Hon. Senators, let us determine if we have a quorum.
Hon. Senators, I am informed that there is no quorum. I order that the Division Bell be rung for ten minutes.
Hon. Senators, we now have quorum. Let us now go to the business of the day.
Order No 6: Notices of Motion.
Mr. Deputy Speaker, Sir, I beg to move Motion No.12 on the Order Paper.
Senator, we have not got to that point yet. Order No.12 is not a Notice of Motion but a Motion.
Mr. Deputy Speaker, Sir, I stand to request for two Statements from the Committee on National Security and Foreign Affairs, and I must declare here that I belong to that Committee. The Statement I request is as follows:- (i) Whether the Government could explain the reason for and/or the circumstances surrounding and leading to the withdrawal of security personnel and bodyguards attached to the Senator for Machakos County, Sen. Muthama. (ii) Whether the Government is satisfied that the security and safety of Sen. Muthama will not be compromised or adversely affected by the withdrawal. (iii) Whether the Government could deny or confirm that the decision to withdraw Sen. Muthama’s security is largely based on the stand he has taken on a number of issues of a public nature including questioning the results of the general elections held on 4th March, 2013, the International Criminal Court (ICC), sharing of national revenue between national and county governments, the reform of the electoral system and the need to hold a national referendum. (v) Whether the Government will reverse the decision and have the officers returned immediately especially given the key role of the Minority Whip in the leadership of the Senate. (v) In view of what has happened to Sen. Muthama and the alleged attempt to gag the media, could the Government confirm whether the Jubilee administration is committed to the freedoms of expression, the principles of open and good governance, transparency and accountability in the management of public affairs as provided for in the Constitution of Kenya. (vi) What the policy and practice of the Jubilee administration is regarding the provision of security to Members of Parliament and in what circumstances can such security be withdrawn. Mr. Deputy Speaker, can I pause?
Yes. Sen. Haji, I think this is for your Committee.
Mr. Deputy Speaker, Sir, I think this does not need a lot of time. It should be ready by Wednesday morning next week.
Is that okay, Sen. Orengo?
Yes, Mr. Deputy Speaker, Sir.
On a point of order, Mr. Deputy Speaker, Sir. The security of Kenyans is very important---
Order, Sen. (Dr.) Khalwale! The Statement has been sought and the date when it will be issued has been set, so I cannot understand why you would be standing on a point of order. That issue is now spent. I think I am right in suggesting that the issue has been spent because Sen. Orengo has sought his Statement and Sen. Haji, the Chairman of the Committee, has indicated when he is going to issue it. You will have ample opportunity to seek clarifications when that Statement is issued in the House.
Mr. Speaker, Sir, I do not want to ask further issues on that Statement---
I think I am right in what I have said because I believe the issue is spent. If you want to ventilate on what Sen. Orengo has said, he has finished and I have made a ruling on when the Statement will be issued. If you want to discuss something else, go right ahead. I do not want to appear like I am gagging you but I want to understand where you are coming from.
Mr. Speaker, Sir, I was saying that different from what Sen. Orengo is saying, it is possible when somebody is moving without security for him to be fixed within one hour---
But you are now riding on Sen. Orengo’s Statement. If you want to seek a Statement, you do so and I will give you permission to do so. I will not allow you to ride on another Senator’s Statement and what I do not accept is a point of order. If you want to discuss security generally, move a Motion of Adjournment, but if you want to ventilate on Sen. Orengo’s Statement, then do so when the Statement is issued. Sen. Orengo has taken time to write a Statement and seek it. I think we are reading from the same page.
Mr. Deputy Speaker, Sir---
Not when you are discussing Sen. Orengo’s Statement. I will not allow that. I am not gagging you but I am saying that we must respect the procedure and I think you are not respecting procedure.
Mr. Deputy Speaker, Sir, I just wanted to ask, in the meantime, could the Chair direct that Sen. Muthama’s security detail---
I will not direct. Why did you not seek a Statement on behalf of Sen. Muthama? It is only when the Statement is given that we shall know whether or not facts are stated in the Statement. So, I cannot make a ruling or an order pursuant to any point of order that you may raise on this issue, I am afraid. Proceed, Sen. Orengo. ALLEGED INVOLVEMENT OF PUBLIC OFFICERS IN COACHING OF ICC WITNESSES
Mr. Deputy Speaker, Sir, I also rise to request for a Statement from the Committee on Legal Affairs and Human Rights. The request is as follows:- Following the revelation made in the proceedings in respect of the Kenyan situation at the ICC and the Statement made by leaders in the Jubilee Coalition, could it be confirmed or denied by the Government that, indeed, there are public or state officers who have served in both the Grand Coalition Government and the Jubilee Government and are still occupying critical positions in the public service, who coached witnesses and who continue to support, directly or indirectly, the institution and continuation of proceedings at The Hague against the Deputy President? Since such conduct or abuse, if proved to be true, amounts to commission of criminal offences and contravenes specific provisions of the Constitution, what is the Government doing to ensure that no such persons serve in a public or state office? Is the Government aware that the accommodation of such persons in their administration can
Mr. Deputy Speaker, Sir, on behalf of the Chair of the Legal Affairs and Human Rights Committee, I undertake to respond to the issue in the next two weeks.
