Order, Senators! I wish to welcome you to today’s Special Sitting. We shall continue from where we left yesterday, guided by today’s Order Paper, the programme for the impeachment proceedings and the rules of procedure, which we circulated yesterday. In accordance with the program, we shall now proceed with the presentation of the case of the governor, including presentation of his witnesses, if any. As I invite the governor, let me emphasize that we need to adhere to the stipulated timelines and urge all of us to abide by the rule of relevance. I appreciate that we did well yesterday and it is my expectation that, that will continue even today. Counsel for the governor, I notice that your other learned friends are not in the House; maybe you know where they are.
Mr. Speaker, Sir, before we begin our presentation, we have an application to make under---
Order, Counsel! I am yet to formally invite you. That was just on a light touch, for you to welcome your colleagues. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
On a point of order, Mr. Speaker, Sir. I am concerned that the primary accused person, the Governor of Nyeri County, is missing from the proceedings. Maybe you should give directions as to whether this matter can proceed in his absence, because I have not heard his lawyer give an excuse or reason the governor is missing from these proceedings. Under the Rules and Act it is the governor who ideally in his name that the defence is proceeding.
All is true, including the fact that we have not heard Counsel stating whichever way to proceed. Let us hear from Counsel and see whether he qualifies on what you have said. Proceed, counsel.
Good morning, Mr. Speaker, Sir. The Governor is on his way here. We apologise on his late coming but in terms of the presentation, we have prepared to take you through the response in not more than 30 minutes. Then, there are witnesses from the county government who will be testifying in our defence. More importantly, we wanted to make an oral application under Standing Order No.1. It is important in helping up our defence.
You will proceed, counsel. Just to dispose the point of order raised by Sen. Mutula Kilonzo Jnr. One, he is on the way. Two, we have provided that, later the advocate or he can proceed. You may proceed, counsel.
Thank you very much, Mr. Speaker, Sir. We are making an oral application for the summoning of the Controller of Budget to testify on some of the issues with respect to the operations of the IFMIS system and the report which the Controller of Budget is alleged to have authored. Secondly, we will be requesting to play certain video clips as part of our evidence. These video clips are very important, and therefore, we will be asking for those facilities to be provided for and the permission to play those video clips. They are not many. Thirdly, there is additional evidence. Under the requirements of natural justice, the allegations which were made against the Governor, we have tried as much as possible to provide the information in terms of the responses and we have an additional bundle of documents. We have made enough copies; 40, which we will be requesting because they contain important documentation that the Senate would want to look at before they finally decide this matter. Lastly, we have a certificate of compliance from the Kenya Revenue Authority (KRA). We have made 80 copies which we will be requesting for it also to be allowed as evidence outside the timelines which were set; and a last witness statement of the person who will be producing the video clips, one Jack Kabiru which again we have submitted late. But again, we have made adequate copies. So, all these documents are important for the Governor to fully explain his defence before this Senate. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Proceed, Sen. Mutula Kilonzo Jnr.
Mr. Speaker, Sir, we were wondering whether we can assist you in making a determination by raising some of the issues before you, if you allow. I thought that in normal practice, the witnesses would lay a basis for playing the video since after the evidence is laid before you, that an application of playing the video can then be made. Similarly, the one of the Controller of Budget would be made once they have established the reasons they should be summoned – so that you are in a position to make that determination. That application made in advance – Mr. Speaker, Sir, you do not know what the video would be. So, I suggest that you direct that the evidence be laid and an application be made at an appropriate time.
What is it, Sen. (Dr.) Khalwale?
On a point of order, Mr. Speaker, Sir. In this House, we have the rule of admissibility of documents. Usually, the Speaker is given an opportunity to make a determination before he allows evidence by way of documents to be tabled. I do not know how you will handle the issue of the video; that, you admit it before you have an idea what the video contains. Given that these proceedings are taking place in public, you might have to be careful in making a decision because once the damage is done – the video is played – even if you say the video is no longer admissible, it obviously affects us negatively. I am not saying it would be a video which will not be admissible but I am raising that concern.
Sen. (Dr.) Khalwale’s intervention is the layman’s interpretation of what the two lawyers, Sen. Wetangula and Sen. Mutula Kilonzo Jnr. have stated. Proceed, Sen. Wangari.
