Wednesday, 29th September, 2021

Hon. Deputy Speaker, it is my pleasure and privilege to introduce to you and to the Senate the newly Nominated Senator to represent the youth; Githua Ngugi Isaac of the Jubilee Party.

I thank you. The Oath of Allegiance was administered to the following Senator: - Githua Ngugi Isaac.

You may take your seats, hon. Senators. You may lead the new Member to a seat to my right.

(Sen. Githua Ngugi Isaac approached the Bar, bowed to the Chair and took his seat Hon. Senators, we welcome our new Member, Githua Ngugi Isaac. I will give two Members a chance to do that. I will start with the Senate Majority Leader, Sen. Poghisio.

Madam Deputy Speaker, I wish to congratulate the young Senator, our youngest at the moment, who has just joined the Jubilee side, the side to your right.

I want to wish him well as we are basically saying to him, welcome to the ‘upper House.’ Welcome to the House of union and devolution.

This is a place you will find a lot of wisdom and experience in politics. You will learn a lot from the people who are already here.

I remind you that the Member that you replaced was highly celebrated and commended by Members of this House. Therefore, you are well advised to mix freely and, at the same time, make contributions in this House.

From the look of it, I know you are capable because you are well educated. Therefore, you will fit in the shoes of the late Sen. Prengei.

We thank and congratulate you, and ask that you feel free to consult your seniors. Ask questions and you will be guided well.

The work of the Senate is well articulated in Article 96 and other parts of the Constitution. I see that you have a number of well-wishers and family.

You are in the right place. God bless and guide you.

Thank you, Madam Deputy Speaker. On my own behalf and that of my family, I extend my congratulations and accolades to the new Member of the Senate. The Senate needs fresh blood, new ideas and more unity.

We have been divided previously. I hope that your joining us will be the glue that we have been lacking. We are at a critical stage in our journey towards the closure of the Twelfth Parliament. You joining us, your youthful energy and the fact that you have come to Jubilee, which requires a unifier, is good. I pray that your effort, acumen and ability will contribute immensely to the success of this House.

Lastly, your joining us makes me a little senior because I was not there at the beginning of the tenure of the Twelfth Parliament. I have a few people behind me. The longer the queue gets, the better for me. Sen. Mutula Kilonzo Jr. is in agreement. Seniority is good. You will also be senior someday. I am a senior parliamentarian, but not a senior Senator.

Asante Bi. Naibu Spika. Ninamtolea kongole ndugu yangu, Sen. Githua Ngugi kwa kuteuliwa na kuja katika Bunge la Seneti.

Yeye kama Seneta mteule ako na majukumu mengi ambayo anatakikana kuyatekeleza. Mrengo wa Jubilee ulikupa nafasi hii. Wewe ni kijana na uko na maisha marefu ya kuishi ndani ya hili Bunge kulingana na uwezo au utendakazi wako.

Kwa hivyo, tekeleza wajibu wako uliokuleta hapa Seneti. Kuna mambo mengi utajifunza. Hili ndilo Bunge ambalo linajulikana Kenya nzima. Liko na wasomi kama wewe. Kwa hivyo, tuonyeshe ujasiri na elimu yako kulingana na vile utatendakazi hapa ndani ya Bunge la Seneti.

Hivi sasa, ninaongea kwa Kiswahili ambayo ni lugha ya kitaifa. Unaweza pia kuongea Kizungu ambayo ni lugha ya Kitaifa. Lakini, huwezi kuchanganya lugha hizi mbili pamoja. Kwa hivyo, utachagua ni lugha gani utatumia.

Zaidi ni kwamba utajifunza. Tunaye Kiongozi wa Waliowengi, ndugu yangu, Sen. Poghisio, ambaye ako na elimu ya kutosha. Taaluma yake iko juu sana. Maseneta wote wako na taaluma ya hali ya juu. Utajifunza na kujua mambo mengi yanayoendelea ndani ya Seneti.

Ningependa kukupa maoni yangu kuhusu wale waliotarajia uwaangalie. Kuna ile kabila ndogo ya Ogiek ambayo ilikuwa imeomba kiti hiki. Ninakusihi na kukuomba uwafikie na kuwatumikia kadri inavyowezekana.

Thank you, Senator. I will give two more.

Proceed, Sen. Farhiya.

Thank you, Madam Deputy Speaker, for allowing me to join the Senate Majority Leader, the Deputy Minority Leader and Sen. (Dr.) Ochillo-Ayacko in congratulating Sen. Isaack Ngugi.

I welcome him to this House, which has professional lawyers with a lot of knowledge and three Senior Counsels. By the time he leaves in 10 months, he would have acquired a lot of knowledge.

Sen. (Dr.) Zani has done your profession. She is an economist. You did Economics and Sociology from the University of Nairobi. Therefore, I am sure that in your life in the university, you must have met her. We have many Senators with PhDs in the House too. Therefore, we are full of knowledge.

We are here to guide you. You can ask any of the Senators anything that you need to know. We are friendly people. Some of us are also new in the House. Therefore, there is always the first time to anything.

I am sure from your nursery, primary to secondary school days, you have encountered new knowledge, people and life. So, consider this as part of that life.

When you see Sen. Orengo and Sen. Poghisio speaking, do not be intimidated. They are friendly, accomodative and accept people who are gathering knowledge.

I welcome you and ask you to continue supporting our party in the House, so that we take this House to the next level.

Asante Bi. Naibu Spika. Karibu Sen. Ngugi katika Bunge la Seneti. Ninauhakika kwamba umeangalia na kuona kuwa kweli Bunge la Seneti sio la wazee. Yule ambaye atakwambia sisi ni wazee, mwambie mzee ni yeye.

Sisi tutakua tukikuangalia. Ukikosa au kuharibu tutakukosoa. Tutakukumbusha kwamba umekula kiapo mbele ya Mungu.

Asante, Bi. Naibu Spika. Karibu.

Thank you, hon. Senators. Sen. Githua Ngugi Isaac, welcome again. I would like to recognize your family in a special way. Please, be upstanding so that you can be recognized by Senators.

Hon. Senators, I have two Communications to make. The first one is on the 23rd Statutory meeting of the Executive Committee---

consulted with the Clerk-at-the-Table)

respective business to prosecute it. Further, it noted that the output by Select Committees on legislative business, especially on Bills, Petitions and Statements was slow.

Hon. Senators, to this end, the SBC agreed on a strategy to execute the pending business within the short duration that we have. I, therefore, wish to convey the resolution of the Committee and direct as follows-

Thank you, Madam Deputy Speaker, for allowing me to give a little bit of input on the Communication. This is a very important issue because we have a lot of business, but one of the businesses that we have is to push Bills. We are going through many of the Bills for the second time, and we need to push them really fast.

Every time this issue is spoken to, we tend to focus on the absence of the Sponsors. I just want to highlight that many times we have been in this House, we find that the Sponsors are in the House, but sometimes the business comes so much later.

I do not mean to demean Statements because they are very important. We might want to organize ourselves, as a House that, say maybe on Tuesdays, we just delve straight into the many Bills that are waiting on the Order Paper. We can give a special day to Bills. We could have Statements on Wednesday. Whichever way, but we can have one day that is dedicated to legislative business. Immediately after the preliminary orders, we go straight away.

My observation is that many of the Sponsors tend to remain in the House for quite long, until they realize that their business might not be executed on that day. They leave, and that is maybe when the order comes. We might want to systematize ourselves as far as Statements and legislative proposals are concerned.

In the Committee on Education, where I sit, we continue to look at legislative business to ensure that we run it out of the House. I have a feeling that many other Committees are doing the same thing. I think the issue is right here in the House. If we

are honest enough to address it that way, I think we will be able to get to the bottom of this.

We can also limit the number of people who are contributing to these Bills. If we are to expedite, we might find that once we have had four or five contributors, then have another Bill, we can push them quickly. Most of Sponsors of these Bills are suffering in this House. They are just looking forward to a time when they can expedite this business.

Madam Deputy Speaker, I am just pitting your idea and some of the things that I have observed and heard Members say. Perhaps, we need to find a way to create specific time for legislative business in this House.

I thank you, Madam Deputy Speaker.

Sen. M. Kajwang’.

Madam Deputy Speaker, I am excited by the pronouncement by the SBC because I am one of the Chairs who have suffered. My Committee has not been able to process business because of the quorum issues that have been raised before the House.

Madam Deputy Speaker, I can see that Order No.13 talks of reconstitution of select committees. To give effect to your ruling, how I wish we prioritise Order No.13 and deal with this matter once and for all, so that with effect from today, the Committee on Devolution and Intergovernmental Relations and other committees can have the right numbers and membership in order to process important business before this House.

Madam Deputy Speaker, I support your Statement. I hope we shall deal with the Order on reconstitution of select committees today.

Madam Deputy Speaker, the communication by the SBC is timely and important. I agree that we need to have a way of doing business in the House. I think we should go by Sen. (Dr.) Zani’s proposal. The SBC should listen to this.

