Mr. Deputy Speaker, Sir, I wish to give notices of the following Motions:- THAT, in view of the Government policy to provide quality education for all children in Kenya; conscious that the foundation for quality education starts with the early childhood education at pre-primary school; aware that the Government trains, recruits and provides teaching staff for all public primary, secondary and post-secondary institutions; and noting with appreciation the implementation of free primary education since 2003 and tuition-free secondary education from January, 2008; this House grants leave to introduce a Bill for an Act of Parliament to amend the Education Act (Cap.211), Laws of Kenya, to provide for training, recruitment and provision of early childhood education teaching staff in all public pre-primary and secondary schools in Kenya. ESTABLISHMENT OF SPECIAL EMPLOYMENT PROGRAMME THAT, in view of the Government's goals and policy to create 500,000 jobs annually; aware of the various measures and reforms being instituted to address the challenges arising from the fact that a huge portion of our population is youthful, educated, jobless and restless; appreciating that the economy has been turned round onto a positive growth path; noting that good governance measures, so far undertaken, have plugged leakages in revenue collection and public expenditures; recognising the great need for additional manpower in various economic sectors to spur accelerated socio-economic development; further aware that the private sector 1220 PARLIAMENTARY DEBATES May 9, 2007 has started posting increasing profits since 2003; and conscious of the contribution of the private sector in work creation and social responsibility; this House urges the Government to establish a special employment programme to be known as the New Deal in which a specific budgetary allocation would be made so as to employ at least 250,000 people in the public sector annually and persuade the private sector to employ a similar number annually with a certain minimum number to be employed from each constituency in the country. A BILL TO AMEND THE KTDA ACT THAT, in view of the Government's prime goal and policy to spur the economy to accelerate its goals to catch up with the Asian economic tigers; conscious that agriculture is the engine of the country's economic development; noting with appreciation that the tea sub-sector has sustained itself as well as the economy through a very long recessionary period without any direct Government investment; cognisant that small-scale tea production has by far surpassed the existing factories' processing capacity with resultant enormous loss and wastage of green leave; bearing in mind that the cost of factory construction is sky-high and beyond the ability of the small-scale farmer; and commending the Government's demonstrated commitment to reaffirm, boost, rehabilitate, revive, and or expand various important sectors of the economy; this House grants leave to introduce a Bill for an Act of Parliament to amend the KTDA Act to provide for urgent direct Government investment in the rehabilitation, expansion or construction of tea factories to adequately process tea produced by small-scale farmer throughout the country
Hon. members, before we go to the next Order, it is necessary that the Chair issues another Communication. Hon. Members will recall that the hon. Member for Gem Constituency, Mr. Jakoyo Midiwo, gave a notice of Motion on Thursday, 3rd, May, 2007 which I nullified yesterday. For the interest of this House, I wish to inform hon. Members on what transpired, especially in view of Mr. Midiwo's statements highlighted in the media. I, therefore, wish to inform hon. Members and the House, as follows: The hon. Member presented his draft Motion to the Speaker on 24th April, 2007. Mr. Speaker then directed that the Motion be re-drafted to conform with provisions of Standing Order No.40(1)(2)(3)(4). The Motion was accordingly re-drafted as directed by the Speaker. I personally invited the hon. Member to my Chamber on Wednesday, 2nd May, 2007 to discuss the re-drafted Motion. After our discussion, the hon. Member agreed with the re-drafted version, which I immediately approved. I further advised the hon. Member that I would give him an opportunity to May 9, 2007 PARLIAMENTARY DEBATES 1221 give notice of the Motion on Thursday, 3rd May, 2007. Later, on perusal of the HANSARD of Thursday, 3rd May, 2007, it transpired that the Motion that Mr. Midiwo gave notice of was not the version that had been approved in accordance with Standing Order No.40 and as approved by me. It was for this reason that I gave a Communication from the Chair yesterday and gave the hon. Member another chance to give notice of the approved Motion. Hon. Members may wish to know that, as a matter of fact, the hon. Member gave notice of the approved Motion this morning. Hon. Members, may I take this opportunity to express my dismay that after the hon. Member was advised on the rules of procedure governing Motions and asked to give notice of the approved Motion, he chose to address a Press conference, castigating the Chair. I was even more surprised to hear Mr. Midiwo say that the House will go on recess on 17th May, 2007, which is not true. I wish to state categorically, therefore, that the Chair has no personal interest in this matter. However, the Chair has an interest and responsibility to enforce the rules of the House. As hon. Members are aware, I have stated many times that this is a responsibility that I will discharge without fear or favour, and, may I add, absolutely without any intimidation. The dignity of this House, its respect and honour in the eyes of the public will lie much more on how hon. Members conduct themselves both inside and outside the Chamber. Let us be men and women of honour of this nation. I personally take exception to the insinuation by Mr. Midiwo, more so after we had agreed on the terms of the Motion in my Chamber on Wednesday, 2nd May, 2007. I will, however, leave the matter to his conscience. Nevertheless, may I re-affirm that the Chair will continue to enforce the rules that guide the conduct of business without exception. I, therefore, urge hon. Members not to drag the Chair into issues that are extraneous to the Office of the Speaker. Thank you.
Mr. Deputy Speaker, Sir, I beg to ask the Minister for Livestock and Fisheries Development the following Question by Private Notice. (a) Is the Minister aware that hundreds of camels have died in Mandera District in the past two months due to a mysterious disease? (b) Is he further aware that the epidemic is fast spreading, with over 50 camels dead between 17th and 19th April, 2007 in Wargadud Division alone? (c) What urgent action is the Ministry taking to safeguard the livelihood of the people of the region and control the epidemic?
Mr. Deputy Speaker, Sir, before I reply, I would like to urge you to allow me a little more time, because the answer is long. Mr. Deputy Speaker, Sir, I beg to reply. (a) I am aware that there were reported cases of deaths of camels in Mandera District in the month of February, 2007. Investigations by experts from my Ministry found out that the deaths were as a result of poor husbandry and suspected mineral deficiency, that is, magnesium and calcium. 1222 PARLIAMENTARY DEBATES May 9, 2007 (b) I am not aware of the spread of any epidemic in Wargadud Division, which caused the deaths of 50 camels between 17th and 19th April, 2007. However, I acknowledge that one camel owner who claimed to have lost 20 out of 110 camels was not able to produce evidence of the dead animals to veterinary doctors. Nevertheless, samples were taken from his herd for laboratory diagnosis and the results turned out to be negative for the following common camel diseases in that area: Haemorrhagic septicemia, acute trypanosomiasis, Rift Valley fever and anthrax. These tests were done free of charge. We even looked for evidence of hides and skin or carcases that may have been buried, but nothing could be traced. Further, another team of experts was dispatched to Mandera District Veterinary Officer. The experts visited the following areas: Fincharo was visited on 29th March, 2007, where only two decomposed carcases were found; El Wak was visited on 1st April, 2007, where no evidence of deaths was found; Lefty was visited on 8th April, where nothing was found; Takaba was visited on 11th April, 2007, where no carcases were found; Shabii was visited on 22nd April, where three decomposed carcases were found.
Mr. Minister, your answer is now turning out to be a Ministerial Statement.
Mr. Deputy Speaker, Sir, I had asked for a little more time.
I know you did but, you see, again, I have been standing here and saying that we must follow the rules of this House.
Mr. Deputy Speaker, Sir, I am finishing!
Are you now on part (c) of the Question?
Mr. Deputy Speaker, Sir, allow me to finish. I am on part (c), which is the last one. I asked for extra time because I knew the importance of this Question.
Mr. Deputy Speaker, Sir, I would like to continue answering the question as follows: (c) In order to address the problem, the Government, through the Veterinary Department, has already taken action as evidenced above. Active surveillance is being carried out in the entire North Eastern Province. In fact, last week, we gave out Kshs3.5 million for purchase of laboratory reagents for all the other veterinary laboratories in the region.
Thank you, Mr. Minister.
Mr. Deputy Speaker, Sir, I am not satisfied with this answer. If there is any Ministry where the Minister sleeps on his job, and which does not perform, it is the Ministry of Livestock and Fisheries Development. Last year, the Rift Valley fever disease killed thousands of animals. It spread until it reached Nairobi before they woke up. Today, he is denying that the epidemic, which is sweeping through Mandera and Wajir, does not exist. Is he waiting until it reaches Nairobi before he can wake up? With all due respect, I want to tell the Minister that, in spite of his long answer, he has not told the House the cause of the disease that is killing the animals. After having done all those laboratory tests, what is the cause of the disease? Have they identified it? What action have they taken? No action has been mentioned in the written answer. He is just saying that the action taken has been stated in parts (a) and (b) of the written answer, but there is no action that has been mentioned.
Mr. Billow, let the Minister answer the question. The question is: Have you identified the disease? Mr. Minister! May 9, 2007 PARLIAMENTARY DEBATES 1223
Mr. Deputy Speaker, Sir, I agree with the statement that you made earlier. This confirms that this is the only forum where an hon. Member can say whatever he wants about me and I keep quiet. If hon. Members can say things about the Speaker, how about me? If there is any Ministry that is effective and efficient, it must be the Ministry of Livestock and Fisheries Development. Even last year, when livestock were faced with a famine, I gave famine relief to animals in Mandera to show the concern that I have for livestock. From the time we received this Question, we have been treating it very seriously. I recall that the hon. Member had, twice, requested a Ministerial Statement on the matter, but it was not issued. Then he brought this Question. All that time, we sent officers to Mandera, Wajir and elsewhere, because we were told that the animals were dying one at a time while being milked, but not in the numbers that have been given by the hon. Member. My concern for the animals is more than that of the hon. Member of Parliament. So, let me assure you that we have done all sorts of tests, and that we are still in the process of identifying what killed the few animals that died. For us, one dead animal is equivalent to even 1,000--- We do not want them to die.
Order! let someone else help you! The Minister has said that they are still testing. They have not identified, if I got him correctly.
Mr. Deputy Speaker, Sir, I do not intend to criticise the Minister as a person. The Minister said that these animals are dying because of mineral deficiency and poor husbandry. We all know that camels are not reared in Nyahururu which is very cold. They are normally reared in the parts where these animals are dying. If these animals have survived for all these years in that environment, why is there a deficiency of minerals now? Minerals come from the ground and camels do not graze, but they eat leaves and trees. Could the Minister tell us how this was discovered?
Mr. Deputy Speaker, Sir, I appreciate the concern of Mr. M.Y. Haji and the way he framed his question. The moment this disease was reported we got samples from each families. In Mandera we took some samples from Hassan Ibrahim on 19th April, and after testing we found that --- Out of the four animals that were affected, one died. We even got another sample from Jibor in Mandera on 7th April. In the course of doing the diagnosis nothing was isolated. We took about 10 samples. Up to now we have not identified exactly what is affecting these animals.
Mr. Deputy Speaker, Sir, you have heard that the camels from North Eastern Province are dying from a mysterious disease. There are meat consumers from Eastleigh who get regular supply of camel meat. What preventive measures is the Ministry taking to ensure that people do not die of that mysterious disease the way they died of Rift Valley Fever.
Mr. Deputy Speaker, Sir, I explained very well that when we tested samples taken from these animals we did not find anything to be associated with a killer disease.
