Wednesday, 25th May 2022

Sergeant-At-Arms, ring the Quorum Bell.

Very well. We now have Quorum. Let us commence business.

Majority Whip.

Hon. Speaker, I beg to lay the following Papers on the Table of the House:

Sessional Paper No. 01 of 2022 on National Automotive policy; Report of the Auditor-General and Financial Statements in respect of the State Officers and Public Officers Motor Car Loan Scheme Fund Statements for the year ended 30th June, 2021 and the certificate therein;

Report of the Auditor-General and Financial Statements on Uwezo Fund Oversight Board for the year ended 30th June 2021 and the certificates therein;

Report of the Auditor-General and Financial Statement on Women Enterprise Fund Oversight Board for the year ended 30th June 2021 and the certificates therein;

Report of the Auditor-General on the Annual Report of the Kirinyaga University Financial Statement for the year ended 30th June 2019/2020 and the certificates therein;

Report of the Auditor-General and Financial Statements on National Government Constituencies Development Fund for Embakasi North Constituency for the year ended 30th June 2020 and the certificates therein.

Report of the Auditor-General and Financial Statements on National Government Constituencies Development Fund for Embakasi North Constituency for the year ended 30th June 2019 and the certificates therein.

Very well. Hon. Members, I take the opportunity to introduce the following group who are in the Public Gallery:

One Campaign Champions, headquartered in Washington and Community Advocacy Group from Kenya and Ethiopia Branches.

Next Order.

The first segment is Questions. The first Question is by the Member for Pokot County.

Question No. 124/2022

This is a Question, there is no debate. You only deal with what is here.

Thank you Hon. Speaker.

The Question will be replied to before the Departmental Committee on Administration and National Security.

The next Question is by the Member for Marsabit County, Hon. Safia Sheikh Adan. Question No. 125/2022

Hon. Speaker, I rise to ask the Cabinet Secretary for Interior and Coordination of National Government the following Question:

The Question will similarly be replied to before the Departmental Committee on Administration and National Security.

The last Question is by the Member for Kuresoi South, Hon. Tonui.

Question No. 126/2022

Hon. Speaker I rise to ask the Cabinet Secretary for Transport and Infrastructure, Housing and Urban Development the following Question:

The Question will be replied to before the Departmental Committee on Transport, Public Works and Housing.

The next segment of Order No.7 is Statements and there is a response to a Request for Statement by Hon. Aden Duale from the Departmental Committee on Justice and Legal Affairs.

Hon. Kigano.

Hon. Speaker, I present a response to a Request for a Statement by Hon. Aden Duale regarding appointment of the Chairperson of the Committee on the Assumption to the Office of the President.

Hon. Speaker, On 11th May 2022, the Hon. Member sought a Statement, pursuant to Article 44, regarding the appointment of the Chairperson of the Committee on the Assumption to the Office of the President. The request was subsequently committed to my Committee for consideration and response. In particular, the Member sought to be informed of the steps taken to ensure that the leadership of the Committee is put in place in time. Having considered the request, I wish to respond as follows.

First, the response is through a letter by the Head of Civil Service, Mr. Kinyua, which is now a document before this House. It is noted that the thrust of the request is to seek a comprehensive response to the issue of the Chairperson of the Committee on the Assumption to the Office of the President. In this regard, we set out the background to the matter as follows:

Article 141 of the Constitution of Kenya provides for the Assumption of Office by the President-elect. Article 141 (1) provides that the swearing-in of the President-elect shall be in public before the Chief Justice or, in his absence, the Deputy Chief Justice. The President-elect assumes office by taking and subscribing to the Oath of Affirmation of Allegiance and the Oath of Affirmation for the execution of the functions of Office as prescribed in the Third Schedule to the Constitution of Kenya.

Under Article 141 (2) , the President-elect shall be sworn-in on the first Tuesday following -

(vi) the Principal Secretary in the ministry responsible for matters relating to foreign affairs; (vii) the Principal Secretary in the ministry responsible for matters relating to information and communication; (viii) the Principal Secretary in the ministry responsible for matters relating to constitutional affairs; (ix) the Principal Secretary in the ministry responsible for matters relating to the Cabinet Office;

(xi) the Principal Secretary in the ministry responsible for matters relating to culture and social services; (xii) the Chief of the Kenya Defence Forces; (xiii) the Director-General of the National Intelligence Service; (xiv) the Inspector-General of the National Police Service; (xv) the person in charge of the administration of the affairs of State House; (xvi) the Clerk of the National Assembly; (xvii) the Chief Registrar of the Judiciary; (xviii) three persons nominated by the President-elect. This is very crucial and I shall allude to it again; (xix) the Clerk of the Senate; and, (xx) the Secretary to the Intergovernmental Relations Secretariat. Section 5 (2) of the above Act additionally indicates that the Committee shall be an ad hoc Committee. That Section stipulates that the Chairperson of the Committee shall convene the first meeting of the Committee.

In view of the foregoing, it is my Committee’s considered opinion that since the Committee is ad hoc and also features three persons nominated by the President-elect, the first meeting by the Committee may be convened only after the general election and once there is a President-elect. Therefore, it is ad hoc. The Act is buttressed by the fact that the functions of the Committee, as outlined under Section 6 of the Act, focus on the progression of the President-elect to assuming the nation’s apex State office. According to that Section, the Committee shall:

We also note that Committee’s Chairperson is the Secretary to the Cabinet and it is that person who convenes the inaugural meeting of the Committee. However, at present, there is no substantive holder of that Office of the Secretary to the Cabinet. There is no substantive appointment under any law. Therefore, the Head of Public Service has been serving as the acting Secretary to the Cabinet.

How?

Please, do not ask. Let me answer you. Do not keep interrupting me.

Hon. Speaker, please protect me from the ranking Member. He appears to know everything. Why do you ask then?

In that capacity, the Head of Public Service has been discharging functions set out under Article 154 of the Constitution since September 2013 to date. I am underpinning that phrase “since September 2013”. In that regard and in recognition of the imperative constitutional authority vested in the Office of the Secretary to the Cabinet as set out under Article 154 of the Constitution …

For the sake of the ranking Member, Section 43 of the Interpretation and General Provisions Act provides that a written law confers a power or imposes a duty on the holder of an office as such, then unless a contrary intention appears, the power may be exercised and the duty shall be performed by the person for the time being holding that office.

In the circumstances and in keeping with the precedent set in 2017 following the 2017 general elections and the subsequent repeat of the presidential election, the person currently performing the functions and duties of the Office of the Secretary to the Cabinet dutifully and in fidelity to our Constitution and other laws of the Republic serves as the Chairman of the Committee.

Hon Speaker, additionally, my Committee took time to add on what Mr. Kinyua has done. The assumption of the Office of the President may only be convened after the general elections and declaration of results. This is because Section 5 (r) of the Assumption of Office of the President Act provides that three persons nominated by the President-elect should be part of that Committee. Further, the Head of Civil Service stated that he has been discharging the functions of the Secretary to the Cabinet from September 2013 to date as there is no substantive holder of that office. This is premised on Article 259 (3) (a) and (b) of the Constitution, which provides as follows:

“ (3) Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking and, therefore, among other things—

The purpose here is to get a smooth transition for the President-elect. If there is no swearing-in due to lack of a secretary or chairperson substantively appointed, would that really be good governance? It will create an unnecessary constitutional crisis. So, we are behooved under the Constitution to ensure we interpret every clause to contribute to good governance. The position taken by the Head of Civil Service and the Government is proper, lawful and is buttressed by the premise of two constitutional principles and doctrines.

Firstly, there is a doctrine called acquiescence and the very person who transited the Government in 2017 without any qualms since 2013 is now five years down the line being questioned. The ranking Member has been sitting on his rights for five years and occasion now arises. I am just putting this…

(Hon. Aden Duale spoke off-record)

Let him finish.

Without any qualms, acquiescence works like the bands of marriage in Christianity. You were asked to raise a query and since 2017 you have not. I am not saying this is right.

Secondly, what is not specifically forbidden in law is allowed. The Constitution does not specifically outlaw the principal of law that what is not prohibited is allowed. Finally, if the House deems it fit to do so, we amend the Assumption of Office of the President Act to provide for a specific person to act.

Thank you, very much, Hon Speaker.

The Request for Statement was made by the Hon. Duale.

Thank you, Hon. Speaker. It is a very sad moment because the Chair of the Departmental Committee on Justice and Legal Affairs, a lawyer of many years’ of experience, went through a lot of pain to answer my Statement. I really understand him because of what he went through in the nominations.

Hon Speaker, I really want you to help us as the Leader of the Legislature. I am sure you were in the 9th Parliament when Ministers brought fake answers and the Speaker told them to take them back. I want him to listen to me because two wrongs do not make a right. One, I asked why there is the absence of the position of Secretary to the Cabinet as provided for in Article 154 of the Constitution. This country needs a Secretary to the Cabinet who takes minutes and his functions are well documented.

Hon. Speaker if you allow me, the functions of the Secretary to the Cabinet, among other things, are:

“(1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of Government.

Constitution.” Hon. Speaker, when the new Constitution was enacted, this House, as obligated by the same Constitution, legislate an Act of Parliament called “The Assumption of Office to President.” The Assumption of the Office of President is a very critical organ and that is why the law was passed by this House in 2012. The objective, spirit and the purpose of the said Act was to ensure that after all processes of the election, including going to court, the moment we have a President- elect, a Committee called “Assumption of Office of the President Committee” as created by law shall be convened.

Hon. Speaker, the Chairman read the Membership, and I have no problem with it. It includes the two Clerks of the Parliament of Kenya, a number of Principal Secretaries, the Chief of the Defence Forces, the Inspector-General of Police and the Director-General of the National Intelligence Service.

I will interrupt you, Hon. Duale.

Order, Members! I am sure that the Member for Kitutu Chache North wants to rest a bit.

The other Member who has his back facing me, the Member for Ugenya… Hon. Members, I have interrupted Hon. Duale because there is a Supplementary Order Paper. I do not know whether all of you are in possession of the Supplementary Order Paper? This has been necessitated by the need to be able to put the Question on the Consideration of the Budget Estimates for the Financial Year 2022/2023, whose general debate happened this morning and was concluded. What remained was for the Question to be put, which will then unlock the other processes of supply.

So, I interrupted Hon. Duale to just interpose briefly between Order No.7, which is the second segment, and Order No.8 so that we can clear this one.

Please, call it out.

respect of the Votes contained in the First Schedule to the Order Paper, subject to Paragraph

to the Order Paper; and,

of the said Budget Estimates with respect to each Vote and Programme in the Committee of Supply as contemplated under Standing Order No.240, which is Consideration of Estimates in the Committee of Supply.

Member for Keiyo South. I know the Members who like going through the rear door. Please, let us have a few minutes.

That paves the way for us to proceed with the Committee of Supply at the appropriate time, when debate of the Finance Bill is concluded, if it is done so today. Debate on the Finance Bill will commence in the morning. If you conclude it, you can then move on to the Committee of Supply.

At the tail-end of the 12th Parliament, I believe nobody will be asking whether we are supplying water or oxygen. You should know what it is. Look at Standing Order No.240.

Let us go back to Hon. Duale, whom we interrupted. You are to seek clarification on the issues raised by the Chair of the Departmental Committee on Justice and Legal Affairs.

Hon. Speaker, you will help me because an experienced lawyer has raised some issues. I want you to listen to me, Hon. Speaker. Article 2 of the Constitution states that:

“ (1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of Government.” My problem is Article 154. Please, help me, Hon. Speaker because I have a problem. I want you to listen to me. Every time there is a serious issue in this House, people like running to me with “You are the Leader of the Majority Party.” I was not the Head of the Executive. I was not a member of the Cabinet but I was the Member for Garissa Township.

Article 154…

Just leave them. These are the normal noise makers.

Hon. Members! Hon. Duale! Let us listen to each other then you can respond. I am sure you will eloquently be able to prosecute that part.

