Yes, Member for Garsen.
Thank you, hon. Speaker Sir. I am honoured today to stand before this House. Hon. Speaker, Sir, pursuant to Standing Order No. 44(2)(c), I wish to request for a statement from the Leader of Majority Party in regard to the flooding in Tana Delta. Hon. Speaker, Sir, I wish also to bring to the attention of this House and Kenyans at large that the suffering in Tana Delta is becoming extreme. As I speak, over 50 per cent of the schools in Tana Delta have not opened and they are not accessible because they have been marooned by the flooding. Hon. Speaker, 80 per cent or above of the population in the Tana Delta is displaced or marooned. This is a serious issue which needs the attention of the Government. Kenya Red Cross Society has done a commendable job in addressing the situation, but the magnitude of the situation is beyond them. We do not feel the impact of the response of the Government on the situation. Guests are flying in helicopters. A delegation led by the PS, Special Programmes, has flown to Tana Delta twice, but we do not see the outcome of the assessment by this team. The people of Tana Delta are suffering and we are not ready to see tourists from the Government. I can say they are tourists because there is no point when a PS and his delegation flies to a place to see people marooned and then fly back to Nairobi and they do not respond. After the elections, with the Jubilee Government and the new Constitution in place, we thought the people of Tana River would move out of marginalization.
Hon. Speaker, Sir, I wish to ask the Leader of the Majority Party to explain what measures the Government has in place to distribute humanitarian assistance. As I am talking, the Kenya Red Cross Society with their food and non-food items are unable to reach 3,507 households because this can be accessed either by helicopter or a boat. As I sit down I request the hon. Member to give that statement. Thank you.
Hon. Speaker, Sir---
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Hon. Letimalo, read your Standing Order No. 44. It is not a matter for debate. It is seeking statement from the Government and especially now from the Leader of the Majority Party because we do not have departmental committees, courtesy of a decision by the House.
Hon. Speaker, Sir, I will provide the statement on Wednesday afternoon, next week.
Very well, yes Member for Garsen.
I would like to tell my brother, hon. A.B. Duale that it will not be fair for the people of Tana Delta to wait for that long to hear what the Government is doing for them.
Hon. Speaker, Sir, I had the pleasure of serving in the last Parliament and my colleagues will agree with me that, that is the shortest time to wait. It used to take two weeks. I want to have enough time to interrogate the Government. So, Wednesday afternoon, next week is fine.
Hon. Speaker, Sir, even as the Leader of the Majority Party is promising to give this statement, in light of what the hon. Member is requesting, could we ask the Leader of the Majority Party to pass the message that action be taken? We should not wait for the statement for action to be taken. Can he promise that he is going to diligently work since he has a very good working relationship with the Government, which has no cabinet? Can he also communicate with the Deputy President because it is like he has filled the gap of the Cabinet Secretaries at the moment? Let him order, because he is fond of ordering, that action be taken immediately before the weekend.
Hon. Speaker, Sir, I want to confirm that the leadership structure of both the House and Government of the Jubilee Coalition is well defined, active and very efficient. We will do as hon. Mbadi said. Action will be taken, but our leadership is up to the task.
On a point of order, hon. Speaker, Sir.
It is not occasion for debate, hon. Wanyonyi. Leader of Majority Party proceed.
Pursuant to Standing Order No. 44(1), on behalf of the House Business Committee, I wish to give the following Statement regarding the business appearing before the House next week: The Report of the Committee on Appointments on Vetting of Cabinet Secretaries is scheduled to be tabled on Tuesday for debate. We also expect debate on the following Motions:-
(i) The Motion by hon. Abdulaziz Farah, Member of Parliament for Mandera East, urging Government to urgently establish Livestock Insurance Fund to cushion livestock farmers from ASAL areas against losses occasioned by drought. (ii) The Motion by Member of Parliament for Kirinyaga Central, hon. Joseph Gitari urging Government to consider upgrading at least one hospital in each county and
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Hon. Members, as this is the first time for most of the new Members present to consider a bill in the Committee of the whole House, I wish to guide the House. We are now in the Committee of the whole House to consider the Division of Revenue Bill (Bill No.1 of 2013). The rules of speaking are normally relaxed in the Committee to allow a Member to speak more than once in consideration of the Bill. Secondly, pursuant to Standing Order No. 132, the Committee shall start with Clause 3 and proceed up to the last clause as printed in the Bill. We will thereafter proceed to new clauses, schedules, new schedules, interpretations, the title and finally to Clause 1. In considering clauses without amendments, I shall propose the question that the clause be part of the bill and I shall proceed to put the question that the clause be part of the bill. We expect minimal debate if any, on clauses without amendments. Fourthly, in considering clauses with amendments, I shall propose the question that the clause be part of the bill thereupon the mover will move the amendments. Where there is more than one amendment proposed by different Members, I will proceed to call the members to move their respective amendments in the order that the Clerk has advised and this is pursuant to
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Hon. Chairlady, I beg to move:- THAT, Clause 3 of the Bill be amended by deleting paragraph (b) and substituting therefor the following new paragraph- (b) the drawing of unconditional and conditional grants from the share of revenue of the National Government. Contrarily to what the Bill states in Clause 3(b) âand schedule additional resources or conditional allocations to be part of the national revenue and to be part of the national revenue under Clause 202(2) of the Constitutionâ, this is catered for there. Indeed, the Constitution at Article 202 (2) explicitly states that county governments may be given additional allocations from the National Government share or revenue, either conditionally or unconditionally. This should not come from the county government, but from the National Government. Also, inclusion of the conditional allocations under county revenue share contradicts the spirit of Article 218 of the Constitution. I beg to move.
Hon. Chairlady, I wish to withdraw the proposed amendment on the basis that when we were here yesterday, many Members were complaining that we do not have enough time to consult and research on this Bill. After consultation and a bit of research, I confirmed that the provision that I was introducing has been taken care of by the Public Finance Management Act, Section 109(8) which is very clear. It states that any unutilized balances in the County Revenue Fund shall not lapse at the end of the financial year but shall be retained for the purposes for which it was established. So, this will be just a repetition of an already existing law. So, I withdraw my amendment.
So, you are dropping your amendment?
Yes, hon. Chairlady.
Hon. Chairlady, I beg to move:- THAT, the Bill be amended by deleting Clause 5. The provision to offset variation of revenue collections by sometimes reducing the county share is inconsistent with the need to protect revenue share of 15 per cent, in accordance with Article 203(2) of the Constitution. If we delete it, it cures this problem. Hon. Chairlady, lastly I had the privilege of serving in the Budget Committee and our problem was how to get accurate focus from the Treasury. We told them Parliament will not tolerate any more inaccurate focus from Treasury. This year alone, for example, apart from the warning last year, the Treasury has a gap of roughly Kshs. 100 billion. If you have already given say Kshs190 billion to be allocated to the counties and you find there is a big variation, the counties will not work. The counties will have no cash. So, we are asking Treasury to come up with substantive accuracies that are focused to avoid this kind of situation. All over the world, we have a situation where variations are very minimal. But we have seen in the Kenyan situation that variations can be very big and to a large extent the counties may not be able to operate, if we have a big variation. Thank you.
Remember this clause is supposed to protect the Government. So, we want to hear from the Leader of the Majority Party, what is your view on this?
Hon. Chairlady, I oppose. This Member has confirmed that in budget-making process, variations are there all over the world. This clause cannot be deleted because it talks about shortfalls and excesses. These are the order of the day in a budget-making process. This will be in the interest of both the national and the county government. At least, he has confirmed. I would urge him now that he has confirmed that there is minimal variation, he does not delete it.
I oppose the amendment. Budgets are done under uncertain environment. Having a situation where we do not put up a buffer in cases of excesses and deficiencies would impractical. We are not even aware of the circumstances---
Order, hon. Member! You cannot cross the Floor without going to the Bar.
Hon. Chairlady, we are not even aware of the circumstances ahead of us that might make us review any budget. Budget is about estimation and approximation. You cannot be one hundred per cent accurate. It is impossible to have accuracy in matters of budgets and other projects. You are not even in control of anything. Putting that decision would be committing the Government to the risk of the uncertainties which no man has control world over. It is an acceptable practice to cater for deficiencies and shortfalls. This particular clause does it and I want to oppose the intention of the hon. Member that it be deleted.
Hon. Chairlady, indeed, this particular clause provides the latitude for Government, both county and national to address issues of calamity and issues which may be caused by international conditions where the Government has no choice other than to address it as it is. To try and remove this is actually going to make the Government not support the county governments and even itself. So, I wish to ask my colleague not to withdraw it because it is a very crucial provision.
