Wednesday, 29th April, 2015

Hon. Senators, this is a Communication of approval by the National Assembly of the Senate amendments to the Public Service Values and Principles Bill otherwise referred to as the National Assembly Bill No. 29 of 2014 and the Public Procurement and Assets Disposal (Amendment) Bill otherwise referred to as the National Assembly Bill No. 31 of 2013.

As you may be aware, the Public Service Values and Principles Bill otherwise referred to as the National Assembly Bill No. 29 of 2014 and the Public Procurement and Assets Disposal (Amendment) Bill otherwise referred to as the National Assembly Bill No. 31 of 2013, were published in the Kenya Gazette Supplements No. 112 of 25th July, 2014 and 139 of 18th October, 2013 respectively, as Bills originating from the National Assembly. The Bills were passed with amendments by the National Assembly on 26th November, 2014 and 23rd April, 2014 respectively, and subsequently referred to the Senate. The Bills were read the first time in the Senate on 11th February, 2015 and 4th June, 2014 respectively and later passed with amendments on Wednesday, 1st April, 2015 and 25th November, 2014 respectively.

Hon. Senators, after the passage of the Bills by the Senate, and pursuant to Article 110 (4) of the Constitution, and the provision of Standing Orders No. 20 (2) , and 149 of the Senate Standing Orders, I forwarded to the National Assembly, certified copies of the Public Service Values and Principles Bill otherwise referred to as the National Assembly Bill No. 29 of 2014 and the Public Procurement and Asset Disposal (Amendment) Bill,

otherwise referred to as the National Assembly Bill No. 31 of 2013, as amended by the Senate together with a Message requesting the concurrence of the National Assembly.

Hon. Senators, I wish to report to the Senate that pursuant to Standing Order No.40(3), the Clerk has delivered to me correspondence from the National Assembly regarding the approval by the National Assembly of all amendments by the Senate to the Public Service Values and Principles Bill and the Public Procurement and Assets Disposal (Amendment) Bill respectively. The Bills with the Senate amendments incorporated will be finalized and forwarded to His Excellency the President for assent.

Thank you.

Hon. Senators, this is a Message from the National Assembly on the rejection by the Assembly of some of the Senate amendments to the Environmental Management and Coordination (Amendment) Bill otherwise referred to as the National Assembly Bill No. 31 of 2014.

I wish to report to the Senate that pursuant to Standing Order No. 40 (3) and (4) , I have received the following Message from the Speaker of the National Assembly regarding the rejection by the Assembly of some of the Senate amendments to the Environmental Management and Coordination (Amendment) Bill otherwise referred to as the National Assembly Bill No. 31 of 2014. Pursuant to the provisions of Standing Orders No.41 and 142 of the National Assembly Standing Orders, I hereby convey the following Message from the National Assembly.

Whereas the Environmental Management Coordination (Amendment) Bill otherwise referred to as the National Assembly Bill No. 31 of 2014, a Bill concerning county Governments was published vide the Kenya Gazette Supplement No.114 of 25th July, 2014, and thereafter considered and passed by the National Assembly on 4th December, 2014.

Whereas the Senate amendments to the said Bill were received on 15th April, 2015 for consideration by the National Assembly, and whereas by a resolution, the National Assembly on Tuesday 23rd April, 2015 rejected the Senate’s amendments on Clauses 10, 20, 23 and 25 of the said Bill.

Now therefore, in accordance with the provisions of Article 112 (1) (a) , of the Constitution and Standing Order No.142 of the National Assembly Standing Orders, I hereby convey the said decision of the National Assembly, the consequence of which the Bill stands referred to a mediation committee.

Hon. Senators, Article 112 (1) (b) of the Constitution provides:- “If one House passes an ordinary Bill concerning counties, and the second House passes the Bill in an amended form, it shall be referred back to the originating House for reconsideration.”

Further, Article 112 (2) (b) of the Constitution provides that:-

“If, after the originating House has reconsidered a Bill referred back to it under Clause

On a point of order, Mr. Temporary Speaker, Sir. I thank you for allowing me to rise on a point of order on a matter that is very sensitive regarding the debate of yesterday on the Motion of Adjournment concerning security in this country.

Give me a minute to know why the Chairman is not disposing of his statement.

Mr. Temporary Speaker, Sir, before I respond to the statement, I request that you grant me your indulgence. There are some two papers that I am supposed to lay on the Table of the House. However, there were some delays caused by the secretariat. I now have the papers.

Permission granted but do not make it a habit.

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

The Draft Kenya Information and Communications Registration of Sim Cards Regulation, 2015.

Go on with your statement.

Mr. Temporary Speaker, Sir, I appreciate the fact that we undertook to respond to this statement today. However, we had challenges receiving a response from the relevant Government Ministry and that is the Attorney General’s Office.

The Chairman of the Committee, Sen. Amos Wako, undertook to follow it up in person but he is not in. Would I be in order to request that we do all that we can to ensure that we respond by Tuesday next week?

Where is the questioner? I see no objection. Let it be done.

Thank you, Mr. Temporary Speaker, Sir. I stand on a point of order regarding the Adjournment Motion that was discussed yesterday and with specific reference to contributions made by Dr. Khalwale on the insecurity situation in our institutions. I am appalled by the abuse of the Parliamentary privileges and immunities. I also think that the statements---

Could you quote the Standing Order on which you are standing?

I stand on Standing Order No.94. I will read it if you allow me.

“A Senator shall be responsible for the accuracy of any facts that the Senator alleges to be true and may be required to substantiate any such facts instantly.”

Looking at the HANSARD, Senator Khalwale is expected to substantiate today those matters. I want to point out the issues that are laid here which he spoke about. I also want to specifically express how touched we are because of the reckless and irresponsible statements that we can clearly read here.

Order! Let me caution you. If you have to discuss the character of a Senator, then you must rise on a substantive Motion.

Mr. Temporary Speaker, Sir, I am not discussing the character. I was talking about the statements. I am not discussing him individually. I am saying that such statements can be reckless.

On a point of order, Mr. Temporary Speaker, Sir. I am wondering whether my friend, Sen. Hassan, is in order to speak on a matter that was raised by a Senator who is not in the House currently. If need be, he would be required to respond.

On a point of order, Mr. Temporary Speaker, Sir. The Senate Deputy Minority Leader rose under Standing Order No.94 which says:-

“A Senator shall be responsible for the accuracy of any facts that the Senator alleges to be true and may be required to substantiate any such facts instantly.”

If I may recall, while Sen. (Dr.) Khalwale was on the Floor, he was challenged about the same issues that the Senate Deputy Minority Leader raised and I think that he made a promise to come to the House and substantiate the issues that he had raised. Will I be in order to request that the Senate Deputy Minority Leader holds his horses until the Senator for Kakamega makes his substantiation before we can raise any issues on this matter?

Mr. Temporary Speaker, Sir, you are mandated to deal with some issues under Standing Order No.1, and this is in addition to what my colleague, Sen. Hassan, said. I think that it is about a matter that was debated in the House, which is of public interest and touches some of us very much, that we want to discuss it as a matter of urgency. It is not about the character of the said Senator, whether he is in or not. The issue is about a community, society and individual Senators. We need to have an opportunity and you have the powers, under Standing Order No.1, to allow us to express our comments and let Members contribute to it if they deem fit.

Thank you, Mr. Temporary Speaker, Sir.

Order, Senator! The rule of justice must prevail in the House. It is only fair that we give a few more minutes to see whether Sen. (Dr.) Khalwale will avail himself to reply to the request of substantiation that was raised yesterday. You have quoted Standing Order No. 94. I will refer you to Standing Order No. 94 (2) . I can only make a decision after hearing the sort of substantiation that will be laid before this House by the so named Senator. I am tied by the rules of this House. I will not jump to Standing Order No.1 as yet, which gives me the latitude to make certain decisions. I think that it will be fair for Sen. Abdirahman to wait a little for Sen. Khalwale to listen to the Standing Order that applies directly on his

allegations. Otherwise, Sen. (Dr.) Khalwale may come and not respond to his request and that will be another issue in the House. Please hold on.