Mr. Deputy Speaker, Sir, during the last drought many parts of this country lost a lot of animals. People in Mandera Central are losing camels. Could the Minister consider restocking these animals because they are the main means of the livelihood for the people in that area?
Mr. Deputy Speaker, Sir, that is a good question from a concerned hon. Member who has no camel let alone a chicken. The number as stipulated by Mr. Billow is not that much. By the time we went there we only heard that someone had lost 20 camels, but he did not produce any evidence. Since camels are of double benefit to the farmer, we will see what we can 1224 PARLIAMENTARY DEBATES May 9, 2007 do about it.
Mr. Deputy Speaker, Sir, I am not happy with the answer to this Question. The Minister is misleading this House. He has a written report from the Director of Veterinary Services in Mandera that up to 300 camels have died in the month of April alone. If the Minister is unable to confirm that from January they have been taking samples and they cannot identify the disease and yet we know there is a report, can he go back and get a proper answer so that I can also table a copy of the report that has been given which confirms that over 300 animals died in this location that I am talking about? Could I ask that this Question be deferred until the Minister gets a satisfactory answer because we cannot allow animals to die.
Mr. Minister, if that is the case and you wish to get more information we can defer the Question.
Mr. Deputy Speaker, Sir, you know how much I love animals. If that was the case I would be the first person to stand here and confirm to the House that I will come and do it. The Director of Veterinary Services came yesterday to confirm the evidence. We are continuing to examine the evidence. If I get new evidence I promise to bring it to this House.
On a point of order, Mr. Deputy Speaker, Sir. The Minister is engaging in theatrics. We want this Question answered. Animals are dying and he is pretending that there are results from samples taken to the laboratory in Nairobi for the last four months. He is not serious! Could we defer this Question so that the Minister can bring a proper answer to this House?
Mr. Billow, why do you not lay on the Table the report you are talking about?
Mr. Deputy Speaker, Sir, that is why I am saying that we defer the Question and give the Minister time to come with a proper answer. If he does not I will table the report from his Director of Veterinary Services.
You do not have the report now?
On a point of order, Mr. Deputy Speaker, Sir. I would like to thank Mr. Billow for raising this important question.
What is it? You stood on a point of order.
Mr. Deputy Speaker, Sir, the problem is genuine. This problem has also been reported in my constituency. I have given the report to my District Livestock Officer to find out because it has also been reported in my Moyale Constituency that livestock are dying over certain mysterious diseases. I have given some time to my District Livestock Officer to come up with a report to tell me what is causing this disease.
Mr. W. Galgallo, what is it? You stood up on a point of order. What is out of order?
Mr. Deputy Speaker, Sir, my question is---
He is a new hon. Member! I will allow him to ask a question. Ask your question!
Mr. Deputy Speaker, Sir, the problem is genuine because the disease has been reported in other areas. I would like the Minister concerned to tell us exactly what has caused this problem without merely saying that it is a mysterious disease.
Mr. Deputy Speaker, Sir, it seems the hon. Member was talking about livestock and not camels. If he directs his Question to me I will answer it.
Mr. Minister, camels are within the category of livestock. Hon. May 9, 2007 PARLIAMENTARY DEBATES 1225 Members, there is not much more I can do with the Minister. Therefore, we will go to Ordinary Questions.
asked the Minister for Livestock and Fisheries what steps he is taking to avert the spread of the Rift Valley Fever in Kirinyaga District.
Mr. Deputy Speaker, Sir, I beg to reply. My Ministry has already contained the spread of Rift Valley Fever in all the affected areas in the country including Kirinyaga District. The disease was effectively controlled by employing the following measures: Vaccinations - We used 65,000 doses of Rift Valley Fever vaccines in Kirinyaga and a total of 45,000 livestock were vaccinated. We treated animals through the system we call pour-on where we use about 432 litres of spray. We also practised quarantine from February. We lifted the quarantine in Kirinyaga on 13th April. We conducted public education. We held several meetings which were on 25th for farmers in Thiba; on 22nd for farmers in Mutithi; on 29th for farmers in Tembere and on 15th for farmers in Sagana. All these efforts, along with conversations held in boardrooms, have finally cleared the symptoms of Rift Valley Fever. Therefore, the disease no longer exists in Kirinyaga District.
Mr. Deputy Speaker, Sir, I would like to thank the Minister for that answer. But what he has told the House is exactly what my friend, hon. Billow, was complaining about. It takes too long for one to tell that a disease is about to spread. It took very long for these animals to come to Kirinyaga all the way from North Eastern Province. What measures is the Minister taking to make sure that the animals which are in Kirinyaga District are totally free from Rift Valley Fever? According to me, the Ministry has not taken enough measures to prevent the disease.
Mr. Deputy Speaker, Sir, I must thank the Treasury for acting with speed to give us the money that we required. I also do thank donors, particularly, friendly countries which actually helped us to control the disease. I must also say that the Rift Valley Fever is not a new disease. In fact, this was the third time for this disease to spread in Kenya. It is caused by mosquitoes, but now we have methods in place to control the disease even before it spreads. We are using chemicals to prevent the breeding of mosquitoes, especially during the heavy rains.
Last question, Mr. Karaba!
Mr. Deputy Speaker, Sir, the hospitals which were supposed to treat the victims were not properly equipped with equipment and drugs which could control the Rift Valley Fever. Some people were turned away when they went to seek treatment at the Kenyatta National Hospital. They were told to go back to Kirinyaga. As a result, if their relatives did not act swiftly, some of them almost died. What plans does the Ministry have to make sure that in the future hospitals are equipped with the right equipment and drugs to treat livestock diseases?
Mr. Deputy Speaker, Sir, I am the Minister for Livestock and Fisheries Development. Livestock does not need admission in hospitals. We treat animals in the field. Therefore, the hon. Member should direct his question to the Ministry of Health.
1226 PARLIAMENTARY DEBATES May 9, 2007
Next Question by the Member of Parliament for Nyakach Constituency!
asked the Minister of State for Administration and National Security:- (a) whether he is aware that the District Officer, Nyakach Division has not had an official vehicle for the past four years; and, (b) whether he could state when the officer will be provided with a vehicle.
Mr. Deputy Speaker, Sir, I beg to reply. (a) I am not aware that the District Officer (DO) for Nyakach Division has not had a vehicle for four years. What I know is that Nyakach has two divisions and two vehicles. One of the vehicles is running and the other one is in the garage pending repairs. Currently, the two divisions, that is, Upper Division and Lower Nyakach Division, share transport. (b) The two divisions will be considered for another vehicle along with other new divisions when new vehicles are purchased during the next financial year.
Mr. Deputy Speaker, Sir, it is only a few days ago when the Government stated on the Floor of this House that there are over 1,000 vehicles which have been recovered from various Ministries. The DO for Upper Nyakach Division has not had a vehicle for four years, whether in the garage or not. Could the Assistant Minister assure this House that he will allocate one vehicle to Upper Nyakach out of the 1,000 vehicles that were recovered by the Ministry of Finance? These vehicles are lying idle, yet, Upper Nyakach, with Government assets in excess of Kshs10 billion, does not have a vehicle.
Mr. Deputy Speaker, Sir, I think the vehicles that the hon. Member is talking about are the ones that were withdrawn from the roads because of their excess engine capacities. There is no way we can take them back unless the policy is changed. However, like I said in my answer, the DO for Lower Nyakach Division has a vehicle that is running. It is a Land Rover registration number GK H571. The DO for Upper Nyakach Division also has a Land Rover which is relatively new, but it has a small mechanical problem that requires repair, before it is sent back to him.
Mr. Deputy Speaker, Sir, it is rather sad that the Assistant Minister is merely answering this Question without thinking about the weight behind it. One wonders why one Ministry is withdrawing vehicles when another one needs more vehicles. The Minister for Finance told us that he will save Kshs1.4 billion by withdrawing some Government vehicles. Surely, his statement does not carry any weight. In Nyeri Town, the DO has no vehicle. We have to hire a taxi to enable him to attend to the residents. What is the Assistant Minister doing to ensure that all DOs, including the ones in Nyakach and Nyeri, get means of transport?
I think that is a good question. Could you address it, Mr. Assistant Minister?
Mr. Deputy Speaker, Sir, the problem is constraints. When we send our requirements to the Ministry of Finance, we--- For example, this financial year we had asked for Kshs800 million, but we were only given half of it, that is, Kshs400 million. So, in such May 9, 2007 PARLIAMENTARY DEBATES 1227 circumstances we will only be able to purchase vehicles for half the number of the DOs that we had targeted. But, as I said, we are endeavouring to ensure that every DO eventually has a vehicle. That is why I have said that those DOs who were not given a vehicle during this financial year, will be given first priority in the next financial year.
Last question, Mr. Odoyo!
Mr. Deputy Speaker, Sir, I think the Assistant Minister has proved on the Floor of this House that, indeed, he is not doing any research. For example, he has said that the DO for Lower Nyakach Division has a Land Rover, when, in fact, he has a Toyota Land Cruiser. This is a continuing case where the Assistant Minister does not know what the DOs and District Commissioners (DCs) are doing. How much money has the Assistant Minister allocated to the DO for Upper Nyakach Division for the repair of this particular vehicle which he says has been lying in the garage for four years?
Mr. Deputy Speaker, Sir, I started by saying that the two divisions, at the moment, are sharing one vehicle. So, if the hon. Member saw a Toyota Land Cruiser in Lower Nyakach Division, it does not mean that in our records, it belongs to Upper or Lower Nyakach. We have our records which are intact. If the hon. Member comes to our office, we will tell him exactly which vehicles belong to which divisions. As for the repair of the vehicle, the DO has requested for Kshs205,000, which we are looking for. Once we get this money, we will send it, so that the vehicle can be repaired.
asked the Minister for Co-operative Development and Marketing what support, financial and technical he is giving to Bureti Tea SACCO to strengthen its operations.
I have seen today two hon. Members limping seriously. What is happening? I am sorry!
It is called the rich man's disease!
I am sorry!
Mr. Deputy Speaker, Sir, on behalf of the Minister for Co-operative Development and Marketing and in the spirit of collective responsibility, I beg to reply. I have continuously offered Bureti Tea SACCO technical support in terms of planning, direction and supervision, inspection of the SACCO activities besides organising education and training programmes. Whereas in terms of financial support my Ministry does not directly offer this facility, I have continuously approved the loan borrowing facilities for the SACCO. Thank you.
Mr. Deputy Speaker, Sir, I am happy for this Assistant Minister because he is a rich man and that is why he is limping today. Mr. Deputy Speaker, Sir, that aside, SACCOs handle a lot of the money for farmers, teachers and other Kenyans in the rural areas. This money must be given due attention and protection so that those people do not suffer losses because of mismanagement or theft. I am happy that the Minister is saying that they offer training. I would like to ask how often do they conduct 1228 PARLIAMENTARY DEBATES May 9, 2007 audit on those institutions so that it is known how the money is made and spent.
Mr. Deputy Speaker, Sir, first of all, I would like to tell the hon. Member that the current committee that came in place on 14th May, 2006, has done commendable work. Right now, we can say that the SACCO in question, if I may borrow the American words, is out of the woods. The District Co-operative Officer (DCO) is working very closely with the present committee. We are satisfied, as a Ministry, that all is being done to revive the SACCO, which had really sunk very low. So, I would like to assure him that things are looking upwards and everything is being done to make sure that the SACCO stays liquid.