We are giving you a little bit of time, hon. Ngongâo to debate although we should not do that in Third Reading. Because it did not go to the committee, we are giving some latitude for you to ventilate on this.
Thank you, hon. Chairlady. Before I say anything, there is just a small thing I wanted to point out. You corrected the Member by telling him to go to the Bar, but one of the mistakes in these new standing orders is that they do not say that you have to go up to the end, as the old one did. So, you can bow anywhere. I just want us to look at that, those are the mistakes that we are complaining about.
I think a lot of these activities are by practice and tradition rather than by expressly stating them in the standing orders.
I wish we could use traditions and practices in PIC and PAC but let me leave that. Let me go to the substance of the debate. Hon. Chairlady, I want to support hon. Sambuâs amendment. I think we need to keenly understand this provision and see the mischief. I remember when we were doing Public Finance Management Act, the Treasury tried as much as possible to take away and give themselves powers to
Thank you, hon. Chairlady. I rarely differ with my good friend, hon. Mbadi, but on this one I think we are on different breath. I stand to oppose the amendment by hon. Sambu and urge my colleagues to oppose it for this reason; if you read the clause that hon. Sambu is trying to delete, it is for the interest of the counties. It says that in case there is a shortfall of the actual revenue the responsibility of ensuring that county governments still get what they had budgeted for rests with the National Government. If there is excess in actual collection, more than what had been budgeted for, the National Government should again share on pro rata basis that excess with a county government. That is what is in the Bill now. If you say that you delete that provision, then when the actual target for revenue collection has not been met as budgeted, it will leave the county government with no recourse to ensure that the budgeted priorities are met. I urge my colleagues to oppose that amendment and retain the original provision so that we leave our counties protected.
Thank you, hon. Chairlady. I stand to oppose the amendment by hon. Sambu. As echoed by other colleagues, in prudent financial planning it will be very risky and almost impossible to plan without planning for eventualities. This clause is very important. It protects our county government. Maybe that is what we need to understand. I say that because if for whatever reason the revenue falls short and the budgets done by the county governments were reflecting a certain amount, if we delete this clause, what it will mean is that indeed the National Government will not be under any obligation to support the gap that is created. The clause is also good to the extent that it actually says that should there be an excess in revenue collection â there will be more than we plan for
On a point of order, hon. Chairlady. It is not in order for the hon. Member to mislead the House that if there is a shortage, without passing this clause, we are exposing the counties. The Public Finance Management Act is very clear, once we appropriate money to the counties that money is supposed to go to the County Revenue Fund directly from Central Bank. You cannot get it back. So, the money that is already apportioned to counties through this House is secure. So, this fear that we are getting in this House that you are pretending to be helping counties, that chances are that every year the government will under collect, has no basis. We need to understand this clause clearly.
I think now we should put the Question. Remember it is Committee of the whole House. I think we are now beginning to repeat ourselves. Hon. Angwenyi, do you have something different?
I just want to stress that budgetary estimates have accurate figures. I am talking from point of view of our financial experts. I oppose this amendment. What has been put in this clause assists our devolved governments to receive their dues. It clarifies how they will be addressed if there is a shortfall or if there is an excess. We should support it. I oppose this amendment.
Hon. Members in the interest of moving forward, I now put the Question.
Hon. Chairlady, I beg to move:- THAT Clause 5 of the Bill be amended- (a) in sub clause (1) by inserting the words âwith the prior approval of Parliamentâ immediately after words âCabinet Secretaryâ; (b) in sub clause (2) by inserting the words âwith the prior approval of Parliamentâ immediately after words âCabinet Secretary. Hon. Chairlady, as I did in relation to Clause 4, upon further perusal of the Public Finance Management Act, I have discovered that Section 205 of the Act, specifically sub- section 4 takes care of what I had proposed, that is âthe regulation shall not take effect unless approved by a resolution passed by Parliamentâ. I am therefore withdrawing that particular proposed amendment.
Hon. Chairlady, I beg to move:-
Again, you are suggesting that it be deleted?
Yes. We are dealing with the revenue bill but not dispute resolutions. Dispute resolutions should be a separate Act of Parliament that should be used from time to time. What we are dealing with is revenue and division of revenue. This particular clause is misplaced. It should be deleted.
Hon. Chairlady, I oppose. If we delete this clause we are contravening the Constitution, Article 189 and the Inter-governmental Relations Act which was passed by this House. The Inter-governmental Relations Act is the one that creates this. There might be disputes, that Act will be used to solve a dispute between the two levels of Government. We do not want to live in a country where there is chaos. Rules and procedures are very important. For the first time we are running a county government and national government. It is because of that, that this House felt that this Inter-governmental Relations Act has a constitutional mandate where devolution is involved. So, if we delete it we are contravening the Constitution. I oppose.
Hon. Chairlady, first of all, this provision in the Bill was completely unnecessary. If you ask me, there is the Inter-governmental Relations Act in place; we have the Constitution in place. You did not need to bring the same provision in another bill. I support deletion because you are making it criminal to seek justice. There is nowhere in the world where you would criminalize quest for justice. By passing or not following the laid down procedures, it is a matter of law. Many of us may not know it. Then the lawyers will say that you did not follow one or two steps. You are not a lawyer yourself. Then you will be asked to take personal responsibility. I do not think that is acceptable in a democracy. Let us delete this because we know there is the Constitution which directs on how the county governments, if they have disputes with the National Government, can iron out their differences. The same is provided for in the Inter- governmental Relations Act, but providing it here and adding some words that make it criminal to seek justice, we will be giving this country a legislation that is very punitive. Thank you and I support.
I rise to oppose the deletion of Clause 6 in the sense that maybe they do not understand what alternative dispute resolution provides. Alternative dispute resolution is all about negation and arbitration. When there is a relationship, as it is going to be between the National Government and the county government there is bound to be conflict. When conflict arises, what is required is that parties explore all alternative means of dispute resolution before they move to a court of law. This clause does not follow that if you go to court to file a frivolous claim, then it means that you are being criminalized. What it provides is that if you file a frivolous claim, then you will take personal liability for the process and cost that you have made the government either at the county level or at the national level to incur. I state that it is not right to dilute that clause. It is properly placed in this law. The Constitution allows for alternative dispute
Thank you, hon. Chairlady. I rise to support in half.
You have to decide which one it is.
Clause 6(1) in itself is good law because the Constitution anticipates that there will be dispute resolution and an Act of Parliament really can regulate that organs would first of all look for all dispute settlements mechanisms before they approach a court of law. It is reasonable. So, to that extent I am inclined to support my sister, hon. Kajuju on this matter but again subsection 2 and 3 of the Clause is actually unlawful and unconstitutional. The Constitution itself has allowed the organs to be able to interface and the Inter-governmental Relations Act itself has also allowed further the mechanisms by which this can be done. To legislate a criminal fetter to a Constitution which does not give any such fetter is to place a criterion that the Constitution by its own wisdom decided not to put. I think this will make people just fearful. It will make governors not work, it will make public officers not to try to do what is right and a court of law has in a sense to decide that it has not been exhausted in the mechanism giving style. So, hon. Chairlady, as I object to the deletion of the entire clause, I think Sub-sections 2 and 3 should be deleted. You said that discussions in the Committee would be a little lax, I just want to ask guidance from the Chair. I really think that Sub-section 2 and 3 is really unconstitutional. I do not know how you can direct the House that although Sub-section 1 should be retained Sub-section 2 and 3 to the extent that they prefer a fetter should be actually deleted.
Remember that the proposer is asking for it to be deleted. So, we cannot have an amendment to a deletion.
Thank you, hon. Chairlady. I stand to oppose the deletion of Clause 6 as proposed by hon. Sambu. As you can read from Section 6(1), that section encourages us to fulfill the provisions of Article 189 of the Constitution. Sub-section 2 reinforces again the fact that we need to encourage alternative dispute resolutions. Going through the court process sometimes can be very expensive, sometimes it takes time. I think this is what the law is trying to address so that if we are able to resolve issues through amicable discussions, it will save time and costs. I would like to say that there is prejudice being suffered in this provision, whether to the county government or National Government. And so having it in the bill is not prejudicial to any institution or any organ as contemplated in this Section 6. We should, as a House, strengthen the constitutional provision of encouraging dispute resolution mechanisms. It is important to know that we are now undertaking serious reforms in our institutions of governance, the Judiciary, Parliament---
Order! Hon. Member, you have just done what the former Member did. The position is at the bar. There is only one bar which is at the end of the room.
