Wednesday, 24th April, 2024 Afternoon Sitting

Clerk, do we have quorum?

Serjeant-at-Arms, kindly ring the Quorum Bell for 10 minutes.

Hon. Senators, I am informed that we have quorum. Kindly proceed to take your seats. Order, hon. Senators. Clerk, proceed to call the first order.

Services, Senate. the Communication, I indicated that the official opening event was to be held on Friday, 19th April, 2024.

Hon. Senators will also recall that the event did not take place owing to a declaration by His Excellency the President, of a three-day national mourning following the most unfortunate and untimely demise of the Late General Francis Ogolla, Chief of Defence Forces, and other gallant soldiers in a helicopter crash while on official duty in Elgeyo Marakwet County.

Following consultation with the Office of the President, the Parliamentary Service Commission has made arrangements for the official opening event of the Bunge Tower by His Excellency the President to be undertaken tomorrow, Thursday, 25th April, 2024.

On behalf of the Parliamentary Service Commission and on my own behalf, I take this opportunity to invite all hon. Senators to the official opening of the Bunge Tower, at the forecourt of the Tower. The programme of events will commence at 8.00 a.m.

Hon. Senators are requested to be seated by 7.30 am. I will repeat the last sentence. The programme of events will commence at 8.00 am. Hon. Senators are requested to be seated by 7.30 am.

I thank you. Next order.

Mr. Speaker, Sir, I beg to lay the following Papers on the Table of the Senate today, Wednesday, 24th April, 2024-

First Half National Government Budget Implementation Review Report for Financial Year 2023/2024.

Services, Senate.

Sen. Mungatana, proceed.

Thank you, Mr. Speaker, Sir. I beg to lay the following Paper on the Table of the Senate today, Wednesday, 24th April, 2024-

Report of the Kenya Delegation to the Extraordinary Session of the Sixth Parliament of the Pan-African Parliament (PAP) held at the Gallagher Convention Centre, Midrand, South Africa, from 20th to 27th March, 2024.

Sen. Kisang, proceed.

Services, Senate.

Thank you, Mr. Speaker, Sir. I beg to lay the following Petition report on the Table of the Senate today, Wednesday, 24th April, 2024-

Report of the Standing Committee on Energy on a Petition to the Senate by residents of Uyomo village in Kilifi County, concerning the protection of the right to life, health and a clean environment, and other constitutionally protected rights and fundamental freedoms.

Clerk, next order.

Thank you, Mr. Speaker, Sir. I beg to give Notice of the following Motion-

THAT, the Senate notes the Report of the Kenya Delegation to the Extraordinary Session of the Sixth Parliament of the Pan-African Parliament (PAP) held at the Gallagher Convention Centre, Midrand, South Africa, from 20th to 27th March, 2024, laid on the Table of the Senate on Wednesday, 24th April, 2024.

Sen. Cherarkey, you will get an opportunity later. Get your paper in order. Next Order. We proceed to Statements pursuant to Standing order No.53 (1) . Sen. Mumma, proceed. Sen. Sifuna, are you holding brief? Very well.

Thank you, Mr. Speaker, Sir. I will be reading these Statements on behalf of Sen. Mumma.

I rise pursuant to Standing Order No. 53 (1) to seek a Statement from the Standing Committee on Health regarding the implementation of the Signed Collective Bargaining Agreements (CBA) by the Government.

In the statement, the committee should-

Services, Senate. levels of Government and health workers in 2012; and which are the subject of the ongoing national-wide strike by health workers.

2) Clarify whether the national and county governments intend to uphold the principle of perpetuity of Government obligations in the implementation of the CBA, and if not, explain why.

well-being of health workers who continue to provide essential and emergency health services despite calls by the unions for all health workers to participate in the strike.

Sen. Cherarkey are you ready now? Kindly proceed under Standing Order No.52 (1) and then you take the one under Standing Order No. 53

Thank you, Mr. Speaker, Sir, for that direction and guidance. I rise pursuant to Standing Order No. 52 (1) to make a Statement on an issue of general concern topical and national importance namely, the shattering of the women’s only marathon world time record by Peres Jepchirchir in a staggering and superb performance at the London Marathon on Sunday 21st April, 2024.

Peres Jepchirchir has once again brought glory to our country. This time through the London Marathon where she shattered the World Women's Marathon (WWM) , title that was previously set by a compatriot Mary Keitany of two hours, seventeen minutes and zero one seconds, that she won in the same course at the 2017 London Marathon.

Mr. Speaker, Sir, Peres broke the WWM record by 45 seconds, by finishing at two hours, sixteen minutes and sixteen seconds. She is the reigning Olympic marathon and three times World Half Marathon champion. This being her third victory in the world marathon majors, that is the New York Marathon in 2022 and the Boston Marathon in

Services, Senate.

Mr. Speaker, Sir, I hereby call the State Department for Sports to clearly state what transpired and what actions have been taken against the responsible persons that denied Kenya an opportunity for qualification for the walking race at the Olympics in Paris later this year.

Mr. Speaker, Sir, even as Alexander Mutiso Munyao, Peres Jepchirchir and others landed yesterday at 5.00 a.m., there was no one to receive them at the Jomo Kenyatta International Airport (JKIA) or even to give them a Maasai shuka. It is very embarrassing to these world-beaters.

I also wish to call upon the Ministry of Youth Affairs, Creative Economy and Sports, Athletics Kenya and the National Olympics Committee of Kenya (NOCK), to embrace openness and transparency during team selection, for various teams representing Kenya in various competitions around the world, especially as our team is preparing for the August Paris Olympics to avoid such a shame.

Mr. Speaker, Sir, in conclusion, I also wish to call upon the Anti-Doping Agency (ADAK) to enhance its vigilance and eradicate rogue agencies and coaches masquerading and spoiling the athlete’s careers and the good name of our athletes by making them to engage in doping, unknowingly to enrich themselves.

Mr. Speaker, Sir, I end that Statement and move to the statement under Standing Order No. 53 (1).

Proceed, Sen. Chute. That Statement is dropped.

Services, Senate.

Thank you, Mr. Speaker, Sir, for this opportunity. I rise pursuant to the Standing Order No.53 (1) to seek a Statement from the Standing Committee on Roads, Transportation and Housing concerning the current construction status for the County Executive Office Block and the residence of the Speaker of the County Assembly in Turkana.

In the statement, the committee should-

Proceed.

Thank you, Mr. Speaker, Sir. I rise pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee of National Security, Defense and Foreign Relations regarding the safety of chiefs serving in counties plagued by insecurity.

In the statement, the committee should-

Services, Senate.

the lives of chiefs who actively assist in curbing crime within their respective locations and face threats as a result of their work.

considered deploying police officers for the protection of chiefs or issuing firearms to the chiefs in light of the threats faced by them as a result of the nature of their work.

Thank you, Mr. Speaker, Sir.

Proceed, Sen. (Prof.) Tom Odhiambo Ojienda, SC.

Thank you, Mr. Speaker, Sir. I have three Statements.

I rise pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee on Finance and Budget regarding measures put in place to address and curb wastage of public resources in Kisumu County.

In the statement, the committee should-

Sen. Chute, having explained your absence to the satisfaction of the Chair, you may now proceed to read your Statement.

Thank you very much, Mr. Speaker, Sir. I rise pursuant to Standing Order No. 53 (1) to seek a Statement from the Standing Committee on Roads, Transportation and Housing regarding the status of projects under the Parliamentary Service Commission (PSC) .

In the statement, the committee should-

Hon. Senators, the last two Statements by Sen. Abdul Haji are deferred.

Let us now move to Statements pursuant to Standing Order No.56 (1) (b) . The first one is by the Chairperson for the Standing Committee on Trade, Industrialization and Tourism.

Mr. Speaker, Sir, I rise pursuant to Standing Order No.56 (1) (b) of the Senate Standing Orders to make a Statement on the activities of the Standing Committee on Trade, Industrialization and Tourism for the period commencing January to April,

Order, hon. Senators! May the Chairperson be heard in silence?

Mr. Speaker, Sir, during the period under review, the committee held a total of 17 meetings. The committee considered the following Bills-

Commissioners Kinyua and Korir, what is the excitement all about?

Kindly take your seats.

Services, Senate.

The Street Vendors

Bill

(Senate Bills No.41 of 2023)

was read a First Time on Tuesday, 17th October, 2023. It is sponsored by Sen. Okenyuri, MP.

Order, hon. Senators. Sen. Chimera and Sen. Miraj, kindly take your seats.

Proceed, Chairperson.

The Street Vendors

Bill, 2023, is a Bill for an Act of Parliament to provide a legal framework for the recognition, protection and regulation of street vending in Kenya, the identification of minimum standards for street vending, and for connected purposes.

Pursuant to the provisions of Article 118 of the Constitution and Standing Order No.145 (5) of the Senate Standing Orders, the committee invited interested members of the public to submit their representations on the Bill. They included, the National Gender and Equality Commission (NGEC) , the Council of Governors (CoG) , Central Organization of Hawkers Association (COHA) , Association for the Physically Disabled of Kenya (APDK) , street vendors and Sen. Crystal Asige.

The report was tabled in the Senate on Tuesday, 23rd April, 2024.

Services, Senate.

The committee has undertaken extensive engagements with all the relevant stakeholders, including the petitioner, Mr. Nicholas Rono and the Chief Executive Officer (CEO) of Capital Markets Authority (CMA), Competition Authority of Kenya (CAK) and the Kenya Revenue Authority (KRA).

The committee is finalising its draft report for consideration and adoption. Next is county visits. During the period, the committee undertook a report writing retreat on 23rd March, 2024, in Machakos County to consider the following legislative business. Meeting with stakeholders on the Street Vendors (Protection of Livelihood) Bill, 2023, and the Co-operatives Societies (Amendment) Bill (Senate Bills No.53 of 2023). It also undertook a pre-publication scrutiny on the Creative Industries Bill, 2023.

Further, on 16th to 18th February, 2024, the committee participated in a consultative stakeholder workshop on the Co-operatives Societies Bill, 2023, in Mombasa County.

Regarding Statements, during the period under review, seven Statements were referred to the committee for consideration as follows-

Statement requested by Sen. David Wafula, MP, on 21st February, 2024, regarding co-operative societies in Bungoma County. The committee has received written responses from the Ministry of Co-operatives and MSMEs dated 22nd April, 2024, which has been shared with Sen. Wafula, MP.

Statement requested by Sen. Samson Cherarkey, MP on 22nd February, 2024 regarding Police raid on businesses in Eastleigh over counterfeit products is concluded and referred to the relevant Committee.

Statement requested by Sen. Ledama Olekina, MP on 28th February, 2024 regarding the status of tourism and consequent lease agreements entered into by proprietors in the greater Mara and Triangle and the County Government of Narok. The status is that the Committee has scheduled a meeting with the Governor, Narok County Government on Thursday, 9th May, 2024 to consider the issues raised in the statement.

Statement requested by Sen. David Wakoli, MP on 5th March, 2024 regarding the collapse of Malakisi Cotton Ginnery in Sirisia Constituency, Bungoma County. The Committee has received responses from the Ministry of Investment, Trade and Industry and the Statement is concluded.

Mr. Speaker, Sir, on the overall, as per the Senate Statement Tracker, the Committee has received and processed 38 statements and concluded 24 statements, which is a good indicator.

On international engagements undertaken by the committee; during the period under review, the Committee held a joint Sitting with the National Assembly Departmental Committee on Trade, Industry and Cooperatives on Thursday, 21st March, 2024 and facilitated the address by His Excellency, Wamkele K. Mene, Secretary General, Africa Continental Free Trade Area-(AfCFTA) on the status of Intra-Africa Trade opportunities and economic cooperation.

Mr. Speaker, Sir, on challenges encountered; the committee noted with concern that there are two published Bills on the Co-operatives Societies in both Houses. These are: the Co-operatives Societies (Amendment) Bill (Senate Bills No. 53 of 2023) and the Co-operatives Societies Bill, 2024 (National Assembly Bills No. 7 of 2024). The two

Services, Senate. bills have similar stakeholders with divergent views, which has affected public participation and stakeholder engagements.

The committee will prioritise the following business in the next quarter-

East Africa Breweries Ltd (EABL) ; and

(ii) The Co-operatives Societies (Amendment) Bill (Senate Bills No. 53 of 2023);

Muguka and Miraa farmers and the related farmer cooperatives Societies.

to conclude on the statement requested by Sen. David Wakoli, MP, on the status of SACCO regarding the refund of the shares and deposits and the withdrawal of the teachers from the said SACCO in Bungoma County.

Integrated Industrial Parks.

I thank you.

Hon. Senators, we will defer the last two statements under Standing Order No.56 (1) (b) as listed in the Order Paper.

Services, Senate.

Mr. Chairman, Sir, I beg to move: THAT clause 4 of the Bill be amended—

Yes, I have the rationale. This is to ensure that the Cabinet Secretary does not only keep electronic records of the boundaries of each county, but instead keeps both the digital and manual records.

This will enable the citizens in the country to verify the digital and manual records of the boundaries of different counties.

I urge Members to support these amendments.

The Chairperson

(Sen. Kathuri)

: Sen. Orwoba, are you interested in making a comment on this proposed amendment? You are not aware.

Division will be at the end. Clause 5

Mr. Chairman, Sir, I beg to move- THAT Clause 5 of the Bill be amended in sub-clause (2) (a) by inserting the word “committee” immediately after the words “County Executive.”

The purpose of this amendment is to clean up the text.

Sen. Orwoba, are you interested in making a comment on this proposed amendment? You are not aware. Division will be at the end. Clause 5

Services, Senate.