Mr. Deputy Speaker, Sir, in a number of co-operative societies, their officials make decisions without involving the shareholders. What is the Ministry going to do to make sure that the members are involved before any major changes are made in their co-operative societies?
Mr. Deputy Speaker, Sir, as you know, the Co-operative Act came into place in 2004. One of the areas that we are pursuing, is to make sure that the committees liaise very closely and co-operate with the members before they make any serious decisions. In terms of the SACCO that we are talking about, like I said, most of the problems were because of the irregular lending, internal borrowing and loan defaulting. Since the current committee came into place, we are happy to note that all the challenges have been addressed.
Mr. Deputy Speaker, Sir, I am sure the Assistant Minister did not answer my question on audit. However, I will ask my last question. I hope he will also answer the question. The President, on two occasion, while opening Parliament indicated in this House that a Bill is being prepared for the management of SACCOs in the country. Mr. Deputy Speaker, Sir, I would like to tell the Assistant Minister that, that has taken almost three years since it was said. When is this Bill seeing the light of day? When is it being brought to the House for consideration so that those institutions which are very useful are properly managed?
Mr. Deputy Speaker, Sir, that Bill is going to come to the House very soon.
Thank you, Mr. Assistant Minister. Next Question by Mr. Osundwa!
asked the Minister for Justice and Constitutional Affairs:- (a) what led to the cancellation of the swearing-in ceremony at State House, Nairobi on December 6th 2006, of Mr. Aggrey Muchelule, Ms. Florence Muchemi and Ms. Abida Ali-Aroni as judges; and, (b) whether she could confirm the names of the judges-designate had been entered into the register of judges, in keeping with the tradition established by the High Court since Independence.
May 9, 2007 PARLIAMENTARY DEBATES 1229
Just a minute! I think the Assistant Minister has something for you! Let us hear him first!
Mr. Deputy Speaker, Sir, I am sorry. I beg the indulgence of the House on this matter. I needed to finalise some information that was necessary for us to put together before we give the proper answer. So, I am requesting for the indulgence of the House and time if I could be allowed to answer the Question on Thursday next week.
Mr. Deputy Speaker, Sir, this is unacceptable!
Mr. Deputy Speaker, Sir, from the Assistant Minister's Office to the Chief Justice's Office is just a walking distance. What time does he want? I plead with you to put this Question on the Order Paper tomorrow afternoon.
Mr. Osundwa, if the Assistant Minister says that he needs so many days, for the Chair to say: "It is tomorrow!" and then nothing comes--- It is better to accede to his request and then you get what you want. Therefore, the Chair directs that we defer the Question till Thursday, next week. Mr. Assistant Minister, you had better bring an answer!
On a point of order, Mr. Deputy Speaker, Sir.
What is out of order, Mr. Osundwa?
Mr. Deputy Speaker, Sir, Tuesday is most appropriate. Thursday is too far! Those judges who were not---
Order, Mr. Osundwa! Let us not debate a Question which is not on the Floor. I am pleading with you that the Assistant Minister has pleaded to be given up to Thursday. I do not want to give orders which I may not be able to enforce. The Assistant Minister thinks the --- He thinks that can be solved after evaluation and that he can get an answer on Thursday. He is not asking for too much. It is just one week. Therefore, it is so ordered.
Next Question, by Eng. Nyamunga!
asked the Minister for Water and Irrigation:- (a) how much money the Ministry has allocated in the Budget per year from the Financial Year 2003/2004 to 2006/2007 for construction of dykes along River Nyando for purposes of controlling floods; (b) whether he is aware that many families were displaced by the floods in February, 2007, as a result of non-completion of the dykes project; and, (c) when the project will be completed.
Mr. Deputy Speaker, Sir, I beg to reply. (a) My Ministry has allocated funds for construction and rehabilitation of dykes along River Nyando, as follows. 1230 PARLIAMENTARY DEBATES May 9, 2007 Financial Year 2003/2004, no money was allocated; Financial Year 2004/2005, Kshs7.1 million; Financial Year 2005/2006, Kshs24.6 million and Financial Year 2006/2007, Kshs24 million. (b) I am aware that heavy floods experienced in February, 2007, resulted in the damage of a section of the embankment that was still under construction. My Ministry, through the National Water Conservation and Pipeline Corporation (NWCPC) is undertaking repair of this section and constructing new dykes on the downstream of this section. (c) Construction of new dykes on the remaining section of six kilometres will be completed in the next two to three years. My Ministry will continue to undertake routine maintenance works, which include raising the heights of existing dykes, taming of the river, dredging of tributaries and the mouth of the lake.
Before I invite another question, on the matter of the Question we have just dealt with by Mr. Osundwa, Question No.232, I think it would be proper--- The Chair wishes to advise hon. Ministers to be in consultation with hon. Members in the event that they are not able to answer their Questions. They should consult so that we avoid these exchanges between hon. Members and the Ministers as to when. It will make my work easier! So, next time I want to ask that Ministers, please, consult with hon. Members and convince them so that the Chair can easily endorse what you what agreed; rather than me issuing orders.
I am actually pleading for Mr. Osundwa but he is not listening! I am saying that on the matter of the Question we have finished, I have advised other Ministers to be consulting hon. Members, in which case the Minister will explain to you further so that we avoid these exchanges in future. Mr. Ogur!
Mr. Deputy Speaker, Sir, the rains that affect River Nyando, is the "sister" of the rains affecting Nyatike through River Gucha from Kisii. When the Assistant Minister is talking about building dykes for the other "sister" of Nyando, why not about River Gucha affecting Nyatike every year? This is very similar and the answer here should have been similar to cover me too. Is he aware that I am being affected every year and I need the dykes that he is now waiting to take to Nyando alone? Is he aware?
Mr. Deputy Speaker, Sir, the answer that I have just given here is in relation to the Question that was asked by the hon. Member for Nyando Constituency. However, the problem of floods is common and the Government is trying its best to construct dykes. The construction of dykes, considering the cost involve, is a continuous process, but also maintaining the ones that are already constructed on a yearly basis is another factor to put into consideration. We are, therefore, maintaining, on a yearly basis, the dykes that have been constructed and at the same time extending them.
Let me now give an opportunity to someone who does not have River Nyando near his constituency.
Bw. Naibu Spika, mafuriko yanayokumba Mkoa wa Magharibi hasa sehemu za Budalang'i, Nyando na Nyanza Kusini hutokea mwaka nenda, mwaka rudi. Mafuriko hayo husababisha hasara kubwa, kwa mfano, huangamiza binadamu, mifugo na kuharibu mali. Je, ni mipango gani halisi ambayo Wizara inaweka ya kuondoa tatizo hili kabisa? Je, mipango hii itatimizwa lini?
Mr. Deputy Speaker, Sir, I agree with the hon. Member that flooding is a common problem in the western region of this country. The short-term measures that the May 9, 2007 PARLIAMENTARY DEBATES 1231 Government is taking is the construction and maintenance of the dykes. However, the long-term solution only lies in trying to control the floods by constructing dams. This is being undertaken through the new initiative of the Western Kenya Community-driven Programme sponsored by the World Bank, which is being implemented through the Ministry of State for Special Programmes. We are liaising with that Ministry in terms of implementation of that project which is now in formative stages. I do not have a lot of details to divulge at the moment. However, that is the long- term plan for controlling floods. It includes the construction of Koru Dam on River Nyando and Kipkaren Dam on River Nzoia.
Mr. Deputy Speaker, Sir, quite a number of the officers who are in charge of controlling floods in Nyando have left because they do not get field allowance and some senior officers are operating from Nairobi. What effort is the Assistant Minister making to correct that problem?
Mr. Deputy Speaker, Sir, I would like to thank the hon. Member for that information. That is an administrative matter and it will be tackled immediately.
Mr. Deputy Speaker, Sir, the Assistant Minister is aware that dykes are a temporary solution. In fact, what happened in Budalang'i in the last two years is that personnel from the Kenya Army and the National Youth Service (NYS) went there with the most modern equipment and constructed dykes. However, this year, we still had floods which affected so many people in Budalang'i. That means that dykes are not a permanent solution at all. Now that the Government is aware that we need to construct dams to control floods and at the same time use them for irrigation purposes - I know that they have already plans for River Nyando and River Nzoia - when will that be completed so that people living along the two rivers stop suffering any more?
Mr. Deputy Speaker, Sir, I very much agree with the hon. Member that dykes are only a temporary solution. The long-term solution is being worked by the Ministry of State for Special Programmes. I had earlier indicated that I did not come with particular information from the Ministry of State for Special Programme to be able to give precise dates about the programme. However, the programme is at an advanced stage. All the designs and everything else has been done and it will kick of any time soon.
asked the Minister for Local Government:- (a) whether he is aware that Bumala Market serves Busia, Siaya, Butere- Mumias and other districts along Kisumu-Busia Road; and, (b) what plans he has to build and improve the market's infrastructure.
Mr. Deputy Speaker, Sir, I beg to reply. (a) I am aware that Bumala Market serves Busia, Siaya, Butere-Mumias and other districts along Kisumu-Busia Road. (b) The Ministry of Local Government has embarked on improving market facilities in all major towns in this country. The Ministry recognises the key role the markets play in the display and distribution of farm produce and other products. Bumala Market will be improved and modernised when the Busia County Council makes it a priority project and requests the funds from the Ministry. 1232 PARLIAMENTARY DEBATES May 9, 2007
Mr. Deputy Speaker, Sir, I would like to thank the Assistant Minister for his answer. However, this is a market that serves a big population. People display there wares in the sunshine and in the rain because they are not sheltered. They operate in the dark and sell food under unhygienic conditions. What plans does the Assistant Minister have to improve the environment under which the people operate in this market?
Mr. Deputy Speaker, Sir, the market is fenced and toilet facilities have been provided. It operates once in a week, particularly on Saturdays. It is incumbent upon the Busia County Council to include that market within its Local Authority Transfer Fund (LATF) development. However, if that is not enough, I said that they could write to the Ministry and let us know that, that is a priority project. This market also serves as a livestock market for the neighbouring areas in that locality.
Prof. Mango, did you ask two questions?
Mr. Deputy Speaker, Sir, I asked the last one.
Yes, you asked the first Question and then the last one.
Mr. Deputy Speaker, Sir, other hon. Members also want to ask their questions.
Order, Prof. Mango! That is not the procedure. What happened is that Prof. Mango asked her Question and it was answered. I looked around to see if there was any hon. Member who wanted to ask another supplementary question, but there was none. So, I asked her to ask her last question and she did so. Am I right, Prof. Mango?
Mr. Deputy Speaker, Sir, I have only asked one question.
Then I beg your pardon! Mr. Sirma!
Mr. Deputy Speaker, Sir, usually, it is the duty of councils in their various jurisdictions to ensure that as they collect cess and other forms of revenue from the public, they should be able to provide adequate facilities commensurate with whatever they collect. Mr. Deputy Speaker, Sir, could the Assistant Minister confirm that, as he proceeds to improve the Bumala Market, a similar programme will be undertaken in every other market in this country?
Mr. Deputy Speaker, Sir---
Order, Mr. Wanjala. Let the Assistant Minister answer the question.