I was saying that we need to strengthen the Constitution so that this House, which actually passed the Constitution strengthening Article 189, should not again negate the same provision of our Constitution. I oppose the intention to delete Clause 6 and propose that it remains in the Bill. It is going to strengthen our dispute resolution mechanisms in our country.
Can we give the Floor to hon. Muchai.
Hon. Chairlady, I rise to oppose the intention of deletion of this clause from the Bill. I want to say that the Constitution has encouraged the use of alternative dispute resolution mechanisms and this particular clause seeks to enforce the use of alternative dispute resolution which is anchored in the Constitution. Furthermore, I do not see what is unconstitutional about sub-clauses 2 and 3. The good reading of these two sub-clauses tells you that a state organ must involve the alternative dispute resolution mechanism before seeking litigation on the matter. Sub-clause 3 ensures that an officer in charge of a state organ who encourages the shortcut to the alternative dispute resolution mechanism shall be responsible for the payment of the expenditure incurred by a state organ. I think this particular sub-clause 3 is bringing discipline within the state organ and should be encouraged by all to ensure that as far as possible disputes between state organs are resolved in the best interest of the state organs. The court will be the very last result where indeed, the mechanism applied has not resulted into a resolution. There is nothing unconstitutional about sub-clauses 2 or 3 and I oppose the deletion of this entire Clause 6.
Hon. Elmi, do you have something different so that----
Hon. Chairlady, I would like to support the deletion because in the new Constitution, we have created two governments with different functions but there are grey areas. Through the disputes resolution mechanism that has been created, which is very clear in the Act, we want people to explore so that those functions become clear. Adding a clause that discourages people is not good because the moment you say you will be personally responsible, nobody will want to go through the system. Let what this Sub-section 3 is advocating for be within the Law Society so that if lawyers continuously take frivolous claims, they are punished rather than punishing an individual. So, why are you encouraging people not to explore the boundaries between the two organs? In my view, it is unnecessary punishing somebody who is seeking justice. I support the delegation.
Hon. Chairlady, I want to oppose the amendment and I want my colleague to understand that this Clause 6 (2) and (3) is not saying you do not go to court. It is saying before going to court, exhaust other mechanisms as stipulated in Article 189 (4) of the Constitution and elaborated in the Inter-governmental Relations Act. You exhaust because if you go straight to court without first of all going through dispute resolution mechanism, you will have wasted funds and the phrase here is âwasteful expenditureâ. It is explained in the Public Finance Management Act, Sub-section 2 on
Order, Members! I think we have ventilated enough. We can put the Question so that we move. I think there has been enough ventilation on that.
Order, Member! Just let us get some guidance. Hon. Members, we will give the chance to hon. Nyakabi Kinyua and if her amendment is carried, then the ones for Gikaria, Pukose and Angwenyi will be dropped.
Hon. Chairlady, I had done my maiden speech but I continue to thank the people of Nyeri for voting for me and I promise to serve them and to do the best that I can. On this proposal---
Hon. Nyakabi, just for the record move that the new clause 7 be read a second time and then you can give your arguments.
Thank you, hon. Chairlady. I beg to move:-
Can I have some contribution on that, Majority Leader.
I stand to oppose. Article 218 of the Constitution says the memorandum to the Division of Revenue Bill is not part of the Bill. So, you cannot amend a memorandum. A memorandum is an explanation to that Bill. Two, Standing Order No.117 says that the Memorandum of Objects and Reasons merely accompanies a Bill and it is not part of the Bill for the purpose of enactment. So, hon. Jimmy Angwenyi and hon. Pukose, that was a fundamental issue because this Bill ends at the schedule. You cannot amend it after this schedule. Thirdly, under Standing Order No. 132, the memorandum is not listed among the items which the House can amend - our own rules. So, hon. Nyokabi Standing Order Nos.133, 117 and the same Article 218 you have quoted denies you the right to amend a memorandum. Finally, I want to read that Acts of Parliament do not upon enactment contain any memorandum. That means that if we go by what hon. Nyakabi is saying that amendment will not be binding to Parliament. It is redundant. So, I oppose.
Hon. Chairlady, I just want a clarification by Leader of the Majority Party. Which particular section is he reading by saying that the Constitution is very clear that memorandum does not constitute part of the Bill? I am not very clear on that. Maybe he can inform us.
Hon. Chairlady, I want to read the Constitution. In Article 218 it says âEach Bill required by Clause (1) shall be accompanied by a memorandum setting out â
(a) an explanation of revenue allocation as proposed by the Billâ. So the Constitution is saying it is an explanation of the Bill. I want the Member for Kipipiri to read Standing Order Nos. 117 and 132.
Just go slowly so that we have the same understanding.
Hon. Chairlady, I have quoted the section, so anybody who has the Standing Orders can read and I read the Constitution. I can read Standing Order
Hon. Chairlady, this is one of those rare occasions that I find myself in the same wavelength with the Leader of Majority Party. The amendment that is proposed is not in keeping with the legislative practice in the Commonwealth. The content of the Act itself is the enactment. The memorandum is a justification. It is an explanation of the enactment but what turns out to be law is the content itself in the Bill. It would be contrary to drafting procedure that you find a memorandum being part of the Bill because it does not in any way cause any enactment or something that the law expects somebody to do. So, I oppose the deletion by my sister and ask that the deletion as proposed in actual fact is a repetition of what the Constitution has said; that there will be a bill and that it will be accompanied by a memorandum, which is what we have. To subject that memorandum to be part of the Bill, in actual fact, is contrary to what Section 218(2) says. So, I oppose.
Hon. Chairlady, there is miscommunication from the two lawyers who have presented to us and this is the problem of having too many lawyers in the House. I am reading the Constitution that hon. Kinyua and A.B. Duale have spoken about. This memorandum is stated in Article 218 of the Constitution. It talks about the Bill being accompanied. âEach Bill required by Clause (1) shall be accompanied by a memorandum setting out â
(a) an explanation of revenue allocation as proposed by the Bill---â Can the lawyers clarify for us since the Constitution clearly states that this Bill must be accompanied by a memorandum? I wholly support what the mover of the amendment is proposing. Since we did not go through the committee, we need to ensure that the memorandum which will be taken as part of the Division of Revenue Bill will not injure, at the end of the day, the work that we are trying to do. It should be corrected.
On a point of order, hon. Chairlady.
Just hold a little. Let a few of the Members say a few things before you come in. You will get a chance.
I think there is need to explain the intention of Article 218. When we say that a memorandum accompanies the Bill, it is clear that the memorandum is not part of the bill but accompanies it. I think we all know that Acts of Parliament do not
Let us get a few more of you, the accountants and lawyers so that we can make informed decisions.
First of all, hon. Chairlady, let me put it on record that what hon. Nyokabi is seeking to achieve is not to amend the memorandum. Hon. Nyokabi is adding a new clause to the Bill which is Clause No.7. Let me advise the Leader of the Majority Party, I have dealt with Treasury for now about five years and I know that you have to be very careful when you are dealing with the Treasury. If the intention of the Treasury was just to explain to us or to give us memorandum, we would not have had these schedules, like the one trying to set ceiling. If we are not careful, we are saying through this memorandum that Parliament will only access Kshs.16.7 billion. That is the ceiling set. We have to be very careful with Treasury. Treasury is one animal that is very complicated and especially when it comes to finances. They can easily mislead you. I would urge that even if there is no additional information we are getting from this clause, why can it not be there? Even if it is in the Constitution, why can we not just have it to be safe and to be sure that whatever we are passing with this Bill, another lawyer will not come and interpret differently. I would urge this House that even if hon. Nyakabiâs amendment is not adding any value, it also does not take anything out of the Bill. Why do we not have it, because she is just saying that the memorandum that you have brought to us will not bind us when we are dealing with Estimates because if it will bind us, it is very dangerous. Judiciary is asking for Kshs23 billion and you are showing them that you can only give the Kshs15 billion. What if we realize that at the time we are dealing with estimates that they require more?. Why do they repeat to us the issue of SRC, something they know this House does not like very much? Why do they put it in the Bill? They are reminding us about something. They say if you want to know the owner of a dog, beat the dog and you will see the master coming. Now I have known who has sent SRC, it is the National Treasury. If we are not careful, we are just going to validate the SRCâs mischief. So, I urge this House even if hon. Nyokabiâs amendment is not helping us in anything, let us just have it there to protect us.