Mr. Temporary Speaker, Sir, I respect your ruling on this matter, but the substantiation that he is expected to bring only deals with half of it. We must express our thoughts on this matter.

I understand your feelings on this matter. I am equally disturbed---

Mr. Temporary Speaker, Sir, we should be given time to ---

Order, Sen. Abdirahman! I

Mr. Temporary Speaker, Sir, I accept. I will hold my horses.

Mr. Temporary Speaker, Sir, I accept your ruling, but it is about the conduct of business in the House. This is a House that is watched by all Kenyans. The statements that we make in this House can have a significant impact on the lives of the people of this country. So, when statements have been made and this House does not challenge them and it goes on the record of this House, the HANSARD, I think that it is incumbent upon us, as the leaders of this country, to raise these issues and discuss them. I agree with Sen. Hassan that it is not about the specific information that he has to substantiate within 48 hours, which he can bring later. I think that it is important to look at some of the things that are in the HANSARD which ought not to have been allowed by the Speaker of this House at the time the debate was going on.

Order, Sen. Billow! As you concluded your Standing Order request, you moved into an area that you should not; doubting the judgment and decision of the Speaker of this House. You know the rules because you are a seasoned politician and Member of Parliament. If you do not accept what the Speaker has ruled in this House, there are procedures. So, I rule you out of order for that. However, I have listened to your other feelings.

I know what Sen. Khalwale said yesterday. It is the property of this House and it is in the HANSARD. However, it is just fair that I give a few more minutes to see whether Sen. (Dr.) Khalwale will be in the House. If he does not appear, I will make a decision. It may be pro or against you or demand that he appears by force in this House at a later date.

Is there any other matter? Please, proceed, Sen. (Prof.) Lonyangapuo.

Mr. Temporary Speaker, Sir, I think you have ruled well. We were here yesterday and some of our colleagues were not here. They might not have read the HANSARD to the last point. It is best that we wait for Sen. (Dr.) Khalwale to come because the Chair ordered yesterday that he substantiates.

Are there any other Statements or requests for Statements?

Please, proceed, Sen. (Prof.) Lesan.

April 29, 2015 SENATE DEBATES SEIZURE OF KENYAN IVORY IN THAILAND

Thank you, Mr. Temporary Speaker, Sir. Pursuant to Standing Order No. 45 (2) (b) , I wish to seek a Statement from the Chairperson of the Committee on Agriculture, Livestock and Fisheries regarding the recent seizure, by Thai customs officials, of 511 pieces of elephant ivory in a consignment disguised as tea leaves from Kenya on 28th April, 2015. In the Statement, the Chairman should address the following issues:-

Mr. Temporary Speaker, Sir, we seek indulgence to reply within two weeks.

So it will be. Next order, please.

Hon. Senators, to my recollection, there is supposed to be a division on this Motion. Could the whips advise if we are adequate for that purpose? Could the Chairperson approach the Chair?

Let the Division Bell be rung for two minutes.

Order, Sen. Bule! Could you go back to the Bar and bow? I will allow you to go back, cross and bow.

Very well, you can now decide where you want to go. I will therefore put the Question. Can you draw the bar and close the doors? You can now log in. You have 15 seconds to log in.

Vote now. For those who need assistance, please, come forward.

Order, Hon. Senators! When the Speaker is on his feet, you shut up. I would like to announce the results of the Division.

April 29, 2015 SENATE DEBATES NOES: NIL ABSTENTIONS: NIL

Open the doors and draw the Bar.

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

Order! Order, Sen. Hassan!

Hon. Senators, I request that you do not go out. We were 24 in the last Division. If anybody, even one Member, goes away, we will be in trouble. So, pass that message to the other Members at the lounge.

- THAT, Clause 5 of the Bill be amended in paragraph (e) by-

The Temporary Chairperson (Sen. (Dr.) Machage): If that is the only reason, very well. I now propose the question since I see no other intervention.

(Question of the amendment proposed) (Question, that clauses 6 and 7 be part of the Bill proposed) The Temporary Chairperson (Sen. (Dr.) Machage): What is it Sen. Adan? Could you say it loudly?

Mr. Temporary Chairman, I am sorry to take you back. The Committee also wishes to introduce a requirement for NACADA to publish annually in at least---

The Temporary Chairperson (Sen. (Dr.) Machage) : Order, Sen. Adan. When I told you to say a little bit more on Clause 5, you should have said it at that time. The rules of the House dictate that I rule you out of order. You have been overtaken by events. Therefore, keep quiet and never talk about it again. Clause 8

If that is the only reason, very well. I now propose the question since I see no other intervention.(Question of the amendment proposed) (Question, that clauses 6 and 7 be part of the Bill proposed) The Temporary Chairperson (

Mr. Temporary Chairman, one of the reasons why I want this clause amended is to improve industrialisation and backward linkages in the alcoholic industry. We need to promote the use of local raw materials in the manufacture of alcohol.

Mr. Temporary Chairman, you know that if alcohol is not properly manufactured, it can be a poisonous substance. Therefore, it is important that scientific research be done so that when local raw material is incorporated in the manufacture of alcohol, it meets proper hygienic and international standards.

The Temporary Chairperson

(Sen. (Dr.) Machage)

: I see no intervention. I will then propose the question.

(Question, that Clauses 9, 10, 11, 12, 13, 14 and 15

be part of the Bill proposed)

What is it Sen. Adan? Could you say it loudly?

Mr. Temporary Chairman, I am sorry to take you back. The Committee also wishes to introduce a requirement for NACADA to publish annually in at least--- The Temporary Chairperson (

- THAT, Clause 16 of the Bill be amended –

Mr. Temporary Chairman, I want to comment on No. 3 which states;

“The County Committee shall not grant a licence for the sale of an alcoholic drink to be consumed on the premises unless the applicant has taken measures to sound-proof the premises.”

Mr. Temporary Chairman, the bar owners need to be given adequate time to put the sound-proof. In addition to that, some modern buildings are made of glass. So, it will

- THAT, clause 8 of the Bill be amended by –

Mr. Temporary Chairman, one of the reasons why I want this clause amended is to improve industrialisation and backward linkages in the alcoholic industry. We need to promote the use of local raw materials in the manufacture of alcohol. Mr. Temporary Chairman, you know that if alcohol is not properly manufactured, it can be a poisonous substance. Therefore, it is important that scientific research be done so that when local raw material is incorporated in the manufacture of alcohol, it meets proper hygienic and international standards. The Temporary Chairperson (

Mr. Temporary Chairman, with all due respect to my colleague, it is very important at the initial stage that we have sound-proof walls in all pubs. I will give a very good example of where I live right now. We have a neighbour who has a restaurant. Every weekend, they play music. Therefore, you cannot license an institution much later after it has started operating. I propose that that condition be immediate before a licence is given.

Thank you, Mr. Temporary Chairman. The Temporary Chairperson (Sen. (Dr.) Machage) : Very well. I wish you had put that in your amendments so that it is part of the law. Again, that escaped your attention anyhow.

Any other intervention?

I see no intervention. I will then propose the question. (Question of the amendment proposed) (Question, that Clauses 9, 10, 11, 12, 13, 14 and 15 be part of the Bill proposed)

The Temporary Chairperson (

Mr. Temporary Chairperson, Sir, I would like to talk about 3 (a) where the bar owner is supposed to specify the maximum number of people to be admitted in the premises at any given time. It is difficult to count people because when you are a bar owner running a bar, people keep coming in and out. This is going to be a challenge to the bar owners.

Mr. Temporary Chairperson, Sir, my sentiments are similar to the Senator who has just spoken. The way our system runs vis-à-vis business people with drinking places and the police is such that if we insert a clause where it licenses a particular number of people, it is a very good avenue for police to harass the bar owners because all they need to do is to come and accuse you of having exceeded the licensed number and before they take you to court, there will be a lot of harassment. On that basis, I oppose and request the Chair to reconsider that portion of the amendment.