Is that satisfactory to your needs?
Ten days would be more appropriate. I would have said a week but I want to extend a hand of accommodation, so I suggest ten days.
Sen. Sang, what can you do?
Mr. Deputy Speaker, Sir, I was looking at two weeks as a reasonable time because I know the Chairman, Sen. Wako, is bereaved and possibly will be here in the next one week or so. So, I was just giving him an allowance of another week to deal with the issue.
On a point of order, Mr. Deputy Speaker, Sir. The Committee is not necessarily the Chairman. The Committee has a vice chair and a membership. In short, these are institutions. Could the vice chair undertake to ensure that this is done within ten days?
Mr. Deputy Speaker, Sir, I appreciate that. This House will be adjourning this week for the county visits. That means that this entire week will be spent in the field. So, two weeks will be adequate for me.
Let us compromise and take two weeks. Sen. Orengo, I do not I think that prejudices your situation too much.
Mr. Deputy Speaker, Sir, I think this matter is extremely urgent and is a matter of concern to members of the public, including myself. Sen. Sang knows that I am normally very accommodative but on this particular one, I ask for ten days.
On a point of order, Mr. Deputy Speaker, Sir.
And do not allow Sen. Murkomen, he has just come in and does not know what this is all about.
On a point of order, Mr. Deputy Speaker, Sir. While appreciating what Sen. Orengo has requested for, I think two weeks is sufficient because it is good to have a Statement that is exhaustive. There is no need to rush and especially when the Chair, the Committee Members and indeed most of us will be in solidarity with Sen. Wako this weekend. So, I think the two weeks period is sufficient enough.
On a point of order, Mr. Deputy Speaker, Sir. This is an extremely urgent issue because someone who is in office that deals with serious matters such as security or other institution cannot continue being in that position of privilege especially when they know that the bubble is busting. Can we ask the Chairman to bring the Statement in five days?
What exactly are you discussing, Sen. Murkomen?
The Statement that Sen. Orengo has just sought.
I notice you have just come in. There are two Statements that Sen. Orengo has sought. Which one are you talking about?
The one concerning those who are alleged to be coaching witnesses.
The one concerning those who allegedly coached witnesses?
What we are going to do in this case- -- In all fairness, Sen. Orengo, I know it is urgent and it is in public interest and domain, but Sen. Sang has given compelling reasons. Although I appreciate what Sen. Abdirahman has said, that the Committee exists whether the Chairman is there or not, we know exactly where Sen. Wako is and I think it is important that you allow the Committee to come up with a Statement that will be satisfactory to the House and to the nation. So, I would request that you accept the proposed two weeks so that we have this matter finished once and for all.
If you allow me, since Sen. Keter has spoken on this, I will oblige.
Well, thanks to Sen. Keter, Sen. Sang you have a reprieve. You have two weeks to give a Statement. Do we have any more Statements? Sen. Moi! Are you asking for a Statement or issuing one? STAND-OFF BETWEEN TULLOW OIL COMPANY AND RESIDENTS OF TURKANA
I am issuing a statement, Mr. Deputy Speaker, Sir. Sen. (Dr.) Khalwale, Senator for Kakamega asked for a Statement on the current issues related to the stand-off between Tullow Oil Company and residents of Turkana as follows:- (i) the urgent measures the Government is taking to end this ugly and unfortunate incident; (ii) how the Tullow Oil Company acted on the needs of the local Turkanas in their exploitation of the oil resource; (iii) what the Government is doing to scale up involvement of locals in this grand project beyond the universally accepted practice of simple casual jobs, being offered opportunity as non-skilled task workers and being given simple small-scale businesses and contracts; (iv) what guarantees the Government is giving on the safety of the non- Turkana employees from elsewhere who are reported being evacuated. I beg to make the following Statement:- Regarding the urgent measures the Government is taking to end ugly and unfortunate incidents, I take cognizant of the fact that the oil company has already resumed operations, so, this Statement came a little bit late. Nonetheless, the national and the county governments have engaged in a number of urgent discussions with the aim of bringing the suspension of operations at Tullow oil drilling sites in Turkana to an end and indeed, it has come to an end. These discussions have involved the Cabinet Secretaries
Thank you very much.
It was mine---
Please take your seat. Sen. (Dr.) Khalwale, what exactly were you coming to do at the Dispatch Box? This is not a casual House where you just walk in and walk out. We have laws and procedures and even if it is your Statement, you must rise and seek permission to speak. You cannot just walk to the microphone. That is not acceptable and not allowed. I am not saying this for the first time. I think we must have some decorum in this House and respect for the laws and rules that we have set for ourselves. I think it is important that we do that.
Mr. Deputy Speaker, Sir, I would appreciate if the Chair would clarify on the policies of the Government, particularly this Ministry, regarding the equitable distribution of resources. The main thing today in this country is about equitable distribution of resources. That is why we are having devolution. The concern here is that the company called Tullow Oil is not actually benefitting the people of Turkana in terms of procurement of goods and services. This is a major concern to all. Could the Chairperson confirm that it is now going to be the policy of the Ministry of Energy and Petroleum that all these oil companies as a matter of policy, procure goods and services from the residents of that county? For example, in transport, we are told that out of the 300 trucks and vehicles they have hired, only 20 come from Turkana but the rest are from outside the county. Could the Ministry confirm that they will in fact develop that policy?
