Hon. Speaker, I beg to lay the following Papers on the Table of the House:- The Ethics and Anti-Corruption Commission Third Quarterly Report for the year 2014 covering the period 1st July to 30th September, 2014. The Report of the Auditor-General on the Financial Statements of the Judicial Service Commission for the year ended 30th June, 2014 and certificate of the Auditor- General therein. The Report of the Auditor-General on the Financial Statements of the Water Services Regulatory Board for the year ended 30th June, 2014 and the certificate of the Auditor-General therein.
Chairperson, Committee on Implementation, hon. Soipan! Who is the Vice-Chair? Hon. Members, before we move to the next Order, I will draw your attention to the existence of a Supplementary Order Paper.
Hon. Speaker, I beg to move the following Procedural Motion:- THAT, notwithstanding the provisions of Standing Order 120, this House resolves to reduce the publication period for the Security Laws (Amendment) Bill, National Assembly Bill No.39 of 2014 from 14 days to one day. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
This was necessitated by the current situation that we are facing as a country. We need this law like yesterday. I want to plead with the House to approve this. I also want to remind the Members that we all know that this country is at war with terrorists. We have lost so many people. I want to cite the incident that we had at the Westgate; the two incidents in Mandera where we lost about 60 people; the Mpeketoni attacks where we lost more than 60 people; the Kapedo attack where we lost about 22 officers and many others. This includes the attack at the Nyali Barracks where some radicalised youths attacked the Nyali Barracks.
So, we need this law as a matter of urgency. We have all tasked the Executive to style up and come up with radical laws to deal with terrorism and insecurity in this country. So, this law has come at the right time, so that we can address this issue conclusively. We all know that extraordinary times call for extraordinary decisions. That time is now. I want to plead with the House to approve this Motion.
I will ask my able Vice-Chair, hon. Lentoimaga, to second this Motion.
Thank you, hon. Speaker for giving me this opportunity. I want to second this Procedural Motion. This is an important time in the history of our country. Having gone through these incidences and after the Government making changes in the security agencies, as a House, we also need to make the necessary changes through legislation to ensure that we support the measures that are being taken to secure our country from external invasion and internal attacks from banditry and others attacks that we can face in this country.
As my Chairman has said, I also want to plead with the House to support this Motion, so that we can reduce the period from 14 days to one day.
Thank you, hon. Speaker. Indeed, there is no denying that our country is going through extraordinary challenges and it is incumbent upon us, as the body trusted with making laws, to take steps to address this situation. However, even as we go through this process, it is my hope that the amendments that will be brought here will observe strict fidelity to the Constitution. The policies and the laws that we are going to make here should observe the provisions of the supreme law of the land. Even as we do that, I have said it here before and I want to say it again, sometimes, laws exist merely because of perversity of nobility. Indeed, I believe that it is possible that some of the interventions that we need can be done without necessarily having to result to these amendments. I have in mind, for instance, the composition of the National Security Council.
If we have the goodwill to move this country forward, we do not necessarily have to always be coming back here to make amendments to our laws. However, I accept and recognise that it is our responsibility as a House to give the country those extraordinary measures that will make us deal with the extraordinary situations that we are going through. Hon. Speaker, I support.
Thank you, hon. Speaker. I recognise from the outset the importance of reviewing the laws that govern security functions in the country. This The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
country has gone through a very trying period in terms of security. It has led to drastic measures being taken where people who should be highly placed have had to relinquish their positions of power in the security system hoping to rectify the security situation. We recognise that even if we appoint new people to those positions, if they do not have the tools to work, they might not deliver.
Hon. Speaker, however, it is very important to realize that at times like these we need a lot of sobriety in reviewing laws. If we review laws for expediency then we run the risk of making some very serious mistakes. So, I would suggest that one day is not enough publication period. While I am aware the Committee tasked with security might have had occasion to look at the laws beforehand or maybe they played a role in the writing of those amendments, but this is not like what we do out there, where we say so- and-so has read it and so it is okay. It is not the same. This is a very important thing and we do not want to keep on amending laws. We want to make laws that will be there in perpetuity. In fact, it is embarrassing for us that this House passed those laws that we are trying to amend now. Suddenly, they discovered that there was a problem with them. Again, the reason why those laws were faulty was because they were passed in a hurry, in the sense that we had to meet certain constitutional timelines. We hurried through without thinking what we were doing.
Hon. Speaker, I sincerely believe that one day is a very short publication period. Let us think back and realise why we are in this position in the first place; it is because of the hurried passage of laws. Let us not repeat the same mistake. Let us give it ample time so that we can actually look at it and look at the repercussions in future and present.
Hon. Speaker, some people say that we should not go into the future using the rear view mirror but I dare say that even if your windscreen has got good wipers and it is clear, in politics, if you do not keep your eye on the rear view mirror, you end up committing the same mistakes. So, you must have a rear view mirror.
Hon. Speaker, in our situation maybe I could remind the House that earlier on when laws for detention without trial were first brought to this House, one Jaramogi Odinga Oginga was at the forefront and he was the first victim of those laws – detention without trial. When we brought laws on the issue of multiparty politics making Kenya a
one party state, the first victim of them was Charles Njonjo. So, I oppose this. We should get ample time. I am not opposing the amendments because I have not seen them yet but I am opposing the limitation.
On a point of order, hon. Speaker.
Hon. Eseli, hon. Joseph Serut has a point of order.
Thank you, hon. Speaker. I have a lot of respect for my neighbour, Dr. Eseli. I have listened to him, but is it in order for him to begin discussing the amendments? We are only saying that this is a procedural issue and then we can discuss later whether we want to make any changes.
Thank you, hon. Speaker. I am surprised because hon. Serut is usually a very keen listener but for once I think he lost his keenness. I have not discussed it. I said I have not even seen the amendments yet. I was just opposing the issue of shortening the publication period so that we do not get enough time to digest what we are actually amending and the implications of what we are doing. That is what I was trying to say. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
So, hon. Speaker, I oppose this Procedural Motion. Thank you.
Leader of Majority Party.
Thank you, hon. Speaker. I stand to support the Procedural Motion. By reducing it to one day and given that we are going on recess - in anticipation of the recess on Thursday -it is basically to give the same Committee time to engage the stakeholders. I had the benefit of seeing that Bill this morning and it is amending over 30 Acts. So, it is good for our country because I think the situation which we are facing today is in two forms. One, we must make sure that legislation is in place. This same House also amended the National Police Service Act and the National Police Service Commission Act when there was a conflict between the Inspector-General (IG) and the Commission.
Hon. Speaker, today, when you see Kenyan women being stripped it is not because there is no law, there is the Sexual Offences Act by hon. Lady Judge Njoki Ndungu. It is about the men and women who are supposed to enforce our laws. However, since we are anticipating going on recess for the long haul, it is good that we reduce the publication period. If we do not reduce to one day then the maturity period of this Bill will be long and the Committee members will start their Christmas or New Year celebrations without engaging.
So, basically what we are doing is to reduce the period so that tomorrow morning they can engage the various stakeholders. So, I think it is a simple matter so that we give the Chair and his team time to go out and look at every piece of amendment they are doing to that particular Act.
So, hon. Speaker, we support because as the Legislature we have an important role to play in securing our nation from the threats of terror, cattle rustling, money launderers, drug traffickers and many other threats. So, I agree with the Chair and I support.
Hon. Members, since this is a Procedural Motion, the reasons for which have been explained, I think we can do better if we can make a decision one way or the other. I will put the Question. Indeed those who have spoken on both sides appreciate the purpose for which this Motion is coming. So, I will put the Question.
Hon. Members, that Bill stands committed to the Departmental Committee on Administration and National Security. I direct that the Clerk’s Office issues communication to the country for purposes of complying with Article 118 of our The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
Constitution. Notwithstanding that tomorrow is a sitting day in the morning, the Committee on Administration and National Security may commence sittings and hearings at County Hall, from 10.00 a.m., tomorrow morning.
Hon. Bunyasi Sakwa, you have a balance of eight minutes.
Thank you, hon. Speaker. I will continue from where I left last week. I arose to support the proposed increase, but I said that this is a delicate balancing act. When you look carefully at what happens; you issue an open licence and what happens when you do not issue a licence at all? This is something that should be approved with great care. Indeed, we are at a time when the country needs substantial infrastructural expansion and some of the indicative projects in the proposed portfolio have been outlined there. There is nothing that binds Government to fund those projects that are only indicative; as a way of justifying the proposed increase. Hon. Speaker, when you look at the Medium Term Expenditure (MTE); it is several times the proposed increase. It is, at least, Kshs5.8 trillion and we are only proposing an increase of Kshs1.3 trillion. This clearly indicates that the Government will be coming back very soon to seek an additional increase to be able to fund the MTE priorities that total Kshs5.8 trillion, by what they have given in the proposal. Therefore, clearly there is need to expand the debt ceiling. But one thing that the Executive seems to be requesting is to trust it and that it can handle it. The Executive is saying that, even though the immediate requirements are no more than Kshs30 billion by the optimistic scenario; Kshs1.3 trillion is needed and that we should trust the Executive because it will handle it carefully. They are saying: “After all, we will come back to this House and we shall again seek permission to approve the specific loans that you might incur.” But this House does not look at the specific loans that might be incurred, including the contracts; they might also look at the overall quality of the portfolio that will be funded by the proposed increase in the debt ceiling. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
Hon. Speaker, I know most hon. Members will agree with me that increasing the debt ceiling is not tantamount to approving borrowing. But if you look at this historically in this country and any other country, you will find that there is a positive correlation. If the debt ceiling goes up, borrowing goes up as well. You will rarely find a case – if you have to graph it - where debt ceiling is rising and the actual debt incurred is declining because it will negate the need for raising the debt ceiling. We know that these are like twins. They may not be empirical, but they look alike. When the debt ceiling rises, the amount of debt itself will also rise. Therefore, when the House is left with the responsibility of approving individual projects as well as the overall portfolio, which is what is defined as the MTE programme as revised from time to time, it requires the attention of every hon. Member. Any hon. Member who is worried that the increase in debt ceiling will increase debt and, therefore, increase the indebtedness that our grandchildren and great grandchildren will have to bear, must be in the House on such days and must be able to vet these projects carefully. We must take a stand on the quality of the portfolio that is proposed. Some of this comes in fairly technical papers that come before this House; such at the Budget Policy Statement. If we pass this proposed increase, it should now receive enhanced attention. Come next February, whenever it will come before this House, we will ensure that the Government succeeds by sticking with the portfolio that will generate faster growth that can sustain this particular debt. Hon. Speaker, this is a bad time in this country because our export capacity is being hampered. Our tourism and tea prices are down and if our debt service capacity were calculated on the basis of today’s ratios, it would be problematic because the outlook is not so bright at the moment. Therefore, I would expect that later, particularly during the Budget Policy Statement, we pay special attention towards what the Government says will happen in the external sector because of where the money comes from to service debts. There is no other place. The only other way of servicing debt is to borrow from somebody else, pay the current debt and continue to incur a debt. So, we should pay special attention to that. The other aspect that we must be careful about is that the more you borrow, the more you have to pay and the more you will have to finance from your annual appropriations. You have to finance debt service as well as interest. That takes away money from the current obligations that might be there. We are at a time when we are supporting devolution; we have a very young population and our demand for the health and education sectors are large. If we have large amounts of money to service occupying space in the annual Budget, it takes away money from these very crucial expenditures. Therefore, much as we agree on the one hand that we need to get faster growth and support infrastructure development, we must also be cautious on how it will impact both the Budget as well as the export sector. It is crucially important that when the House is concerned about the likely impact such debt would have on this country and its future generations, it carefully looks at every contract the Government signs that obligates this nation to a debt. It also must approve by looking at every specific contract, not just the numbers of Government guaranteed debt. This debt ceiling that is being proposed covers both direct borrowing by Government as well as the guarantees that the Government might do on debts by other public sector institutions. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
Hon. Speaker, the House does not get a chance to approve each contract individually and sometimes some aspects of the public sector borrowing are kept confidential. That veil of confidentiality must be lifted to enable the House to convince itself and satisfy itself that every single shilling that is borrowed will go into good use; it will result in faster growth and it will result in benefiting this country. Hon. Speaker, because the House is going to be interested in looking at the size of the debt ceiling and ultimately what actually constitutes debts and what projects get into the debt, they must have a say. I hope that the appropriate committees will have a close look at the composition of debts. From whom should we be borrowing under such circumstances? Of course, concessional debt will always be the preferred option. What is the optimal mix between those concessional debts, suppliers’ credits, other forms of bilateral and other hard debts that we are getting? Those are the aspects of the analysis that we should demand. I hope in future we can see that statement coming from the Treasury side; so that, as we trust them to go and handle these properly, we must satisfy ourselves that they are doing the best job available in using ceiling that they have been granted. With those few remarks, I beg to support.
Hon. Members, it is important for me to remind you that the balance of time for this Motion was one hour. Hon. Bunyasi Sakwa has begun eating into that one hour, but he has used his huge balance. Let us hear from hon. Opiyo Wandayi.
