May 27th, 2015 SENATE DEBATES

Wednesday, 27th May, 2015

Hon. Senators, I have two brief communications to make. The first one is on the National Prayer Breakfast.

May 27th, 2015 SENATE DEBATES APPROVAL BY THE NATIONAL ASSEMBLY OF THE SENATE AMENDMENTS TO THE PUBLIC PROCUREMENT AND ASSET DISPOSAL BILL, (NATIONAL ASSEMBLY BILL NO.40 OF 2014) AND THE FAIR ADMINISTRATIVE ACTION BILL, (NATIONAL ASSEMBLY BILL NO.10 OF 2015)

Mr. Speaker, Sir, I beg to lay the following Paper on the Table:- Report of the Mediation Committee on the Public Audit Bill (National Assembly Bill No.38 of 2014) .

May 27th, 2015 SENATE DEBATES THE 2015 ECONOMIC SURVEY

Mr. Speaker, Sir, I beg to lay the following Paper on the Table:-

The 2015 Economic Survey

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

THAT, this House approves the the Report of the Mediation Committee on the Public Audit Bill (National Assembly Bill No.38 of 2014) pursuant to Standing Order No.155 laid on the Table of the House on Wednesday 27th May, 2015.

May 27th, 2015 SENATE DEBATES

Mr. Speaker, Sir, I requested a statement which should have been addressed yesterday. I am requesting for a response from the Committee on Health regarding the multi-million factory in Naivasha.

Thank you.

Mr. Speaker, Sir, allow me, on behalf of my Chairperson and the Vice Chairperson, to deliver the Statement as requested by Sen. Njoroge.

I will give a brief background on the statement he sought regarding the opening of the multi-million shilling battery assembling factory in Naivasha, Nakuru County.

I wish to inform this House that the battery factory in question is registered as Ganesh Eco Solutions Limited. This is a recycling facility located in Naivasha, Nakuru County. The facility has been licensed to manufacture copper cables, lead acid batteries, automotive spare parts, smelting and lead recycling.

In May, 2014, the company submitted a project report for the proposed factory. After the initial review, the project was upgraded to an Environmental Impact Assessment (EIA) Study. The study report was submitted to the National Environment Management Authority (NEMA) on 13th August, 2014 for an in-depth review.

A public hearing on the project was conducted on 6th November, 2014.

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

What is it, Sen. Njoroge?

Mr. Speaker, Sir, it is very hard to hear what Sen. (Dr.) Machage is saying. The House is too noisy.

Order, Senators! Consult in low tones if you have to.

I will repeat the last sentence. The study report was submitted to NEMA on 13th August, 2014 for an in-depth review.

A public hearing on the project was conducted on 6th November, 2014. This was followed by licensing of the facility on 27th November, 2014 to pave way for operations. On 9th April, 2015, NEMA inspectors visited the facility and realised that it was not adhering to the licence conditions in respect to pollution prevention. Consequently, on 4th May, 2015, the manager of the factory was issued with a closure order requiring him to close the factory recycling plant.

Mr. Speaker, Sir, the honourable Senator sought to know whether the risks and dangers involved have been evaluated and explained to the residents. The environmental impact assessment of the factory was conducted and it outlined the impacts associated with the activities of the factory and even went further to propose measures the company was to adapt to mitigate the adverse impact. This report was put on the NEMA website and an advert put on the newspapers for the public to read and understand the risks associated with the factory activities and give their comments before NEMA licensed the factory.

May 27th, 2015 SENATE DEBATES

Mr. Speaker, Sir, as much as we would like to encourage investors in Naivasha but as guided by the Committee and NEMA, I am of the view that they did

May 27th, 2015 SENATE DEBATES

Proceed, Sen. Sang. If you are not ready, let us have Sen. Khaniri.

Mr. Speaker, Sir, I am ready.

Just relax.

Mr. Speaker, Sir, sometimes back, about two and half months ago, I requested for two Statements. One was from the Committee---

Proceed, Sen. Khaniri.

Mr. Speaker, Sir, one of the Statements I sought was from the Committee on Legal Affairs and Human Rights with regard Maseno boundary where there was simmering tension. That is about two and half or three months ago. No statement was brought. The situation has since escalated as you have read in the media. My people are still waiting for this Statement that we asked for from the Committee on Legal Affairs and Human Rights.

Vice-Chair, Sen. Sang, proceed on the first one.

Mr. Speaker, Sir, we have not received any response from the Attorney General. I am taking up the matter and request that I give some progress on the same tomorrow.

Is the Chairperson, Committee on Agriculture not here? Is any Member of the Committee present?

Mr. Speaker, Sir, as pertains to the Statement from the Committee on Agriculture, I know that it is ready. I have a copy and know that the Chairman was ready to deliver it last week. So, I would request that you reschedule it to come tomorrow.

May 27th, 2015 SENATE DEBATES

Mr. Speaker, Sir, indeed, on behalf of the Chair and the Committee, we are serious. But I know that the practice in this House has been to invoke some of those punitive approaches, as a last resort. I know that this is not the only Statement pending from the Attorney General’s Office. I made a commitment yesterday that we were going to explore some of those avenues of obtaining the Statement. I request that the Senator bears with us even though he has been patient for a whole three months. Let me give the commitment that we should be able to give some progress over the same tomorrow.

It is so ordered. The same applies to the Statement from the Committee on Agriculture. That Statement should be here tomorrow afternoon.

Sen. Sang, do you have another Statement?

Mr. Speaker, Sir, I have a Statement relating to the proposed new consulates in the United States of America (USA) and their relation with polling stations. This Statement was sought by the Senate Minority Leader, Sen. Wetangula. Yesterday, I indicated to this House that I will use all means including my seniority status in the Jubilee side of the House. Sen. Orengo seemed not to believe me, but I want to make it clear that today, I have the Statement, but the Senate Minority Leader is not in the House. So, I seek your guidance whether I can deliver the Statement without the Senate Minority Leader.

On a point of order, Mr. Speaker, Sir. Sen. Sang says that the Senate Minority Leader is not in the House and I can see his able deputy. I think he has to give the opportunity to the Deputy Minority of Leader. Could he withdraw his remarks?

Order, Sen. Bule! You are completely out of order. The Statement was sought by the Senator for Bungoma not in his official capacity as the Senate Minority Leader. Of course, we may decide to proceed, but so far our practice has been that we give the opportunity when the Member is present. That is what we will do. I think the Chair has been kind enough to ensure that the Member is present. So, he is ready for further interrogation. That is my direction.