Mr. Deputy Speaker, Sir, so much has gone wrong in the way Tullow Oil operates in Turkana in terms of employment, award of tenders, Corporate Social Responsibility (CSR) and in terms of the general attitude towards the locals. I want to give an example; for them to outsource charcoal, a product readily available in Turkana is outrageous, to actually give 20 scholarships and award Turkana only two and not four as he puts it where the courses offered are like business administration which are available in the local universities but they give the best petroleum courses to their own people, is also outrageous; to get 14 international non-skilled labour is really outrageous. For example, an American coming to sweep or a Nigerian coming to cook is a job that I would imagine is for a local resident. Therefore, I want to ask two issues; in terms of the US$1,000,000 they talk of as CSR, who decides where the money is to be spent? Whom have they consulted for the purposes of implementation of that initiative? The second issue that I want to talk about is progress. We met as leaders and also consulted the President and resolved the matter but only with few conditions; let them allow us to audit employment in that company. We want to do due diligence. We want to be shown who has been employed.
“We” as who?
“We” meaning the Turkana people.
I think it is important to say that. Sen. (Dr.) Khalwale!
Thank you, Mr. Deputy Speaker, Sir. In the course of this particular unrest, the Member of Parliament, hon. Lomenen, was arrested. He was even made to record a statement. Now that demonstration on this matter has been found to be
Thank you Mr. Deputy Speaker, Sir. I also rise to seek clarification from the Chairman regarding matters of CSR. When we talk about CSR, this is pegged on a percentage of earnings especially in civilised nations. You could be operating a plant of USD100 million, which may sound like a lot of money, when in corporate terms, this is nothing. I want to ask a question regarding some of the things we are saying here. We cannot say that Nyeri County needs to control who Barclays Bank is employing in Nyeri County and to audit; that is what Sen. Munyes has proposed. We cannot go, as leaders, to micromanage organizations. We can only deal with them in terms of policy and concepts that we have agreed upon. However, we cannot tell them who they will employ where.
On a point of order, Mr. Deputy Speaker, Sir. My understanding is that you gave the distinguished Senator from Nyeri a chance to seek clarification. However, he is now giving us a lecture which I agree with. However, this has been brought at the wrong time. This is a time to request for statements, answers, or clarifications. He has given us a very long lecture which should be given by the Chairman.
Sen. Kagwe, are you giving us a lecture? You should be seeking a statement.
Mr. Deputy Speaker, Sir, I was simply explaining this so that I eventually ask a question. Is it the national Government’s policy or any county policy to micromanage an organisation?
Sen. Munyes wants to give you some information. Do you want to be informed?
Yes, I want to be informed.
Mr. Deputy Speaker, Sir, we worked in harmony with these organisation. However, for three years, they refused to give us information. So, in that case, what do you do when a company - which is Kenyan - refuses to disclose its employment structure? Later, we found out that they were bringing in unskilled expatriates. Is it not fair to ask for that kind of disclosure?
Mr. Deputy Speaker, Sir, the Constitution provides that when resources are found in a particular area, a particular percentage should be given to the local community. Is the Senator from Nyeri in order to mislead the House that hon.
On a point of information, Mr. Deputy Speaker, Sir. I wish to inform the hon. Senator that he is referring to Article 66(2) of the Constitution.
Mr. Deputy Speaker, Sir, on the contrary, I spoke about the corporate social responsibility (CSR) and expressed that in most jurisdictions, organisations and companies, this budget is a percentage of the revenue of an organisation. I did not talk about the percentage in terms of the profits from an organisation that should go to the county. I did not mention that. However, indeed, I totally believe and agree that a fair percentage should go to the county government.
Sen. Billow, are you seeking for a clarification? You have a good understanding of procedure. My understanding of a point of order is that it can come in the course of a contribution. However, if you wait until the contribution is over, I take it that the matter is spent. It is sad and unfortunate for me that I did not catch your eye.
On a point of clarification. I want the Chairman to clarify, with regard to payments, about Kshs80 million paid to local businesses. Could the list be provided so that we see who benefited from the Kshs80 million?
I do not know about that, Sen. Okong’o. I do not know how that would fit in. Sen. Moi, could you react to that?
Mr. Deputy Speaker, Sir, I want to reiterate what Sen. Munyes has said. The standoff has been resolved. This has been resolved in consultation with all stakeholders. A committee has been formed. The committee consists of all local stakeholders and inter-ministerial committees. Therefore, in future, we will not get into such situations. We also need to note that safeguards have been put in place so that we do not fall into this situation. However, it is important for us to note, as a Senate, that the Energy and Petroleum Act of 1997 will be amended and that will be brought to this House. That should cover all the concerns we have here today. Between now and then, I am satisfied to say that all is well in Turkana. The committees have been put in place and, in fact, all the grievances have been ironed out. The issues of the monies that were shared out, USD 1 million will be increased in the next financial year to USD2 million. The issue of scholarships to locals will also be doubled. This year, they paid Kshs24 million to primary and secondary schools best students bursaries. That will be doubled. However, what is important is for us to focus our eyes on the amended Energy and Petroleum Act where we will set things right. Last but not least, the company paid Kshs500 million towards taxation in 2012. The revenue allocation that locals will get, under our new Constitution, is 5 per cent. However, I think it is up to us, as the Senate, to increase this. This allocation is divided between the community, county governments, investors and the national Government. It is up to us, as a House, to set the record straight and to increase this for the benefit of our people in the counties.