- THAT, Clause 16 of the Bill be amended –

Mr. Temporary Chairman, I want to comment on No. 3 which states;

“The County Committee shall not grant a licence for the sale of an alcoholic drink to be consumed on the premises unless the applicant has taken measures to sound-proof the premises.”

Mr. Temporary Chairman, the bar owners need to be given adequate time to put the sound-proof. In addition to that, some modern buildings are made of glass. So, it will

Mr. Temporary Chairperson, Sir, I think when we were doing the public hearings, the feeling of NACADA was that, for example, if you look at our chamber, it has a certain capacity and cannot hold more than what it should hold. Similarly every bar has some capacity.

The Temporary Chairperson (Sen. (Dr.) Machage) : Order, Senator! I would really request you to desist from comparing this institution to a bar.

Mr. Temporary Speaker, Sir, let me use the example of a classroom which has a certain capacity that it cannot exceed. Even if the police raid such a drinking place and accuse you of having more people than the licensed ones, they should be allowed to count. I am sure then, there would be no corruption.

The Temporary Chairperson (Sen. (Dr.) Machage) : You attempted to explain but the comparison between a bar and a classroom are two worlds apart because classrooms have a fixed number of students that have been registered for the whole year and the number can never increase, whereas I respect your views on this issue.

Mr. Temporary Chairperson, Sir, with all due respect to all my colleagues, it was the feeling of the Committee that we need to bring in this clause. I wish to confirm that when we had this discussion, the Senate Minority Leader also contributed to this particular clause.

Nevertheless, the feeling of the Committee Members was that this should be done because of security and to avoid overcrowding in the pubs, especially in the rural areas.

The Temporary Chairperson (Sen. (Dr.) Machage) : It is really interesting to perceive that feeling of the Committee when some Members of the Committee are in this House opposing the same. All the same, maybe it is a matter of the definition of “feeling”.

Thank you, Mr. Temporary Chairperson, Sir. I would like to plead with the able Vice-Chair that what we are just about to introduce will be very cumbersome to implement. This is because you will appreciate that the poor bar owner out there will not have a mechanism to send away people from his place. But the patrons themselves will be able to notice that there is not enough space for them to sit and look for other bars. Let us not introduce this amendment because it will be cumbersome and cause disputes in social places. It is not necessary.

The Temporary Chairperson (Sen. (Dr.) Machage) : The Vice-Chair has the discretion to either withdraw the amendment or wait for the execution of the same in whichever manner the Members will decide.

What is your decision?

Mr. Temporary Chairperson, Sir, mine is to present the views of the Committee. So, it is up to Members to either vote for or against them.

The Temporary Chairperson

(Sen. (Dr.) Machage)

: Very well.

Very well. I wish you had put that in your amendments so that it is part of the law. Again, that escaped your attention anyhow. Any other intervention?

Clause 24

- THAT clause 24 of the Bill be deleted and substituted with the following new clause-

It is not the Committee that will consider it. It is you to vote it out when the time comes if you think it is not fair. You have the mandate with your vote to cast it out.

Most guided, Mr. Temporary Chairman. The Temporary Chairperson (

- THAT clause 28 of the Bill be amended by deleting paragraph (b) and substituting therefor the following new paragraph-

Mr. Temporary Chairperson, Sir, I am just wondering about that kind of an amendment. We are talking small-scale traders and not East African Breweries Limited or Keroche Industries. How will the provision of this amendment be effected? If you want chang’aa to be bottled and packaged expensively, we will not change anything. I think that this is not tenable. The Vice-Chair should reconsider this amendment. The

Mr. Temporary Chairperson, Sir, I propose that Clause 20 be deleted and substituted with the following new Clause:

Mr. Temporary Chairperson, Sir, I would like to talk about 3 (a) where the bar owner is supposed to specify the maximum number of people to be admitted in the premises at any given time. It is difficult to count people because when you are a bar owner running a bar, people keep coming in and out. This is going to be a challenge to the bar owners.

Mr. Temporary Chairperson, Sir, my sentiments are similar to the Senator who has just spoken. The way our system runs vis-à-vis business people with drinking places and the police is such that if we insert a clause where it licenses a particular number of people, it is a very good avenue for police to harass the bar owners because all they need to do is to come and accuse you of having exceeded the licensed number and before they take you to court, there will be a lot of harassment. On that basis, I oppose and request the Chair to reconsider that portion of the amendment.

Mr. Chairperson, Sir, on the same clause 3 (C) where they mention that a person who contravenes sub-clause 3 (B) commits an offence, this is a very ambiguous. As my colleague has said, if a policeman sees a clause like this, they will want to harass those small businessmen. I think the Act should be something simple and clear. I oppose. The Senate Minority Leader (

- THAT, Clause 29 of the Bill be amended by--- The Temporary Chairperson (Sen. (Dr.) Machage) : Do you want to amend Clause 29 or Clause 39?

- THAT clause 29 of the Bill be amended –

- THAT, Clause 30 of the Bill be deleted. The justification according to the Committee is that this area is already adequately regulated under the Traffic Act.

The Temporary Chairperson

(Sen. (Dr.) Machage)

: I see no other intervention.

The Temporary Chairperson (Sen. (Dr.) Machage) : Sen. Murkomen and others, we will be voting for this Bill, if your request to me meant that you are going away, may I appeal that you come back.

Continue. Clause 31

Mr. Temporary Speaker, Sir, let me use the example of a classroom which has a certain capacity that it cannot exceed. Even if the police raid such a drinking place and accuse you of having more people than the licensed ones, they should be allowed to count. I am sure then, there would be no corruption. The Temporary Chairperson (

Mr. Temporary Chairman, Sir, we felt that as a Committee, prohibiting the sale of alcohol two days before the election will impapct negatively on the businesses. We felt that this should be removed.

You attempted to explain but the comparison between a bar and a classroom are two worlds apart because classrooms have a fixed number of students that have been registered for the whole year and the number can never increase, whereas I respect your views on this issue.

Mr. Temporary Chairperson, Sir, with all due respect to all my colleagues, it was the feeling of the Committee that we need to bring in this clause. I wish to confirm that when we had this discussion, the Senate Minority Leader also contributed to this particular clause. Nevertheless, the feeling of the Committee Members was that this should be done because of security and to avoid overcrowding in the pubs, especially in the rural areas. The Temporary Chairperson (

Mr. Temporary Chairman, Sir, I am surprised. Are we talking about the security of the nation during election time or we are thinking about business? I think the Committee went there to sit and make very irrational decisions---

The Temporary Chairperson (Sen. (Dr.) Machage) : Order! You have your own discretion to either agree with the Committee or oppose it.

It is really interesting to perceive that feeling of the Committee when some Members of the Committee are in this House opposing the same. All the same, maybe it is a matter of the definition of “feeling”.

Thank you, Mr. Temporary Chairperson, Sir. I would like to plead with the able Vice-Chair that what we are just about to introduce will be very cumbersome to implement. This is because you will appreciate that the poor bar owner out there will not have a mechanism to send away people from his place. But the patrons themselves will be able to notice that there is not enough space for them to sit and look for other bars. Let us not introduce this amendment because it will be cumbersome and cause disputes in social places. It is not necessary. The Temporary Chairperson (

- THAT, Clause 32 be amended in subparagraph

(ii)

of paragraph

(a)

by deleting the words “ in the Fourth Schedule” or appearing immediately after the words “therefor the words” The justification by the Committee is that we cannot list all prohibited substances in the Fourth Schedule, a better approach will be to require the Cabinet Secretary to list such substances through regulations.

Clause 33

The Vice-Chair has the discretion to either withdraw the amendment or wait for the execution of the same in whichever manner the Members will decide. What is your decision?