(Question of the amendment proposed) The Chairperson (Sen. Kathuri): Division will be at the end. Clause 6

Services, Senate.(Question of the amendment proposed) The Chairperson (

Division will be at the end. Clause 6

Mr. Chairman, Sir, there is a double error. I beg to move: THAT Clause 7 of the Bill be amended in sub-clause (1) by —

There is also part (b) which is a new paragraph. I beg to move, that the Bill be amended in Clause 7 by-

Mr. Chairman, Sir, I beg to move: THAT Clause 24 of the Bill be amended in sub-clause (1) by—

Mr. Chairman, Sir, I beg to move- THAT Clause 10 of the Bill be amended in the proviso to sub-clause (1) by deleting the words “Physical planning or” appearing immediately after the words “experience in” and substituting therefor the words “mapping or”. Mr. Chairman, Sir, the rationale is that this is an amendment to make the technical person be fit for the purpose of technology, that is, survey and mapping is desirable and relevant for this purpose. I urge Members to support the amendment. (Question of the amendment proposed) The Chairperson (

Mr. Chairman, Sir, I beg to move: THAT Clause 25 of the Bill be amended in sub-clause (2) (c) by inserting the following new sub-paragraph immediately after sub-paragraph (ii) — (iii) land survey and physical planning;

The rationale is that this is on the qualification to be appointed as a member of the commission to include land survey and physical planning which is a critical component of the role of the commission. It is on that note that the provision in land survey and physical planning be considered as they have critical skills on boundary disputes.

I urge Members to support this amendment. The Chairperson

(Sen. Kathuri)

: Silence means that they have supported.

Division will be at the end. Clauses 26-40

Division will be at the end. Clause 41

Mr. Chairman, Sir, I beg to move-

THAT Clause 41 of the Bill be amended in sub-clause (4) (b) (ii) by deleting the word “commission’s” and substituting therefor the word “ministry’s”.

The rationale of the report of the commission should be circulated nationwide, keeping in mind that the commission is ad hoc in nature and will be for a specific period. In the interest of the information, it will be better to publish the report on the website of the Ministry as opposed to that of the commission.

The Ministry has a role in keeping the records of the country's boundary, the county boundaries, and as such, it will be important for the Ministry to be a custodian of

Services, Senate. the report as it is the primary office keeping records for county boundaries. I urge members to support with amendments.

(Question of the amendment proposed) The Chairperson (Sen. Kathuri): There is also an amendment to the same Clause 41 by the Mover of the Bill, Sen. Moses Kajwang’.

Mr. Chairman, Sir, I also wish to further propose: THAT Clause 41 of the Bill be amended in Sub-clause 1 by inserting the words, “including matters touching on displacement of persons and compensation for loss suffered” immediately after the words “considers necessary” in paragraph F.

Mr. Chairman, Sir, it is an amendment that I have been persuaded by Sen. Danson Mungatana, the Senator for Tana River, that would make the Bill neater and ensure that those functions and provisions under Clause 41 are expanded.

There will be a further amendment to Clause 42, but then I wish to beg and move that the clause be amended in sub-clause 1, paragraph F, as stated.

The Chairperson

(Sen. Kathuri)

: Division will be at the end.

The next Clause 42 has two amendments by the chairperson and also by the Mover of the Bill. We will start with the Chairperson.

Clause 42

Services, Senate.immediately after the words “the affected counties,” and substituting therefor the words “each of whom shall be nominated by the Council of Governors and the entity responsible for coordinating the County Assemblies” in paragraph (e).(Question of the amendment proposed) The Chairperson (

Division will be at the end. Clause 25

Mr. Chairman, Sir, I beg to move: THAT Clause 25 of the Bill be amended in sub-clause (2) (c) by inserting the following new sub-paragraph immediately after sub-paragraph (ii) — (iii) land survey and physical planning; The rationale is that this is on the qualification to be appointed as a member of the commission to include land survey and physical planning which is a critical component of the role of the commission. It is on that note that the provision in land survey and physical planning be considered as they have critical skills on boundary disputes. I urge Members to support this amendment. The Chairperson (

Silence means that they have supported. (Question of the amendment proposed) Division will be at the end. Clauses 26-40 (Question, that Clauses 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39 and 40 be part of the Bill, proposed) Division will be at the end. Clause 41

Mr. Chairman, Sir, I beg to move-

THAT Clause 41 of the Bill be amended in sub-clause (4) (b) (ii) by deleting the word “commission’s” and substituting therefor the word “ministry’s”.

The rationale of the report of the commission should be circulated nationwide, keeping in mind that the commission is ad hoc in nature and will be for a specific period. In the interest of the information, it will be better to publish the report on the website of the Ministry as opposed to that of the commission.

The Ministry has a role in keeping the records of the country's boundary, the county boundaries, and as such, it will be important for the Ministry to be a custodian of

Mr. Chairman, Sir, I beg to move that the New Clause 13A be read a Second Time.

Services, Senate.

(Question, that New Clause 13A be part of the Bill, proposed) The Chairperson (Sen. Kathuri): Division will be at the end. Clause 2

Mr. Chairman, Sir, I beg to move- THAT Clause 2 of the Bill be amended-

There is New Clause 7B. The Chairperson (Sen. Kathuri) : We dealt with that. The Title and Clause 1

Division will be at the end. Hon. Senators, note that Sen. M. Kajwang’s amendments were circulated. They were not on the Order Paper, but they were circulated for record purposes.

We are done with the County Boundaries Bill, (Senate Bills No.6 of 2023) . Next is the Sugar Bill (National Assembly Bills No.34 of 2022) .

Division will be at the end. The next Clause 42 has two amendments by the chairperson and also by the Mover of the Bill. We will start with the Chairperson. Clause 42

Mr. Chairman, Sir, I beg to move: THAT Clause 42 of the Bill be amended—

Mr. Chairman, Sir, I also beg to move: THAT, Clause 42 of the Bill be amended in Sub-clause 1 by inserting the words, “including referring a matter to a relevant body for redress” immediately after the words “may consider appropriate” in paragraph B (2) .

Mr. Chairman, Sir, the Sugar Bill (National Assembly Bills No.34 of 2022) is an important piece of legislation, especially for Members coming from the western part of Kenya. For every amendment, the Mover should explain its justification so that we understand what we are amending.

The Chairperson (Sen. Kathuri) : Sen. Osotsi, your concern has been noted. The justifications will be provided as we proceed. You will be satisfied with the explanation.

Division will be at the end.

Services, Senate. Clause 17

The Chairperson (Sen. Kathuri): Sen. Wamatinga, proceed.

Mr. Chairman, Sir, I propose that the Bill be amended by inserting the following new heading immediately after Clause 17.

The Chairperson

(Sen. Kathuri)

: Sen. Wamatinga, proceed.

Services, Senate.

Division will be at the end. First Schedule, Second Schedule, Third Schedule, Fourth Schedule and Fifth Schedule

(Question, that the First Schedule, Second Schedule, Third Schedule, Fourth Schedule and Fifth Schedule be part of the Bill, proposed) Division will be at the end. New Clause 13A

Mr. Chairman, Sir, I beg to Move- THAT Clause 19 of the Bill be amended by-

Mr. Chairman, Sir, I agree with the intent of the amendment to Clause 19. Some millers develop cane and have an agreement with the farmer. Therefore,

Services, Senate. this amendment will ensure there is no cane poaching or hawking. It will ensure that the development is duly done.

There should be supplier-valid agreement to protect the growth of the miller. Most of the farmers have taken loans from millers and there will be protection by the valid supplier agreement.

On the issue of delivering within the sugar zone area, this amendment will ensure there is discipline. Every game has its rules. I come from Nandi and we have no millers in entire county. When you go to Nandi South, the nearest miller is Kibos, Muhoroni and the rest are 18 kilometres away.

This amendment will ensure that it is easier for farmers within Nandi South to deliver to factories in Kisumu. Nandi North does not have a miller and it is nearer upper western, that is Kakamega County where Naitiri Sugar Company and Butali Sugar Company are. Farmers will not need to travel more than 200 kilometres to deliver their cane.

If we are growing sugarcane in clusters as Hon. Oparanya's report indicated, we will have the central zone of Nandi South, Kisumu, and Kericho. On this other part, we have Nandi North, Kakamega, Bungoma, and Trans Nzoia because of the proximity of those factories.

This amendment is in good faith and will ensure cane development, while protecting the interest of the farmer and the miller.

The Chairperson (Sen. Kathuri): Hon. Senators, make a brief comment on this amendment. This Bill was well conversed during the Second Reading.

Sen. (Dr.) Oburu, proceed.

Mr. Chairman, Sir, I totally oppose this amendment because of the factories which are around that take sugarcane from farmers. Sugar is not a warehousable item.

Mr. Chairman, Sir, when they take sugarcane from farmers, they mill and sell it immediately and they do not pay the farmers. Therefore, farmers should be free to sell their cane to those factories which have cash and can pay.

There is always an arrangement between the sugar factories. If a farmer has a loan from any particular sugar factory and he delivers in a different factory in a different zone, normally that factory in a different zone that has purchased sugar from this farmer, will deduct the loan and pay that particular factory which is owed money. There is no risk of farmers avoiding to deliver sugarcane where they have taken loan. The loan will be repaid anyway. So, farmers should not be oppressed.

I am a sugarcane farmer and there is a factory in Moroni, that has not paid me for more than one year. When other factories come to take my cane, which I have spent money and took a loan to develop, they do not want me to deliver the cane to those factories because they say it is poaching.

Mr. Chairman, Sir, I continue to suffer and I have loans which I have to pay as a farmer. When you ask them why they are not paying you and they already took your cane, milled it, and sold it---

Where do they take the money? Do they use farmers' money as their working capital?

Division will be at the end. Clause 2

Services, Senate.

I totally oppose this over-regulation of farmers. The Chairperson (Sen. Kathuri): Thank you. Sen. Kisang’ you want to speak to this?

Yes. I have put an intervention, Mr. Chairman, Sir. I do not know if the farmers agreed with this Bill during the public participation because this is retrogressive. The farmer should be free to sell their cane where they wish. Otherwise, a miller might take your cane and then they do not pay you. What happens? Therefore, I think we need to oppose this amendment.

The Chairperson (Sen. Kathuri) : Proceed, Sen. Olekina.

Mr. Chairman, Sir, I do not know whether to support the idea of the ‘youth leader’ or to oppose it.

I would like to beseech him to consider the investors who come in and help farmers with inputs. When it comes to the issue of output, all of a sudden that farmer now decides to sell that sugarcane to another miller. How will the miller recover their inputs?

What we need to do to safeguard both the farmer and the input, is to further amend that amendment which is being brought. I wish the sponsor would have been listening to it because it would help him.

We need to put a caveat where the farmer does not have a contractual agreement with the miller, they are free to sell and there is no zoning. However, where there is a contractual agreement, we have to protect contracts. Therefore, we need to amend that section. That will take care of the reservation of the ‘youth leader’ on that. It will also take care of the interest of the investors.

I have seen it in Narok County where, the Trans Mara Sugar Company has invested in the input. When it comes to harvesting cane, sometimes there is a challenge and the is not able to take all the cane at ago, then you find farmers selling their cane.

Mr. Chairman, Sir, there are different mitigating factors that we can put in the Bill, such that if the cane is ready to be harvested, and there is a contractual agreement, then with the consent of the milling company, the farmer can sell that cane to another company. That will be a much sober way to resolve this issue.

I thank you. The Chairperson (Sen. Kathuri) : This clause has received a lot of interest. Proceed, Sen. Wafula.

We dealt with that. The Title and Clause 1 (Question, that the Title and Clause 1 be part of the Bill, proposed) Division will be at the end. Hon. Senators, note that Sen. M. Kajwang’s amendments were circulated. They were not on the Order Paper, but they were circulated for record purposes. We are done with the County Boundaries Bill, (Senate Bills No.6 of 2023) . Next is the Sugar Bill (National Assembly Bills No.34 of 2022) .

Services, Senate.

Mkulima ama halmashauri itathibitisha kwamba kiwango ama miwa inayopatikana katika eneo hilo imezidi kiwango cha msagaji wa miwa kudhibiti. Hivyo, wakulima watapewa nafasi ya kuuza miwa yao katika kiwanda kingine katika eneo lingine.

Mwisho, kiwanda ambacho anataraji kupeana miwa kiko katika eneo lingine na ana mkataba. Sasa hayo yote yataweza kuafiki yale ambayo Sen. (Dr.) Oburu alikuwa anaangazia, ili kwamba mkulima asifinywe na vile vile mikataba kati ya mkulima na kiwanda ama kiwanda na kingine, kila mwekezaji afanye jinsi sheria inavyostahili.

Asante. The Chairperson (Sen. Kathuri): Proceed, Sen. Osotsi.

Mr. Chairman, Sir, earlier on I rose on a point of order to demand that whenever the Mover moves these amendments, justification of the same is very important so that Members can follow up and so that any ambiguities can be handled.

If I look at this proposed amendment, there is ambiguity in it because a similar amendment is on New Clause 19. We must decide on which one to adopt. Is it the new clause or this amendment?

At the same time, Clause 19 (d) , talks about deleting the heading appearing immediately after the subclause (3) . That heading talks about Part Three of the Bill, which is licensing and regulation. It is jumbled up because this particular Clause 19 is talking about a miller and grower and whether they have an agreement or not.

I am wondering why the deletion of a heading comes in here. The next thing is what happens to all those provisions under that heading? So, we need to look at Clause 19 at the same time we compare what has been proposed under New Clause 19, so that we do not end up having two clauses that are talking about the same thing.

Mr. Chairman, Sir, that is not proper law-making. The Chairperson (Sen. Kathuri) : Sen. Osotsi, the heading is on Clause 17 which was prosecuted by Sen. Wamatinga. It is Clause 17, not Clause 19.

Let us have the Chairperson of the Standing Committee on Agriculture, Livestock and Fisheries or any Member of the committee to move the amendments. Sen. (Dr.) Murango, please proceed.

Thank you, Mr. Chairman, Sir. I beg to Move: THAT Clause 6 of the Bill be amended in–

Mr. Chairman, Sir, the Sugar Bill (National Assembly Bills No.34 of 2022) is an important piece of legislation, especially for Members coming from the western part of Kenya. For every amendment, the Mover should explain its justification so that we understand what we are amending. The Chairperson (

Services, Senate.