What is it, Sen. Sang?

On a point of order, Mr. Speaker, Sir. Would you be kind enough to allow Sen. Orengo to appreciate my seniority in the Jubilee Coalition, since he doubted it yesterday, now that I have delivered the Statement courtesy of that status?

May 27th, 2015 SENATE DEBATES

On a point of order, Mr. Speaker, Sir. I wondering under which provision of our Standing Orders the purported senior member of the Jubilee Coalition rose to ask Sen. Orengo to compliment him.

I will respond to you after I have heard from Sen. Orengo.

Mr. Speaker, Sir, the young Senator for Nandi has really tried. He has got a bright future.

Sen. Okong’o, I thought that you were in the House yesterday. When Sen. Sang failed to deliver the Statement, he was asked by Sen. Orengo whether some of his acquired status does not seem to help in the delivery of some of his assignments. So, it is as a result of that, that he just wanted Sen. Orengo to confirm that, indeed, what he had ascribed to him actually works, which I think has been confirmed. Sen. Orengo has even alluded that the future is even brighter.

Let us proceed. Sen. Elachi.

Mr. Speaker, Sir, I rise to seek a Statement from the Chairperson of the Standing Committee on Finance, Commerce and Budget regarding the Status and performance of the leather industry, which the Government in 2013 identified as a priority for development.

In the Statement, the Chairperson should:-

The Chairperson of the Committee on Finance, Budget and Commerce.

Please, proceed.

Thank you, Mr. Speaker, Sir. This is a very important area. I agree with her on the issue of the leather industry. I think that we will need a bit of time because we want to get information. There is a lot in that industry which is going on now.

May 27th, 2015 SENATE DEBATES

So ordered. Order, Senators. I hope that you have received a copy of the Supplementary Order Paper.

What is it, Sen. Obure?

Mr. Speaker, Sir, I see that we are moving away from the Statement Hour but, (d) under Statements on the Order Paper today---

Order, Senator! I think I see where you are going. Two of the Bills that we forwarded to the National Assembly were passed by the other House together with all our amendments. However, some amendments were rejected on one Bill. We need to dispose of that particular matter because it has a constitutional deadline of today. I am sure that you will appreciate that constitutional deadlines are paramount.

Thank you. The Supplementary Order Paper is being circulated. As you peruse it, let me allow one Statement.

What is it, Sen. Dullo?

Mr. Speaker, Sir, I have a Statement for (c) under the Statements. Can you allow me to issue it?

Order, Senators. I encourage you to stay because you are needed in the House this afternoon because of the business before us.

You may proceed, Sen. Dullo.

Thank you, Mr. Speaker, Sir. This is a Statement on the visit by His Excellency Barrack Obama, the President of the United States of America (USA) . Sen. (Dr.) Khalwale, pursuant to Standing Order No. 45 (2) (c) requested for a Statement from the Senate Majority Leader on 7th May, 2015 regarding the forthcoming visit to Kenya by His Excellency President Barrack Obama.

The Chairperson of the Committee on National Security and Foreign Relations was requested to state what official function President Obama intends to perform during the visit. President Obama will be attending the Global Entrepreneurship Summit which was launched by him in the USA in 2009. The first summit was held in Washington DC in 2010 and has since been held in Istanbul in 2011, Dubai in 2012, Kuala Lumpur in 2013, Marrakech in 2014 and in it will be held in Nairobi, Kenya, in 2015. As is ordinarily the practice with presidential visit, it is expected that President Obama will

May 27th, 2015 SENATE DEBATES

May 27th, 2015 SENATE DEBATES

Thank you, Mr. Speaker, Sir. The arrival of the President of the USA in Nairobi will attract a lot of interests. I would like the Chairperson to clarify to the youthful entrepreneurs of Kenya what deliberate affirmative support they will give to the youth to ensure that they benefit from this important conference.

Secondly, in this historic visit, we might be very lucky to be the only Parliament probably in the next 50 years to be addressed when a visiting President of the USA is in the country. Could the Chairman confirm that the Government is going to write to the Government of the USA to request that he addresses this House and the National Assembly?

Mr. Speaker, Sir, thirdly, when the exercise of the beatification took place in Nyeri last week, the Government engaged in a lot of upgrade of Nyeri Town. Since the programme of the President of the USA can change very abruptly, is the Government planning to start upgrading Kisumu City and Kogelo in the same measure that they did to Nyeri, so that should the President come, the visitors will also find the place just a copyright to Nyeri?

Mr. Speaker, Sir, could the Chair confirm whether the Government of Kenya is going to request the President to allow Kenya to borrow from the lessons that the United States of America (USA) learnt that necessitated them to move out of Iraq and Somalia so that Kenya can also pull out troops from Kismayu?

Order, Sen. (Dr.) Khalwale. That is like a whole new set of statements, but that is not for me to say but the Chair.

Mr. Speaker, Sir, I would also wish to congratulate the country for the visit by such an important personality, the leader of the so-called free world. Having said that, I want to clarify whether the Chair has considered telling this House what matters, indeed. The President of the USA may want to discuss with our President the possibility of heightened security support both in terms of hardware and software. As you are aware, the implementation of CCTV by Safaricom is becoming very effective but I believe with the support of the USA Government, companies such as Motorola will fast- track the connectivity of this nation in its totality in terms of CCTV and other security apparatus.

I also support that Kisumu and Kogelo be upgraded. I know that Kisumu itself is already looking very much like “London” but Kogelo is probably not looking like that. It would be nice to hear that Kogelo looks like Nyeri. Therefore, we support the notion to upgrade.

On a point of order, Mr. Speaker, Sir. I know the distinguished Senator for Nyeri does not have difficulties with pronunciations. I would understand if a senator for Siaya would have called it “London” but coming from Nyeri would he have rather called it “Rondon”?

Mr. Speaker, Sir, whether we call it “Rondon” or “London” the city is the same because a rose is a rose by any other name.

May 27th, 2015 SENATE DEBATES

On a point of order, Mr. Speaker, Sir. Is it in order for the two Senators to confuse the correct name of my city which is actually called “United Kisumu”?