Mr. Deputy Speaker, Sir, I can hear what the hon. Member is saying. But, this is an open market like many others in this country. Surely, to do what we call canopy in order to shield the wares of the sellers from the sun will require a lot of capital investment. Mr. Deputy Speaker, Sir, I can only assure the hon. Member that the Ministry will, on priority basis, depending on the need and capacity of that market, improve. We have actually done many in this country. The list of the markets which have been done is long. For example, Kapsokwony, Chwele, Misikhu, Karuri, Ahero, Muthurwa which is being done now in Nairobi and many others in this country. This Ministry takes cognisant of the fact that agricultural commerce can only flourish when markets are modernised by the councils first, then the Ministry.
Mr. Manoti first and then Mr. Khamisi!
Mr. Deputy Speaker, Sir, a number of our markets have no water or pit latrines. Could the Assistant Minister make sure that when the councils are allocating money, they should allocate in their budgets money for giving traders water and pit latrines? This will assist the traders.
Mr. Deputy Speaker, Sir, that is a very good question and we shall ensure May 9, 2007 PARLIAMENTARY DEBATES 1233 that, that is done.
Mr. Deputy Speaker, Sir, the Assistant Minister has suggested that the county councils could use their Local Authorities Transfer Fund (LATF) to build those markets. I want to inform him that most of the money that is given to the county councils is not enough to build markets. Could he consider building a market in Mtwapa which is a first growing town in Bahari Constituency? It is obvious that the council has failed to build that market. Could he ensure that funds are available?
Order! Mr. Khamisi, finish your question!
Mr. Deputy Speaker, Sir, that is a different Question as it were and if the hon. Member is able to bring that Question up, we shall look at it.
Last question, Prof. Mango!
Mr. Deputy Speaker, Sir, every week Kshs50,000 is collected from the Bumala Market. That means that every month, Kshs200,000 is collected. Could the Assistant tell us what that money does because there is no improvement? People still sit in the open air, in the sun and in the rain. Who uses that money?
Mr. Deputy Speaker, Sir, the market revenue collected is part of the Busia County Council revenue to provide other services within the area of jurisdiction. The fact that Kshs50,000 is collected from that market does not necessarily mean that, that money must be used in that market. But we have instructed Busia County Council to consider that market and improve a number of areas. For example, they should get the water there and also improve the facilities around the market so that, in future, the heavy capital investment could be done through other Vote Heads. I can assure the hon. Member that this market is a priority market and we are only waiting for Busia County Council to make it a priority so that we can go ahead.
Thank you, Mr. Muchiri. Hon. Members, that is the end of Question Time. Before we go to the next Order, the Vice-President and Minister for Home Affairs has a Ministerial Statement to make.
Mr. Deputy Speaker, Sir, after careful consultations with Members of the House Business Committee, the following hon. Members have been appointed to serve in Committees under which their names appear:-
On a point of order, Mr. Deputy Speaker, Sir. You heard the Vice-President read out in the Library Committee a Rev. James Nyagudi. I do not know whether he meant Ken Nyagudi or is there another James Nyagudi?
Some clarification there, Your Excellency. The hon. Member's name is Ken Nyagudi; he is a reverend, but he is not James. Did you mean him?
Mr. Deputy Speaker, Sir, my deepest and sincerest apologies to the reverend. It is Rev. Ken Nyagudi.
Thank you. Next Order!
On a point of order, Mr. Deputy Speaker, Sir.
Sorry; what is your point of order, Mr. Khamisi?
Mr. Deputy Speaker, Sir, I rise on a point of order to tell the Vice-President and Minister for Home Affairs that the list he has just read out has been very exclusive, because there are still Members of Parliament who are not in any of the Committees that have been mentioned in this House, yet there are others that are occupying more than one position in these Committees.
Vice-President and Minister for Home Affairs, would you address that issue by the hon. Member?
Mr. Deputy Speaker, Sir, before the appointments, we do consult the various parties that are represented in here. Mr. Deputy Speaker, Sir, I would like to consult further, if that is necessary, to ensure that every Member of Parliament is represented in the Committees, as it is their right. Thank you.
Thank you. The Chair would like to emphasise what it has done in the past, that there is no point in having one Member serving two Committees when other Members are not serving in any Committee. Therefore, I am pleading with the House Business Committee to ensure that all Members serve in Committees, because it is very important. Most of the work of Parliament now is done through Committees, and if, then, Members are excluded from Committees, then they will not be providing the services that they are elected to provide. I thank the Vice-President and Minister for Home Affairs for giving the assurance that, that will be done. What is it, Mr. Mghanga?
Bw. Naibu Spika, nilikuwa ninataka tu kumuomba Makamu wa Rais na Waziri wa Mashauri Nchini kwamba wakati atakuwa anapata ule ushauri wa vyama aelewe hali halisi kwamba vyama vingine haviko kama vile viliyokuwa; vilihama upande wa kulia na kuja upande wa kushoto. May 9, 2007 PARLIAMENTARY DEBATES 1237
I will let the Vice-President handle that.
Bw. Naibu Spika, nimemsikia kamili Mbunge na nitaangalia maslahi yake, kwa sababu ninafikiri amedhulumiwa na vyama ambavyo vilihamia upande mwingine na haviko kama vilivyokuwa. Ahsante.
On a point of order, Mr. Deputy Speaker, Sir.
What is it, Mr. Sungu?
Mr. Deputy Speaker, Sir, with your permission---
Is it on the same issue?
Yes, I just want to thank the Vice-President and Minister for Home Affairs and the House Business Committee for finally giving me a Committee because I have been without a Committee for over one and half years. Thank you so much. I am grateful. Thank you.
Well, I think it is very good to hear a Member being thankful.
What is it, Mr. Ivuti? I think now, Members, we must go to the next Order. Next Order!
Now, who was contributing? Mr. Muturi was on the Floor. How many more minutes?
Mr. Deputy Speaker, Sir, I was giving the Official Response.
Oh, you were giving the Official Opposition Response! Very good, continue. No time limit.
Thank you, Mr. Deputy Speaker, Sir. As I was saying yesterday, this Bill is most welcome, if for no other reason, because it updates our own Employment Act, Cap.226, Laws of Kenya, which is really old and a colonial relic. Mr. Deputy Speaker, Sir, I was on the verge of saying that seven of the provisions of this Bill need rethinking. Just to refresh our memory, I had just said if you look at the definitions' section on what is defined as disability, I did indicate that I think it is unacceptable that a person who is HIV positive should be described as a disabled person. Mr. Deputy Speaker, Sir, it is wrong to have that kind of definition in our law. I believe the good Minister will look at that particular provision It is obviously contrary to other existing legislation, and also, I think, obnoxious, to say the least. A person who is HIV positive is not disabled, especially now that we know that there are life-prolonging medicines. Therefore, I think it is not fair to have this kind of definition in the proposed Act. Mr. Deputy Speaker, Sir, if you look at the Order Paper for today, will you notice that about three other Bills have just been read for the First Time. If you look at these Bills, you will see that it makes reference to, and I did point this one out--- Mr. Deputy Speaker, Sir, if you look at this Bill, it makes reference to the Labour Institutions Bill, and I pointed this out earlier. What is referred to as the Labour Institutions Act is, in fact, the Bill which has just been read for the First Time. It is not, therefore, an Act of Parliament. Mr. Deputy Speaker, Sir, the point I am making here is this: There is a danger that, if you incorporate some definition in this Bill which is to be found in that Bill which has just been read for the First Time, it presupposes that Parliament will enact that other Bill in that form. What will happen then if Parliament does not enact the Labour Institutions Bill in the form that it is, giving the meanings of certain words which are in this Bill in the manner that they have been captured in that other Bill? It means that there will be a contradiction. I advised that it is necessary and important, because I can appreciate that the Government has been a bit slow. I do not know whether they have been asleep, but they had to be awakened by the International Labour Organization (ILO). All the five Bills have been promulgated or developed under the instigation and advice of the ILO. Therefore, it is important that our own people and bureaucrats are careful about some of the phrases that they use in crafting some of these legislations. We need legislation that will have proper application within the confines of Kenya. It does not matter how qualified the fellows from ILO in Switzerland and such other places may be. The local circumstances of Kenya must at all times be paramount! We cannot be guided by any other considerations. Therefore, it is for this reason that I suspect that we find some of these definitions in the manner that they are. Last week, I was in a conference and, without naming names, I came across some piece of legislation in a neighbouring country that, actually, under the instigation of donors, ousted the jurisdiction of that country's Controller and Auditor-General to scrutinise, by way of audit, books May 9, 2007 PARLIAMENTARY DEBATES 1239 of accounts for certain projects in that country. When we tried to find out the reasons in the conference, we were told that it was at the instigation of donors. Therefore, as much as we welcome friendship, that friendship must also have respect for the peculiar circumstances of Kenya and Kenyans. That is the point I am making. Mr. Deputy Speaker, Sir, looking at these definitions further, if you look at page 150, there is a definition of who an employer is. It says: "employer" means any person including the Government who employs, or has employed an employee and, where appropriate, includes- (a) an heir, successor, assignee or transfer or of an employer" So, your heir will be an employer. I doubt whether this is really what we mean! That, any heir, successor, assignee or transfer--- I believe they meant "transferee" where they wrote "transfer". The point I am making is that, we need to be careful about some of these phrases because, like they keep saying, English language sometimes changes rather fast and, perhaps, our technocrats may not have looked at this. While still on that issue of employer, in Clause 5, the Bills says: (1) "It shall be the duty of the Minister, Labour Officer, the National Labour Court and the sub-ordinate labour courts- (a) to promote equality of opportunity in employment in order to eliminate discrimination in employment; and (b) to promote and guarantee equality of opportunity for a person who is a migrant worker or a member of the family of the migrant worker, lawfully within Kenya". The reason I picked this Section is this: The Minister referred to here in terms of this Bill is the Minister for the time being responsible for labour matters. But I have also just read out the definition of an employer to include the Government. Therefore, in the context of this Bill, it means that there is need for this Government to reorganise itself since the Minister for Labour and Human Resource Development then would appear, at the enactment of this Bill, to be the one to superintend over Rev. Moses Akaranga, who is the Minister for Public Service. This is an altruism in the current arrangement. Therefore, since the Government is also bound and, indeed, this Act shall bind the Government, and therefore, where it is the Minister for Labour and Human Resource Development who is supposed to ensure equality and opportunity in employment and, of course, enforce it, then it means that the Minister for Labour and Human Resource Development, hon. Newton Wanjala Kulundu, should be the one now to superintend over the Rev. Moses Akaranga, the Minister for Public Service, in terms of this Bill once we enact it into law. If that is not the intention, I think that an appropriate arrangement ought to be found to avoid any possible conflict between persons that may, from time to time, be given responsibility to superintend over employment in the public service. But, of course, it is important that this Act, as proposed--- And I welcome it and support it. It says:- "This Act shall bind the Government" This is important and, therefore, all I am saying is that there should be some rethink. Mr. Deputy Speaker, Sir, there is proposed to be an official called "registrar" on page 153. It says: "registrar" means the registrar of trade unions appointed under the Labour Institutions Act;---" Once again, there is no such Act; it is the Bill which has just been read for the First Time. So, when that Bill comes up for the Second and Third Reading and we do not enact it in the manner proposed, it means that then, the Minister will have to think of defining "the registrar". Mr. Deputy Speaker, Sir, I am giving this advice for free to the Minister. They do not need to import meanings from some Bill because, indeed, that breaches our own Standing Orders, 1240 PARLIAMENTARY DEBATES May 9, 2007 because that is anticipating debate. We do not know whether this Parliament will enact that Bill in the manner that it is. Mr. Deputy Speaker, Sir, I welcome the innovation here of something called "sub-ordinate labour courts". In fact, my only quarrel---
Can I have some order there at that corner? Continue, Mr. Muturi!