Mr. Deputy Speaker, Sir, the fundamental issue in the statement sought was about equitable distribution. When a petroleum company is carrying out an exploration, all the costs incurred are recovered later from the revenues that come out of the production. That is why the Ministry of Energy announced, last week, that they want auditors to audit all the expenses incurred by all the exploration companies so far. That means that in reality, all those expenditures are operating as public entities. Those costs will be borne by us, the taxpayers. That is why, under the County Governments Act, there is a provision which says that when you are recruiting or carrying those kinds of things, 70 per cent of the resources should be for the local people in that county. Since this issue is happening in that county, the Chairman should be very clear. This is not just about doubling the number of scholarships or CSRs. Could he confirm that the distribution of the scholarships and the money or resources will be based on the 70 per cent being retained for the Turkana people and 30 per cent will go to the people in Turkana because that is what they are supposed to do?
Mr. Deputy Speaker, Sir, that is the policy. However, the Act has to be enacted. That is for us, as a House, to do.
I think that is the end of Sen. Khalwale’s Statement. RAMPANT KIDNAPPINGS IN KIRINYAGA COUNTY
Mr. Deputy Speaker, Sir, on 24th October, 2013, the Senator for Kirinyaga County, Sen. Daniel Karaba, requested for a statement on the rampant kidnappings in Kirinyaga County. Mr. Deputy Speaker, Sir, I have the statement with me. However, I know that the hon. Senator asked this with a lot of interest. He has been very patient to wait for the statement. I hear that he is now out of the country and would like to have your guidance on how to go about it.
Thank you, Sen. Haji. Are you seeking my view on that? Sen. Karaba is out of the country. I know that the statement is the property of the House. However, since he is the one who had sought it and this is a matter that touches him very much, I direct that you give it next week on Tuesday when I hope that Sen. Karaba will be back in the country. Is that okay?
Mr. Deputy Speaker, Sir, let me give it on Thursday.
Thursday next week is fine. Next Order!
On a point of order, Mr. Deputy Speaker, Sir.
Sen. Musila, you had an issue you wanted to raise.
Mr. Deputy Speaker, Sir, I apologize for coming late. But I sought for a Statement from the Chairman of the Committee on Education and Information Technology over a month ago. This concerns the withheld certificates of students who finished schooling, did examinations and head teachers continue to hold their certificates on account of unpaid fees balances, notwithstanding that we passed a law last year making it illegal for anyone to withhold a student’s certificate. I would like to know when this Statement will be brought to the Senate because it is over a month since I sought for that Statement.
Sen. Kagwe let me first point out to you that this Statement was sought on 17th September, 2013 and you undertook to give a Statement before 16th October, 2013 which is a month ago. What is the current position?
Mr. Deputy Speaker, Sir, first, I want to apologize to Sen. Musila for the delay. If you recall, I read a Statement here on this subject, but the Statement was unsatisfactory in the eyes of the House. I, therefore, sent the Statement back to the Ministry, to the Cabinet Secretary concerned, but unfortunately he has been away. When an attempt was made to give the Statement through another office, I advised them that this matter was too important to be handled by somebody else. In fact, what we have done as a Committee is that we have asked the Cabinet Secretary concerned to appear before the Committee so that we can interrogate him and then subsequently come with a Statement that we believe that the House can accept. So, if I am given two weeks, I will ensure that as soon as the Cabinet Secretary is back into the country, we will be able to engage him and bring the Statement.
Indeed, the record shows that you gave the Statement on 16th October, 2013 and you were supposed to give a further Statement.
Yes, Mr. Deputy Speaker, Sir. Sen. Musila, does that satisfy your need?
Mr. Deputy Speaker, Sir, I thank the Chairman of the Committee, but it is to be appreciated that the more these certificates are delayed in the hands of head teachers, the more the former students suffer because they cannot access employment. Recently, as you are aware, there was a recruitment exercise into the armed forces and many youth all over the country could not attend the recruitment exercise because they lacked this important document. Could it be the final promise, that within two weeks, he will bring the Statement here? I know the Chair is also concerned because Murang’a County also has a lot of problems with regard to this issue and I also know that every Senator is concerned. We want a concrete answer as to why the head teachers are keeping those certificates when the law is there. This amounts to impunity.
Sen. Kagwe it so ordered and you should come with a comprehensive Statement because it is affecting youth in all counties.
On a point of order, Mr. Deputy Speaker, Sir. You will recall that last week the Chairman of the Committee on National Security and Foreign Relations, Sen. Haji, promised to issue a Statement today regarding the death of Mr. Henry Nyabuto Omwange. In fact, we applauded the speed at which he was going to give this Statement but I have not had that response to date.