Mr. Speaker, Sir, you can now appreciate why I called it “London” because of the United Kingdom and the “United Kisumu”. In a nutshell, it would be very nice to upgrade those places so that the image of our nation remains the same as that of Nyeri. We are happy that it be done.

We would also like to hear the Senator for Kisumu invite us to the Obama fete like I invited the Senators to Nyeri. We should see the good graces of the son of the “United Kisumu”.

Mr. Speaker, Sir, we appreciate the coming of President Obama to Kenya but as we all know, his tenure is coming to an end next year. Luckily, in that part of the world, people do not try to manufacture a third or fourth term like in this region. It would be very unfortunate, going by precedence that President Obama does not come to Kenya on an official state visit. I want a clarification whether the Government of Kenya has actually sought and given invitation for President Obama to come to Kenya on an official visit.

As you know, the USA has produced many presidents with Irish extraction going beyond J.F. Kennedy. One of the most memorable visits that he made was his visit to Ireland. There have been other presidents from that part of the world like Ronald Reagan and Clinton. It would have been more appropriate if we were told that the Government of Kenya has indeed taken steps to invite President Obama to come to Kenya on an official state visit so that the kind of things the Senator for Nyeri is talking about would then be possible. The way the programme is, it would appear that he may not even step in State House.

Mr. Speaker, Sir, I thank the Chair for the response but in further clarification, considering that this conference is on global entrepreneurship and considering that entrepreneurship and business is now majorly a function of county governments, Article 96 of the Constitution provides that we are the protectors and promoters of the interests of county governments, could the Chair confirm whether the Senate is involved in this conference in the context of committees being involved and which Ministry is organizing so that this House can also be involved in promoting and protecting the interest of various counties? To what extent are county governments being given tents to market their counties so that they can have an opportunity for global entrepreneurship?

Considering the position of the President of the USA, I agree with Sen. Orengo. I have always asked myself that; for a man who wrote many books about the dreams of his father, about hope and so on, what would make it difficult for him to organize himself and visit home at an appropriate time. Could the Government also consider extending dual citizenship to President Obama considering that under the new Constitution, he qualifies as a citizen of this Republic and of the USA?

Mr. Speaker, Sir, towards the end of Senators’ Statements especially saying that President Obama could address Parliament or we could ask for it, it

May 27th, 2015 SENATE DEBATES

Mr. Speaker, Sir, mine is on another matter and not that particular Statement.

Thank you, Mr. Speaker Sir. My understanding is that the President of USA is coming to Kenya for a conference on entrepreneurship. The conference happens to be in Nairobi which also happens to be the homeland of his father. No clear statement is being made by the Government on this issue because as far as I understand it, while he is here, he will spare time to meet our President. That is the only information available. So, all these other proposals that are being made are completely flying in the face of the facts. If, indeed, Kenya wanted President Obama to come here for a much more extensive visit, it should not be prefaced on his visit for a purely international conference. I think we are missing the point.

He will go out of office next year, so we should then make a separate arrangement for his more extensive visit to this nation. However, trying to piggyback on an entrepreneurship conference in Nairobi, which is going to have the participation of many other leaders, is a little bit cheap on our part. We should be more serious. If we want a visit by the President of the most powerful nation on earth, then it should be properly arranged and not piggybacked on an international conference in Nairobi.

All these pleas that President Obama should visit here and there, to me, are completely misplaced. He has made it very clear that he is coming for a conference, he will accord the time to our President and they shall meet. Other people desiring to meet him will not do so.

Order, Senator!

Order, where?

Order, to you, Senator! Order, Sen. (Prof.) Anyang’- Nyong’o!

Yes, Mr. Speaker, Sir. I had not finished.

Order, Senator! Ordinarily, I would have been harsh to you but I appreciate that sometimes professors get a bit confused especially after listening to you very keenly.

May 27th, 2015 SENATE DEBATES

On a point of order, Mr. Speaker, Sir. In my entire life in Parliament, I have never heard a Member of Parliament (MP) challenge the Chair with the question: “Order, where?”This is a House of records, unless we clarify this matter, it can become our tradition that whenever you are called to order, you ask the Speaker: “Order, Where?” Could the Senator for Kisumu withdraw the words, “Order where?”

Mr. Speaker Sir, I thought you put it very clearly from where you are sitting and gave directions. I do not understand why Sen. (Dr.) Khalwale is coming back to what you have ruled on.

Order, Sen. Okong’o! What have I ruled on?

Mr. Speaker, Sir, you just mentioned clearly that you heard what the Senator for Kisumu mentioned.You said you would have issued some penalties had it not been that you understand that sometimes professors get confused. To that extent, I understood that you rested that case.

Thank you, Mr. Speaker, Sir. I think I have a right to comment on this matter about the President of USA. As you know, President Obama was my classmate.

Order, Sen. Kiraitu! There is a point of order on the Floor. In any case, that particular matter had been concluded in terms of the interventions.

Mr. Speaker, Sir, I had an important matter to raise on this issue.

Sen. Kiraitu, I have a screen before me and I know all the requests that had been put before me.

Hon. Senators, Sen. (Dr.) Khalwale has raised an important point which I was coming to. There were two issues that we were dealing with. One was just about whether Sen. (Prof.) Anyang’-Nyong’o was being relevant to the issues and the second was whether he defied or attempted to defy the Chair. That is a very serious matter. Sen. (Prof.) Anyang’-Nyong’o, you have been challenged. The Chair wants to hear from you.

Mr. Speaker Sir, far be it for me to try and defy the most powerful Chair. Therefore, I apologise and withdraw that comment, which was actually made with a light touch.

For the benefit of the rest of the Senators, there is no variation on how you defy the Chair; whether on a serious note or on a light touch. The Chair is the Chair, You cannot defy the Chair. So, I accept your apologies, but be guided.

On a point of order, Mr. Speaker, Sir. Did you notice that Sen. (Prof.) Anyang’-Nyong’o, apologised and withdrew the same apology? The order has always been that you withdraw and, therefore, proceed to apologize. He actually apologised and

May 27th, 2015 SENATE DEBATES

Sen. (Prof.) Anyang’-Nyong’o, how did you put it?

Mr. Speaker, Sir, I cannot question the Member. I think I apologised and withdrew. I withdrew what I had said. However, let me withdraw and apologise, if that makes matters much easier for the young Senator.