Thank you, hon. Speaker. I want to contribute to this Motion, but I will oppose it with an extremely heavy heart. This is because I am unable to come to terms with what is being proposed in this Motion. Hon. Speaker, it was only in January, 2013 when this debt ceiling was increased from Kshs0.8 trillion to Kshs1.2 trillion. About 15 months later, we are proposing to increase it to a whopping Kshs.2.5 trillion. There is no gainsaying the fact that the envisaged projects are useful to the country’s economic development. No one can argue with that fact. Those projects are noble but these ambitious plans to engage in monumental borrowing leaves every Kenyan worried because even as we borrow money, we need to know that this is a burden that we shall be passing over to future generations. As a country and as a generation, we have a responsibility to protect the interests, not only of our generation but also of the future generations. Hon. Speaker, I have also looked at the kind of infrastructure projects that have been outlined for implementation with this borrowed money. However, I am worried because, firstly, there is this so-called one million acre irrigation project. It is being cited as one of the mega projects supposed to be financed with this borrowed money. As we speak, this very project is steeped in serious controversy. If the House may not be aware, the phase one of that project which was about a feasibility study to come up with the way forward in terms of its eventual implementation, a whopping Kshs1 billion was spent; taxpayers’ money. What is worrying is that the company that was earmarked or selected to undertake this feasibility study, which is an Israeli company, asked for about Kshs1 billion without going through any tendering process. So, without going through any transparent tendering process, we are now told that the main project has been conceived and, indeed, the tender has been awarded to the same company. The same company that The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
did the feasibility study at a whopping Kshs1 billion has now been awarded the main tender. At what cost? We will be surprised that the cost of the main project is a staggering Kshs14 billion. It is not possible to justify that you could move from a feasibility study at the cost of Kshs1 billion and proceed to the main project and award it to the same company without going through the process of tendering at a cost of Kshs14 billion. It is also alleged that the Israeli Government was going to support that other phase of the project. There is no contract, whatsoever, as we speak between the Government of Kenya and the Israeli Government concerning that very project. But as we speak, this project has been signed off and the company which was given that contract has already been given an award letter yet the Government which is supposed to finance it; the Israeli Government, has not committed even a single cent. Now we are being told to come here and rubberstamp something which has been conceived in the background somewhere by some people with the objectives which we are not clear about. This is not acceptable. Unless we are careful, this House could be rubberstamping a very serious fraud. There is no gainsaying the fact that this 10,000 kilometer road project is important to all of us even though we have issues with the way the road network is being distributed, as we speak. It is something that still needs to be debated as to how we arrived at the formula of distributing that road network. We cannot, as a House, sit here and approve something that is going to haunt all of us, including our children and grandchildren. In my view, this proposal needs to be reviewed. It needs to be relooked at keenly by the Committee concerned and by the Treasury so that they can come back with a more reasonable proposal. Otherwise as we speak, what we are going to do is going to leave this country in a situation which will be unmanageable. Hon. Speaker, I do not want to talk much because if you go through this Report, you are left wondering even about the hurry in seeking this massive expansion of the debt ceiling. I will want to urge my colleagues in the House to look at this proposal very keenly without rushing to vote on it because if we do not do that, history might judge us extremely harshly. I do not want to belabour the point. With those few remarks, I oppose, and very strongly so.
Hon. Speaker, I rise, from the outset, to oppose this particular Motion on the premise that what we have budgeted for the next four years is Kshs5.6 trillion which will bring our combined foreign debt to around US$64 billion which is completely beyond the percentages that are recommended even within the East Africa Monetary Union. It goes against the recommendations by our own Parliamentary Budget Office which states clearly in the Report that we are already at 53 per cent, in line with proposals in international rankings of our ratio of debt to GDP, which ranks Kenya at 59th position. Whereas we support those projects, my primary objection is that we could raise the same US$64 billion in a completely different way which would actually give relief to Kenyans. This is in the way of floating our billion barrels of oil. Currently, even if we take June 2009 figures because right now the oil prices are on a decline arising from the crisis emanating from Russia and the Middle East, we will still be able to raise in excess of almost US$76 billion within the futures market which will finance all this and keep us in good stead. Financial prudence; the entire world, including Germany and Europe, is moving towards having a balanced budget where we budget within what we are actually The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
collecting. When you look at our portfolio of ranking of our dollar and gold reserves in Kenya, you will see that we are currently ranked 9th in Africa and 91st in the world with just a reserve of US6.4 billion dollars. It has not been revealed what the mix is, but it challenges our ability to protect our currency from foreign currency fluctuations. Kenya is a net importer and it will put significant pressure on the shilling, which will mean the cost of our bread basket will be greatly affected. So, in echoing the words of some of our colleagues, I would seriously recommend that this Report goes back to the Budget and Appropriations Committee. Much of what they have said about this Bill, even in their opening presentations, is not consistent with what we have. When they were citing a country like Japan having a big debt ratio - they can have a big debt ratio as they are currently ranked number two in the world - in terms of holding foreign exchange, only behind China with US$ 1.2 trillion in their reserves, their basket is pretty rich. We can go the Angolan way. I am just giving different alternatives because we are a House which should recommend support for their own Government. We can go the Angola way where they went and swopped their oil for development. Where we are citing projects like the Standard Gauge Railway (SGR) for instance as a primary thing which is putting pressure, I think the accounting for that particular aspect has been done wrongly. Earlier presentations in Committee, as regards the SGR was that we will have a moratorium period of not less than eight years over the loan. Financial practice is such that you cannot book the debt when there is a moratorium period. All what you can book is the interest that will accrue over that eight year period. Therefore, when you look at the presentation which has been given which says we will have a deficit of Kshs 30 billion and Kshs 8 billion, it is not true. It is a complete misrepresentation of the financial exposure that this country is actually faced with. Hon. Speaker, I wish to state in the strongest terms that when we take a stock of debt of US$64 billion, we are not even talking about generations to come; we are going to punish this country in the next four months. This is because everything will spiral outward, as we were looking at it. We cannot cushion the impact. If we made a bigger investment in terms of gold and say that whatever increment into the international market will cushion the underlying pressure that the Kenya shilling will be under, as we move forward, I would recommend that we move that way. However, seeing that we have fiduciary or other alternative ways of being able to raise this money--- When you look at the rebased value of our economy in terms of Gross Domestic Product (GDP), it is only at Kshs 4.7 trillion. When you take a total debt stock of Kshs 5.6 trillion, it will represent over 100 and almost 12 per cent of our GDP. This should be worrying to every Member of this House because we will have busted. Even in hon. Langat’s presentation, he said that World Bank recommends 74 per cent. In this particular scenario, if you take the total debt portfolio against a GDP growth, even if you accumulated it at 10 per cent per year, you are only looking over a four year period of us accumulating only Kshs 1.6 trillion over our GDP. We will still be in the red. This fact cannot be negated by anyone. You know, that has been very optimistic. Over the last four years, we have been talking about a growth level of varying between 4 per cent to 7 or 8 per cent at best, if you do not take the inflationary pressures which are there. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
The value of the Kenya shilling to the dollar or against major currencies has consistently depleted. We are not looking at a better state. Instead of looking back and asking what investments we are making towards agriculture, which is the bedrock sector of this economy, we are interested in other things. It is on a downward spiral. If our exports are not growing or matching, then you are looking at this debt portfolio becoming quite a problem for this nation. I, indeed, implore this House to be able to refer back this particular Report on Sessional Paper No. 14 to the Committee for them to engage with Treasury and actually look for most befitting way. Angola has shown the way ably. If our development partner is going to be China or Europe, we have oil; we have Niobium. Let us trade those minerals today. Let us put a caveat and only allow them to mine for the next 40 years. This will enable us build a sovereign fund which will be beneficial to this nation. We will also be able to build a balanced payment scenario which will propel this nation forward.
In looking at our Vision 2030 and its track this far, we need to be focusing more into engaging our youths, which number over 12 million. We cannot be heralding in a situation where we want to create dead stocks even in the position of Uwezo Fund and all these other initiatives. We need to think about where our demand is coming from. If we consistently put pressure on businesspeople by telling them that we are going to increase the Value Added Tax (VAT) or taxation because that is the only way we are going to raise money for this nation, we will become more and more unfriendly. I heard a presentation yesterday where they were saying that Kenya prides itself as an economic giant of this region. But then we asked; “What is the point of pigmies comparing themselves; that one is taller than the other?” You know, that is not where we are. Kenya is a strong power house for the rest of Africa. Indeed, its position in the world should not be minimized by any measure. Thank you, hon. Speaker for according me that opportunity and I would like once again to reiterate that I will be opposing this Motion. Thank you.
Hon. James Nyikal
Thank you, hon. Speaker for giving me the opportunity to discuss this request, which is based on very sound principles but not backed by facts and figures; very unfortunately so. The principle that we need to borrow to enhance and finance growth is the spirit of our Vision 2030, which is extremely sound. Equally, funding infrastructure to enhance growth as a major strategy of growth is a very sound principle. The programmes that are indicated; the Standard Gauge Railway, the 5000 plus watts power project, the irrigation project and all these, if done properly, despite the problems that we are facing with them currently, are sound principles. The principle that external borrowing is cheaper than domestic borrowing and, perhaps, puts less strain on the economy is also sound. However, we must realise that borrowing is a burden. A debt is a burden that, if not kept to reasonable level, will actually stop the people from enjoying the benefits that are supposed to accrue from development arising from the same borrowing. The only principle then is that we must borrow exactly what we need. Here is where I say that the Report is not backed by figures. The Report clearly indicates that what we really need for the projects that I have mentioned is Kshs 1.23 trillion. This is The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
barely above the Kshs1.2 trillion ceiling. Why then are we going to a ceiling of Kshs 2.5 trillion, double what we require? The Report itself indicates that normally we do this by about 50 per cent. This one we are going by 100 per cent. The Sessional Paper indicates that this is merely for planning. Honestly, anybody who has done any planning will realise that you cannot plan by more than double of what you need, and you have calculated. So, why are we going for Kshs2.5 trillion? Anybody who has cared to read this Report, the Report’s observations actually indicate that this is excessive borrowing all through. If I may read a few points on the Report itself starting with observation No. 1, it indicates clearly that the only excess we need in the worst case scenario is only Kshs8 billion. The Report further indicates in observation No. 2 that we normally do this by about 50 per cent. However, we are now going for 100 per cent. Observation No.3 indicates clearly that the Constitution obligates us to look at the level of borrowing so that it is within reasonable limits. As you read the observations, you can see that the Committee is not satisfied with the level of the borrowing ceiling that is being indicated. In observation No. 4, the Committee notes and takes into account the current stock of domestic borrowing and fully appreciates the extent of Kenya’s public debt. The Committee is worried again in observation. No. 6 where it says: “Despite the rebased GDP under current variable debt ratios, the Committee cautioned against excessive borrowing on account of the proposed debt ceiling.” All through, the Committee’s Report indicates that this is excessive borrowing. Then suddenly, out of the blues, the recommendation is that we should borrow Kshs.2.5 trillion. My colleagues, let us put politics aside and be guided by the content of the Report, and not just the final recommendation. It is clear to me that the Committee is acting on other information and forces, but not what they have noted themselves in the Report. My colleagues, particularly the ones in Jubilee, I know many times it is politics, but in this particular case, we must start cautioning Committees. I have seen that Committees make very good observations and they have very good facts, but when they come with a recommendation, it is not concurrent with what they have said. What is happening to our Committees sometimes? Hon. Speaker, let us be guided by the facts in this document. I appeal to my colleagues that we reject this Report. I oppose this Report not because we do not want the country to borrow to spur development; we need it. But how much do we need to borrow? I would, therefore, recommend that we reject this Report and take it back. Let them come back with a recommendation of somewhere between Kshs.1.5 trillion to a maximum of Kshs. 2 trillion. That will make sense. We are talking of billions. My colleagues, do you know what a billion is? If you spend a million per month, you will spend it for 83 years. That is what you will averagely earn from a billion for 83 years. We do not just consider these as simple points. Hon. Speaker, I oppose this Motion and recommend that this Report goes back and is brought to us with reasonable figures based on facts and not whims that I do not know where the Committee got them from. Thank you, hon. Speaker.
Hon. Onesmus Muthomi Njuki, the Floor is yours. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
Thank you, hon. Speaker. From the outset, I stand to support this Motion. Risks in any entrepreneurship must be taken. In this particular case, what normally yields results are calculated risks. It is only prudent to imagine that all of us want development. If you look at what has been put in place at the moment to achieve the millennium development goals, we cannot get there unless we make sure that the flagship projects have actually been implemented. These flagship projects demand a lot of finances. For example, the Standard Gauge Railway, LAPSSET and the 10,000 kilometers of tarmac road that every constituency and every hon. Member of Parliament wants, cost money. At the moment, there is a crisis of energy in Kenya where we have about 1,400 megawatts in terms of demand and a production of about 1,300 megawatts. This puts our country in a very precarious situation as far as investors who require energy are concerned. Therefore, for us to attract investors, we need to bring that energy up to 5,000 megawatts. This cannot happen unless we invest in that area. Hon. Speaker, the flagship project of increasing the acreage under irrigation to 10 million cannot happen unless we have finances. The electricity that we are taking to every secondary and primary school in this country requires money. There is something wrong with borrowing money that does not have a purpose. If you borrow for a purpose and that purpose is not only for accomplishment of the recurrent expenditure but for development purpose, it will definitely be paid. If you look at the projects that are supposed to be funded, all these are meant to increase the Gross Domestic Product (GDP) from 6 to10 per cent. Each one of these projects is supposed to start development. Look at the transport sector; we are wasting a lot of money. The congestion of our roads from Mombasa all the way, costs us money. If we do not develop the railway system, it will cost us much more. Hon. Speaker, what has been recommended by the Committee is not giving a blanket ceiling on borrowing; it is only for the purpose of planning, because there is no way you are going to plan unless you know where the money will come from. The reason why we are asked to increase the ceiling is only for the purpose of planning. Even as we plan to have projects that will cost Kshs. 1.2 to Kshs.1.3 trillion, we need to have enough money. This is like an overdraft; when you take an overdraft from a bank, you do not have to use it unless you have a purpose for it, because it is money you are going to pay back. If we shy away from increasing this ceiling, we will be stuck with the current problems that every underdeveloped country experiences. Hon. Speaker, we know that in the past we have had debts that have had issues because of non-payment or slow payment. We have been losing money because of poor financial management. Currently, we know tax collection by the Kenya Revenue Authority (KRA) has improved. This is because the systems that have been put in place will ensure reduced wastage and collection of much money. We cannot have our cake and eat it. We have to decide whether to be stuck with projects that have no funding and stay in the same position as we have been, or increase our ceiling and be able to borrow when we need the money and experience development. With those few remarks, I support.