Absolutely! Article 154 of the Constitution says that there is an established Office of the Secretary to the Cabinet which is in the Public Service. Article 154 does not say “Head of Public Service.” It does not say “The President’s Private Secretary.” It does not say the Minister for Interior and Coordination of Government. It says “Secretary to the Cabinet.” This House passed the Assumption of the Office of President Act,

cannot appoint any person to be the Speaker of the National Assembly. This letter that has been tabled before this House, places the discharge of a constitutional duty within the reading of Article 154 and the Assumption of the Office of the President Act, Sections 5 and 6, to a person appointed by the President. If we follow the example set by the President because he is the one who has violated with impunity the rule of law, there is no need then to have cabinet secretaries in this country! It is because the President can appoint county commissioners to act as cabinet secretaries for the Ministry of Interior and Coordination of National Government, or the Ministry of Finance and National Planning. The President cannot decide to appoint every Tom, Dick and Harry to a constitutional office like that of the Secretary to the Cabinet.

Hon. Speaker, I want you to guide this House. This answer violates the oath of office that we have taken. I have worked with the President. I want to tell him that this is illegal. Send a name of the Secretary to the Cabinet to this House so that we can approve it before we go on recess. It takes minutes. He will then become the Chair of the Assumption of the Office of President Committee. Kenyans are stakeholders in the transition. These issues have not been canvassed. It is illegal and it is not a question of whether it was done in 2013 or 2014. The Head of Public Service cannot replace the provisions of Article 154 of the Constitution that establishes the Secretary to the Cabinet.

Hon. Speaker, who is supposed to appoint the Secretary to the Cabinet? How come for the last nine years, Hon. Duale did not remember that person is supposed to be appointed? Maybe, even the person who took over from him has also forgotten to ask for that nomination!

Very well. Hon. Angwenyi is seeking clarification and it is good. I may not be of assistance in the issue of memory loss, if at all it is true. As to the first question you asked, who is supposed to appoint the Secretary to the Cabinet?

Article 154 (2) (a) provides that the Secretary to the Cabinet shall be nominated by the President and with the approval of the National Assembly, appointed by the President. Since September, when this House rejected the nomination of Dr. Monicah Juma as indicated in the document which has been tabled by Hon. Muturi Kigano, there has not been a Secretary to the Cabinet. Therefore, if anybody has been writing letters purporting to be such an officer who has not been approved by this House, then that communication is null and void. In fact, this position does not even lend itself to the interpretation under Section 43 of the Interpretation and General Provisions Act because that deals with other written laws and not what is in the Constitution. The Constitution is superior to Cap.2. So, indeed, it is not possible that another person can assume, walk into some meeting and claim to act as the Secretary to the Cabinet. He must have passed through presidential nomination, approval by this House and, finally appointed by the President.

You can discuss about the memory loss with Hon. Duale as I may not be able to address that. You know, Hon. Angwenyi asked whether Hon. Duale has forgotten for the last nine years. That one Hon. Duale can answer. Hon. Jimmy Angwenyi purported to indicate that Hon. Kimunya may also have inherited memory loss. Hon. Kimunya disagrees. He says he has not forgotten. Hon. Wangwe.

Thank you very much, Hon. Speaker. I wish to walk in your footsteps of giving guidance. I wish to find out from Hon. Duale the following: He

comes out to say that he has not been of help to the President and, at the same time, he is saying that the President has been his friend and he has been advising him. Therefore, my take…

My take is in line with Article108 which is the only Article that establishes the office of the Leader of the Majority Party. Having been nominated through the same party, Hon. Duale...

Let me finish, Hon. Duale. The Article allowed him to be the Leader of the Majority Party in the House. Therefore, is he in order to deviate and say he cannot associate himself with this issue of the President not nominating the Secretary to the Cabinet for the last nine years? Is he in order to run away from his responsibilities, especially when he was in office?

Hon. Speaker: I think we are going to lose this matter. You should be seeking clarification from Hon. Muturi Kigano. It is easier for him to clarify for instance, whether Section 43 of the Interpretation and General Provisions Act supersedes Article 2 as read together with Article 154 (2) (a) of the Constitution. Hon. Members, let us not do other business which is not here in the House. This is a very serious matter.

On a point of order, Hon. Speaker.

What is your point of order, Hon. Duale?

Hon. Speaker, being a friend to the President does not qualify me to carry his constitutional role of appointing a Secretary to the Cabinet. Hon. Wangwe, you are a man I respect a lot. Do not become a pedestrian. The House is discussing a serious breach of the Constitution. This can be a ground for impeachment of a president. I am Aden Duale. I was the Leader of the Majority Party and I was not sworn-in at Kasarani. I was sworn-in in this House as the Member for Garissa Township.

Well, I can see the Leader of the Majority Party. Please, have you suddenly forgotten the provisions of Article 108 of the Constitution? He has precedence over all of you. So, when he indicates that he wants to speak, I have to give him that priority.

Thank you, Hon. Speaker. I have listened very carefully. We are looking at Article 154 of the Constitution and, as the Chair of the Departmental Committee on Justice and Legal Affairs respond, he should consider taking this into account. There was a substantive Secretary to the Cabinet who was appointed in 2013. That was Francis Kimemia. Article 154 of the Constitution basically says that there is established the office of Secretary to the Cabinet who shall be nominated and, with the approval of the National Assembly, be appointed by the President and may be dismissed. It also describes what the functions of the Secretary to the Cabinet are. It also states:

“ (4) The Secretary to the Cabinet may resign from office by giving notice, in writing, to the President.” Article 154 of the Constitution is totally silent on the filling of a vacancy created by resignation of a Secretary to the Cabinet. I want the Chair of the Departmental Committee on Justice and Legal Affairs to guide us on this. When you have a Secretary appointed then he resigns,

the only choice the appointing authority has is to designate somebody to act until a nomination is done. This is because there is no provision in the Constitution about what happens after he resigns. I want the Chair to consider this and guide this House even as we look at the Constitution as a living document for purposes of seeing where we are going.

Today, assuming we have a Secretary to the Cabinet according to Article 154 (2)(a) and he resigns on 10th June after this House has taken the sine die recess, there will be no Parliament to approve a new nominee! So, we need to look at such circumstances which can happen. In that kind of a situation, how would we resolve that constitutional situation for purposes of the assumption of office…

Let us listen to the Leader of the Majority Party.

So, there are so many situations that may not have been anticipated in this Constitution but can occur. We can have a person properly appointed as the Secretary to the Cabinet who has started doing the duties of the Chairman of the Assumption of the Office of President Committee. Then, he resigns just before the election or when there is no Parliament to approve a new nominee. In that case, who would conduct the functions of the Chairman if not a person in an acting capacity? So, there is nothing wrong with having an acting person until this House completes its role of approving a nominee, or until the President nominates a candidate. So, whoever is there must continue acting. This is what was anticipated in the Interpretation and General Provisions Act, which I believe states that if the occupant of that office is not there, the person acting shall hold the full powers.

Hon. Speaker, we have elected one Speaker and one Deputy Speaker. When you or the Deputy Speaker are not in the Chair, the First Chairperson of the Speaker's Panel takes the Chair. The House is able to conduct its business in totality. This is without having to say they were not elected by Members the same way the Speaker and the Deputy Speaker are provided for in the Constitution.

As we are talking, I want the Chair of the Departmental Committee on Justice and Legal Affairs to look at all these things and guide us. As far as we are concerned, we could be causing unnecessary panic not just in Kenyan, but even on a global basis. Right now, everyone is worried if Kenya is going to hold credible elections. Are we going to have tension? It does not help that we are working in a situation where there is global turmoil. All currencies are crushing against the dollar. We are going to be affected as well. Investors are moving their monies to where they feel there is safety.

He is digressing.

I am not digressing. Any utterances or statements we make on the Floor of this House, we are not talking to ourselves but to the world and downgrading the preparedness of Kenya to hold a credible election on 9th August.

Obviously, every Member is at liberty, but I urge we do not cast any doubts about our preparedness to hold a peaceful and credible general election and assumption of the office. That whoever is elected will assume office exactly the same way as His Excellency Uhuru Muigai Kenyatta who was elected together with his Deputy His Excellency William Samoei Ruto did. This pair took office in 2013 through a Committee chaired by the acting Secretary to the Cabinet. Nobody has ever challenged their election. Now, not unless you are saying that the pair has been in office illegally and, in which case, all of us may have been in office illegally! Let us not split

hairs because we could open a Pandora’s Box that we will be unable to close. I ask that we restrain ourselves and not to take it for granted that we only have three weeks to go. It is impractical to go through a vetting process and public participation to get somebody appointed. It does not matter whether it is me or Hon. Duale. Even if either of us is nominated today, chances are that we will not be able to engage in public participation and the House will not be able to process that report and do everything else because of time.

At what point does serving in an acting capacity become illegal? Their role would only end when a substantive person is nominated. Until that nomination is approved, whoever is appointed to serve in an acting capacity continues to do so until the nominating body nominates another person. That is my position and I believe that the person acting as Secretary to the Cabinet is rightfully in office in accordance with the law.

Sorry, Hon. Members. Let me just guide you on how to proceed. Do not bother raising your hands up. I will give an opportunity to each of you, but let me follow the way the requests have been made because some of you have just walked in. I will follow the requests made as per the screen. Hon. Ochieng’, you know very well that I normally follow the list. Please, let me just follow the names on the screen. The next Member to contribute is the Member for Yatta.

Thank you, Hon. Speaker. I want to give the way forward. Only yesterday, or last week, you gave a ruling that because of the time remaining before the House adjourns for election, business by the leaders of the Majority and Minority parties will take priority. As valid as the issue raised by Hon. Duale is, the way forward for him is to move a Motion and let the House debate it. Even when Hon. Duale has a good idea, because of his past, this House never takes him seriously. That is the reality. I wish Hon. Duale would have given that matter to someone else to raise, say, one on his political side. That way, the matter would have been addressed in a non-partisan manner. Unfortunately, when we remember Hon. Duale’s past, whatever serious business he brings here, it will never be addressed.

Hon. Members, I know what the problem is. Hon. Kilonzo, I thought you once had a good way of choosing. When you talk about somebody’s past, you insinuate…

Hon. Speaker, Hon. Charles Kilonzo has said that because of my past, my business will never be addressed. His father has a past. I want him to define my past. His father has a history. I have not killed a Kenyan and there are no allegations. What can he say about my past? Do not talk about my past, you idiot!

This is an opportunity to seek clarifications because I will still give a chance to the Chairperson of the Departmental Committee on Justice and Legal Affairs to respond.

Hon. Pukose, proceed.

Thank you, Hon. Speaker. I wish to seek clarification from the Chairperson of the Departmental Committee on Justice and Legal Affairs, considering that Article 154 of the Constitution provides that there shall be a Secretary to the Cabinet. The Cabinet has been holding meetings and the person who is supposed to take minutes is the Secretary to the Cabinet. We will soon have a Committee on the Assumption of the Office of the President which is supposed to be chaired by the Secretary to the Cabinet, according to the Assumption of the Office of the President Act, 2012. Should there be somebody else serving in that position? This is because the Head of the Public Service has been serving in an acting position, which is contrary to the Constitution. Should there be anybody else acting in that capacity? Can this be a basis for a petition in a disputed presidential election? How fair can this be, considering that even the current cabinet secretaries have not been neutral in as far as politics is concerned?

We have seen cabinet secretaries taking sides and even campaigning for individuals. How trustworthy is the Committee that will be formed? How do we know that it will be neutral and stick to the Constitution of Kenya?

Let us have Hon. Nyikal.

Thank you, Hon. Speaker. I am not a lawyer but the point being discussed is extremely important for this country. We should try as much as possible to put aside any political advantages or disadvantages. What Hon. Duale has raised is extremely important because of what he is anticipating. He said that we will have an election and there will be need for this Committee on Assumption of the Office of the President. That is extremely important.

The Chairperson raised issues that you, Hon. Speaker, have raised as well. First, he mentioned that what is not prohibited is allowed and he quoted some law of interpretation. He again raised another issue that if a person acting in a certain capacity is allowed to do so, he then has responsibility over functions in that capacity. It appears to me that those are the areas that legal minds should look at to see if they can drive us forward and find a meaningful solution to the situation we have at hand. All of us – not just one side – should look at what needs to be done to resolve this. Remember, if we have a stalemate after or during the elections, it is not only one party that suffers, but the whole country. At this point, it is not known who will win. This issue is actually a problem for everybody. Taking sides politically is not wise.

One thing we have learnt is that when you are in a position to do something, if what you want to do is wrong, do not wait and think that at that time, perhaps, you are in good books with those in power. Do not wait for time to pass because it weakens your moral strength to do the right thing. I am being very straightforward. It is not possible that it is only in the last few days that Hon. Duale realised that this position was vacant. He was in an extremely important position to raise this matter in the most practical way to the most important people. He did not and I do not blame him for that. I am just saying that it is a lesson for us all. He has raised an important point. Your guidance is probably the way we should go forward to find a solution.