On a point of order, Mr. Speaker, Sir. I think the distinguished Senator for Kisumu has unconditionally apologised but I was a little worried when he initially said that he is withdrawing because of the “most powerful Chair.” I do not know whether he was withdrawing because the Chair is powerful or because he was out of order. I am concerned about this because next time I may be addressing the House and I may be intimidated on the basis that the Chair is the most powerful rather than obeying the rules of the House. May I get a clarification from the distinguished Senator?

Mr. Speaker, Sir, power lies in the law. The distinguished lawyer and senior counsel knows that before the law, we must all kneel and obey. I was just emphasising the fact that because the law gives you the power to run this House, I will not, in any way, whatsoever make a statement that belittles that power.

Order, Senators. That is very clear. Sen. Orengo, I was wondering because there is nothing to intimidate. In fact, the more powerful the position is, the better for you.

Mr. Speaker, Sir, there was once an Attorney-General called Kamere. He said that he was the most powerful person at his time in the House. Whereas other people had sleepless nights, he enjoyed his full sleep.

Let me bring that to an end. However, I would not mind engaging Sen. Orengo and Sen. (Prof.) Anyang'-Nyong'o in another forum on those kind of issues but not now.

May 27th, 2015 SENATE DEBATES

On a point of order, Mr. Speaker, Sir. I just want to seek a clarification from you. Sen. (Prof.) Anyang'-Nyong'o has been very eloquent in his withdrawal and apology. Is it still valid to say that sometimes professors are confused?

Yes, it is still valid. You know, sometimes, you make pronouncements on the basis of your rich history. I was wondering the basis on which Sen. Orengo was worried about my position being powerful when the real professor was not. If you did a bit of statistics, you must have been told about the quest of a confused professor. So, it was in that context.

Let us proceed.

Point of order, Mr. Speaker, Sir.

Order, order, Members. We must make progress. Look at your Supplementary Order Paper, we have a matter; that is Motion No.8.

I am coming to that. I am also deferring your response to tomorrow. In any case, I suspect that you might need more time in order to deal with issues raised by Members more substantially. So, I will defer your response to tomorrow.

Senators, I know that we have a lot of issues. We have the numbers and the matter to be disposed. Let us dispose it.

We will move to Order No.8

- THAT, this House approves the Report of the Mediation Committee on the Public Audit Bill (National Assembly Bill No. 38 of 2014) pursuant to Standing Order No.155 which was laid on the Table of the House earlier today, Wednesday, 27th May, 2015.

Mr. Speaker, Sir, the Mediation Committee on the Public Audit Bill was constituted yesterday by you, pursuant to Article 113 of the Constitution and our Standing Order No. 154. Members of the Committee from the Senate included:-

May 27th, 2015 SENATE DEBATES

May 27th, 2015 SENATE DEBATES

May 27th, 2015 SENATE DEBATES

May 27th, 2015 SENATE DEBATES

An

Which one is that?

It is No. 39, on page 12.

Order, Members. You are the one responding. As long issues do not come through the Speaker, ignore them.

Mr. Speaker, Sir, from time to time, the Government appoints a particular security agency to vet. Most of the time, to the best of my knowledge, it is the NIS that does vetting but from time to time. I think that there is that kind of arrangement and that authorized vetting agency will be the one doing it. It should not be the particular one that you are auditing. In that case, it is acceptable to us.

Mr. Speaker, Sir, those are the amendments. Both Mediation Committees have agreed on them. There are no fundamental changes. All the other amendments that we had made had been agreed upon by the National Assembly.

May 27th, 2015 SENATE DEBATES

Order, Senator! This is a Motion.

I am sorry, Mr. Speaker, Sir. I beg to move the Motion and it will be seconded by the Senator for Makueni who is a Member of the Mediation Committee and also a Member of the Committee.

Mr. Speaker, Sir, I rise to second although I did not attend the meeting principally because there was a problem with the notice. I have read the report on the mediated version---

What is it, Sen. Khaniri?

On a point of order, Mr. Speaker, Sir. This Mediation Report has just been given to us and I have been going through it. I have just noticed that it is not even signed. Are we in order to discuss a report that is not signed by the Chairman and the Vice Chairman? The copy that has been circulated to us is not signed.

Sen. Khaniri, please, check page 4. Proceed, Sen. Mutula Kilonzo Jnr. What is it, Sen. Okong’o?

On a point of order Mr. Speaker, Sir. I want to be guided whether it is in order for a Member who has not appended his signature and was not in the meeting of the said Committee to second this Motion?

Sen. Okong’o, at that rate, you will also disqualify yourself from contributing to the Motion.

On a point of order, Mr. Speaker, Sir. He just stood on a point of order and you overruled him. I am not challenging the Chair but he did not make any contribution.

Sen. Muthama, what did you say?

Mr. Speaker, Sir, I said that Sen. Okong’o just stood on a point of order and asked whether it is in order for a person who did not append his signature, although he was a Committee Member, to second it. I am just making his statement clear.

What was my response?

Mr. Speaker, Sir, you said that he may not even have the chance to contribute on the same report.

Proceed, Sen. Mutula Kilonzo Jnr.

May 27th, 2015 SENATE DEBATES

Mr. Speaker, Sir, I am impressed by Sen. Muthama’s recollection. It is a good answer. I want to emphasize the value of having the Senate and the National Assembly agree on matters of legislation. Instead of throwing tantrums as if we are quarrelling over something, we have a version which we have debated and agreed on. In a day, we have had a report and there has been nobody who has come out of that room unscathed, lost their skin or teeth.

On Clause 5, I agree that although we were very ambitious in attempting to say that the Auditor-General should be a post-graduate degree holder, the Constitution does not give such a minimum or maximum. Therefore, that is in order.

Clause 19 is very important for the Senators because it appeared as if the Cabinet Secretary (CS) in charge of Treasury was being given a blank cheque to audit the proposed estimates of the Auditor-General which was in violation of Article 229 of the Constitution in terms of the independence of this office. The part where the Cabinet Secretary can give comments is a very good way of resolving the disputes that we have had with the National Assembly on the question of Clause 19.

Mr. Speaker, Sir, Clause 24 is very important and an interesting thought that the Auditor-General cannot sit in chairmanship of himself as an independent office. Therefore, in our amendment where we had proposed that he would be the Chairman, it appears untidy for him to chair an Audit Advisory Committee which ideally would be advising his office. In terms of Clause 24, we have come to an intelligent compromise which will guide the office of the Auditor-General. Similarly, on the appointment of the chairperson, it is in conformity with the Constitution in terms of appointment of the chairperson.