Mr. Deputy Speaker, Sir, I said that I welcome this innovation here called "sub-ordinate labour courts". But it is defined again to mean: "subordinate labour court" means a subordinate labour court established by the Labour Institutions Act. So, the same argument that I have advanced regarding the office of the registrar and that, as I said yesterday, of the person they are calling the "director" and even where they have imported the meaning of a medical doctor. The same, same argument obtains. The innovation is good, but let us just give the meaning here. We want to establish subordinate labour courts, but can we clearly establish them under this Bill and give those subordinate courts specific jurisdictions? Mr. Deputy Speaker, Sir, the reason I welcome this development is that, granted that an employer is defined somewhere here in greater detail, as a person who would be required to keep a register of all his employees if he employs over 25 people.That means we are talking about employment at the very low levels in the villages. The innovation and beauty of having a subordinate labour court is that people working in the rural areas will have access to some form of justice when they suffer or when they are subjected to some minor mistreatment at their places of work. In the past, as long as the dispute was labour-related, the matter had to be reported to the labour officer and the trade unions. There are not many trade unions in the rural areas. Actually, very many cases of violations of the rights of workers have gone without being addressed.
Order, Mr. Ojode, Mr. Mwanzia and Mr. Wanjala! Please, consult in lower tones. Proceed, Mr. Muturi!
Mr. Deputy Speaker, Sir, I have said that this is a welcome move. I want to urge the Minister to give the subordinate courts some jurisdiction so that we can say: "A subordinate labour court presided over by a magistrate of this class or cadre shall deal with these kind of disputes." That way, we will stratify the kind of disputes and actually minimise the number of disputes as we go to what is called the National Labour Court (NSC). I believe in the hierarchy proposed here, this should be the highest court. It is equivalent to the Industrial Court. Indeed, it is not just the subordinate courts, I have seen some other description of another one. If the subordinate courts are given stratified jurisdictions, it will be possible to eliminate the numerous minor disputes that, sometimes, inundate the Industrial Court or what is proposed to be the NSC. That way, we will be able to redress some of the grievances at the very local levels. There will be need for the Minister to consult with the Office of the Attorney-General and, perhaps, the Chief Justice for purposes of stratifying jurisdictions at various levels.
May 9, 2007 PARLIAMENTARY DEBATES 1241
Mr. Temporary Deputy Speaker, Sir, let me move to Part II of this Bill, which contains the General Principles. Clause 5(5) on page 158 says:- "An employer who contravenes the provisions of this section commits an offence." My only quarrel there--- My advice to the Minister is: Once we identify that a person has committed an offence by not doing any of the acts provided for here, such as promoting equal opportunity of employment, somebody who practises discrimination---- I also wish to welcome the fact that they have recognized affirmative action as not being discrimination. There is need to provide a specific penalty so that we say: An employer who contravenes these provisions, upon conviction, is guilty of an offence and liable to some specified penalty. It is important that, that be provided for. Mr. Temporary Deputy Speaker, Sir, I am moving fast since I had enough time yesterday to cover some of the other provisions. I move on to Clause 18 of the Bill. Looking at Clauses 18 and 19--- They have already addressed the issues that I wanted to raise on the two clauses. It was about making references to Bills that have not been passed by the House. I find some very interesting innovations here. Perhaps, we need to get the Minister's wisdom on how this is going to be implemented. This is on Clause 23, which says:- "An employer who is not incorporated or resident in Kenya may be required by the Minister, to pay a bond assessed at the equivalent of one month's wages for all employees employed, or to be employed by the employer." This is very welcome granted that this country has witnessed some phantom kind of organisations purporting to employ Kenyans. When they wind up, they do not leave any trails behind them. They employ Kenyans who sought employment there. Those Kenyans place a lot of hope on them. Once the fellows flee the country, there is no recourse. It is just about last month that we were discussing a certain issue. I remember raising this issue with regard to some of the companies that executed clearance bonds with the Department of Customs. When they disappeared, they did so without trace. We want to encourage the Minister to develop this into something quite serious, which will show other countries that they cannot just come into Kenya and con Kenyans. Mr. Temporary Deputy Speaker, Sir, there is a Clause that talks about the death of an employee. I quite agree - and it is important - that once an employee dies, within stipulated time- frames, his or her dues must be assessed and paid out to the dependants or next of kin, as the case may be. That is reflected in Clause 24. Certain words have been used repeatedly in this country to the extent that they have assumed some authority. One may want to assume that they are, therefore, legal. Clause 24(1) says:- "When the death of an employee from any cause whatsoever is brought to the notice or comes to the knowledge of the employee's employer, the employer shall, as soon as practicable, thereafter, give notice of the death in the prescribed form to the labour officer or, if there is no labour officer, to the district commissioner of the district in which the employee was employed." Yesterday, when I was making my contribution, I indicated that, because of the heavy requirement placed by Section 74 all through to Section 75 that employers shall keep records--- My point is: Since we have required so many records to be kept, to say that if there is no labour office, that notification should be given to a DC is already admitting that we will not have enough labour officers. The thrust of my argument yesterday was: Given the provisions of this Bill, the Ministry of Labour and Human Resource Development should move with speed and must be given authority 1242 PARLIAMENTARY DEBATES May 9, 2007 to recruit as many labour officers as possible such that, to the lowest level, if it is a division, there must be a labour officer at the divisional level. We are talking about workers and records being kept. If we start making provisions for DCs, we are already assuming that, actually, we will not have labour officers. Of course, one quarrel I have with the reference to the DC, both in Sub- sections (1) and (3) is that, earlier, there is no reference or definition of a DC in the definitions section of the Bill. Mr. Temporary Deputy Speaker, Sir, my plea is that there should be as many labour officers as possible. They should go to the lowest level of administration. If the lowest level possible is the division, let there be a labour officer. We have witnessed workers claims going unattended to or redressed for a long time. This is because in most cases, we do not have enough labour officers in this country. I gave the example that I have the advantage of having worked in many places in the country where there were labour officers. However, I know that there are no labour officers in my district. It is a real problem. It is just not possible to expect the District Labour Officer based in Embu District to take care of workers' problems in Mbeere District. It is almost like tempting the heavens! The amount of work and area that he will have to cover is so huge. There will be nobody to inspect even the records we are calling upon employers to keep. There will be nobody to say this and that employer has not kept records or practises discrimination. It is important that once we enact this Bill, progressive as it is, we see it implemented. Mr. Temporary Deputy Speaker, Sir, I see a job that looks to me like is meant for public relations. It is in Clause 34(3), page 187. It is very interesting. It says:- "It shall be a defence to a prosecution for an offence under sub-section (1) if the employer shows that he did not know that the employee was ill and that he took all reasonable steps to ensure that the illness was brought to his notice or that it would have been unreasonable, in all the circumstances of the case, to have required him to know that the employee was ill" Then, sub-section (4)(a) says:- "This section shall not apply where the illness or injury to the employee was contracted during a period when the employee was absent from his employment without lawful cause or excuse; or (b) the illness or injury was self inflicted". I hope these kind of injuries do not include, but not limited to having hangover, or serious severe headaches resulting from over consumption of alcoholic beverages. That will not be deemed to be a self-inflicted illness. Mr. Temporary Deputy Speaker, Sir, to me, it looks like this is something meant for public relations. The other parts have to do with the various institutions that I made reference to. They are covered by my early argument regarding Bills which have not been enacted. Mr. Temporary Deputy Speaker, Sir, when you look at the memorandum of objects and reasons, Part VIII deals with the protection of workers in the event of insolvency of an employer. It says:- "The Minister is empowered to require certain employers to insure their employees for purposes of paying the employees redundancy benefits." Part VIII relate to Clauses 66 to 73, both inclusive. I have gone through those clauses. Clause 66 merely talks about what happens during insolvency. The only thing that is relevant is that. "--- subject to Clause 70, the Ministry shall pay the employee out of the National Social Security Fund (NSSF) the amount which, in the opinion of the Minister, the employee is entitled to in respect of the debts." The contradiction I find in this is that if the debt exceeds Kshs10,000, then the Minister does not May 9, 2007 PARLIAMENTARY DEBATES 1243 deal with it. I wonder whether we are saying that the Minister will just make an application straight to the NSSF for monies to be paid to an employee without any reference to any form of arbitration. Clause 70 says:- "Where a relevant officer has been or is required to be appointed in connection with an employer's insolvency, the Minister shall not make a payment under section 66 in respect of a debt until the Minister has received a statement from the relevant officer on the amount of that debt which appears to have been owed to the employee on the appropriate date and to remain unpaid". Mr. Temporary Deputy Speaker, Sir, that brings me to the point I wanted to raise with regard to this clause. A claim is made by an officer of the Ministry, but within this clause, we have not put any time frame. This is one of the reasons many employees or former employees of various organisation in Kenya are poor. They make their complaints to the labour officers. However, because the officers are too few or a majority are tired, they do not work. They do not pursue the employee's claims. Mr. Temporary Deputy Speaker, Sir, the officers to whom a claim is made must make a report to a superior officer that he has investigated the claim within a given period and found "a", "b", "c" and "d." Between seven days, 14 days, 21 days or whatever period, an employee should know whether his or her claim is acknowledged. We are in the era of performance contracting. Everybody is required to give their output to show why they receive periodic wage or allowance. In this Bill, we must have a time frame within which an officer to whom a claim is made must make a report to his superior with a copy to the employee who made the claim. In so doing, people will stop visiting labour offices day in, day out, without any response. Mr. Temporary Deputy Speaker, Sir, as I wind up, I looked at Part V of this Bill. It is welcome. It provides for the basic conditions of employment in relation to working time, weekly rest, leave, water, housing, food and medical attention. This is welcome, however, my only plea is that I hope we will match it with compulsory enforcement. Unless we enforce some of these things, we may just have them on paper and they will mean nothing to employees. Mr. Temporary Deputy Speaker, Sir, I did indicate that I do not think it is, really, fair that the Minister, on his own, should have the power to exempt any employer, or any category of industry or sector, from the provisions of any of the parts of this Bill, as provided for under Clause 80. I saw the good Minister nod in acknowledgement that he would want to consult, or to be advised by a body or any group of persons to be specified in the law. With those few remarks, I beg to support.