Thank you, hon. Speaker. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
I would like to oppose this proposal because of various reasons. If you look at the recommended debts to GDP ratio at the international level, and even when you look at some of the so-called developed economies, the safest that is recommended is between 28 to 35 per cent. As a developing country, we have borrowed up to 53 per cent of the current economy figures. We need to ask ourselves this question: When we borrow as a country, do we usually get value for that money? If you look at the National Debt Register currently and the projects that were funded even from our bilateral and multilateral partners, you will be very surprised. Some of those projects look casual, superfluous and do not look like they were well thought-out. Hon. Speaker, we are having a situation where this country is being asked to borrow more to finance more into the future; to finance some projects that look like they are politically correct. Do we really have to go by that? For example, we have promised to provide 10,000 kilometers of tarmac roads. We will go for that borrowing at the expense of our balance sheet?
Hon. Speaker, it is very well documented that the national deficit is imaginative. It is a question of people not wanting to live within their means. That is what we are facing here. Yes, indeed, the infrastructure projects are good, and one may even argue that it is important to borrow instead of having a lot of money that may come from selling our hydrocarbons so that they are properly targeted with regard to expenditure.
This must also be looked at in the whole supply chain, in the sense that, if you are looking at access to markets, and this is going to be enhanced by the development of roads, like the LAPSSET Corridor project and the Standard Gauge Railway (SGR) project, but can we also look at, for example, how we may actually be reducing the growth of other sectors of the economy that would also in effect contribute to the growth of the economy?
There is something that is always ignored with regard to the borrowing of this country; the cost of service delivery. Some of these monies that we are borrowing are not based on realistic projections of the cost of a project. If you look at the cost of doing an election in this country, it is the highest in this region. A by-election will cost about Kshs300 million which is not at par with any of our regional countries. If you look, for example, at the cost of constructing roads, again it is very high. So, even when we look at the projected growth and the debt, clearly in my opinion, we would do much more in terms of having savings within the economy and the monies that we are raising from our taxes and, of course, non-tax revenue.
We also need to consider the issue of having a lot of liquidity in this country. Indeed, there is no question that the borrowing will increase because of this ceiling and, therefore, the issue of inflation. Just recently this Parliament discussed how to ensure that the people at the bottom level of the economy can actually lend their money to the Government when we reduced the amount from Ksh.50,000 downwards. Therefore, the question would be: Have we really exhausted internal mechanisms of ensuring that the Government has actually money to invest in these projects? My take is “no.”
Hon. Speaker, we were just recently again misled by being told that if we were to borrow the Eurobond that, that in itself was actually going to bring down the interest rates of this country. That never happened. So, for me, this is a bit suspicious, that we can actually want to borrow money that is in excess of our projected growth, collection and The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
requirement for the Medium Term Expenditure Framework (MTEF). In my opinion, the projected benefits have not been properly stipulated. A conservative estimate of the current debt shows that everybody in this country owes our debtors up to Kshs60,000. That is conservatory. So, then where is this going to take us? We must find a balance between our political promises and the reality of the balance sheet of our economy. We have to be bold as a country and tell Kenyans that, yes, indeed, we would want to grow this way, but it is not possible to support it with the kind of money that we have in our country.
Other than just having it as a Government directive, I would want to implore upon this House that this matter be referred back. It should not be looked at in haste. We should reconsider it so that we do not also come back in this very same Parliament or a future Parliament, and start complaining that, indeed, we made a wrong decision.
With those few remarks, I oppose.
Thank you, hon. Speaker for giving me this opportunity to contribute. I rise to support the Motion.
We have been invited by some Members to be very keen in the manner in which we participate, particularly in considering this Motion.
I do not know why some Members are clapping for hon. Ken Obura. In fact, they are interfering with the proceedings of the House. Hon. Opiyo Wandayi has asked us, as Members of Parliament, to look at this Sessional Paper with a lot of keenness. I looked at that challenge with a lot of keenness. In fact, I thought he was going to support because if he was keen, he would have found that this is very sound, as it has been said.
Hon. Speaker, some of the comments or remarks that have been made in opposition to this Motion are at best speculative. They are not based on evidence or facts at all. I would say that they are anecdotes, or at best allegories which should be left to stories. The Sessional Paper No.14 of 2014 is very clear on the reasons why Government is seeking to raise the debt level or the debt ceiling.
If you look at the Sessional Paper so that we do not mislead ourselves, and it is important for those people, including hon. Wandayi who claims to be a very keen observer in terms of matters of this House--- If you look at the Sessional Paper in Clause 7, it is very clear. The Cabinet Secretary (CS) has stated: “Please note that the requested enhanced ceiling is for planning purposes only and the loans to be contracted will be subjected to scrutiny by the National Assembly.”
We are not approving borrowing in this Sessional Paper or in the Motion that we are being asked to debate. We are just approving enhancement of the ceiling. I want to disabuse Members of the notion that the Departmental Committee on Finance, Planning and Trade did not look at this and that its observations are at variance with their recommendations. If you look at the observations of the Committee in their Report, which they have tabled in this House so that we do not mislead the House that the observation are at a variance with what they are recommending--- If you look at the The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
recommendations in Clause 21 of their Report, they have stated as follows: “Kenya’s current debt to Gross Domestic Product (GDP) ratios are favourable.” We know that if GDP is a factor when considering raising of debt ceiling, it is a mobile factor. Today it can increase and tomorrow it can decrease. What the Committee has said in Paragraph22 is that: “The Committee was therefore convinced that the review of the external debt ceiling was essential to help the Government achieve its developmental objectives.”
Finally in Paragraph 23, they have stated as follows and that is besides their recommendation “that total public debt is within acceptable fiscal sustainability ratios.” Further, they have stated: “…debt ratios should be consistent with the EAC Monetary Union convergence criteria.” Finally, this is what they have said in their observation “…that new borrowing will remain within the approved medium term fiscal framework so as to maintain macroeconomic stability.” Those are very clear. In fact, it in black and white.
So, I do not know where my very good friend who is seeking to walk out got this information that the observation of the Committee is at variance with the recommendation. They have clearly stated that they are recommending for the approval of the increase of the debt from Kshs1.2 trillion to Kshs2.5 trillion. That is for purposes of just increasing the ceiling, but when it comes to contracting the debt itself, it will have to come through this House as required by Article 95(4)(c) of the Constitution, that requires Parliament to oversight revenues and expenditures of Government. Hon. Speaker, this does not amount to borrowing in itself. It is just raising the ceiling for purposes of the Government planning. This is what we call forward planning. If you look at the proposed projects, which are contained in Annex I and referred to as “Medium Term Planned Projects for 2013/2017”, you will see that these are very innovative projects. They are projects which will spur economic development in this country. They will ensure that we maintain our role as a middle income economy. For example, the Government has talked about reducing tariffs particularly in power. In the Medium Term Planned Projects, you will see the High Grand Falls Dam, which is projected to spend about Kshs139 billion. This is expected to bring into the national grid over 700 Megawatts of hydro-power. That is besides the thermal, which we are seeking to get out of it. As you know, this country is driven by thermal power, which is extremely expensive because we use oil or diesel to run these projects. The other one is the Roads 2000 Programme, which is expected to spend about Kshs26 billion. I will be very surprised that most of the Members of Parliament who have stood here, including an independent one whose constituency relies on this money, which is an equivalent of about 4,700 kilometres of road, are purporting to be in opposition of this Motion. I have been speaking to him and part of this 4,700 kilometres of road, he has about 300 kilometres yet he is opposing. I do not know how he intends to satisfy his constituents. If you oppose the raising of the ceiling you are, therefore, in opposition to development in your constituency. The other one that is being proposed - and these are very noble projects if the Members could just take time - it is expected that in the Medium Term Projects 2013/2017, rehabilitation, reconstruction and maintenance of country roads of 1,075 kilometres and construction of new ones of 1,735 kilometres will cost the Kenya Rural Roads Authority (KERRA) and the Kenya Urban Roads Authority (KURA) Kshs121 The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
billion. All these projects are in our constituencies. Are we saying that we want to oppose development in our constituencies? I am very surprised that Members can oppose this. I do not know which Members are in good terms with their governors; we are in good terms, but he has refused to give me any sense at all for developing roads in my constituency from his Constituency Roads Fund. We are giving ourselves development funds here and Members can stand and say that they are in opposition. That is why I was saying that some opposition is in the form of anecdotes and allegories and should not find its way in this House. If you look at other projects, before I conclude---
On a point of order, hon. Speaker.
Hon. Speaker, he needs to listen before he raises a point of order. It is important and I hope that the Cabinet Secretary is listening. We would like him to put in place a unit called “money for value unit”, so that whenever a project is put into this House, they should tell us its value and whether we are getting any value for money from it. I support.
Leader of Majority Party. Hon. Members, I told you that the Motion had a balance of only one hour. It is time for the Leader of Majority Party, who is the Mover to reply.
Thank you, hon. Speaker. From the outset, I want to thank the Committee on Finance, Planning and Trade and the entire House for a very robust debate on this Motion that is set to increase the debt ceiling. I want to make several fundamental statements very clear to the House and to the country. First, the request to raise the debt ceiling to Kshs2.5 trillion was as a result of an increased requirement for external resources to fund major infrastructure projects in the country. They envisage external borrowing. This is very clear. These are figures. We are not talking hot air. We will help finance the implementation of most of the Medium Term Plan II Infrastructure Projects to the tune of Kshs5.762 trillion in the coming three years. These projects include, for all those who doubt, the Standard Gauge Railway. We know the history of the Standard Gauge Railway. Since 100 years ago, we are still using the same railway. Other projects include the LAPSSET Project; the generation of the 5,000 Megawatts of electricity; the Galana Irrigation Project; the ten kilometre on-going road project and the expansion and modernization of the Kenya Ports Authority.
Hon. Junet, the Director of Elections of the purported elections, is discussing the aborted Senate nominee from Siaya. Hon. Ken Obura is still also discussing the matter of the Senator of Homa Bay with hon. Junet, the new Director of Elections in the boardroom elections that took place over the weekend. Further feasibility studies on the project to be financed indicate favourable return on investment. Scenarios were given by the National Treasury to the Committee on Finance, Planning and Trade and they were convinced on the favourable return on investment on these projects. This was done before the Committee. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
Secondly, Kenya’s current debt to the Gross Domestic Product (GDP) ratio is very favourable. In addition, despite the setting of this external debt ceiling, the mandate of approving specific external borrowing rests with this House. This is what Members need to know. Even if we are raising the external debt ceiling, every time the National Treasury wants external borrowing, the mandate of approving external borrowing will still come to the Floor of this House in various forms. This is done in every financial year in every Budget. I am sure hon. Nyikal, my very good friend, will have the opportunity when these things are presented to the Budget and Appropriations Committee in every financial year. The Committee was therefore also convinced---
Order, Members! The Members seated next to the Member for Kisumu Town City, please, consult in low tones. I can see the sense of excitement. I can see many luminaries surrounding the Member.
Hon. Speaker, it is true because hon. Junet, who is a very staunch loyalist of the former Prime Minister, was left out but now he is the Director of Elections. Today, he is a very happy man. Hon. Ken Obura, I am sure is discussing the latest developments on the senatorial position of Homa Bay. The Committee was convinced and the House is convinced that the review of the external debt ceiling was essential to help the Government to achieve development objectives. If anybody today was in power, not only Jubilee, even if CORD was in power, and they wanted to build the Standard Gauge Railway and bring 5,000 Megawatts of power, they would still ask for this ceiling. Therefore, it is imperative on the part of the National Treasury to ensure that the total public debt is within acceptable financial sustainability ratios. The debt ratio should be consistent with the East African Community Monetary Union convergence criteria and above all, the new borrowing must remain above the Medium Term Fiscal framework. I beg to reply. I ask the House that as we go on recess, let us do this, so that the roads are built, the railway is done and all the other external borrowing is actualized through this approval of the external debt ceiling. Thank you.
Order, hon. Members! Hon. Member for Gichugu, just stand where you are. The hon. Member who is trotting in, this is the National Assembly of the Republic: You must look ahead.
Division! Division! The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
Hon. Members, those of you who are standing claiming a Division, do so distinctly so that those who are trotting in---
Hon. Members, you cannot keep on standing and walking. The Clerk is trying to count to see whether you have the requisite numbers. Those claiming for a division have the numbers. Ring the Division Bell for 10 minutes.
Order, hon. Members! Can you stop the Division Bell? Draw the Bar.
Nobody should get in or get out.
Order, hon. Members! If you could, resume your seats so that we can finish this. This should be a short exercise. Can I have those who have logged in, log out? For hon. (Dr.) Pukose, logging out is the same as what hon. (Eng.) Mahamud has called “coming out”. Hon. Ababu, log out. Hon. Members, you may all log in now for 60 seconds. As you log in, you are either voting “yes”,“no” or abstaining.