Thank you, hon. Chairlady. I do not know whether my opinion is supporting or not supporting the inclusion of Clause 7 by hon. Nyokabi. I want to draw the Houseâs attention to a further amendment proposed by hon. Aden which basically covers the fear that we are looking at in seeking to add another clause to the Bill. The amendment by hon. Aden comfortably covers the fears in setting the ceilings that we seek. I can see the hon. Aden is proposing to set a ceiling of about Kshs20 billion for Parliament.
It is a different amendment.
I was asking whether it would be in order if we are to oppose the inclusion of Clause 7 in the Bill then Members can be aware that the amendments by hon. Aden is there and we consider that. Alternatively, if we are to shoot down the amendment by hon. Aden then it is imperative that we include that Clause 7 and I support it.
Let us go as we had agreed clause by clause. So, now we are on Clause 7, let us not pre-empt or decide on Clause 8 when we have not executed and completed. I had given the chance to hon. Pukose.
Thank you, Chairlady. I wanted to support hon. Nyokabi on the issue of this amendment which she is bringing. When I looked at it, I was one of the people who were thinking that we need to protect the House so that in future we are not held accountable in terms of a bill that we may need to vary at a later date. If it is just a memorandum, then it means when you look at it, you will find that there are tables that are coming after that. We are talking of Table 3 which is giving us expenditure items based on the proposals by the CRA and the National Treasury. On the last page there, there is also Table 4. In this, you find that we have not also been able to discuss the Equalization Fund. There is also the Appropriation Bill which will still be able to come later. In this proposal, we have not also captured the proposals by the CRA, neither have we discussed about the supplementary bill. Most of what we have is projected estimates and also estimates. So, in a future date when we want to be able to change, if we do not have a clause that will be able to protect us, we will not be able to bring those amendments. It will mean that this House passed this Bill the way it is and we cannot make any changes and we have to live with the consequences.
I think we have ventilated on this. I do not know whether the Leader of Majority Party has something and then we need to put it to the vote. Let the House decided.
Hon. Chairlady, hon. Nyokabi has two amendments. She has an amendment on the definitions and expressions which I have no problem with. I want to make it very clear that my amendment on the Schedule will fundamentally even change the memorandum and explanation because I have changed figures. I have replaced the whole schedule and put a new one. If you read the memorandum and explanations, they have changed. I want to ask hon. Nyokabi with humility to withdraw her amendment so that we move on.
Order, hon. Members! Let us have some order in the House. Eng. Rege.
Hon. Chairlady, I want to inform the House and allow me to do it. I would like to really support hon. Nyokabi for what she said about the memorandum. What the leader of the Majority Party is trying to say is really amending what is contained in the memorandum. The word âmemorandumâ is an envelope containing some of these changes that we are looking at, some of which are mathematical functions. These mathematical functions must be changed when you are altering what is
The hon. Nyokabi was on her feet, we do not know want she wants. This is her amendment. Can we allow her to decide what she wants to do with the amendment?
Thank you, hon. Chairlady. Actually, I intended to alert this House about the inclusion of SRC in the memorandum. I think that objective has been achieved. I wish to withdraw the amendment.
We have another new Clause 7 by David Gikaria.
Hon. Chairlady, I beg to move:- THAT
Hon. Members, I think it is important to guide that in all the three new clauses 7, the impact of each of them is similar to Nyokabiâs. Amendments by Pukose, Gikaria and Angwenyiâs are actually having the same impact as Nyokabiâs. So, the decision really lies with the House. I want to propose the Question since Gikaria has moved his amendment.
Hon. Chairlady, when we talk of Clause 7, as much as it is said not to be of much use, I think we need to cushion ourselves. We need to have a safeguard as other speakers have said so that we do not have any mischief of any sort in interpretation. I do not think there is any harm in having a safeguard. It is not changing anything, it only reinforces the principle that we do not want anybody to come and mess around with whatever we pass here. So, I support that it be included as an extra safeguard for the principle that we uphold. The explanations and the memorandum shall not work. Just to reinstate it a second time does not cause any harm. It is better to be safe than sorry.
I would want to support. If Article 218 requires that a bill coming to this House should have a memorandum then it introduces a legal debate as to whether that memorandum should constitute part of that Bill. This is a new regime in this country and anybody could actually say by the virtue of that provision, it is constitutional that we should look at the bill. Bills are also accompanied by schedules and I think the House needs to realize that the Treasury will result to its own schedules as proposed in the memorandum to justify this Bill. Hon. Chairlady, therefore, for the avoidance of doubt and to make sure that Treasury mandarins do not connive with the figures we need to have this clause. Indeed, this clause is also restoring the independence of this Parliament to make budget. As you look at the estimates which we shall be discussing further in the memorandum, we are proposing amendments, but when we leave it as such and then it goes to the Senate and nothing is done about it, then Treasury can easily follow its own schedules and put them as part of these bills.
It is not about avoidance of doubt. In fact, I want guidance from the Chair. I have cited Article 128, it says the Division of Revenue Bill will come with a memorandum on explanation. It will come with an evaluation. I have cited Standing Orders 117 and 132. I want to tell my colleagues that even if we agree to what amendment, it will not be law. Even if you want to cushion, what are you cushioning? It is not law, and I want to tell my colleagues and I said it, Acts of Parliament do not upon enactment contain any memorandum and memorandum is only meant to serve as an explanation to the House which House agrees or disagrees. I also want to say that what we are dealing with is Division of Revenue Bill, how to share resources between the national and country government. Some Members want to bring the SRC to get the numbers. They want to bring SRC so that, that can help them in terms of numbers, but the law is very clear. I want guidance and ruling on this issue. Hon. Kajwang agreed with me.
Unfortunately, the Leader of Majority Party is right on this. I hate to say so. This is about legislative practice. It is about how to structure bills and
Order, hon. Members ! This is the first time we are doing this. Many of the Members do not understand and it is also the first time that we are having two governments. Let us understand the challenges that we may all be facing. Let me make sure that we do the right thing; that we do not tie ourselves by either agreeing or not agreeing to pass the amendments.
As a legislative practitioner, this will be the first time I will see a bill in which part of it will be a memorandum. When this Bill is now turned into an Act of Parliament, all those things we are seeing will disappear and all we will see is the content of the bill which is the practice in all Commonwealth jurisdictions
Hon. Chairlady, I wanted to raise a point of order in the sense that you have given the hon. Member time to contribute on the same Motion twice. This is not the practice of this House.
If you read what I said, I said it is possible in the Committee of the whole House to speak twice. It is possible.
Second, I just want to withdraw my amendment because I have found it to be superfluous. I just learnt something about it.
I want to take this opportunity also to contribute to this Motion. We have been told that a memorandum does not play a major role in this Bill, but if you check page 12 of this document you will find that there is a table. Although I am not a lawyer I am somebody who respects mathematics so much. If you check column 3 which has âNAâ, and you find a figure that is Kshs.231.1 billion then that defeats mathematics. The explanation that is given down there, it saysâ in determining the vertical allocation for the county government for 2013/2014 the CRA starts with a ratio which is then increased by 14 per centâ. This is a clear indication that CRA did not go to the field. It just sat in the office and maybe projected these figures and that is why they are coming with Kshs.231.1 billion without any good explanation, meaning that if we do not want this document to follow us in the future, it is better we put that clause for the benefit of the doubt and for the benefit of the new Members because we have not gone through this document properly. I move to support that we should support the clause.
I listen to lawyers argue and I was asking myself, why was it necessary for this particular bill, for Article 218 to say expressly that this Bill shall be accompanied by a memorandum? We all know that all bills are accompanied by memorandum. But when the Constitution expressly states that a bill shall be accompanied by a memorandum, it is telling something and it becomes constitutional. This idea of saying that it is traditional that memorandum must accompany all bills does not apply to this. This specific bill, the Constitution says must be accompanied by a memorandum. Let me tell you, during the last Parliament, we passed something in Elections law which said that anybody who does not have a degree shall not contest. In fact, the people who were cheering did not have degrees. They did not know what we were passing. Afterwards, we met them when we were taking tea and they were almost in tears. Let us not be in tears tomorrow for passing something in this House that we are going to regret. When we were arguing about the issue of salaries and we were told that we were the same people who set up the Salaries and Remuneration Commission, you feel also stupid and embarrassed. Are we going to be embarrassed again tomorrow because another lawyer who is not T.J. is going to interpret it to mean that since the Constitution said that the memorandum must be part of the Bill, it is a bill? I am saying anther lawyer will say that. Why is it that for this Bill the Constitution is telling us that we must accompany it with memorandum? If it is the tradition, why do you not leave it out? That is why sometimes I have a problem with lawyers because they confuse people. In accounts, we are very straightforward, you either debit or credit. Either you steal or you do not steal. There are no two ways about it, theft is theft, but for lawyers they want to steal from you and they will never tell you, until they have stolen from you.