Sometimes we have issues of topical concern. There is a proposal that Statements should be raised only on Wednesdays, but there could be an issue of topical concern on Tuesday. Going forward, when a Statement is not of topical concern, the Chair should allow one or two Senators only to ride on it. I know that riding on Statements had been banned in this House.

Secondly, the Chairs of committees should liaise with the respective Senators who seek Statements. Some of us have interest in specific agenda items on the Order Paper. Sometimes Statements go up to 6.30 p.m. and it is hard to comment on some business.

I welcome the proposal by the SBC. I can see the Senate Minority Leader and others in the leadership. If we want to expedite legislation process, they should call for a kamukunji, through the Speaker’s Office, so that we discuss in order to be on the same page. It is not good for the SBC to sit and tell us how the House should be run, yet we are supposed to make decisions together. Therefore, we should have a consultative approach.

I encourage the Speaker’s Office and the House leadership to be consulting, so that we are on the same page because there are people who imagine that Statements are much more important than Motions. Others think that Bills are much more important.

The SBC should have listened to our thinking before coming up with this proposal. However, this will ensure efficiency in terms of running of the business of the

House. I agree that we need to be more efficient and effective, so that we deliver on our mandate and ensure that we process Bills, Motions and Statements in a timely manner.

I thank you.

Finally, we will listen to Sen. Farhiya.

Madam Deputy Speaker, the SBC has come up with a brilliant idea in terms of Bills and everything. I agree with Sen. (Dr.) Zani that we should take work more seriously, so that we expedite passing of most of the Bills in order to make a difference in this country.

Another issue is reconstitution of Committees. This should be postponed to tomorrow or next week, so that we have an opportunity to add the new Senator who has just joined us because reconstituting a Committee takes a long time. For, example, Sen. Abdul Haji is not in any committee, yet he was sworn in a long time ago. To avoid the same mistake, I think one day will not make a difference. It is my request to the House that we postpone.

I thank you.

That is her opinion.

Madam Deputy Speaker, I am a bit perturbed by the very sensible intervention by Sen. Farhiya. I am perturbed not because it is sensible, but because she is the Deputy Senate Majority Whip. If anything, there should be no list in this House without consulting her.

As a Member of the Jubilee Party, I am worried because we elected her to be the Deputy Senate Majority Whip. Before a list is brought to this House, the leadership is supposed to sit and agree.

Her proposal makes a lot of sense, but I do not know why the Deputy Senate Majority Whip is surprised, and I do not know where the substantive Whip is. Please, alert our leadership because we might do another Parliament Group (PG) meeting as the Jubilee Party because we want to see them working together.

The other day, on our social media group, all the Whips and their deputies were saying they were not aware. That is not what we want to see. The position of the Deputy Majority Whip is in our Standing Orders and their role is to place us in committees. Sen. Abdul Haji is in a committee and the new Senator should be in a committee. Please, let them work together. We are really embarrassed by this.

That was good information. We will allow them to consult before we reach the Order, because it is No.13.

Let us go to the next Order.

Hon. Senators, I reported yesterday that Members of the Standing Committee on National Security, Defence and Foreign Relations were out on official duties. For that reason, that petition is deferred.

Let us go to the next Order.

The first one is by the Committee on National Security, Defence and Foreign Relations. We will defer that one.

Madam Deputy Speaker, I beg to lay the following Paper on the Table of the Senate, today, 29th September, 2021-

The Report of the Standing Committee on Health on The Health (Amendment) Bill (Senate Bills No.26 of 2020) .

The next Paper will be laid by the Senate Majority Leader.

Madam Deputy Speaker, have we agreed that even a Member can lay papers for departmental committees?

That has been done. It was only one.

What about the one by the Committee on National Security, Defence and Foreign Relations?

Would you like to lay that? We deferred that yesterday because of the absence of Members of the Committee. Therefore, you will deal with your own Report.

Madam Deputy Speaker, I beg to lay the following Paper on the Table of the Senate today, 29th September, 2021-

Report of the Auditor-General on Murang’a South Water and Sanitation Company Limited for the year ended 30th June, 2019.

Let us go to the next Order.

Madam Deputy Speaker, I request up to next week because there was a slight amendment to the Notice of Motion. That was in consultation with your Office.

I agree with the amendment that was done to that Motion in conjunction with your office, but I request that you defer it to next week so that we can amend it.

The Next Notice of Motion is from the Chairperson of the Standing Committee on Health.

Madam Deputy Speaker, I beg to give notice of the following Motion-

THAT the Senate adopts the Second Progress Report on COVID- 19 Situation in Kenya and Preliminary Findings of the Committee on the Special Audit Utilization of COVID-19 Fund by County Governments, laid on the Table of the Senate on Tuesday, 30th of March, 2021.

On a point of order, Madam Deputy Speaker. The Deputy Speaker (Sen. (Prof.) Kamar) : What is your point of order?

What is your point of order?

I am aware there were resolutions made after the Censure Motion of the CS of Energy and CS of Petroleum and Mining. In light of that Standing Order, I seek to know the fate of my Statement.

All of us can see because we take judicial notice that the Committee on Finance and Budget at the National Assembly met the Chief Executive Officer (CEO) of Energy and Petroleum Regulatory Authority (EPRA). Today, they were meeting the Principal Secretary in charge of Petroleum and Mining and discussed issues similar to what we had raised.

I seek to find the fate of my Statement from the Committee on Energy in such a situation where I have not received feedback, yet you had ordered them that the matter should be handled with the urgency it deserves?

The cost of fuel continues to be of topical concern in the country and Kenyans want to get the real answers. The Government is yet to communicate its decision. We have seen areas where they are saying the Government has given Kshs8.6 billion to cushion Kenyans against the high cost of fuel.

Madam Deputy Speaker, you and I agree that whenever we go to the villages, especially during weekends the biggest question we are asked is about cost of fuel. What is the Government doing about it and what we are doing about it we, as Parliamentarians?

The Deputy Speaker (Sen. (Prof.) Kamar): Point taken. Sen. Were, is it on the same?

I am aware there were resolutions made after the Censure Motion of the CS of Energy and CS of Petroleum and Mining. In light of that Standing Order, I seek to know the fate of my Statement.All of us can see because we take judicial notice that the Committee on Finance and Budget at the National Assembly met the Chief Executive Officer (CEO) of Energy and Petroleum Regulatory Authority (EPRA). Today, they were meeting the Principal Secretary in charge of Petroleum and Mining and discussed issues similar to what we had raised.I seek to find the fate of my Statement from the Committee on Energy in such a situation where I have not received feedback, yet you had ordered them that the matter should be handled with the urgency it deserves?The cost of fuel continues to be of topical concern in the country and Kenyans want to get the real answers. The Government is yet to communicate its decision. We have seen areas where they are saying the Government has given Kshs8.6 billion to cushion Kenyans against the high cost of fuel.Madam Deputy Speaker, you and I agree that whenever we go to the villages, especially during weekends the biggest question we are asked is about cost of fuel. What is the Government doing about it and what we are doing about it we, as Parliamentarians?The Deputy Speaker (

Point taken. Sen. Were, is it on the same?

Madam Deputy Speaker, I confirm that this Statement was given five hours before 2.30 p.m.

I rise pursuant to Standing Order No.48 (1) to seek a Statement from the Chairperson, Standing Committee on Roads and Transportation on the progress made on decongestion of the City of Nairobi and implementation of mass transit system plan in Nairobi City County to ease transport on the public sector.

I think Sen. Cherargei will recall that at the time when that Statement was raised, we were informed that the CS was out of the country and he sent a word to say he would be willing to appear. Let us give the Committee time as they have requested. We will deal with it. We have not forgotten it because we left it in the hands of the able Committee.

We have two Statements. Hon. Members, I encourage you to be processing your Statements in good time because we are getting them in less than three hours. We do not want to allow that to continue.

The first Statement under Standing Order 48 (1) is from Sen. Sakaja.

Madam Deputy Speaker, I confirm that this Statement was given five hours before 2.30 p.m.

I rise pursuant to Standing Order No.48 (1) to seek a Statement from the Chairperson, Standing Committee on Roads and Transportation on the progress made on decongestion of the City of Nairobi and implementation of mass transit system plan in Nairobi City County to ease transport on the public sector.

In the Statement, the Committee should-

Thank you, Senator. That Statement stands committed to the Standing Committee on Roads and Transportation. The next Statement is by Sen. Cherargei.

What is your point of order, Sen. M. Kajwang’?

Madam Deputy Speaker, when I look at the Order Paper, I see Notice of Motion by Sen. Cherargei on the same subject. You had earlier ruled that we need to be efficient in the manner in which we do business and I am wondering whether we should pursue the same subject via a Statement and a Motion. Could you rule on the direction, or if Sen. Cherargei has withdrawn the Notice of Motion, so that we make a much more efficient use of the time of the House?

It is not to belittle the Statement request; it is important. Senior officers have been charged over similar issues. Sen. Cherargei should choose one route rather than the two routes he has taken.

Hon. Senators, Sen. Cherargei would have to confirm. The information I have is that you are withdrawing the Notice of Motion so that we deal with the Statement. Is that correct?