Thank you, Mr. Speaker, Sir. I also note that in our rules of procedure for this hearing; No.9, we have the leeway. “The Senate may at the request of a county assembly or the governor, invite or summon any person to appear and give evidence before the Senate.” My thinking from what Sen. Mutula Kilonzo Jnr. has raised is that some of these issues were raised at the opening statement. The basis of inviting, say, the Controller of Budget was raised by the counsel as they made their opening statement. I think this application is quite in order. Of course the issue of video clip, I would also support Sen. Mutula Kilonzo Jnr. that we first know exactly the content of the video clip is before the application is made.
Let us hear from the counsel of the county assembly.
Order, Members, this is directed to me. I do not know why Members think I am not competent enough.
The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Speaker, Sir, hon. Members, on behalf of the county assembly I respond to the application on the issue of summoning the office of the Controller of Budget. That is a matter that is entirely at your discretion. As Sen. Mutula Kilonzo Jnr. has stated, there has to be a basis laid for that invitation. But that is a matter that is entirely within the Senate’s discretion. If it determines that, that witness is necessary to complete its investigations in the matter, then that is a discretion that the House can exercise even without referring to the parties. But on the issue of additional evidence by way of addition of witness statements and additional video clips, we strongly object to their production at this stage mainly because as Mr. Speaker commented as we started that this is quasi-judicial process that should avail a fair hearing to both parties. We prepared our case and presentation yesterday, based on the material that was given to us by the Governor and the documents filed together with the submissions made. If you consider our presentations yesterday, we were making constant reference to their responses so that an additional inclusion of evidence at this stage, would be very prejudicial to the County Assembly having already completed our presentation. We would have wanted our witnesses to look at that evidence before we finalise our presentation. We are not aware of what is sought to be added into these proceedings and the effect of admitting any further evidence would be to reopen the proceedings. I can remember very clearly yesterday when I wanted to refer to a report that was not in our papers, there was strong objection both from the House and the Governor’s side. On that basis, we restrained ourselves and restricted our submissions on the material that was before the House and what we had filed. It cannot, therefore, be fair that today and now, then the other side is given leeway to reconfigure their case based on the submissions made yesterday, so that they can plug in any gaps that arose and, therefore, fashion a response that is an afterthought and is founded on the presentation that we made yesterday. I think fair play will demand that what was submitted as pleadings and evidence guide these proceedings and that each party abides by the rules. I can see the rules were very clear that any witnesses, statements and evidence ought to have been filed with the Clerk of the Senate by 12th September, 2016 at noon. I beg to oppose that application and pray that the proceedings proceed based on the evidence and material that we have on the Governor’s side. That is all.
Hon. Members, I wish to give the following directions. One, is that already as a House, we had invited the Controller of Budget and the Auditor-General. So, they will be available to the parties. On the issues of new documents and video clips, we gave tight timelines which were to be observed. For them to introduce new documents after one party has already presented its case will compromise the hearing.