Not yet, hon. (Ms.) Odhiambo-Mabona. Log out please. You can now vote. Hon. Members, the machines are having a problem because some of you, specifically hon. (Ms.) Odhiambo-Mabona and hon
What were you coming here to do? All of you have logged out?
Hon. Members, can you now log in for 60 seconds. Any hon. Member without a card, come and record with the clerks. Hon. Mwadeghu, record with the clerks. Hon. Members, you may now vote for 60 seconds from now. Hon. Wanga, time for voting is over. Order, hon. Members! I am sure you are also thirsty to know the results.
Hon. Speaker, I beg to move the following Motion:- THAT, pursuant to Article 132 (1)(c)(iii) of the Constitution, this House notes the Report on progress made in fulfillment of the International Obligations of the Republic submitted by H. E. the President on Thursday, 27th March, 2014 laid on the Table of the House on Tuesday, 1st April, 2014.
The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
Order, Members! Those withdrawing, please, allow the rest to participate in the proceedings. You are merely walking on your two feet; those who have only two. It cannot cause all the commotion and noise. Proceed, Leader of Majority Party!
Hon. Speaker, if hon. Sumra wants to have more discussions, he can go to the Lounge; the tea place or to the Continental Office. The Standing Orders are very clear. I want to ask the new Director of Elections of the ODM to minimize the consultation he has with the party luminaries including hon. Ken Obura. Hon. Speaker, in February 2014, His Excellency the President submitted to Parliament a Report on progress made in fulfilling the international obligations of our Republic. The Report on the international obligations is anchored in Article 132 (1)(c)(iii) of the Kenya Constitution, 2010. It mandates the President to submit a report for debate to the National Assembly on the progress made as a country in fulfilling the international obligations of the Republic. Basically, international obligations arise from international treaties, which provide the framework for State parties to co-operate in tackling diverse issues and challenges at the international level. For example, issues to do with piracy, drug trafficking, terrorism and climate change are some of the global security and environmental issues that affect the international community as a whole. These are basically the treaties that the President, or his Government, through the Ministry of Foreign Affairs and the Office of the Attorney General, has ratified. It is the first time in the history of our country that this Report is being submitted on the accomplishments made on how we fulfilled our international obligations as a country. This is provided for in Article 132(1)(c)(iii) of the Constitution. It is important for the citizens of this country and Parliament, more so the National Assembly, which under Article 95 represents the people, to appreciate and scrutinize the purpose of international treaties that our country is engaged to and to understand that we are part and parcel of the international community. As a member of the international community, Kenya is a State party to many international treaties and it is firmly committed to both regional and international co- operations in its effort to prevent conflict and restore peace in the Horn of Africa. Kenya is also State party in promoting and protecting international human rights. As evidence of our commitment, Kenya has ratified over 28 multilateral treaties. It has also ratified over 108 international conventions, 19 protocols, over six charters and is a party to a number of international strategies and plans of action. This Report that the President tabled is classified into different thematic areas, that is, human rights and the environment. It also deals with the following aspect in each of the treaties that I have read, from multilateral treaties, to conventions, protocols, charters and a number of action plans. These include the national interests of our country, obligations created to the Government, the reporting mechanisms, the challenges faced in the implementation of these treaties as a country and the recommendations.
Hon. Speaker, if you look at the structure of the Report that the President presented, there is an introduction which focuses on, among others, the historical background of Kenya’s treaty practice and policy; how we sign treaties, our policy in terms of ratification, the legal framework of treaty making as a country and ratification under the Treaty Making and Ratification Act No. 45 of 2012. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
This is done within the context of the impending establishment of the Office of the Registrar of Treaties under the Ministry of Foreign Affairs and International Trade, which we anticipate to establish soon within the law. The narrative of this Report explains the content of each of the treaties. It highlights the dates Kenya signed, ratified and accepted the respective treaties. It highlights the objective, the relevance, advantages and the disadvantages of each one of the various treaties that we have signed.
As I said earlier, the treaties are grouped into various thematic areas. We have the constitutive documents such as the United Nations (UN) Charter; the constitutive Act of the African Union and the East African Community Charter; the Diplomatic Privileges and Immunities; Defence and Security; the Human Rights, Trade and Investment treaties; Intellectual Property Rights treaties; the Education, Science and Technology treaties; the Health, Transport, Law of the Sea and the Fisheries treaties; the Environment treaties and many others including treaties we have signed on Corruption, Labour, Social Security, Housing and Urban Development.
The annex of the report tabled by the President contains a matrix of treaties Kenya is party to. It is divided into the following sub-headings; multilateral treaties, regional and sub-regional categories. In totality, the matrix summarizes the information contained in that narrative.
Hon. Speaker, with respect to treaties that require submissions of reports, Kenya has constantly complied with the requirements. So, we have complied with each and every treaty. Among the ones we have signed are the United Nations Convention against Corruption, the International Convention on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights, among many others.
Institutional gaps are the challenges. This is what the President raised in his Report on the country’s international obligation. What are the gaps? What are the missing links? What are the challenges? Hon. Temporary Deputy Speaker, this Report has been prepared against a backdrop of not having the Office of the Registrar of Treaties as provided in the law. That is in the process of being done.
Secondly, some line Ministries also did not provide some crucial details. I am sure those Ministries are watching; I am not the one who said that, but the President. The missing details include; the dates of the signing and ratification of the treaties, the objectives and the relevance, the advantages and disadvantages and the implications. The greatest need is that of strengthening the coordination with regard to treaty implementation and reporting, to ensure consistency in what Ministries speak about as far as our international obligation is concerned.
In order for us as a country to ensure successful fulfillment of Kenya’s international obligation, the Report recommends the establishing of a multi-agency standing committee. What does the multi-agency standing committee do? First, is to The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
monitor and oversee the implementation of treaties and ultimate fulfillment of their reporting obligations. They examine and consider all reports submitted by the Kenya Government and further make suggestions and recommendations on that.
Secondly, the mandate of the multi-agency standing committee is to compile the report on treaty obligations, receive and respond to any concerns arising out of treaty obligations and commitments. Thirdly, is to review all conventions or treaties and agreements to ensure that they are necessary, beneficial and have the interest of the people of Kenya. A recommendation will be made to the Attorney General where the fulfillment of that obligation appears prejudicial to the interest of our people.
Under the Treaty Making and Ratification Act, 2012 that this House has passed, approval for Kenya to ratify any international treaty lies with the Cabinet and Parliament. In the Statute Law (Miscellaneous Amendments) Bill that this House passed two months ago, the Ministry of Foreign Affairs and International Trade has been given the sole mandate of passing those treaties and ratifications to the National Assembly. There is no other Ministry that can bring it to Parliament; it is the role of the Ministry of Foreign Affairs and International Trade.
The procedure is a departure from the earlier practice in the successive governments where approval was only given by the Executive. The new Constitution recognises the input of the people of Kenya and it has given that power to the National Assembly, which within Article 95 represents the people.
Unlike before where treaties and ratifications were done and given a nod exclusively by the Executive, this time round Parliament has a role to play. This is important and will ensure that Parliament and the people of Kenya are aware of all international commitments being entered into by the Executive. In conclusion, there are many such agreements which are in limbo. One is between the Ministry in charge of Defence in Kenya Government and the British Government; on the British troops training in Samburu and other parts of the country. Within that memorandum of understanding, a specific article has been the bone of contention. That Article is on criminal responsibility. This is very important to the people of Kenya and the representatives of the people of Kenya; the National Assembly. Never again will the Executive sign anything that will be prejudicial to the interest of our people. The second treaty which is hanging somewhere is the San Marco Space Agency Treaty which Parliament has spoken about. This House has the final say in as far as ratification of international treaties is concerned. The new Constitution has provided us with that opportunity to ensure that the commitments we make as a country, both at the Executive and in Parliament, are entered into with full view of the interests of our people. Hon. Temporary Deputy Speaker, you know what we are going through, the famous International Criminal Court (ICC), where in 1996, in Rome a group of Non- Governmental Organisations (NGOs) came up with the famous Rome Statute. The Senator of Bungoma County, hon. Wako, my good friend Aaron Ringera, who by then was working for the State Law Office and Peter Mwangi, who was a very junior officer at our Embassy at the UN in New York, went to Rome and ratified on behalf of the people The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
of Kenya. Twenty years down the line, the Rome Statute is haunting not only Kenya but the African Continent and many other countries. If that opportunity was given to the people’s representative, maybe today the Rome Statute and the ICC would not have been there. If you look at the reasons given by great nations like the US, India, China, Russia and Pakistan for not signing the Rome Statute, the sole reason was that they were protecting the interests of their individual citizens. Hon. Temporary Deputy Speaker, a treaty could have been signed in the previous Government before 2010 and I can tell you over 20 years later it might take some of us to some jurisdictions that we do not believe in. The most important thing is that each and every international treaty that our country signs, Parliament has the last word. Parliament has the last pen, more so, the National Assembly that represents the people of Kenya within the meaning of Article 95 of the Constitution. We will stand and say what the interest of the people of Kenya is. That is some of the outstanding provisions of the Constitution of Kenya 2010 that some of us fought for. I hope those who want to amend the Constitution through popular vote or through the Floor of this House will not touch Article 132(1) (c) (iii). With those many remarks I want to ask my colleague, the Chair of the Justice and Legal affairs Committee to second.
Thank you. Hon. Chepkong’a.
Thank you, hon. Temporary Deputy Speaker. It is good to see you back in the House. We missed you for sometime including in my Committee and we still want to express our heartfelt condolences to your family. I rise to support this Motion. This Motion is very important; this arises out of the promulgation of the new Constitution that was passed in 2010. Previously it was not necessary for the Executive, as the Leader of Majority Party has clearly stated, to report to the National Assembly on matters attached to international development, particularly on international treaty making. As a consequence of the passage of the new Constitution, this House did pass a law on treaty making and ratification which obligates the Executive to bring every treaty they have signed and ratified into this House for purposes of enacting a law in support of that treaty. This country in the past has always adopted a dualist approach in terms of domestication of international law. Unfortunately, looking at the Constitution, Article 2(5) states that the general rules of international law shall form part of the law of Kenya. In sub-article (6) it states that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution. It appears that the Constitution has adopted a modest approach in terms of domestication of international law, so that what is brought to this House has automatically become law by the mere fact that the Executive has signed and ratified that law. So, what we are sitting to do is purely a formality; to inform Kenyans of the existence of international obligations that Kenya has participated in. It is important that the Executive, particularly the President who has brought this; and this being the first report under the new constitutional dispensation, informs the people’s representative of what obligation Kenya has entered into with other states. As you know, the only way of regulating conduct of states is through treaties and conventions. For purposes of ensuring that we have a good international order, states sign The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
treaties and conventions. This is one way of regulating their conduct. Kenya, being one of the countries within the international arena, continuously engages in treaty making for purposes of regulating its conduct with other states for the benefit of the Kenyan citizens. Globalisation is a reality and continues to intensify. We see within the international framework that the international political order requires interdependence in areas such as technological innovations, international trade, in fighting terrorism and drug cartels. Therefore international order requires that we engage in this sort of relationship. It is important for the Executive to bring those matters that they have entered into with other states so that Kenyans are well advised. For the international system to function, countries such as ours must continue to face the various challenges that other states are confronting. For instance, you saw recently Kenya arrested about 40 Chinese nationals who were participating in international cyber crime. It is good that the Chinese Government is seeking to be part of this process of ensuring that we eliminate international cyber terrorism.
If you look at the gadgets that have been installed in the houses which the Chinese nationals had leased in Runda, they were a danger to this country. They were intended to siphon money from our plastic cards. So, if that is not arrested, they are going to cause tremendous losses to our country and other countries. We appear to have given a safe haven to criminals without our knowledge. Hon. Temporary Deputy Speaker, so, the Executive will also bring some of these treaties that they have signed, including those dealing with poaching. As you know, poaching has become a catastrophe for this country. We are losing our wildlife at a very high rate. It is important that we enter into agreements to protect our environment, including our wildlife. As you know, international terrorism has become a very serious issue in this country. So, as we collaborate with other countries, it is important that Kenya domesticates those treaties that touch on international terrorism. We know that there was the anti-terrorism Bill that was rejected in the last Parliament. We hope that, that will be brought to the House, so that we can domesticate the International Terrorism Convention in this country. Just to mention, it is important that we participate in international treaty making. As you know, we are faced with an international law suit at the moment at the International Court of Justice (ICJ). Somalia has taken Kenya to court pursuant to the International Court of Justice Treaty which we have signed as members. Somalia claims that we have sought to infiltrate their country, which is a mistaken belief. The successful governments in Somalia have always signed treaties with Kenya, including an agreement to delineate the Kenyan boundaries. So, we have clear treaties and I hope that the Attorney-General, in defending this suit at the ICJ, will ensure that those treaties which Kenya has signed or were signed by Somalia previously, whether it was during the Government of Siad Barre or during other successful governments, are brought before this court. In conclusion, I want to support this Report that has been brought by the Executive. It is extremely essential that they continue to bring such reports to the House. I second.
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Member for Balambala, you will be first on the queue.