Madam Deputy Speaker, I can confirm that I have withdrawn the Notice of Motion on that specific matter, but we are amending it to something else within sports. We will discuss with your office on the same. I have withdrawn the issues that I have raised before the Floor of the House. They are live issues that were captured in the Motion. I have substituted with the Statement so that we can deal with it efficiently.

Thank you. You are confirming the fears of Sen. M. Kajwang’ that we are going to have one route and that is of the Statement. When the Statement comes here for debate, then Members will contribute. What is it, Sen. Sakaja?

Madam Deputy Speaker, everything that comes from your Chair sets precedent in terms of how the House operates. I just need clarity from you because a Statement and a Motion are two different things. A Statement is to inquire on the status of something. It is to ask questions to the Executive or the relevant agencies to give a

Madam Deputy Speaker, I can confirm that I have withdrawn the Notice of Motion on that specific matter, but we are amending it to something else within sports. We will discuss with your office on the same. I have withdrawn the issues that I have raised before the Floor of the House. They are live issues that were captured in the Motion. I have substituted with the Statement so that we can deal with it efficiently.

Thank you. You are confirming the fears of Sen. M. Kajwang’ that we are going to have one route and that is of the Statement. When the Statement comes here for debate, then Members will contribute. What is it, Sen. Sakaja?

Madam Deputy Speaker, everything that comes from your Chair sets precedent in terms of how the House operates. I just need clarity from you because a Statement and a Motion are two different things. A Statement is to inquire on the status of something. It is to ask questions to the Executive or the relevant agencies to give a

The reason I asked you for confirmation earlier is because the information is that when you went to consult in the office, it was clear you were to withdraw the Notice of Motion in preference to a Statement, so that there is an in-depth investigation into the issues that you want done. Let your notice come and we will see the difference.

Sen. Olekina, proceed.

Thank you, Sen. Sakaja, you have said it well. According to Standing Order 56 (1) -

“A Notice of Motion may be withdrawn by the Senator who gave the notice.” That was his choice. We wanted to confirm what he had done. He withdrew the Motion because the concern of Sen. M. Kajwang’ was correct. If you look at the Statement and the Notice of Motion, they are close. The results of the two are different because of the resolution passed by the House when the Motion is adopted. As a Member, you choose. Have you chosen the Statement route?

Madam Deputy Speaker, I said that I will discuss with your office to withdraw my Motion – to postpone and not withdraw. Probably to postpone and amend it. I am not saying that I am withdrawing the Notice of Motion. This is why I requested you to defer the issuance of notice when it was called out. I will amend it and issue it without the matters that I have raised in the Statement. Therefore, I am not withdrawing the notice, but requesting deferment to amend.

The reason I asked you for confirmation earlier is because the information is that when you went to consult in the office, it was clear you were to withdraw the Notice of Motion in preference to a Statement, so that there is an in-depth investigation into the issues that you want done. Let your notice come and we will see the difference.

Sen. Olekina, proceed.

Madam Deputy Speaker, I rise to request a Statement on the influx of persons of Asian origin into the country. From the onset, I would like to state that I do not subscribe to xenophobia behaviour. However, as a representative of the people of this country, I have to raise the concerns of the citizens of this country on the Floor of this House.

I rise pursuant to Standing Order Standing Order 48 (1) to seek a statement from the Standing Committee on National Security, Defence and Foreign Relations regarding the influx of persons of Asian origin into the country. In the statement, the Committee should -

Hon. Senators, as you have noticed, we are committing all the three statements that have been read to Committees without Senators commenting on them due to time constraints. We will discuss the statements when the respective Committees table the reports of the findings.

Next Order.

Next Order.

THAT, the Senate adopts the Report of the Sessional Committee on Delegated Legislation on the Public Finance Management (Equalization Fund Administration) Regulations, 2021, Legal Notice No. 54 of 2021, laid on the Table of the Senate on Tuesday, 28th September, 2021; and pursuant to Section 205 (4) of the Public Finance Management Act, approves the Public Finance Management (Equalization Fund Administration) Regulations, 2021, Legal Notice No. 54 of 2021.

Hon. Senators, this is a resumption of debate that was interrupted yesterday. Sen. (Prof.) Kindiki has eight minutes left.

Kindly proceed, Sen. (Prof.) Kindiki.

Madam Deputy Speaker, before the House adjourned last night, I was making the point that rural poverty is not the same as urban poverty. The dynamic, circumstances, implications and the consequences of rural poverty are very different from those of urban poverty. You can have a very poor person without access to basic amenities in an urban setting, but who can walk to a Level 6 Hospital that is just two kilometers away. However, in the rural areas, some of the people can only access a dispensary which is 15 kilometres away.

As the Commission on Revenue Allocation (CRA) continues to grapple with the marginalization policy, we require that they must distinguish and unpack the different types of poverty and their implications on the society. They must not lump poverty together whether it is in town or in the villages.

Madam Deputy Speaker, the other point that I would like to amplify is that there is need to put money in the so called marginalized areas because they hold the future of our country. I gave the examples of the Australian and American deserts which comprise of among others California, which is the sixth riches economy in the world. The economy of California would not have happened without the infrastructural support and financial rollout that happened in the American desert about 70 years ago.

I would like to give another example that the Government of Kenya can start looking at when considering the issue of marginalization and equalization in our country. There is a city called Eilat which is the southernmost part of Israel; near the border with Egypt. That is a city of about 100,000 people and it is found in very remote desert conditions.

However, policy and financial interventions by the State of Israel has made that city one of the biggest contributors to the GDP of Israel despite the climatic conditions and the aridity of that place. It has become a very popular resort area because the Government of Israel has put tax incentives for the people who want to invest.

The Government of Kenya should think of ways to encourage investors who want to put money in the arid areas so that they get tax incentives and other financial incentives to be able to locate their infrastructures in these areas. It is a pity that these

regulations were compelled by a court of law after the National Treasury wasted a lot of time on an issue that should have happened many years ago. I dare say that the Judiciary has really helped in the entrenchment of devolution. This House itself is a beneficiary of so many court orders that have made devolution work. This is another example of where our Judiciary has put their foot down to ensure that devolution is supported.

Madam Deputy Speaker, the 0.5 per cent that is allocated to the equalization fund is not adequate. It cannot guarantee or wipe away the effects of nearly a century of exclusion and marginalization. These effects are so entrenched, dire and concretized that you require a martial plan where you pump in significant resources as I said yesterday.

We need a policy paper or position that will take over from the Vision 2030. We are already in 2022 and we have not achieved much of what Vision 2030 anticipated. I am afraid to say that despite the great intellectual works that went into the Vision 2030 programme, we are yet to find a policy document that is deep and rich enough to the equivalent of Sessional Paper No. 10 of 1965 despite its shortcomings.

As I said yesterday, I am a big critic of Sessional Paper No.10 of 1965. However, the intellectual rigour and the richness of that document will remain with us for a long time.

Without much ado, I support that these regulations be passed subject to the amendments that have been proposed by various Members.

I thank you.

Madam Deputy Speaker, I rise under Standing Order No.105 (1) and move that the debate now be adjourned. The reason for this is that we would like to spend a moment with the Members to discuss the whole issue of Committees and turn ourselves into a Kamukunji inside the House here so that we can deal with the matter which is urgent. I beg to move and ask the Senate Minority Leader to second. The Senate Minority Leader (

Madam Deputy Speaker, as I speak today, there are some Committees which cannot meet, one of them being the Committee for Devolved Governments and Intergovernmental Relations. In fact, it has been more than one and a half months since they had a proper meeting. There are many other Committees which are suffering from quorum issues such that if one Member does not attend then the Committee cannot raise a quorum. So, we want to resolve this business, once and for all. One of the things which I want to point out is that we want to have a very candid discussion with the Members on how to constitute these Committees.

One of the issues to be resolved should be that if you are in the leadership like I am, you should not be a Chairperson of a Committee. As a general rule, you should not be. It becomes very difficult for a Member in CPAIC to be in three other Committees. That is also raising issues. Unless we want Members to just go to those Committees and log in and out which is not good enough.

Finally, Committees are constituted by the House. The Senate Business Committee (SBC) can only give suggestions. We saw the last time when we tried to move the Motion on the Committees as they are in the Standing Orders, not even one Committee was going to go through. They were being shot down one by one.

In order to make sure that we are in agreement on this issue, I strongly support the Motion that we adjourn for at least 30 minutes to one hour to have a very candid discussion and we finish this issue about the Committees.

I second.

I wish Sen. Lusaka was here because he would have, probably, asked you for more Congolose music which he loves very much. I am sure that when he come to DRC, he will enrich himself with a lot of that music.

Thank you, for coming to our ‘upper’ House. It is a House of union where we handle the interests of our devolved governments. We thank you for taking the time off. We know that the conference is going on.

We wish you a pleasant stay in Kenya. Please do not go before you visit the country side.

implementation of the pact on security, stability and development in the Great Lakes region.