Clause 32 did not have much of a problem in terms of what we wanted done in terms of the reporting so that the word “shall” which is in Part II of Clause 32 has resolved the problems we have had.

Mr. Speaker, Sir, although I am seconding this Motion, Clause 39 will give me some element of sleepless nights because it still does not augur well in terms of how this will be done. Although this is a mediated version, I want to say on record that we have left this portion, particularly the one on vetting, a little untidy. It appears as if there is discretion, as if it is not clear and as if somebody else will have to make another determination because there should have been either a “for” or the authorized Government agency should have been mentioned specifically.

Mr. Speaker, Sir, on Clause 39 (1) , although the Committee says that they will agree on the areas that may touch on the national audit, the only portion – and I want to say so, so that when the Senators are voting and contributing can note – is the one of agreement, because there is no provision in the event that there is no agreement. This then leaves the Auditor-General with a little problem; either he agrees or disagrees with them. On Clause 39, I beg that this House reconsiders that mediated version, because that portion still appears a little ambiguous.

For purposes of legislation, I would rather that we have a clearer section on what agreement would be arrived at and if there is a disagreement, how that disagreement

May 27th, 2015 SENATE DEBATES

Mr. Speaker, Sir, I rise to support this Motion but I would just like to point out a small mistake somewhere, which is important. I hope that the Chair can consider it.

Can you look at page 11 of the Report? Under “24”, it says:- “There is established an unincorporated board to be known as the Audit Advisory Board which shall comprise of”

That is not good English. You either say “shall consist of” or “shall comprise.” Can you correct that? Sen. Mutula Kilonzo Jnr., I am sure you can do that; the Chairman is too busy pursuing Al Shabaab.

On a point of order, Mr. Speaker, Sir. Is the Senator for Kisumu in order to say that the Chairman of the Committee on Finance, Commerce and Budget is busy pursuing Al Shabaab?

Mr. Speaker, Sir, I was just trying to wake up the Chair, because I was talking on an important issue and he was not paying attention.

Order! Order! Let us hear from the Professor. Sen. Billow, I have given you the Floor.

Mr. Speaker, Sir, this Professor has made it a habit. Last time he told me in this House: “The Senator who we do not know where he comes from.” Now he is telling me: “I am busy pursuing Al Shabaab.” You cannot joke about some things in this world. The Al Shabaab are people who are murdering thousands of Kenyans everyday. If he is a terrorist, he should not call other people terrorists. Is he in order? I want this matter to be taken seriously because this is the second time he has used derogatory words against me. I am consulting a Member, and I am allowed by the Standing Orders to do so. If we are terrorists, what am I doing in this House? Why do you sit here and waste my time, if I am a terrorist? He must withdraw and apologize. We cannot allow this.

On a point of order, Mr. Speaker, Sir. The sentiments that were expressed by Sen. Anyang’-Nyong’o were also directed to me, because I was the one who was consulting with the Chair. But by saying “pursuing Al Shabaab,” does it mean that I am a Member of Al Shabaab and we are making arrangements on how to pursue Al Shabaab? That is a very serious remark. Al Shabaab is feared even in someone’s dreams when sleeping. How can it be possible that we are pursuing Al Shabaab here?

May 27th, 2015 SENATE DEBATES

An.

But pursuing them is a good thing.

Mr. Speaker, Sir, I am not a security agent to plan how to arrest or pursue Al Shabaab. There are people who are assigned that business and I am not one of them.

Mr. Speaker, Sir, this afternoon, you ruled that professors are strange people and sometimes, they behave strangely and say strange things. I think we should excuse Professor this afternoon because this is one such occasion where he has behaved a bit strangely and mentioned some strange things. We will give him a chance to apologise to the House.

The Speaker (Hon. Ethuro) : Lastly, Sen. Machage. This is a fairly straightforward matter.

Mr. Speaker, Sir, it is just a few hours ago that Kenyans heard the news of an Al Shabaab attack in an area called Yumbis in this country. Indeed, every Kenyan and patriot that loves this country should be pursuing the Al Shabaab. At this time to be told that you are pursuing the Al Shabaab either in your thoughts, dreams or plans is noble. It is unfortunate that maybe this has been taken out of context, but you tell me that I am pursuing the Al Shabaab, and we do not fear them. We will fight.

Mr. Speaker, Sir, I must apologize to my dear friend, Sen. Billow Kerrow. I quite do not remember when I said that we do not know where he comes from. But on this occasion, I was just trying to draw his attention to what I was saying. But if it upset him, I am sorry. I withdraw and apologize. I think that is the order. I hope that my Chairman will not take it too unkindly. I hope we can resume our friendship.

Mr. Speaker, Sir, I was just pointing out that small mistake which I hope can be corrected. But more than that, I really wanted to congratulate the Mediation Committee for a job very well done and a very clear Report that sets out issues that were debated and amended in this House. I think that the compromise that they have reached with the National Assembly is satisfactory to most of us. There is no more that we can add, but to thank them for the job that they have done.

Thank you, Mr. Speaker, Sir.

Please, proceed Sen. Orengo. Since this is a mediated version, please, proceed along the line of Sen. (Prof.) Anyang’-Nyong’o

Thank you, Mr. Speaker, Sir. I also want to thank the Mediation Committee for a job well done, particularly from the point of view that they had very little time to consider this matter with the various provisions which were in contention. They came up with a very well considered report. I think this is also customary of Sen. Billow. He tends to handle a lot of his work with commitment and dedication.

Mr. Speaker, Sir, having said that, I am also a little bit uncomfortable with the mediated version in Clause 39. It says that all staff of the Auditor-General carrying out audit under this section shall be vetted by the authorized vetting agency. It is known the world over that a lot of mischief and fraud happens in the security sector. Looking at the whole problem about Anglo Leasing, a lot of those contracts were around security

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Thank you, Mr. Speaker, Sir. I listened to the Chairperson and looked at Clause 39 (2) on page 12 and I remembered the debate that we had last time on this Bill. It was based more on the “hot thing;” the report of the National Security Department. Subsection 3 says that all the staff of the Auditor-General carrying out the audit under this section shall be vetted by the authorized government vetting agency. I read a sinister motive in this clause because what we expect to happen is that the same National Security Department will pick the team to audit that department from a well organized group which is friendly to them.