Mr. Deputy Speaker, Sir, my good friend and former colleague Minister should appreciate the fact that sometimes we try to do our best but people in the Ministry are a bit slow. I have been pursuing this Statement and hopefully by next week, I should be able to answer.
Could you make a commitment?
Mr. Deputy Speaker, Sir, next week on Thursday.
Since the Clerk-at-the-Table had read the next order, we shall move straight to resumption of debate on the National Flag, Emblems and Names (Amendment) Bill, Senate Bill No.2 of 2013. I want to say the following: As you know this is an open ended debate, but if it gets to 5.30 p.m., we shall interrupt debate on this Bill and go to Order No.12, Motion for Adjournment so that we can give you time to ventilate on the Motion.
Mr. Deputy Speaker, Sir, I rise to support the Bill by Sen. (Dr.) Khalwale and say that it has been long overdue. In 1950, India moved a Bill to stop the use of emblems and titles that people were not entitled to. Therefore, it is only fair and timely that as we move towards this new dispensation of a bicameral parliament and also in the creation of new offices that did not exist before, that we address this matter very seriously because, otherwise, we will run amok as far as self aggrandisement, praise and such other associated egoistic behavior is concerned. Mr. Deputy Speaker, Sir, in the United States of America (US) from which we have modeled a bit of what we are doing here in Kenya, it is very clear what titles and emblems there are. In the 50 States, they have their own structures of governance, their own emblems and their own parliaments. What has not happened is that in the US we do not have titles like Your Excellency and so on. While I accept that in this country – because of history – it is important for us to carry the title His Excellency for the
Mr. Deputy Speaker, Sir, I also rise to support the Bill. Mr. Deputy Speaker, Sir, indeed, we have seen our Governors misusing not just our flag, but also the coat of arms. When you look at the cards that we have right now from the county governments, you will find that they have the coat of arms. The
On a point of information, Mr. Deputy Speaker, Sir.
I assume that withdrawing means that you wish to be informed.
Yes, Mr. Deputy Speaker, Sir.
Mr. Deputy Speaker, Sir, I just want to inform the gracious lady that the word “minister” is derived from Latin and it means “to serve” or “service to the people.”
Thank you. I know that, that is what they should be doing, but they are not. In fact, in the “Kenyan English”, we look at “minister” as a very prestigious person. Mr. Deputy Speaker, Sir, as we look at the Bill, we need to address the issue of the sirens. This is because experienced gangs or thugs will use the sirens to rob banks. People will think that maybe they are escorting a Governor to withdraw his money. This is likely to happen because there is no distinction between the sirens for the ambulances and Governors. We really need to put a provision that if you want to use a siren, then you have to go to the police and request to use it with reasons. We also need to put penalties for flouting everything that we are putting in place. Mr. Deputy Speaker, Sir, the Governors, in one function that we were in, were very disappointed about the Bill. But we were very categorical and told them that we are not negotiating on this Bill; we have to streamline these issues. But today, I would want to thank the Chairman of the Council of Governors who was very clear and said that it was the Transition Authority which decided that they can be called “excellencies” and were given the vehicles and security. Since the Transition Authority is now going to be dissolved, then I think that we also need to dissolve what the Transition Authority maybe did in good faith, but---
Order, Senator! Where have you gotten the information that the Transition Authority will be dissolved? Is that a statement of fact or are you speculating?
Mr. Deputy Speaker, Sir, I am not speculating because I think that it has been so much in the newspapers that already Kenyans have---
Are you saying that it is something that is finished and we have no role to play?
Mr. Deputy Speaker, Sir, we have a role to play. I hope that---
Can you, please, correct your statement?
Mr. Deputy Speaker, Sir, what I wanted to say is that while we look at what the Transition Authority did without a law, I think that it is important for this House now to put in place a law to guide the Governors.
I am interested in your statement that the Transition Authority will be dissolved. I am not going to allow you to skirt around it. I want you to tell me what the position is.
Mr. Deputy Speaker, Sir, I withdraw that statement. Mr. Deputy Speaker, Sir, the other issue is the flag. Indeed, as much as I agree with the Senator for Nyeri that we have a right to fly the Kenyan flag because it also brings that pride that, indeed, we are Kenyans, it is important to also look at the institutions that can fly flags. Now that the Constitution has changed and we have a bi- cameral Parliament and the Cabinet Secretaries are not elected but appointed, I do not think that they need to fly any flags. I also do not think that the Attorney General needs to fly a flag. The key institutions that can fly flags, bring patriotism and Kenyans can understand are the Presidency, Deputy Presidency, the Chief Justice and the two Speakers. This should be very clear, so that we can respect and have pride in our symbols wherever we go. Mr. Deputy Speaker, Sir, today, if you ask young children in schools what the meaning of the flag is, they are confused also. For example, my child who is in pre-unit will say that the flag is for the Governors. She may not know that it is a national symbol that unites us, because it has lost that meaning. As much as we used to stand alert and sing the national anthem, today they are confused because the Governors are moving all over with flags on their vehicles. So, it is important also to bring back that pride that we had. I would request the Mover of the Bill that the amendments should include penalties; that indeed if you are found violating the law, then you have to be penalized. We also have to introduce a serious amendment on the sirens, because that is one thing that we have misused completely. Some Senators are even using them because they feel that since the Governors are using them and nobody is questioning them, then they should also use them. Those are some of the things that we need to address as we support the Bill. Mr. Deputy Speaker, Sir, we would want to see also the county governments using their respective logos in their correspondences. They should respect the coat of arms. Mr. Deputy Speaker, Sir, I beg to support.