This pact was signed here in Nairobi on 15th December, 2006 by the Heads of State and the ICGLR Member States. To assist the forum to achieve its objectives, the inter-parliamentary accord sets out five areas of intervention by establishing permanent committees namely:

Hon. Senators, a Motion has been moved by the Senate Majority Leader to adjourn pursuant to Standing Order No. 105.

Hon. Senators, we stand suspended for 45 minutes.

I wish Sen. Lusaka was here because he would have, probably, asked you for more Congolose music which he loves very much. I am sure that when he come to DRC, he will enrich himself with a lot of that music.

Thank you, for coming to our ‘upper’ House. It is a House of union where we handle the interests of our devolved governments. We thank you for taking the time off. We know that the conference is going on.

We wish you a pleasant stay in Kenya. Please do not go before you visit the country side.

Sen. Cherargei.

Thank you, Madam Deputy Speaker. I wish to add my voice to that of the Senate Majority Leader in welcoming our brothers and colleagues who are here today.

I particularly welcome the colleagues from the DRC. I have developed a keen interest in what is going on there. I was there seven days before the inauguration of the current President Tshisekedi. I had the opportunity to meet him and also the outgoing President Kabila. I also had the opportunity to meet a number of Members of Parliament (MPs) and party leaders at that time.

Together with my President, I attended the actual inauguration. I was pleased with what is going on. So, I have been following. When I see you here, I feel happy.

Speaking on my own behalf and my interest in the regional cooperation, I hope that the application of DRC into the East African Community (EAC) will be expedited and successful so that we can have closer collaboration between the Parliament of Kenya and that of the DRC.

So, feel welcome. We all belong to the Great Lakes Region and we have a deep interest in having peace because it is only in the environment of peace that we can realize our great potential in economic and social development. So, feel welcome.

Thank you, Mr. Temporary Speaker, Sir, for this opportunity to support this report by the Committee on Delegated Legislation. It is important that it has come at this time. We have strict timelines for these reports. I fully support it.

In the first marginalization policy, they used counties as units. I am happy with the second marginalization policy that was developed by the Commission on Revenue Allocation (CRA) . They marginalized areas, not counties.

For example, in Nandi, you can go to Nandi Hills or Mosop and think that the entire Nandi County is full of milk and honey, not knowing that parts of Tinderet, Mosop and Nandi Hills sub counties have challenges. I really agree with this. I am happy that there are areas in Tinderet sub-county that have been identified.

Mr. Temporary Speaker, Sir, in the identification that was done by CRA, 1,424 sub locations were used as the marginalized areas, which is 20 per cent. These areas form five million Kenyans who have been identified through this process. Out of 1,424 sub locations that have been used as marginalized areas, Nandi has received 17 areas in Tinderet sub county because of recurrence of landslides and other vagaries of weather. Two other areas have been identified in Nandi Hills sub county.

I wish that in the future, identification of the areas through this Equalization Fund that has been set under Article 204 would also include parts of Mosop sub county, so that we can be beneficiaries of it as we envisaged.

Mr. Temporary Speaker, Sir, I heard my brother, Sen. Sakaja, indicate that as we identify the marginalized areas in the future, we must also look at the urban and rural poor. In Nairobi, you can live one or two kilometres from a dispensary. In Nandi, Makueni and other areas, you can live 5 or 15 kilometres from a dispensary.

We need to identify these areas, especially in the city. About 60 per cent of the Gross Domestic Product (GDP) could be in Nairobi, but the question should be, there are

Hon. Senators, we are resuming our sitting. We will proceed to Order No. 10, which is a resumption of debate interrupted on Tuesday 28th September, 2021.

Sen. Cherargei.

exist. We have projects that exist on paper. Governors come for sanitization but when you go on the ground, you are told that projects stalled two years ago. For example, the Governor’s Office in Nandi County has stalled since Financial Year 2017/2018.

Members of the CPAIC and the Committee on Finance and Budget should be making visits so that when we discuss issues, they are things that we have seen. We should also be looking at the scope of works. I do not want to go to any other county. For example, we should know how much it will cost to build Chepterwai Sub County Hospital, the scope of works and how it will look like. That is how we will assist wananchi.

Part of social auditing is censuring Cabinet Secretaries like we did and the Auditor-General will do their work. We believe the reshuffle by the President was not done in good faith. Of course, he has the powers to reshuffle the Cabinet. I know that because of the “Handshake”, some people want to be in the Cabinet in the sunset years of his presidency. We must also do social audit. We cannot just blame even when there is nothing to blame.

Another issue is the boards in the counties that will do approvals. Sen. Faki who is the Chair of the committee is my senior in the profession. What is the animal called provincial administration doing here? Why do we not use the devolved units?

The Government was supposed to restructure but we are bringing back the provincial administration. That is a serious issue that should be handled by wananchi. In fact, the county commissioner will be the chairperson. Why do we not give it to the governor? People here want to be governors. Sen. Mutula Kilonzo Jnr. wants to be the governor of Makueni. Some of us here also want to be governors.

The question is; how do we incorporate counties and the national Government? My learned senior, Rtd. Justice, Sen. Madzayo, knows that these should be done mutually and distinctly. The national Government is clawing back devolution. That is what we are trying to do. In fact, to make it better, they should at least co-chair with the governor instead of leaving it to the county commissioners alone.

Governors and county commissioners normally fight. If you are keen, the national Government does not want governors to be in security committees of county governments. You can see that from what is happening in Laikipia and Samburu. The national Government does not want governors to be part of security committees. However, when it comes to distribution of resources, they want to be part. That is clawing back devolution in this country.

When an opportunity comes, we must relook at the role of provincial administrators because they are the cause of the fights we see in the counties. They should not water down the gains of devolution. Let the national Government do its job but they should allow counties to function.

We should not introduce policing. Why does the national Government want to have policies on what is happening in the county governments? What interest do they have? The Constitution says they are mutual and distinct. It does not mean the other becomes the policy maker of another entity. I find that to be an affront. That is undermining devolution. That is what we call clawing back. That is why today, the Government can use other means to put in place a national health policy.

Mr. Temporary Speaker, Sir, I support because Nandi County will have around 19 areas. We will use the Equalization Fund to improve the lives of the people of Nandi. Let us not allow clawing back of resources.

We may be at risk of going back to Sessional Paper No.10 of 1965. The architect of Sessional Paper No.10 of 1965 was the Government. If the Government did not have ideas in 1963, what do you think they will have in 2021? Let us allow devolved units to function as per the law but we should work mutually and distinctly.

As I conclude, I hope Cabinet Secretaries are aware that under Article 153 (3), they must appear before Parliament. When you do not appear, the President is obliged to fire you. So, I urge public servants who are supposed to appear, especially the Cabinet Secretary---

Mr. Temporary Speaker, Sir, Sen. Kinyua raised a Statement on the issue in Laikipia. Up to now, the Cabinet Secretary for Interior and Coordination of National Government or even the Principal Secretary (PS) have not found it wise to appear before the committee to tell us what is happening in Laikipia. I hope the reshuffle was not done to hoodwink Kenyans. If we want accountability, we must ensure that we respect the Constitution.

I support.

We want people to access water, electricity, good roads and schools. We also want Samburu, where you come from, to have an opportunity, because they have bene systematically marginalized. The Sessional Paper systematically marginalized.

I am happy that the Chair indicated yesterday that theirs was just to facilitate, but the process of identifying these areas was according to the 2013 survey report on marginalized areas by the CRA. They came up with a second one on marginalized areas.

Mr. Temporary Speaker, Sir, my only concern is that in this County Technical Committee that has been formed, I do not see the role of the Senate. Under Article 96, we should be given an opportunity to have a representative.

exist. We have projects that exist on paper. Governors come for sanitization but when you go on the ground, you are told that projects stalled two years ago. For example, the Governor’s Office in Nandi County has stalled since Financial Year 2017/2018.

Members of the CPAIC and the Committee on Finance and Budget should be making visits so that when we discuss issues, they are things that we have seen. We should also be looking at the scope of works. I do not want to go to any other county. For example, we should know how much it will cost to build Chepterwai Sub County Hospital, the scope of works and how it will look like. That is how we will assist wananchi.

Part of social auditing is censuring Cabinet Secretaries like we did and the Auditor-General will do their work. We believe the reshuffle by the President was not done in good faith. Of course, he has the powers to reshuffle the Cabinet. I know that because of the “Handshake”, some people want to be in the Cabinet in the sunset years of his presidency. We must also do social audit. We cannot just blame even when there is nothing to blame.

Another issue is the boards in the counties that will do approvals. Sen. Faki who is the Chair of the committee is my senior in the profession. What is the animal called provincial administration doing here? Why do we not use the devolved units?

The Government was supposed to restructure but we are bringing back the provincial administration. That is a serious issue that should be handled by wananchi. In fact, the county commissioner will be the chairperson. Why do we not give it to the governor? People here want to be governors. Sen. Mutula Kilonzo Jnr. wants to be the governor of Makueni. Some of us here also want to be governors.

The question is; how do we incorporate counties and the national Government? My learned senior, Rtd. Justice, Sen. Madzayo, knows that these should be done mutually and distinctly. The national Government is clawing back devolution. That is what we are trying to do. In fact, to make it better, they should at least co-chair with the governor instead of leaving it to the county commissioners alone.