Indeed, the vetting Government agency will come from either Parliament or this department. To leave it the way it is, means that the vetting agency can be anybody who works with the Government, whether from the department itself or any other person working for the Government. I see some difficulties if we pass this Bill with subsection 3 remaining as it is.

Mr. Speaker, Sir, thank you.

Order, Senators! Seemingly, there are no more requests.

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This is definitely a matter affecting counties. So, I ask that the Bell be rung for three minutes.

For five minutes

I thought that a majority of the Senators are in the neighbourhood. Why do we not ring the Bell for three minutes? If need be, we will add time.

-

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You may now draw the Bar and open the door.

- THAT, this House approves the Report of the Mediation Committee on the Division of Revenue Bill (National Assembly Bill No.11 of 2015) pursuant to Standing Order No.155, laid on the Table of the House on Wednesday 27th May, 2015.

The Mediation Committee on the Division of Revenue Bill 2015 was constituted by the Speakers of the two Houses of Parliament on 28th April, 2015 pursuant to Articles 112 and 113 of the Constitution and the Standing Orders of the Senate and the National Assembly. The Committee comprised of the following Members:

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Mr. Speaker, Sir, I rise to second the Motion that the House approves of the Report of the Mediation Committee on the Division of Revenue Bill, 2015, pursuant to Standing Order No.155 laid on the Table of this House today, 27th May,

Mr. Speaker, Sir, I would like to use this moment to thank the Mediation Committee Members from this House led by Sen. Kagwe who was elected the

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I support.

Thank you, Mr. Speaker, Sir. I salute the three distinguished Senators that we sent to this mediation; Sen. Kagwe, Sen. Elachi and Sen. (Dr.) Khalwale. I can tell the House without any fear of contradiction that they stood the ground, negotiated without fear and they did not fear to negotiate. They did the very best for this House. True to the spirit of the Senate, they reported back to the parent Committee on Finance, Commerce and Budget the progress as they moved on.

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Mr. Speaker, Sir, I also want to add my voice to our colleagues who have profusely thanked out Mediation Committee Members; Sen. Kagwe, Sen. Elachi and the “bull fighter”, for doing a superb job doing this Mediation Committee exercise.

It would be a great mistake if a mediation exercise is mistaken to be a theatre of conflict between the National Assembly and the Senate. Members of the National Assembly and Senators are all servants of the people. We are in these Houses to represent the people who are in the counties. The winner or the loser of a mediation exercise will be the people themselves. It will not be the Senate and not the National Assembly. Our team did a great job in arriving at this Solomonic decision today to give and let others take so that instead of the Kshs7 billion that we had proposed for the counties, we accommodated other interests and allowed the amount to be reduced to Kshs3 billion.

Mr. Speaker, Sir, we expect a similar attitude and gesture from our brothers in the National Assembly. This contest for manhood or who is greater than the other is completely misplaced.

On a point of order, Mr. Speaker, Sir. I really wanted to say a lot of things on this Report, but from my experience yesterday when we wanted to vote at an appropriate time and people left, since what we wanted has been achieved, would I be in order to request that the Mover be called upon to reply so that what has been achieved is not lost because of continuous debate?

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Mr. Speaker, Sir, I thank everybody and beg to move.

This is a matter affecting counties. Therefore, the Division Bell will be rung for one minute.

Order, Senators! Time is up. Let us get the names of the tellers. Do we have them? Draw the Bar and close the door. Let us vote.

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Order, Senators! The results of the Division are as follows:-

On a point of order, Mr. Speaker, Sir. We have voted and passed the mediation report on this Bill to beat the constitutional deadline. We also know that the National Assembly was recalled from recess to deal with the same Bill. However, the information coming now is that it has adjourned without voting on the same Bill. After we have voted on the mediation report on this Bill, what are the consequences? This Bill has a constitutional deadline.

Mr. Speaker, Sir, I also rise to congratulate the House for adopting the Report of the Mediation Committee on the Division of Revenue Bill. This is the most important Bill for the Senate because it is about sharing revenue between the two levels of Government. It is one of the core mandates of this House. We have made our point. This House must play a role in the determination of the revenue that goes to the counties.

As much as possible, the Executive, at every level, must appreciate the role of both Houses in the process of determining how much money goes to our counties. I think that opportunity to leave matters to the two Houses to determine would have been the best way. Today, we would not have actually come this far if that opportunity was not left to the two Houses to determine. This is because the Constitution is very clear that, that revenue must be shared out by Parliament. This is a great day and I want to thank the Mediation team for the good job that they have done.

Thank you, Mr. Speaker, Sir.

Mr. Speaker, Sir, I also rise to congratulate the hon. Senators for passing the Motion. More so, I would like to congratulate the Mediation team which took their time and dedicated themselves to make sure that the process is achieved. They have come out with positive results.

Mr. Speaker, Sir, it must not escape our mind that after we were elected in 2013, we had to go to the Supreme Court over the Division of Revenue Bill of 2013/2014. For the Division of Revenue Bill for the Financial Year 2014/2015 we had to go for mediation. Now again, we are from a mediation. This shows that there is someone or some people somewhere who are not willing to see the Senate working the way it should.

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On a point of order, Mr. Speaker, Sir. I really do not know what Motion Sen. Mositet is contributing to. We have just passed the Mediation Committee Report. We have a lot of business on the Order Paper today. There is no Motion on the Floor. What is the hon. Senator contributing to?

Order, Sen. Khaniri! You are right, but there is no harm in Senators appreciating the good work that they have done. To pass constitutional Bills and the Division of Revenue Bill in record time is an achievement. So, they are on points of order.

Conclude, Sen. Mositet.

Thank you, Mr. Speaker, Sir, for protecting me. I just want to let my good friend, Sen. Khaniri, know that I am not doing this in bad faith.

This House should really be respected. It should now be clear to the “lower” House that whatever the Senate did was for the interest of this nation. I thank the Senators because they never looked at the Members of the National Assembly as their juniors when they were mediating. They made sure that they mediated from the point of view that they really wanted the country to have the best. That is why they even had to give in.

It is high time we told the Members of the National Assembly that the counties belong to them. They represent particular constituencies in counties. So, when we decide that some funds need to go to those counties, it is also for their benefit. Those funds are going to serve their constituents in those counties.