I have just consulted a member who is a lawyer from the Jubilee side and he is advising me to drop the amendment.
Do not say he is advising you, make up your decision. Hon. Gikaria please guide us. Sit down until you have made up your mind and allow Keynan to contribute. Order! Let us have one person at a time. We have two withdrawals, I do not know if you have withdrawn, you have not indicated but Nyokabi has withdrawn hers.
Hon. Chairlady, first of all, we do not want to get confused. This is not a semantics issue. I want to appreciate what hon. Kajwang said. There are traditional interpretations of law, the law is not static. The mere fact that other parliaments did not engage in this does not stop the Eleventh Parliament from also having something to do with memorandum. What I want to suggest is that for the sake of the comfort of the Members, this House is about to annul that purported Gazette notice of Sarah Serem. In my opinion, it will be wrong to have anything to do with that gazette notice captured in this particular bill. That is the import of the bill. Can we have that because it does not change anything? We are only saying that let us for now do away with anything in that purposed gazette notice and I think this was the intention of hon. Nyokabi, as a lawyer. This is what we really need to achieve as a House. I want to support that we should allow this notwithstanding that interpretation of hon. Kajwang because there are many interpretations as there are lawyers and we do not want to be confused.
Thank you, hon. Chairlady. As it is, it is actually so important that we have it as it is. If we do not have protection then we are going to be subjected to the Serem kind of thing. That is going to disrupt----
On a point of order, hon. Chairlady. If I listened very carefully, I heard hon. Gikaria say that he has withdrawn his proposed amendment. Now, I do not know what is there to be contributed on.
Did he actually say, I asked him twice but he has said----
He has stated so. So, the Motion is dead. I heard it.
Can we hear it from you, have you withdrawn or not?
Thank you, hon. Chairlady. This clause is giving us protection, nothing more than that. So, we need it and we should have it now, not later than now. I support.
Hon. Members, it means that the new clause 7 proposed by hon. Pukose and the one proposed by hon. Angwenyi now are dropped because Gikariaâs has passed.
On the schedule, there are three amendments, one by hon. Leader of Majority Party, another one by hon. Aden and the third by hon. Mbadi. We will start with A.B. Dualeâs.
Hon. Chairlady, I beg to move:- THAT, the Bill be amended by deleting the Schedule and substituting therefor the following new Schedule.
On a point of order, hon. Chairlady. I beg to disagree with what hon. A.B. Duale is saying because what he has done is only to delete the schedule. He has not introduced a new schedule. So, we do not expect new memorandum from you. You have only changed the schedule.
The explanation is basically about the new schedule. If you look at the schedule and the explanations, they are derived from the schedule. I have amended the whole schedule in all aspects. Now, I beg to move.
Thank you, hon. Chairlady. I rise to support this amendment because it has taken care of our interest to devolve funding to our county government as well as taking care of our interest with regard to CDF. I want to reiterate that hon. Members of this House you must guard if need be with you lives, the CDF. We should not centralize it at the county level. CDF is further devolution of the services and funding at the grassroots. Therefore we must guard it. What I would want to urge is that the Leader of Majority Party you discuss with Treasury mandarins to increase the base for CDF from 2.5 per cent to 6 per so that we can have some of those jobs done well. I am sure our leader has handled SRC properly. They should be put to their correct position; they work only one month in one year. That budget of theirs should be divided by 12. With those remarks, I support.
Thank you, hon. Chairlady. I also want to support this new schedule as given by the Leader of the Majority Party, noting that this is an improvement from what was there in the previous schedule where it was a total of Kshs198 billion. Knowing very well that our counties are still very young, much of this will go into setting up structures, employment and all that. I just want to add that this amount, in the spirit of devolution should be increasing yearly. I stand to support and say that in the spirit of devolution this amount should be increasing so that the counties can conduct their services very well.
Let me also support this amendment. It should be noted that we
Thank you hon. Chairlady for giving an opportunity. I rise to support the amendment, I am very happy that finally the county government is getting money. I think for us in this country to achieve the Vision 2030, we need to empower the county government. For a couple of years in my life I lived in a country where it uses devolved government. For it to go on, it needs all the funds. Especially right now as they kick start the duties--- I come from Trans Nzoia and I went to visit the governor but found that he does not have an office, a house or a car, so giving him a little money will not get our county moving. I think what we should do is to make sure that our county governments can be able to raise revenue by themselves. To add on to what the central government is going to give them. So, I rise to support.
I have not spoken on this amendment. Hon. Chairlady, I beg to support this amendment but at the same time I just want to register something that is disconcerting
On a point of order, hon. Chairlady.
Allow hon. Mbadi because he spends all his time looking at these Bills. Sometimes it is good to share his wisdom.
Hon. Chairlady, I think we need to correct hon. Sakaja, about that particular provision. You should remember that there was Tenth Parliament and all that is stipulated there, the National Assembly then acted as both National Assembly and Senate and we approved even the formula for sharing all that. So, it is not that, that has not been done, what has not been done is what we are doing today.
Hon. Chairlady, I humbly submit that hon. Mbadi does not understand the process. This is how the process is, according to Articles 217 and 218, the CRA puts recommendations initially. The recommendations are considered by Treasury and when doing the Division of Revenue Bill and even the Allocation of Revenue Bill, Treasury gives us the memorandum that we have explaining why they have deviated, if they have, from these recommendations. But after that step, the CRA still tells us what they think about it, for our consideration of this Bill. Having said that, it is---
On a point of order, hon. Chairlady.
Order, hon. Members! We may be taking too long. What is the point hon. Gichigi.
Is hon. Mbadi in order to mislead this House by saying that the Tenth Parliament complied with Article 205 of the Constitution which specifically says that when a Bill that includes provisions dealing with the sharing of revenue---
Are you talking to hon. Sakaja or hon. Mbadi? I thought hon. Mbadi said that bit was done.
That is what I am raising. I am saying that the Constitution is very clear; when a bill of the nature that we are discussing today is published, and this one was published recently, the CRA is supposed to make its recommendations to this House as we consider this Bill. It is not the formula or the criterion for division of this money that is anticipated by Article 205. As we speak, what hon. Sakaja is saying is correct. What hon. Mbadi is saying is incorrect.
Please let us not split too much hair on this. I think if you look at the same article that hon. Gichigi has just read, it clearly says, âthe Commission on Revenue Allocation shall consider this provision and may make recommendations to the National Assemblyâ. I think yesterday we spoke on the same and said that we have not received any recommendations. So, we do not want to go back on what we had discussed yesterday. They âmayâ make not âshallâ make. Therefore we shall move with the fact that they have not made any recommendations and we will move on with what we have.
Hon. Chairlady, the reason I raised that point is not to tie us down to that but to emphasize the fact that we must take devolution seriously and to emphasize further that indeed even by virtue of this amendment it is clear that the Jubilee Coalition and the Jubilee Government takes matters of devolution seriously. In the first year of devolution instead of just having 15 per cent allocated to counties, it has been exceeded by double to 34 per cent and I think that is something that the entire house must thank the Government for. Thank you.
.: Asante, mhe. Mwenyekiti. Nataka niseme kwamba kuunga mkono
Thank you, Chairlady. I want to contribute to this amendment brought by the Leader of Majority Party. My contribution is very specific and brief. Looking at the table which appears on page3, the only question I ask the Leader of the Majority Party is; where is development money that is going to counties so that counties can do their programmes? All we are seeing here are administration costs, payment of salaries and recurrent expenditure. What people are looking for is the money that these people are going to use to develop their counties. This is what we are trying to say, because it seems to be that for the financial year 2013/2014, all those counties will be on autopilot. There will be no development, nothing happening. People will be paid salaries and all recurrent expenses. Would the Leader of Majority Party on behalf of the Government tell us where the money that county governments will use for capital development is? Thank you.
I have risen to support this amendment because I can see the Treasury mandarins here. They have forgotten that---
Hon. Members we are overusing this word and some of the Members are not taking it very kindly.