I direct that the application for the new documentation and video clips will not be admitted. Counsel for Governor, maybe if you had made that application yesterday, we would have The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Speaker, Sir, thank you very much. I will proceed with the Governor’s defence. The bottom line in these proceedings is that it is important to underline the fact that the burden of proof is on the County Assembly to prove these allegations. It is not the Governor to prove his fault If you look at the material placed before this Senate, there is no evidence whatsoever. The weight of the evidence submitted is very weak. On the face value of this evidence, it is our presentation that even without looking at any other issues including our defense, this impeachment charges should be found to have been unsubstantiated. Why do I say this? I say so because Standing Order No.1 of the Nyeri County Assembly, which is similar to Standing Order No.1 of this House, provides that whenever an issue is not very clear or expressly provided in the Standing Orders. The Speaker of the County is required to make a ruling. That ruling is supposed to be informed by the traditions of the Constitution and legislation, and in the case of the County Assembly, practice at the National Assembly and the Senate, in this case, Parliament. If it is not very clear, in accordance with traditions in other parliaments in the Commonwealth. There is an issue which we think is very material to the impeachment proceedings. That is, on the right of the Governor to be represented by counsel. We have raised it as part of our response: The right of the Governor to be represented by the counsel at the County Assembly level. Indeed, I confirm that the Governor was summoned to appear before the County Assembly. I confirm that that letter is the one that was read by the County Assembly yesterday and is in our bundle. However, the issue here is not about the Governor appearing but about the Governor electing to be represented by counsel. So, that is really the issue that we are looking at here. Our position is fortified by a legal framework known as the Fair Administrative Action Act which we cannot really create exception from. We have no option but to comply. The Fair Administrative Action Act provides the framework for according everyone some semblance of justice. I will quote Section 4 and 5 of the provisions of the Fair Administrative Action Act but first of all, this is a legislation that applies to both judicial and
interventions. To the extent of the quasi-judicial, ---
I will proceed. Section 4 and 5 of the provisions of the Fair Administrative Action Act specifically provide that any person on whom an adverse decision is supposed to be made, is supposed to be given documentary evidence which will be used against him in that particular decision. In these impeachment proceedings, when the County Assembly notified the Governor in accordance with that letter – I am making reference to Volume 4 page 4 of the Governor’s bundle where there is a very important letter dated 26th August, 2016 and addressed to the Governor. The third paragraph is where the County Assembly says:- “In accordance with the principle of natural justice, you shall be called upon to answer to the issues which have been raised in the debate.” The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
On a point of order, Mr. Speaker, Sir.
What is it, Sen. (Dr.) Khalwale.
Mr. Speaker, Sir, I did not want to interrupt the Counsel. However, he has made a point that seems to be completely confusing the House. If you want to lease a building and there are four or five people who are ready to offer such a building, with your assertion that a lease is not an item of procurement, how then will you make a determination out of these five without going through the Public Procurement and Disposal Act procedure? Could you clarify?
Mr. Speaker, Sir, I will clarify that.
Hoja ya Nidhamu, Bw. Spika.
What is it, Sen. Boy Juma Boy?
Bw. Spika, ningeomba umwambie mwanasheria huyu kuwa anapoangazia stakabadhi yoyote ile, atueleze ni ipi na ni ukurasa gani kwa sababu tuna stakabadhi nyingi hapa. Asipotuelekeza tutabaki kwa mataa na tunaanza kutapakatapaka hapa na pale kwa sababu hizi stakabadhi ni nyinyi.
Amekusikia, lakini sijui ni “mataa” gani unazungumzia kwa maana mataa yetu yako hapa mbele.
What is it, Sen. Murkomen?
Mr. Speaker, Sir, I have noted questions similar to the ones Sen. (Dr.) Khalwale has raised. However, if we have to go systematically, we have to make clarifications. I have a few clarifications that I have also noted which means that we will not be able to flow as we did yesterday. If we can do the way we did yesterday where we note all the questions, especially those related to the substance of his presentation, then we will have an opportunity to ask for clarification for all of them. However, for procedure, I agree with Sen. Boy Juma Boy that when he changes, he should tell us the volume just as the County Assembly did.
Sen. Murkomen, the latter had been disposed of and is a small point. Sometimes Counsel seems to forget. We remind him so that the Members can The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
On a point of order, Mr. Speaker, Sir. I thought the person present is the Auditor-General and not the Controller of Budget.
I was told. You know my eyes are not necessarily physical.
Your other eyes are cheating you.
Depending on what my other eyes relate to me. Apparently, there is some shortsightedness. The images are not properly reflecting on the retina. It is confirmed that the Auditor-General is definitely present.