Thank you, Mr. Temporary Deputy Speaker, Sir, for giving me the opportunity to contribute to this very important Bill. I promise not to take as much time as my good friend, Mr. Muturi. This is a very good Bill, is long overdue, because employment is the source of livelihood of each one of us. I just want to address myself to about four issues relating to employment, the first one being discrimination in employment. This aspect is captured under Clause 5, the Second Part of the Bill. The proposal that employment should not be tied to discrimination, but should rather be handled in the manner indicated in the Bill, is really, welcome. However, as is the practice today, there is certain information that is sought from people applying for jobs by their prospective employers which, to me, looks discriminative. Part of this information is about the age of the applicant. Mr. Temporary Deputy Speaker, Sir, if you look at advertisements in today's newspapers, you will see that wherever a job has been advertised, there is the element of age limit as one of the qualifications. For all the jobs being advertised, you will always see a minimum age limit of about 40 years. Even in order to be recruited as chief of a location in this country, you must be over 35 years old. To me, that is discrimination. We are discriminating against a certain group in society, 1244 PARLIAMENTARY DEBATES May 9, 2007 which is the youth. In most cases, people have all the qualifications for jobs except the age factor, and one fails to get the job because of one's age. In effect, we are widening the unemployment bracket in the country. Currently, 67 per cent of the unemployed people in this country are between 15 and 30 years of age. If you look at that percentage, you will agree with me that we are discriminating against a very important group of our society, who are the youth. It is alarming to see that 67 per cent of unemployed people in this country are between 15 and 30 years old. That notwithstanding, we still give age as a requirement for one to be employed. Therefore, there should be a provision in this Bill to ensure that employers, including the Government, do not put age as a requirement for one to acquire a job, if one has met all the other qualifications. Mr. Temporary Deputy Speaker, Sir, another aspect of discrimination which, in my view, must be discouraged through this Bill, is that about experience. By making experience an employment qualification, we are discriminating against young people who have just graduated from colleges and universities. In every job advertisement, you are told that you must have a minimum of five years' experience. I think that is not logical. How can one get experience before getting the job? You are a young graduate. You have all the academic qualifications for the advertised job, be it in the private or public sector, but you are denied the chance to apply for it just because you do not have experience. Employers require applicants to have experience of between five and 10 years for a job that you are yet to get. That should be discouraged. We must make a provision in this Bill to make it law that no employer, be it in the private or public sector, should be telling people that they must have a certain number of years of experience in a given job. Mr. Temporary Deputy Speaker, Sir, the third aspect, which, in my view, is discriminatory in the employment sector, is tribalism or language. This issue has been indicated under Clause 5. I can see that there is language. I want to emphasise the fact for that for some of the jobs that are being advertised, one is required to be fluent in certain languages. That is encouraging tribalism. When a job is advertised and one of the qualifications is that one should be fluent in, say my native language, or Kikuyu or Dholuo, that requirement alone is discriminative against certain groups of people from applying for that job. That is very bad. We are actually trying to get rid of tribalism in this country. So, a provision should also be put in this Bill to discourage that practice. Looking, mostly, at the public sector, even hon. Members have raised the concern in this House that there are Government Departments and parastatals which do not have the face of Kenya in their job line-up. You can actually find a Government Department or parastatal, not once or twice or thrice, which does not have the face of Kenya in terms of the job line-up. So, we should encourage, through this piece of legislation, every Government Department or employment sector to try its level best to ensure that the face of Kenya is reflected in it. Mr. Temporary Deputy Speaker, Sir, another issue I want to talk about is employment relationship, which is captured under Part II of the Bill, starting from Clause 8. We have, especially in the private sector, so many employers who have not had any good relationship between themselves and their employees. This is more so in the tourism sector. The tourism sector is earning this country very good revenue. However, in terms of employment relationship, it has not been one of the best. I will give examples of institutions in my Constituency of Kajiado South, specifically in Loitokitok. We have some tourism-related organisations which engage in eco-tourism activities or tourism and conservation, but they have not been good in terms of employee-employer relationship. Let me pick on the African Safari Club as the first example to illustrate my point. The African Safari Club has not been treating its employees, who are the local people, very well. This is because the company normally employs people on casual basis. I am happy this issue is actually May 9, 2007 PARLIAMENTARY DEBATES 1245 articulated in this Bill. But I would like to emphasize that we should protect the employees from such companies and organizations. For example, the African Safari Club - and I know there are so many other companies of this sort in the country - employs people mainly on casual basis for long periods of time. You will hardly find permanent workers in that company. One signs a contract to work as a casual employee for 90 days, but on the 89th day, it is terminated and then he or she is sent home for a week. He or she is then told to re-apply for the job. This company keeps repeating this over and over again. As a result, you will find many employees who have worked in that company as casual employees for over ten years. I think we should have a piece of legislation in this Bill, to protect those people, so that we can set the minimum number of years that one can work as a casual employee in any organization. Even the Kenya Wildlife Service (KWS) is doing the same. That is why I am talking about the tourism-related organizations. There are KWS employees in the Amboseli National Park who have been on casual employment for 12 years. I think we should look for ways of protecting our casual workers. We should ensure that one can only be a casual employee for a specific period of time before being confirmed. Mr. Temporary Deputy Speaker, Sir, in many institutions, especially the private sector--- I will cite tourism-related institutions because they provide employment in the rural areas, but they do not treat their employees very well. Most of these institutions also do not allow their employees to join trade unions. I think it is vital that this Bill ensures that once one is employed for three or so months, he or she is entitled to join a trade union, as a worker. This is because we know the importance of these unions as far as workers are concerned. We should discourage private entrepreneurs or investors from denying--- When some employees who are enlightened about the importance of trade union matters try to advocate for their right to join trade unions, they are victimised and sacked. So, this Bill should ensure that every employee, whether in private or public sector, has a right to join a trade union. Any investor who tries to deny them that chance should face the full force of the law. The third issue that I would like to talk about is that of fixing minimum wages. This is addressed in Part 4, under Clause 17 of this Bill. When it comes to employment, whether one is being paid a wage or salary, we should actually set, in this Bill, a minimum amount of money that one can be paid considering the cost of living in our country. I have a lot of first-hand information, especially in my area, about private investors who pay employees very low wages. Some people who are employed live in the same conditions as those who are at home without jobs. So, I would plead with the Minister for Labour and Human Resource Development to actually set in this Bill, the minimum amount of money that one can receive as a casual or permanent employee. Mr. Temporary Deputy Speaker, Sir, there are also issues of dismissal and termination of services. Often hon. Members ask a lot of Questions in this House regarding their constituents who have not received their dues for up to ten years since they left their employment. It is good that we do justice to our people by ensuring, through this Bill, that once one is dismissed or the contract is terminated, the employer has got a minimum number of days to pay him or her. This Bill has indicated in Clause 24 that "as soon as practicable." When we talk of "as soon as practicable," and upon the death of the employee, an employer can take even five years before paying termination dues, because, in his wisdom, he might think that, that is "as soon as practicable." I think we should specify the duration of time, especially where one is dismissed. In fact, one should be paid his or her dues within a maximum of 14 days. This is because when the employer is dismissing an employee, he or she must have thought over it in advance. So, he or she should also be prepared to pay one his or her dues. Mr. Temporary Deputy Speaker, Sir, we should also ensure that every employer pays his or her employees their gratuity. This is because I think it is required by the law that every employee 1246 PARLIAMENTARY DEBATES May 9, 2007 on contract employment is supposed to receive gratuity at the end of every year. I do not think that all the employers are making this payment. In my constituency, the main source of employment is the tourism-related activities. We have lodges, camps, hotels et cetera. I do not think that gratuity is paid to the employees in those institutions. I think we should actually make it mandatory, through this Bill, that every employee, whether in the public or private sector, receives the 31 per cent of his or her salary as gratuity. I know that even hon. Members here are not paid gratuity. I think it is the high that everybody got his or her own gratuity. Mr. Temporary Deputy Speaker, Sir, as I conclude, I would like to talk about the issue of the certificate of service. I really welcome that move under Clause 51. It is very important that upon leaving your employment or having served for four consecutive weeks, as stipulated under Clause 51, the employer should issue the employee with a certificate of service. This is highly commendable. I know it is going to help the employee in search of greener pastures. It should be mandatory that the employee receives it. It adds up to the social prestige. It is an honour for the employee. It is a sign of saying, "thank you" for the service he has delivered for that prescribed period. It is a recommendation that gives that person the motivation that life does not just end there. He has something to start with. It should be made mandatory that all employers should issue employees with certificates of service upon the end of their work contract. I think that is a welcome move. Mr. Temporary Deputy Speaker, Sir, with those few remarks, I beg to support.
Thank you, Mr. Temporary Deputy Speaker, Sir, for according me this opportunity to make my remarks on this very important Bill. I want to start by congratulating the Minister for Labour for bringing this Bill to the Floor of this House. I want to agree with the speakers who have spoken before me that this has been long overdue. In fact, one wonders how the employees of this Republic have survived for all these years without a proper law to safeguard them or regulate their terms of service, considering that most of the employers in this country are very oppressive and still have that colonial mind. It is my hope that once this House passes this Bill, the Ministry will implement it to the letter. For a long time, the employees of this country have been taken for granted by the successive Governments. I want to say that this particular Government---
Mr. Temporary Deputy Speaker, Sir, there is no quorum!
Order, Mr. Mwandawiro! I have not even recognised you. What is it?
On a point of order, Mr. Temporary Deputy Speaker, Sir, there is no quorum.
That is true, there is no quorum. Please, ring the Division Bell.
Order, hon. Members, we now have quorum. However, may I advise hon. Members, that this is a serious Bill and we want to enrich it. Please, do not repeat what others have said so that as many hon. Members as possible can have a chance to contribute. This will ensure that we dispose of the business and go to the next one. Are we in agreement? May 9, 2007 PARLIAMENTARY DEBATES 1247
Proceed, Mr. Khaniri!
Mr. Temporary Deputy Speaker, Sir, before I was rudely interrupted by the call for quorum---
On a point of order, Mr. Temporary Deputy Speaker, Sir. I wonder under what Standing Order the Chair can ask a question like that to the Floor.
Order, Mr. Wetangula! You know Order No.1.
Secondly, this House is a House which works on resolutions. So, if hon. Members are agreeable, we can proceed. Let us proceed, Mr. Khaniri!
Mr. Temporary Deputy Speaker, Sir, as I was saying before I was rudely interrupted by the call for quorum, the workers in this country have been taken for granted for many years by the successive Governments. I really want to thank the Minister for bringing this Bill to protect the workers. It is only that I was taken aback by His Excellency, the President, during 1st may, 2007, on Labour Day celebrations when he took the podium, addressing workers. He concentrated on issues that do not affect workers in this country at all. This took me aback and I started wondering if they are serious about this Bill they are bringing to this House. Otherwise, I want to hail all those who were involved in drafting and putting this Bill together. I want to hail them for two reasons. First, I have gone through the Bill and it captures all areas that I would have imagined affect employee-employer relationship. Secondly, in my own opinion, there are very few amendments to be made on this particular Bill. Therefore, I would be very brief in just pointing a few areas that I think maybe, would need some amendments by this House before we can pass this Bill. Mr. Temporary Deputy Speaker, Sir, I want to draw the Minister's attention to Part I of the Bill which is the Preliminary. This is where they are defining disabilities. It says:- "Disability means HIV positive or any permanent---" It is ridiculous to describe HIV positive as a disability. We must delete this because HIV positive is a condition that can be treated, as we all know. If we put HIV positive, then we might as well put cancer. So, I think HIV positive patients are not incapacitated in any way. Therefore, it should not be classified as a disability in this Bill. I want also to draw the Minister's attention to Part II of the Bill which is the General Principles. It is on page 156, where they are talking about conditions that could be excluded from what they are terming false or compulsory labour. Mr. Temporary Deputy Speaker, Sir, Part II, Clause 4(2)(e) states: "Minor communal services performed by members of the community in the direct interest of the said community provided the members of the community or their representatives are consulted." This is a very archaic piece of legislation. We are giving a leeway to the Provincial Administration, such as the chiefs, to exploit their subjects. In my opinion, this particular subclause 2(e) should be deleted from this Bill. Mr. Temporary Deputy Speaker, Sir, turning to Part II, Clause 5(4), it says: 1248 PARLIAMENTARY DEBATES May 9, 2007 "An employers shall pay his employees equal remuneration for work of equal value." The intention of this particular subsection is very good, but I want to draw the Minister's attention to a situation where an employee is employed to perform a particular task and he works for a particular company for several years. Over the years that he is employed, his or her pay is increased. However, another employee comes later to do the same type of job. Now, this Bill suggests that the two employees must be paid a similar amount of money for the value of work done. In my view, there should be a provision to cater for this kind of scenario, because the long serving employees may get salary increment without necessarily being promoted to other scales. So, there must be a provision for that kind of situation. In the same Clause 5(6), it states that: "In any proceedings where a contravention of this section is alleged, the employer shall bear the burden of proving that the discrimination did not take place as alleged---" I am not a lawyer, but my friend, hon. Wetangula, is here and can bear me witness that this is contravening a section of the Constitution that says that one remains innocent until proven guilty. It is not incumbent upon the accused to---
Which clause is that?