Chairperson, proceed. Clause 29

Sen. Osotsi, your concern has been noted. The justifications will be provided as we proceed. You will be satisfied with the explanation. (Question, that Clauses 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 be part of the Bill, proposed) Division will be at the end.

Mr. Chairman, Sir, the rationale behind this amendment is the inclusion of the county government because agriculture being a devolved function, it was important to ensure that the CoG take part in the nomination of the board and the people who will run the board.

Secondly, by changing and substituting, “nominated by universities” to “representing the universities nominated by the Commission on University Education”, ensures that it is also inclusive. Therefore, it does not claw back on the duties and the roles of the county government because this involves agriculture and it is a devolved function.

The Chairperson

(Sen. Kathuri)

: Proceed, Sen. Cherarkey.

Mr. Chairman, Sir, I agree with this amendment. In this Bill, we are trying to establish Kenya Sugar Research Institute. Universities are a hub of our research although they have been a challenge since they do not have proper funding. However, with Kenya Sugar Levy Fund that will be levied, it will allow extensive research in the type of breed that we will plant across western and rift valley part of this country.

Secondly, as the Chairperson for Agriculture, Livestock and Fisheries has said, agriculture is devolved.

Finally, on the person nominated to be on the board, the CoG should nominate somebody with a background and understanding of the sugar sector. That is how sugar industry operates from the way it is planted, harvested, milled, and also the marketing of sugar.

Sen. Wamatinga, proceed.

Services, Senate.

Now that the Kenya Sugar Directorate is with Agricultural Food Authority (AFA), it will give opportunity for farmers, especially in provision of extension services and research and the growth and development of sugar industry in the country.

Thank you. I support. The Chairperson (Sen. Kathuri): Sen. Wafula, proceed.

Thank you, Mr. Chairman, Sir. I want to reiterate what Sen. Wamatinga has raised. The representative of the CoG with a background in the industry of sugar, ensures that the aspects that are devolved in this industry are well catered for.

Remember, in the Bill, we have inspectors, seedling preparation and dissemination, the pricing committee in this exercise and the cess that counties will receive. Therefore, the person representing the counties must understand the various regions that grow sugarcane and the dire challenges they go through. They have no reason not to give us a qualified person to sit in the board and ensure that the CoG and agriculture being devolved, gets a fair representation in the board.

The Chairperson (Sen. Kathuri) : Division will be at the end.

Clauses 30-37

Division will be at the end. We have three amendments to Clause 38. Chairperson, proceed. Clause 38

Sen. Wamatinga, proceed.

Mr. Chairman, Sir, I beg your pardon for that. I beg to move: THAT, the Bill be amended by inserting the following new heading immediately after clause 17.

Mr. Chairman, Sir, I beg to Move- THAT Clause 19 of the Bill be amended by-

Mr. Chairman, Sir, I agree with the intent of the amendment to Clause 19. Some millers develop cane and have an agreement with the farmer. Therefore,

Services, Senate. this amendment will ensure there is no cane poaching or hawking. It will ensure that the development is duly done.There should be supplier-valid agreement to protect the growth of the miller. Most of the farmers have taken loans from millers and there will be protection by the valid supplier agreement.On the issue of delivering within the sugar zone area, this amendment will ensure there is discipline. Every game has its rules. I come from Nandi and we have no millers in entire county. When you go to Nandi South, the nearest miller is Kibos, Muhoroni and the rest are 18 kilometres away.This amendment will ensure that it is easier for farmers within Nandi South to deliver to factories in Kisumu. Nandi North does not have a miller and it is nearer upper western, that is Kakamega County where Naitiri Sugar Company and Butali Sugar Company are. Farmers will not need to travel more than 200 kilometres to deliver their cane.If we are growing sugarcane in clusters as Hon. Oparanya's report indicated, we will have the central zone of Nandi South, Kisumu, and Kericho. On this other part, we have Nandi North, Kakamega, Bungoma, and Trans Nzoia because of the proximity of those factories.This amendment is in good faith and will ensure cane development, while protecting the interest of the farmer and the miller.The Chairperson (

Mr. Chairman, Sir, I support the amendment because we used to have private factories which used to maintain roads in the sugarcane growing areas. The roads were perfectly maintained. When the function was taken over by the state, things went haywire. The roads were completely destroyed.

It appears that our brothers in the “Lower House” wanted to control this through the KeRRA, so that this remains as it is. The roads now are in a poor state. Maybe cess going to the counties as a conditional grant will help improve the road network there.

Personally, I would prefer privatization of these factories because they used to maintain the roads. The roads used to be good. In Miwani, we used to have a railroad within the areas of transporting sugarcane therefore not destroying the roads.

On a point of information.

Services, Senate.I totally oppose this over-regulation of farmers. The Chairperson (

Thank you. Sen. Kisang’ you want to speak to this?

Yes. I have put an intervention, Mr. Chairman, Sir. I do not know if the farmers agreed with this Bill during the public participation because this is retrogressive. The farmer should be free to sell their cane where they wish. Otherwise, a miller might take your cane and then they do not pay you. What happens? Therefore, I think we need to oppose this amendment. The Chairperson (

Mr. Chairman, Sir, I beg to move- THAT the Bill be amended by deleting Clause 59. Mr. Chairman, Sir, the rationale behind this is that the farmers will be responsible for planning their own affairs. Therefore, there is no point of having the growers’ association.

The Chairperson (Sen. Kathuri) : There are requests here, but I do not know for which amendment.

Sen. M Kajwang’: Mr. Chairman, Sir, Clause 59 that has been proposed to be deleted talks about representation of growers in a private milling company. I am extremely hesitant to support an amendment that curtails the representation of the key players in the sector - the growers.

I would have loved for the Senator who moved the amendment to have given a deeper rationale for this. I am sure, Clause 59 with three sub clauses must have been subjected to rigorous public participation.

We then might be accused as a House that allowed private milling companies to operate without considering the voices of the growers who are very integral to this industry.

In as much as when it comes to the vote, I will probably ask the Senator to give me a greater rationale. It would have been very good for it to go on record on the thinking, the public push and agitation that has informed his decision to convince the Senate to drop representative of growers in private milling companies.

Mr. Chairman, Sir, I do not know whether to support the idea of the ‘youth leader’ or to oppose it. I would like to beseech him to consider the investors who come in and help farmers with inputs. When it comes to the issue of output, all of a sudden that farmer now decides to sell that sugarcane to another miller. How will the miller recover their inputs? What we need to do to safeguard both the farmer and the input, is to further amend that amendment which is being brought. I wish the sponsor would have been listening to it because it would help him. We need to put a caveat where the farmer does not have a contractual agreement with the miller, they are free to sell and there is no zoning. However, where there is a contractual agreement, we have to protect contracts. Therefore, we need to amend that section. That will take care of the reservation of the ‘youth leader’ on that. It will also take care of the interest of the investors. I have seen it in Narok County where, the Trans Mara Sugar Company has invested in the input. When it comes to harvesting cane, sometimes there is a challenge and the is not able to take all the cane at ago, then you find farmers selling their cane. Mr. Chairman, Sir, there are different mitigating factors that we can put in the Bill, such that if the cane is ready to be harvested, and there is a contractual agreement, then with the consent of the milling company, the farmer can sell that cane to another company. That will be a much sober way to resolve this issue. I thank you. The Chairperson (

Mr. Chairman, Sir, when we were doing the Second Reading, I am among the people who opposed this provision of Clause 59. I differ with my good friend Sen. Kajwang’ in the sense that, when we allow farmers to sit on the board of a private company, it goes against the dictates of the Companies Act. That is likely to discourage private investors from investing into our country.

The second part of that clause talks about a representative of the farmers’ organization. This basically means, the farmers will sit, do an election and chose someone who will sit on the board of that private company. That in itself creates a risky situation for our private investor, because of the political process of choosing that representative among the growers.

I think this Clause 59 is retrogressive and we should delete it. In any case, the Bill has a regulatory mechanism of managing challenges or interests of the farmers through the board. So, I support the deletion and differ with my good friend, Sen. Moses Kajwang’ on this.

The Chairperson (Sen. Kathuri) : Yes, the Senate Majority Leader.

I do not see why there should be a fight about this. I agree with the position by Sen. Osotsi for this simple reason - sometimes, we make laws, which unfortunately, are in contradiction to already established laws. There is already a set out law in the Companies Act on how you become a board member in a company, especially the private owned company.

There is no way you can do a subsidiary legislation purely for one group of companies. Sen. Kajwang’, for this, you do not even need a good lawyer, even an intern will strike out this legislation on grounds of discrimination alone because somebody will ask, “why not then Mbita millers for maize farmers?” Farmers will say they have to be in the company because they take their maize there.

Since there is also an agro-processing plant in that place that we went to, called the Victory Fish Farmers, they will also say that they have to be in this company because they deliver their fish to this company.

In my assessment, it is in violation of already existing laws on how you become a board of director in an institution. To single out one entity alone and say that only in sugar farming will we have this, you will then be asked about maize, tea, dairy, fish and all these other private companies that deal with the public.

I agree with the wisdom of the Committee.

Services, Senate.

The Chairperson (Sen. Kathuri): Sen. Wafula, go ahead.

Thank you. I rubber stamp what the Senate Majority Leader has said. The resolution of the Committee to delete that clause was out of a rigorous public participation exercise that we did across the country.

We met stakeholders in the industry and owners of companies. They expressed their reservations of their hard-earned investments being threatened by externally imposed representatives by this law.

As a country, we believe we need to create a good working environment for investors in the industry. Therefore, we had no other option, but to do what is legally correct by deleting that clause.

As a Member of the Committee, we stand with the deletion. Thank you.

The Chairperson

(Sen. Kathuri)

: Division will be at the end. Clause 60

The Chairperson (Sen. Kathuri) : Chairperson, you may have the Floor.

Proceed, Sen. Osotsi.

Mr. Chairman, Sir, earlier on I rose on a point of order to demand that whenever the Mover moves these amendments, justification of the same is very important so that Members can follow up and so that any ambiguities can be handled. If I look at this proposed amendment, there is ambiguity in it because a similar amendment is on New Clause 19. We must decide on which one to adopt. Is it the new clause or this amendment? At the same time, Clause 19 (d) , talks about deleting the heading appearing immediately after the subclause (3) . That heading talks about Part Three of the Bill, which is licensing and regulation. It is jumbled up because this particular Clause 19 is talking about a miller and grower and whether they have an agreement or not. I am wondering why the deletion of a heading comes in here. The next thing is what happens to all those provisions under that heading? So, we need to look at Clause 19 at the same time we compare what has been proposed under New Clause 19, so that we do not end up having two clauses that are talking about the same thing. Mr. Chairman, Sir, that is not proper law-making. The Chairperson (

Sen. Osotsi, the heading is on Clause 17 which was prosecuted by Sen. Wamatinga. It is Clause 17, not Clause 19.

There is a mistake because Clause 19 is talking about deleting a heading immediately after subclause3, which is talking about licensing and registration. The Chairperson (

Sen. Ososti, the heading, “Part III –Licensing and Registration” has been moved from Clause 19 to 17, which the Chairperson, Sen. Wamatinga, has already amended.

Okay. What about the conflict between Clause 19 and the New Clause 19A? It is talking about the same thing. The Chairperson (

Yes, we will get there, do not mind. Let me put the question. Division will be at the end. Clauses 20-28 (Question, that Clauses 20, 21, 22, 23, 24, 25, 26, 27, and 28 be part of the Bill, proposed) Division will be at the end.

I spoke on this issue of over-restricting farmers. Introducing regulations which introduce the board to allow the farmer to sell to another zone is introducing corruption. This is another hurdle. Already the millers have agreed that if a farmer delivers cane in a zone that is not his and he has a loan with a factory in another zone, that loan is deducted and paid to that particular factory. What is this board being introduced here?

Mr. Chairman, Sir, this is bureaucracy, the farmer has to apply to the board to give them permission to deliver cane in another zone because of many reasons. This is oppression of the farmers. They are already suffering from some of these regulations.

I totally oppose this kind of amendment. The Chairperson (Sen. Kathuri) : Sen. Mundigi.

Bw. Mwenyekiti, ningetaka kumwambia Seneta mwenzangu kuwa wakati tulikuwa tunaibuni Hoja hii wakati huu wa demokrasia halisi, tuliona ni vizuri mtu awe akiuza vitu vyake pahali anaona ni pazuri naye. Unaweza mwambia apeleke miwaa zake upande huu, lakini yeye anapendelea upande ule mwingine kwa sababu ya bei ya nafuu. Kwa hivyo, hatukuona ikiwa vibaya na tuliona na vizuri kuwe namna hiyo.

The Chairperson (Sen. Kathuri) : The Senate Majority Leader.

Mr. Chairman, Sir, I plead with my neighbour, Sen. (Dr.) Oburu, to understand. In my opinion, this amendment helps the farmer achieve what he is saying.

It is the previous amendment of Clause 19 that closes all farmers in one region without room for exit whatsoever. Farmers in the central region; Kericho, Kisumu and South Nandi, have only two private factories. If you close those farmers into that region alone, without providing any exception for them and yet, there is clear evidence that even with the presence of those two millers, there is still, an oversupply of cane.

Mr. Chairman, Sir, to marry the situation, where you have regions in the country, where there is an overabundance of factories and farmers have sufficient choice of where to take their cane, and us, who come from areas where we still have unique challenges of not having sufficient factories, it was important that we provide this provision.

There was a big debate when this Committee went to Chemelil to listen to farmers from Kisumu, Kericho and Nandi. There were those who wanted zoning for reasons best known to them and there were those of us who were opposed to zoning. In their wisdom, the committee listened to those that were opposed to this issue of being zoned in an area where there is no sufficient factory to take their cane and requested that this provision be provided.

If you would request that you have received support from a particular factory outside your zone because those that are there are not sufficient to take our cane, then it was important to provide this exception.