Mr. Speaker, Sir, with those remarks, I would like to congratulate our Chairman who spearheaded the mediation from our House, the entire team and the Speaker’s office.

Thank you.

Hon. Senators, I hope you know that you need to make very brief interventions.

Mr. Speaker, Sir, this was not easy for this Committee. We are the ones who passed the amendments and have climbed down from our position. Therefore, I want to thank the Committee, through the Chair. I know the troubles that they have gone through. In fact, Sen. Mutahi Kagwe almost gave up on this mediation. However, for the sake of this country and the 47 counties, they not only stood their ground, but also negotiated on principle. This is not to say that the portion of the Kshs4.4 billion which the National Assembly Mediation team did not agree to, should not have gone to counties. For the record, that on this day, everybody knows that the Senate of the Republic of Kenya will never be ignored on the Division of Revenue Bill.

Thank you, Mr. Speaker, Sir.

Mr. Speaker, Sir, as I congratulate the team for work well done, I want to comment on the timelines. This Bill was in the “lower” House and a Gazette supplement was actually produced on 28th December, 2014. If you look at the way the Bill has proceeded, we received it in April and by 22nd we were returning it back

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Thank you, Mr. Speaker, Sir. Being a Member of the Committee on Finance, Commerce and Budget, we have gone through this Bill and it was not an easy thing to get where we got. There were a lot of negotiations. Whether we got the majority decision or not, I think we must thank the National Assembly as well for arriving at a certain conclusion. Whatever happened during the negotiation should never be made an issue here. This is because during negotiation, there are those who agree or disagree on a position. When an agreement is reached finally, we should go by the resolution.

Mr. Speaker, Sir, following what Sen. (Dr.) Machage has just said, I think we are put into unnecessary pressure all the time. Time and again, we are told to remain here and vote on a Bill that has a constitutional deadline. Otherwise, it may become null and void the following day. I think that you and the Clerk should help us to be doing our job within the right time.

Thank you very much.

Please, proceed, Sen. Elachi and then Sen. Orengo will contribute lastly.

Thank you, Mr. Speaker, Sir. I also want to thank the House for giving us the opportunity to be in that team. However, it is time that we also reflected and asked ourselves what clear recommendations we, as a House, would wish to have as we move forward. It would be important for the Senate to be involved in the consultation stages of amending or drafting the Bill, so that we do not have such a scenario in the future.

Mr. Speaker, Sir, I also thank the Members of the Committee from the National Assembly, particularly the Member for Ruaraka Constituency, Hon. T. J. Kajwang who really supported us in all this. He stood as a Kenyan. You can imagine when you are with your fellow Members and decide to go against them. I realized that he is a patriotic Kenyan who does not look at the party, but the issues. I, therefore, thank the entire team, including the Chair who led us and realized that democracy is the way and accepted the results.

More importantly, instead of becoming protagonists for three to four sittings, we should go for mediation as Members from a bicameral Parliament who are willing to sit down and unlock what the Houses did not agree on. In doing so, we should not go to the negotiating table with fixed mindsets because we will find it so difficult to look at the broader issues affecting Kenyans.

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Thank you, Mr. Speaker, Sir. May I also appreciate the work of the Committee and the membership for the great work they have done, particularly having tools for negotiations. Sometimes, you acquire more strength by making compromises. This strategic compromise has shown that the Senate is not just there to cause problems or be a source of conflict of legislative kind, but to do things that will make the country move forward.

I wish to add that this particular Bill is an annual Bill. Every year, we will continue to have a Division of Revenue Bill. Whichever way I have read the Constitution, either in terms of the sections that deal with what the Senate can deal with or with Chapter 12 of the Constitution that deals with the finances, if there is anything that touches on the responsibility and the mandate of the Senate, it is this particular Bill. It is a Bill which the Senate must consider if it has to meet its objectives as stipulated under Article 96 of the Constitution.

I, therefore, hope that, like a great Kenyan called Tom Mboya said, “a country is as strong as its institutions.” The moment we begin to belittle or emasculate the role or the responsibility of any one institution, then the whole framework, architecture and structure cannot work. I hope that as we move forward, somebody will take a walk to Damascus and see the proverbial light and say that the Senate has a role to play in this and that its role is not just to vote. Otherwise, for people like Sen. G.G Kariuki who have been here many years, if you are just waiting to be instructed by a Member from the “lower” House that since they have decided and we must, therefore, vote in a certain way, then, probably he is in the wrong House. I would also certainly consider myself to be in the wrong House as well.

Mr. Speaker, Sir, having said that, we have sent a good signal that in whatever circumstances we are ready to not only protect the counties and their governments - and not the counties and their Governors - but to make sure that they get adequate resources. We are also very conscious of the fact that protecting the Governor is quite different from protecting the county government.

Mr. Speaker, Sir, I also want to appreciate your leadership so far in this respect. If you did not provide positive and effective leadership, even the compromises that we have made would have become impossible. One day as we continue pushing, somebody will realize that this is not only the ‘upper” House, but ultimately it should be listened to. I am beginning to get a little bit disappointed because we have not seen the light of making sure that the Senate is actually the one that approves appointments which are made at a

May 27th, 2015 SENATE DEBATES

I had said that Sen. Orengo would be the last one, but I see two other Senators interested; Sen. (Dr.) Zani and Sen. Bule. So, they will make the last contributions.

Please, proceed Sen. (Dr.) Zani.

Thank you, Mr. Speaker, Sir. I also want to add my voice to this important process because this is one of the most important Bills in the Senate. Over time, the pulling and pushing for this Bill needs to come to an end. The proposal that Sen. Kagwe has given that the budget estimates be given in advance of the publication, will get us there. However, I think that we have also moved in the sense that we have had successful mediation processes compared to last year. We are moving more towards having a Mediation Committee between the two Houses and successfully completing that process. As we move on, we are improving over time and that is very critical.

When we requested for additional Kshs7.7 billion from the Senate to go to the counties, it was because we thought that it was going to be critical for various operations within the specific counties. However, we will get Kshs3.3 billion that will go into emergencies, salaries and to Level 5 hospitals. This gives hope for people within counties. It must be noted that our mandate as a Senate is to protect the interests of county governments. We requested for more funds to improve the lives of the people in those counties.