Mr. Speaker, Sir, thank you for making that clarification. Mr. Speaker, Sir, I am making reference to Volume II of the Governor’s bundle, from Page 37 to Page 62. Our presentation is that this was the only building available at the time and procedures were followed. The person responsible for procurement in the county is a witness. Some of the evidence which leads to that conclusion is contained in this bundle from Page 37 to Page 62. The provisions are very clear. The upshot of this documentation is that the County Government of Nyeri engaged a national Government valuer in accordance with national Government procedures for leasing of buildings. Everything in terms of prudence, costing, communication and space is contained in this correspondence. At the end of the process, a lease was negotiated and signed. The final document there at Page 54 up to Page 62 is the formal lease which was executed for this particular building. So, our presentation is that all the procedures for leasing of Government building were followed in accordance with the laid down Government regulations. Therefore, no such allegation can stand and in any event, there is no threshold with the Governor at all. There is nothing which they say the Governor did wrong in this leasing. Did the Governor authorise the lease of his own building? No. Did the Governor direct payment of this money without following the procedures? No. Were any procedures relating to leasing of Government buildings followed? Yes. So, what is it that you are impeaching the Governor for? That is the nexus. We are saying that there is nothing which the Governor did. So, we submit that the County Government of Nyeri did follow procedures as contained in the applicable regulations. There is a charge at Page 13 Volume II of the bundle. The charge is lack of prudence in refurbishment of buildings. Again, it is important to emphasise that whether it is Public-Private Partnership (PPP) procurement or any other method which is authorised, a county government is authorised to get services. There are structures of accountability at the county level. There is the County Tender Committee and the County PPP Unit. All those structures have been established The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
What is it Sen. Orengo?
On a point of order, Mr. Speaker, Sir. I am just concerned about the utterances by counsel when he makes a blanket accusation that most county governments have not… without any evidence before this Senate. He may have allowance to say a lot of things but he should not cast aspersions on other counties. I just want to stand guided on this particular issue that he is treading on very dangerous waters. Unless he has evidence, he can show us.
What is it Sen. Murkomen?
Actually Mr. Speaker, Sir, I was following the counsel on that issue. Following your initial ruling on non-admissibility of evidence, is it in order for me to say whereas the ruling was referring to evidence that is given before the presentation, that if there is any assertion in between the presentation of the counsel, there should be leeway in your ruling to introduce that evidence based on the statements that are made in between if a member requests or if you request it yourself or if at the introduction of a witness and there is a requirement by this The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
What Sen. Orengo said was different from yours. He said you should not make blanket statements unless you substantiate. We have been discouraging substantiating. We also made the comment earlier that unless you put a case that will require that kind of substantiation, you should just not go ahead to produce evidence without the need for it. So, when you get challenged as Sen. Orengo has done, or if you are making a point that requires that kind of substantiation, you can adduce evidence to that effect limited to that issue. Sen. Mutula Kilonzo Jnr., this thing seems to elicit a lot of interest.
Mr. Speaker, Sir, maybe you should direct us. Some of those things that are extraneous to this matters are dangerous because; if somebody else is stealing in Turkana County, does that make stealing legal? You know those statements are extraneous to this proceeding. This is because if it is another county we will ask them why they set up or why they did not set up and why they have not been asked those questions. However, in the case of Nyeri, we want to know why they did not comply with the provision of law.
That is why we had agreed collectively that we should minimize points of order because those are issues that the other Counsel may wish to challenge after the submission of the Governor’s side. So, let us leave it there. I hope you see there is a structural problem. Proceed Counsel.
Thank you, Mr. Speaker, Sir. I stand guided. Our submission on that issue is that there is nothing gross there. Indeed, what we are witnessing is a challenge and the CEC Finance will testify on the efforts that he has been making to conceive this Budget and Economic Forum and what are the mechanisms which have existed. The County Assembly says that the reason for not forming this forum has directly contributed to the budget paralysis that we have at the County Government. However, we are saying that the previous two budgets were smoothly passed and there was consultation with members of the public. The platforms for consultation were there. The County Assembly and the County Executive worked very well and passed those budgets harmoniously. So what are these issues that---
You have one hour or less than an hour to go, Counsel, and do consider the issue of the Auditor-General.
Thank you, Mr. Speaker, Sir. So, what are these additional issues that have led to suddenly that being an issue that you have not formed an Economic Forum? Therefore, it is the only reason why you have a paralysis? What we are saying is that the assertion was wrong. That takes me to the next presentation that is on page 19 of our document. The CEC Finance will testify of the difficulties which he has encountered explaining the reason why we have not formed this Budget Economic Forum. Page 19 of the Governor’s bundle Volume II shows you the real reason why we are having a budget paralysis at the Nyeri County and not because we have not formed the Budget and Economic Forum. This is the reason. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
It is so ordered.