Thank you, hon. Temporary Deputy Speaker. This is a very important Report. As required by the Constitution, this Report should be tabled before this House by His Excellency the President, so that this House can debate it. The fact that, that is happening now is very important. It is important for Kenya to respect the existing international conventions. Article 2 of our Constitution provides that these conventions as they are signed and approved by Kenya, form part of the laws of our land. For that reason, a regular update on the same to understand the status of each and every one of the conventions and treaties that Kenya has signed is an important obligation which, as leaders, we must support to ensure that these treaties are respected. It is a very voluminous document and I may not be able to address all the issues in here, in the short period of time that I have to debate this issue. However, one of the key issues is the elimination of racial discrimination, which this Report has detailed very much. The obligations herein, for us as a country, to eliminate racial discrimination as required by the protocol that we have signed is one that we need to do a little bit more as a country. Much as we are a developed economy within the context of African Continent, we continue to see issues of racial discrimination being targeted to some parts of the country. I want to be very specific here that in the northern Kenya region, indeed, the issue of discrimination is real. This is evident from even the processes applied of acquiring citizenship. As a person from the northern Kenya region, I am subjected to rules and regulations different from those which are subjected to the rest of Kenyans. For example, the simple process of getting a national identity card even when you are born in Kenya, as long as you are from the northern region, you have to go through a very elaborate process which not any other Kenyan is expected to go through. That is one of the areas of discrimination which this international agreement and treaty says must be eliminated. Kenya, being a member of the same, must live within the values of the treaties that we have signed. Our Constitution, also envisages under the Bill of Rights quite a lot. Indeed, what I have just explained is a discrimination which is not allowed under the international laws and under our Constitution as well. The problem of gender representation continues to be an obstacle to us as Kenyans. Indeed, gender disparity in various areas, be it employment or leadership, is evident. It is a nightmare in terms of implementing the constitutional requirement. By August, next year, this House is required to comply with the one-third gender rule. Unfortunately, it does not appear that much progress has been made in terms of ensuring that, that has happened. So, we are likely to hit some difficulties not too long from now. Less than a year from now, we may not have achieved that. This is a challenge that Kenya must live up to. We have signed this treaty to say that we will ensure one-third gender representation and we must live it. Hon. Temporary Deputy Speaker, the implementation or lack of implementation of the Truth, Justice and Reconciliation Commission (TJRC) Report is another very big failure of the Government. That Report has recommended a number of issues with regard to discrimination and violations of human rights that have happened in this country. That The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
Report, unfortunately, continues to gather dust more than two years since the Commission completed its work and submitted the Report to the Government. Under-resourcing of the National Cohesion and Integration Commission (NCIC) is also another problem. That is the entity that is required to pull Kenyans together. Yesterday, we all watched news on the report that the Commission has produced on how far apart many Kenyans are. Unfortunately, that is a situation that also requires to be addressed. We need to finance the NCIC, so that it can carry out a national exercise to pull Kenyans together. On the issue of torture and other cruel degrading treatments, even as we fight insecurity and arrest people we suspect of having committed crimes, we must at all times be guided by these international conventions which Kenya has signed and which Kenya can be held responsible for. There exist international courts that, indeed, can take Kenya as a State to task. The Government should, indeed, investigate the report that was done by Al
International last Sunday on extra judicial killings. This is unacceptable. I want to hope, pray and believe that this is not true but, if indeed, it is true that, that kind of extra judicial killing is taking place, it will be very unfortunate that our own State, which has signed these international conventions and which through its Constitution does not allow extra judicial killings, is allowing this to happen. I call on the Government to investigate every one of those cases on those killings that have been reported by this international media.
This convention also talks of refugees’ rights and the convention that covers them such as the Geneva Convention. Kenya has hosted refugees now for more than 20 years, but coming from the county of Kenya that has hosted the refugees for all this time, sometimes it is very saddening to see the inhuman manner in which refugees are treated in Kenya. These guys have been stateless for 20 years. They are not able to travel beyond their camps and whenever they attempt to do so, even for genuine reasons such as medical care, you find them in jails.
Hon. Temporary Deputy Speaker, if an audit is done of the jails between here and Garissa, you will find refugees bearing the largest number in those jails. Start from Mwingi Town, Garissa, Coastal region and Hola jails and you will find that it is refugees who are in those cells; this is inhuman. This is not allowed under the international conventions which Kenya is a member of and has signed. Those people who have been kept for that long must be honourably returned to their countries. It is a suggestion which I have put before and I think as a country we have done our bit of international obligation by hosting them this long, especially with the problems of insecurity that we have now. I suggest that Kenya takes the bold step to call on the international community to assist it. They should give a timeframe within which they should return these guys so that they do not continue to be stateless. They are human beings like us and they need dignity. They want to have access and rights to be able to access resources, education and healthcare. We must end the inhuman treatment that has been meted on them.
Hon. Temporary Deputy Speaker, as I end, the treaties here are many but the last one I want to address is the one on the proliferation of small arms. Kenya is a victim of the proliferation of small arms. We have seen a number of problems in our country, be it in Kapedo, the killings in northern Kenya and all these are as a result of small arms The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
coming in through our porous borders. We need to review our strategy specifically on countries that border us, like Somalia where our military is right now. I call on Kenya Government again to pull out our forces from Somalia and bring them back home. Let them secure our borders so that we stop the proliferation of these small arms.
With those many remarks, I beg to end my contribution. I thank you.
Thank you. Member for Budalangi and congratulations for leading your party so well.
Thank you, hon. Temporary Deputy Speaker. One of the most exciting things of serving in this Eleventh Parliament is seeing our new constitutional order rolling into action. Right now, it is really gratifying to see Article 132(1)(c)(iii) of this Constitution coming into force, which requires the President to submit a report for debate to the National Assembly on the progress made in fulfilling the international obligations of the Republic.
Hon. Temporary Deputy Speaker, before I go into the details of this Report, and aware that among the treaties, conventions and international obligations that have been extensively reported on here is the Rome Statute of the International Criminal Court (ICC), which is reported specifically on page 23 of this Report, allow me this opportunity to use this platform to congratulate the President for having the ICC burden lifted off his shoulders. Indeed, it is undoubted that this has been a big fat monkey on the back of the President and I congratulate him that, that is now behind him.
Hon. Temporary Deputy Speaker, in the same light, I also wish the Deputy President (DP) well, that may his case also proceed well so that he can get fairness out of this process. However, having said that, the Government or the President reports in this Report that the Government has taken measures to fulfill our obligations under the Rome Statute. Specifically, the President reports at paragraph 4.55 on page 23 and I quote: “The Kenyan Government has taken measures to address the welfare of Post- Eelection Violence victims and Internally Displaced Persons (IDPs).”
The Report proceeds at paragraph 4.56 to say: “An effective and robust witness protection programme has been established and is available to all.”
Hon. Temporary Deputy Speaker, it is important that when we report progress to this House and, therefore, to the whole world, we are factual and truthful. Even though the Government has made some efforts in terms of addressing the IDPs challenge, we know that many IDPs in many parts of the country especially the so called Non- Integrated IDPs continue to face considerable challenges because the Government has done absolutely nothing in support of these people. I am talking of IDPs who were unsettled or displaced and whose original homes were principally in the Western circuit of the country. You talk about persons who were displaced and had to return to their ancestral homes in Nyanza, Western Kenya and the Coastal region. These persons have not received any support whatsoever from the Government and it would be important for that record to be set straight when the Government reports that they have taken measures to address the welfare of post-election violence victims and IDPs.
Hon. Temporary Deputy Speaker, it is also not true to say that we have addressed issues concerning the victims of these most unfortunate programmes that we witness in The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
this country. It is a known fact and it is not a secret that while we are pleased for the President, and I have just delivered my personal congratulatory message to His Excellency the President and I have just wished well the DP, and I am sincere that I wish him well in similar measure, but even as we wish the two well, and I also wish my brother arap Sang in similar measure, we must also turn our attention to the victims of these programmes. Hundreds and thousands of our people lost their lives. Hundreds of thousands were displaced and while we pray for fairness for those that have appeared before the ICC, may our conscience be disturbed as a nation to think deep? May we be disturbed to an extent where we must find a way to deliver justice to the victims? Whether that justice will come in the form of, perhaps, the House sitting down to consider a local process through which the victims can get justice; that is a matter we have to think about. This is because even as we report that we have taken measures to address their welfare, I am confident, and I speak without any fear of contradiction, that His Excellency the President wherever he is, knows very well that the issue of justice to the victims will remain a scar on the conscience of this nation and it is one that we must collectively, as leaders, think about how to resolve. Therefore, congratulations are in order to His Excellency the President, but may we also now grapple with the challenge of how to deliver justice to the victims. Hon. Temporary Deputy Speaker, as I have already noted, this Report also talks about witness protection. Yes, this House has made efforts to put in place legislation designed to protect witnesses and the Government has put in place measures intended to protect witnesses. But it is true that witnesses in this particular matter have remained vulnerable and it is a challenge. Indeed, it is one of those challenges emerging out of this process on how as a country we can move forward to have a foolproof; an unimpeachable witness protection arrangement that can give confidence to any citizen of this land who wishes or desires to be a witness in matter of this nature; that they can come forward confident that they will be protected. Therefore, while we appreciate everything that the Government has reported here about the Rome Statute, those are challenges we must admit and must go on record. It has also become very apparent that there is a very strong drive on the Government side for the country to withdraw from the Rome Statute. There have been efforts to interfere with fulfillment of our obligations under this Statute. I hope, now that His Excellency the President has the International Criminal Court (ICC) monkey off his back, the drive; determination to pull Kenya out of the Rome Statute will calm down. This is because there are good reasons why Kenya ratified the Rome Statute and why we joined other nations of the world to support the Statute. Hon. Temporary Deputy Speaker, let me conclude by making reference to the International Covenant on Civil and Political Rights; the ICCPR. That is reported on Page 18 of the Report and specifically Paragraph 4.2. The ICCPR is a critical covenant that guarantees political and civil rights of all citizens. But the manner in which the Jubilee Government has treated the media and the civil society has flown right in the face of guarantees under the ICCPR.
Well, your time is over but as I realize, you are just beginning an issue, which in your submission, seems to be The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
important. I will give you another two to three minutes to wind up. Therefore, give me your intervention button so that I will recognize you.
Hon. Temporary Deputy Speaker, the ICCPR is the foundation of our Bill or Rights. Indeed, if you look at the ICCPR in its fullness, in terms of its letter and spirit, you will see the inspiration behind the Bill of Rights. Therefore, when we see the Government behaving in a manner that amounts to rolling back the gains that Kenyans have fought, sweat, died or lost ribs for; rights of civil society to organize, mobilize, fundraise and undertake their programmes in the best interest of this country; when legislation being brought to this House whose ultimate implication would amount to constricting the space allowed for the media; both by the ICCPR and the Constitution, we wonder loudly whether, indeed, the Government is committed to implementing fully the provisions of the International Covenant on Civil and Political Rights. Let me conclude by cautioning my colleagues from the Jubilee side; who I have utmost respect for. We should be careful when we purport to support measures that may ultimately come back to haunt us in the fullness of time. To illustrate that, allow me to read the following words, a statement written by Martin Niemoller, 1946, at the conclusion of the holocaust in German. Niemoller wrote and said. I quote him:- “First they came for the Socialists, and I did not speak – Because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out- Because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out – Because I was not a Jew. Then they came for me- and there was no one left to speak for me.” We may sit back here and say “Because I am on the Government side, I am not affected. Whether the media is run out of time, I am not affected. Whether the civil society is hounded out of its operations---” But in the fullness of time, you will come to appreciate the dangers of rolling back any of the provisions of the Bill of Rights and all protections guaranteed by the International Covenant on Civil and Political Rights. Therefore, I do not support this Report from His Excellency the President, but I do express serious reservations in terms of how fully the Government is committed to fulfilling its obligations under this Covenant. Thank you, hon. Temporary Deputy Speaker.
Thank you very much, hon. Temporary Deputy Speaker. I also rise to note this Report from His Excellency the President. It is unfortunate that we are debating this Report very many months after it was laid on the Floor of the House. Be that as it may, I want to start by saying that, any Government whatsoever pursues specific foreign policies in the best interest of its people or should do so. We are lucky that as we speak, we have a very robust Constitution that makes it mandatory for any international law or convention which the Government has certified, to be part of the laws of the country. That is one of the most beautiful things that I can say about our Constitution. Whenever you see a Government dragging its feet in terms of The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
implementing international obligations, then you wonder if the Government is committed to implementing the Constitution, as it should. A lot has been said about the Rome Statute. It is important to note that Kenya voluntarily became a signatory to the Rome Statute. In fact, it went further and domesticated it by enacting the necessary legislation. But what we have been taken through in the last couple of years or so has been a challenge. This is because you see the Government making desperate attempts to go round the Rome Statute which it signed voluntarily. Indeed, there have been attempts for the country to withdraw from the Rome Statute; it is only that the Government has not had the courage to do so.
It is a fact that the Rome Statute is one of the safeguards of civil liberties and human rights. You will be living in a situation where many a times we have rogue leaders or rogue people in leadership positions. This has been attested to in history not very far from us in the neighbouring countries.
Therefore, hon. Temporary Deputy Speaker, the fact that Kenya voluntarily ratified the Rome Statute is a testimony to the fact that we recognized the need for the country to safeguard itself from atrocities that can be visited on it and its citizens by rogue people, including leaders. So, I am happy that despite the noise the Jubilee Government has been unable to withdraw from the Rome Statute. I am very happy but then I am also sure that now that the President, and I really feel happy for him, has managed to come out of the International Criminal Court safely in terms of his charges being dropped, you will see that the Government will not have the same momentum to disengage from the Rome Statute. I hope this opportunity that has now been given will give us space to fully implement these international obligations in so far as the country is concerned.