It is a fair proposal given the unique situation that those in the central region find themselves in. Another region that will find themselves in this situation are those that come from Transmara or Narok, the southern region. I wish Sen. Ledama was here.

Migori, Homa Bay, Kisii are also among those counties. For example. In Narok, the only private factory is Transmara. If you restrict them to that particular region alone

Services, Senate. without providing any exception, what happens if there is a breakdown and it takes a longer period to repair? Therefore, it was important to make this provision and I plead with you to agree with the wisdom of the committee.

The Chairperson (Sen. Kathuri): Proceed, Sen. Oburu.

Mr. Chairman, Sir, I do not support restriction. That is why I do not support this idea of bringing in the board to give permission. The farmers should be free to sell their cane where there is good pricing, payment or treatment in terms of business. Some even give loans to farmers to pay school fees when others do not even care. You could be having a child sitting there yet your cane is lying with the sugar cane factories. However, some factories even pay you when your cane is still in the farm.

They come and assess your ability to repay and give you the loan to even pay school fees for your children. If you have such kind of treatment and the other factory that had given you a loan are not paying you money, you should be free to sell your cane to them and there be an arrangement where they can recover their loan. If they give me money to develop cane and are not good by not paying me, they will tie me to some draconian agreement, which would make me suffer.

The Chairperson (Sen. Kathuri) : Proceed, Sen. Mandago.

Services, Senate.Now that the Kenya Sugar Directorate is with Agricultural Food Authority (AFA), it will give opportunity for farmers, especially in provision of extension services and research and the growth and development of sugar industry in the country.Thank you. I support. The Chairperson (

It is not like I am not interested. I am considerate of Members, especially proponents of the Bill to expose what is in detail.

Thank you. The Chairperson (Sen. Kathuri) : Proceed, Sen. Cherarkey.

Mr. Speaker, Sir, I invite Members, especially senior youth leader, Sen. Oburu, to look at the intent and principle and the spirit of this introduction. Why? One, you remember AFA issued a letter on closing some factories in central region, that is Kisumu, Kericho and Nandi South. Imagine your cane was ready.

Mr. Chairman, Sir, every game has rules and has a referee. The reason Kenya Sugar Board (KSB) is being removed as sugar directorate from AFA is to give KSB an opportunity to become a regulatory.

Services, Senate.

The KSB is a regulatory body. Just the same way I must get a license from Kenya Dairy Board to take my milk from Nandi to Kakamega or Kisumu. For example, in Chemilil-Chemase ward, we produce 1,800 metric tons of cane in a day.

Let us assume out of the seven factories, only two are functional. They do not have sufficient capacity, so the exemption can be provided for me to take that sugarcane to Vihiga or Kakamega, which is in another zone. This exemption is within the power of KSB.

I correct the misnomer that it does not mean KSB will only sit in Nairobi. They will have offices just like the way Kenya Dairy Board has offices in other areas.

Finally, I have heard something very dangerous from Sen. Oburu saying that you should not be tied with draconian agreement. It is you the farmer and the miller who went to an agreement. If we allow that agreement be broken, it means we will be allowing cane poaching and hawking.

If I am doing cane development as a factory then somebody somewhere like Oburu factory wants to come and buy without following an agreement, it will bring chaos in the industry.

I submit. The Chairperson (Sen. Kathuri): Sen. Olekina, kindly comment on the amendment, do not debate.

Mr. Chairman, Sir, this is a very important debate. However, as I listen to both Sen. Cheruiyot and Sen. Oburu, one point that he has is that what does a farmer do when the company that you have a contract with refuses to pay you money and you have a loan that you are supposed to pay?

Senate Majority Leader, we need to discuss this to find a way to ensure that the farmer is not tied to that miller if the miller does not pay them. I think we need to further amend this clause.

That is why you should not be in a rush to pass this. We take care of the interests of the farmers that Sen. Oburu is representing. When we were consulting, Sen. Oburu told me that he has a relative who has not been paid Kshs2 million and he has taken a loan on. When that relative attempts to sell sugar to another milling company, Muhoroni Sugar comes and says it is poaching, we will not allow it. Yet, they have not paid him for two years over Kshs2 million.

We need to have a balance. I have a problem with boards. I agree with Sen. Oburu 100 per cent that we are creating a lot of bureaucracies. All we need to do is to protect these farmers and say that if there is this contract, it must be respected by both parties. There is no point as to why the miller do not respect the contract by not paying the farmer for two years.

If it says when you collect my cane, pay me---

Let me finish my argument. That is the issue Sen. Oburu has with this board. The Chairperson (Sen. Kathuri) : Sen. Olekina, would you want to be informed by the Senate Majority Leader?

Services, Senate.

Mr. Chairman, Sir, I am happy to be informed.

Sen. Olekina, I understand you have the amendments by Sen. Sifuna.

Yes, I do. Mr. Chairman, Sir, I would like to move an amendment on behalf of

Sen. M. Kajwang’ says he has a proposal.

The Chairperson (Sen. Kathuri) : At this juncture---

Services, Senate.

Please, listen. The Chairperson should handle the discussions from both sides. I want to give you an opportunity because maybe---

Mr. Chairman, Sir, I was being informed. The Chairperson (Sen. Kathuri) : Please, conclude.

Services, Senate.In conclusion, to be honest, most of these roads are feeder roads. These are roads which pick crops from the farms to the factory. Let us ring-fence and make it conditional grant. The KeRRA does not have the capacity. It continues to be ineffective even in maintenance of their own roads.I submit. The Chairperson (

Mr. Chairman, Sir, the best way forward is this. It is good for us to agree because we are all fighting for our farmers. I have a problem with my farmers in Narok being forced to sell their cane to another zone if they have a problem with where they sell because they are not being paid.

I have a problem with creating bureaucracies where you have a board that sits in Nairobi, that every farmer has to come and seek exemption. They have to inform the board that they do not owe any miller if they want to sell their cane. That creates an avenue for corruption and that is the problem I have.

My proposition is as follows. The best thing is for the committee to relook at this issue and see how to redraft the powers of the board.

If we amend it here, it will help us. I have a problem with bureaucracies of these boards. Leave the farmer alone. I do not even know why we are controlling this crop so much. Allow farmers to grow cane and sell it wherever they want to.

The problem is when--- The Chairperson (Sen. Kathuri) : Sen. M. Kajwang’, what is your proposal?

Mr. Chairman, Sir, I support the amendment because we used to have private factories which used to maintain roads in the sugarcane growing areas. The roads were perfectly maintained. When the function was taken over by the state, things went haywire. The roads were completely destroyed.

It appears that our brothers in the “Lower House” wanted to control this through the KeRRA, so that this remains as it is. The roads now are in a poor state. Maybe cess going to the counties as a conditional grant will help improve the road network there.

Personally, I would prefer privatization of these factories because they used to maintain the roads. The roads used to be good. In Miwani, we used to have a railroad within the areas of transporting sugarcane therefore not destroying the roads.

On a point of information.

Yes, you can inform me.

Mr. Chairman, Sir, I want to inform my brother, the senior youth leader in the House, that the issue of privatization of sugarcane sector is ongoing. However, the matter is still in court. I agree with him that if we succeed with privatization, that is the direction we should take with the roads. I would like to see that proposal through the senior youth leader and chairman of the Odinga family. We should also bring that to the tea sector such that the roads maintained by the sector also get access to the cess. That is the information I wanted to add. (Question of the amendment proposed) The Chairperson (

Services, Senate. this issue of sugar from the last session and even now. Someone will say that I do not produce sugar where I come from, but I am a net consumer of sugar.

We are coming from a situation where we have a monster called the AFA. This AFA pretends it can regulate every crop and everything under the sun. They create directorates. Sugar is an important sector in the economy, but is managed by a directorate under AFA. I hear my brother, the Senior Counsel, asking why we want to expose farmers to a board. My response to this is that the board is better evil than AFA because the farmers are on the board. In AFA they do not exist and sugar is under a Nairobi-based directorate. The decisions are made in Nairobi and implemented on the farms.

Secondly, let us be reminded that three or four years ago, there was a taskforce that was set up to look into this matter of the sugar sector. This taskforce came up with recommendations that have found their way into this Bill.

Services, Senate. Clause 43

Mr. Chairman, Sir, I beg to move- THAT Clause 43 be amended in subclause (2) by inserting the words “and the Senate” immediately after the words “the National Assembly”. The rationale behind this is that when you talk about Parliament, it comprises the Senate and the National Assembly. Agriculture being a devolved function, the role of the Senate cannot be overlooked. (Question of the amendment proposed) The Chairperson (

Division will be at the end. Clauses 44 - 58 (Question, that Clauses 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57 and 58 be part of the Bill, proposed) Division will be at the end. Clause 59

Mr. Chairman, Sir, I beg to move- THAT the Bill be amended by deleting Clause 59. Mr. Chairman, Sir, the rationale behind this is that the farmers will be responsible for planning their own affairs. Therefore, there is no point of having the growers’ association. The Chairperson (

Mr. Chairman, Sir, I beg to move: THAT the Bill be amended by inserting the following new clause – A miller may enter into a contract of cane supply with another miller if —

Services, Senate.I am looking at an example of sukari industries, a private miller in Homa Bay County. If there was that hope that the growers will have a representation on their board of directors, I will find it very difficult to go back to the residents of Ndhiwa and tell them that the Senate decided that the private miller and that the Mr. Rais of this world will run their operations unfettered without any representation from the local community. I see this as the entry point of the voice of the local community and players in that private milling company.Mr. Chairman, Sir, I know the Mover may not be allowed to speak twice to the question, but let it to go on record as to why he thinks that we should support that deletion.The Chairperson (

Services, Senate.

If a miller in zone A, for whatever reason, finds it necessary to move cane or to have relationships with a miller in zone B, then there is a prescribed form for that kind of arrangement.

The Chairperson (Sen. Kathuri): Sen. M. Kajwang’, I want to rule that maybe at the rise of the House, you, the Chair of the Committee, the Mover, Sen. Wafula, the Senate Majority Leader and any other Senator interested in relooking at Clause 19A and B will have the opportunity to do that today.

Sen. Osotsi, you may have the Floor.

Mr. Chairman, Sir, when we were doing the Second Reading, I am among the people who opposed this provision of Clause 59. I differ with my good friend Sen. Kajwang’ in the sense that, when we allow farmers to sit on the board of a private company, it goes against the dictates of the Companies Act. That is likely to discourage private investors from investing into our country. The second part of that clause talks about a representative of the farmers’ organization. This basically means, the farmers will sit, do an election and chose someone who will sit on the board of that private company. That in itself creates a risky situation for our private investor, because of the political process of choosing that representative among the growers. I think this Clause 59 is retrogressive and we should delete it. In any case, the Bill has a regulatory mechanism of managing challenges or interests of the farmers through the board. So, I support the deletion and differ with my good friend, Sen. Moses Kajwang’ on this. The Chairperson (

Mr. Chairman, Sir, I have seen there is an amendment to the New Schedule that has been introduced.

Madam Temporary Chairperson, I request that the First Schedule remain as is, for the purpose of election of the representative of the farmers as per Clause 6

(b)

, where the First Schedule has only been used to elect directors to Kenya Sugar Board.

My aspirations have been captured by the introduction of the New Schedule that will create sugar zones of the central region, that is, Kisumu, Southern Nandi and Kericho counties. On Upper Western, we have Bungoma, Kakamega, excluding Mumias areas, Trans Nzoia, Uasin Gishu and Northern Nandi counties.

I do not see why there should be a fight about this. I agree with the position by Sen. Osotsi for this simple reason - sometimes, we make laws, which unfortunately, are in contradiction to already established laws. There is already a set out law in the Companies Act on how you become a board member in a company, especially the private owned company.

There is no way you can do a subsidiary legislation purely for one group of companies. Sen. Kajwang’, for this, you do not even need a good lawyer, even an intern will strike out this legislation on grounds of discrimination alone because somebody will ask, “why not then Mbita millers for maize farmers?” Farmers will say they have to be in the company because they take their maize there.

Since there is also an agro-processing plant in that place that we went to, called the Victory Fish Farmers, they will also say that they have to be in this company because they deliver their fish to this company.

In my assessment, it is in violation of already existing laws on how you become a board of director in an institution. To single out one entity alone and say that only in sugar farming will we have this, you will then be asked about maize, tea, dairy, fish and all these other private companies that deal with the public.

I agree with the wisdom of the Committee.

Yes, I withdraw the amendment to the First Schedule. It remains as is for the election of directors only.

There is a New Schedule that has been introduced by Sen. Wafula.

The Temporary Chairperson

: Division will be at the end.

Sen. M. Kajwang’, do you have a proposal on the Second Schedule?

Yes, I have a concern. The Temporary Chairperson

: Proceed.

Sen. Wafula, go ahead.

Thank you. I rubber stamp what the Senate Majority Leader has said. The resolution of the Committee to delete that clause was out of a rigorous public participation exercise that we did across the country. We met stakeholders in the industry and owners of companies. They expressed their reservations of their hard-earned investments being threatened by externally imposed representatives by this law. As a country, we believe we need to create a good working environment for investors in the industry. Therefore, we had no other option, but to do what is legally correct by deleting that clause. As a Member of the Committee, we stand with the deletion. Thank you. ((Question of the amendment proposed) The Chairperson (

Okay. The Temporary Chairperson

: We will get there. Perhaps, you can comment if it does not meet the standard that you want.

Therefore, I repeat the proposal of the question that the First Schedule, be part of the Bill.

Services, Senate.

(Question, that the First Schedule be part of the Bill, proposed) Division will be at the end. New Schedule

The Temporary Chairperson (Sen. Veronica Maina): I call the Chairperson, Sen. Wamatinga to proceed.

I beg to move- THAT the Bill be amended by deleting the First Schedule and substituting therefor the following new Schedule —

FIRST SCHEDULE (S. 2, 6 (1) (b) and 29(b) DELINEATION OF SUGAR CATCHMENT AREAS SUGAR CATCHMENT AREA COUNTIES

Yes, Madam Temporary Chairperson, because it is differently composed than what we had proposed initially.