Well, it appears like there are no more takers on the Floor. Sen. Khalwale, would you like to reply?
Mr. Deputy Speaker, Sir, I would like to thank all the 16 Senators who have spoken to this very important issue and specifically, Sen. Wamatangi who seconded the Bill, Sen. Hassan, Sen. Kembi-Gitura, Sen. Wangari, Sen. (Prof.) Kindiki, Sen. Murkomen, Sen. Mong’are, Sen. ole Ndiema, Sen. Nanjira, Sen. Mositet, Sen. Orengo, Sen. Kiraitu, Sen. Lonyangapuo, Sen. Ongoro, Sen. Kagwe and Sen. Elachi.
On a point of information, Mr. Deputy Speaker, Sir.
Sen. (Dr.) Khalwale, would you like to be informed?
Yes, Mr. Deputy Speaker, Sir. I would like my brother to inform me. After all, he is the one who seconded me.
Mr. Deputy Speaker, Sir, although I have another more substantive point of information that I would like to raise as Sen. (Dr.) Khalwale is answering or replying to the Motion, I also want to inform my good friend and colleague, Sen. (Dr.) Khalwale, that also in the suggestions which I had made, it is important that as we drop this misuse of the titles, especially that title of “His Excellency,” that we also include the title for the Deputy Governors, because if we do not then include it, then they could be the next “Your Excellencies.” So, that should also be considered, Sen. (Dr.) Khalwale, in that---
That is fine, but you can also bring it during the Committee of the Whole.
Thank you, Mr. Deputy Speaker, Sir. The information is well taken because, after all, if we have allowed the Deputy President to be called “His Excellency,” then similarly, we can refer to the Deputy Governor as “Governor;” and when you are qualifying it in the presence of the Governor himself, you say “The Deputy Governor of Kakamega County,” for example. Mr. Deputy Speaker, Sir, you also raised an important thing that has captured my imagination; namely that dropping of these titles will forever remind us that counties were intended to be units for creation of wealth, and not for creation of power. I could not agree more. Mr. Deputy Speaker, Sir, Sen. (Prof.) Kindiki suggested that we must deliberately use this opportunity to create a paradigm shift whereby we move away from the desire to worship titles and privilege. We should create commitment to service to the people of Kenya. He also pointed out that there is a serious thing taking place in the counties, where members of the county executive are currently carrying business cards referring to themselves as “Ministers.” Members of the County Assembly (MCAs) are not Ministers; we will see how to bring it in so that we give MCAs their deserved title. Mr. Deputy Speaker, Sir, Sen. Ongoro, in her contribution, captured my imagination when she talked about the exercise of power and said that there are two types of people in the exercise of power. She said that there are those who are missionaries and those who are mercenaries. She went on to say that the missionaries are the ones we are trying to create in this law. But the mercenaries are those ones who go into office and immediately they are caught up by what Lord Acton said; that, “power corrupts, and absolute power corrupts absolutely.” So, we are very committed to these amendments using those strong words. In fact, Mr. Deputy Speaker, Sir, it should not be lost to the faithful; the Muslims and Christians who are in this House and the lower House and to the general public that during the debate, hon. Kiraitu and hon. Murkomen became very biblical. They said things that the public should one day listen to as we change these titles because they
I think you need to add that he was quoting from the Gospel of Mark.
Mr. Deputy Speaker, Sir, I committed myself to science so early in school that I never read the Bible. So, you will forgive me.
It is the Bible that I was quoting from.
Thank you, Mr. Deputy Speaker, Sir, for the reminder. Mr. Deputy Speaker, Sir, those are the things that stood out. But let me bring out an issue which has been brought up this afternoon by two speakers; namely, Sen. Elachi and Sen. Kagwe. You have spoken to the issue of punishment; yes, it is provided for. I had hoped that we would use this debate to assess the appropriate punishment, because here we have simply suggested that if you breach this law, then you are liable to a fine not exceeding Kshs100,000 or a term in jail not exceeding one year. Maybe what we need in the Third Stage is to decide whether this punishment is too harsh or too lenient. If it is too lenient, then there is room for us to step it up. I will tell you of a personal chat I had with one of my former colleagues in the Tenth Parliament, who is currently a Governor near here in Nairobi. He told me: “What is Kshs100,000? This flag is so important that I will fly it for myself and my people. If it is Kshs100,000 that you want, I will give it to you every time I am stopped and arrested.”
Maybe we need to enhance this punishment a little bit and also remind the Governors that in paying this fine, they will not pay it from the public coffers of the county governments. They will be paying it from their own private pockets.