Let us remove any form of emotions. Article 2 of the Constitution is on the supremacy of the Constitution. Article 2 (2) reads as follows:

“No person may claim or exercise State authority except as authorised under this Constitution.” I do not know what other debate we are trying to… The supremacy of the Constitution means we may not claim to exercise any state authority except as authorised. Obviously, the lawyers are very familiar with the expression, expressio unius est exclusio alterius which means the express mention of one thing totally excludes all others. Hon. Ochieng, is that not so?

The Constitution, in Article 2 says it is supreme and any other law that may be inconsistence with it is null and void to the extent of that inconsistency. So, do we still have a lot of cobwebs? I will follow this request but seek clarifications from the Chairman of the Departmental Committee on Justice and Legal Affairs. Just remain civil. I like the way Hon. Dr. Nyikal has prosecuted his point of view. Hon Rasso.

Thank you, very much, Hon Speaker. I also want to add my voice to this feedback from the Chairman of the Departmental Committee on Justice and Legal Affairs. As you have said, the Constitution is the supreme law of the land and no other law that is not consistent with it can be enacted or enforced.

As legislators, we are not here to apologise for the Executive. I think in this instance, the Executive has slept on its job. So, we are trying to buttress and give reasons why it has failed. I

think we are not here for this reason. Like you have rightly said, we have to be sober. From my experience, in August 1982, there was an attempted coup and we were able to secure the borders, including the airport. Members of Parliament and Ministers were among the people who were trying to run away with their suitcases, money and families.

So, to guard against this, any Member can stand in his place in this House to raise a matter of concern to the people under Article 95 of the Constitution. There is absolutely nothing wrong. What Hon Duale is telling this House is that he is seeing a lacuna. The President in office is leaving and anybody could be elected. What arrangements are in place for succession of that leadership? I think he is not asking for too much.

Today, the two front-runners, His Excellency William Ruto and His Excellency Raila Odinga should be getting some briefs. This is because any of them can be the President of Kenya come August. But this is not happening yet, we know who the front-runner is. I do not have to say it. Hon. Speaker, for this reason, under Standing Order 1, if something is not going right... I think it is high time you sat with the leadership of the House to see to it that there will be no crisis in Kenya, come August.

Article 154 of the Constitution clearly talks about the Secretary to the Cabinet. After reading it, I realise this is an institution. There is a book available out there called: ‘Why Nations fail’. One of the reasons why nations fail, including ours, is failure to respect institutions and ensure they work for the betterment of the people of Kenyan. What we want to hear from the Departmental Committee on Justice and Legal Affairs is not assurance, but in black and white…

Hon Members, please, put your phones on silent mode. I am sure you can enjoy the rest the moment you step out. Very well. Hon. Rasso you are concluding. Do so quickly because we need to go to business.

Hon. Speaker, I am concluding. So, the feedback we want from the Chairman of the Departmental Committee on Justice and Legal Affairs is: What arrangements are in place for the succession? The USA is a first world democracy and a country we all copy, but they were about to have a crisis because Trump refused to hand over. So, the Constitution must protect the people of Kenya. Thank you, Hon. Speaker.

Hon Ochieng’.

Thank you, so much, Hon. Speaker. I am seeking clarification as I add my voice to this because the issue on the Floor is not one-sided, but of great concern.

In 2014, you were on the Chair you are seated on today. I am not afraid to say that I raised this issue of appointment of the Secretary to the Cabinet. The then Leader of Majority Party told me it was not an urgent matter. In fact, I even got calls from very high quarters on why I was asking issues which were not very important at that point in time. This is not something I am making up. You can check the Hansard. I raised a Question on this Floor on why the President had not appointed the Secretary to the Cabinet.

When was that?

In 2014 and of course, we know who the Leader of the Majority Party was at that time. Today, the issue is not who is right or wrong. The issue raised by the person seeking the Statement is: Are we following the law? This is because two wrongs do not make a right. I want to say without any fear of doubt that the President, in this instance, has blatantly failed to follow the law. This is the truth. So, we have to debate because he failed to follow the law.

What we are now dealing with is whether arrangements are there to ensure the assumption of office by the incoming President goes on as contemplated under Article 141 of the Constitution. I think this is what we are looking into. We cannot possibly hope that the President will appoint a new Secretary to the Cabinet tomorrow or in the next three weeks. So, the issue that the Chairman of the Committee should…

Member for Kiharu.

Thank you very much, Hon Speaker. I want to seek clarification from the Chairman of the Departmental Committee on Justice and Legal Affairs where the Constitution or any written law gives the Head of Public Service the role to act as the Secretary to the Cabinet, in case this office is not filled.

I heard an argument from him that in law, what is not prohibited expressly is permitted. I am seeking clarifications from him because he is the Member of Parliament from Kangema. Does this mean his roles can be taken over by National Government Constituency Development Fund (NG-CDF) Chairman, in case he is not there to undertake them because this is not expressly prohibited by the law?

Also, there is the argument by Hon. Kimunya, the Leader of Majority Party, that Mr Francis Kimemia was appointed to be the Secretary of the Cabinet. If you are talking about acting, then the person who should be acting is him and not the current person who is purporting to act.

Hon. Speaker, we need to take this matter seriously, especially when we have a President who is totally sided and conflicted and has a “project” for this year’s election. Also, some very serious officers, for example, the Principal for Interior and Coordination, are totally out there campaigning for the President’s “project” who is supposed to have appointed the Secretary to the Cabinet!

Lastly, the ….

Member for Emurua Dikirr.

Thank you, Hon. Speaker. I also want to get these clarifications:

Member for Nyando.

Thank you very much, Hon. Speaker. I remember the Chief Justice Emeritus, Mr. Mutunga, did say that our Constitution should be progressive. He said this when he was addressing the issue of gender. He said that we should be having an incremental view in each and every electoral cycle that one day we shall get there. I think it cuts across all the constitutional requirements.

We are looking at Article 152 of the Constitution of Kenya on the composition of Cabinet, which is the President, the Deputy President, the Attorney-General, and 14 to 22 cabinet secretaries.

Article 154 of the Constitution of Kenya specifically talks about the Secretary to the Cabinet, the roles and functions of that office and sub-Article (4) talks about the vacancy in that office.

However, Article 152 talks about the President’s power to re-assign responsibilities to the Cabinet. We may have had a vacancy in this Office, but I do not think anything stops the President from re-assigning anybody to serve within that Office. All of us here, are in agreement that the roles of that Office have continued to be exercised to this very day. I do not think there is a lacuna in terms of discharge of responsibilities in that Office.

Finally, I think there was a proposal here sometimes back of Dr. Monica Juma. She was brought to this House for vetting, but was rejected by the same House that is now claiming that this Office has been vacant for way too long.

Member for Kikuyu

Thank you, Hon. Speaker. Allow me to just reiterate what Hon. Nyikal has said. That as much as we want to point fingers at each other, at the end of the day, we should look at what is in the best interest of our country.

Hon. Speaker, I only wish that Hon. Nyikal would, in a way, advise the current Leader of the Majority Party, and the Chair of the Departmental Committee on Justice and Legal Affairs (JLAC) to advise the President that what is provided for in Articles 2 and 154 of the Constitution is so clear, that the Interpretation and General Provisions Act, Section 43 that was quoted in the letter that the Chair of (JLAC) has read... Allow me to read: “That where a written law confers a power or imposes a duty on the holder of an office as such, then unless, another contrary intention appears, the power may be exercised, and the duty shall be performed by the person for the time being holding that office.” The clarification we seek to get for the time being is: Who is holding the Office of the Secretary to the Cabinet? In reality, nobody is holding that office. Unless, there was a deputy to that secretary who would then be exercising that power, we would therefore, use Section 43 of the Interpretation and General Provisions Act. Otherwise, the point is that the provisions of Article 2 of the Constitution of Kenya states that no person may claim or exercise State authority except as authorised under this Constitution. Provisions of Article 154 are quite clear that the powers of that Committee can only be exercised by the Secretary to the Cabinet.

Member for Suba North.

Thank you, Hon. Speaker. I want to take a totally different approach. This is not the first time this matter has come before this House. For us to be serious as a House, we need to make a decision and move forward. Some of these issues are very factual. Whether the holder of the Office is there or not, is a factual issue. The issues in the Constitution are also factual. It, therefore, does not matter whether we speak for

or against because they are either legal or factual issues. We can talk until the cows come home but they would still be factual and legal issues. What I would want to request you, Hon. Speaker, as the person who guides this House, is you give direction and we move on with life. We have already spent an hour debating this matter. Yesterday, we also spent about two hours or so. This issue comes here every day. It is like we cannot make a decision on a very simple matter such as this one. As far as I am concerned, I want to be very simplistic. I do not want to speak as a lawyer, but from where I sit, I do not care whether we have a sweeper to the Cabinet. I do not care whether he or she is a cleaner of the toilet; or a Secretary to the Cabinet. Let us deal with it and move to the Budget. Every Member here is serious with concerns of their constituencies that would be sorted when we deal with the Budget and the Finance Bill.

Hon. Speaker, I request that you direct us so that we get into serious business. Thank you.

Let us just hear from the First Chair of the Speaker’s Panel, Hon. Soipan.

Thank you, Hon. Speaker for giving me a chance to add my voice to this issue. The provisions of Article 154 of the Constitution of Kenya are very clear. Of curious concern is the kind of defensiveness that some quarters are adopting to the issue. It is a very clear constitutional issue. In fact, if someone had forgotten about the specific provision, let me state that it is not a trivial matter. It addresses the very crucial Committee on Assumption of the Office of the President. The Leader of Majority Party should have adopted this as an aha moment because he is being pointed to a very glaring lacuna that we are faced with as we go into the 2022 General Election in a few days. We should not be seeing defensiveness; do not make it look like there is a sinister motive to the fact that there is a vacancy in the office of the Secretary to the Cabinet. This is an issue we cannot dodge. It is a crucial issue that we should face. Unless there is a sinister motive to it, the President should move in a lightning speed to prosecute the matter and have a Secretary to the Cabinet.

Hon. Muturi Kigano

Thank you, Hon. Speaker. I wish to thank the Members for their contributions, even if they were of divergent views. I still encourage them. When we differ in law or in certain opinions, we all score 100 per cent. Whether your argument was wrong or mild, so long as you develop some argument and do it in good faith, you still score 100 per cent.

Hon. Speaker, as much as Article 2 is couched in imperative terms, Article 259 is equally imperative. It has a caption construing this Constitution. That is the Article that permits the Head of the Civil Service to act in absence of a substantive holder of that Office.

The two Articles are not in conflict; one is talking about the supremacy and the other one is talking about construing even that supremacy. When you come to construction and interpretation of Article 2, you go to Article 259. So, they are not mutually exclusive. I reiterate that the Head of the Civil Service is the acting Secretary and, therefore, the holder of the Office of Chairman of the Assumption of Office.

Let me say that Section 43 of the Interpretation Act or Cap.2 is not conflicting with the Constitution because when I cite it, I do so in reference to the Assumption of Office Act. The chairman is not a direct creation of the Constitution. He is created by an Act of Parliament, the Assumption of Office Act.

In interpreting that Act, you resort to Section 43. That is how Section 43 comes to my assistance in saying that it is buttressing that the acting person has authority to do what the substantive office holder would have done. With a lot of respect, the examples given by Hon.

Ng’eno and Hon. Nyoro are fancy and fallacious in a way. I said what is permitted by law is what is permitted by law. What is not prohibited by law is allowed. For one to act as a Director of Public Prosecutions (DPP), you must comply with the Act that appoints the DPP. If you want to become a Member of Parliament, you must go under the Elections Act. So, there is a law that prohibits any person not to act.

Where the law wants to prohibit a member not to act, it says so in its own terms. Take for example the swearing in of the President elect. It clearly states that the Chief Justice or in his absence, his deputy. It does not bring in any other person. It says if he is not here, so and so acts. You cannot take it as an example or a parallel of the other. In the case of the Secretary and other officers in the Cabinet, it does not specifically say who shall act. It leaves it open and, therefore, the Head of the Civil Service has authority to act.