As we celebrate the withdrawal of the charges against the President which as Kenyans we are all happy about because all the time we have been insisting that the due process must happen and it has happened, we must not forget the plight of the victims of the post-election violence of 2007/2008. There have been attempts in the past by the governments to compensate those who were displaced. That compensation, unfortunately, has not been done fairly or equitably.
There is a category of IDPs who have been left out completely in that compensation scheme. My hope and prayer is that now that the President is free, he engages his mind fully in this matter of the IDPs and puts in place a mechanism so that those very unfortunate Kenyans have full compensation. It is something that should never be imagined, that a Kenyan who has lived in the country from birth in a place where he owns property can wake up one morning and find himself uprooted without notice. Then it is taken as something normal. The kind of trauma those Kenyans have undergone is immeasurable. Therefore, this is an opportunity for the Government to show commitment to the compensation of those very unfortunate Kenyans.
As we talk about our international obligations, one of the most important tasks of any government and, indeed our Government is to protect its territorial integrity. We know for sure that Kenya’s territorial integrity has been violated with impunity by our neighbouring country; Uganda. Kenya’s territorial integrity has been violated in a manner that cannot be imagined. As we speak, Kenyans living on the island of Migingo are living as prisoners on their own land. Kenyans living on Migingo are living as prisoners and The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
they are going through trauma and atrocities visited on them by foreigners. Indeed, some of those foreigners are security agents of Uganda and the Government wants us to believe that it is normal for a foreign force to occupy part of our land and subject our own citizens to suffering and it does nothing. So, the Government owes us an explanation as to whether Migingo belongs to Kenya or to somebody else. That is an explanation which this Government owes Kenyans. It is not a favour; it is a right that Kenyans get to know for sure from the Government of his Excellency Uhuru Kenyatta, whether Migingo is part of Kenyan territory or not so that this matter is put to rest once and for all. Kenyans cannot continue to be subjected to suffering and punishment by agents of foreign governments.
As I conclude, I want to say that whenever we sign international treaties, we do so willingly and we do so in the interest of our people. Once we have done so, we must show commitment to implementing them domestically. That is the only legacy this Government can leave and it is important that as we note this report, we stress to the Government that, that is an obligation they have to live up to.
Hon. Members, I draw your attention to business appearing as No.12.
Order! When you consider the business appearing as No.12, you see that we are still grappling with financial years 2010/2011, 2011/2012 and 2012/2013. This is a business which in my estimation is something that the House needs to consider as a matter of urgency. The business that we are now handling is to note. In fact, as one of you has ably said, the Constitution at Article 2(6) has made some of these treaties part of our laws. It is self implementing and so the Report that you have really is to note. But that is not to say that this Report is any less important than the business appearing in Order No.12. So that we can save some time for what is really the business of this House, I call on you to take as little time as you can just highlighting those issues that you have reservations on or the ones that you have to raise compliments on. So I was proposing, without putting it to vote, that let us listen to a few more discussions, perhaps one or two from my right hand side because there have been a lot of discussions from my left hand side and then we step on to the business appearing as No.12. That way, I think we shall have saved a lot of legislative time. Hon. M’uthari, although you have all the ten minutes, you do not have to spend it all. You just need to highlight some of those issues.
Hon. Temporary Deputy Speaker, thank you. I rise to note this Report by the President. It is important that this new Constitution, despite some challenges here and there, has some benefits like the opportunity to know what Kenya signed, what it means and the obligations of the country. It is also important that as we note this Report, we understand that when our representatives in various areas, whether ambassadors or the ones entrusted with those responsibilities, append their signatures to those treaties, they look at the greater good of the country. This is because as it is highlighted in the Constitution, once the treaties have been signed, they become part of our laws, even if they come to the National Assembly. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
So for that reason, it is important that as our people sign this, they are alive to the implications and what it means to the lives of Kenyans. When I look at this Report, there are certain treaties like the one on page 18; the International Covenant on Economic, Social and Cultural Rights. When I look at it and see countries that have banned the trade and use of miraa in their own countries, for me it is against some of those treaties. This is because people in my community, Igembe and Meru County, rely on their miraa and it is both social, cultural and an economic commodity.
So, when they ban the use of miraa in their countries like the United Kingdom (UK), the United States of America (USA) and many other European countries, that will go against this particular international covenant. This is because people in my community, who are in that place--- Even when they have to engage in marriages, miraa is part of that process. Therefore, by banning the use of miraa in those countries they end up also working against our culture, economic and social rights. We have our representatives in these countries, who need to highlight the fact that by denying this--- Nobody is forced to take miraa . It is somebody’s right to do so. People have to be protected. Then we have issues like the one that has been discussed by my colleagues regarding the Rome Statute. Here, again, we congratulate the President for being able to come out of this challenge; we wish the Deputy President and our brother Sang well; they should come out of this and then Kenyans can solve their own problems. We can continue going through a healing process that we have been going through as a nation. I believe that the healing process is doing justice and even coming up with positive issues regarding Kenyans. It is only Kenyans who can heal themselves and bring peace within our country. Therefore, I believe that, as a country, we have to look at the bigger picture. As we sign the treaties, we have to look at the broader interests of the country and the people of the Republic of Kenya, so that at the end of the day whatever is done is done in the interests of Kenyans. With those few remarks, I note the speech. Thank you.
All right. Let us have the hon. Member for Nambale.
Thank you. I noted the earlier comment you made and I will be very brief, indeed. I rise also to highlight to my colleagues particularly the fact that I think this is a very good practice. This is supposed to come out on a yearly basis. I hope that we will be taking a keen look at this every year. I just want to note that as a nation that accedes to treaties and other codes of international stature, we show our acceptance of the international community. We show our level of maturity as a nation. It is a positive thing for a country to be among its own peers on the world stage. Kenya has done a good job in that regard. The reason there are obligations is because we intend to restrain behaviour. Observance of obligations could be painful but equally beneficial. The Rome Statute particularly has come under severe scrutiny. I believe strongly that its existence helped us have peaceful elections in the year 2013. It has had some positive effects. It does not matter which side of the isle one sits. It is a very positive thing that I think we should carefully look at, particularly if good sense prevails. Our The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
Deputy President equally ought to be relieved of the obligations that he is being placed under by the court. So, we can sit back and see if this is, in fact, beneficial. As my colleagues have said, we do not need even to rush and exit the treaty. Secondly, there is no need of signing international treaties and obligations if you cannot observe the same domestically. I want to associate myself with the sentiments of my colleague from Budalang’i, hon. Ababu Namwamba, on the treatment of Internally Displaced Persons (IDPs) from the former Western Province and, I understand, parts of Nyanza. It is as if nothing happened. These people lost property. They lost all that they had and they have not been compensated in any way. I think that fair judgment and the same treatment of persons in this respect is very important. We are sending our people in large numbers to the Middle East where racial discrimination and slavery are still rampant. I feel that the Kenya Government should be more active in restraining people from going to these areas where laws are broken without any regard to human values. We need to protect our citizens because they do help this economy when they work out there. They should not help this economy at the expense of their lives. We have lost a few people out there. We have also gotten people severely beaten and mistreated in ways that a civilized person would cringe if they were ever to be subjected to that kind of treatment. Some good aspects are like the protection of patents; you know that the issue of fake imports is a major threat to our economy. I hope that protection of patents, as well as what relates to trade pacts that provide the integrity of the products of our nation, shall be aggressively pursued. Finally, I would like to quickly comment on the last two, which are related. These are the Convention on Transnational Organized Crime as well as the one on narcotics and drugs. In this country, particularly at the Coast--- I think it is true that very many parts of the country are under severe attack from drug peddlers and other big dealers, who are powerful. You hear frequently that just off the Coast heroine worth about Kshs6 billion has been discovered and then things go silent. I would hope that we, as a nation, would jealously guard our participation in these conventions. We need to ensure that we domesticate as many of them as possible in our own laws. In the interest of time, I just stood up to note. Thank you, hon. Temporary Deputy Speaker.
Let us have the hon. Member for Mbita.
Thank you, hon. Temporary Deputy Speaker for giving me this opportunity. I want to say that I am happy that this Report actually comes on the eve of the celebrations of the International Human Rights Day tomorrow; it also comes when we are celebrating the 16 days of activism on gender based violence. It is timely. Unlike other Members, I would want to say that I have very serious reservations on this Report. Having come from a human rights background, and also having served in the Government of Kenya advisory body on obligations of the country on treaties, I want to say the Report is very shoddily done. What this Report seeks to do is to give effect to Article 132(1)(c) (iii) of the Constitution, by which the President is supposed to tell us what the country is doing to meet its international treaty obligations. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
What this Report has done is basically to tell us what those treaties are, which we already know, and if we do not know then we can Google and know them. The other thing that it has done is to tell us what laws have been enacted without telling us what measures have been put in place. If you want to see how confused this Report is, look at page 4. The Report refers to the matter of Zipporah Wambui Mathara (2010) that says the treaties are self-executing. In the next paragraph it takes a totally different approach. It even shows you that the people who were doing this Report had no clue of what they should have done. They were completely clueless of what they were talking about. Having noted that, I would like to say that I am very disappointed in terms of the context of what Kenya has done in meeting its international obligations. I want to lend my voice to some of the issues hon. Ababu has mentioned. I was telling some of my colleagues from Jubilee that it looks like the only statute that the Jubilee side knows about is the Rome Statute. There are many more statutes other than the Rome Statute. It is unfortunate that you actually look at the way we have politicised the Rome Statute; we completely miss the mark with respect to the reason for which the Rome Statute was made. It was not meant to target African leaders. I, therefore, want to congratulate the International Criminal Court (ICC) for being just and giving a fair decision when they deem that there is no evidence. I want to indicate that I proactively brought a Bill to this Parliament which passed it into law, namely, the Victim Protection Act. I personally have no confidence that there will be any justice for victims of the post election violence (PEV). For this country to move forward, we need to remember that there are people who have lost their limbs. As one of the members of the Select Committee on Internally Displaced Persons (IDPs) when I visited western Kenya, that also hon. Ababu has made reference to, I saw many Members of Parliament in tears. We saw a woman who came with the head of her husband. We saw people without legs. One of the people was reported afterwards to have died. If you see the way we were treating those IDPs, we were saying they had been integrated into communities, and they were not being paid fairly. I said it then in Parliament and I will say it now; we discovered that people were being paid money according to which region of this country they came from. If we want to move forward, as a country, we must stop that level of discrimination. I was hoping that those are the things we should be speaking to, and saying IDPS had been settled. I passed by some of them recently and they were an embarrassment to this country.
There are people still staying in camps as IDPS at this time, several years after post-election violence. There are many people who have not been compensated. I brought the law on victim protection before this House and it was passed. It gives the Government authority to at least give some compensation to victims of post-election violence. I am hoping that in the next Report, the Government will tell us what they will actually be doing. If you look at page 14 of the Report, it talks about the UN Convention Against Transnational Organized Crime, especially the Protocol on Human Trafficking. I was hoping that the Government would be telling us that they have taken very stringent measures, similar to what I have seen in the Philippines. In the Philippines, they have stopped any employment in the UAE and other countries, where they have seen their own The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
people being mistreated. In Kenya almost every week, we see a lady from Nyeri, Kisumu and other parts of this country who has been killed and her body thrown out. Yet we have a law which I sponsored on human trafficking. We also have information on clear measures the Government is taking to protect such women. When you talk about the UN Convention on Elimination of all forms of Discrimination Against Women, I was hoping the Government would tell us what measures they have put in place to effect the one-third affirmative action principle. As we speak now, the numbers have not reached that level. If you talk about the Convention on Elimination of all forms of Discrimination Against Women (CEDOW); if you talk about treaties being self-executing, then this Parliament has not achieved even the 30 per cent. This Parliament should have 50 per cent women, if you are talking about CEDOW as part of the laws of this country. CEDOW talks of equality and not equity. I would also want to talk about the Universal Declaration on Human Rights, the African Charter on Human and People Rights and the UN Convention on Human Rights, which hon. Ababu has spoken to. If you talk about insecurity and human rights in this country as standards that are going down, and the way the Government is treating civil society then we have cause to worry. I would have hoped to see that, rather than listing for us the Bills and laws that we have passed as a country, I would have hoped that the Government would have indicated to us clearly what measures have been put in place to progress and not to regress the ratio. My worry is that, as a country, we are regressing on human rights standards. Extra judicial killings are being reported all over the place. Yesterday, Al Jazeera TV reported cases of extra judicial killings. We would want the Government to investigate what Al Jazeera said. We do not need to rely on Jicho Pevu and Al Jazeera on issues of human rights abuses. Under our laws, we have provided that the President needs to tell us very clearly the measures that have been put in place to protect our human rights. I can tell you for a fact that I am not seeing that. Hon. Temporary Deputy Speaker, there is an hon. Member who has spoken on the issue of the Arms Treaty. I can only see references to what we are doing at the African level, not at international level. Kenya is severely affected by proliferation of small arms. I know the ten minutes you are saying is a lot is not. I am looking at the issue of the World Trade Organisation (WTO) and its imbalance even in negotiating world trade agreements, especially for our farmers. What I am seeing here, even in relation to that, is that we are the ones who are supposed to note the President’s Report. Instead, the President looks like he is the one noting what the loss is and not what is happening in the country. Because of time, I cannot look wholly at this issue, but I can tell you I have very serious reservations. Thank you, hon. Temporary Deputy Speaker.
All right. Hon. Member for Ainamoi, are you on intervention? What is it?