Mr. Speaker, Sir, over the time, money allocated in various budgets to support projects are not revisited. We should find a way of monitoring and finding out whether that money can go to the counties. For example, there are various national functions that have been devolved to the counties, but are still at the national level. In other words, the money is allocated to the national government; for example, library services have not been devolved.

Order! Hon. Senator, restrict yourself to the process.

Mr. Speaker, Sir, it is important that as we move forward, we still look for ways and means to allocate those funds.

Let me end by thanking the mediation process and those who were in the forefront, led by Sen. Kagwe from the Senate.

Mr. Speaker, Sir, I rise to add my voice and also congratulate the good job done by the Committee. The Mediation Committee has done a good job and saved us. Yesterday, I did not sleep. I was worried whether the Committee will agree or disagree. This was a serious matter. We prayed hard, but I am glad they have done their job accurately, efficiently and also saved us.

Mr. Speaker, Sir, I want to be on record on this issue. I want to tell the governors, wherever they are, that they have to know that we are working hard to ensure that our counties get their dues. That is the work of Senators. We are getting challenges here and there, especially from our dear brothers and sisters in the National Assembly.

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Order, Members. That is a good ending coming from Sen. Bule on this particular matter. If you look at the Order Paper---

Order, Sen. Wetangula! You do not go back and forth. These things move in one particular lineal manner. Once you start with the Supplementary Order Paper, you keep it.

Hon. Senators, business on Order Nos.10 and No.11 will be deferred to tomorrow. On Order No.12, we have a party sponsored Motion which takes precedence. It was deferred from last week to this particular day. Therefore, I wish to call out Order No.12.

- THAT, aware that the Government of Kenya has a 29.8% shareholding in Kenya Airways Limited thereby being the largest single shareholder in the company;

COGNIZANT of the fact that Kenya Airways Limited, the National Flag carrier, has been experiencing tremendous delays and cancellation of flights;

AWARE that each delay and/or cancellation has led to grave losses to the airline thereby worsening the debt burden of the corporation;

REALIZING that the airline is now in debt to the tune of Kshs18 billion; FURTHER AWARE that the current business plan of the airline does not seem to take into full account necessary measures to turn the company around;

CONCERNED that the situation, if left unchecked, may lead to the collapse of the company and great loss to the nation, investors and the Kenyan taxpayers;

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An

Alias Nyeri tycoon!

Sen. Kagwe is it proper to add alias the Nyeri tycoon?

Mr. Temporary Speaker, Sir, I simply say, from the Senator’s mouth to God’s own ears.

Mr. Temporary Speaker, Sir, I wish to second this Motion and say that this is a Motion that is long overdue. The plight of Kenya Airways is something that is of concern, not only to Parliament, but to Kenyans as a whole. In the past, Kenya Airways has not only been the pride of Africa, but more so, the pride of Kenya. There is something synonymous with a country’s airline and the image of that country. That is why today when you think about British Airways; it symbolizes British efficiency, culture and values. Similarly, when you think about Singapore Airlines, the people of Singapore are known for efficiency, moving very fast from a third world to a first world country. Similarly, their airline moved from a small airline to one of the best airlines on earth today. In fact, it is one of the airlines which have been voted as one of the best on earth.

There are many other examples. When you think about Emirates Airlines which is an airline which was borne after Kenya Airways, if you look at its values and the beauty, you can see the difference between good management and fly-by-night management. Why is it that an airline just comes from the blues and overtakes Kenya Airways? There are others like Etihad which started operations just the other day and today Airlineratintgs.com has got Qantas Airlines, Emirates, Singapore, British Airways and Etihad as amongst the best in the world.

At what point did Kenya Airways become a basket case? Unless we can answer this question, then we will not be able to move forward. There is a tendency for us as a country to look at the situation Kenya Airways is in, write off some Kshs6 billion and it is business as usual. This is a big mistake. We should not forget that the Government is

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The Motion before us is really to establish a Select Committee to carry out a noble exercise. In my own opinion, it would have been wise to set this Committee rolling to do the business. As I propose this Question, search your souls whether, really, we need to subject this to long discussions or somebody needs to move under the Standing Orders that we vote and set this Committee rolling.

I will, therefore, propose the Question.

Sen. Orengo, what have you in mind?

On a point of order, Mr. Temporary Speaker, Sir. Before proposing the question, you said that this is a matter in which we should vote and get the committee going. However, my view is that this is a matter that we need to justify to the public why this decision is being taken. For some people, when they see Kenya Airways, they think that everything is alright. The way the Motion has been moved; there is justification that the House, being a House of record, somebody going back to our records ten years down the line---

What is not in order?

Mr. Temporary Speaker, Sir, what is not in order is that your directions may be seen to tamper with the freedom of expression.

Order Senator! That was just an advice. Otherwise, somebody has to move a point of order to cut short the debate on the Motion. It was my advice that we need the Committee’s role. If you so wish to continue discussing, that is all right with me.

Your point is noted. You can resume you seat.

Mr. Temporary Speaker, Sir, it is very dangerous. It is like going to a court of law and the Judge tells you what your case is all about before you present it.

Please, proceed

Mr. Temporary Speaker, Sir, before I make my contribution, I want to urge the Chair to exercise its discretion under Standing Order No.30 (2) to give us some limited extension of time so that we can ventilate on this matter. In fact, if we knew, we would have moved a Motion earlier to debate this matter fully because we must lay a foundation as to why we want to look into issues of Kenya Airways.

Let me give my ruling on that. I will not give additional time. We will continue tomorrow. The Senate Minority Leader (Sen. Wetangula) : Mr. Temporary Speaker, Sir, I beg to support this Motion. I like the way the Motion is framed with the words; aware that, cognizant of, aware that, realizing that, further aware that, concerned that and now

May 27th, 2015 SENATE DEBATES

Mr. Temporary Speaker, Sir, I beg to support this Motion. I like the way the Motion is framed with the words; aware that, cognizant of, aware that, realizing that, further aware that, concerned that and now

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Hon. Senators, we have come to the end of today’s sitting. Therefore, the Senate stands adjourned until tomorrow Thursday, 28th May, 2015, at 2.30 p.m.

The Senate rose at 6.30 p.m.

Hon. Senators, we have come to the end of today’s sitting. Therefore, the Senate stands adjourned until tomorrow Thursday, 28th May, 2015, at 2.30 p.m.

The Senate rose at 6.30 p.m.