In the same way, you cannot sleep on your rights. You cannot approve and disapprove. The fact that there has been no substantive holder or occupier of the Office of Secretary since 2013, which is 10 years, what is the urgency that has promoted this? It is simple. Maybe they are panicking that their man may not become the President.

Please just address...

Hon. Speaker, these hecklers are demonstrating how they will run the Government by heckling. Tell these Members speaking that their president is not in power. They can heckle when their President comes in power. For now, there is a civilised Government and a civilised Speaker. So, please, wait until you have your corrupt Speaker and your corrupt deputy president, and then you can talk.

I have not asked Hon. Ichung’wa or anybody else assist me. Assist your party. I have not complained. That is why I do not want to be nominated because I am old. You young people should be nominated.

Hon. Members, I think Hon. Muturi Kigano has finished.

Hon. Speaker, in the circumstance of these hecklers, I do not think they want to listen or reason or hear of any reasons. There is nothing that I can usefully add to what is on this Statement. What I stated is on the Hansard and the letter in reply to the Statement from the acting Secretary to the Cabinet. Well, I am old, I do not want to be nominated.

Okay, we put that matter to rest. In any event, it was a request for a Statement, which has been issued. Hon. Muturi Kigano has discharged his obligation under our Standing Orders. You do not have to agree with him, but he has discharged his obligation. We move on.

Let us have the Chairman of the Departmental Committee on Defence and Foreign Relations, Hon. Tong’i.

Hon. Speaker, I beg to move the following Special Motion:

THAT, pursuant to Article 132 (2) (e) of the Constitution, Section 20 (2) of the Foreign Service Act, No. 12 of 2021, and Sections 3 and 8 of the Public Appointments (Parliamentary Approval) Act, 2011, the Committee recommends that this House approves the appointment of the following persons as Ambassadors, High Commissioners and Permanent Representatives:

or before Friday, 13th May 2022, by 5.00 p.m. By close of business on Friday, 13th May 2022, at

of a memorandum as it is stipulated in our Acts and laws. Therefore, we dismissed them on that basis. However, it is important to mention that most of them were based on hearsay. They were not even stamped or commissioned. Therefore, as a Committee, we decided not to use them because they did not amount to how they should appear as per the laws of Kenya.

The Committee sat down and looked at the merits and demerits of the memorandum relating to Major-General Andrew Ikenye and many others. We all agreed that they did not meet the threshold and, therefore, we did not consider that in the final decision to approve the nominees. The Committee deliberated on the memorandum and observed that it was not a statement made under oath as stipulated in Section 6(9) of the Public Appointments (Parliamentary Approval) Act No.33 of 2021. Matters raised in the memorandum are still active in court. Evidence presented before the Committee indicated that the issues raised by Abdi Dala were still under determination before the Court of Appeal. We all know that the laws of Kenya state that you are innocent until proven guilty. We all agreed that we should not punish someone on the basis of a case in court, especially based on the facts that we had at hand as we were making the decision. The memorandum was, therefore, rendered inadmissible before the Committee.

We received many emails in regards to my friend, Bitange Ndemo, and a few others. We all agreed not to go down that route. Major-General Andrew Ikenye and the rest also provided responses which vindicated them so as not to be denied the opportunity to serve Kenyans.

We all listened to the second memorandum relating to Michael Sialai. The Committee deliberated on the memorandum and observed that it was not a statement made on oath as stipulated in Section 6(9) of the Public Appointments (Parliamentary Approval) Act, No. 33 of

Hon. Speaker, the Committee vetted 21 nominees. One withdrew from the appointment. On the advice of the Ministry of Foreign Affairs, we made the following general observations: they are Kenyan citizens who do not hold dual citizenship pursuant to Section 6(10) of the Public Appointments (Parliamentary Approval) Act, 2011.

The Ministry of Foreign Affairs did not find the Clerk of the National Assembly for the withdrawal process of Dr. Caroline Wanjiru Karugu, nominee for the position of the Ambassador

of the Republic of Kenya to Denmark. All the nominees presented their academic credentials and professional certificates. They demonstrated their experience in accordance with the provisions of Section 6(7) of the Public Appointments (Parliamentary Approval) Act, No.33 of 2011. None of the nominees has been charged in a court of law or mentioned adversely in parliamentary committee reports or commission of inquiry in the last three years. A few of those who had issues were cleared by the court. Therefore, we did not see a reason to hold them on that front.

All the nominees satisfied the requirements of Articles 7 and 11 of the Constitution. They do not intend to participate in any other gainful employment. All the nominees do not hold office in any registered political party. Hence, they satisfied the provisions of Article 77(2) of the Constitution. In regard to Prof. Bitange Ndemo’s culpability or otherwise in the sale of land of Mariri Ranch Limited, miscellaneous Civil Application No.192 of 2016 had declared the initiation, maintenance and prosecution of the nominee in the Chief Magistrate’s Court and Corruption Court through Criminal Case No.19 of 2014. This was an abuse of criminal justice system. It contravened his constitutional rights, freedom of security and the right to secure the protection of the law. The court further ruled that the case mentioned amounted to selective or discriminatory prosecution and gross abuse of the process of court. It was oppressive and malicious. Therefore, the court issued orders prohibiting the continuation of the Chief Magistrate Court at Milimani vide Criminal Case No.19 of 2015 in the matter intended against the nominee.

None of the nominees has been dismissed from office for contravention of the provision of Article 75 (1) of the Constitution on conflict of interest and Article 76 of the Constitution on financial probity or restriction of State officers. Article 78(2) of the Constitution talks about dual citizenship of a State officer. We all know the serious cases that we had last time. We did not experience any this time round. By the deadline of receipt of the memorandum from the members of the public, the Clerk of the National Assembly had received two memoranda contesting the suitability of Maj. Gen. Andrew Ikenye and Mr. Michael Sialai, respectively. They were rendered inadmissible before the Committee since they did not comply with the requirements of Section 6(a)(9) of the Public Appointments (Parliamentary Approval) Act which provides that evidence contesting the suitability of a nominee to hold office which he or she has been nominated should be by written statement on oath or affidavit.

Hon. Speaker, as I wind up, in the book, Diplomacy and International Law, Ambassador (Dr.) Wilfred writes that: “Traditional diplomacy is practised as art and craft of communicating and interchanging amongst States, acting through their representatives or diplomats in the national interest, be it in political, economic, scientific, social or rather by peaceful means.”

The author points out some of the main features of change which impact on diplomacy as they are known globally. New participants in globalised relations must be given an opportunity and techniques. Internationalisation of domestic politics or policies are also taken into account to ensure that the people will do what they are meant to do to represent the country.

I wish to express my tremendous gratitude to the Members of the Committee for their input and valuable contribution. It is important at this point to mention that I am privileged to serve under very eminent Members of the Committee who have a lot of experience. They have been in the Committee for many years. They have served in Parliament for very many years. As the Chairman, their experience has really helped me a lot. It guides me in being a better person and areas that we need a contribution to make Kenya a better place. There was input and valuable contribution during the deliberations and vetting exercise. They sat for long hours. They woke up early in order to vet the 21 nominees. Vetting that number of people with Curriculum Vitae which are almost 22 pages on average per person is a record. We combed all of them and made sure that

we captured all the information that we needed which was not a mean achievement. I truly remove my hat for the Committee Members for the sacrifices they made therein. I remember there were times when the session would start as early as 6.00 in the morning. Members broke that record. I must mention Hon. Charles Kilonzo who whipped us. He used to arrive in the office at 5.00 in the morning. He used to call and tell us that he needed quorum. That was really humbling. We appreciate that sacrifice.

On behalf of the Committee, I also take this opportunity to thank the office of the Speaker which supported us tremendously. You have always been a gentleman and wonderful person who is willing and ready to mentor young people like us in terms of responsibility and helping us to achieve our full potential. We truly appreciate the support that you gave us through your officers and your guidance. We also thank the Clerk of the National Assembly for the logistical support which was accorded to us during the exercise. As a Committee, we also appreciate the role which was played by the media following its coverage of the proceedings. They ensured that Kenyans know the people who are being given the opportunity to go and represent Kenya out there in the world. They also made sure that we got value and the right people by ensuring that we hold them to account for the responsibility they have been given. They will not do it for themselves, but represent Kenya. They will ensure that the face of Kenya is enhanced and accountability for whatever responsibility they are given is increased. Transparency and participation of the public will also take precedence.

Hon. Speaker, if this House approves the appointment of the ambassadors, high commissioners and permanent representatives, I urge them to go and serve our great country. It is a high honour the country has given them. Let them represent our country with industry and integrity, manage our missions diligently, and long after they come back, we will reflect and say they did their best and did something great for our country.

I hereby ask my good friend and brother, Hon. Kilonzo Charles, to second.

Kilonzo Charles.

Thank you, Hon. Speaker. That was very elaborate, and so, I will be very brief. Hon. Speaker, I second.

In summary, most of these nominees were career civil servants, others were retired major generals, very well experienced, who had a very good career in the military. Others are lawyers from the private sector. In fact, we came across two ladies very qualified senior lawyers even qualified to be judges. Most of these people are very well schooled. The bottom line is that the entire team is very experienced.

Other than a few cases we got complaints from the public, which did not meet the standards of the House, when we looked at the emails bearing the complaints, we were not convinced there were good reasons to disqualify the nominees.

We had only one case, and it is good to mention it because out there people have been complaining about the shareholders of Malili Ranch where we have the Konza City. When Bitange Ndemo appeared before us, although it is something which took place in 2013/2014, we asked him what exactly happened because he had been charged along with other directors of Malili Ranch. He gave us a very good explanation. He went to court and the court cleared him because in the first place, he should not have been charged. What happened in Malili Ranch was very simple. Directors of the company and other outsiders stole from shareholders. The Government paid Kshs200,000 per acre, and the National Treasury paid the company. The money did not come through the ministry where Bitange Ndemo was the Permanent Secretary. It was paid directly by the National Treasury to the company. The director convinced the shareholders, but did not reveal

the actual price the Government had paid, only for the shareholders to realise later when they were being paid Kshs100,000 per acre instead of Kshs200,000. They realized the right price and the fact that they had been conned. Thereafter, among the people who were taken to court was Bitange Ndemo. He had his day in court and was cleared. Because he was cleared and even after we went through the court ruling, it was clear that it was abuse of the court process. We found him suitable. This is a career lecturer who has done quite a lot in the education sector. We could not go by rumours, and in any case, he had been cleared by the court.

In summary, the Committee was convinced that all the 21 nominees deserve to be approved by the House. We are convinced that they have the interest of this country in their hearts and they will portray the right image of this country. For example, our nominee to Somalia, a retired Major- General, Thomas Chepkuto, is already the head of mission in Somalia, and gave us a very interesting scenario and we realised that with a man like him, Kenyans can start seeing the other side of Somalia. The perception we have is that if you land in Somalia and you are a Kenyan, it is only a matter of time before you are blown into pieces. But he told us that when he will serve as the ambassador, he will invest a lot in encouraging the Kenya Chamber of Commerce and the private sector to tour the country and promote commerce. It is very interesting that Somalia exports more to us than we export to it. That is ridiculous.

In a nutshell, I appeal to the House to approve these names. I second, Hon. Speaker.

Member for Dagoretti South.

Thank you very much, Hon. Speaker. I was very much anticipating to contribute to the Finance Bill. But given this opportunity, I will spare the House sometime by just making two very brief comments.

The names that have been presented here by the Committee are agreeable with myself especially taking note of the process the Committee went through, a very painstaking process to prepare this Report for us. I would like to commend all the appointees and wish them well as they go to their new stations. I single out our National Assembly Clerk, Mr. Sialai, who we have all had a front row seat to witness his ability to perform whenever he is assigned such an opportunity. I congratulate him profusely together with all the other appointees.

Today would have been a celebration for the people of Dagoretti South Constituency because the first time the names were put out, we saw the name of the former Member of Parliament, Hon. Dennis Waweru. We were excited that Dagoretti South, a constituency that has not seen appointments of principal secretaries or high-ranking officials since the era of Dr. Gitu over a decade back, is getting recognition in national appointments. However, I gathered that Hon. Dennis Waweru declined to take the opportunity to be the Consular General in the Democratic of Congo. I imagined that, maybe, he had imagined it is a small capital he would not want to report to. But we would have been excited as the people of Dagoretti South Constituency having one of our own serving in a market that is opening up, especially at a time like this when the Democratic Republic of Congo is being co-opted into the East African Community. We know the opportunities out there, not only for business and enterprise, but also in furthering the Pan-African agenda. While we heartily congratulate the others, we are a bit crestfallen when we realise that one of our own has opted out of these appointments by His Excellency the President. We wish them well.