The Temporary Chairperson

: Can the secretariat then circulate the New Schedule, so that Sen. M. Kajwang’ can see whether his concerns have been addressed in the New Schedule?

You will get a copy just now and you can confirm that you are comfortable with the proposed New Schedule as amended.

Sen. M. Kajwang’, you have the New Schedule and you can proceed if you have any concerns.

Madam Temporary Chairperson, this is usually a very important stage in law-making. I am a bit uncomfortable because before this amendment was done, Homa Bay County was missing.

If I had not been in this House or if someone was not going to point it out, perhaps Homa Bay would have missed out on the sugarcane zones and that would have been a great tragedy.

Services, Senate.

Madam Temporary Chairperson, my concern is when this Bill came from the National Assembly, we had one Schedule, which was supposed to suffice for election and delivery of cane. I have not heard the strong justification from the Mover of the amendment, who proposes a New Second Schedule for sugarcane zones, because the problem is that it has disaggregated.

For example, in the First Schedule, you will find that Kisumu, Migori, Homa Bay, Kisii and Narok counties are in the southern zone. In the Second Schedule, you will find that Kisumu has now moved to central region. Kisumu is now with Southern Nandi and Kericho counties.

This could be mischief, but I do not want to impute improper motives. I would like the Mover of the Second Schedule, not just to leave it to be included in the amended form, but to justify and tell the House why the Second Schedule is significantly different from the First Schedule.

This is because if you are going to use a unit for elections, then it follows that that electoral unit has similar interests and concerns. That is the unit you also use for development of cane. This can bring about certain confusion.

I do not see the Member for Kisumu County, but I would have been interested to find out whether he is comfortable with that. That for election purposes, Kisumu is lumped up with Migori, Homa Bay and Kisii counties, but for cane development purposes is lumped up with Southern Nandi and Kericho counties.

The Temporary Chairperson (Sen. Veronica Maina): Chairperson, Standing Committee on Agriculture, Livestock and Fisheries, that concern is valid.

Thank you, Madam Temporary Chairperson, for the indulgence. When you look at the Bill, Clause 6B, the First Schedule is specifically used for elections of farmers' representatives from the five regions for purposes of elections to KSB.

He asked a very important question. I come from Nandi County. We do not have a miller or a sugar factory. I am only 18 kilometres from the many factories that are in Kisumu. The reason I want to work with Kakamega for cane development is because most of the factories are in Kakamega, for example, Naitiri, Kabras, and Butali. When you come to Nandi South, we have Kibos, Muhoroni, Miwani, Sony, among others.

That is why this Second Schedule is very critical because it is convenient for farmers of cane development. For example, Nandi does not have even one sugar milling factory, but Kisumu has more than seven. If you go to Nandi, Kericho and Uasin Gishu counties, it is only Kericho that has one sugar factory that might not be able to accommodate the capacity because it might only be crushing 1,200 metric tonnes. Chemelil-Chemase, which is only 18 kilometres from Kisumu, produces 1,800 metric tonnes. You have not added Sigowet-Soin, Kipkaren, Aldai, Mosop and Tinderet. So, the one factory will be overwhelmed.

Sen. Cherarkey, you are taking advantage to go to the contents of the Bill like we are in the Second Reading. Just make a comment on the amendment.

Services, Senate.

The intention of this was for purposes of cane development and delivery only. However, when it comes to elections, we remain with the First Schedule to allow farmers to elect and also for regional balance.

On a point of information, Madam Temporary Chairperson.

Division at the end. Clauses 61- 65

Can I be informed by my super Chairman, Madam Temporary Chairperson?

The Temporary Chairperson

: You can proceed. He has accepted

Thank you, Madam Temporary Chairperson. We work very well with Sen. Cherarkey, including and up to yesterday, when we were looking at the books of Nandi County.

I just want to inform him about the saying, “what is good for the goose, is good for the gander.” So, if a unit is good for electoral purposes, why is it not good for cane development purposes? That, you want to redefine a different unit for election and a different unit for cane development.

Do you fear that if you are lumped up with Kisumu for electoral purposes, then you will be whitewashed? However, you are only happy to be with Kisumu for cane development purposes. That needs to come out.

The Temporary Chairperson

: Chairperson, you are the one to justify that, though maybe they are tapping into the big brains, which are in Kisumu for the cane development.

Division at the end. New Clause 19AThe Chairperson (

Yes, it is. The Temporary Chairperson

: Sen. Wamatinga, just hold a bit, so that we hear what Sen. (Dr.) Khalwale has.

Madam Temporary Chairperson, the issues being raised by the Senator for Homa Bay County are real and practical. Allow me to remind the House that the upper and lower western zones produces over 80 per cent of the sugar consumed in this country.

If we take the route suggested by the Senator for Nandi County, it is dangerous. Directors are elected to represent and protect the interests of their zone. So, once we admit the New Schedule, the issue of electing people from a different zone, and then they go to represent another zone, makes it operationally non-productive and helpful.

If you look at this practically, the purpose of this zoning is not to give communities zones. It is to give zones to areas that make geographical sense. For us who know where this place is, Kisumu, South Nandi and Kericho counties are in the same

Services, Senate. geographical area. The attempt by the Senator for Nandi County on the issue of election, is to represent community interests. We are not on community interests.

For your information, Senate Majority Leader, one of the reasons we have failed in some areas is because of the factor of transporting cane. If you are taking cane too far, it becomes unproductive.

I request that directors must be voted for in the zone that will have been adopted. Electing directors from outside, to go to a different zone, will have no useful purpose. It will create operational nightmare that is unhelpful.

Since this is the only time I might speak on this, I congratulate the committee on the exemptions that they proposed. They are very important, because it admits the principle of free market economy. You cannot tie a farmer to somebody who is not helpful. That is very good.

The only rider we should put there is that a miller from a different zone should not be allowed to erect a way-bridge in another zone. The moment they have a way-bridge in another zone, that is when poaching comes in.

Thank you, Madam Temporary Chairperson. The Temporary Chairperson (Sen. Veronica Maina): Proceed, Senate Majority Leader.

There is something that my good Whip is missing. The problem we have in Kericho, Nandi and Uasin Gishu counties is that we have abundance of cane, but no mills. If you were to lump them for purposes of zoning, they only have access to one small private mill. That will not be sufficient to provide milling services to those farmers.

That is why this request is coming in saying that in the delimitation of these regions, those that are in Upper Nandi or what is being referred to here as North Nandi and Uasin Gishu counties, have access to mills in Kakamega County because there are sufficient mills that side.

Those who are in the south of Nandi and Kericho have access to mills in Kisumu. If you do that, you will give the central region, for example, Kericho, access to seven mills; two private and five that are Government-owned.

Separate that for those that are in the north part of Uasin Gishu, it gives them access to about five private factories. Therefore, they will be satisfied. That is the whole logic behind it and why we are pleading with it.

Madam Temporary Chairperson, we are making good progress on this. Even on the other matter where we had a stalemate, Sen. Omogeni and Sen. (Dr.) Oburu were able to convince us. We were told earlier to consult and report progress, to shift the burden of approval from the farmer to the board, such that the farmer only has to give notification. That is reasonable.

The board should be notified by farmers that they will be supplying their cane outside their zone. This is because they do not owe any miller and that did not take any subsidy support from any of the millers. That is why they feel the need to supply elsewhere. It will be the work of the board to check whether what you are saying is true as opposed to a farmer going there. We felt that was a fair compromise, which we shall re-draft.

Services, Senate.

I like the spirit that is prevailing. We request that it be the guiding spirit in consideration of this Bill. I support the schedules as proposed by the committee.

The Temporary Chairperson (Sen. Veronica Maina): In view of all those submissions, it appears as though the Chair’s work has been eased by Members in their arguments, by justifying operational zones vis-à-vis governance zones. That would mean that since you are comfortable with operational zones remaining as such and governance zones remaining for purposes of elections, we should proceed as we had agreed.

Madam Temporary Chairperson, I beg to move: THAT Clause 2 of the Bill be amended by inserting the following new definition immediately after the definition of “sugarcane manufactures apex body”. “Sugarcane zone” means a geographical area as set out in the Second Schedule where growers and millers are restricted to deliver and receive cane respectively.

The Temporary Chairperson

: Division will be at the end. The Title and Clause 1

Division will be at the end.

Madam Temporary Chairperson, we were formally in session when the Chair directed that there be a reconsideration of Clause 19. Given that we have reconsidered and consulted, and that the idea of notification as opposed to an approval seems to find favour amongst everyone in the

The Senate Majority Leader.

Services, Senate. room, could the Chair commit to have a redraft of that, so that tomorrow as we conclude on the same, that is the question that is put?

The Temporary Chairperson (Sen. Veronica Maina): Chairperson of the Committee, you have heard the request. Could you make an undertaking on whether you have been updated on the consensus position?

Services, Senate. without providing any exception, what happens if there is a breakdown and it takes a longer period to repair? Therefore, it was important to make this provision and I plead with you to agree with the wisdom of the committee.The Chairperson (

Madam Temporary Chairperson, pursuant to Standing Order No.153, I beg to move that the Committee of the Whole do report progress on its consideration of The County Boundaries Bill (Senate Bills No.6 of 2023) and seeks leave to sit again tomorrow.

Sen. M. Kajwang’ and the Senate Majority Leader, we now want progress reported on the County Boundaries Bill (Senate Bills No.6 of 2023) .

Chairperson, proceed.

Services, Senate.

Thank you very much, Mr. Chairman, Sir. I am also uncomfortable with that Clause 9A. You know the board chair will be sitting in Nairobi. Farmers will have difficulty in accessing the boards to give their approval. I do not know the wording that can be amended whereas it is important to make sure that there is a bit of control. However, for them to apply to the board, it will take ages and they will extremely suffer. I do not have a problem with the explanations that have been given on the zoning, but on this restriction. Why would a cane farmer who may not have loans have to seek permission? Why can I not take my cane anywhere I want? I submit. The Chairperson (

The Mover, please, proceed.

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

Who is seconding?

Anybody calling on the Chair, huwezipata. I am using the screen, stop calling the Chair. Keep quiet. What did you say, Sen. Wakoli?

It is not like I am not interested. I am considerate of Members, especially proponents of the Bill to expose what is in detail. Thank you. The Chairperson (

Proceed, Sen. Cherarkey.

Mr. Speaker, Sir, I invite Members, especially senior youth leader, Sen. Oburu, to look at the intent and principle and the spirit of this introduction. Why? One, you remember AFA issued a letter on closing some factories in central region, that is Kisumu, Kericho and Nandi South. Imagine your cane was ready.

Mr. Chairman, Sir, every game has rules and has a referee. The reason Kenya Sugar Board (KSB) is being removed as sugar directorate from AFA is to give KSB an opportunity to become a regulatory.

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

Who is seconding?

Sen. Olekina, kindly comment on the amendment, do not debate.

Mr. Chairman, Sir, this is a very important debate. However, as I listen to both Sen. Cheruiyot and Sen. Oburu, one point that he has is that what does a farmer do when the company that you have a contract with refuses to pay you money and you have a loan that you are supposed to pay? Senate Majority Leader, we need to discuss this to find a way to ensure that the farmer is not tied to that miller if the miller does not pay them. I think we need to further amend this clause. That is why you should not be in a rush to pass this. We take care of the interests of the farmers that Sen. Oburu is representing. When we were consulting, Sen. Oburu told me that he has a relative who has not been paid Kshs2 million and he has taken a loan on. When that relative attempts to sell sugar to another milling company, Muhoroni Sugar comes and says it is poaching, we will not allow it. Yet, they have not paid him for two years over Kshs2 million. We need to have a balance. I have a problem with boards. I agree with Sen. Oburu 100 per cent that we are creating a lot of bureaucracies. All we need to do is to protect these farmers and say that if there is this contract, it must be respected by both parties. There is no point as to why the miller do not respect the contract by not paying the farmer for two years. If it says when you collect my cane, pay me--- (Loud consultations) Let me finish my argument. That is the issue

Sen. Olekina, would you want to be informed by the Senate Majority Leader?

Services, Senate.

Mr. Chairman, Sir, I am happy to be informed.

Sen. Olekina, I think you are conflating issues. What you are describing is a situation prevailing, where a farmer has delivered cane to a certain miller and they have not been paid. You are arguing that we need to provide mechanisms to ensure that they recover whatever they have delivered.

That is a completely separate issue from the debate that we are having with Sen. (Dr.) Oburu. Sen. (Dr.) Oburu holds the position that there should be no exemption or restriction in the game and that it should be free and open.

Unfortunately, this played out here on Tuesday. I do not know if Sen. Wambua was here. We had farmers from central region; Nandi, Uasin Gishu and Kericho, who appeared before the committee.

The way it had previously been drafted in the law, when there was no this clause on exemption, farmers were up in arms. They said that we want to lump them in one region without providing room for them to do what we proposed to be provided for them to deliver wherever they want to.

That is why we have provided this exemption with conditions that, first, you demonstrate that you had a pre-existing agreement with a miller. If, for example, you are in the central zone, already you have an agreement with another miller. You can ask to be exempted.

Secondly, the grower is not indebted to any miller or out-grower institution within the sugar zone. That means that you do not owe anybody any money and you are not running away from anybody. Finally, you do not have a supply agreement between you and any miller within that particular region.

Sen. (Dr.) Oburu, this is a perfect middle ground, given the fact that in the absence of this Clause 19A, you are left with Clause 19 as it is, which has put farmers into zones with no exit clause for them. You have described, there will be farmers who may feel that a certain miller who is not within their zone treats them better and they want to do business with them. I thought that is a better middle ground.

The only point that has been raised here, which we need to reflect, is how to access the board. That is something the committee needs to guide us on how it will be done. Think of an average farmer at Kipsitet or any other part. You do not want to leave a peasant farmer who has an acre or two or even five acres of sugarcane at the expense of a body that sits here in Nairobi. That particular part should be drafted properly.