Governors and county commissioners normally fight. If you are keen, the national Government does not want governors to be in security committees of county governments. You can see that from what is happening in Laikipia and Samburu. The national Government does not want governors to be part of security committees. However, when it comes to distribution of resources, they want to be part. That is clawing back devolution in this country.

When an opportunity comes, we must relook at the role of provincial administrators because they are the cause of the fights we see in the counties. They should not water down the gains of devolution. Let the national Government do its job but they should allow counties to function.

We should not introduce policing. Why does the national Government want to have policies on what is happening in the county governments? What interest do they have? The Constitution says they are mutual and distinct. It does not mean the other becomes the policy maker of another entity. I find that to be an affront. That is undermining devolution. That is what we call clawing back. That is why today, the Government can use other means to put in place a national health policy.

Mr. Temporary Speaker, Sir, I support because Nandi County will have around 19 areas. We will use the Equalization Fund to improve the lives of the people of Nandi. Let us not allow clawing back of resources.

We may be at risk of going back to Sessional Paper No.10 of 1965. The architect of Sessional Paper No.10 of 1965 was the Government. If the Government did not have ideas in 1963, what do you think they will have in 2021? Let us allow devolved units to function as per the law but we should work mutually and distinctly.

As I conclude, I hope Cabinet Secretaries are aware that under Article 153 (3), they must appear before Parliament. When you do not appear, the President is obliged to fire you. So, I urge public servants who are supposed to appear, especially the Cabinet Secretary---

Mr. Temporary Speaker, Sir, Sen. Kinyua raised a Statement on the issue in Laikipia. Up to now, the Cabinet Secretary for Interior and Coordination of National Government or even the Principal Secretary (PS) have not found it wise to appear before the committee to tell us what is happening in Laikipia. I hope the reshuffle was not done to hoodwink Kenyans. If we want accountability, we must ensure that we respect the Constitution.

I support.

Mr. Temporary Speaker, Sir, while I support the Committee’s recommendations, the unfortunate thing is that this thing has already delayed for a very long time.

In many areas, projects were done, but not paid for because of court issues and stoppage of these funds. Many people have suffered in the process and projects have stalled. Therefore, stopping these Regulations at this time might not be right because in the end, the people concerned might not get the money.

Looking at the way things have been done, the Fund is literally like another National Government-Constituencies Development Fund (NG-CDF) . Members of the National Assembly have decided to put everything of theirs here. At the county level, the composition is the County Commissioner as chairperson, the CECM for finance and NG- CDF managers.

In Wajir County where there are six constituencies, there will be six NG-CDF managers there, a representative of the County Assembly and then chairperson of NG- CDF. Why do we need all those people from the NG-CDF? Why do we not have the Senate as the one that is supposed to take care of and oversight these funds better? The Senate has no work or involvement when it comes to the issues of the technical committees. To have the chairpersons and managers of the NG-CDF is just a duplication of NG-CDF. This thing will be just the way the NG–CDF is.

From the county, we go to the sub-county and we do not see the NG-CDF secretaries or the sub-county administrator. In the project identification, we can see the NG-CDF committee member. Was this Fund meant for Members of the National Assembly or it is a devolved function that is supposed to be monitored as a conditional fund from the national Government to the counties through the Senate?

The way things are, there might be a collision in the end when the sub-county and county technical teams send their recommendations to the CECM finance. The

Regulations might not even work because of the person who is supposed to sign the projects.

Functions of the CECM finance include consolidating all projects approved by the county technical committee and submitting to the secretary of the board for funding with a copy to CRA, preparing financial statements and submitting to the secretary of the board; preparing quarterly reports of funds received and implementation status of these, and preparing annual reports.

All these things are done by the county and CECM, but when it comes to how things are done at the county and sub-county levels, the county is not at the centre.

Looking at withdrawal and utilization of the funds, this is supposed to be done by the Senate-

“The Fund shall be utilized as conditional grants to the affected counties in accordance with the Division of Revenue Act and County Allocation of Revenue Act for the respective financial years. All withdrawals from the Fund shall be deposited into the respective spending counties accounts.” This is a contradiction. I am 100 per cent sure, the way Members of the National Assembly work, it seems all their NG–CDF staff will be the ones who will bulldoze this thing through because they are the majority in the committee. We will end up again with people fighting all over. Nothing will come out of the county because the county government and the Members of the National Assembly will fight over this, and the CECM is not going to recommend anything to come to the Board for money to be released.

Why did we waste all this time? We have already wasted more than 10 years of the 20 years when this money was supposed to be allocated and given to the marginalized areas. Not only have the counties concerned been increased, which I have no problem with, but we are going to delay because this thing might lead to court actions and problems in the long run.

Mr. Temporary Speaker, Sir, I hope the committee will look into these issues, but the way things are now, we might not be able to do much. I urge the Committee to look into this issue. If need arises, they should look and see where they can change, even if the National Assembly because of their own interests, do not care what happens to this money.

I beg to support.

Thank you, Mr. Temporary Speaker, Sir. I also rise to speak on the Equalization Fund Administration Regulations presented by the Committee on Delegated Legislation, ably chaired by Sen. Faki.

The Equalization Fund was set up in the Kenya Constitution, 2010, mainly to deal with the unintended repercussions of Sessional Paper No.10 of 1965 that had been spearheaded by the late Tom Mboya. The administration of this Fund, initially under the First Marginalization Policy, had 14 counties. In the Second Marginalization Policy, we now have 34 counties.

This Second Marginalization Policy has focused on certain sub-locations in these 34 counties. As we were informed by the CRA, these sub-locations were identified

through a poverty assessment research or survey, which looked at certain factors. These were health, sanitation and electricity, amongst others.

However, as much as the Equalization Fund was a good thought supposed to deal with those injustices committed way early, in 1965, just two years after independence, is looking at areas that have been marginalized for 50 years. We require 50 years and more for these counties to be at par with those counties that benefited from that Sessional Paper of 1965. That is not something that can be achieved in the 10 years of its application now.

We take note that it has stalled for the last 11 years. We hope we shall pass these Regulations, so that the Fund is now implemented and these counties can continue benefiting and trying to catch up with those others that have been way ahead.

I would also love to point out that these areas that have been marginalized for many years will one day become a savior when these other counties have depleted their resources. We know that resources are not permanent. Seventy per cent of Kenya is not arable and, therefore, falls under the marginalized areas. Thirty per cent can quickly be depleted. We, therefore, need the other 70 per cent. We need to start thinking along those lines. What are we doing to the 70 per cent of Kenya that has been marginalized for so long?

I would have expected that the Committee recommended a certain review of the Second Marginalization Policy, so that we include certain sub-locations in certain areas that probably benefited in 1965, but have sub-locations that fall under this category of marginalization. We might have arguments of whether marginalization is equal to poverty, but that is an academic argument.

We have notorious areas such as in Nairobi, Mombasa and Kisumu that have slums that suffer from issues of health, sanitation and lack of electricity. We were informed how the illegal connections of electricity cause the frequent fires we face in these slums.

I expect that the Committee can still make that recommendation and a review of that policy to include certain---

We could still make that recommendation, a review of that policy to include certain sub-locations that suffer the same fate.

Mr. Temporary Speaker, Sir, this report has recommended a project identification and management committees both at the national and county levels. This is a good thing because our counties will be involved in the identification and the management of projects that will be recommended to be utilised under the Equalisation Fund.

Arguments have been made on the fact that these monies are too little to make any impact. However, depending on where we have come from, if we start at the sub- location and give little for each sub-location, it will amount to development of the location, then the former division or what we call the sub-county and eventually the county. We start small because we are small now. Eventually when funds are available and there is enough money, more money can be put into big projects that will have the biggest impact.

All I ask for is we amend our law so that the sunset clause is removed. Equity for the areas that have been marginalised for 50 years cannot be achieved under 10 or 20 years. We need at least 50 years to achieve the equality.

Thank you, Mr. Temporary Speaker, Sir. I support.

Sen. Mutula Kilonzo Jnr., you have the Floor.

Mr., Temporary Speaker, Sir, I was hoping that the Senator for Baringo County would be here because 55 years after Independence, there is a place that was identified in Baringo County where women are giving birth under a tree. That is a tragedy of monumental proportions. The colour of marginalization shows the country as red all round and a very small part in the middle as green. That should not be the map of Kenya because that is a map of historical injustices. That is a map of the people who think that other Kenyans are less than them. That is a map of darkness, that every time we switch off the lights, some places in this country go black as if they are in a lunar eclipse. We must put an end to that situation.

The Parliament of Kenya must debate and finish this process before this session ends. It is greatly unfortunate that we are discussing these things as opposed to a report showing that the equalization fund has ensured that counties that did not have maternal health care services or hospitals now have access to those facilities and have pictures of beautiful hospitals done through the equalization fund. This Government is a tragedy. Choices have consequences.

we are doing today is merely academic if not academic. There is a time period prescribed under the PFM Act.