It falls under Part II, Clause 5(6) on page 158. I think that it will be the responsibility of the one accusing to prove that he has been wronged and not the other way round. Mr. Temporary Deputy Speaker, Sir, I also want to draw the Minister's attention to Part III of the Bill - Employment Relationships. Clause 8 says: "The provisions of this Act shall apply to oral and written contracts." I do not understand what is meant by "oral contracts". I think that all employers must be compelled to ensure that they have written and signed contracts with their employees. Therefore, the word "oral" should be deleted from this particular part of the Bill. In the same Part III of the Bill, Clause 9(a) states that: "A contract of service - (a) for a period or a number of working days which amount in the aggregate to the equivalent of three months or more---" Mr. Temporary Deputy Speaker, Sir, why are we leaving out those employees that have been employed for a period not exceeding the period specified here, that is, three months? I think that this law should govern all the employees and, therefore, we should include even those who have been contracted for a period that is less than the specified period here of three months. Mr. Temporary Deputy Speaker, Sir, turning to Part IV - Protection of Wages, on page 170, Clause 17(1) states that:- "Subject to this Act, an employer shall pay the entire amount of the wages earned by or payable to an employee in respect of work done by the employee in pursuance of a contract of service directly in the currency of Kenya---" I hope that this does not mean the Kenyan shilling because I have in mind people who are employed by some international organisations. These people sign their contracts here to indicate that they are employed in Kenya and then they are posted to other countries where the mode of currency is not the Kenyan shilling. Is this Bill insisting that such people should also be paid in the Kenyan shilling? My view is that instead of the Bill stating "Currency of Kenya", it should state, "Currency of the country of residence". This is because it will also apply to members of the Diplomatic Corps who are civil servants, but have been posted to serve in other republics. Clause 18(6) on page 174 states that:- "No wages shall be payable to an employee in respect of a period during which the employee is detained in custody or is serving a sentence of imprisonment imposed May 9, 2007 PARLIAMENTARY DEBATES 1249 under any law." I have no problem with that part that talks of serving a sentence of imprisonment imposed under any law. But I have a problem with denying an employee, who has just been put in custody for a few days, his wages. It is not fair to say that a person who has been in police custody will not be paid his or her remuneration. Anybody can be put in police custody any time, including Members of Parliament, civil servants and so on. So, we must insist that you can only be denied your salary if you have been taken to a court of law, proven guilty and imprisoned as opposed to just being put in police custody and then you are denied your dues. I do not agree with this particular section and I hope that we will move an amendment to delete it so that we do not have it as law that when you are put in police custody, you will not be paid your wages. I know that some people can use this law maliciously. Mr. Temporary Deputy Speaker, Sir, I would like to draw the Minister's attention to Part V, Clause 34. I would like to congratulate the Ministry because we all know that medical care in this country is very expensive and not many employees can afford. I am happy to note that they have included a clause that will compel employers to have medical schemes for their employees. As I said earlier on, I do not have much comments to make on this particular Bill. However, I would just like to urge my colleagues to give it full support so that we can pass it as quickly as possible and turn it into law. Mr. Temporary Deputy Speaker, Sir, with those remarks, I want to support this Bill.
Thank you, Mr. Temporary Deputy Speaker, Sir, for giving me this opportunity to make a quick and brief contribution to this Bill. This Bill seeks to replace an already existing law. It is comprehensive and covers many aspects of employment that will contribute to better and easier relations between employers and employees. I would like to start by pointing out a structural difficulty in this Bill. As a lawyer who sometimes practises at the law courts when I am not an Assistant Minister, the clauses which eventually will be sections once the Bill is passed are too long and will become difficult for legal practitioners to cite if there is a dispute. Mr. Temporary Deputy Speaker, Sir, you note that labour issues are very litigious. There is constant litigation relating to labour matters. I want to urge the support staff of the Ministry, which happens to include one of my former classmates, to support the Minister. They need to re-look at this numbering of the clauses so that when they are actually passed, they are easy to make reference to, easy to cite and use as authority and also easy to place before a court of law. I am seeing that some clauses are running to two pages. This is not how laws are framed anywhere. I hope that this will be done. I had also picked out a point that Mr. Khaniri had mentioned. It is describing HIV/AIDS as a disability. This is ridiculous because HIV/AIDS is not a disability. You all know that with the evolution of science, perhaps, in another two or three years, we will have a cure for HIV/AIDS. If we have it in our statute books as a disability, you can imagine the level of confusion and inconvenience that it is likely to cause to both the employers and employees. In that same definition clause, a disability is also described as a physical illness. I think, we need the Minister, in his reply, to really advise us on what a physical illness is, being a doctor himself. I think every illness is physical. If you have a headache or a toe ache it is physical. So, what does it really mean and how does it amount to a disability? In Clause 2, Page 151, it has placed unnecessary discretion in the Minister. This country has gone through a cycle of abuse of discretion at many levels. I am always wary about any law that gives unfettered discretion to a person in authority. It says:- "Provided the Minister, if he sees fit so to do---" 1250 PARLIAMENTARY DEBATES May 9, 2007 This is a blanket cheque. Having regard to the nature of the work involved in any employment, this kind of Clause has no room in modern legislation. Where we have accountability, delegation and corporate governance, you cannot take authority and vest in one hand. You may have a good Minister who might exercise that discretion reasonably but the next day you have a fascist who will use and abuse the discretion to subjugate the rights of others. I have seen many discretionary clauses in the Bill. They should be edited out before we come to the Committee Stage. Mr. Temporary Deputy Speaker, Sir, let me also say that again this is a failure on the part of our Committee that is relevant to this Bill. We would have had the Departmental Committee guiding this House on the Bill. The reason that we created this Departmental Committees is to scrutinise Bills, before we go to the Second Reading and enrich the debate and bring informed opinion on the Floor. We even gave them authority to hire experts to look at Bills for them. You notice that since we started debating this Bill yesterday, not a single Member of the relevant Departmental Committee has spoken on this Bill. This is not right. This is failing Parliament, Kenyans and all of us. Parliament gives money to Committees to work and they have to do their work. We do not want to visit legislation on Kenyans that creates problems tomorrow. Mr. Temporary Deputy Speaker, Sir, I also want to touch on Clause 6. The one that Mr. Khaniri talked about. This is a sub-clause that is outright unconstitutional and it will be challenged the very day we pass this law. There is no way, under any circumstances, you can shift the burden of proof. Everybody who asserts must prove. That is what the Constitution says. So, you cannot say that in proceedings where a contravention of this Section is alleged, the employer shall bare the burden of proving that the discrimination did not take place. If an employee goes to court and says that he or she was discriminated against, it is his or her duty to prove that he or she was discriminated against. You cannot say that the employer should turn around to say that he did not discriminate. That is not what our Constitution says. Therefore, that Clause is outright unconstitutional. It should also be plucked out of this Bill. Mr. Temporary Deputy Speaker, Sir, Clause 10 gives the need to give and keep employment particulars. But if you look at the Bill, Clause 10 runs for three pages. No law is friendly like this. Good as it may be, you cannot have one section of the law running for three pages in a statute. It becomes very difficult to apply and to litigate against. I would like to urge the Minister and his team to go through the Bill and reduce the length of clauses that are appearing in the Bill. Clause 12 deals with disciplinary rules. I think it is good that we keep high levels of discipline in employment. That is a Clause that I would fully support. I want to look at the following Clauses and suggest that the Minister looks at them. Regarding Clause 46; Reasons for Termination. Those reasons given are good in a way but they need to be improved because where a person is dismissed, take for example, Clause 46(g):- "---an employee's, race, colour, tribe, sex, religion, political opinion or affiliation and so on." We have had many cases in this country where people are dismissed due to their affiliations. It is good that we have a law like this. But, again, this law should not be applied in a draconian way. For example, if my party FORD(K), is an employer and one of our employees turns up and says that he belongs to ODM, we cannot keep him in employment. If an ODM employee walks to the office with a FORD(K) symbol, you cannot keep him or her in place, because he or she, by the very nature of employment, is supposed to champion the interests of the employer. That is a special category of employment. So, you cannot say that we cannot dismiss an employee because of an affiliation. You need a qualification on that. I am sure my colleagues agree with that. If you subscribe to the Hummer then you must remain the Hummer. If you subscribe to the simba, you must remain a simba . You cannot be forced out of employment because of--- May 9, 2007 PARLIAMENTARY DEBATES 1251
I am told that there is even chicken. I do not know the symbol of my colleague. It is a flower. When it withers, I do not know what happens. Clause 49 is what I had talked about discretion being billed in this Bill, that makes an otherwise very good law look very bad. When you say:- "Where in the opinion of a labour officer, summary dismissal or termination of a contract of an employee is unjustified, the Labour Officer may recommend to the employer to pay to the employee any or all of the following---" Here, you are taking a duty that would reasonably and ordinarily be exercised by either a tribunal or a court of law and giving it to a labour officer. This is how you breed corruption that we are fighting. The moment you say that the labour officer in his opinion decides that Mr. Muturi's cook must remain his even when he tries to poison him, then you are not passing a good law. You cannot have a labour officer to determine who is my employee. You must bear in mind that employment relations are very personal. Once they go sour, it is very difficult to force somebody to remain that person's employee, unless it is in corporate terms. The Minister should look at that. Mr. Temporary Deputy Speaker, Sir, on Page 200, it goes on to say that, that labour officer can order reinstatement of the employee or the re-engagement of the employee and so on and so forth.