- THAT, Clause 33 be amended in the proposed new subsection (1A) –

(Question of the amendment proposed)

Mr. Temporary Chairman, Sir, I want to ask the Chairperson to reconsider---

Mr. Temporary Chairman, Sir, when you think about it and weigh with the experience that you have, children from Catholic families, for example---

The Temporary Chairperson (Sen. (Dr.) Machage) : Did you refer to me?

- THAT clause 24 of the Bill be deleted and substituted with the following new clause-

- THAT clause 28 of the Bill be amended by deleting paragraph (b) and substituting therefor the following new paragraph-

Mr. Temporary Chairperson, Sir, I am just wondering about that kind of an amendment. We are talking small-scale traders and not East African Breweries Limited or Keroche Industries. How will the provision of this amendment be effected? If you want chang’aa to be bottled and packaged expensively, we will not change anything. I think that this is not tenable. The Vice-Chair should reconsider this amendment. The

Committee may not have considered widely who the people involved in this kind of business are. If you ask the East African Breweries Limited to manufacture bottles, they will do that. But if you ask the villagers in Nyamira who prepare chang’aa to get bottles that cost around Kshs5,000, they will not afford that. Where will they get these expensive bottles?

Proceed,

Mr. Temporary Chairman, Sir, allow me to persuade the distinguished lady, Sen. Mugo. She has a point, but this may affect local television stations and radios. We have international subscription televisions. Take for example, the English Premier League, the Bundesliga, La Liga or Serie A. They are sponsored by alcohol manufacturing companies. At every interval when Manchester United is playing against Arsenal or Chelsea is playing against Liverpool, Heineken is the sponsor. These football matches are on international subscription channels, which we may not be able to control. We must pass a law that enforces what we want to do. I can assure you that advertisements are only good if they have the positive and negative effects of what you are advertising other than just saying “do not advertise.”

Tusker FC! The Senate Minority Leader (Sen. Wetangula) :

What about Tusker FC?

You decline me? The Temporary Chairperson (Sen. (Dr.) Machage) : Yes, mama.

- THAT, Clause 29 of the Bill be amended by--- The Temporary Chairperson (

Do you want to amend Clause 29 or Clause 39?

Clause 35

- THAT, Clause 35 of the Bill be deleted. The justification according to the committee is that this is in line with the principle of reducing the public wage bill. Clause 35 seeks to amend the Act so as to establish the Alcohol Drinks Promotion Regulation Committee. We are proposing to remove that.

Clause 36

Very well.

- THAT, Clause 36 of the Bill be amended by inserting the following new paragraph immediately after paragraph (b) -

- THAT clause 29 of the Bill be amended –

- THAT, Clause 30 of the Bill be deleted. The justification according to the Committee is that this area is already adequately regulated under the Traffic Act. (Question of the amendment proposed) The Temporary Chairperson (

On a point of order, Mr. Temporary Speaker, Sir. Did you notice that when you came in and bowed, it is only Members on this side that bowed? On that side, it is only Sen. (Dr.) Khalwale who bowed. Everybody else just ignored you. Is that in order?

I never saw that, hon. Senator. If at all that happened, then that is a very serious matter. Did the Senate Minority Leader also behave in the same way?

Sen. Murkomen and others, we will be voting for this Bill, if your request to me meant that you are going away, may I appeal that you come back. Continue. Clause 31

- THAT, Clause 31 of the Bill be amended in the proposed new subsection by deleting paragraphs (a) and (b) . The Temporary Chairperson (

On a point of order, Mr. Temporary Speaker, Sir. Normally when there is any discrepancy in the House, the HANSARD is revisited. May I request that the HANSARD be revisited, to show that actually all of us bowed.

Sen. (Dr.) Machage, you are completely out of order.

The Senate Minority Leader (Sen. Wetangula) : Mr. Temporary Speaker, Sir, the Chairperson has gone through Order No. 9 (i) and we have sought leave to report progress. We still have Order No. 9 (ii) and (iii) . We seem to be leaving Order No.9 to go to No.10. I have gone through the Standing Orders and there is none that prohibits this House from seeking leave to report progress on a sub-order of an order and moving on to another sub-order from (i) to (ii) . This House is guided by the Standing Orders. Standing Order No.1 (2) says:-

“The decision made in paragraph (1) shall be based on the Constitution of Kenya, statute law and the usages, forms, precedents, customs, procedures and traditions of the Parliament of Kenya and other jurisdictions to the extent that these are applicable to Kenya.”

Mr. Temporary Speaker, Sir, I have consulted the Clerks-at-the-Table and they say that there is no precedent to this kind of procedure. However, precedents are so because they are set. We should start by setting new precedence in our procedure. Precedents are not so because they are old. You can always set a new one. I urge that we set a new precedence; not by going to the next Order, but by going back to Committee stage.

I can see Sen. (Eng.) Muriuki and Sen. (Prof.) Anyang’-Nyong’o are here. We can go through their Bills in the Committee and then either seek leave to report progress, as the case may be, or stay them for the vote tomorrow or next Wednesday. This is so that we can be systematic and productive in an orderly manner.

I beg to move the Chair that we go back to the Committee stage, so that we can deal with suborder Nos. (ii) and (iii) in Order No. 9.

Piga makofi.

Mr. Temporary Chairman, Sir, we felt that as a Committee, prohibiting the sale of alcohol two days before the election will impapct negatively on the businesses. We felt that this should be removed.

(Question of the amendment proposed)

Mr. Temporary Chairman, Sir, I am surprised. Are we talking about the security of the nation during election time or we are thinking about business? I think the Committee went there to sit and make very irrational decisions--- The Temporary Chairperson (

Mr. Temporary Speaker, Sir, I have no objection. I agree with the Chairperson.

Order! You have your own discretion to either agree with the Committee or oppose it.

Mr. Temporary Chairman, Sir, the initial law which spoke of two days of not selling alcohol cannot impact heavily on the cost to be incurred in security matters if people are drunk during the election period. People should be sober and keen to go and do their dutiful role in elections. So, I find that not very much tenable. Two days is not a very long period if people have businesses to run. I will be opposing that at the appropriate time if the Chair cannot reconsider. The Temporary Chairperson (

What is your point of order, Sen. (Dr.) Machage?

It is not for the Chair to consider but the number of votes. I see no other intervention---

Mr. Temporary Chairman, Sir, I want to differ with my friend and neighbour, I think what the Committee has recommended is correct. We cannot make the assumption that Kenyans are irresponsible and that they cannot determine how much alcohol they take and when. Therefore, for that reason, I do not think that it is necessary to close businesses and affect livelihoods of people just because we are facing elections in two days time. The Temporary Chairperson (

Very well, I see no other intervention. Clause 32

- THAT, Clause 32 be amended in subparagraph

(ii)

of paragraph

(a)

by deleting the words “ in the Fourth Schedule” or appearing immediately after the words “therefor the words” The justification by the Committee is that we cannot list all prohibited substances in the Fourth Schedule, a better approach will be to require the Cabinet Secretary to list such substances through regulations.

Clause 33

On a point of order, Mr. Temporary Speaker, Sir. Before we move on to the next Order, I rise to respond to the directive by the Speaker yesterday that I substantiate allegations that I had made in the House.

I would like to bring to the attention of the House that upon being directed, I took the following---

(Question of the amendment proposed)

I just want to remind you the Bill has been moved, seconded and we even put the Question. Automatically, it means that the Committee of the Whole, must have been disposed of. As long as the Chair has reported, it was seconded and the Question put. Therefore, we should move to Order No.10.

On a point of order, Mr. Temporary Speaker, Sir. We, sitting here, would not like to be oppressed by the Chair. If the Chair was reporting, she reported that we are dealing with Order No.9 (i) . We did not touch Order No.9 (ii) . We participated effectively in disposing of Order No.9 (i) and we were waiting to move on to (ii) and (iii) . Now to tell us that you have reported on Order No.9 (i) . Therefore, others have been reported on, mutatis mutandis, that should follow logic.