This is the problem we had with the original regulations that were passed in 2014. We attempted to amend them and the National Treasury refused because we are now caught between a rock and a hard place. We do not agree with a clause that in itself creates a problem in counties. What do you do with it? It has already become law and we cannot publish a corrigendum; we do not have jurisdiction.

I have a problem and I must say so because we have put ourselves in an awkward position. The people who were asking from the Committee Chairperson NG-CDF, County Assembly, they should find a position for the Senate. If the Senate has a representative at the board level in Nairobi, why not have a representative of the Senate at the County level, which is the theatre of devolution. This appears obvious and logical.

As the Senate - I have said this before - we cannot take away our own jurisdiction and give it away to others. This is what we are doing with this County Executive Committee. It is allowing ourselves to be run out of town by functionaries of the national Government. It is unacceptable. Hon. Members of the Parliament, we are the people who are fighting to have an Equalisation Fund. If you look at the sidenotes of Article 204, it talks about counties. All of a sudden, we have taken the theatre to the CDF manager and NG-CDF people. It is not necessary. It is another NG-CDF.

This is exactly what we have been refusing. The Bill by the Member from Samburu, who attempted to amend the Constitution, we rejected it flatly because he attempted to go round and cede the Equalisation Fund by having this theatre in the constituencies. I am forced to say ‘no’ to this since it contradicts the work I have done since 2013 of trying to fight this to be the theatre of counties and the work of the Senate.

At the end of this you have a report which comes to the Senate. What is the purpose of having a report coming to the Senate at the tail end of this process when you have not involved the Senators in project identification? It is a waste. I am afraid I do not agree. I have said that this is a contradiction. We might be doing an academic exercise. There is something we did; I want to say this loudly, there is about Kshs20 billion - Sen. Farhiya, if I am not correct you can correct me - lying about the 14 counties that had been identified. Those counties include Samburu, Isiolo, Mandera and others.

There is some money and projects that had been identified in the first nine years that is already in the kitty. In our report, we provided a transitional clause so that the projects are not lost and that the money is not appropriated in the second policy.

Mr. Temporary Speaker, Sir, I have looked through these regulations and I cannot see it. What happened to that money? The criteria in the first and second policy are not the same. We do not want the projects that were identified in Wajir County in the first policy to be lost in the second policy. These regulations as they are, we are going to have a problem with the money that is already budgeted. It is not mentioned in this policy. The Chairman can correct me if it is there because I have not seen it. Unless it is clearly stated, it will be lost.

We should ring-fence the existing fund and the projects that are already identified. Some of the Members who are seated here are beneficiaries of the first policy. However, with these regulations, they will lose that money. This money will be lumped together

On a point of order, Mr. Temporary Speaker, Sir. With all due respect to senior counsel, is it fair to now decide to use the Equalization Fund report to settle scores around the oversight fund? Is he saying that we now paralyze everything because we did not get that? Is this really about us or is it about something else? I think it is not in order. It is in fact irrelevant because we cannot paralyze because of other things that we did not get. Is that really fair?

Mr., Temporary Speaker, Sir, I was hoping that the Senator for Baringo County would be here because 55 years after Independence, there is a place that was identified in Baringo County where women are giving birth under a tree. That is a tragedy of monumental proportions. The colour of marginalization shows the country as red all round and a very small part in the middle as green. That should not be the map of Kenya because that is a map of historical injustices. That is a map of the people who think that other Kenyans are less than them. That is a map of darkness, that every time we switch off the lights, some places in this country go black as if they are in a lunar eclipse. We must put an end to that situation.

The Parliament of Kenya must debate and finish this process before this session ends. It is greatly unfortunate that we are discussing these things as opposed to a report showing that the equalization fund has ensured that counties that did not have maternal health care services or hospitals now have access to those facilities and have pictures of beautiful hospitals done through the equalization fund. This Government is a tragedy. Choices have consequences.

Proceed, Sen. Omogeni.

constituencies. You cannot allow people who are running constituencies to start running counties. How? That cannot happen.

I am happy that I have brought Sen. Halake on board and she is with me on this. Mr. Temporary Speaker, Sir, anybody who is a Senator loves devolution. We have sub-county administrators who are employed by county governments to be in charge of our wards at the county level.

If you read Article 6 of the Constitution, we have two levels of Government. That is the national Government and county governments.

When you go to the sub-county level, we need to agree that in principle, at the ward level, we have sub-county administrators who are the representatives of the county governments. How do you remove them from the administration of this Fund and replace them with assistance county commissioners? That is a big contradiction.

If we want to abide by the High Court decision, at the sub-county level, the person who should be key and chair those Committees should be the ward administrator. Let us accept that if we allow the national Government to over-crowd its representation in these Committees, we would have lost it. This will no longer be a function of county governments.

Mr. Temporary Speaker, Sir, the National Government-Constituency Development Fund (NG-CDF) Committees and fund managers have their distinct roles and functions at the constituency level. There are projects that are funded by the national Government that are under implementation at the constituency level.

We are now looking at functions that are under the county government but will be implemented at the ward level. We must separate the two so that we do not bring some new fights between NG-CDF officers and the Equalization Fund.

They should be allowed to continue to manage NG-CDF but this Fund should create room for Senators, County Executive Committee (CEC) Members, and people from the villages and leave aside Members of the National Assembly.

Mr. Temporary Speaker, Sir, there is a minor correction at page 9 of the report that makes reference to Migori being in Gatanga. The last time I checked, Migori County does not have that name. So, Chairperson, you need to ensure that the correction is made.

In terms of projects, I hope that when these funds are implemented at the county level, there should be emphasis on our youth and women.

I do not like the thing you call bottom up approach. However, I like the concept of devolution because it takes resources to the lowest point.

The bottoms up approach means taxing my people in Nyamira and bringing money to Nairobi, which is not a good thing. We want money that is in Nairobi to trickle down to Moraa and Nyang’au who are in Nyamira.

I want the boda boda riders in Nyamira to grow in business. We want to register companies for them when this Fund goes down to the ward level, they are the ones who should benefit.

We want our women to be the ones doing this project. If you are talking about 360 projects, these are projects that should be the preserve of people who are at the county level, in mashinani. This is so that they engage with business and then they can grow.

On a point of order, Mr. Temporary Speaker, Sir. With all due respect to senior counsel, is it fair to now decide to use the Equalization Fund report to settle scores around the oversight fund? Is he saying that we now paralyze everything because we did not get that? Is this really about us or is it about something else? I think it is not in order. It is in fact irrelevant because we cannot paralyze because of other things that we did not get. Is that really fair?

Sen. Halake, Sen. Omogeni is giving his observations on this Motion and he is entitled to them.

Mr. Temporary Speaker, Sir, a point of order should be relevant to what I am saying. I am just expressing my opinion and it is allowed. I cannot say much because Sen. Halake is a good friend of mine. I will leave it there.

I plead with Senators not to allow the Equalization Fund to be converted into an extra work for Members of the National Assembly who are supposed to run

constituencies. You cannot allow people who are running constituencies to start running counties. How? That cannot happen.

I am happy that I have brought Sen. Halake on board and she is with me on this. Mr. Temporary Speaker, Sir, anybody who is a Senator loves devolution. We have sub-county administrators who are employed by county governments to be in charge of our wards at the county level.

If you read Article 6 of the Constitution, we have two levels of Government. That is the national Government and county governments.

When you go to the sub-county level, we need to agree that in principle, at the ward level, we have sub-county administrators who are the representatives of the county governments. How do you remove them from the administration of this Fund and replace them with assistance county commissioners? That is a big contradiction.

If we want to abide by the High Court decision, at the sub-county level, the person who should be key and chair those Committees should be the ward administrator. Let us accept that if we allow the national Government to over-crowd its representation in these Committees, we would have lost it. This will no longer be a function of county governments.

Mr. Temporary Speaker, Sir, the National Government-Constituency Development Fund (NG-CDF) Committees and fund managers have their distinct roles and functions at the constituency level. There are projects that are funded by the national Government that are under implementation at the constituency level.

We are now looking at functions that are under the county government but will be implemented at the ward level. We must separate the two so that we do not bring some new fights between NG-CDF officers and the Equalization Fund.

They should be allowed to continue to manage NG-CDF but this Fund should create room for Senators, County Executive Committee (CEC) Members, and people from the villages and leave aside Members of the National Assembly.

Mr. Temporary Speaker, Sir, there is a minor correction at page 9 of the report that makes reference to Migori being in Gatanga. The last time I checked, Migori County does not have that name. So, Chairperson, you need to ensure that the correction is made.

In terms of projects, I hope that when these funds are implemented at the county level, there should be emphasis on our youth and women.

I do not like the thing you call bottom up approach. However, I like the concept of devolution because it takes resources to the lowest point.

The bottoms up approach means taxing my people in Nyamira and bringing money to Nairobi, which is not a good thing. We want money that is in Nairobi to trickle down to Moraa and Nyang’au who are in Nyamira.

I want the boda boda riders in Nyamira to grow in business. We want to register companies for them when this Fund goes down to the ward level, they are the ones who should benefit.