This just muddies the waters of good law and it must be changed. Clause 50 should be amended to allow courts of law to deal with every matter that arises as a dispute under this law. Mr. Temporary Deputy Speaker, Sir, Part 9, Clause 74, I am not quite sure whether this is not a violation of rules of privacy. Records of employees have a privity between the employer and the employee. Why do we want to open them up to anybody and everybody, unless a crime has been committed? I would want the issue of exposure of employer/employee records to remain a matter between the employer and the employee. It is a matter of privity. I may very well employ two graduates of the same level and pay them different salaries, and those records are supposed to be a privity between the employer and the employee. You cannot get those records and give them to anybody who wishes to see them, because this violates the very basic principles of privacy. I hope this will be looked into by the Minister and his team. Mr. Temporary Deputy Speaker, Sir, Part 10; employment management. Again, this is going to make it very difficult for employers to manage their records. I know the intention could have been to have statistical data on the level of employment in the country and so on. But you cannot say that any employer is required to report to an employment officer every time there is a vacancy falling in your level of employment. On my farm where I employ 20 people, when my tractor driver siphons fuel and I sack him, I must walk to the local labour officer and report. This is not right, and it should not be, because employers must also be given the opportunity to hire and fire, and replace those people they have fired without interference from the labour officers. I have just cited a clause where the labour officer can walk to you and force you to employ a person you have sacked, without subjecting you to any tribunal. This is not good law, and then you go on to 1252 PARLIAMENTARY DEBATES May 9, 2007 say that when you sack any employee, including a tea girl, you have to go to the labour officer and report. This is not right, and it is not good law. We should urge the Minister to change it. Mr. Temporary Deputy Speaker, Sir, that also goes for Clause 78, which deals with notification when you sack. Clauses 84, 85 and 86 touch on foreign employment. These clauses, when they become law, are inapplicable. This is because, when we have such a pressure of unemployment in this country, there are many Kenyans who are going out to look for employment. There are many Kenyans who hang on persons of influence to take them out for employment. You cannot say in law that when you enter such contracts, you have to notify the labour officer. If I have access to somebody in Dubai to employ Muturi's cousin, I do not have to look for a labour officer to inform him that I am helping somebody to go and get a job out there. What we need to do is to have a database. This can be done by our foreign missions, or by the Immigration Department. If you are going out, you can fill it in to say you going to work or to visit, or tour or to invest or what else you going to do. That is enough to synthesise and put in record and say there are Kenyans working in Dubai, Egypt and so on. But you cannot say that a labour officer starts supervising things over which he or she has no control. After informing a labour officer that you are going to work in Dubai, how else can they police you when you are out of their jurisdiction? It does not work. Equally, Clause 86 provides: "A person who employs, engages or knowingly aides in the employment or engagement of a person with the intention that when so employed or engaged that person shall proceed outside the limits of Kenya..." Then, it goes on and creates a very unnecessary offence. This means that any one of us who can influence the employment of a Kenyan outside Kenya commits a criminal offence, if you have not notified the labour officer. This cannot be good law, because we are all dying under the weight of unemployment. We are doing everything possible. You heard us talking about Kenyans in the diaspora bringing billions of shillings back home. Nobody supervised their going out, and nobody committed an offence to assist them to go out. I think this should be looked into and again be modified in the law. In fact, I am advised that the famous Hummer was donated by Kenyans in the diaspora. You can see the benefits of Kenyans who have gone out there to work.
Mr. Temporary Deputy Speaker, Sir, the Ministry of Labour and Human Resource Development needs to pay attention to the conditions of workers in two areas in this country, the so-called EPZs and the flower farms. Every other day, you get information either through the Press or if you interact with people who work there, they work under very difficult conditions. They are under-paid, they are over-worked and, sometimes, are treated inhumanly. It is desirable that the Ministry of Labour and Human Resources Development engages more qualified personnel to look into the conditions and what those people are doing. Employees in the flower farms, for example, are exposed to chemicals, herbicides and all manner of things that deteriorate their health, yet they are not provided with any medical cover. I know the Bill provides for some limited medical cover, and I hope it will be enforced strictly. I noticed also that the Minister in this Bill--- This is something that he ought to have looked into. For example, he is referring to a law called Labour Institutions Act. I do not know whether we have any such law in this country. You see, we are passing a Bill here. Supposing the draft Bill on labour institutions collapses, how does it become the law under reference in this Bill? So, some co-ordinated way of making cross references to Bills should have been found, because if the Labour Institutions Bill does not pass, then this Clause here--- I heard my learned friend, Mr. Muturi raise a similar point. It is not a serious issue; I hope we will pass the Bill But it is an issue May 9, 2007 PARLIAMENTARY DEBATES 1253 that the Minister, when he was moving the Bill, should have mentioned. He needed to say that he was going to make cross references to Bills that are in the pipe line from his Ministry, so that we do not get confused and start talking about laws that do not exist. We need to talk about laws as they are and not as they will be. With those remarks, I support the Bill, subject to what I have pointed out. I hope that the Minister and his team will take them into account.
Mr. Mwandawiro Mghanga, do not raise quorum.
Ahsante sana, Bw. Naibu Spika wa Muda, kwa kunipatia hii nafasi kuchangia Mswada huu kuhusu ajira. Kwa kuanza tu ningesema kwamba huu Mswada tumeusubiri kwa miaka mingi sana, kwa sababu sheria nyingi za nguvu kazi ni sheria ambazo zimekuwa za kikoloni. Ingawa Waziri amechelewa katika kuleta Mswada huu Bungeni, haidhuru ni bora kuchelewa kuliko kutokuja. Mambo haya na sheria hii inahusu haki za wafanyakazi; lakini katika mfumo wa ubepari. Kwa hivyo, kutoka mwanzoni, mimi naelewa kabisa kwamba, sio kwamba sheria hii itamkomboa mfanyakazi. Hii ni sheria ambayo itampatia mfanyakazi uwezo wa kupambania haki zake zaidi. Sheria zilizokuwa hapo mwanzoni, zile za kikoloni, zilikuwa sheria zilizotungwa makusudi kabisa na wakoloni kupambana dhidi ya mfanyakazi kabisa ili asipate uwezo wake. Bw. Naibu Spika wa Muda, Mswada huu unahusu hasa washikadau watatu; Wizara ya Leba na Ustawi wa Wafanyakazi, mwajiri na mwajiriwa. Kwa sababu sheria haitoki hewani bali inatoka katika hali halisi ya kihistoria, tukichunguza historia ya nchi yetu, ni wazi kabisa kwamba Wizara ya Leba na Ustawi wa Wafanyakazi imekuwa kama mbwa ambaye hana meno. Nakumbuka kuwa nishawahi kuuliza Swali hapa Bungeni, nikamwita Waziri wa Leba na Ustawi wa Wafanyakazi hata akaenda kuzuru Taita Sisal Estate, Mwatate. Vile vile, alienda kuzuru Salt Lick na Taita Hills Lodges na aliona gandamizo na nyanyaso ambazo ziko hapo. Lakini alipokuwa huko, ni kama kulia machozi ya mamba. Tangu atoke huko akiwa Waziri wa Leba na Ustawi wa Wafanyakazi, hakuna chochote kilichobadilika huko. Jambo hilo linahusu sehemu nyingi. Waziri wa Leba na Ustawi wa Wafanyakazi anaelewa kuhusu nyanyaso zinazoendelea dhidi ya wafanyakazi kila pahali katika nchi, lakini ni kana kwamba Serikali, ikiongozwa na Wizara ya Leba na Ustawi wa Wafanyakazi, haina nguvu zozote za kufanya chochote. Kwa hivyo, Bw. Naibu Spika wa Muda, ndani ya sheria hii, kama ingeweza kusaidia, ingawa najua kabisa kuwa, katika mfumo wa kibepari, Wizara ya Leba na Ustawi wa Wafanyakazi inakuwa katika upande wa wanyonyaji na wagandamizaji. Lakini kama ingekuwa--- Haidhuru, kuna nia ya kujaribu kubadilisha na kwenda mwelekeo mwingine pale tunaelekea, ambapo wafanyakazi watakuwa na nguvu katika nchi hii, Wizara ya Leba na Ustawi wa Wafanyakazi ingekuwa na meno zaidi katika nchi hii. Kwamba, hii sheria isiwe ya kulilia wafanyakazi. Bw. Naibu Spika wa Muda, ukiisoma sheria hii kwa jumla, utaona kwamba sehemu nyingi ni zile za kufanya kwamba mwajiri eti anaweza kuwahurumia wafanyakazi; eti anaweza kuwahurumia na kuwasaidia wafanyakazi. Eti tunafuata--- Haidhuru, mwajiri afanye jambo fulani ambalo ni nzuri. Ni kama kumwomba mwajiri. Inajulikana kwamba mwajiri hawezi kumpa mfanyakazi nguvu pasina mfanyakazi mwenyewe kupambania haki yake. Kwa hivyo, inakuwa kwamba, katika hali kama hii yetu tuliyoko na tukiangalia historia yetu, jambo ambalo ningesisitiza zaidi, maanake tunajua kwamba kabla hatujaondoa huu mfumo wa ubepari, Wizara ya Leba na Ustawi wa Wafanyakazi itakuwa ikilia machozi ya mamba katika nchi; haiwezi kufanya chochote. 1254 PARLIAMENTARY DEBATES May 9, 2007 Kwa hivyo, nguvu nyingi zingeweza kwenda katika vyama vya wafanyakazi. Vyama vya wafanyakazi havijaimarishwa zaidi katika sheria hii. Namuomba Mheshimiwa Waziri kuwa, wakati tutakapoleta marekebisho ambayo yatatilia nguvu kabisa vyama vya wafanyakazi, ni muhimu kwamba yaungwe mkono, kama kuna nia. Kwa nini nasema hivyo? Ni kwa sababu mpaka sasa, lazima sheria yenyewe izungumzie kwa undani kuhusu vyama vya wafanyakazi. Hiki chama cha wafanyakazi kinachoitwa Central Organisation of Trade Unions (COTU), mpaka sasa, wafanyakazi wengi wa nchi yetu wanalia kwamba kinawasaliti; kimenunuliwa na waajiri. Chama cha wafanyakazi ambapo ndani yake hakupatikani haki za wafanyakazi, kinawezaje kutetea wafanyakazi? Chama cha wafanyakazi ambacho kinazungumzia maslahi ya mwajiri, kinawezaje kuwatetea wafanyakazi? Kwa hivyo, lazima sheria hii izungumzie kuhusu wafanyakazi.
On a point of order, Mr. Temporary Deputy Speaker, Sir. We have heard every contributor supporting this Bill. Would I be in order to ask the Minister to reply?
Order! I have been here listening to the debate on this Bill and I have been following the proceedings in my office. Therefore, I would like to make a judgement on that application and I will put the Question.
Thank you very much, Mr. Temporary Deputy Speaker, Sir, for this opportunity to respond to this Bill. First of all, I thank the hon. Members for the enthusiasm with which they received and debated the Employment Bill. I also thank the hon. Members for their varied and constructive criticism which will help in finalizing work on the Bill, especially at the Committee Stage.
On a point of order, Mr. Temporary Deputy Speaker, Sir. The House has no quorum.
Order! Who gave you the permission to move that?
I rose on a point of order.
No, first of all, when you rise, you must get the permission to move your point of order!
But there is no quorum, Mr. Temporary Deputy Speaker, Sir.
Yes, it appears that there is no quorum and I call upon the orderlies to ring the Division Bell!
May 9, 2007 PARLIAMENTARY DEBATES 1255
Order, hon. Members! Order! Due to lack of quorum, we have come to the end of our business today. The House, therefore, stands adjourned until tomorrow, Thursday, 10th May, 2007, at 2.30 p.m. The House rose at 5.35 p.m.