Thank you very much, Hon. Speaker. I hope I will get my position and ranking in the Finance Bill that I was willing to contribute to.

Hon. Wangwe.

Thank you, Hon. Speaker. I also thank the Chair of the Departmental Committee on Defence and Foreign Relations for the good work done. I support the appointment of these ambassadors and representatives.

In line with what Hon. K.J. has said, I wish to single out one or two of these persons whom I know personally. In addition to Mr. Sialai, who has served us well, I have known him since I joined Parliament in 2013, and he is a very hardworking and loyal officer. He is a man who will represent Kenya very well. We are proud of him. There is also one gentleman that I know, Mr. Leonard Boiyo, a very good civil servant. I wish to confirm that Mr. Boiyo was my neighbour since 2007, and we lived together. We know each other. We have grown our families together. It is a pleasure that a person you know very well, a career civil servant who has served the country in various capacities, is being recognised after long service.

Among others whose CVs can speak for themselves, somebody cannot retire as a Major General and you doubt his career. He is seasoned and proven in terms of career build up. I commend and congratulate them and ask that this House approves the names as fast as possible, so that they can represent us wherever they will go. I support.

Member for Suba North.

Thank you, Hon. Speaker. I just want to add my voice in supporting and to thank the Committee for this good work. I will not spend much time. I just want to say that I have also seen quite a number of people that I know. They are people I have worked with. There are some I suspect I know, but I may not know if they are the ones because of the way their names are presented. Some appear like lawyers that I know.

I know the Committee heard issues about Prof. Bitange Ndemo. I can tell you we worked with him very closely on the issue of child online protection and that is something that is very dear to my heart. I know Muthoni Gichohi, who has done a lot of good work in the past. Our very own Clerk, Mr. Michael Sialai, who has done an excellent job here in Parliament. Margaret Shava, who has also done a lot of good work in the human rights sector and women’s rights sector. Amina Abdalla, if it is the same one who was with us here in Parliament, was an excellent legislator. I do not know if the same Amb. Nyambura Kamau is the same as Jean. I am not sure if she is the one. She could be the one who was my boss at FIDA. I am not too sure because she was an ambassador.

I am hearing “yes” and “no”. I know two Nyambura Kamaus. If she is the one, she also is an excellent person. I may not mention all of them, but I know quite a number of people here. They are very excellent. I do not know if Mr. Paul Ndung’u is the same one who is a senior advocate, who has had a very good career and done good work.

Because the Committee has not raised any issue that is outstanding or of concern even for those that we may not have specific issues on, I really thank the Committee and also indicate that I am happy with the number of women that were appointed. I was actually trying to work out the numbers. Unfortunately, there are some I cannot tell whether they are men or women. I failed miserably in determining the percentage. At least, I have counted quite a number of women and I hope you have followed the one-third gender rule. Otherwise, we hope they will represent Kenya well. I support. Thank you.

Member for Taveta.

Asante sana, Mhe. Spika, kwa kunipatia fursa hii nami pia kupongeza Kamati ya Ulinzi na Mahusiano ya Kigeni inayosimamia masuala ya nje. Haswa napongeza mabalozi waliopatiwa nafasi ya kwenda kufanya kazi kwenye ubalozi katika nchi mbalimbali.

Kati yetu sisi sote, wengi wetu tunamfahamu Mhe. Amina Abdalla kwa kazi nzuri ambayo amefanya akiwa hapa, maana amekuwa Mbunge awamu tatu na akiwa Mwenyekiti wa Kamati ya Mazingira na Mali Asili. Alifanya kazi nzuri sana. Vile vile, sasa hivi kwenye tume ya kuangalia mishahara ya wafanyikazi wa umma, anaendelea kufanya kazi nzuri. Kama tunavyojua, yeye ni mmoja wa makamishna tuliotuma kule waende kushughulikia masuala ya mishahara ya wafanyikazi wa umma.

Nyambura Kamau ambaye alikuwa ni balozi tayari, kwa sababu alikuwa amewekwa kwenye afisi ya Los Angeles, alifanya kazi nzuri. Haswa nakumbuka wakati tulikuwa na shida ya wale watoto ambao walikuwa wamefurushwa makwao na wakachomeka, balozi Nyambura Kamau alifanya kazi nzuri kwa kuwatafutia hospitali ambayo walienda kupatiwa matibabu. Alisaidia jamii zao kupata sehemu za kukaa upande wa California.

Tunamfahamu Bw. Bitange Ndemo akiwa Katibu wa Kudumu katika wizara na kazi nzuri aliyoifanya. Pia mimi nilikuwa Waziri wakati alipewa kazi na tulifanya kazi kwa ukaribu sana. Vile vile, tunamfahamu Margaret Shava kwa kazi zake alizofanya. Tunajua amefanya kazi zote ambazo alipatiwa kwa Serikali kwa bidii sana. Muthoni, ambaye ni wakili, amefanya kazi nzuri. Tumefanya kazi na yeye kwenye shughuli mbalimbali, haswa zangu za kibinafsi, na ninajua kuwa atafanya kazi.

Nachukua fursa hii kupongeza hao wengine wote kwa kuwa wamepata nafasi ya kwenda kupeperusha bendera ya nchi ya Kenya kwenye nchi mbalimbali. Wafanye kazi kwa bidii. Kwa hivyo, nawatakia kila la heri katika kazi zao. Asante sana.

Finally, the Member for Gatanga.

Thank you very much, Hon. Speaker, for giving me a chance to also make my contribution.

First, I would like to really congratulate the Committee for a thorough job. In terms of qualifications and experience of the nominees, most of them are known to me. If I point out, Prof. Bitange Ndemo is a close friend of mine. We go to the gym together at the Parklands Sports Club. I know he is highly qualified to do the job he has been proposed for. Muthoni Gichohi is also well known to me. She is a Director of the Thika Greens, which is in Gatanga, which is a major investment. Muthoni Gichohi is also known to do a lot of community work. She has served the people of Murang’a in various capacities. We are happy. I know she will do the job as proposed.

Amb. Gathoga Chege is a personal friend and he has served in the diplomatic community for a long time. He is highly qualified and I am sure that he will be able to do the job well.

On Amb. Nyambura Kamau, I wanted to correct the impression that she is Jean Kamau. Amb. Nyambura is from Gatanga. She has served in Los Angeles and France. She is a well-known lawyer in Nairobi. She has practised for many years. She is highly qualified. She has served us very well. I mentioned that Prof Bitange Ndemo is known to me. We gym with him at Parklands Sports Club. We start gym at 3 a.m. to about 10 a.m. Because we are aging and we are involved in many things, Hon. Speaker, I would like to invite you to spare some time and come run with us. You are aging gracefully, but I encourage you to join us. Do not run away from anything. Just come we gym together. Sometimes we socialise together and you know what we take. When you are not taking what we take, please join me.

Amb. Nyambura Kamau is well-known to me. She is from Gatanga and we are very happy as the great people of Gatanga. We are known for music. All great musicians from central Kenya come from Gatanga. I had proposed that we give you a discount, if you ran for President. I talked to the musicians and they all agreed to give you 50 per cent discount to produce for you music. Maybe your time is coming. I encourage you.

I am very happy on the nomination of our great Clerk, Mr. Michael Sialai. In the past, I served as a civil servant. The service offered in this Parliament is great in terms of the performance of employees and the respect they have for us. I would like to congratulate Mr. Michael Sialai on this nomination. I would encourage other public officers in the Judiciary and Ministries to come and benchmark in Parliament so that they can serve Kenyans better.

Hon. Speaker, with those few remarks, I support the report. I wish all the nominees well in their future endeavours.

Thank you very much.

There being no other contributor, I call upon the mover to reply.

Thank you, Hon. Speaker. There are some things we need to put on record because they involve a public figure. It is only fair that we put the record straight. Hon. Dennis Waweru was not on the list. It might hurt him so badly if his constituents imagine that he was given an opportunity to represent Kenya in some country but he declined. The truth is that he was not on the list. To the best of my knowledge, he was not given an opportunity.

I thank the President, Hon. Uhuru Muigai Kenyatta, for the honour he bestowed upon me at my age to serve as a Chairman of a Committee in Parliament for the first time. Notwithstanding the experience I have, the gesture is beyond my mind and understanding. I truly thank him.

On behalf of the people of Nyaribari Chache, my family and myself, I am truly humbled for this opportunity. The experience I am getting will make me a better leader in the days to come. Not to mention the support I have received from the Leader of the Majority Party, who stepped in for me when I needed him most. He made a commitment to support me. He has been guiding me on how to manage the nomination process. On behalf of the Committee, we are happy with the Leader of the Majority Party, Hon. Amos Kimunya. Thank you for the leadership and support you gave us.

To my Committee members, thank you for standing up for everybody and in conducting the vetting to ensure that we get quality people to represent Kenyans in the world. You did your best. You sacrificed your time. This is a campaign period. For you to stop your campaigns and come here for seven days, it was an honour that I do not take for granted. Not to mention the support you have given me, considering that some of you are more experienced than I am. You support me and make me a better leader.

Hon. Speaker, with those many words, I support.

No, you do not support. It is your Motion.

I move, Hon. Speaker.

You beg to reply.

I beg to reply. There is still more guidance I get from you, sir.

Very well.

Thank you.

Hon. Members, for some obvious reasons I will not put the question on this Motion today.

According to the records, Hon. Millie Odhiambo was on the Floor and she has a balance of three minutes.

Thank you, Hon. Speaker. Indeed, that is true and I thank you for the opportunity. When we adjourned, I had indicated that I support the Committee’s move to reduce taxes especially on basic commodities like food. I support the proposed increase of tax on tobacco products. One of the areas I would like the Committee to explain further is the issue of betting. We said we need balanced agenda. Revenue must be collected in order for us to finance the Budget even though we are facing different challenges. If I heard the Chairlady of the Committee correctly, she indicated that the National Treasury suggested a 7.5 per cent increment in the past, but moved it to 20 per cent this time. The Committee is of the view that the rate remains at 7.5 per cent. I am wondering why we cannot increase it a little bit to, say 10 per cent or 15 per cent. I want to notify the Chairlady that I will present a good explanation, I will move an amendment to increase the rate.

On the issue of taxes on beer, the Committee indicated that they were not very encouraged by the increase. But if we do not levy taxes, how are we going to raise revenue? We will definitely have a shortfall. This is one of the areas we need to reconsider and increase the taxes.

One of the areas that I found curious is the proposed increase of taxes on beauty products. There is a gendered notion about beauty products. Whenever people hear about beauty products, they think it has to do with women alone. Of course, a lot of women use beauty products much more than men. But if you go to salons today, our modern men are the ones doing manicure, pedicure and facials and that is the truth. So, even when we are talking about beauty products, even the men are also culprits and so let us not make it basically a gender issue. I also heard Hon. Gladys

alluding to the fact that they had a challenge from the men in the Committee who were saying that they prefer their women natural and so they do not want beauty products.

Hon. Temporary Deputy Speaker, if you were to insist on our men to come to our House natural, then they would be coming here naked because the suits they wear are, of course, not natural. What the women choose to add on whether it is powder, lipstick or whatever else they want to put on really should not be their concern.

However, I also want to indicate that sometimes I have even given it as a test on my Facebook account. I have put it on my Facebook account and I said: “Which one would you like?” The man said: “I would like this one because she is natural,” and that person is not natural. They have at least a foundation, powder or something. It is very difficult to find a woman who does not have one of those very basic things. Even Vaseline is also a beauty product.

First of all, I want to disabuse the notion that beauty products are about women. However, even if women use them much more than the men, we should not be punished for looking nice and for preserving our bodies or skins. We know, if you go out here and you do not have vaseline on your face, you will have come with cracks on your face especially now that we are having campaigns. That aside, I do not oppose the increase on those products because we have to balance between necessities and those which we do not consider as necessities. I would rather have a cracked skin, but with food in my stomach. So, if you are coming between beauty products and food, then I agree with the Committee on the beauty products that they could be taxed. I also agree with the Committee that statutory instruments must be brought before the House upon expiry of the stipulated time. Otherwise, we will be ceding our oversight roles since we represent the interest of public.