We want our women to be the ones doing this project. If you are talking about 360 projects, these are projects that should be the preserve of people who are at the county level, in mashinani. This is so that they engage with business and then they can grow.

Hon. Senators, there are no more requests to contribute on the Motion. I therefore call upon the Mover to reply.

Mr. Temporary Speaker, Sir, first, I thank all the Senators who have contributed to this Motion. I thank the Seconder who was Sen. Poghisio, Sen. Sakaja, Sen. Olekina, Sen. Farhiya, Sen. M. Kajwang', Sen. (Dr.) Musuruve, Sen. Halake, Sen. (Eng.) Hargura, Sen. (Prof.) Kindiki, Sen. Cherargei, Sen. (Dr.) Ali, Sen. Mutula Kilonzo Jnr., Sen. Were and Sen. Omogeni.

I wish to disabuse the minds of the Senators that we never considered these regulations extensively because we spent a lot of time on these regulations. According to the Statutory Instruments Act and our Standing Orders---

Sen. Mutula Kilonzo Jnr., do you have an intervention?

by the national Government. Earlier on, I listened to one of our colleagues saying that the MPs would be part of this board. Since when did an MP become the head of the National Government-Constituency Development Fund (NG-CDF) board?

I know that Sen. Sakaja is laughing because of our argument back and forth on the difference between poverty and being marginalized. In terms of these regulations, what happens if we go with that angle of retaining them to the sender? What will happen to those projects that have already been implemented and people have not been paid?

Mr. Temporary Speaker, Sir, I think that we need to differentiate between the administrative aspect of the regulations and the role of the CRA. If we can get clarification from the Mover, it will really help us.

Hon. Senators, there are no more requests to contribute on the Motion. I therefore call upon the Mover to reply.

Mr. Temporary Speaker, Sir, first, I thank all the Senators who have contributed to this Motion. I thank the Seconder who was Sen. Poghisio, Sen. Sakaja, Sen. Olekina, Sen. Farhiya, Sen. M. Kajwang', Sen. (Dr.) Musuruve, Sen. Halake, Sen. (Eng.) Hargura, Sen. (Prof.) Kindiki, Sen. Cherargei, Sen. (Dr.) Ali, Sen. Mutula Kilonzo Jnr., Sen. Were and Sen. Omogeni.

I wish to disabuse the minds of the Senators that we never considered these regulations extensively because we spent a lot of time on these regulations. According to the Statutory Instruments Act and our Standing Orders---

Sen. Mutula Kilonzo Jnr., do you have an intervention?

think that the committee did not at any point consult with the Committee on Finance and Budget. It is not a requirement but it could be useful.

Maybe the Chair should shed some light on whether they interacted with the Committee on Finance and Budget because it is clear that the Committee on Finance and Budget looked at this beyond just the policy and possibly the administration.

Maybe the SBC should discuss this. Next time another regulation comes touching on another area like labour--- We have been considering but you do it on your own and you might not benefit from what Members have been contributing. Maybe that clarification would be useful.

Proceed, Sen. Faki.

Thank you, Mr. Temporary Speaker, Sir and Sen. Sakaja. Sen. Farhiya is a Member of the Committee on Finance and Budget and also a Member of our Committee. We discussed these issues although we never consulted the Chair of the Budget and Finance Committee.

In our consideration, we considered the fact that these regulations were being brought to the Senate pursuant to a court order which had been issued earlier.

There was a Committee that was formed as a result of that court order which considered these regulations. They came up with a draft and subjected it to public participation. They had considered all the stakeholders before they were published and Tabled before the House.

The institutions that were consulted included the CRA, CoG, CBK, CoB and the County Assemblies Forum (CAF) . In our consideration, we also consulted the same institutions that came up before us, I think on 10th of September when we considered these regulations.

Section 205 (6) of the Public Finance Management (PFM) Act provides that – “If a House of Parliament does not make a resolution either approving or rejecting any regulations within 15 days after submission to it for approval, the House shall be deemed to have approved those regulations.” In the present case, these regulations were tabled on 7th September, 2021. We have up to 15th October, 2021 to make a decision on them.

Issues were raised as to the composition of the county Committees. Yes, I agree there might have been overlooking of the Senate and population of the Committee by the NG-CDF. Article 204 of the Constitution, the national Government also can expend monies from the Equalization Fund. There might not be a necessity for having two Committees in the county dealing with the same fund.

The purposes of the regulation are to be found in Regulation 3, which says- a) “establish and incorporated board to advise the Cabinet Secretary on the proper and effective performance of the Fund; b) provide guidance on the administration management of the Fund c) provide withdrawals from the Fund; and, d) provide for completion of ongoing projects under the First Policy. The concerns that were raised by Sen. Mutula Kilonzo Jnr. have been answered in Regulation 3 (d) .

On a point of order, Mr. Temporary Speaker, Sir. Our Standing Orders provide how committees can work even jointly sometimes. Maybe this will go beyond this specific discussion that the Committee on Delegated Legislation receives regulations touching on different areas. Tomorrow they might have regulations on health, sports or other areas.

Mr. Temporary Speaker, Sir, I would like clarification from the Chair because it would have cost nothing. From Sen. Mutula Kilonzo Jnr.’s contribution, I am inclined to

Hon. Senators, the putting of the question is deferred until a later date.

Next Order! Hon. Senators, Order Nos.11, 12 and 13 are deferred.

Thank you, Mr. Temporary Speaker, Sir and Sen. Sakaja. Sen. Farhiya is a Member of the Committee on Finance and Budget and also a Member of our Committee. We discussed these issues although we never consulted the Chair of the Budget and Finance Committee.

In our consideration, we considered the fact that these regulations were being brought to the Senate pursuant to a court order which had been issued earlier.

There was a Committee that was formed as a result of that court order which considered these regulations. They came up with a draft and subjected it to public participation. They had considered all the stakeholders before they were published and Tabled before the House.

The institutions that were consulted included the CRA, CoG, CBK, CoB and the County Assemblies Forum (CAF) . In our consideration, we also consulted the same institutions that came up before us, I think on 10th of September when we considered these regulations.

Section 205 (6) of the Public Finance Management (PFM) Act provides that – “If a House of Parliament does not make a resolution either approving or rejecting any regulations within 15 days after submission to it for approval, the House shall be deemed to have approved those regulations.” In the present case, these regulations were tabled on 7th September, 2021. We have up to 15th October, 2021 to make a decision on them.

Issues were raised as to the composition of the county Committees. Yes, I agree there might have been overlooking of the Senate and population of the Committee by the NG-CDF. Article 204 of the Constitution, the national Government also can expend monies from the Equalization Fund. There might not be a necessity for having two Committees in the county dealing with the same fund.

The purposes of the regulation are to be found in Regulation 3, which says- a) “establish and incorporated board to advise the Cabinet Secretary on the proper and effective performance of the Fund; b) provide guidance on the administration management of the Fund c) provide withdrawals from the Fund; and, d) provide for completion of ongoing projects under the First Policy. The concerns that were raised by Sen. Mutula Kilonzo Jnr. have been answered in Regulation 3 (d) .

Mr. Temporary Speaker, Sir, the Committee in its consideration of the Regulations is guided by the Constitution, the relevant legislation in this case the PFM Act and the Statutory Instruments Act.

There was also the issue of whether stakeholder participation was done before the Regulations were published and brought before the House. We found that all these issues were considered and were well within the Constitution, the Statutory Instruments Act, the PFM Act and any other relevant legislation that is in force.

The concern that the national Government is clawing back on the devolved functions is genuine. However, we are faced with a situation where the Fund has not been utilized for the last 11 years. At this rate and with the increase in the counties that are becoming marginalised, soon we shall have the whole country being marginalized because every now and then situations are changing.

I agree with Sen. Sakaja that people in Kibera and Korogocho in Nairobi may be marginalised.

Mr. Temporary Speaker, Sir, even in Mombasa County, I have Bangladesh and Tudor Moroto area, where people have sanitation issues. However, the proximity of those services to those residents in an urban setting is much closer than in a rural setting. Even in the slums, you will find a county toilet, but there are those areas where roads, health facilities are a problem.

A resident in Kibra can easily access Kenyatta National Hospital (KNH). A resident in Tudor Moroto can easily go to Tudor Healthcare Clinic or Coast General Teaching and Referral Hospital (CGTRH), which is about two or three kilometres away. However, a resident in Wajir and Mandera Counties may not have that luxury of going to such facilities.

Mr. Temporary Speaker, Sir, we are faced with a dilemma of allowing the marginalisation to continue as a result of the issues that have been raised. At the same time, we also have an opportunity to correct some of the wrongs that have been meted on the Kenyans since Independence.

I will urge Members to rise above the issues that have been raised and approve these Regulations. This is so that the people in those marginalised areas may now get some of the services that other counties are getting. At the moment, most of the marginalised areas are facing drought and many other calamities that we may not be able to assist if these Regulations are not passed. I urge that Members do pass these Regulations.