On a point of order, Mr. Temporary Speaker, Sir. We also need clarity on Order No. 9 (ii) and (iii) . What happens to these items since the Movers are different?

On a point of order, Mr. Temporary Speaker, Sir. Would I be in order just to remind you that all you did not do was to defer part (ii) and (iii) to a different day? Otherwise, we are happy with your ruling.

The Senate Leader of Minority (Sen. Wetangula) : On a point of order, Mr. Temporary Speaker, Sir. For avoidance of doubt, Order No.9 has three limbs; we have dealt with only one limb. The progress reported was only in relation to the first limb. Therefore, we cannot say that Sen. Adan and the Chair reported progress on the whole of Order No.9. I have the impression that the Chair got my point of order when I rose for the first time. Indeed, you ruled that after reporting progress on 9 (i) , we are going to go back

Did you refer to me?

on 9(ii) and (iii). Immediately we finished, we heard the Clerk read out Order No.10. We are saying that it is within your absolute discretion to order the rescind of the reading of Order No.10 and we go back to Order No.9(ii) and (iii).

Mr. Temporary Speaker, Sir, I want to urge you to realise the difficulties we have been having in raising enough Members in this House. So, every time we have Members in the House, particularly the sponsors of the Bills, we do as much as we possibly can and wait for the vote when we have sufficient delegations. I urge you to rescind the calling of Order No.10, we go back to Order No. 9(ii) and (iii) so that we wait for the vote when we have delegations tomorrow or next week.

We know that children from permissive families; when we were in school, few of them became alcoholics. However, the ones who are protected, the moment they discover alcohol, they tend to abuse it. You are a doctor and you know that I am speaking nothing, but facts. In fact, what we should be doing is to have more of those advertisements so that during those advertisements, we demystify alcohol. We could also emphasize during the advertisement that it is meant for adults over 18 years and that drinking is harmful to your health. But if you just lock it out, it is a mystery which our youth must experiment and thanks to internet, you are not helping it in any way. This is an unnecessary amendment.

Mr. Temporary Chairman, Sir, I support the amendment. We all know how powerful television or any media, especially electronic is. Whatever is advertised makes one who is watching it, want to have whatever that is and try it. I do not agree that that can deter. I do not know whether you read the newspapers the other day; it is a pity that school children were arrested because they were in a party drinking. They bought alcohol. When their parents came home, they found them all drunk. The neighbours called the police, who arrested the children. They were all under 20 years of age; they were 15 or 16 years old. Knowing how powerful advertising is, we will be exposing the children to something before they are mentally capable of judging for themselves. That is why even smoking was banned because they showed university graduands smoking in campus before they graduated and they looked as if they were wangwana; how good it is. We should protect our children. I do not know if we should think that when you protect children from alcohol it is a draconian law. It is just jealously guarding our children. The World Health Organisation (WHO) has a platform on advertisement of alcohol and cigarettes. If WHO is doing it, they are not doing it for the developing world. They do it, for all children of the world. Let us protect the children and not expose them to bad habits. (

Order, Senators. You have already contributed on this. The Senate Minority Leader (

On a point of order Mr. Temporary Speaker, Sir. Allow me to be the devil’s advocate. I request the Senate Minority Leader to bear with me on this one. I am basing my argument under Standing Order No.39. When we went to the Committee of the Whole under Order No.9, we were there to do business (i) , (ii) and (iii) . We reported back progress on the fact that the business (i) , (ii) and (iii) we went to do, had found the road block that we all agreed took place. So, that brought an end to the business listed under Order No.9.

That notwithstanding, even if the argument of the Senate Minority Leader was to carry the day, it does not still take away from you, your powers under Standing Order 39 (2) , which I read:

“Business shall be disposed of in the sequence in which it appears in the Order Paper or in such other sequence as the Speaker may, for the convenience of the Senate, direct.”

If you think for the convenience of this Senate you are directing that we move to Order No.10, you are perfectly within the standing Orders.

Proceed,

Tusker FC! The Senate Minority Leader (

Control (Amendment) Bill (Senate Bill No.5 of 2014), we have reported progress on the Potato Produce and Marketing Bill (Senate Bill No. 22 of 2014) or on the Public Fundraising Bill(Senate Bill No. 28 of 2014).

This narrow approach to the procedures and Standing Orders of this House is actually going to curtail progress of business. We have to be liberal. Nothing is cast in stone. I can remind you that in the Seventh Parliament– Sen. (Prof.) Anyang’-Nyong’o can tell you – I was in the Speaker’s Panel and I made a ruling. After reflection, I realised I had made a ruling against the Standing Orders and the law. The next day, as the Speaker on the Panel, I came back to the House and rescinded the ruling I had made the previous day. Sen. (Prof.) Anyang’-Nyong’o is a witness to this.

Mr. Temporary Speaker, Sir, you may not have made a deliberate mistake. Human beings make mistakes. When you make a mistake, you own it up, retrace your steps and take the right directions.

Mr. Temporary Speaker, Sir, this House is run by the Chair with the Standing Orders, the Constitution and all enabling law. You are not flouting any Standing Order; you are not breaking any rule or law in rescinding the calling of Order No.10 and going back to Order No.9. The reporting of progress was only in relation to one of the Bills under Order No.9. Sen. Adan from the Committee on National Security and Foreign Relations could not have reported progress on a private Bill sponsored by Sen. (Eng.) Muriuki or Sen. (Prof.) Anyang’-Nyong’o. That was only in relation to Order No.9(i).

Mr. Temporary Speaker, Sir, I urge you to rescind the calling of Order No.10 and we go back to Order No.9. History will absolve you; I can assure you.

You decline me? The Temporary Chairperson (

Yes, mama.

There are no mamas in this House. There are hon. Senators. (Hon. Senators spoke off record) The Temporary Chairperson (

On a point of order, Mr. Temporary Speaker, Sir. You had given me the Floor in respect of the directive that came from the Chairperson yesterday that I substantiate my allegations yesterday to the effect that the Parliamentary Service Commission (PSC) has, in the last three years, been presiding over disproportionate hiring of members of staff in the PSC. Upon being directed, I proceeded under the provisions of Article 35 of the Constitution of Kenya---

Order! I am the Chair!

On a point of order, Mr. Temporary Speaker, Sir. This matter, as you rightly said, had been put off until tomorrow. It had been concluded that way. Is it, therefore, proper that the subject is discussed again today when you had already ruled on that?

Mr. Temporary Speaker, Sir, I am not reopening what you ruled out. I am merely using this point of order to table the letter lest somebody thinks that I was running away from that responsibility. I now table the letter and confirm that I still stand by my Statement of yesterday, and that upon being given the list by the Clerk, I will table it in this House.

- THAT, Clause 35 of the Bill be deleted. The justification according to the committee is that this is in line with the principle of reducing the public wage bill. Clause 35 seeks to amend the Act so as to establish the Alcohol Drinks Promotion Regulation Committee. We are proposing to remove that.

Clause 36

We can agree that Sen. (Dr.) Khalwale can table the letter and then the substantiation can be done tomorrow. That matter is closed.

Sen. Ndiema, do you want to contribute on Order No.10?

Mr. Temporary Chairman, Sir, what about Clause 40? The Temporary Chairperson (

Thank you, Mr. Temporary Speaker, Sir, for giving me this opportunity to contribute to the National Government Coordination (Amendment) Bill (Senate Bill No. 30 of 2014) whose main amendment is the introduction of a village elder for every village unit which is actually an extension of Section 15 of the main Act which seeks to add an extra office or structure under the National Government Coordination structure which is already up to the sub-location level.

Mr. Temporary Speaker, Sir, at the village level, we have many elders. Traditionally, chiefs have been consulting many elders. Coming up and selecting one of the elders or coming up with an elder at the village who will be an employee of the national Government will not add any value. It might create problems. We already have problems with the parallel systems. Counties are already developing their own structures; they have sub-county administers, ward administrators and village administrators. Each village unit has three to five elders.