I also agree with the Committee on their opposition to the provision on the requirement to pay 50 per cent of a disputed amount in any dispute between KRA and an individual, including corporate individual personalities. This is because if we do not do this, we know that sometimes this process can be abused. If I do not like you and I work in the government, I just use KRA, especially at an election time and I slap you with a KRA tax of Kshs100 million. You must deposit Kshs50 million and you know how much it is for campaign. If we are going with the rule of law, then we cannot presume that you have actually defaulted when you have not. You will not be presumed guilty until your matter is dealt with. So, I do support the Committee in doing away with that.

I also note that we are promoting local products, but we must also seek to have value addition so that we are competitive. Supporting local products should not be an end in itself, but we must also know whether it is not through this but through other means. Relevant ministries that must make sure that even for our local products, there is value addition. This is so that even when we are exempting them from tax, their products do not then get stuck on the shelves as people find shortcuts to look for other products out of the country.

Hon. Temporary Deputy Speaker, I will finalise by reiterating that I do very strongly support the Committee on reducing taxes on food commodities. However, I know when I was speaking, Hon. Gladys was consulting with Hon. Ichung’wah. I think Hon. Ichung’wah is missing his days as the Chair of the Budget and Appropriations Committee. I only indicated that I hope the Committee can explain why there is a proposal not to agree with the National Treasury on tax on betting. This is because we must have a balance even if we are living in difficult times. Otherwise, we will propose an amendment to increase it.

With those few remarks, I support it. Thank you. The Temporary Deputy Speaker (Hon. Ms.) Soipan Tuya): Hon. Ichung’wah.

Thank you, Hon. Temporary Deputy Speaker. Let me just begin by telling Hon. Millie that, of course I do consult with Hon. Nyasuna, but I have nothing to miss of those days that you allude to. I am very keen on issues that touch on the lives of Kenyans. That is why I support many of the recommendations that have been given by the Departmental Committee on Finance and National Planning led by Hon. Nyasuna Wanga, especially on food items. I was just telling Hon. Wanga that it is only fair that we spare time when we come to Third Reading. I would really encourage her to write to the Speaker on the particular provisions on food items like maize flour, wheat flour and all the consumer items that were touched on to actually withdraw those particular clauses from this Bill, so that we do not even need to consider them in Committee of the whole House.

The other issue that I was consulting with Hon. Wanga on and which is very dear to me is on the cost of fuel. You do remember that the Departmental Committee on Finance and National Planning had a proposed Bill on taxes and levies on fuel that we discussed as a Motion in this House last year. At the time, there was a crisis on fuel prices and we had a Bill that is pending that has just somehow disappeared. Maybe Hon. Nyasuna should tell us where that proposed Bill that came with that Motion disappeared to. However, I was only encouraging her that we do expect that at the time of Third Reading, the provisions that were there on those taxes and levies on fuel prices will now be incorporated into this Finance Bill…

The Temporary Deputy Speaker

Soipan Tuya): Hon. Wanga, you are on a point of intervention.

Thank you, Hon. Temporary Deputy Speaker. I just wanted to inform Hon. Ichung’wah that the Departmental Committee on Finance and National Planning actually did conclude on its work. We carried out public participation. We brought a Bill to this House. We carried out public participation again on the Bill. We prepared a Report and tabled it to this House and our job and responsibility ends at that point. The rest is carried by the House Business Committee. That should not be brought to my doorstep. Thank you.

The Temporary Deputy Speaker

Soipan Tuya): Hon. Ichung’wah, proceed.

Thank you, Hon. Temporary Deputy Speaker. I do take that point of information from Hon. Wanga. She knows I know that. She also knows that I know who is sitting on it. Therefore, because the leader of government business in this House is the Leader of the Majority Party, they know why they are sitting on that Bill and that Report of the Departmental Committee on Finance and National Planning. I would really implore on Hon. Wanga to push Hon. Kimunya to allow the Bill.

Let me just go straight to the point. We may not have time to even consider that particular Bill now and all the tax provisions and levies that we had discussed. I encourage Hon. Wanga, if really she intends to bring down the cost of living for Kenyans, to now incorporate all the provisions that were there in that particular Bill into this Finance Bill, 2022. If we really want to deal with the cost of living in this country, we must deal with the cost of fuel and fuel products. That particular Bill had all those provisions. Hon. Wanga, I just want to assure you that should you not have the temerity to face Hon. Kimunya on those particular provisions, I will just lift them from the Bill and they will be amendments that I will table before this House to be incorporated in the Finance Bill for this particular year.

Hon. Temporary Deputy Speaker, if you go to page 98 of the Report, you will see the name of a gentleman called Mr. Njoroge Waweru. This gentleman has been very consistent. I first engaged Mr. Njoroge Waweru as a Member of Parliament because he is my constituent coming

from Ondire in Kikuyu. However, I engaged him substantively on VAT on textbooks, periodicals and journals way back in 2018, when I became Chair of the Budget and Appropriations Committee. He approached me in the streets in Kikuyu and I advised him that these provisions are better handled in the Departmental Committee on Finance and National Planning. He has been very consistent. I must commend Mr. Njoroge for his consistency over the years pursuing the issue of textbooks, journals and periodicals to remove VAT on them. It is sad that after four years of engagement every year with the Departmental Committee on Finance and National Planning, they have never seen the need to reduce VAT on textbooks, journals and periodicals which he says it is to encourage a reading culture in the country. Let me also state that I have engaged Mr. Njoroge this afternoon and I will, indeed, also be bringing an amendment to at least deal with the VAT element on textbooks.

Every Member of Parliament who is in this House today agrees with me that many parents are crying because of the cost of textbooks both for primary and secondary schools, and even for those students who are in colleges and universities. One of the ways that we can ease the pain of parents is to reduce the cost of textbooks by removing the Value Added Tax (VAT). The gentleman is very kind. He agreed that we can drop VAT on the journals and periodicals. Therefore, I ask Hon. Wanga and her Committee to support that particular amendment in the Committee of the whole House.

Hon. Temporary Deputy Speaker, there are sin taxes that were proposed by the National Treasury on alcohol and betting. I agree with Hon. Millie that we need to re-consider some of those things. At the end of the day, we must also look at other alternative sources of raising revenue by Government other than those that will really affect Kenyans. We are increasing taxes on advertising revenues in betting. That cost will be offloaded to the person who is advertising. The consumer will never bear the cost. A consumer of betting products is just like someone who drinks alcohol or smokes. He will spend money because it is something that he enjoys doing.

There is a particular nicotine product called “lift” that we discussed in this House last year. I had amendments. I will also bring amendments on nicotine products that are not necessarily cigarettes, but cigarette substitutes like “lift” that has become a very dangerous product, especially to young people and school-going children. Even our teachers and many parents do not know the product that students use that makes them look and feel high. We must discourage the use of these products, especially by our youth by imposing punitive taxes. Indeed, I will propose amendments that will bring very punitive taxes.

There are also other amendments that will touch on issues that will raise revenue for the Government and encourage local production. We have companies in Thika and Nairobi that produce simcards. We need to bring in tax measures that will discourage imported products on telephone items that we can produce locally.

Lastly, last year, I moved amendments on imported onions, potatoes and eggs. I imposed an excise duty which is a source of revenue for the Kenyan Government at 25 per cent. If you look at the provisions of this Bill, it is shocking that the Cabinet Secretary (CS) of the National Treasury proposes to remove excise duty on fertilised eggs on tariff number 0407.11, which are imported by hatcheries upon recommendation by the CS for livestock. When the CS of the National Treasury read out his revenue raising measures the other day, I asked him a question. How will the CS in charge of livestock or agriculture determine which hatcheries he will license or allow to import these fertilised eggs, without paying excise duty and yet we have hatcheries in this country? We have one in Kikuyu Constituency called Muguku Poultry Farm that hatches these eggs locally.

There is a danger of even bringing chicks whose Deoxyribonucleic Acid (DNA) composition is not amiable to the Kenyan environment. Farmers can buy chicks from hatcheries abroad that cannot survive under our weather and conditions and they die in less than a week. Therefore, I will also bring an amendment to delete that particular provision. Let us protect our local hatcheries and poultry farmers, so that we can produce chicks or chicken that are amiable to our local environment. We should also encourage local hatcheries, even from hustlers, who use local fertilised eggs and hatcheries that are manufactured by our jua kali artisans right here in Gikomba. Therefore, we should not encourage big hatcheries which hatch chicks in South Africa, Mexico and elsewhere.

The Temporary Deputy Speaker (Hon. (Ms.) Soipan Tuya): I will give you one minute to conclude.

Thank you, Hon. Temporary Deputy Speaker. I will use half a second to conclude. We should protect our local hatcheries and also local production of potatoes, onions and everything else that we produce locally.

With those very many remarks, I beg to support and look forward to the Third Reading of this particular Bill. Thank you, Hon. Temporary Deputy Speaker.

The Temporary Deputy Speaker (Hon. (Ms.) Soipan Tuya) : Hon. (Dr.) Nyikal.

Thank you, Hon. Temporary Deputy Speaker. I rise to support this Bill. I appreciate the work that has been done by the Departmental Committee on Finance and National Planning to get the very tight balance between raising revenue and reducing taxes, so that the prices of commodities do not go up. It is particularly important that we increase as much taxes as possible and reduce our dependence on debts.

I support the reduction of taxes on food items. However hard it is, we must look at the food items every time. People are really suffering. Protecting food items is something I will support a lot. There are sin taxes on tobacco. I definitely do not have a problem with that. If it was my wish, we will just ban tobacco products completely. Even if we raise money from them, the problem is that they make people sick. The amount of money you will use to treat them is not equal to the taxes that are raised. If it is possible, we should ban them. When I was the Director of Medical Services, we tried to do that. That is when we introduced these smoking spots that you see.

There has to be a balance on beauty products. They are not essential, but they are useful. It is a way where we can introduce taxes because they are not strictly essential. If men prefer that the ladies use them, let them pay for them.

They will raise some taxes from that. Again, we have to be very careful on the beauty products. If some of them are not well controlled, they have harmful effects that are very long lasting.

I do not understand why we cannot just go straight and be hard on betting. There is so much betting that I do not understand whether radio stations are now betting agencies. I am not so sure, if it is helpful to us. If we cannot control it, we should get money from it.

For example, if you have a tax dispute with KRA, you would be expected to pay 50 per cent of the money is extremely punitive. We also know the difficulties that people have. Even if you win the case later on, it is very unlikely that you will get your 50 per cent back. Even if you do, it will take so much trouble and pain. I support that it should not be there at all.

We have to look at fuel very carefully. As much as it is a good way of raising tax and we know that there is an international situation like the war in Ukraine, it is a hard situation. That is

why we should look at it keenly. Fuel is a major promoter of inflation and high cost of commodities. There is one thing in the fuel industry that we need to look at. Energy and Petroleum Regulatory Authority (EPRA) regulation of fuel does not support the resellers. When we had problems recently, we realised that the big importers hoard fuel, so that they can make more profits. They do it expecting that EPRA will increase the price. Therefore, they make profits that are unfair to the public. I am particularly concerned because they do not encourage the resellers who have 4000 or more outlets. More than half of them are owned by the small time resellers and retailers. The prices at which they sell the product is almost the same as pump price. The EPRA should find out the best way to support the small resellers in the industry. I know they complain that the resellers perhaps are involved in adulteration, but that is a regulation that they can come out and act on without punishing. A large number of resellers are getting out of business. We cannot leave it to just importers to import and go for the profit. The distributors are better and more people will get employed.

On text books, looking at the number of text books we recommend for our children, we need to remove VAT from them. The number of books the children are required to have and the burden it puts on parents to buy them is heavy. The best way is to remove VAT on text books. In fact, it is as essential as a medical products, particularly books that are recommended in our institutions.

Lastly, on the issue of importing chicks and fertilised eggs, if they are not controlled, we do not know the diseases they can bring, not just chicks and even animals, but diseases that can infect human beings. This can be easier to control, if we have our hatcheries here and use our fertilised eggs. But the bigger problem is probably in these areas. If we stopped importation, people have the capacity to increase local production. We should do that so that we promote our own.

With that, Hon. Temporary Deputy Speaker, I support. The Temporary Deputy Speaker (Hon. (Ms.) Soipan Tuya): The Hon. Waweru Kiarie.

