhere, whether it is an embassy abroad or whether it is land locally, you must be willing to follow the legal process.

October, 22 2014 SENATE DEBATES

Thank you, Mr. Temporary Speaker, Sir, for giving me this opportunity to say something to this ongoing Motion. First, I want to thank the President because he really behaved like the President of the people by speaking to the legislators who represent Kenyans. That was the only way he could reach out to his people.

Mr. Temporary Speaker, Sir, on the issue of the ICC, I do not want to know what will happen or what will take place because the law should be allowed to take its course. What is important to pass to Kenyans is that what are we doing as a country to reconcile the people of Kenya, especially the people who were affected?

Secondly, I do not want to be held accountable because it is written in the Bible that we should not judge. I want to believe that even as we are speaking, maybe the President and his Deputy have asked God for forgiveness for whatever things the people may be feeling they did. It is between them and their God. I want to believe that God knows the perpetrators of whatever happened. The very people are still wounded and we should not sit and say that all is well. We have people who are still in pain and they are only looking forward to justice.

Mr. Temporary Speaker, Sir, the process of the ICC is like a remedy to stop such behaviour happening again in this country. I feel so sad when somebody says that we should pull out from the ICC. If all this happened when we are members of the ICC, what will happen when it is now official that Kenya is not a member to the ICC? It will just be a matter of killing one another like you can kill a hen or a cow. So, it is a way of restricting people to respect one another. People should remain accountable for whatever they do so that each and everyone can enjoy the life given to him or her by God. It is not

Thank you, Mr. Temporary Speaker, Sir, for giving me this opportunity to say something to this ongoing Motion. First, I want to thank the President because he really behaved like the President of the people by speaking to the legislators who represent Kenyans. That was the only way he could reach out to his people.

Mr. Temporary Speaker, Sir, on the issue of the ICC, I do not want to know what will happen or what will take place because the law should be allowed to take its course. What is important to pass to Kenyans is that what are we doing as a country to reconcile the people of Kenya, especially the people who were affected?

Secondly, I do not want to be held accountable because it is written in the Bible that we should not judge. I want to believe that even as we are speaking, maybe the President and his Deputy have asked God for forgiveness for whatever things the people may be feeling they did. It is between them and their God. I want to believe that God knows the perpetrators of whatever happened. The very people are still wounded and we should not sit and say that all is well. We have people who are still in pain and they are only looking forward to justice.

Mr. Temporary Speaker, Sir, the process of the ICC is like a remedy to stop such behaviour happening again in this country. I feel so sad when somebody says that we should pull out from the ICC. If all this happened when we are members of the ICC, what will happen when it is now official that Kenya is not a member to the ICC? It will just be a matter of killing one another like you can kill a hen or a cow. So, it is a way of restricting people to respect one another. People should remain accountable for whatever they do so that each and everyone can enjoy the life given to him or her by God. It is not

October, 22 2014 SENATE DEBATES

On a point of order, Mr. Temporary Speaker, Sir. I want to reassure Sen. Omondi that although she might not have confidence to invest anywhere else apart from Kakamega, as the Senator for Mombasa, if she has any investments to make, Mombasa is more than ready to receive her. She will be protected and will be safe.

What is the point of order, Sen. Hassan? Is that a point of order or a point of information? I guess it should have been a point of information but anyway, it is a valid intervention.

Okay, proceed.

Thank you, Sen. Hassan for that assurance and we need to build that trust in---

On a point of order, Mr. Temporary Speaker, Sir. Is Sen. Hassan in order to market his county as an investment destination when we are discussing serious issues and while the gracious Sen. Omondi is making very valid serious points? Is he in order?

Sen. Hassan is perfectly in order to market his county but is completely out of order to do so under the disguise of a point of order.

Thank you, Mr. Temporary Speaker, Sir. I also want to be assured by Sen Sang’ by inviting me to his county.

May I say that the whole process of the President’s Speech should not be taken by legislators from the ruling party to question why some Members did not appear in Parliament. We were on recess and when people are on recess they do not have access to

October, 22 2014 SENATE DEBATES

On a point of order, Mr. Temporary Speaker, Sir. Would I be in order to congratulate Sen. Omondi? She has made a statement that she was in Tanzania and had to stop whatever she was doing so as to watch the live broadcast of the President addressing Parliament. That effectively means that if she was in the country she would have defied some of those roadside directives by some of the leaders in her coalition that she should not have appeared in Parliament. Would I be in order to congaratulate her knowing that she would have attended the session in Parliament if she was in the country?