It was until Sen. Mandago said it that I thought about. Either the chairperson needs to guide, or we need to reflect because the people in the House here are all representatives of sugarcane farmers. As we go along with this discussion, after Members have spoken, we need to sit down and agree on a better draft to this exemption, other than leaving an interaction between farmers and the board.

I have a proposal.

Sen. M. Kajwang’ says he has a proposal. The Chairperson (

Services, Senate.

Madam Temporary Speaker, contractors and service providers are suffering all over. As I had earlier on said, the courts gave them authority to auction county government properties. We do not want to get there.

Madam Temporary Speaker, I would not want to see a governor driving to work, only to be stopped by auctioneers and his car is taken, so that it goes to pay the pending bills. I do not want to see a Chief Executive Committee Member (CECM) or a chief officer of a county, driving a county government vehicle, stopped on the road by auctioneers and that vehicle driven away.

Who is going to hurt more? It is the people that we represent. Imagine an ambulance that is government property, taking a patient somewhere and then auctioneers – you know they do not know boundaries – stop the ambulance and take it to pay for a pending bill, for someone who had gone to them to auction government property. We do not want to get there.

Madam Temporary Speaker, that is why the Senate is discussing this issue. As we discuss, we should form an ad hoc committee, or we can task the Committee on Finance and Budget to investigate further and make the Government commit itself on individual capacity or governors in their respective counties, so that we deal with this issue, once and for all.

Hon. Senators have always been in the dark when it comes to usage of monies in the counties. I propose that we, as Senators, should have access to even the Integrated Financial Management Information System (IFMIS) of our respective counties, not to pay or withdraw, but ‘read-only’ access. I will then be able to know what is happening in my county on a daily basis, by just logging in and looking at what the county is doing. Senators should also have ‘read-only’ access to the Internet Banking (IB) of our counties, so that we see what the governors are doing.

Sometimes we are rendered as morticians when we scrutinize the work done by previous governors in previous years and we are unable to scrutinize the current governors. We can only do so, on individual capacity.

We wait for the Auditor General to do audit reports. We look at them and scrutinize them. If she says that this was not addressed or resolved, that is when we look at it. However, if she says that this was resolved, we do not go on asking questions. That tells us that we only rely on the Office of the Auditor General (OAG).

Madam Temporary Speaker, I am happy to know that nothing stops this House. If we want the OAG to look at a specific issue, we can always write to them, through this House. They will ensure that they look at a particular issue within the period that the governors are sitting.

On the issue of pending bills and audit reports, the Senate should ask itself whether it should change the law or come up with a framework that will ensure that before governors leave office. By the time they are leaving office, they defend their audit reports. No governor should defend the audit report of a previous governor.

Madam Temporary Speaker, if we do that, we will do justice to the governors. I remember there was a law that was proposed here that those who are governors should not run for Senate or Member of Parliament (MP). I do not agree with that. We do not oversight as individuals, but as a collective House or the Senate.

At this juncture--- (Loud consultations)

Services, Senate.

Please, listen. The Chairperson should handle the discussions from both sides. I want to give you an opportunity because maybe---

Mr. Chairman, Sir, I was being informed. The Chairperson (

Services, Senate.

Madam Temporary Speaker, in the process, you find that you have sent money to counties. We fight here when we are sharing revenue, but the moment that money reaches our counties, it is never used for its intended purposes.

The other day, we were talking about Kshs110 million that was given by the national Government during the COVID-19 period. Again, we started a project. If you read through the file, you will find correspondence from our county government informing us that they had started a project where they were going to build a 300-bed capacity as an emergency response to COVID-19 pandemic.

If you go behind our county referral hospital, the last time we visited, as a Committee chaired by Sen. Mandago, we found a project that was abandoned. It was abandoned as soon as the new governor took office after the death of the late Nyagarama. We had pumped in millions of shillings and then the project was abandoned.

We are the people's representatives; we must get a solution to this problem. Sen. Methu, you are a bright young man. We cannot allow it. Some of the money thrown into uncompleted projects is money gotten from donors. World Bank is giving us money that we send to counties to do nothing or you find that people are asking for bribes.

Like now, we have support to do roads in Keroka, our second largest town. The money available to us is Kshs204 million. People who want to do that projects are now falling over themselves, talking to various entrepreneurs. It has even moved up from 10 per cent. People are now told “give 20 per cent before we give you a tender,” yet this is money that your taxes and mine will be used to repay.

It is not free money. When we get that money, it must transform the quality of life that the people of Nyamira are living today for the better. The Ethics and Anti-Corruption Commission (EACC), where I served for five years, must wake up. If you talk to all the Senators, no governor fears the EACC anymore. They are receiving bribes left, centre and right.

Please, conclude.

I was being informed. (Loud consultations) The Chairperson (

Sen. M. Kajwang’, you can inform him.

Thank you, Madam Temporary Speaker. I inform Sen. Omogeni, the pioneer and the architect of the anti-corruption laws and instruments and institutions, that the EACC has withdrawn their officers from Senate committee sittings.

For the last three weeks, the EACC officer who used to sit in the County Public Accounts Committee (CPAC) has been withdrawn without an explanation, the same thing for the County Public Investments Committee and Special Funds (CPICSF) . I inform Sen. Omogeni that something is wrong with that institution you so proudly established and was proudly part of the team that set it up.

We have set a meeting with the leadership of the EACC to explain why their officers have been withdrawn from the proceedings of the Senate.

Proceed, Senator.

Sen. Olekina, please conclude.

Mr. Chairman, Sir, the best way forward is this. It is good for us to agree because we are all fighting for our farmers. I have a problem with my farmers in Narok being forced to sell their cane to another zone if they have a problem with where they sell because they are not being paid. I have a problem with creating bureaucracies where you have a board that sits in Nairobi, that every farmer has to come and seek exemption. They have to inform the board that they do not owe any miller if they want to sell their cane. That creates an avenue for corruption and that is the problem I have. My proposition is as follows. The best thing is for the committee to relook at this issue and see how to redraft the powers of the board. (An hon. Senator spoke off record) If we amend it here, it will help us. I have a problem with bureaucracies of these boards. Leave the farmer alone. I do not even know why we are controlling this crop so much. Allow farmers to grow cane and sell it wherever they want to. The problem is when--- The Chairperson (

Services, Senate.

We should summon EACC to appear before us. We tell the country whether we are serious in the fight against corruption, or whether we have allowed the prophecy that was given by Prof. P.L.O. Lumumba to come to reality. If most of you can remember, the moment we created devolved units, he said, if we are not careful as a country, we will devolve corruption. Why for God's sake would EACC withdraw an officer from a watchdog body?

I was the chair when I served as a member of the advisory board. One of the sources of getting information on corruption activities was reports of the PAC of Parliament. I am sure if Bishop Oginde and the CEO took time to come to Parliament to sit before the committee that is chaired by Sen. Kajwang’, they will be shocked.

If they just sit through and listen to the queries raised by the Auditor General and the management responses from our county government, then look at the amount of money that this country is losing, they will have sleepless nights.

There are a lot of almost criminal and murderous activities that are taking place in our counties. I fully support this Motion and hope that when we resume tomorrow, we must agree that issues dealing with the pending bills is a cancer that we must diagnose and deal with once and for all, as Senators.

I support.

Sen. M. Kajwang’, what is your proposal?

Madam Temporary Speaker, I heard you call me and I want to make the best out of the five minutes that I have before we adjourn.

As a Member who sits in CPAC, when we speak about pending bills, as I rise to support this particular Motion. We must first define what pending bills are. Pending bills is when somebody has taken his or her own money or a loan, gone to a county like Nairobi or the counties cited here, done a road, a hospital, delivered pipes and done a classroom with his own money and not paid their own money.

Madam Temporary Speaker, as we speak about these pending bills, my Chairman, Sen. Kajwang,’ will tell you that when we look at these pending bills, every report of the Auditor General has a line that makes most counties not to get an unqualified audit opinion. Every county has a line that is called ‘Account Payables,’ a line that has pending bills.

This is a matter that has been spoken about in this House many times. In 2014/2015, the then Auditor General, Dr. Edward Ouko, carried out an audit to show the pending bills that are there in the counties. To this moment, in all the 47 counties that we have, none would say that they have a clean bill of records.

I ask myself every time I sit in the CPAC, and my Chairman is there, he can confirm. When you have a pending bill that is sitting in your bills since 2013 or 2014, then you say that there is no documentation, you must either declare that a bad debt or say how you want to treat that pending bill. Tell us whether a road was done or not. I want you to conceptualise it this way: How long is a murram road expected to last? If you did a road in 2013 and you are being told that they are going to verify 14, 10 or 11 years later, where will they get that road?

Mr. Chairman, Sir, we are probably losing the essence of this Bill. For those who have done systems programming, there is something called entity relationship diagram. We are establishing zones; each zone with growers and millers and restricting activities within those zones. However, for the reasons that have been provided in the proposed Clause 19A, particularly the second reason, the grower is not indebted to any miller or out-grower institution within the sugarcane zone. That grower cannot be compelled to supply cane within that zone. Mr. Chairman, Sir, I hear what Sen. Cheruiyot is saying. It is drafting that could be problematic. Perhaps, we need an opportunity to redraft this and exclude the mention of the board. We can simply say that a grower shall be exempted from the restrictions on supply of cane, if the grower is not indebted to any miller or out-grower institution. We should drop Clause 19A (2) , which then compels a grower to go to the board. I think that is where the problem is; the board is an unnecessary bureaucracy. In any case, we are saying that the Cabinet Secretary shall prescribe regulations for consideration. We know that sometimes Cabinet Secretaries take forever to bring regulations to this House. Under delegated authority, we have given the Cabinet Secretary six months to come up with regulations. Remember, this is an amendment that has not been carried over to the responsibilities of the Cabinet Secretary under delegated authority. I agree that we remove this board. If I have grown my cane using my money, my resources, my fertilizer and my seed, allow me to sell wherever I want to sell it. The Chairperson (

Sen. Methu, you will have a balance of 10 minutes when the next sitting resumes.

Mr. Chairman, Sir, we are well guided. However, I also want to put it this way. We know that most of the times, we operationalize laws by creating regulations. We created a board in this particular Bill because we need to bring some sanity. We know that if we leave it to people to decide what they want to do, there will be abuse. The question that has been asked makes a lot of sense; how will peasant farmers access the board? I want to put it this way. It is the regulations that will operationalize how they will access the board without even necessarily having to capture it in the document. I believe that most laws are operationalised through regulations. I understand the concern of Members that the Ministry takes a long to bring these regulations. It is our interest as a committee to ensure farmers in this county get their services and income optimised by ensuring the laws and regulations address the pertinent issues, as have been raised in this House. I submit. The Chairperson (

Sen. Wambua, proceed.

Services, Senate. this issue of sugar from the last session and even now. Someone will say that I do not produce sugar where I come from, but I am a net consumer of sugar.

We are coming from a situation where we have a monster called the AFA. This AFA pretends it can regulate every crop and everything under the sun. They create directorates. Sugar is an important sector in the economy, but is managed by a directorate under AFA. I hear my brother, the Senior Counsel, asking why we want to expose farmers to a board. My response to this is that the board is better evil than AFA because the farmers are on the board. In AFA they do not exist and sugar is under a Nairobi-based directorate. The decisions are made in Nairobi and implemented on the farms.

Secondly, let us be reminded that three or four years ago, there was a taskforce that was set up to look into this matter of the sugar sector. This taskforce came up with recommendations that have found their way into this Bill.

When Sen. Wambua informs it is a problem, and when other people inform, it is okay. What is the problem? The Chairperson (

We just need a comment.

Mr. Chairman, Sir, I am commenting and have not taken half the time people have taken to say many things. The Chairperson (

Conclude.

Mr. Chairman, Sir, I am concluding. I am happy that the Chairperson of the Committee on Agriculture, Livestock and Fisheries is listening to me, even if the Chairperson of the Committee of the Whole is not listening to me. The thing about growers and zoning is that zoning is meant for voting, that is, electing board members. The decision as to where a grower will deliver their cane is a deal between the grower and the sugar factory. There is no one being forced or told that since they are growing their sugar in Kericho, they must sell it in Kericho. If farmers in Kericho thinks that they will make more money selling their cane in Kwale County, they could sign a deal with a factory in Kwale and sell their cane there. Nobody is being forced to sell their cane within the zone. The zoning thing was purely for purposes of voting and election of board members. I thank you. The Chairperson (

If you understood what the Chairperson of the Committee said, we have an alternative in part three. However, we are not closing this matter. To make progress, we are not deciding now or voting on this issue. We will open this matter again. Let us proceed to the next clause. No decision has been made now. The other alternative is to go to division. We cannot resolve a drafting issue right now.

Services, Senate.

(Sen. Cheruiyot, Sen. M. Kajwang’, Sen. Omogeni, Sen. Wambua, and Sen. Cherarkey approached the Dispatch Box and consulted the Chairperson) The Majority Leader and your team, consult behind the Dispatch Box, so that we can make progress.

(Question, that New Clause 19A be read a Second Time proposed)

Mr. Chairman, Sir, could I be heard in silence? The Chairperson (

Sure.

Mr. Chairman, Sir, I beg to move: THAT the Bill be amended by inserting the following new clause – A miller may enter into a contract of cane supply with another miller if —

Mr. Chairman, Sir, the Deoxyribonucleic Acid (DNA) of this Bill, which I will keep referring to, is that we establish zones and define millers and growers within those zones. I think to argue against that essence is to argue against the Bill in its entirety.

New Clauses 19A and B are providing a window for exemption circumstances. Clause 19B talks of inter-miller agreements, but it assumes that those agreements can only exist within a zone.

Mr. Chairman, Sir, I believe that there will be a situation where you will have interzone, inter-miller agreements; millers in different zones. Therefore, I want to urge the Mover of this amendment, that in the same manner under Clause 19A, you provided for a procedure where a grower can send his cane outside the zone, let us also have a Clause 19B (2) that will address interzone miller agreements.