Hon. Temporary Deputy Speaker, I am delighted for this opportunity to contribute to the Finance Bill. In my mind, I believe that this is one of the biggest Bills in our budget making cycle, so that when I get an opportunity to contribute to it, I am greatly honoured.

I commend the Committee for the work they have painstakingly done to get us to the level where we are able to debate the Finance Bill. We understand the great work that has happened behind the curtains to get us to the place we are and we are grateful to the Committee.

We are preparing this Budget in a very special time in the country’s history. So, the principles that shall be applied in preparing this Budget must speak to a time such as this. At times we go for competition in budget making process where we look for what can be got from one sector to be given to another. To my mind, I believe that at a time such as this, it is a time to be creative not a time to be competitive. If we would apply creative principles to budgeting, we would be speaking to a time such as this, a time that requires creativity even in how we manage our public resources. It has been said and I will quote this lady by the name Natalie Pace who tells us that a debt problem is at its core in a budgeting process. When our country finds itself in a place where we are as Kenya, it does not speak to us being unable to pay debts, but it actually speaks to us how we budget. A debt in its core is actually a budgeting problem. Hence, the more reason I am saying that this is a time of being creative even in how we budget.

I would like to go to the business of the day and start by saying that I associate myself with some recommendations the Committee has made. On the issue of basic food commodities and food items, I associate myself with the Committee with its recommendations.

I also support the recommendations by the Committee to do away with a proposal that will require a business person or an entity to pay up 50 per cent of what KRA is demanding before even the matter can be heard. That is punitive. It would have been sacrilegious for this House to even imagine that we can put such a recommendation in law while we know very well that the business people that the Kenya Revenue Authority (KRA) is trying to milk taxes from are the same people suffering the calamity of pending bills. Pending bills from the national Government and even county Governments, occasion double jeopardy on them by requiring them to put up 50 per cent to KRA, would have been an evil we cannot occasion for our hustling business people and business community in this country. For that reason, I support the recommendation by the Committee to do away with that proposal.

I talked about creativity in budget making. I know the reason the budget comes to this House is so that it can benefit from the many professionals who are in this House, people from many different walks of life who have something they can input, that maybe, accountants would miss or people well versed in finance would miss. That is why I think that budget making becomes a very critical process by this House for which we should take our place and put in our Bills. That is why during the Committee of the whole House, I shall come with a raft of amendments which will be good to this Bill. My recommendations, in essence will be on the issue of sin taxes that we proposing to impose on our people. The first one has to do with cigarettes. There has not been proven any single useful benefit that an individual gets from smoking a cigarette. In fact, the opposite is true. That when one smokes a cigarette, they expose themselves to thousands and thousands of health risks that come from the consumption and ingestion of nicotine. For that reason, when we highly tax cigarettes, we shall actually be doing a number of things. One, we shall be getting the badly needed revenue for our country and secondly, we shall be discouraging the habit of cigarette smoking, but thirdly and most importantly, we shall also be taking a step towards alleviating this mega monster in the name of cancer most of which comes out of lifestyle decisions that people make and cigarette smoking, nicotine ingestion is one of the riskiest habits that anyone can take up. For that reason, I support those who believe like me that there should be a punitive sin tax that should be imposed on cigarettes.

We have had epochs in this country where we have mega industries taking over the airwaves. In the 1970s, we know that consumer goods dominated our advertising airspace. When we got to the 1980s, the fizzy drinks, the coca cola of this world dominated the advertising space in our airwaves. By the time we were getting to the 1990s, Kenya Breweries was the king. At that time, they held almost all the advertising space in our airwaves. In this epoch we are in today, we are seeing that the betting companies have taken over our airwaves and not only in the traditional media, but also in emerging media. In the new digital platforms, digital spaces and even social media, we see how big betting advertising is on the airwaves. In betting there is a universal principle. If you go to Las Vegas, they will tell you that the horse always wins. So, when we talk about betting, we are not talking about benefits that are going to or people. We are talking about companies that have formed themselves in a way where they shall always be winning as people lose when they bet. So, in that sense, I see the need for imposing sin tax on betting and betting advertising, so that we are able to reduce taxes on essential commodities, we can regain that by applying some meaningful tax on things like betting.

I believe that we can also be creative in how we tax alcoholic drinks. The problem has not been that we cannot produce good alcohol in our country. The alcohol problem we see in our country is because we are not being creative in how we think around the tax regime on alcohol.

A country like the Republic of South Africa has demonstrated what a robust alcohol industry can do for a country. You do not promote good alcohol by stifling the industry with punitive taxes. Countries like Italy balance that. But even more importantly for us, we should just look across the fence and see what Tanzania has done for its grapes and wine industry and we shall fully associate ourselves with the former Governor of the Central Bank of Kenya (CBK), Prof. Njuguna, when he tells us that if we could be judicious and creative about how we do our alcohol taxes, we would get our people consuming very healthy and good quality alcohol. At the same time we would get good tax out of very big volumes and little margins on taxation. That way we shall be taking a step towards solving the alcohol problem in our country and also raising revenues.

Because of time, I think I will execute all my other issues as I move my amendments in Third Reading. I will just leave it there by letting us understand….

The Temporary Deputy Speaker (Hon. (Ms.) Soipan Tuya): I give you one minute to conclude.

I really appreciate your magnanimity. All I wanted to do is end by letting us know that a Budget is not telling your money where to go. Instead, in essence, a budget is telling our money where to go instead of coming back later to ask where the money went. Let us budget right and then we shall not end in the problem of asking where our money went.

Thank you very much, Hon. Temporary Deputy Speaker. The Temporary Deputy Speaker (Hon. (Ms.) Soipan Tuya) : Well said. Let us have the Hon. Oduol Adhiambo.

Thank you very much, Hon. Temporary Deputy Speaker.

I would like to start by supporting the Finance Bill. Indeed, as we look at the recommendations from the Committee, the levels to which the Departmental Committee on Finance and National Planning went are commendable. I would want to give special appreciation to Hon. Gladys Wanga. They took into account the element of participation which has generally been seen to be the bedrock of ensuring that the voice of the people in decision making is taken into account. They have indicated to us not only on individual level, but also group ideas. I particularly want to agree and commend the area where as we look at the challenges we see in the area of cost of commodities, particularly food items, the Finance Bill indeed, sees and clearly spells out the need to reduce tax and ensure that the Kenyan citizen are not affected directly and does not bear the brunt of the burden.

As I support this Finance Bill, I single out what was raised regarding the colostomy bags. As someone who lost a daughter in 2020 even at a level where we had cover, accessing and finding ways to get these bags for someone who really does not have any choice and who must access them is something that is extremely commendable. Therefore, I support this Finance Bill because I see that, in terms of what we can see as the core areas in terms of cognisance of where it is that as we raise revenue we need to be thinking of where the rubber meets the road. What is it that it would cost, if we were to not reduce the weight that would come to the individual, in looking at what would be most critical, medical facilities and all accessories and food items that we do not burden the wananchi.

I thank the Committee and support. The Temporary Deputy Speaker (Hon. (Ms.) Soipan Tuya) : The Leader of the Majority Party.

Thank you, Hon. Temporary Deputy Speaker. I rise to support the Finance Bill of 2022.

From the outset, I recognise that Finance Bills are usually very complex. Very few people are able to go through it and understand because it is talking of amending some schedules, bits and pieces. When I look at the Committee Report, I am impressed with the work that went there to disentangle it and get it to Members in a layman’s or layperson’s language so that Members can know what exactly is being proposed. In many respects when you read the Committee Report, it is more of a paraphrasing of the Finance Bill. Members are able to know that this clause is doing a, b, c and d, and Members and the Committee are saying this. I really commend the Committee and the Chair, Gladys Wanga, for that. I am hoping that when God grants your wishes in Homa Bay, the Finance Bill for the county of Homa Bay will be representative of your work.

This Budget for 2022/2023 is a unique one. First of all, we are in a transition. There are so many things that are being said on the campaign trail about what the various administrations do when they come on board. But they are not here. We will be passing a Budget and a Finance Bill. It could change depending on who comes on board. We are in this unique situation where we will have to do a lot. We hope it will hold for 12 months but, it could we change.

The other situation is that we are basically operating within some very difficult times. We thought we had seen the worst of things when COVID-19 hit us. Just at the tail end of COVID-19, which had brought in the issues of reduction of the economic activity levels, disruption of supply chains, which has a knock-on effect on the revenue raising capacities and putting pressures on Government. We had the so called dilemma on issues: you cannot spend; you want to spend more, yet you cannot raise income; and, nobody wanted to borrow. When we thought we were getting out of that and the economy had started to pick, we ended up with a new dimension—a war starts in Ukraine and Russia which then disrupts the oil and grain supply chains and we start getting all currencies of the world being affected, including our own. The cost of food going up. These were not anticipated even by the time we were looking at some of these things.

Basically, we are in those very vulnerable environments. There are lots of uncertainty and living in very arbitrary situations. Hence, even as you look at this, one has to have in mind that whatever happens, balancing the needs that will come from Committee of Supply with what we will do in the Committee of Ways and Means to provide the monies that are required to finance that Budget. It is still a very dicey situation.

As Members may recall, during the processing of the Budget Policy Statement (BPS) the House resolved that the National Treasury should bring a proposal to regulate the debt ceiling. I am aware that it has been done. We will finance the Budget through revenues from taxation and borrowing. I want to alert Members, without anticipating debate, on the regulation that I hope will come to the House in the next couple of days. Whatever we do or do not do on those regulations will have an impact on this Finance Bill, because the Budget has to be funded. We know we can only raise so much in terms of tax. We are going to propose some expenditures. I can see after this business, we will begin the Committee of Supply to start approving expenditures. There are still more expenditures we are proposing on the campaign trail. If we do not adjust the debt ceiling, then we are going to reconsider some of these proposals. That is why we need to synchronise the passage of these three items. We should not close debate on the Finance Bill until we have known how much money we can get from the other sources.

I have had the privilege of reading the Committee report, and I enjoyed it. The report is quite detailed. I would urge Members to read it before we get to Committee of the Whole House. The number of stakeholders that appeared before the Committee is 74. It shows the level of interest

on finance matters. The organisations are affected in one way or another. Everyone knows that if you do not appear, your case will not be considered. You do not win a lottery unless you buy a ticket. One of the things I am happy about with the Committee is their reaction to clause 30. The National Treasury recommended a very draconian measure: That when you have a tax dispute, you deposit 50 per cent of the disputed amount while sorting out the dispute. That is like telling you to half-accept that you owe KRA the disputed amount. And they can delay the hearing of the case as they enjoy the 50 per cent. So, I am glad that the Committee has seen it fit to delete the clause. We have already provided for all dispute resolution mechanisms through the Tax Appeals Tribunal. Let the Tribunal expedite the process of dispute resolution instead of punishing business people, who will have to borrow the money and put in a non-interest-earning account. When you win the case, KRA will even take their sweet time in refunding the 50 per cent.

The other recommendation the Committee has made, which I totally agree with, is close to what the Member for Dagoretti South, Hon. Kiarie said. He introduced the issue of sin taxes. The taxes were called ‘sin taxes’ because if you wanted people to reform, but they cannot listen to their priests or to moral persuasion, you punish them through taxes so that they feel the pinch and, hopefully, change or reduce consumption of the products. But it has also been discovered that by the time people have been addicted to cigarettes or alcohol, it matters not how much you charge them, because they will still have their alcohol and cigarettes. The negative effect of that – and studies have been done on this – is that they end up raising the family budget. Because the man or lady of the House needs to have his or her cigarette or alcohol, which was being bought at Ksh1,000, if the price is raised to Ksh1,200, they will not stop. It means that Ksh200 will be taken away from food or something else to finance the habit that is already an addiction. Perhaps the Member for Dagoretti South should have that in mind. Too much tax becomes counterproductive and it takes away, especially at the lower levels, money that would otherwise be available for other investments like paying school fees. You will see this happening in rural areas, where people’s choice is to contribute in church because they fear going to hell. They build very big churches, but the schools their children go to are in bad shape. There is no correlation between the very big church and the next-door school that does not have desks. It is the same members of the community who go to the church and whose children go to the school. Similarly, you will see them in nyama choma places having fun while their children are out of school or queuing up for bursary. These are some of the things we need to look at. You cannot tax to influence behavioural change. There needs to be a different approach.