I am sorry, hon. Member. I withdraw. I rise to support this amendment and on the same breadth I would kindly request the Treasury that since His Excellency the President, Deputy President, this House and Senate, we all agreed to try as much as possible to devolve as much funds down there, I would kindly plead with this House that once the estimates for the main budget come, we work on the CDF Act so as to raise the 2.5 per cent to at least 5 per cent. That 2.5 per cent will go directly to our children so that we can make sure they get bursary. This way, they will be contained within the Jubilee manifesto of 18 years in school. We must start budgeting for that from now. That will devolve enough funds at the grassroots level and it will be handled by the Members of Parliament. Since the governor has something to do, our folks will not understand. They can only see what hon. Members will do for them within the five years. Thank you.
Hon. Members, I think we have ventilated enough on this. Please let me put the Question so that we move.
Hon. Chairlady I beg to move:- THAT Clause 2 of the Bill be amended by inserting the following new definitions in their proper alphabetical sequence- âconditional allocationsâ means allocations in the share of revenue allocated to the national government for the purpose of meeting specified county government expenditure including financing county expenses relating to development programmes; âcounty allocationâ means the share of national revenue computed in accordance with Article 203(2) of the Constitution that is allocated for the use of the County government consisting of the county Executive and the County Assembly; ânational allocationâ means the share of national revenue computed in accordance with Article 203(2) of the Constitution that is allocated for the use of the national government consisting of the Executive, Parliament and the Judiciary; âunconditional allocationsâ means allocations in the share of revenue allocated to the national government for the purpose of meeting unspecified county government expenditure; I am sure in this amendment we will have better luck than the earlier one. This particular proposal is to cover definitions. We have considered this Bill without the benefit of the committee. I also continue to urge the leadership of the House that we put committees in place. If you look at the terms that we have used, for example, âconditional allocationsâ it is not very clear without a definition like the one that has been included to understand what exactly that captures. The term âconditional allocationâ has now been interpreted and will be part of Clause 2 in the definitions part of the bill covering allocations in the share of revenue allocated to the National Government, for the purpose
Hon. Chairlady, I realize now you have difficulties in giving me time. I think I have spoken too much. Let me make small contribution to this. Whereas I support the definitions added because the Bill did not have enough definitions, it is important to correct the definition of âunconditional allocationsâ. It is only the Leader of Majority Party, according to our standing orders, who can amend an amendment on the Floor. The term âunconditional allocationsâ means allocations in the share of revenue allocated to the National Government for the purpose of meeting unspecified county government expenditure. I think it should be âby the National Governmentâ. This amount is not allocated to the National Government, it is allocated to county government, in my view. There is a grammatical issue that needs to be addressed otherwise we are saying this unconditional allocation is to the National Government, which is not the case. I agree totally that if you go to the Constitution, you will find that it talks about conditional allocations but it does not go ahead to explain what they are. When you go to the PFM Act, it is a bit explained but I think it is better to have it in the Division of Revenue Bill so that we have the terminologies used clearly defined. Finally, let me agree with hon. Kinyua. I think we saw some wordings in this Bill that need not be repeated in future. Phrases like âholding counties harmlessâ is not provided for anywhere and it is confusing. I think we need to be consistent. We need to follow the law whenever we draw new bills. Otherwise we will come up with terminologies which may end up confusing everybody. I support, but I ask the Leader of Majority Party to consider moving an amendment on that amendment.
Hon. Chairlady, I rise to support this amendment. It stresses on the issue of county assembly members. We should provide for them adequately. Hon. Chairlady, as you know their salaries and remuneration is Kshs79,000. The amount you can only use for one day or two days. Let us not balloon the functions of governors and the executives at the county level. Those county assembly members are our children. If they perform well, maybe some of them will displace us from this august House. Let us encourage them by providing for them adequately. It must be shown in these estimates how much is being devoted to them, not what is given to the governor and his executives. In most cases, some of those governors, you will find their executives are their brothers- in-law, sisters-in-law and grandmothers. They are not serving the public. So, I rise to support this amendment.
I rise to support this amendment. We have just defeated an attempt to remove the clause providing for surcharging of officers in the county government for bringing court action. There is need for clarity in interpretation of the Act itself which is just about to be enacted. When you have these provisions, whenever they are acting on the Act, it is going to be very clear to anybody that this is the meaning of these clauses and expressions. I would want to tell this House, as much as we are saying that some of these things are not important, if the issue goes to court, the court will be assisted by these explanations. If the law is not clear, sometimes the court goes behind
Hon. Chairlady, I support this clause that hon. Nyokabi has brought to the House on the strength that the law does not operate on ambiguity. The mind of the drafters must be very explicit to any person who is reading the law, whether he is a layman or lawyer. You will find under Article 260, we have provision where interpretations are stated and explained. What we realized in this particular bill is that these terms that were used in the Bill were not explained and therefore any person reading the meaning would not be able to get what exactly the drafters had in mind. Hon. Chairlady, you will find that for purposes of best practices and good governance you need to be able to tell which arm of the county government you will be dealing with at any particular time. I particularly refer to the âcounty allocationâ interpretation which clearly sets out the county executive, whom we know are employees of the county assembly and the county assembly members who are elected representative of the assembly. What we are saying is that let us get to know and separate the definitions so that in the event of a dispute, as hon. Gichigi has put it, whoever goes to court the court is able to understand what meaning the drafters are putting in certain terms. I beg to support.
Thank you, hon. Chairlady. I rise to support the Motion. There are issues which I want to point out here. Whereas we are very happy and we are very pleased to support the Motion on devolution, we have to be very careful. Whereas we have devolved funds to the county, we have not put structures in a way that we can have very clear allocation of these funds within the counties. We have had a lot of noises by now in terms of the sharing of the executive and the rest, but we as the Parliament must also look at the future, that after the devolved funds are shared in the counties we will have a lot of people saying that certain constituencies have not received enough funding from the counties. As a house, we should look at making everything very clear to the extent that even the sharing of development funding within the county has to be very clear. We have to look at the history on the sharing of the CDF and the rest of the funding which has been there, considering the level of poverty and all that. I am saying, as we look at the future allocations, let us also be very cautious and help this country to have some order by creating very clear formulas of sharing these devolved funds within the counties. If this is done, everyone will be happy with devolution and there will be no fighting. It will get to a time when people in our country will not be interested in knowing the governors because they know their share will be very clear. I beg to support.
We are almost now debating. Members, let us allow hon. Majority Party Leader to give an amendment. He has a minor amendment.
Hon. Chairlady, I want to move a further amendment to the proposed definition of âunconditional allocationsâ. It should read like this âunconditional
I think we also need to clarify because ----
Let me go the other way. I combined all of it in one sentence, but I will go one by one. I am moving a further amendment that the proposed definition of âunconditional allocationsâ be amended by-
(a) deleting the word âinâ appearing between the words âallocationâ and the âshareâ and replacing it with the word âfromâ in the first line.
(b) inserting the word âofâ between the words âpurposeâ and âmeetingâ in the second line
(c) deleting the word âtoâ in the first line and replacing it with the word âbyâ. If that happens then it will read as follow:- âunconditional allocationsâ means allocations from the share of revenue allocated by the national government for the purpose of meeting unspecified county government expenditure;â
Thank you, hon. Chairlady. I wish to support my sister, hon. Nyokabi on the amendments especially bearing in mind that when we are doing any form of budget, it is also very essential that any kind of budget takes into consideration the issue of notes. Very many people are not conversant with the terminologies that are used. For that reason, I support and I wish to support the idea of having the budget very clear in terms of the allocations for county assembly members and county executive members. So, it is not the prerogative of the governor to say this is what county executives and county assembly members should get. I wish to join in calling for the support of the county assembly members. If we look at the remuneration in this budget, the remuneration for the county assembly members of 79,000 is honestly, in my opinion, way too little. We come from areas where county assembly members have basically not been there. These are people who have used a lot of resources for their election. When they call for an increase in their salaries and remuneration, I fully support. I look at Nairobi, for instance, if a county assembly member is living in a house that he or she pays around Kshs.35,000, because that is basically a two or three bedrooms house in Umoja, I think that, that money is way too little. I, therefore, join the rest in supporting that subsequent budgets take into account the issue of remuneration and increment of salaries for county assembly members. With that, I beg to support.