Mr. Speaker, Sir, with your permission can we proceed?
Mr. Speaker, Sir, for the record, the statement of the witness is contained in the Governor’s documents Volume 1. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Thank you Mr. Charles Githua Githinji. Mr. Charles Githua Githinji, what portfolio do you hold in the County Government of Nyeri?
Mr. Speaker, Sir, I am the Acting County Executive Committee (CEC) member for Finance and Economic Planning and substantively in health services.
How long have you been acting as a CEC for Finance and Economic Planning?
Mr. Speaker, Sir, one year and one month.
So, can you be in a position where you can say you can authoritatively be aware of all the financial happenings in Nyeri County? D
Mr. Speaker, Sir, yes I am.
Did you write this statement that is before this Senate dated 9th September, 2016?
Mr. Speaker, Sir; yes, I did.
Do you wish to produce this statement as evidence?
Mr. Speaker, Sir, yes.
Is there any other thing that you want to tell this Senate by way of clarification?
Counsel, you only told us about the Governor’s Documents Volume 1. Where is the statement within it?
Mr. Speaker, Sir, unfortunately, it was not paginated by the clerk. However, after a separator, there is a document known as Governor Nderitu Gachagua’s witness statement and affidavit which is paginated on top.
At page one?
Mr. Speaker, Sir, yes. After the separator there is a document which is paginated.
Members, it is Governor’s documents Volume 1, the last document.
Mr. Speaker, Sir, after the separator, there is a Governor’s Nderitu Gachagua’s witness statement and affidavits. Mr. Speaker, Sir, with your permission, I now wish to proceed.
Dr. Charles Githua Githinji, what are you qualifications?
Mr. Speaker, Sir, I hold a degree in Pharmacy from the University of Nairobi, Master of Science in Medical Physiology from University of Nairobi and Doctor of Philosophy of the University of Nairobi.
Thank you. Now, there are allegations which we need your comments on. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Thank you, Mr. Speaker, Sir. This allegation is not correct in that the said amount in the Annual Implementation Status Report for the Financial Year 2015/2016, totaling to Kshs1,161,269,008 is what we, as a County Treasury, produced in the report that we tabled in the County Assembly.
Hold on. Is this the report?
Mr. Speaker, Sir, yes this is the report.
Mr. Speaker, Sir, I am referring to the report in Volume III on page 4 of the County Assembly documents.
Mr. Speaker, Sir, in this report, they indicated that we had spent a total of Kshs1,161,269,008. We did that disclosure and it is in that report. In this big document from the Governor---
You mean Volume IV of the Governor’s bundle?
Yes, on page 12 all the way to page 19.
Mr. Speaker, Sir, the Governor’s bundle Volume IV.
Mr. Speaker, Sir, they have produced Vote Book Status Report for the Financial Year July 2015 to June 2016.
What is a Vote Book?
Mr. Speaker, Sir, the Vote Book is the record of what we have transacted. It records all the transactions that we have paid from the County Treasury. This Vote Book is produced automatically from the IFMIS system meaning we cannot alter it. On page 19, column four from the end is cumulative expenditure and down there is the total of the same amount.
Which is it?
Mr. Speaker, Sir, Khs1,161,269,008.755. This is what we spent on development vote. The amount that is indicated here in this allegation that the total project expenditure is Kshs808,292,095, we did not give this in our report. It is from the difference of the two figures that you get Kshs352,976,913 of which the allegation is that we are unable to account for. If you add up the two figures, you will come up with what we disclosed.
So you disclosed a global figure?
Yes, we did.
Then you are saying that the other figure is part of the global figure?
Exactly. This computation of Kshs808 million was done by the County Assembly. The County Assembly summed up the votes in the development budget that went directly to capital projects. I must mention that when doing this reporting, we received a circular from the Controller of Budget with a format which we were supposed to abide by when reporting on capital projects that we are doing in the wards.
So, you are saying this report on Volume III, page 4 of the County Assembly document is based on the format of the Controller of Budget?
Yes, Mr. Speaker, Sir; it was Kshs808 million. That is the section they summed up and came up with Kshs808 million. In the development budget, what The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Can you give an example of this money?