Services, Senate.If a miller in zone A, for whatever reason, finds it necessary to move cane or to have relationships with a miller in zone B, then there is a prescribed form for that kind of arrangement.The Chairperson (

Sen. M. Kajwang’, I want to rule that maybe at the rise of the House, you, the Chair of the Committee, the Mover, Sen. Wafula, the Senate Majority Leader and any other Senator interested in relooking at Clause 19A and B will have the opportunity to do that today.

Thank you, Mr. Chairman, Sir, because we cannot make it difficult for growers and make it easy for millers. The Chairperson (

I have heard the concern of the Senators. I think we have made some progress, the Senate Majority Leader. We have opened it up so that we will negotiate to discuss this Clause 19A and B.

Okay. The Chairperson (

Hon. Senators, after my ruling, I want to put the question. (Question of the New Clause 19B proposed) (New Clause 19B read the First Time) (Question, that New Clause 19B be read a Second Time, proposed) (Question, that New Clause 19B be part of the Bill, proposed) Division will be at the end. Proceed, Sen. Cherarkey. First Schedule

Mr. Chairman, Sir, I have seen there is an amendment to the New Schedule that has been introduced.

Madam Temporary Chairperson, I request that the First Schedule remain as is, for the purpose of election of the representative of the farmers as per Clause 6

(b)

, where the First Schedule has only been used to elect directors to Kenya Sugar Board.

My aspirations have been captured by the introduction of the New Schedule that will create sugar zones of the central region, that is, Kisumu, Southern Nandi and Kericho counties. On Upper Western, we have Bungoma, Kakamega, excluding Mumias areas, Trans Nzoia, Uasin Gishu and Northern Nandi counties.

Services, Senate.Madam Temporary Chairperson, the introduction of this New Schedule has captured my aspirations. In that spirit, I request that the First Schedule remains as is. I, therefore, withdraw that amendment because it has been captured in the New Schedule.I thank you. The Temporary Chairperson (

The proposed amendment is, therefore, withdrawn. That is in the First Schedule.

Yes, I withdraw the amendment to the First Schedule. It remains as is for the election of directors only. There is a New Schedule that has been introduced by Sen. Wafula. (Proposed amendment to the First Schedule by Sen. Cherarkey withdrawn) (Question, that the First Schedule be part of the Bill, proposed) The Temporary Chairperson (

Division will be at the end. Sen. M. Kajwang’, do you have a proposal on the Second Schedule?

Yes, I have a concern. The Temporary Chairperson (

Proceed.

Madam Temporary Chairperson, first of all, when this Bill came from the National Assembly, there was only one Schedule that was to form the basis for election and delivery of cane. The initial printout of the Order Paper that proposed the Second Schedule, Homa Bay County, which is a sugar-growing zone was excluded. I have just looked at the Supplementary Order Paper and I can see now that Homa Bay has been put in the southern catchment area. Madam Temporary Chairperson, it would also be important for the Mover of this amendment, on the inclusion of the Second Schedule, to explain to the House. If we are together for elections, it means that we have certain common and similar interests. Why then do you separate us--- The Temporary Chairperson (

Sen. M. Kajwang’, if I may render some assistance to the concern you are raising, it may be premature because it will be addressed by the Chairperson of the Committee when he is moving the New Schedule. If Homa Bay County had been left out previously, it will be addressed by the Chair in the New Schedule.

I thought you had read out the Second Schedule because that is the Second Schedule. The Temporary Chairperson (

It is in the New Schedule.

Okay. The Temporary Chairperson (

We will get there. Perhaps, you can comment if it does not meet the standard that you want. Therefore, I repeat the proposal of the question that the First Schedule, be part of the Bill.

Services, Senate.(Question, that the First Schedule be part of the Bill, proposed) Division will be at the end. New ScheduleThe Temporary Chairperson (

I call the Chairperson, Sen. Wamatinga to proceed.

I beg to move- THAT the Bill be amended by deleting the First Schedule and substituting therefor the following new Schedule —

FIRST SCHEDULE (S. 2, 6 (1) (b) and 29(b) DELINEATION OF SUGAR CATCHMENT AREAS SUGAR CATCHMENT AREA COUNTIES

Yes, Madam Temporary Chairperson, because it is differently composed than what we had proposed initially. The Temporary Chairperson (

Can the secretariat then circulate the New Schedule, so that Sen. M. Kajwang’ can see whether his concerns have been addressed in the New Schedule? You will get a copy just now and you can confirm that you are comfortable with the proposed New Schedule as amended. Sen. M. Kajwang’, you have the New Schedule and you can proceed if you have any concerns.

Madam Temporary Chairperson, this is usually a very important stage in law-making. I am a bit uncomfortable because before this amendment was done, Homa Bay County was missing.

If I had not been in this House or if someone was not going to point it out, perhaps Homa Bay would have missed out on the sugarcane zones and that would have been a great tragedy.

Services, Senate.Madam Temporary Chairperson, my concern is when this Bill came from the National Assembly, we had one Schedule, which was supposed to suffice for election and delivery of cane. I have not heard the strong justification from the Mover of the amendment, who proposes a New Second Schedule for sugarcane zones, because the problem is that it has disaggregated.For example, in the First Schedule, you will find that Kisumu, Migori, Homa Bay, Kisii and Narok counties are in the southern zone. In the Second Schedule, you will find that Kisumu has now moved to central region. Kisumu is now with Southern Nandi and Kericho counties.This could be mischief, but I do not want to impute improper motives. I would like the Mover of the Second Schedule, not just to leave it to be included in the amended form, but to justify and tell the House why the Second Schedule is significantly different from the First Schedule.This is because if you are going to use a unit for elections, then it follows that that electoral unit has similar interests and concerns. That is the unit you also use for development of cane. This can bring about certain confusion.I do not see the Member for Kisumu County, but I would have been interested to find out whether he is comfortable with that. That for election purposes, Kisumu is lumped up with Migori, Homa Bay and Kisii counties, but for cane development purposes is lumped up with Southern Nandi and Kericho counties.The Temporary Chairperson (

Chairperson, Standing Committee on Agriculture, Livestock and Fisheries, that concern is valid.

Thank you, Madam Temporary Chairperson, for the indulgence. When you look at the Bill, Clause 6B, the First Schedule is specifically used for elections of farmers' representatives from the five regions for purposes of elections to KSB.

He asked a very important question. I come from Nandi County. We do not have a miller or a sugar factory. I am only 18 kilometres from the many factories that are in Kisumu. The reason I want to work with Kakamega for cane development is because most of the factories are in Kakamega, for example, Naitiri, Kabras, and Butali. When you come to Nandi South, we have Kibos, Muhoroni, Miwani, Sony, among others.

That is why this Second Schedule is very critical because it is convenient for farmers of cane development. For example, Nandi does not have even one sugar milling factory, but Kisumu has more than seven. If you go to Nandi, Kericho and Uasin Gishu counties, it is only Kericho that has one sugar factory that might not be able to accommodate the capacity because it might only be crushing 1,200 metric tonnes. Chemelil-Chemase, which is only 18 kilometres from Kisumu, produces 1,800 metric tonnes. You have not added Sigowet-Soin, Kipkaren, Aldai, Mosop and Tinderet. So, the one factory will be overwhelmed.

Services, Senate.

The intention of this was for purposes of cane development and delivery only. However, when it comes to elections, we remain with the First Schedule to allow farmers to elect and also for regional balance.

On a point of information, Madam Temporary Chairperson.

Yes, you can inform me through the Temporary Chairperson. The Temporary Chairperson (

Sen. Cherarkey, business is not conducted like that. I am in charge. I am the one to request you whether you want to be informed.

Can I be informed by my super Chairman, Madam Temporary Chairperson? The Temporary Chairperson (

You can proceed. He has accepted

Thank you, Madam Temporary Chairperson. We work very well with Sen. Cherarkey, including and up to yesterday, when we were looking at the books of Nandi County. I just want to inform him about the saying, “what is good for the goose, is good for the gander.” So, if a unit is good for electoral purposes, why is it not good for cane development purposes? That, you want to redefine a different unit for election and a different unit for cane development. Do you fear that if you are lumped up with Kisumu for electoral purposes, then you will be whitewashed? However, you are only happy to be with Kisumu for cane development purposes. That needs to come out. The Temporary Chairperson (

Chairperson, you are the one to justify that, though maybe they are tapping into the big brains, which are in Kisumu for the cane development.

Thank you very much, Madam Temporary Chairperson.

Sen. (Dr.) Khalwale, is it in line with the arguments that are being proffered?

Yes, it is. The Temporary Chairperson (

Sen. Wamatinga, just hold a bit, so that we hear what Sen. (Dr.) Khalwale has.

Madam Temporary Chairperson, the issues being raised by the Senator for Homa Bay County are real and practical. Allow me to remind the House that the upper and lower western zones produces over 80 per cent of the sugar consumed in this country.

If we take the route suggested by the Senator for Nandi County, it is dangerous. Directors are elected to represent and protect the interests of their zone. So, once we admit the New Schedule, the issue of electing people from a different zone, and then they go to represent another zone, makes it operationally non-productive and helpful.

If you look at this practically, the purpose of this zoning is not to give communities zones. It is to give zones to areas that make geographical sense. For us who know where this place is, Kisumu, South Nandi and Kericho counties are in the same

Services, Senate. geographical area. The attempt by the Senator for Nandi County on the issue of election, is to represent community interests. We are not on community interests.For your information, Senate Majority Leader, one of the reasons we have failed in some areas is because of the factor of transporting cane. If you are taking cane too far, it becomes unproductive.I request that directors must be voted for in the zone that will have been adopted. Electing directors from outside, to go to a different zone, will have no useful purpose. It will create operational nightmare that is unhelpful.Since this is the only time I might speak on this, I congratulate the committee on the exemptions that they proposed. They are very important, because it admits the principle of free market economy. You cannot tie a farmer to somebody who is not helpful. That is very good.The only rider we should put there is that a miller from a different zone should not be allowed to erect a way-bridge in another zone. The moment they have a way-bridge in another zone, that is when poaching comes in.Thank you, Madam Temporary Chairperson. The Temporary Chairperson (

Proceed, Senate Majority Leader.

There is something that my good Whip is missing. The problem we have in Kericho, Nandi and Uasin Gishu counties is that we have abundance of cane, but no mills. If you were to lump them for purposes of zoning, they only have access to one small private mill. That will not be sufficient to provide milling services to those farmers.

That is why this request is coming in saying that in the delimitation of these regions, those that are in Upper Nandi or what is being referred to here as North Nandi and Uasin Gishu counties, have access to mills in Kakamega County because there are sufficient mills that side.

Those who are in the south of Nandi and Kericho have access to mills in Kisumu. If you do that, you will give the central region, for example, Kericho, access to seven mills; two private and five that are Government-owned.

Separate that for those that are in the north part of Uasin Gishu, it gives them access to about five private factories. Therefore, they will be satisfied. That is the whole logic behind it and why we are pleading with it.

Madam Temporary Chairperson, we are making good progress on this. Even on the other matter where we had a stalemate, Sen. Omogeni and Sen. (Dr.) Oburu were able to convince us. We were told earlier to consult and report progress, to shift the burden of approval from the farmer to the board, such that the farmer only has to give notification. That is reasonable.

The board should be notified by farmers that they will be supplying their cane outside their zone. This is because they do not owe any miller and that did not take any subsidy support from any of the millers. That is why they feel the need to supply elsewhere. It will be the work of the board to check whether what you are saying is true as opposed to a farmer going there. We felt that was a fair compromise, which we shall re-draft.

Services, Senate.I like the spirit that is prevailing. We request that it be the guiding spirit in consideration of this Bill. I support the schedules as proposed by the committee.The Temporary Chairperson (

In view of all those submissions, it appears as though the Chair’s work has been eased by Members in their arguments, by justifying operational zones vis-à-vis governance zones. That would mean that since you are comfortable with operational zones remaining as such and governance zones remaining for purposes of elections, we should proceed as we had agreed.

Madam Temporary Chairperson, I beg to move: THAT Clause 2 of the Bill be amended by inserting the following new definition immediately after the definition of “sugarcane manufactures apex body”. “Sugarcane zone” means a geographical area as set out in the Second Schedule where growers and millers are restricted to deliver and receive cane respectively. (Question of the amendment proposed) The Temporary Chairperson (

Division will be at the end. The Title and Clause 1 (Question, that the Title and Clause 1 be part of the Bill, proposed) Division will be at the end.

Madam Temporary Chairperson, we were formally in session when the Chair directed that there be a reconsideration of Clause 19. Given that we have reconsidered and consulted, and that the idea of notification as opposed to an approval seems to find favour amongst everyone in the

Services, Senate. room, could the Chair commit to have a redraft of that, so that tomorrow as we conclude on the same, that is the question that is put?The Temporary Chairperson (

Chairperson of the Committee, you have heard the request. Could you make an undertaking on whether you have been updated on the consensus position?

Madam Temporary Chairperson, I have been well guided on that. As a Committee, we accept that it is a good compromise. Yes, we can have it tomorrow as part of the proposed amendments. I thank you. The Temporary Chairperson (

Chairperson, you will get the redrafted Clause 19A and B. We are not ready to proceed from that point. Proceed, Sen. Wafula.

Madam Temporary Chairperson, pursuant to Standing Order No.153, I beg to move that the Committee of the Whole do report progress on its consideration of The Sugar Bill (National Assembly Bills No.34 of 2022) and seeks leave to sit again tomorrow. (Question proposed) (Question put and agreed to) The Temporary Chairperson (

Sen. M. Kajwang’, initially, we had deferred the reporting of progress by the Committee of the Whole on The County Boundaries Bill (Senate Bills No.6 of 2023) . I now invite you to move.

Madam Temporary Chairperson, pursuant to Standing Order No.153, I beg to move that the Committee of the Whole do report progress on its consideration of The County Boundaries Bill (Senate Bills No.6 of 2023) and seeks leave to sit again tomorrow.