Now parallel to that we have a system where we have a representative at the county level all the way down to the assistant chiefs. That is already duplication. That is why we have been saying that it is better the national system is structured to fit into the county system and give it more prominence. Now we are strengthening the national system.

Basically, I will not support adding the position of an elder because we have many elders. Chiefs have been consulting many elders. This might hinder the work of the chiefs. If you have one elder who is employed by the Government, what will enable the other elders to participate in maintenance of law and order for the national Government

We have to dispose of all the amendments before we move on to the new clauses. I order that the Division Bell be rung for two minutes. I want Senators to come in for voting. (The Division Bell was rung) The Temporary Chairperson (

and in identifying the development priorities in the county governments if you only have one elder who is an employee of the national Government. I would rather we leave the structure as it is and let the county governments form their own systems up to the village elders, but we keep the national Government at the sub-location level.

I oppose having this extra level of Government where we have an elder employed by the Public Service Commission (PSC). This can create problems at the village level.

Order, hon. Senators. The Whips should tell us whether we have quorum to vote.

Mr. Temporary Chairman, Sir, pursuant to Standing Order No.139, I beg to move that the Committee of the Whole reports Progress on its consideration of the Alcohol Drink Control (Amendment) Bill (Senate Bill No.5 of 2014) and seeks leave to sit again tomorrow.

On a point of order, Mr. Temporary Speaker, Sir. Did you notice that when you came in and bowed, it is only Members on this side that bowed? On that side, it is only Sen. (Dr.) Khalwale who bowed. Everybody else just ignored you. Is that in order?

I never saw that, hon. Senator. If at all that happened, then that is a very serious matter. Did the Senate Minority Leader also behave in the same way?

On a point of order, Mr. Temporary Speaker, Sir. I rise under Standing Order No.54 (3) which reads:-

“Despite paragraph (2) , the Speaker may, on the request of a Senator, defer the putting of the question to the following day in which case the Speaker shall thereupon nominate a time at which the question shall be put.”

On a point of order, Mr. Temporary Speaker, Sir. Normally when there is any discrepancy in the House, the HANSARD is revisited. May I request that the HANSARD be revisited, to show that actually all of us bowed.

Sen. (Dr.) Machage, you are completely out of order. The Senate Minority Leader (

Mr. Temporary Speaker, Sir, the Chairperson has gone through Order No. 9 (i) and we have sought leave to report progress. We still have Order No. 9 (ii) and (iii) . We seem to be leaving Order No.9 to go to No.10. I have gone through the Standing Orders and there is none that prohibits this House from seeking leave to report progress on a sub-order of an order and moving on to another sub-order from (i) to (ii) . This House is guided by the Standing Orders. Standing Order No.1 (2) says:- “The decision made in paragraph (1) shall be based on the Constitution of Kenya, statute law and the usages, forms, precedents, customs, procedures and traditions of the Parliament of Kenya and other jurisdictions to the extent that these are applicable to Kenya.” Mr. Temporary Speaker, Sir, I have consulted the Clerks-at-the-Table and they say that there is no precedent to this kind of procedure. However, precedents are so because they are set. We should start by setting new precedence in our procedure. Precedents are not so because they are old. You can always set a new one. I urge that we set a new precedence; not by going to the next Order, but by going back to Committee stage. I can see Sen. (Eng.) Muriuki and Sen. (Prof.) Anyang’-Nyong’o are here. We can go through their Bills in the Committee and then either seek leave to report progress, as the case may be, or stay them for the vote tomorrow or next Wednesday. This is so that we can be systematic and productive in an orderly manner. I beg to move the Chair that we go back to the Committee stage, so that we can deal with suborder Nos. (ii) and (iii) in Order No. 9. Piga makofi.

The Senate Minority Leader, thank you for at least what you wanted us to go through. However, I just want to remind you that we are not yet done with this Bill. We are just in the middle and the Chair of the Committee is in a position to Report on at least what has been disposed of. From there, we will continue.

The Chairman of the Committee, please, proceed to the Report.

April 29, 2015 SENATE DEBATES REPORT ALCOHOLIC DRINKS CONTROL (AMENDMENT) BILL (SENATE BILL NO.5 OF 2014)

Thank you, Mr. Temporary Speaker, Sir. I beg to report progress that the Committee of the Whole has considered the Alcoholic Drinks Control (Amendment) Bill (Senate Bill No.5 of 2014) and seeks leave to sIt again tomorrow.

Thank you, Mr. Temporary Speaker, Sir.

The Mover, please proceed.

Mr. Temporary Speaker, Sir, I have no objection. I agree with the Chairperson.

You are supposed to move. You had been given a paper to read.

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

What is your point of order, Sen. (Dr.) Machage?

Mr. Temporary Speaker, Sir, with all humility and respect to the Chair, you should have proposed the Question before you put the Question.

Sen. (Dr.) Machage, I proposed the Question. I did not put the Question. The Chair was wise. You have not misadvised me. Since there are no contributors, I will put the Question. (Question put and agreed to) Next Order! The Senate Minority Leader (

On a point of order, Mr. Temporary Speaker, Sir. I am at a loss on how we are proceeding. I got the impression from the ruling of the Chair that the distinguished Senator, Sen. Adan, was going to report progress, seek leave to sit again then we go back to the Committee. That is why I raised my point of order that we go to Order No.9 (ii) and (iii) . However, we have now moved on to Order No.10. Your ruling was very clear and I agreed with you that we are reporting progress on (i) then we go back in the Committee of the Whole on (ii) and (iii) . I believe that is how the distinguished Senators understood you. We have now moved on to Order No.10 and abandoned Order No.9 despite your ruling. We encourage you to rescind the calling

of Order No.10 and go back to Order No.9 (ii) and (iii). The Chair has an absolute discretion to do that.

Since the Chair of the Committee of the Whole has already reported and put the Question, it is just in order to move on to Order No.10.

On a point of order, Mr. Temporary Speaker, Sir. Before we move on to the next Order, I rise to respond to the directive by the Speaker yesterday that I substantiate allegations that I had made in the House.

I would like to bring to the attention of the House that upon being directed, I took the following---

On a point of order, Mr. Temporary Speaker, Sir. Much as we are all waiting to hear what Sen. (Dr.) Khalwale would say, there was a pending matter. There is a substantive issue raised by the Senate Minority Leader. He said that we were in the Committee of the Whole and because the Standing Orders are not expressly clear, the challenge was that we should move from (i) to (ii) . Therefore, your decision here will be important as to whether we can succeed or not. My view is that we should move to (ii) and proceed.

On a point of order, Mr. Temporary Speaker, Sir. This document is called the Order Paper and obviously there must have been some order in putting (i) to (iii) . If we come to this House then ignore our Order, it does not make sense. I was just appealing that let us logically follow our Order and other Orders will follow later.

I just want to remind you the Bill has been moved, seconded and we even put the Question. Automatically, it means that the Committee of the Whole, must have been disposed of. As long as the Chair has reported, it was seconded and the Question put. Therefore, we should move to Order No.10.

On a point of order, Mr. Temporary Speaker, Sir. We, sitting here, would not like to be oppressed by the Chair. If the Chair was reporting, she reported that we are dealing with Order No.9 (i) . We did not touch Order No.9 (ii) . We participated effectively in disposing of Order No.9 (i) and we were waiting to move on to (ii) and (iii) . Now to tell us that you have reported on Order No.9 (i) . Therefore, others have been reported on, mutatis mutandis, that should follow logic.

On a point of order, Mr. Temporary Speaker, Sir. We also need clarity on Order No. 9 (ii) and (iii) . What happens to these items since the Movers are different?