On a point of order, hon. Temporary Deputy Speaker. Judging from the mood of the House and the tone of the Motion, may I request that you call upon the Mover to reply? I beg the House to support me. Looking at the Motion, and the The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
impact it will have on our country, especially on the counties, I suggest that we call upon the Mover to reply, so that we go to the next Order.
Hon. Member for Ainamoi, let me entertain your Motion after I have listened to hon. Member for Fafi, who seems not to have remembered to carry his card. He tells me that he is fresh all the way from his constituency, which is about 3000 miles away?
Or there about.
Let me listen to him and then you can renew your request.
Thank you, hon. Temporary Deputy Speaker. This Motion is very important to the international community. Kenya being a member of that community, it is important that we are considered members of the civilized nations of the world. The world is now becoming a global village. It is important that we have international obligations observed all over the world by all nations, so that we can live in a world which is peaceful and has harmony. There are certain international obligations which Kenya as a nation is a signatory to. African countries at large have affected us in many ways. I have in mind the World Trade Organization (WTO), where we negotiate the prices of our goods. Africa is a producer of primary goods. When we go to negotiate for our primary good’s prices, Africa usually sends either very junior or incompetent officers. Prices of agricultural goods produced in Africa are always very lowly priced, and that way African countries, and developing countries in general are shortchanged. At the end of the day, because of sending incompetent officers who are not trained on this field, Africa has lost a lot when negotiating for fair prices of their goods. One other important factor in international obligations, which has been in the world stage, is climate change. Africa produces less than 2 per cent of pollution of world. The major producers of pollution are the industrialized nations, particularly United States of America and China, and which have refused to sign very important international obligations which have been negotiated. I have the Kyoto Protocol in mind. This is what major pollutants like Russia and USA have never put their signatures on, yet climate change has affected most of the developing countries, particularly Africa. Global warming that has taken place as a result of this industrial pollution, has affected the Ozone layer of our mother earth. It has made our agricultural productivity go down in areas with very reliable rain. We are no longer having that reliable pattern of rain because there is climate change that has affected us, prticularly in Africa. Hon. Temporary Deputy Speaker, we have never got adequate compensation for the major industrial players, which were responsible for affecting our climate. We have also been shortchanged because when we were negotiating for this on the world platform, it was said that Africa had not been serious and we have not been able to negotiate those terms favourably.
However, there are many international obligations, which Kenya is a signatory to, that have really helped the world over. In particular, the laws affecting human trafficking and narcotics in many ways have reduced the adverse effects of these problems. Despite international obligations being in place, Kenya is still vulnerable and it is a major destination for drug and human trafficking. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
Hon. Temporary Deputy Speaker, as a country, we need to take our international obligations seriously, so that we are part of civilised nations with regard to these international obligations. It is important that, as a country, and in order to be part of the world disciplined nations, we continue to observe and respect international obligations; we should continue being part of civilised nations of the world.
Thank you very much.
Member for Ainamoi, are you there again? I do not see you anymore.
Hon. Temporary Deputy Speaker, I rise to request that we call upon the Mover to reply. Given the nature of the Motion and the mood of the House, I believe this House can utilise time more efficiently. Hon. Members can still recognise individual protocols. So, may I request that you request the House to approve that we call upon the Mover to reply?
Hon. Members, it is for you to set your agenda. The problem is that some of us are outside the Chamber. I know some people have been very patient waiting to contribute; an example is the Member for Seme here. However, many of us also come in and then you find a Motion which you really want to contribute to. The point we are making is that you see the Motion in front of you as Motion at Order No. 12. We are still struggling with the accounts for the year 2011/2010, and this is coming to us when we are going on recess very soon; we are trying to be able to catch up with our legislative agenda; the Motion that you are considering now is for noting.
A lot of you have discussed it and you have said how Article 2 (6) is self executing. At the end of the day, all the treaties that you are talking about are part of the law by dint of the Constitution. We are really noting. It is you to decide whether you want to continue noting, or whether you want to consider accounts for the year 2010/2011; that is the point you are being asked to consider here.
So, is it the mood of the House that you want to move to another agenda, or do you want to keep on noting?
You want to continue noting? I will put the Question.
Mover of the Motion, Member for Taveta, can you resume your seat, so that they can see for themselves that they do not have the numbers? Proceed, Member for Taveta.
Thank you, hon. Temporary Deputy Speaker. I stand to reply after listening to what most Members have said on the issue of our international obligation. Having passed a new Constitution in 2010, as you pointed out, Article 2 of The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
our new Constitution is actually very clear that we should take our international obligations very seriously.
I want to thank the team which put this Report together for coming up with this very important document. Most of the times some people have to be reminded what we are signatory to and what we have agreed to do with other states and the United Nations (UN). Most conventions, agreements and issues that have been looked at are cross- cutting, and our country holds them very dearly. In fact, Kenya is very respected at the UN level, because most of African regions like the east and central Africa, and even the southern and northern Africa, have been listening so much to what Kenya has had to say in most agreements and protocols which have been passed at the UN level, and even at the East African and African levels where we have entered into protocols.
Having said that, I just want to congratulate everybody who has contributed to this very important Report. The international community ought to also do its bit in the sense that we do not want some protocols to be used against us; we are cooperating in most issues that we are signatory to.
I beg to move.
Thank you very much.
I hereby order that this Motion appears on the Order Paper of tomorrow in the afternoon for the purposes of taking a vote.
In the meantime, we will move to the next Order.
The Chairperson of Public Accounts Committee (PAC).
Thank you, hon. Temporary Deputy Speaker.
You have your time, which is 60 minutes. You can choose to use it or share it with the Seconder. All that will be at your discretion depending on the work at hand.
Thank you, hon. Temporary Deputy Speaker for that guidance. Before I proceed to move this Motion, let me just put it on record of this House that this is a very historic moment in the history of this House. Never before has this House---
Can I ask that the microphone level be adjusted, so that we can hear you clearly?
Hon. Temporary Deputy Speaker, maybe I can do it from the Dispatch Box?
The one you have is clearer than the one at the Dispatch Box.
The level sounds higher now. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
This is truly a historic moment for this House. It is historic in the sense that never before, in the history of the Kenyan Parliament, has the Public Accounts Committee tabled before the House three reports of accounts of three consecutive years at the same time for consideration by the House. This is particularly special given that it is coming hot on the heels of another historic moment witnessed by this House in April this year when we tabled two reports; this was a historic feat in itself. These were accounts for the years 2007/2008 and 2008/2009; we tabled them here as twin reports at the same time. Therefore, in one calendar year, this House will consider and clear accounts for five years, which, truly, is a historic feat.
The reason for this extraordinary measure taken by the PAC is that when this Committee took office in May 2013, we inherited a five-year backlog. As legislators who observe very strict fidelity to the Constitution of this Republic, we know that the backlog of accounts was in direct violation of the Constitution, which requires accounts to be considered by the Auditor-General. It requires the Auditor-General to report here and this House to consider the reports of the PAC within nine months. That backlog has meant that, repeatedly, we have violated the Constitution by not living within the required timeframe of nine months. Allow me to use this opportunity to strongly commend every hon. Member of this key Committee of this House for their commitment and exemplary work which made this historic feat possible. These Members have worked through the week; Monday to Friday, and during recess. This has been one Committee that has never gone on recess. This Committee has been on standby to work through very difficult circumstances. I want to thank the hon. Speaker who granted this Committee the favour and the privilege of sitting and conducting its activities even when the House was in session. Allow me to really commend the hon. Cecily Mbarire, who is the Vice-Chairlady of this Committee, hon. Joseph Manje, hon. Kareke Mbiuki, hon. Julius Melly, hon. Jackson Rop, hon. James Bett, hon. Fathia Mahbub, hon. Sakwa Bunyasi, hon. Arthur Odera, hon. Omondi Anyanga, hon. Samuel Arama, hon. John Mbadi, hon. Kyengo Katatha Maweu, hon. Manson Nyamweya, hon. Alice Nyanchoka Chae, hon. Andrew Mwadime, hon. Joel Onyancha, hon. Gonzi Rai, hon. Silvance Onyango Osele, hon. Jessica Mbalu, hon. Mathias Robi, hon. Stephen Manoti, hon. Jude Njomo, hon. Junet Sheikh Nuh, hon. Charles Geni Mongare and hon. Ahmed Ibrahim Abass; these are Members of this Committee. I will invite the House to duly acknowledge the work that these hon. Members did.
Allow me also, at this preliminary stage, to move this Report in honour and recognition of our hon. colleague, the Member for Kajiado North, hon. Joseph Manje, who has been in and out of hospital for the last three or so weeks after he was injured in a scuffle, protecting and defending his constituents in an activity that led to a police attack, leading to his injury after inhaling a lot of teargas. Hon. Manje remains in Nairobi The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
Hospital to date. We send our best wishes to hon. Manje. He truly has been a gallant Member of this Committee. On behalf of the Public Accounts Committee, and pursuant to provisions of Standing Order No.181(3), it is my pleasant privilege and honour to present to this august House three Reports of the Committee on Appropriations Account, Other Public Accounts and the Accounts for the Fund of the Government of Kenya for the Financial Years 2010/2011, 2011/2012 and 2012/2013. Hon. Temporary Deputy Speaker, I beg to move:- THAT
On a point of order, hon. Temporary Deputy Speaker.
Order, hon. Member for Ainamoi. Hon. Member for Budalang’i, just resume your seat for a while. Hon. Langat is on an intervention.
Hon. Temporary Deputy Speaker, I am on a point of procedure. I think the Mover has not started the Motion very well. Usually we start by reading the Motion as it is on the Order Paper. I thought he was coming to it but he has moved on despite the promise he gave when he started moving the Motion. So, I request that you ask him to move the Motion in the proper manner.
Hon. Temporary Deputy Speaker, you can trust the hon. Member of Ainamoi to attempt to unsettle me and interfere with the flow of my thoughts. But I take it in good spirit and without prejudice, and just assure the hon. Member that I had every intention of citing the Motion at the conclusion, after having gone through the background to the Motion. That is coming but I do appreciate that. Hon. Temporary Deputy Speaker, in preparing these three reports - you will notice that I will keep on touching on three different reports as I move. For the year 2010/2011, we held 45 sittings for purposes of taking evidence. For the year 2011/2012, The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
we held 60 sittings and for the year 2012/2013, we held a total of 45 sittings. I dare clarify that some of the sittings were done at the same time, where we would take evidence on all the three reports from Accounting Officers at the same time. The Committee wishes to place on record a number of challenges experienced in this process that led to the preparation of this Report. The greatest constraint faced by the Committee in preparation of this Report was the incredibly heavy workload occasioned by the backlog of accounts that I have already noted was inherited from the 10th Parliament going back three years. This backlog has delayed the approval of up to date accounts, which is a violation of Articles 228 (6) and 229(8) of the Constitution. Therefore, to correct this aberration, the Committee took the unprecedented measure of considering audited accounts for three consecutive years simultaneously; that is 2010/2011; 2011/2012 and 2012/2013. This is also of particular significance in ensuring fair revenue sharing between national and county governments calculated on the basis of the most current audited accounts as required by Article 202(3) of the Constitution of the Republic. In this regard it should also be noted that Parliament remains constrained in the provision of critical, technical and professional services that seriously hamper smooth committee operations, especially in circumstances of accelerated proceedings as in this case. Lack of professional editing services places a huge strain on hon. Members and clerks to polish report drafts. Limited access to transcribed hard copy HANSARD records makes referencing and cross checking of information and evidence a challenge. Committee clerks would also benefit from continuous capacity building to enhance ability and experience. Further, the Committee was quite frustrated by the unacceptably poor performance by some Accounting Officers, who made work difficult by their numerous requests to postpone appearance, coming before the Committee unprepared, submitting poorly prepared, casual and unconvincing responses, late submission of responses and failure to furnish the Office of the Auditor-General with advance copies of responses. The Committee holds the view that this is irreprehensible conduct that compromises the audit cycle and must be strongly discouraged by all means.
Accordingly, the Committee wishes to commend all those Accounting Officers who took their work seriously, and to strongly rebuke and reprimand every Accounting Officer who did not. As a measure of the significance the Committee attaches to this matter, the Committee has resolved that starting with accounts of financial year 2013/2014, reports to this august House will be accompanied with a list of honour naming and commending top performing Accounting Officers in an order of merit, and another list of shame, naming and rebuking those who do not take their accounting duties seriously. The Committee also notes with grave concern the serious financial and human resource constraints in the Office of the Auditor-General, which has serious implications for the entire audit cycle as set out in Article 229 of the Constitution. Hon. Temporary Deputy Speaker, unless these challenges are urgently addressed, in view of the increase in audit obligations occasioned by the demands of devolution, public funds will remain at great risk of misuse, misapplication and loss without detection. That is why we have repeatedly implored the Budget and Appropriations Committee,- I can see the Chairman of the Departmental Committee on Finance, Planning and Trade also in the House - to consistently increase the budget for the Office The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
of the Auditor-General to be able to undertake its duties effectively. Our fear, also, extends to county governments where we think there could be even greater misapplication, misuse and wastage of public resources that have not come to the attention of this House, because it is the business of the Senate. These challenges, notwithstanding though, the PAC is proud to have discharged its mandate with honour and valour as expected of it by the Constitution, Standing Orders and customs of this hon. House. Allow me now to quickly make reference and draw hon. Members’ attention to an important part of this Report on page (v) which is titled: “Highlights from the Audited Accounts”. Hon. Members you will notice that there is a similar section in each of the three reports, which we have titled ‘Highlights’. These are highlighted issues that the Committee considers to have been the big issues emerging out of the particular financial year. For financial year 2010/2011, I want to draw hon. Members’ attention to the following big issues. One, issues touching on the Constituencies Development Fund (CDF). The Committee has highlighted serious audit queries raised on Mutitu CDF that touch on, among other things, unaccounted for expenditure. The Committee has also drawn attention to expenditure at the Ministry of Education, which includes irregular use of grants by national schools, lack of financial records and the Committee has made appropriate recommendations. The Committee has also taken note of expenditure at the former Office of the Vice-President and Ministry of Home Affairs, which related to funding of Government of Kenya prisons.