Mr. Temporary Speaker, Sir, finally, I wish to request that pursuant to Standing Order No. 61 (3), the putting of the question be deferred to a later date.

Thank you.

Hon. Senators, the putting of the question is deferred until a later date.

Next Order! Hon. Senators, Order Nos.11, 12 and 13 are deferred.

(i)

Sen. Orengo was on the Floor and had a balance of 51 minutes.

Sen. Orengo, proceed.

Thank you very Mr., Temporary Speaker, Sir and all the Members who have contributed to this important Bill. Due to great demand, I would like to ask for your indulgence, as you have done before for me, to donate just five minutes out of my

Sen. Cherargei, proceed.

Thank you, Mr. Temporary Speaker, Sir. I congratulate Sen. Mutula Kilonzo Jnr. and Sen. Sakaja for this wonderful Bill. I think for Sen. Mutula Kilonzo Jnr., we were together in investigation of the disaster in Solai Dam. He was the Vice Chairperson of the Committee on National Security, Defence and Foreign Relations then.

Later we organised a Joint Committee to Brazil together with the Committee on National Security, Defence and Foreign Relations. We were with Sen. Mutula Kilonzo Jnr. I know that as one of the drafters of this Bill, he has hands-on experience. We did a visit to what we call the Brumadinho Dam collapse that happened in the State of Minas Gerais in Brazil.

Mr. Temporary Speaker, Sir, one things that we observed is that the response and effectiveness of response to disaster in Brazil is top-notch. I am happy this law has captured that. They have what we call National Centre for Risk and Disaster Management.

That system works that if there is a disaster in Samburu County, within seconds, it will be known at the command centre, for example, Nairobi. There is also national system of protection and civil defence. This is a multi-disciplinary agency where there is a proper coordination from bomberos, civil defence, police and municipalities.

The third point I want to make is that the response of disaster mitigation is normally done in three phases in Brazil. It is done through municipalities, federal and then state. There is a well organised way of responding to disasters in Brazil.

Finally, which I have seen Sen. Sakaja and Sen. Mutula Kilonzo Jnr. have captured is on the issue of funding. At least this Bill tries to organise donations. In Brazil, they have what they call National Fund for Civil Disaster on Recovering (NFDR) . We were able to learn in Brazil that they have a national fund to ensure there is an orderly way of donations in terms of response.

Mr. Temporary Speaker, Sir, we learnt a lot. I have read Sen. Sakaja’s Bill although time is fast spent. I am happy with what we saw in comparative analysis between Brazil and the Bill we are having before us. If we implement to the lettter, I can tell you it will change how we handle disasters. Brazil has other good things, but I would not want to mention today, maybe in the future.

Thank you.

Mr. Temporary Speaker, Sir, then, I better not even start.

Thank you, Mr. Temporary Speaker, Sir. Let me thank the two distinguished Senators. The Senator from the city, Sen. Sakaja and Sen. Mutula Kilonzo Jnr. for actually thinking about something that should have been done long time ago. When we served with these two distinguished gentlemen, in the ad hoc Committee on Solai Dam Tragedy, we came face to face with what the effect of disaster would really have in this country.

Thank you very Mr., Temporary Speaker, Sir and all the Members who have contributed to this important Bill. Due to great demand, I would like to ask for your indulgence, as you have done before for me, to donate just five minutes out of my

Thank you, Mr. Temporary Speaker, Sir. Thank you very much Sen. Olekina and Sen. Cherargei. I also thank Sen. Were who gave very good contributions. Sen. Orengo as well had a lot to say and many who wanted to speak had a lot to say. I know Sen. Halake wanted to contribute to this, but we really need to put the question tomorrow or the next available opportunity.

I also thank Sen. Kang’ata. He spoke to this Bill and a number of reservations, but we were able to clarify. The biggest fear because he claims to be almost a Republican, he does not like big Government. He thought we were creating a new agency. I was able to clarify that what we are doing is not creating a new agency, but bringing together the

Sen. Cherargei, proceed.

Thank you, Mr. Temporary Speaker, Sir. I congratulate Sen. Mutula Kilonzo Jnr. and Sen. Sakaja for this wonderful Bill. I think for Sen. Mutula Kilonzo Jnr., we were together in investigation of the disaster in Solai Dam. He was the Vice Chairperson of the Committee on National Security, Defence and Foreign Relations then.

Later we organised a Joint Committee to Brazil together with the Committee on National Security, Defence and Foreign Relations. We were with Sen. Mutula Kilonzo Jnr. I know that as one of the drafters of this Bill, he has hands-on experience. We did a visit to what we call the Brumadinho Dam collapse that happened in the State of Minas Gerais in Brazil.

Mr. Temporary Speaker, Sir, one things that we observed is that the response and effectiveness of response to disaster in Brazil is top-notch. I am happy this law has captured that. They have what we call National Centre for Risk and Disaster Management.

That system works that if there is a disaster in Samburu County, within seconds, it will be known at the command centre, for example, Nairobi. There is also national system of protection and civil defence. This is a multi-disciplinary agency where there is a proper coordination from bomberos, civil defence, police and municipalities.

The third point I want to make is that the response of disaster mitigation is normally done in three phases in Brazil. It is done through municipalities, federal and then state. There is a well organised way of responding to disasters in Brazil.

Finally, which I have seen Sen. Sakaja and Sen. Mutula Kilonzo Jnr. have captured is on the issue of funding. At least this Bill tries to organise donations. In Brazil, they have what they call National Fund for Civil Disaster on Recovering (NFDR) . We were able to learn in Brazil that they have a national fund to ensure there is an orderly way of donations in terms of response.

Mr. Temporary Speaker, Sir, we learnt a lot. I have read Sen. Sakaja’s Bill although time is fast spent. I am happy with what we saw in comparative analysis between Brazil and the Bill we are having before us. If we implement to the lettter, I can tell you it will change how we handle disasters. Brazil has other good things, but I would not want to mention today, maybe in the future.

Thank you.

Thank you, Mr. Temporary Speaker, Sir, and Sen. Cherargei. I will give Sen. Olekina four minutes.

Thank you, Mr. Temporary Speaker, Sir. Let me thank the two distinguished Senators. The Senator from the city, Sen. Sakaja and Sen. Mutula Kilonzo Jnr. for actually thinking about something that should have been done long time ago. When we served with these two distinguished gentlemen, in the ad hoc Committee on Solai Dam Tragedy, we came face to face with what the effect of disaster would really have in this country.

There is no point of spending money to do other Government projects instead of putting that money aside to fund disaster management. Today we are told that about Kshs15 billion of the Petroleum Development Levy Fund (PDLF) has been used to fund other government projects instead of cushioning Kenyans.

Mr. Temporary Speaker, Sir, what we need and I am happy about this Bill is that we should have one command centre from the national Government all the way down to the county governments. Since we are talking about devolution and we are fighting to send more money to devolved structures, every county should now have a fire brigade centre all directed from the national level. If you have one command centre, you are able to respond quickly. However, the way we have it now where it is scattered all across, it becomes very difficult to manage.

This is a Bill which we should not even think twice before we pass it. We should pass it and immediately not even waste a lot of time in terms of public participation. This is what Kenyans really want. For Third Reading, we pass it and hopefully the Members of the National Assembly will also see the importance of it.

Mr. Temporary Speaker, Sir, last week, three schools were set ablaze. In fact, if we had this Bill in place and had one command centre, we would respond. There is a lady who works with National Hospital Insurance Fund (NHIF) and her name is Judy. Judy at

Thank you, Mr. Temporary Speaker, Sir. Thank you very much Sen. Olekina and Sen. Cherargei. I also thank Sen. Were who gave very good contributions. Sen. Orengo as well had a lot to say and many who wanted to speak had a lot to say. I know Sen. Halake wanted to contribute to this, but we really need to put the question tomorrow or the next available opportunity.

I also thank Sen. Kang’ata. He spoke to this Bill and a number of reservations, but we were able to clarify. The biggest fear because he claims to be almost a Republican, he does not like big Government. He thought we were creating a new agency. I was able to clarify that what we are doing is not creating a new agency, but bringing together the

uncoordinated multiple agencies where the left hand does not know what the right hand is doing.

Mr. Temporary Speaker, Sir, we have the National Disaster Management Unit (NDMU), National Disaster Operations Centre (NDOC) and the Department of Special Programmes where it depends on who you know before you can get assistance to your people. Now all of those agencies are coming together to become the National Disaster Management Authority (NDMA) where we will have coordination. Today most Kenyans do not know who to call when there is a disaster. Those who they call do not know what to do in response.

In a nutshell, that is what we are trying to do and to prevent early warning signals. For the recurring areas, how do you do mitigation and training? If there was a terrorist attack today, God forbid, in this city centre, even we, in the Senate, do not know what to do.

Mr. Temporary Speaker, Sir, those who have watched the 9/11 documentary when planes crush into the building, they can tell you what the US has been able to do in preparing the people and children in school for all manners of disasters; manmade disasters or natural calamities.

We brought this Bill because we are tired of being called to respond to fires at

Hon. Senators, I defer putting of question until a later date.

Hon. Senators, it is now 6.30