Thank you, hon. Chairlady. I want to support the further amendment by hon. A.B. Duale and generally support the amendments. In the last Parliament, some party took advantage of the loophole in the standing orders. The term
Hon. Chairlady, I want to first of all support the further amendment by the hon. Majority Leader and by extension the amendment by hon. Kinyua, my learned friend. In doing so, let me say that unfortunately we are living in what one may want to call a moment of trust deficit. This country is suffering from a trust deficit. It is very difficult to take anything for granted leaving absolutely no doubt as to what you mean. Therefore these definitions will certainly add value to the letter of this law. I just wanted to make one point and that has to do with the two issues that form the core of this amendment and that is the definition of âconditional allocationâ and âunconditional allocationsâ. Just to give a caution, in the wording of Article 202 of the Constitution, these conditional allocations are actually part of the revenue share of the National Government. Just to caution, that this should not be a blank cheque where National Government can use this particular avenue to lend unfair advantage to certain areas, exercising this prerogative of sharing this revenue under the guise of the National Government giving its share to particular areas. For the record, National Government should be guided by the principles set out in Article 203 of the Constitution. On every allocation, whether that allocation is conditional or unconditional, the principle set out and those conditions include ensuring that we deal with economic disparities across the country. Finally, as a House we have been at the forefront and rightly so because we want to be custodians of devolution. We have been at the forefront of protecting sharing of revenue in a manner that is equitable and fair across the counties. The next stage for us to put emphasis on is ensuring that these counties also share in revenue generation so that as much as we want them to share in the revenue that they receive, may we also emphasize that counties take responsibility to share in the generation of this revenue that is then shared. We could end up creating entities that have this mentality, that all they have to do is wait to receive and so that all that we will always do in this House is to sit here and argue on who must get what, when. We need to emphasize that these counties are economic units and in similar manner that they shall share these revenues, so must they also share the burden of generating this revenue. The scales are balanced. Remember we have a watchdog role here. This House, as has already been stated, has three primary responsibilities; to legislate, represent and oversight. I noticed the other day that the Senate is coming up with a committee that will be almost similar to what we call the Public Accounts Committee in this House. For the avoidance and for the record, that committee of the Senate that will seek to oversight the expenditure on public resources in the counties will not take away the primary responsibility of this House to oversight these funds. Therefore the Public Accounts
On a point of order, hon. Chairlady. Today, it seems to be my bad day that I am rising a lot. May I bring the attention of the House to the amendment that was brought by hon. Aden Duale in which there was a schedule and in that schedule hon. Duale amended what was originally before the House. What was before the House, if you look at page 4 of the Revenue Bill, was unconditional allocations. By the amendment that was proposed by hon. Duale, that provision disappeared. When my learned friend attempts to define âunconditional allocationsâ is it in order that this is a term which is now worth a definition in view of the fact that by the amendment of hon. Duale, that definition has actually disappeared from the Bill before the House? I am looking at the amendment that is sought on âunconditional allocationsâ. By virtue of the amendment that hon. Duale brought, that word disappeared from the schedule and so to try to define it would be a redundancy or something which does not appear in the face of the Bill now considered. In the original version of the Revenue Bill on the schedule, the first table contained âunconditional allocationsâ. In the amendments that hon. Duale moved on the first table, that now disappeared. What we now have is âconditional allocations to countiesâ, we do not have âunconditional allocationsâ. My good friend seeks to define âunconditional allocationâ. Would it not be redundant or an attempt to explain something which the law does not speak about?
Yes, hon. T.J. is right. However, you look at hon. Sambuâs amendment to Clause 3 which was taken, that term is included in his amendment; the drawing of unconditional and conditional grants from the share of revenue of the National Government.
Thank you, hon. Chairlady. I rise to support this amendment and at the same time I would like to say that this idea of bringing clarity to the Bill is important. As we allocate these finances to the counties, it is also important, as one Member indicated that those at the county level are not just there to receive but they should also work or allocate resources appropriately. There is also the possibility, even with this Equalization Fund, of having disparities at the counties. Some of the regions have suffered for long. When we come to the counties, there are regions that are likely to be allocated more resources than others and hence we are going to devolve disparities at that level. It is important to take this into consideration. The other issue is the consideration of the county assembly. By the end of the day, if these funds are just given to the governor and then he uses his discretion, there is a possible of members of county assemblies ganging up and they may not be able to carry out their mandates as expected. So, the clarity in terms of the funds that are disbursed at the county level, that will also assist so that there is equity in terms of resource allocation and utilization at the county level.
I wish to withdraw the third part of the further amendment.
So, therefore, how does it read?
That the proposed definition of âunconditional allocationsâ be amended by â
(a) deleting the word âinâ appearing between the words âallocationâ and the âshareâ and replacing it with the word âfromâ in the first line.
(b) inserting the word âofâ between the words âpurposeâ and âmeetingâ in the second line.
( Proposed amendment to part âcâ is withdrawn)
Those are the only two further amendments I am making.
Hon. Chairlady, I just want to drive home the point. I hope the Leader of Majority Party can see how much we struggle to try and make law on the Floor of the House. Really, these committees have to be formed. My further amendment is to even do away with that âunconditional allocationsâ because the new schedule brought in today does not have that term. The term that hon. Sambu has introduced is âunconditional grantâ. So, it is not even clear whether âunconditional allowanceâ is the same as âunconditional grantâ. The unspecified county government expenditure in the âunconditional allocationsâ definition is also causing a bit of problems in terms of, why would the expenditure be unspecified? Since, the âunconditional allocationsâ is now not used in the new schedule, maybe the best position would be to take the allocations that already appear and leave out this one that does not appear until a future date when it will appear and then we will worry about it. I hope that the committee will be formed. I hope that this plea has sufficiently been made to the party leaders that next week we form committees.
We need to be clear whether you are withdrawing or not, hon. Nyokabi.
I am only withdrawing the âunconditional allocationsâ. The others remain; âconditional allocation, county allocation and national allocationâ.
Hon. Chairlady, hon. Nyokabi should now know that it is only me who can withdraw on your behalf and I do withdraw the last bit. I withdraw and concur with hon. Kajwang and hon. Nyokabi.
Hon. Chairlady, I think in the explanation by hon. Nyokabi on county allocation, the amendment is okay but she has made the wrong implications in terms of the fact that her memorandum is wrong. She has said county allocation tells us how much will go to county executive and how much goes to the county assembly. I would like to make that correction. Nothing like that will exist. The entire allocation goes
I would therefore want to put the Question that what we are dealing with here is just the definitions of the three terms; âconditional allocationsâ, county allocationsâ and ânational allocationâ.
Hon. Temporary Deputy Chairlady, I beg to move that the Committee doth report to the House its consideration of The Division of Revenue Bill (Bill No.1 of 2013) and its approval thereof with amendments.
Hon. Deputy Speaker, Sir, I beg to report that the Committee of the whole House has considered The Division of Revenue Bill and approved the same with amendments.
Hon. Deputy Speaker, Sir, I beg to move that the House doth agree with the Committee in the said Report.
( Question proposed)
Hon. Deputy Speaker, I beg to move that The Division of Revenue Bill be now read the Third Time.
Hon. Deputy Speaker, I hope now that we have passed this Bill, each one of us will consider it their duty to defend devolution in all ways. We have heard sentiments being made here by Members about how to create wealth within the counties and not the counties to expect the national revenue to just flow into them. We hope that as Members of Parliament and custodians of the Constitution, we shall ensure that devolution is achieved to the letter. Thank you.
Thank you, hon. Deputy Speaker. Now that we have passed this Bill, I would want to urge in future deliberations, that in the same spirit we increase the allocation from the current 32 per cent to 40 per cent because if that was to be done in the current estimates, we would be able to have netted another Kshs.20 billion to go to the devolved units. It is also a concern because if you look at the Bill and the way we have discussed it, there are some factors that have not been considered. First and foremost, we considered the budget or revenue of 2010/2011 and yet going by the collections of last year, which was Kshs956 billion, you can see there is a variance of about Kshs36 billion and that would have been of use in terms of division. In the same breath---
Hon. Mwaura, this is not debate time. Just comment on Third Reading.
So, I do appreciate this and I do hope that then it shall go ahead to ensure that, indeed, we devolve service delivery and that Kenyans from now henceforth shall be able to feel government where it matters most. Thank you.
Hon. Deputy Speaker, Sir, I want to just support this Motion by making three comments. We have not done justice to this Bill. Actually, this Bill would have been transacted much better if we had the relevant committee. I do pray that next week we will not move on without these committees. Both sides of the House need to come together. I want to say that this is not something to blame one side for. We need to all agree that we will need leadership. Something has been talked about concerning the county representatives. It is high time that we spoke for these county assembly representatives. There is a difference between councillors and county assembly representatives. The county assembly
Hon. Deputy Speaker, Sir, I want to say if there was a test for the Jubilee Government, it was to show its commitment to devolution. Many doubts had been raised about the commitment of the Jubilee Government to devolution. I think those doubts have been erased because there is nothing more important to devolution than resources. If in the resources the Government has already moved from 15 per cent to 32 per cent, I am urging those who have been going round the country saying that the President, Deputy President and the Jubilee Government are not committed to devolution to change their tone because if there is commitment, it is money and money now has been given to the devolved government so that they can be successful. I want to congratulate the government.