On a point of order, Mr. Temporary Speaker, Sir. Would I be in order just to remind you that all you did not do was to defer part (ii) and (iii) to a different day? Otherwise, we are happy with your ruling. The Senate Leader of Minority (

On a point of order, Mr. Temporary Speaker, Sir. For avoidance of doubt, Order No.9 has three limbs; we have dealt with only one limb. The progress reported was only in relation to the first limb. Therefore, we cannot say that Sen. Adan and the Chair reported progress on the whole of Order No.9. I have the impression that the Chair got my point of order when I rose for the first time. Indeed, you ruled that after reporting progress on 9 (i) , we are going to go back

on 9(ii) and (iii). Immediately we finished, we heard the Clerk read out Order No.10. We are saying that it is within your absolute discretion to order the rescind of the reading of Order No.10 and we go back to Order No.9(ii) and (iii).

Mr. Temporary Speaker, Sir, I want to urge you to realise the difficulties we have been having in raising enough Members in this House. So, every time we have Members in the House, particularly the sponsors of the Bills, we do as much as we possibly can and wait for the vote when we have sufficient delegations. I urge you to rescind the calling of Order No.10, we go back to Order No. 9(ii) and (iii) so that we wait for the vote when we have delegations tomorrow or next week.

On a point of order, Mr. Temporary Speaker, Sir. On the same matter, this is a challenge for this House. I am hopping the very heavy consultations with the very experienced clerk will bear fruit in the direction we wish to go. I am seeing it as a very big challenge for this House because it is not the first time that we are having an order with sub-orders, especially during the Committee Stage. When you finish the process of a sub-order, you might call it “ (i) .” It is actually a pragmatic move so that we do not vote when we do not have the threshold to vote, for example.

We cannot use that to deny the House the chance of going to the second order because there is no opportunity of otherwise stopping it half way other than the Committee reporting progress. Unfortunately, we do not have a word like sub-progress. I would urge you that you use your discretion to, perhaps, rescind your earlier order to go to Order No.10, and go back to Order No. 9 (i) and (iii) in sequence, so that the voting itself can come another day. We can attempt to tackle these two.

Hon. Senators, you realise that at least for the Order No.9 (i) , we are not yet through with that one. That is why the Chair gave the progressive report. We cannot proceed to tackle (ii) if (i) is not entitely done. You know very well that we could not have done so. That is why we moved on and even put the question. The Senate Minority Leader (

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

It is quite clear now, the Senate Minority Leader. I know exactly what you are talking about, that, at least, since the Movers of the Bill are here, Sen. Prof. Anyang’-Nyong’o and the others, may be, it would have been right for us to go to (ii) and (iii) . Just understand that we are not yet done with

On a point of order, Mr. Temporary Speaker, Sir. I hope we are not becoming a House of Pharisees because, you remember, in the Bible, Pharisees are the people who used to interpret the law so legalistically that it became unreal. What I understand is that we only postponed the voting on (i) because pragmatically when we understand that we do not have numbers, we do not proceed to vote. That has been a tradition of this House and Sen. (Eng.) Karue has said it very well. The understanding was, we shall continue with (ii) and (iii) and we shall equally not vote so that next time we shall tackle Order No.9 to complete it.

I think the Clerk is giving you very bad information because he whispers in your ear, we do not know what he is talking about, but you seem to believe everything he says

and you do not believe us. It puts us in a very unequal relationship which is completely upsetting this House. I would rather we cease being Pharisees and do this thing pragmatically. We have agreed that we do not want to vote today on (i) and that is a pragmatic thing because we do not have the numbers. Equally, we have the numbers to continue debating (ii) and (iii) and leave voting alone. We can deal with the entire Order No.9 together when we have the numbers. It makes a lot of sense. The other logic that the Clerk is trying to give you, to me, is very pharisaic and will divide this House.

Thank you.

On a point of order Mr. Temporary Speaker, Sir. Allow me to be the devil’s advocate. I request the Senate Minority Leader to bear with me on this one. I am basing my argument under Standing Order No.39. When we went to the Committee of the Whole under Order No.9, we were there to do business (i) , (ii) and (iii) . We reported back progress on the fact that the business (i) , (ii) and (iii) we went to do, had found the road block that we all agreed took place. So, that brought an end to the business listed under Order No.9.

That notwithstanding, even if the argument of the Senate Minority Leader was to carry the day, it does not still take away from you, your powers under Standing Order 39 (2) , which I read:

“Business shall be disposed of in the sequence in which it appears in the Order Paper or in such other sequence as the Speaker may, for the convenience of the Senate, direct.”

If you think for the convenience of this Senate you are directing that we move to Order No.10, you are perfectly within the standing Orders.

On a point of order, Mr. Temporary Speaker, Sir. Actually, I was going to execute Order No.9 (ii) and I was ready. However, considering that the Committee of the Whole had concluded and even sought leave to sit tomorrow, is it in order for it to seek leave to sit again today?

It is not in order.

Control (Amendment) Bill (Senate Bill No.5 of 2014), we have reported progress on the Potato Produce and Marketing Bill (Senate Bill No. 22 of 2014) or on the Public Fundraising Bill(Senate Bill No. 28 of 2014).

This narrow approach to the procedures and Standing Orders of this House is actually going to curtail progress of business. We have to be liberal. Nothing is cast in stone. I can remind you that in the Seventh Parliament– Sen. (Prof.) Anyang’-Nyong’o can tell you – I was in the Speaker’s Panel and I made a ruling. After reflection, I realised I had made a ruling against the Standing Orders and the law. The next day, as the Speaker on the Panel, I came back to the House and rescinded the ruling I had made the previous day. Sen. (Prof.) Anyang’-Nyong’o is a witness to this.

Mr. Temporary Speaker, Sir, you may not have made a deliberate mistake. Human beings make mistakes. When you make a mistake, you own it up, retrace your steps and take the right directions.

Mr. Temporary Speaker, Sir, this House is run by the Chair with the Standing Orders, the Constitution and all enabling law. You are not flouting any Standing Order; you are not breaking any rule or law in rescinding the calling of Order No.10 and going back to Order No.9. The reporting of progress was only in relation to one of the Bills under Order No.9. Sen. Adan from the Committee on National Security and Foreign Relations could not have reported progress on a private Bill sponsored by Sen. (Eng.) Muriuki or Sen. (Prof.) Anyang’-Nyong’o. That was only in relation to Order No.9(i).

Mr. Temporary Speaker, Sir, I urge you to rescind the calling of Order No.10 and we go back to Order No.9. History will absolve you; I can assure you.

Thank you, Mr. Temporary Speaker, Sir, for giving me the opportunity to contribute again on this very important matter. We are discussing a very critical procedure.

Mr. Temporary Speaker, Sir, putting (i) , (ii) and (iii) under Order No.9 was merely a convenience. Otherwise, these were three independent Bills. There have been some benefits for combining them in the past. Now it looks like that can also be a handicap.

Mr. Temporary Speaker, Sir, we already have a problem in this House. I cannot quite recall when the Public Fundraising Bill was initiated. However, like part (ii) we have been dilly-dallying with it in one way or the other for a year. When there is a window where we can deal with it and only pend the voting aspect of it, I would, if you permit me, move that the House resolves that in future - irrespective of putting Bills together - they should be considered as three different Orders so that the putting together is merely a convenience. Otherwise, we shall lose a day if you do not agree with us for no reason other than just a procedure which is not explicit and it is you to decide.

Thank you, Mr. Temporary Speaker, Sir.

Hon. Senators, I understand why you wanted us to dispose of (ii) and (iii) . However, as you will also agree with me, we are not yet done with (i) . The Committee of the Whole has already reported and it sought leave.

To me, we had already completely disposed of the entire Order No.9. You know the problem we are having. If it were not for that problem, it was our wish to make sure that we concluded (ii) and (iii).

Hon. Senators, let us move on to Order No.10, which we are already on. If all goes well, we shall finalise tomorrow.