Sen. M. Kajwang’ and the Senate Majority Leader, we now want progress reported on the County Boundaries Bill (Senate Bills No.6 of 2023) .

Chairperson, proceed.

Services, Senate.

Mr. Deputy Speaker, Sir, I beg to report that the Committee of the Whole has considered The County Boundaries Bill (Senate Bills No.6 of 2023) and seeks leave to sit again tomorrow.

The Mover, please, proceed.

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

Who is seconding?

I second.

Now, on the Sugar Bill, (National Assembly Bills No.34 of 2022) .

Chairperson, proceed.

Mr. Deputy Speaker, Sir, I beg to report that the Committee of the Whole has considered The Sugar Bill (National Assembly Bills No.34 of 2022) and seeks leave to sit again tomorrow.

Mover.

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

Who is seconding?

I second.

Next Order.

Services, Senate.

Services, Senate.

Sen. Thangw’a, you had a balance of nine minutes on this Motion. Retrace your balance of the minutes.

Thank you, Mr. Deputy Speaker, Sir. I rise to support the Motion that we, as a Senate, need to do something about the pending bills. It is high time we stamp our feet. Pursuant to Article 96 of the Constitution, we are supposed to protect the interest of the counties and their governments, which means we have to protect our people.

Our people, the citizens that we represent, contractors who woke up very early to vote for us have been working for the counties, but their counties are not paying their money. The only remedy is for them to go to court. When they go to court, they give the governors another opportunity to embezzle funds through the lawyers.

Madam Temporary Speaker, as a House, we need to ask ourselves, do we stop everything and just discuss these pending bills? However, before we stop everything, we again need to ask ourselves how these county governments accumulate these amounts of pending bills.

One, it is through over projecting their own source revenue thinking that they will collect more, but they collect less, yet they had committed that amount into contracts.

Kiambu has been mentioned in this Motion as one of the counties with huge amounts of pending bills amounting to Kshs5.7 billion. The Kshs5.7 billion is an accumulation of pending bills from the three governors who have been there, including the current.

As I speak now, I am not a prophet of doom, but I know that by the end of this financial year, June, 2024, Kiambu County will have more that Kshs10 billion as pending bills. Why? It is because the county over-projected that they were going to collect about Kshs8 billion, and yet, they have collected less than Kshs2 billion, so far.

Another reason we have pending bills is county governments not following their budget lines, votes or what the Members of County Assemblies (MCAs) have already passed in the budget making process. They do requisitions to the CoB and she releases the monies. However, once the money hits the county account, it is diverted.

You then ask yourself, why would a county have a huge pending bill, yet they have not even paid their employees? An example is my county. The casuals and subordinate employees who work at the hospitals have not been paid for the last six months. Sometimes you ask yourself, do we include this kind of salary delays as part of pending bills?

Remember, when the issue of accumulation of pending bills was done, I do not know whether it was by choice or omission, that they omitted the monies that counties owe to the pension schemes. These county governments deduct monies from the employees, but never remit these amounts to the pension schemes.

Services, Senate.

Madam Temporary Speaker, contractors and service providers are suffering all over. As I had earlier on said, the courts gave them authority to auction county government properties. We do not want to get there.

Madam Temporary Speaker, I would not want to see a governor driving to work, only to be stopped by auctioneers and his car is taken, so that it goes to pay the pending bills. I do not want to see a Chief Executive Committee Member (CECM) or a chief officer of a county, driving a county government vehicle, stopped on the road by auctioneers and that vehicle driven away.

Who is going to hurt more? It is the people that we represent. Imagine an ambulance that is government property, taking a patient somewhere and then auctioneers – you know they do not know boundaries – stop the ambulance and take it to pay for a pending bill, for someone who had gone to them to auction government property. We do not want to get there.

Madam Temporary Speaker, that is why the Senate is discussing this issue. As we discuss, we should form an ad hoc committee, or we can task the Committee on Finance and Budget to investigate further and make the Government commit itself on individual capacity or governors in their respective counties, so that we deal with this issue, once and for all.

Hon. Senators have always been in the dark when it comes to usage of monies in the counties. I propose that we, as Senators, should have access to even the Integrated Financial Management Information System (IFMIS) of our respective counties, not to pay or withdraw, but ‘read-only’ access. I will then be able to know what is happening in my county on a daily basis, by just logging in and looking at what the county is doing. Senators should also have ‘read-only’ access to the Internet Banking (IB) of our counties, so that we see what the governors are doing.

Sometimes we are rendered as morticians when we scrutinize the work done by previous governors in previous years and we are unable to scrutinize the current governors. We can only do so, on individual capacity.

We wait for the Auditor General to do audit reports. We look at them and scrutinize them. If she says that this was not addressed or resolved, that is when we look at it. However, if she says that this was resolved, we do not go on asking questions. That tells us that we only rely on the Office of the Auditor General (OAG).

Madam Temporary Speaker, I am happy to know that nothing stops this House. If we want the OAG to look at a specific issue, we can always write to them, through this House. They will ensure that they look at a particular issue within the period that the governors are sitting.

On the issue of pending bills and audit reports, the Senate should ask itself whether it should change the law or come up with a framework that will ensure that before governors leave office. By the time they are leaving office, they defend their audit reports. No governor should defend the audit report of a previous governor.

Madam Temporary Speaker, if we do that, we will do justice to the governors. I remember there was a law that was proposed here that those who are governors should not run for Senate or Member of Parliament (MP). I do not agree with that. We do not oversight as individuals, but as a collective House or the Senate.

Services, Senate.Instead of coming up with that law to bar governors from running for the seat of the Senator, MCA or MP, we should come up with a law that stipulates that before any governor leaves office, they should appear before the Senate and defend the previous audit reports.They should also have a handing-over report, and it should always be given to the Senate. This is so that the governor taking over will have a well-articulated, looked at, investigated and informed report. It is the high time this Senate---The Temporary Chairperson (

Sen. Eric Okongó Omogeni.

Thank you, Madam Temporary Speaker, for giving me the opportunity to contribute to this very important Bill. I do not think there is any county in the Republic of Kenya, the 47 of them, that is not grappling with this problem of pending bills.

When you look at the figures, they run into hundreds of millions of shillings. They are not pending bills of Kshs5 million; they run into hundreds of millions. The problem is - and here is where the Senators need to be very candid - we know the root cause of why we have the pending bills.

The first major problem is if a governor leaves office and a new governor takes over, they want to abandon all the projects that were done by the previous governor; and initiate new ones, ostensibly to solicit for bribes for the new projects. I am sorry to say this, but that is what is out there.

In the process, you will go to counties and find very important projects that are supposed to provide services to the people of that particular county, stalling for a long period of time. I can give you an example from my County of Nyamira.

Our first Governor, the late Nyagarama, had a fantastic idea. He put in place a project to put an 80-bed extension to the Amenity Ward in our County Referral Hospital in Nyamira. Unfortunately, he passed on in 2020 during the COVID-19 period. That project has remained incomplete up to-date.

Our county headquarters remain incomplete to-date. I have been in sessions where we have summoned the governor to Nairobi. I have sat with the Committee that is chaired by Sen. M. Kajwang,’ and he can bear me witness. That governor has given an undertaking. I know that maybe he does not go to church or believe what he says. He gave an undertaking that those projects will be completed. However, up to-date, they remain incomplete.

Madam Temporary Speaker, the Auditor General’s report says that the people of Nyamira do not get value for money. I was in the Committee of Sen. M. Kajwang’ when the governor promised that in six months, Manga Stadium would be ready and that Olympic trials could take place there. He was on oath. He is my senior and an elder in our community. He was born in 1960. I am much younger.

He says something before a Committee of the Senate on oath and nothing happens. If I take Sen. M. Kajwang’ to Manga, the people of Kitutu Constituency are still crying. This is because they look at the millions of shillings that have been pumped into that project - he saw the Auditor General’s report - and there is nothing.

Services, Senate.

Madam Temporary Speaker, in the process, you find that you have sent money to counties. We fight here when we are sharing revenue, but the moment that money reaches our counties, it is never used for its intended purposes.

The other day, we were talking about Kshs110 million that was given by the national Government during the COVID-19 period. Again, we started a project. If you read through the file, you will find correspondence from our county government informing us that they had started a project where they were going to build a 300-bed capacity as an emergency response to COVID-19 pandemic.

If you go behind our county referral hospital, the last time we visited, as a Committee chaired by Sen. Mandago, we found a project that was abandoned. It was abandoned as soon as the new governor took office after the death of the late Nyagarama. We had pumped in millions of shillings and then the project was abandoned.

We are the people's representatives; we must get a solution to this problem. Sen. Methu, you are a bright young man. We cannot allow it. Some of the money thrown into uncompleted projects is money gotten from donors. World Bank is giving us money that we send to counties to do nothing or you find that people are asking for bribes.

Like now, we have support to do roads in Keroka, our second largest town. The money available to us is Kshs204 million. People who want to do that projects are now falling over themselves, talking to various entrepreneurs. It has even moved up from 10 per cent. People are now told “give 20 per cent before we give you a tender,” yet this is money that your taxes and mine will be used to repay.

It is not free money. When we get that money, it must transform the quality of life that the people of Nyamira are living today for the better. The Ethics and Anti-Corruption Commission (EACC), where I served for five years, must wake up. If you talk to all the Senators, no governor fears the EACC anymore. They are receiving bribes left, centre and right.

Would you like to be informed?

Yes, Madam Temporary Speaker.

Sen. M. Kajwang’, you can inform him.

Thank you, Madam Temporary Speaker. I inform Sen. Omogeni, the pioneer and the architect of the anti-corruption laws and instruments and institutions, that the EACC has withdrawn their officers from Senate committee sittings.

For the last three weeks, the EACC officer who used to sit in the County Public Accounts Committee (CPAC) has been withdrawn without an explanation, the same thing for the County Public Investments Committee and Special Funds (CPICSF) . I inform Sen. Omogeni that something is wrong with that institution you so proudly established and was proudly part of the team that set it up.

We have set a meeting with the leadership of the EACC to explain why their officers have been withdrawn from the proceedings of the Senate.

Proceed, Senator.

Thank you. Sen. Kajwang’, the only thing I want to amend from what you have just informed me is do not invite them, you should summon them.

Services, Senate.

We should summon EACC to appear before us. We tell the country whether we are serious in the fight against corruption, or whether we have allowed the prophecy that was given by Prof. P.L.O. Lumumba to come to reality. If most of you can remember, the moment we created devolved units, he said, if we are not careful as a country, we will devolve corruption. Why for God's sake would EACC withdraw an officer from a watchdog body?

I was the chair when I served as a member of the advisory board. One of the sources of getting information on corruption activities was reports of the PAC of Parliament. I am sure if Bishop Oginde and the CEO took time to come to Parliament to sit before the committee that is chaired by Sen. Kajwang’, they will be shocked.

If they just sit through and listen to the queries raised by the Auditor General and the management responses from our county government, then look at the amount of money that this country is losing, they will have sleepless nights.

There are a lot of almost criminal and murderous activities that are taking place in our counties. I fully support this Motion and hope that when we resume tomorrow, we must agree that issues dealing with the pending bills is a cancer that we must diagnose and deal with once and for all, as Senators.

I support.

Sen. Methu, do you want to give yourself the Floor when the Chair is holding the House?

Madam Temporary Speaker, I heard you call me and I want to make the best out of the five minutes that I have before we adjourn.

As a Member who sits in CPAC, when we speak about pending bills, as I rise to support this particular Motion. We must first define what pending bills are. Pending bills is when somebody has taken his or her own money or a loan, gone to a county like Nairobi or the counties cited here, done a road, a hospital, delivered pipes and done a classroom with his own money and not paid their own money.

Madam Temporary Speaker, as we speak about these pending bills, my Chairman, Sen. Kajwang,’ will tell you that when we look at these pending bills, every report of the Auditor General has a line that makes most counties not to get an unqualified audit opinion. Every county has a line that is called ‘Account Payables,’ a line that has pending bills.

This is a matter that has been spoken about in this House many times. In 2014/2015, the then Auditor General, Dr. Edward Ouko, carried out an audit to show the pending bills that are there in the counties. To this moment, in all the 47 counties that we have, none would say that they have a clean bill of records.

I ask myself every time I sit in the CPAC, and my Chairman is there, he can confirm. When you have a pending bill that is sitting in your bills since 2013 or 2014, then you say that there is no documentation, you must either declare that a bad debt or say how you want to treat that pending bill. Tell us whether a road was done or not. I want you to conceptualise it this way: How long is a murram road expected to last? If you did a road in 2013 and you are being told that they are going to verify 14, 10 or 11 years later, where will they get that road?

Services, Senate.

Madam Temporary Speaker, every election cycle like in 2017, all the governors who got in had a pending bill verification committee. Every time we invite them, they tell us that they have a pending bill verification committee.

This election of 2022, in every county, including Nyandarua, my own county, there was a pending bill verification committee. In every session, we say that there is a pending bill verification committee. One side of the pending bills says that these are eligible bills. The other side says that these are the ineligible bills. If then you have accepted and said that these are eligible bills, why are you not paying them?

Madam Temporary Speaker, there is the second issue that we need to diagnose here. How and where are these pending bills borne from? One of the easiest routes of the birth of these pending bills is the fact that most of the counties overestimate their own source revenue.

A county that collected Kshs450 million in their budget this year is saying that they expect to collect Kshs990 million, which is more than double of what they collected in the year under review. Even if you use mathematics, science or witchcraft, there are no new systems that you have done. There is nothing new you have or new taxes that you have introduced.

How do you expect to double your own source? Ultimately, this one brings a hole in your budget. How do they meet this hole? Their procurement plan is informed by their budget. So, in the procurement plan of a county that has overstated their own source revenue, they procure with the strength that they intend to collect more in that year under review.

What happens when it is the end of the year? They collected less than what they had intended to collect. So, they have procured services, but nothing---

Sen. Methu, you will have a balance of 10 minutes when the next sitting resumes.

Hon. Senators, it is now 6.30