On a point of information, Mr. Deputy Speaker, Sir.
Sen. (Dr.) Khalwale, do you want to be informed?
Yes, Mr. Deputy Speaker, Sir.
Mr. Deputy Speaker, Sir, the Governors will also need to be reminded that they can be impeached under provisions of Chapter Six of the Constitution. If you read Chapter Six of the Constitution and the County Government Act, 2012, a Governor can be found guilty of a criminal offence.
Thank you, Mr. Deputy Speaker, Sir. That is why I always love it that in this House I have an opportunity to rub shoulders with lawyers. They always bring me back to the factual aspects of law. How I wish I would also be having an opportunity to be bringing them up to speed on issues of medicine, especially in human relations.
Order, Sen. (Dr.) Khalwale! I think it is fair to use fair terms. I do not think it is reasonable or fair to call Cabinet Secretaries who were vetted by Parliament and appointed by the President, “clerks” because they are not clerks. In my opinion, the record is always very important. This is going to the HANSARD.
Mr. Deputy Speaker, Sir, there are Cabinet Secretaries who feel threatened by Members of Parliament. Therefore, they cannot appear in public to precede Members of Parliament who vetted them. Similarly, at the county functions, Members of the County Executive should not precede Members of the County Assemblies (MCAs) because it is MCAs who vetted them to become servants of the people in their particular counties. Again, coming from this plenary, it has now become clear that the preferred order of precedence would be: 1. President; 2. Deputy President; 3. Speaker of either House of Parliament; and, 4. The Chief Justice. The reason we had to swop the Chief Justice and the Speakers of the two Houses of Parliament is because the Chief Justice is vetted by the Houses of Parliament. However, the Speaker is the Head of the Houses of Parliament and is elective. Number four would be the Chief Justice. He would be followed by a Senator, Governor, Member of the National Assembly and Cabinet Secretaries and, hot on the heels, the Attorney-General, Controller of Budget and the Speaker of the County Assembly; finally, a Member of the County Assembly. On the issue of titles, the commonsense of this House seems to suggest that the President should be referred to as His or Her Excellency as the case may be and similarly, the Deputy President should be referred to as His or Her Excellency as the case may be.
Does that also go with the flag? How do you separate that? That is on a light touch.
Mr. Deputy Speaker, Sir, we will find harmony in this. The reason the Deputy President is allowed to fly the flag is because of the nature of the Constitution. The Constitution does not contemplate a situation where, God forbid, in the absence of the President, the Deputy President would be subjected to an election. He automatically becomes the President. Therefore, as the Americans say; “he is a heartbeat away from the presidency.” So, you need not deny him what he would get through a heartbeat. God forbid. However, in the unlikely absence or total removal of the Speaker, we would have to vote before the Deputy Speaker becomes our Speaker. That is something under the Constitution. In all humility, hon. Senators have led by example. They are saying that they want to be referred to as Senators plainly. Governors, please, take this from us. Just accept to be called Governors. Members of the National Assemblies will remain hon. Members of the Assembly. I have been approached by Members of the National Assembly and, mark you; this Bill will go for concurrence to the National Assembly. They are thinking that in our proposal, the Bill reduces very many honourable public officers to the ground. They are saying that they would like to remain honourable Members of Parliament. However, instead of referring to MCAs as hounourable Members of the County Assemblies, we simply should go the American way and call them Assembly Men and Assembly Women. I will be proposing this amendment so that there is harmony in the bicameral structure of this House. Finally, but not least, I would like Members to guide me. Should I alter the punishment? Should we have Kshs100,000 or one year imprisonment term or both? That is something we will talk about during other levels of engagement so that we have something that can pass very quickly. With those very many remarks, I take this opportunity to thank you for the way you have guided us from the time we started. It is now my time and privilege to move.
Dr. Khalwale, without seeming to interrupt you, one contributor spoke about the Speaker of the County Assembly. I know that all this will come during the Third Reading. However, since you have taken us through the whole system, you did not mention the Speaker of the County Assemblies whom I heard you mention at the beginning of your contributions.
Mr. Deputy Speaker, Sir, thank you so much for reminding me. I know that Speakers of County Assemblies are also watching these proceedings. It is also true that the common sense of this House dictates that the Speakers of the County Assemblies, whereas they will not be called the Right Hon, will be called Honourable Speakers of the County Assemblies. They will be allowed to carry that title.
Thank you, Sen. (Dr.) Khalwale. As you know, this is a Bill and does not behoove me to rule whether it is a county matter. That is addressed under Standing Order No.69. On the request of Sen. (Dr.) Khalwale who has moved the Bill, I order that the putting of the Question be deferred to Wednesday, 20th November, 2013 in the afternoon.
Next Order! We moved from Order No.7 and came to Order No.8. I told you that the House Rules and Business Committee (RBC) had indicated that we would only handle two matters today. That is the Dr. Khalwale Bill that has come to a conclusion and Order No.12. We will by-pass Order Nos.9, 10 and 11 and proceed straight to Order No.12, the Motion that will be moved by the Senate Majority Leader.