On a point of order, Mr. Temporary Speaker, Sir. You had given me the Floor in respect of the directive that came from the Chairperson yesterday that I substantiate my allegations yesterday to the effect that the Parliamentary Service Commission (PSC) has, in the last three years, been presiding over disproportionate hiring of members of staff in the PSC. Upon being directed, I proceeded under the provisions of Article 35 of the Constitution of Kenya---

Order, Sen. (Dr.) Khalwale! I am sorry to interrupt you. I understand the matter was discussed and there was a ruling from the Speaker that you could do that tomorrow.

Yes, Mr. Temporary Speaker, Sir. That information has been passed over to me. I thought that at this point, I should report to the House the status of what is going on. I do not want to be held responsible tomorrow for that which does not lie within my jurisdiction.

Just in conclusion, I moved under Article 35 (1) (a) and (b) of the Constitution and approached the Clerk so that I could get an authenticated list of the names that constitute people who have been employed in the years 2013, 2014 and 2015. I was then asked by the Clerk to put it in writing which I did. The Clerk has since written back to me. Just to quote one paragraph, he says that, “Pursuant to Section 5 (2) (i) , 13 (1) (b) , 27 (2) , 30, 31 and 33 (b) of the PSC, CAP 185 (a) , I require, as the Clerk, the express permission of the Chairman of the PSC and the Commission as appropriate in order to provide you with the information that you have sought.”

Mr. Temporary Speaker, Sir, I want to table this letter and---

On a point of order, Mr. Temporary Speaker, Sir. This matter, as you rightly said, had been put off until tomorrow. It had been concluded that way. Is it, therefore, proper that the subject is discussed again today when you had already ruled on that?

Mr. Temporary Speaker, Sir, I am not reopening what you ruled out. I am merely using this point of order to table the letter lest somebody thinks that I was running away from that responsibility. I now table the letter and confirm that I still stand by my Statement of yesterday, and that upon being given the list by the Clerk, I will table it in this House.

We can agree that Sen. (Dr.) Khalwale can table the letter and then the substantiation can be done tomorrow. That matter is closed.

Sen. Ndiema, do you want to contribute on Order No.10?

Mr. Temporary Speaker, I had contributed unless I still had some minutes to proceed. I seek your guidance. I would gladly contribute if you give me permission.

Thank you, Mr. Temporary Speaker, Sir, for giving me this opportunity to contribute to the National Government Coordination (Amendment) Bill (Senate Bill No. 30 of 2014) whose main amendment is the introduction of a village elder for every village unit which is actually an extension of Section 15 of the main Act which seeks to add an extra office or structure under the National Government Coordination structure which is already up to the sub-location level.

Mr. Temporary Speaker, Sir, at the village level, we have many elders. Traditionally, chiefs have been consulting many elders. Coming up and selecting one of the elders or coming up with an elder at the village who will be an employee of the national Government will not add any value. It might create problems. We already have problems with the parallel systems. Counties are already developing their own structures; they have sub-county administers, ward administrators and village administrators. Each village unit has three to five elders.

Now parallel to that we have a system where we have a representative at the county level all the way down to the assistant chiefs. That is already duplication. That is why we have been saying that it is better the national system is structured to fit into the county system and give it more prominence. Now we are strengthening the national system.

Basically, I will not support adding the position of an elder because we have many elders. Chiefs have been consulting many elders. This might hinder the work of the chiefs. If you have one elder who is employed by the Government, what will enable the other elders to participate in maintenance of law and order for the national Government

and in identifying the development priorities in the county governments if you only have one elder who is an employee of the national Government. I would rather we leave the structure as it is and let the county governments form their own systems up to the village elders, but we keep the national Government at the sub-location level.

I oppose having this extra level of Government where we have an elder employed by the Public Service Commission (PSC). This can create problems at the village level.

Mr. Temporary Speaker, Sir, I have read the proposed amendment. In my capacity as a Member of the Legal Affairs and Human Rights Commission, I would like to report to this House that we conducted a public hearing on this particular amendment. The public were very concerned about this amendment, particularly on whether or not this is a matter that concerns counties and whether it was in our jurisdiction. Secondly, the proposed fund that is created under amendment to Clause 3 which has provided for Clause 15 (a) (2) will not violate the Constitution in respect of the fact that we do not have a mandate to create a fund as Senate. I want to agree with the last speaker on this.

The Constitution proposed that we would do away with the provincial administration within five years of promulgation of this Constitution. What we are attempting to do now is, in fact, strengthening provincial administration which the public sought to have removed. I disagree with this amendment in its entirerity because I have read the memorandum and objects of this proposed amendment. It reads:-

“The principle object of this Bill is to amend the National Government Coordination Act so as to recognize and provide for the role of village elders in execution of national Government and county government functions.” There is no role of county government under National Government Coordination Act No.1 of 2030. We have tabled here a report through the Committee of Legal Affairs and Human Rights, that there is, in fact, a duplication of functions between national Government under the National Government Coordination Act and the County Government Act. The duplication of roles all the way to the village has caused a petitioner to file a petition in the Senate, which report we have already submitted.

That report says that, in fact, this Senate ought to amend the law so that we do not create a parallel system of governance and conflict at county level. There is no reason given in the Memorandum and Objects to suggest what mischief this Senate is trying to solve by having another cadre of people called village elders at the county level.

The method of appointing these persons is also not specified. When we have a problem already at the national level, like during yesterday’s debate where were saying that the Salaries and Remuneration Commission (SRC) together with Treasury will consult in terms of how much money they are expending on the wage bill. Is it not a duplication to then add another cadre of village elders and then increase the wage bill?

Would it not be in our own best interest to suggest that this particular cadre of persons, if necessary, should be under the county government, under the ward administrator and not the national Government because the assistant chief in my view is a very effective person. Now, by creating another lower level beyond a sub chief, I think we are taking this a little too far without an explanation to this Republic as to why we

need a person below a subchief. Are we saying that the subchief or the assistant chief is not effective? What is the purpose?

Mr. Temporary Speaker, Sir, this Memorandum of Objects of Reasons does not specify because it says: “The village elders continue playing a critical role in matters of security; the elders work closely with the chiefs and subchiefs and they have become an integral part of the functioning of the national government at village level. It is, therefore, proposed that they be recruited and appointed by the Public Service Commission (PSC)”. There is no criteria which has been set out. It is as ambiguous as it can be. This amendment would lead to even more dangerous precedence because the structures of village elders are not uniform throughout the Republic and, therefore, in an attempt to recognize the already informal structures in other areas which have elders who help in security matters, who by reasonable extension have to extend to areas where you do not have village elders conducting these functions.

There must be another method; that you can recognize the village elders who are performing a role without necessarily, including them in this because we will have to go back to the National Coordination Act and then say: How many village elders are we going to recognize? Is it ten, seven or eight? What would be their minimum age; is it 90 years, 70 years or 80 years? What would be their education qualifications? Would it be a Form Four certificate or what? We are making an amendment that will not have legs to stand on. We would then increase the wage bill and complicate the work of the provincial administration. In my own view, we will be going against what the Kenyan public passed by demanding that the provincial administration be restructured within five years of the promulgation of this Constitution. Those five years will expire on 26th or 27th August,

I now call upon the Mover to reply.

On a point of order, Mr. Temporary Speaker, Sir. I rise under Standing Order No.54 (3) which reads:-

“Despite paragraph (2) , the Speaker may, on the request of a Senator, defer the putting of the question to the following day in which case the Speaker shall thereupon nominate a time at which the question shall be put.”

Sen. (Prof.) Lesan, I do agree with your request. The voting will be done tomorrow.

Next Order! Second Reading

Since the Mover of the Bill is not here, I will defer it. We will also defer Order Nos.12, 13, 14, 15 and 16.

April 29, 2015 SENATE DEBATES ADOPTION OF CRA REPORT ON THE RECOMMENDED COUNTY GOVERNMENTS’ BUDGET CEILINGS FOR FINANCIAL YEAR 2015/2016

Hon. Senators, there being no further business, it is now time to adjourn the House. The House, therefore, stands adjourned until tomorrow Thursday, 30th April, 2015, at 2.30 p.m.

The Senate rose at 5.15 p.m.