I am glad the Committee has picked up another issue that happened in 2013. For some reason, there was a notion that everything should be taxed, including alcohol at the low end of society, like Senator Keg. We all saw the impact of that. Alcohol became very expensive. People shifted to illicit alcohol and controlling them became a bigger issue. There is a difference between ethyl and methyl in drinks. When there is too much ethanol and methanol, you can imagine the impact. Quality control for illicit alcohol is doubtful. The health effects can be very expensive to address. Most of the locally produced beers – be they by Keroche Industries or by Kenya Breweries – are produced using sorghum and barley. The supply chain goes beyond the person drinking. It goes all the way to the farmer producing the sorghum. There is a child going to school because their parent is farming sorghum and they are able to sell to the brewing companies. We need to think through that, even as we enact these taxes. We may want to raise so much revenue, but beyond a certain point, you may make people shift from taking illicit beer to illicit drinks. What will all the farmers do with their barley and sorghum, because the end product has become too expensive and people have moved to cheaper alternatives? I am glad that the Committee has taken

some of these issues into account. I am sure Members will consider some of these things at the Committee of the Whole House.

I could go on and on, but as I said, it is a very complex Bill, and I am very happy the Committee has been able to disentangle all the bits and pieces and bring it to us. By the time we get to the Committee of the whole House on a clause by clause, we will be able to make whatever amendments that will enrich the Bill. With those remarks, I beg to support.

The Temporary Deputy Speaker (Hon. Ms.) Soipan Tuya): Hon. Achieng Gogo.

Thank you so much, Hon. Temporary Deputy Speaker. I appreciate the chance you have given me to contribute to the Finance Bill. I appreciate the tremendous work that has been done by the Committee. For that reason, I rise to support the Bill.

The Finance Bill generally is normally used to raise and generate revenue that is used for governance of the country. It is very important that it is done in a way that is prudent and beneficial to the country. From what I have gone through, I have seen that the Committee has done a good job in considering what the Kenyans are going through right now in terms of need for Kenyans to have some relief here and there in terms of taxation. The Committee has also done a good job in putting taxes where it should be done, as I am going to indicate or point out in the few areas I am going to talk about.

As indicated in the budget motion, many times we realise that there are revolutions across the world which happen, especially when matters national finance are handled but without due care to the general feeling and the effect on the people who are the consumers of such items of legislation. I appreciate the work that has been done, and I specifically want to mention the need to cushion Kenyans. I saw the other day every Kenyan wants to enjoy the use of our expressway, which is a revolutionary item on transportation in Kenya, but they were claiming that they are broke and that at the exit points, they were not able to pay for the usage of the expressway. It is just important that Kenyans get some relief so that we do not have them engage in an uprising.

I agree with the Committee on removal of tax on equipment for specialised hospitals, and even removal of taxes on specific equipment that are required for certain medical conditions. The other day, I visited one of the referral hospitals in our country, and I got a piece of medical equipment that separates blood into various portions like platelets, red blood cells and white blood cells. Then after that, it returns back to the body what it does not require. So, instead of taking the whole blood and then it is separated, it only takes probably the white blood cells that re needed, especially in cases where we have cancer, and just returns the rest of the blood portion that is not required back to the body. These are things that need to be exempted from taxation so that more and more Kenyans can benefit, as has been proposed in this Bill. That makes me support it with the seriousness that it deserves.

Of course, much has been said by my colleagues on the increase on taxation on tobacco products, for the simple reason of the effects that tobacco has on our health. The Leader of the Majority Party has said that beyond a certain level when one is addicted to certain products, it does not matter how much taxes are levied on it, they will still buy the products. However, we are looking at mitigating the effects on our young generation which may not be addicted at that point. I think this is a good thing that the Committee has done.

Hon. Temporary Deputy Speaker, allow me also to bring a pointer that the Committee has proposed more taxes on beer; it goes along with tobacco. I personally do not drink. I do not know what this would have, but as much as we increase taxation on beer, the general effect may be that

our people resort to other cheaper forms of alcohol. Generally, alcohol is used for entertainment and relaxation. When we make it so stringent, we are then going to have a country that has Tom, who does not play and relax. This also has its own negative impact on health.

There is increase of taxes on beauty products. Of course, this may be necessary. As much as we want to mainstream gender when it comes to matters financing and of course budgeting in the House, I am worried about what Hon. Wanga had earlier mentioned, when I was away. She said that women colleagues may want to use natural products. It is good to promote nature, but we want to also look at affordability and access. The natural products may not also be as accessible and reachable as may have been proposed by the Chair of the Departmental Committee on Finance and National Planning.

I agree with the Committee that statutory instruments must be brought before the House upon expiry of the stipulated timelines. Otherwise, we will be ceding our oversight roles since we represent the interests of the people who sent us to this august House.

I also agree with the Committee on their opposition to the provisions on the requirements to pay 50 per cent of the disputed amount in any dispute between KRA and taxpayers. I have once been erroneously served with a KRA tax figure. Although we resolved this well with them, there are some other things that we probably need to look into so that we cover up our people, but at the same time have our tax remittances done. It is a statutory requirement.

We are promoting local products, but we must also seek to have value addition to these products in a competitive way. When it comes to doing this, at the end of the day, it is the common mwananchi or trader who benefits. As I had earlier stated at the beginning of my submission in support of this particular Bill, we should look at the plight of the Kenyans who are already constrained financially. This is so that any piece of legislation that we pass in this House generally improves governance and democracy, but at the same time makes life better for the common man.

Hon. Temporary Deputy Speaker, with those few remarks, I support. Thank you. The Temporary Deputy Speaker (Hon. Ms.) Soipan Tuya): I see no further interest by Members to speak to the Bill. Honourable Member for the royal suburbs, you know I do not see you in my radar.

Thank you, Hon. Temporary Deputy Speaker. I will be very brief. Mine is just to appreciate the role of the stakeholders who appeared before the Committee during the public participation. Of particular commendation is the Kenya Private Sector Alliance (KEPSA) , the Kenya Association of Manufacturers, the Institute of Certified Public Accountants of Kenya (ICPAK) and the Kenya Bankers Association (KBA) .

Hon. Temporary Deputy Speaker, I spare my best recommendations and praises for a consortium called Okoa Uchumi, which is a conglomeration of local Non-Governmental Organisations (NGOs) , civil society organisations, pressure groups, consumer organisations and Persons with Disabilities (PwDs) . Within that umbrella, they also brought in mitumba sellers, traders from Nyamakima, Jua Kali artisans, and greengrocers. From their presentation and petition, we agreed with them that we would not increase or impose further Value Added Tax (VAT) on maize flour, cassava flour and other edible goods, particularly at this time when there is drought in the country and the rain is not very bountiful. I want to emphasise the role of the civil society organisations and Okoa Uchumi. We agreed with them to reject Clause 28 (a) (ii) , which increases tax on basic commodities like maize flour and cassava flour.

We, as a Committee, associate ourselves with the feelings of the stakeholders. Clause 30 of the Bill is draconian and anti-investment, because it requires a taxpayer to deposit 50 per cent of disputed tax at the Central Bank of Kenya (CBK) for cases which are determined by the Tax

Appeals Tribunal and ruled in favour of Kenya Revenue Authority (KRA) before filing an appeal at the High Court. We agree with them that that requirement is draconian and it will make many companies to be bankrupt.

With those few remarks, Hon. Temporary Deputy Speaker, I beg to support the Finance Bill, 2022. Thank you.

The Temporary Deputy Speaker (Hon. (Ms.) Soipan Tuya): You are the last person to contribute to this Bill. I go on to call upon the Mover to reply. Hon. Chairperson of the Departmental Committee on Finance and National Planning.

Thank you very much, Hon. Temporary Deputy Speaker, for giving me this opportunity to reply. Allow me to take this opportunity to thank Members for the very vibrant debate that we had on the Bill.

There is the need to balance between raising revenue, which is needed for purposes of running the Government. This is extremely critical because we have a Budget which we must fund. On the other hand, as a House of representatives, we must find ways to cushion Kenyans from the vagaries of inflation and rising cost of living. Members had not only a good discussion and balance of the issues that are critical to Kenyans, but also how Government can proceed to raise revenue for purposes of running. We now have the opportunity for Members to discuss and see the best way to strike this balance during the Committee of the whole House.

I also thank Kenyans who came out in large numbers to participate in this civic process. Kenyans have learnt that when they bring their views, the House does not just do public participation for the sake of it, but it makes due consideration of the views that are presented. I also thank the Members for the kind remarks that they have made about the Committee and myself.

We will endeavour to ensure that Kenyans are protected on all fronts. We have made a proposal on the issues that were raised by Hon. Ichung’wah, regarding the petroleum fees and levies. As I said earlier, this matter is before the House Business Committee (HBC) , which is chaired by Hon. Speaker. The question on the status of the Bill will be directed appropriately to the Hon. Speaker. However, in handling this particular Bill, we brought the proposal to reduce the VAT on Liquefied Petroleum Gas (LPG) from 16 per cent to 8 per cent. That is a proposal that we had made in the Petroleum Levies (Amendment) Bill.

Hon. Temporary Deputy Speaker, with those many remarks, I beg to reply. The Temporary Deputy Speaker (Hon. (Ms.) Soipan Tuya) : Hon. Members, we shall defer the putting of the Question until when the House is properly constituted.

Let us go to the next Order. Hon. Members, I notice the conspicuous absence of Members, Chairpersons and Vice- Chairpersons. I can see that the Chairperson and the Vice-Chairperson of the Departmental Committee on Finance and National planning are present. However, the other Chairpersons who need to move various votes and programmes in the Committee of Supply are absent.

Dr. Makali Mulu, do you have a Report from your Chairperson? Hon. Makali Mulu

: Thank you, Hon. Temporary Deputy Speaker. I was with my Chairperson. We debated on whether we were likely to start the Committee of Supply today. We thought that the Departmental Committee on Finance and National Planning will take a bit of time with the Finance Bill.

The Temporary Deputy Speaker (Hon. (Ms.) Soipan Tuya) : So, you told yourselves that you will not be reached?

(Laughter)

Hon. Temporary Deputy Speaker, even in terms of the membership of the Budget and Appropriations Committee, it is only me who is here. Even the Majority Whip is not here. Our estimation was that the Committee of Supply would take place tomorrow in the afternoon. We also bore in mind that the Question of the Motion on Consideration of the Budget Estimates for the Financial Year 2022/2023 was put this afternoon. We seek your indulgence, so that we take up this important task tomorrow in the afternoon. I can assure the country that we will sort it out tomorrow in the afternoon.

The Temporary Deputy Speaker (Hon. (Ms.) Soipan Tuya): For obvious reasons, we cannot proceed with it. So, this Motion equally stands deferred until it comes back in the Order Paper, that should be tomorrow.

The Chairman had delegated to me to move the Report. Unfortunately, my phone has gone off and I was to read the Report from the phone. I apologise on behalf of the---

It is technology by the way; it is an iPhone. We are campaigning a lot. It has gone off. The Report is here, I am prepared.

The Temporary Deputy Speaker (Hon. (Ms.) Soipan Tuya) : Do not coerce the Member for Gatanga. Let us just take his word for it.

It is technology. I was ready. That is why I was looking for the Report but they do not have it. We can defer it. This one cannot charge.

The Temporary Deputy Speaker (Hon. (Ms.) Soipan Tuya) : Let us defer it.

Thank you. I apologise for that, Hon. Temporary Deputy Speaker.

(Motion deferred)

The Temporary Deputy Speaker (Hon. (Ms.) Soipan Tuya) : Let us defer it until it is back in the Order Paper. Let us go to the next Order.

undertaken from 14th to 18th October 2019, laid on the Table of the House on Tuesday, December 1, 2020. The Temporary Deputy Speaker (Hon. (Ms.) Soipan Tuya): The Chairperson of the Committee on Members Services and Facilities. Obviously absent. There seems to be no word from the Chair. Again, we will defer this until when it comes back in the Order Paper.

(Motion deferred) Next Order.

It is true, Hon. Temporary Deputy Speaker; we had not anticipated that we would have time for it. We thought the Finance Bill would take longer. So we are not set. We seek your indulgence for another day.

(Bill deferred)

The Temporary Deputy Speaker (Hon. (Ms.) Soipan Tuya) : Alright, we shall step it down until when it comes back in the Order Paper. Next Order.

Hon. Leader of the Majority Party, you have a task to do. Have the Chairs get prepared if we are to finish the essential business that we have to finish before we break.