Mr. Deputy Speaker, Sir, as the Chairman of the Committee on Devolved Governments, I beg to move:- THAT, pursuant to Standing Order Nos. 28(4), 31(1) and 50(b), and notwithstanding the provisions of Standing Order No.30, following the application for transfer of devolved functions by County Governments and the need for Senators to participate in County hearings on the matter, the Senate do now adjourn until Tuesday, 19th November, 2013. Last week, the Speaker made a Communication to the House which was important. He said that pursuant to petitions received from leaders of the county governments; this House should adjourn so as to give an opportunity to Senators to participate in this exercise. The Constitution, Schedule 6 Paragraph 15, provides that Parliament will create a legislation that is meant to provide for a framework for phased out transfer of functions for a period of not more than three years. There has been debate for a long time on whether we should follow these provisions and whether the transfer of functions should take three years or more. Will this be called the phased out of functions or a “big bang” where functions are devolved at once to the counties? It is the duty of the Senate to make
Mr. Deputy Speaker, Sir, I rise to second this Motion and support my colleague in what he has said. This Motion has come at the right moment. If there was a time the Senate ought to demonstrate that we are in charge of county governments and the assemblies under Article 96, this would be the time because the Governors and their governments would come to the Senate to represent to us, as Senators, the reason as to why we should defend them in so far as the transfer of functions is concerned. Although it appears that this is late, it is an opportunity for us, as the Senate, to also give some sort of marks to the counties in what they have done so far. Mr. Deputy Speaker, Sir, from what I have listened to in some of the Committees, I am convinced that in some cases, the TA acted without having the necessary information about the capacity of these counties to carry out some of these functions. I support Sen. Murkomen when he talks about the health functions. We need to forestall what appears to be an industrial strike by the health sector because we need to give them the confidence that our counties can manage the health sector. If we cannot manage the health sector, there is no point in building the cities and the nice looking buildings when our people cannot get good medical care. It is also my view that in assessing the capacity of these counties, we will be able as Senate to check and move to the other functions which are delaying devolution in terms of transfer of assets. We need to hear from the Governors why the assets cannot be transferred and whether they have done a complete audit. In a place like Makueni, I am told that it appears some assets cannot be found. For us, as Senate, this is an opportunity we must use to find out whether these assets are available. Mr. Deputy Speaker, Sir, you are also aware, from the information that has come to us, as the Senate, that there is this nice English term known as “unbundling of functions”. If you unbundle these functions, they will be much more than they are. This is something that we need to investigate. We will be going through the unbundling of these functions so that we, as the Senate, can speak to this nation with one voice and say that we are convinced that we have made progress in devolution. Therefore, we need to unbundle these functions. There have been disputes in Nandi and Makueni counties. For example, with regard to the management of forests, we have been quarrelling with the Kenya Forest Service (KFS) as to why they are logging forests as if Jesus is
Mr. Deputy Speaker, Sir, I rise to support this Motion. From the very outset, I would like to announce to the people of Kakamega County, Busia County, Vihiga County and Bungoma County that their sessions will not be there from tomorrow, because we have been unable to raise quorum. Sen. Wako is bereaved. Sen. Khaniri is out of the country on senatorial business. So, whereas this will go on across the whole country, in our area this will not be there until Monday 26th. Mr. Deputy Speaker, Sir, I had an opportunity yesterday to tour Mombasa County. My daughter is sitting for Kenya Certificate of Primary Education (KCPE) examinations today. So, I was there yesterday to do rehearsal with her, so that she is not
Order, Senator! Your time is up!
Mr. Deputy Speaker, Sir, I beg to support.
Thank you, Mr. Deputy Speaker, Sir. I also rise to support this Motion. I also support the sentiments expressed by the Senator for Kakamega County. Indeed, the Constitution in the Fifth Schedule has clear timelines. Mr. Deputy Speaker, Sir, we know very well that the Governors, through the Council of Governors, have been requesting for some functions to be transferred to county levels. In this House, we have always reminded the Governors that the Constitution is very clear in terms of how to unbundle the functions. Each county is
Mr. Deputy Speaker, Sir, I rise to support this Motion. Mr. Deputy Speaker, Sir, as my fellow colleagues were contributing here in support of this Motion, I was remembering and replaying in my mind the scenes of Uhuru Park in 2010, on the day when the Constitution was promulgated. The mood was just simply alive and explosive. The whole country was expectant and every Kenyan was so excited. Finally, there was hope. In one way or the other, we were able to get a new Constitution. All this excitement and the expectations that the Kenyans had on that day, as they watched the Constitution being signed and promulgated, was because of the promises of devolution.
Thank you. It appears nobody else is taking the Floor and the Mover is not here to reply. He does not have to reply. Before I put the Question, let me state that under Standing Order No.69, this is not a Motion affecting counties. It may mention the word “county” as it does, indeed, because that is what we are going to do as a Motion of Adjournment, but it has nothing to do with counties. So, I will put the Question and each of you here has a vote.
Order, hon. Senators! We have now come to the end of the proceedings for today having approved the Motion for Adjournment. Therefore, the House stands adjourned until Tuesday, 19th November, 2013, at 2.30 p.m. The Senate rose at 4.52 p.m.