I want to say that I am very impressed as a person and as a Member of this House for what you have done for our country. We are happy with what Jubilee has promised and has delivered. So, for the first time places like Samburu will feel that they belong to this country because of devolution. Having said that, I am a little bit concerned that as Members of this House the budget for the Commission for the Implementation of the Constitution (CIC) has not been discussed in this House in depth. I have seen our country grow into a country of commissions. Sometimes I find these commissions almost doing nothing but getting a lot of money. For example, if you look at the CIC, you will realize that since the country passed the Constitution in 2010, they have not been doing much. There is no need to prefect the country. We do not need to pay them a lot of money to instruct us on what to do. That is why you see Nyachae commenting on everything and anything. I think it is time this House took their money and paid our county representatives. I was impressed by one hon. Member who was in one of the television shows; I think he is Eng. Gumbo. I have not verified the facts, but I think he is right. In countries like India, with millions of voters, you have only three commissioners. In our country, we have so many commissioners. I would like to say that in our next Budget Estimates please Members---
I have allowed you some latitude. Hon. Wanga.
Thank you, I applaud the passing of this very important Bill. With the passing of this Bill, the ball now rolls to our counties. All eyes are on our governors and county assemblies. For them to be able to now roll out the devolution that
As I put the Question, I want to confirm pursuant to our standing orders that we have the requisite numbers to pass the Bill in the House.
The Bill will be committed to the Senate from here. Next Order!
Hon. Aden had four minutes remaining on this Bill on Livestock. If there is a Member who has got interest in it, he can contribute. There were many Members who were interested on that day.
Hon. Deputy Speaker, I rise to contribute to this Motion. I am very glad about the very intent of this Motion. Much as I have got sympathy for the ASAL areas, l believe that general investment that reduces the risk in ASAL areas ought to be increased. I would like to see much more investment in water. Pastoralism and livestock keeping are not commercial activities. They are a mixture of commercial and lifestyle activities. Insurance will not insure lifestyle, it will insure the commercial side. I think the most important thing that this House should push for is that investment including communication, whether rail or road as well as facilities such as abattoirs and feed regimes. There are several ways of doing that and it ought to be enhanced. I support that very strongly. My worry about insurance is that it is going to be a one way affair. With the covariance of risk, that when you have drought it is going to be affecting a whole region, it is an indirect way of saying that the budget allocations cannot cover these loses. This House should consider recommending an income support type for pastoral communities, when it is declared that we have a disaster. We do not want to do that via insurance. If you do that via insurance, when you know that it is certain that it is just going to be a definite payment each time it occurs, it is no longer insurance; it is just a Treasury transfer done to the pastoralists. Much as I support the need to reduce the risk for livestock theft, there are many other tools to use other than insurance I would be very reluctant to support a singular approach via insurance because it is a definite way of simply sinking money down and you do not necessarily get the results that you want. One of the major reasons why we do not get results is called moral hazard. We have had insurance in this country guaranteeing minimum returns. The beneficiaries are usually those who do not deserve it. The reason is that you can never tell the difference between the one who does and the one who does not. You do not have the database to do that. Let us agree that there is need to support the ASAL areas. Let us use the alternative instruments to do that. This is not one of the best instruments. With those few remarks, I beg to oppose.
Thank you, hon. Deputy Speaker. I rise to support this Motion. It is a very critical Motion. As one of the people who come from the ASAL areas, one of the challenges that we face as a country sometimes is that when there is drought, you find that the Government is slow to act. When a poor farmer from North Eastern or from Kajiado loses about 100 head of cattle, sometimes we are slow in responding as Government. When there are floods, we see a lot of effort of trying to save people. In the past regimes, we have heard a lot of promises as pastoralists. Leaders from many political parties have been making declarations that if supported by pastoralist communities, they would ensure that a livestock insurance fund would be put in place. That has never been the case. The Jubilee Government had an opportunity to interact
There is no quorum in the House.
We will ring the quorum bell.
Order, Members! We have quorum now. Proceed.
Hon. Deputy Speaker, I rise to support this Motion. The issue of livestock farming in the ASAL areas and the issue of cattle loss is one of great concerns to this country. This should be an industry that is developed to capacity where we are able to draw significant revenue from export. It can create an industry where we may even not need insurance since we can have the necessary investments such as abattoirs within these areas. This will allow us to be able to package meat for export and increase meat for local consumption. This will not only improve this particular industry but it shall increase security within the country. In these areas where livestock are ravaged by severe climatic conditions we also find that security is a good issue. Once we address the issue of insecurity, we will also have a significant industry in which within the ASAL areas, we will have farmers who are able to support themselves and this will reduce the level of poverty in these areas. I therefore rise to support this Motion for livestock insurance in ASAL areas. Thank you.
I would like to support this Motion because the poorest person in Kenya today is a livestock farmer or a pastoralist. This is somebody who has 500 head of cattle in January and loses all of them in July because of the drought. Drought is not caused by the Government or the farmer. Pastoralists also lose their animals through floods, clashes and so on. I support the Motion. There is nowhere where a pastoralist can get support apart from the government setting up insurance for these people so that they feel that they belong to this country. These people also suffer a lot of insecurity because of their animals. The Government of Jubilee always tells us that they are doing 100 per cent of their promises. One of their promises is dealing with insecurity. They must be able to come through insecurity and solve the problem of livestock farmer. I would like our people to be insured. Thank you.
Alright the Member on my right. Introduce yourself.
(Hon. J.K. Bett)
The maiden speech has incorrect information and I wish to correct my colleague that you cannot insure livestock. Currently, you can insure livestock in several banks.
Order, Members! You know that he is on his maiden speech. Just bear with him.
Hon. Shimbwa): Thank you, hon. Temporary Deputy Speaker. May I also take this opportunity to make my maiden speech.
On a point of order, hon. Temporary Deputy Speaker.
What could be out of order, he has not even spoken.
My point of order is on the document that we are using in this House. Why members of the minority side are not respecting these standing orders is because we are becoming casual in them. I want to read Standing Order No.18, Presiding in the House, âThe Speaker shall preside at any sitting of the House but in absence of the Speaker, the Deputy Speaker shall preside and in absence of the Speaker and the Deputy Speaker, a member elected by the House for that purpose pursuant to Article 107 of the Constitution shall preside.â Have you been elected by Members to preside?
Order! I think you must have been out of the Chambers last week when we run an amendment to that particular standing order. We have aligned the standing order to Section 107 of the Constitution. So, my dear you are out of order.
Hon. Shimbwa): I also wish to thank God for enabling me to be the winner for the Changamwe seat. I also pray to God to guide me in this House and in my constituency and at the national level to provide leadership that will go a long way to make Kenya a better place. I also take this early opportunity to thank my constituents for having confidence in me and I promise to do my best to serve them diligently with all my energy and wisdom. I also stand to support this Motion in the sense that other countries like Europe have areas designated for specific industries and this has made it possible for people not to be migrating the way we are seeing in Kenya. The fact that we have brought in a new Constitution as a result of the inability of the previous government to serve all regions equitably, I propose that we support this Motion and make the livestock industry a vibrant one and which can be made a foreign exchange earner for this country. For the few of us who have travelled to European and Arabic countries you find beef is actually more expensive than even chicken. So, if we can improve by way of minimum guarantee returns or by way of insuring them, I think we shall make this region to turn into areas which are going to be productive and to be more developed just as other regions have developed. So, just like we are supporting the growth of our tea, coffee and pyrethrum, we should also support that these people who are in these difficult areas should also be supported so that we do not see people crying year in, year out about drought, floods and other calamities. For those reasons I support the Motion.
On a point of order, hon. Temporary Deputy Speaker Sir. I am afraid we do not have quorum again.
Let me inquire from the Clerk if we have quorum or not. I am told that there is no quorum. So, I will ask that the Division Bell be rung and see if we can raise quorum.
On a point of order, I think we may not attain the quorum and time is also up---
Member, the Division Bell will ring for ten minutes. That is when we will determine whether we have quorum or not. Order! Unless we get back to quorum, we are unable to transact business. We will allow the bell to ring. I draw to you attention Standing Order No.35.
Order, hon. Members! Hon. Members it is now time for interruption of business, the House is adjourned until, Tuesday 14th May, 2013 at 2.30 p.m.
The House rose at 6.10 p.m.