Concern has also been raised in respect of the former Ministry of Medical Services, the former Ministry of Roads and the Independent Electoral and Boundaries Commission (IEBC) touching on expenditure amounting to Kshs758,946,416. Attention has also been drawn to the former Ministry of Immigration and Registration of Persons for expenditure running to over Kshs2 billion. In respect of financial year 2010/2011, attention has been drawn to the following big issues, growth of the public debt. This is particularly significant given that today we approved in this House Government’s request to raise the debt ceiling. The Committee is calling attention to the very real risk of indiscriminate and uncontrolled borrowing which is leading to very sharp rise in the public debt. Hon. Temporary Deputy Speaker, attention is also drawn to the Ministry of Internal Security in respect of undelivered motor vehicles, diversion of transit goods and failure to collect revenue. The Constituencies Development Fund (CDF) features again in this report; this time it is in respect, specifically, to Ikolomani Constituency. There is also the issue of Government shareholding in companies where the Committee has raised certain concerns. In respect of the financial year 2012/2013, the Committee has drawn the attention of this House to five big issues. Those issues include the following; one is the question of confidential expenditure amounting to Kshs2.8billion. The second issue relates to irregular procurement of residential houses and commercial units for the police amounting to Kshs1.3 billion. Both issues are under the Office of the President. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
The second issue relates to State House. It is in respect of a stalled construction project and what the Committee considers to have been irregular payments and conversion of use of that particular project. The third issue relates to the Judiciary. In respect of the Judiciary, the Committee notes that serious audit queries were raised regarding expenditure in the Judiciary amounting to over Kshs2 billion; but the Committee wishes to inform this House that this matter is a subject of a special audit. The Auditor-General has already done a forensic special audit for the Committee. The Committee has already interrogated that forensic audit and the Committee will be presenting to this House a special report on that expenditure by the Judiciary. The fourth one touches on the Independent Electoral and Boundaries Commission (IEBC); it touches on irregular procurement of election materials which included the biometric voter registration (BVR) kits for Kshs6.4 billion, electronic voter identification devices at Kshs1.3 billion; universal polling kits at Kshs1.53 billion and electronic results transmission system for Kshs25.8 million. The audit finding indicates that the IEBC did not have an approved procurement plan for the year, and the transactions invariably flouted the Public Procurement and Disposal Act. Given the special and sensitive nature of the IEBC, this matter has also been made a subject of a special inquiry jointly undertaken by the Public Accounts Committee (PAC) and the Kenya National Audit Office (KENAO). This inquiry is also ongoing. The fifth issue touches on the CDF. Again the Committee has taken note of issues raised on CDF; in this respect, attention is drawn to activities in the following constituencies: Tigania East, Mutitu and Chepalungu. There are also issues touching on the Ministry of Roads and the Ministry of Medical Services. Those are the big issues in the financial year 2012/2013. Allow me, hon. Speaker, because of the enormity of this confidential expenditure, to just mention the rest of big issues---
Hon. Member for Budalang’i, you need to be clear in your mind that you are under no pressure at all. Finish within the time.
I am aware of that, hon. Temporary Deputy Speaker. I am also intending to allow the seconding of this Motion before we rise, so that we can accelerate the debate and consideration.
My eyes are on the clock constantly. So, I have timed myself accordingly to allow the Deputy Chair to second the Motion. Allow me to run the House through this matter of confidential expenditure, because it is a key matter. It is one that the Committee took a lot of time to consider, and one that the Committee wishes to draw the House’s attention to. I beg the House to pay very keen attention when considering this Report.
In the Financial Year 2012/2013, the Committee’s attention was drawn to expenditure amounting to Kshs2.853 billion. The audit trail, in respect of the expenditure of this colossal sum, could not be logically conclusive because the key documents required to support the expenditure, including vouchers and receipts, were missing. The scanty documents availed such as the Ministerial certification of expenditure appeared to conceal more than they actually revealed, and were thus of nil audit value. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
The audit, accordingly, raises three critical queries in respect of this expenditure. One, irregular cash transfers, two, undisclosed and unauthorised cash withdrawals and three, unaccounted for funds. The Committee classified this matter as grave. While the ends of national security are critical and must be jealously guarded by every Kenyan, the Committee, nonetheless, holds the view that confidentiality must not be used as a blanket to mask breaches of the Constitution, the law and the Government’s regulations, thereby occasioning loss and wastage of public funds. The Committee concluded that the existing and apparently long standing practice in this Ministry, namely the Ministry of State for Internal Security and Provincial Administration, is susceptible to abuse since the internal controls are vulnerable and lax, thus, exposing public funds to grave risk. It is the Committee’s considered position that the expenditure of Kshs2.853 billion was so opaque that it was impossible to tell with certainty if the funds had, indeed, been used for the intended purposes, or any State purpose at all, or to conclusively dispel the fear of possible loss, wastage, misapplication and pilferage. The Committee is emphatic that numerous transactions in respect of the funds violated Article 201 of the Constitution, Section 68 (1) of the Public Finance Management Act and Sections 5.5.11 and 6.7.1 of the Government Financial Regulations and Procedures. The violations included, one, concealing and or withholding critical details of the expenditure contrary to Article 201 of the Constitution, which requires openness, accountability, prudence and responsibility in the management of public funds, and further violation of Section 68 of the Public Finance Management Act, which provides as follows:- “An accounting Officer for a national government entity, Parliamentary Service Commission and the Judiciary shall be accountable to the National Assembly for ensuring that the resources of the respective entity for which he or she is the accounting officer are used in a way that is – a) lawful and authorised; and (b) effective, efficient, economical and transparent. (2) In the performance of a function under subsection (1), an accounting officer shall— (a) ensure that all expenditure made by the entity complies with subsection (1); (b) ensure that the entity keeps financial and accounting records that comply with this Act;” Part (c), provides for furnishing to the National Treasury and any other office, where relevant, with any information it may require to fulfill its functions under this Act. The Committee found that, that law was violated in this expenditure. The second violation is the irregular use of contra-entries for cross-cash transactions in a bid to circumvent the issuance of vouchers and receipts in violation of Section 5.5.11 of the Government Financial Regulations.
These regulations provide that the payments are effected by completing Forms F.O. 20 or F.O. 22, whichever is appropriate. These forms have been designed for The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
exclusive use in respect of expenditure of voted provisions. They are suitably annotated in order to show the sections which have to be completed by different officers who are involved in their processing. Any irregularity in completing a section of the form will disrupt the sequence and result in payment voucher being held up or returned to an earlier stage of correction.
The fact that this section of the law was not complied with, and the expenditure was not accompanied by vouchers as required, was a violation of this Government regulation. Hon. Temporary Deputy Speaker, the third violation is the misapplication and abuse of Section 5.2.5 of the said Government Financial Regulations and Procedures. This section provides that any expenditure on services of a confidential nature, the purpose and particulars of which cannot be made public, must be supported in the accounts by a certificate that the money has been paid and a declaration by the Minister responsible for the department that he or she has satisfied himself or herself that the money has been properly expended, and has not been used to supplement the emoluments of any officer. The Committee noted that no certificates of expenditure were availed and the Ministerial declaration submitted was of little audit value. In any case, the Government Financial Regulations and Procedures are inferior to the Public Finance Management Act, which clearly declares at Section 68 that: “This Act shall prevail in the case of any inconsistency between this Act and any other legislation on matters involving preparation and submission of accounts for audit, including the time for doing so and establishment and management of public funds.”
In this case, the Accounting Officer not only violated Regulation 5.2.5. It is the position of the Committee that even if this Accounting Officer had been faithful to Regulation 5.2.5, the Committee would still have held him liable. This is because that regulation, whose amendment we have recommended, is contrary to Section 68 of the Public Finance Management Act, which is superior to that regulation.
Violation number four is that the Accounting Officer abused his office, and usurped the responsibility of the confidential security expenditures, which properly lies with the National Intelligence Service, the Criminal Investigations Department, the General Service Unit and the Kenya Police, and, definitely, not the Principal Secretary or the Permanent Secretary (PS), in this case.
These agencies have their Votes and respective A.I.E holders. There was absolutely no reason for the PS at the Office of the President to handle the funds on their behalf, with a considerable portion of those funds transacted in cash.
The fifth is the violation of the Government Financial Regulations Treasury Circular Reference AG/01V0l9/164 of 14th December 2009, which sets the ceiling for cash withdrawals at Kshs.700,000 per week, from accounts at the Central Bank of Kenya. The Ministry went well beyond this ceiling without Treasury approval. To circumvent this regulation, the Ministry operates an account at National Bank of Kenya, parallel to the regular account at the Central Bank of Kenya.
The account though referred as police account, it is reported to be a general account at the Office of the President and is customised to irregularly facilitate unlimited cash withdrawals. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
Hon. Temporary Deputy Speaker, the Committee expressed grave concern that, indeed, the so called confidential expenditure involved huge cash withdrawals with neither explanation nor any logical rationale. The Committee noted that in many instances, multiple withdrawals of up to five times would be made in a single day. For instance, on 26th February, 2013, five withdrawals of amounts ranging from Kshs.20 million to Kshs30 million each were made for a sum totalling Kshs.130 million. Between 4th April and 30th June, 2013 the Ministry of Interior and Co-ordination of National Government also got cash amounting to Kshs.190 million in cash form.
On a point of order, hon. Temporary Deputy Speaker.
I will not allow a point of order because we are at the tail end of the discussion.
It is an important one.
How does hon. Langat know there is an important point of order coming from another hon. Member?
Believing that hon. Langat learnt biology, let us hear if that osmosis works.
Hon. Temporary Deputy Speaker, I am a Member of this Committee. I am seeking your guidance as to whether we can extend the sitting, so that our Chairman is able to take us through the whole Report. I seek your guidance.
Well, I do not have authority, or discretion, to extend the sitting other than by a Motion from the Floor; but Standing Order No.30 gives me discretion to give people enough opportunity to ventilate what they have on the Floor. It depends very much on what the Chair has. As I have said, you could easily take up to the time when the House will rise. This Motion will still come back tomorrow in the afternoon. You may have to finish what you have, so that you are not rushed. I take it that this as a very important debate and hon. Members need to understand it and be persuaded. After all, you have said that you are moving a Motion on three accounting years in one go. So, I have no intention of putting any pressure on you to finish. Can I hear from the Chairman? How do you want to prosecute this?
Maybe my Vice-Chair wishes to---
Yes, hon. (Ms.) Mbarire.
Thank you, hon. Temporary Deputy Speaker. I think there is really no need to rush too much. We have very critical issues that have been raised in this Report; I know that many hon. Members, both in the Committee and in this House, would prefer to have ample time tomorrow to be able to contribute to this important Report. I propose that we are not rushed but we use time as provided for in the Standing Orders.
Hon. Temporary Deputy Speaker, I associate myself with the remarks of my eminent Vice-Chair, that we have no reason to rush this.
That being the case, according to the clock I have you do not have any more time. I have a digital clock which says we are right on time. The one you are looking at must not have been adjusted properly. I trust digital clocks more. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
Hon. Temporary Deputy Speaker, I am absolutely obliged to stop at this point.
What you can do is to be in Chamber tomorrow in the afternoon. Again, you know our rules about taking advantage of your time when the House next meets. In other words, when the presiding chair calls for that Order, you must be on your feet so as not to forfeit your minutes. If you are on time---
Hon. Temporary Deputy Speaker, May I beg---
I am taking advice from my helpful Clerks at the Table. Hon. Langat raised an issue as to whether you had proceeded by the template, and now you are sitting down before you have done what he had asked you to do, the Motion may change character. You should be able to do what he asked you to do. Can we hear you on the HANSARD moving it? You will still preserve the balance of the time that is left for you to complete what you have. Hon. Temporary Deputy Speaker, in fact, I had anticipated that. Now with the benefit of hindsight, I should have started in the traditional fashion. Therefore, let me put it on record. Hon. Temporary Deputy Speaker, I beg to move the following Motion:- THAT, this House adopts the Reports of the Public Accounts Committee on:- (i) The Appropriations Account, Other Public Accounts and the Accounts for the Funds of the Government of Kenya for the Financial Year 2010/2011; (ii) The Appropriations Account, Other Public Accounts and the Accounts for the Funds of the Government of Kenya for the Financial Year 2011/2012; and, (iii) The Appropriations Account, Other Public Accounts and the Accounts for the Funds of the Government of Kenya for the Financial Year 2012/2013, laid on the Table of the House on Tuesday, December 2, 2014.
I shall conclude moving of the Motion when next afforded an opportunity by the House. Thank you.
All right. I, therefore, order that this business appears on the Order Paper of tomorrow for the resumption of the debate that has begun in earnest. Mover, you still have a balance of 19 minutes to finish your moving; it will then be seconded and then we will have it on the Floor for discussion.
Hon. Members, the time being 6.30 p.m., this House stands adjourned until tomorrow, Wednesday, 10th December, 2014, at 9.30 a.m.
The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.
The House rose at 6.30 p.m. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.