There is nothing to withdraw. I had already ruled him out of order.

There is nothing to withdraw. I had already ruled him out of order.

Thank you Mr. Temporary Speaker, Sir. Let me finish by saying that let us respect each other. In fact, is it Sen. Murkomen who said that some people were talking in funerals? The Constitution gives us freedom of expression. So, whatever I say, as long as I am not infringing on somebody’s rights, those are my feelings as per the Constitution. The issue should not be over-emphasized to mean that I was celebrating or what I did was wrong. Indeed, even the media highlighted that the Deputy President was not given the powers fully. So whatever the Member of Parliament was saying was just repeating what the media had highlighted.

Order! Order, Sen. Omondi! This house does not admit evidence of the media. Yes, look at the law as it is.

Thank you Mr. Temporary Speaker, Sir. I stand to say that freedom of information is given to Kenyans at all levels, whether a legislator or a common citizen, you have all the freedom to express your feelings.

Thank you.

Sen. Ndiema, do you want to contribute?

Yes, Mr. Temporary Speaker, Sir.

October, 22 2014 SENATE DEBATES

Thank you, Mr. Temporary Speaker, Sir, for giving me this opportunity to contribute to the Speech by His Excellency the President. I attended the Joint Sitting and listened carefully to what the President said. I attended as the Senator for Trans Nzoia and as invited by the Speaker of the Senate in the normal manner. The President had the authority and discretion to seek to address both Houses and this was not the first time that he had done it.

Mr. Temporary Speaker, Sir, the key issue that came out from the speech was that he was informing the nation that he was going to attend the court at The Hague as an individual Kenyan and not as the President of the Republic of Kenya. The accusations or allegations against him and the other two Kenyans also relate to a period that he was not the President of Kenya. Therefore, I found it in order that he had to make that clear. It was not really Kenya which was on trial, but him as an individual. He took the liberty to inform us that he was, indeed, going to The Hague as an individual.

Mr. Temporary Speaker, Sir, what happened in this country in 2007/2008 was, indeed, a very unfortunate and ugly blot in our history as a country. We are a proud country that fought for its Independence after many years of being under colonial rule. To a large extent we have always remained a united country and are proud to be Kenyans. What happened within that short period, perhaps, tainted our image. It was unfortunate because Kenyans lost their dear ones and property. The suffering has been there and we are in a healing process. We are not out of it because justice is still being awaited by the victims. Many are still traumatized by what happened. This, indeed, is very unfortunate.

Mr. Temporary Speaker, Sir, justice has a process to undergo. What is happening at The Hague is perhaps different from what we would expect from our courts. Some may argue that these issues should have been handled in our local courts, while others said that it was better to go to The Hague, but at the end of the day what matters is justice to be done. We are now in 2014 and are yet to conclude this matter. Closure to this matter is very essential if we are also going to recover and move ahead as a nation.

There is an old saying, “that justice delayed is justice denied.” I do not know whether the processes at The Hague will really amount to true justice, if there will be indefinite delays in concluding this matter. There is already doubt in the minds of people arising from the fact that even the prosecutor says that they have not found adequate evidence to sustain this case. It would be proper for a matter like this one which really concerns the nation to be brought to a just end. That will satisfy all the victims. This is because by delaying you may also be creating other victims from the whole process.

What happens at the end of the trial when the accused is found not guilty in any way? Will they not have also become victims? The best way to handle these matters even as the cases go on at the ICC is to adopt the truth and reconciliation route that was recommended and that has been used and worked elsewhere. We seem to have reached a situation where we have kept that aside. As a country, we should pursue the path of reconciling our people. I am not saying that some form of reconciliation has not

October, 22 2014 SENATE DEBATES

Hon. Senators, pursuant to Standing Order No.30 (2) to interrupt the Business of the Senate, the time being 6.22 p.m.

The Senate now stands adjourned until tomorrow, Thursday 23rd October, 2014, at

Hon. Senators, pursuant to Standing Order No.30 (2) to interrupt the Business of the Senate, the time being 6.22 p.m.

The Senate now stands adjourned until tomorrow, Thursday 23rd October, 2014, at