Mr. Speaker, Sir, an example is fueling the vehicles. That is in the development budget of which we have given tabulation in each volume.
Do you mean the County Assembly documents?
Mr. Speaker, Sir, in our response we tabulated those votes that do not go directly to the development projects as per the format of the Controller of Budget, but yet it is still part of the development vote. I have said we had included Kshs100 million as budgetary reserves and it is in the development budget to pay the debts of the previous year. That could not be captured as a project.
Where is that expenditure of Kshs100 million if I show you the IFMIS extract for the record?
Mr. Speaker, Sir, it is in Volume II from the Governor’s bundle, page 3 and 4.
You can give one example so that we move on.
On page 2, under lands, housing and physical planning, there is the purchase of Information, Communication Technology (ICT) networking and communication equipment; Kshs49,999. That could not be associated directly with the capital project. However, it is part of the development budget. We were able to pick all the votes that are on page 2 and 3. The allegation is that we are not able to account for Kshs352,976,913.
Have you engaged the county assembly on this issue, to explain this discrepancy? Have they written to you in a correspondence, called you or visited your office?
No. They have not yet called us to explain these figures.
Thank you very much. There is an additional allegation concerning a huge sum of money of about Kshs800 million.
Again, this allegation is not correct.
What does the allegation say?
The allegation is that according to the monthly Exchequer release report from the Office of the Controller of Budget, dated 11th July, 2016, the total Exchequer issue as at 30th June, 2016 amounted to Kshs5,687,473,119, against what the county treasury reported in the annual budget implementation status report for the same year totaling Kshs4,840,770,218. Therefore, that is a difference of Kshs846,702,900.
Explain the Kshs846,702,900.
First and foremost, these two reports should not and cannot be compared because they are totally different.
Why do you say so?
The monthly Exchequer release report from the Controller of Budget for the whole year totals Kshs5.6 billion. These are the amounts of money that the Controller of Budget has given the county treasury authority to withdraw from CRF account?
What is CRF account? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
This is the County Revenue Fund (CRF) account in the Central Bank of Kenya. This account receives money from the National Treasury; the equitable share, Level 5 conditional grant, Danish International Development Agency (DANIDA) money and other conditional grants, together with local revenue. So, it is always higher than what is raised by the National Treasury. We got the authority to withdraw this amount from the CRF account. That is what the Controller of Budget calls ‘the Exchequer release.’ Regarding the budget implementation report from the county treasury, I want to draw your attention to Kshs4,840,770,218. This is the figure that was picked by the assembly, and we have a tabulation in the report that I will refer to shortly. This is the money that is the equitable share, Level 5 grants and DANIDA money, totaling to the exact figure, without including the local revenue and other sources of revenue to the CRF. This was the National Treasury release directly to CRF and so, it cannot be compared. It is part of the information that we are building up into the report that we have given.
Is the county government undergoing audit now?
The audit is ongoing and will be complete by the end of September.
Have you engaged the county assembly on this issue?
No. They have not called us to clarify this.
Let us go to the next issue. The next allegation is that you spent money at source.
That is not true.
Why do you say it is not true?
This is the first quarter of the Financial Year 2015/2016. The allegation is that the Controller of Budget, during the first quarter of Financial Year 2015/2016, authorized for withdrawal of a sum of Kshs545 million from the CRF to the operations accounts.
What is the operations account?
According to the Public Finance Management Act, all revenue for the county government is received and channeled through the CRF in the Central Bank of Kenya. For it to be utilised, we get authority of the Controller of budget through requisitions. When authority is granted, our requisition is that we want a certain amount of money to go to the Central Bank of Kenya account that is operational. There is a recurrent expenditure account and the development expenditure account for the executive. There are also both recurrent and development expenditure accounts for the county assembly. We requisition money to get into those accounts, so that we can use it for payment. The Controller of Budget authorized us to spend Kshs545 million. However, looking at our account, we seem to have spent Kshs615 million. So, there is an excess that we have been able to utilize, but she had not authorized. She can only conclude and suggest that we used money at source. This is not true in that the report that the Controller of Budget is using to conclude that we have spent Kshs615 million, is generated from the Integrated Financial Management Information System (IFMIS). However, in our process of paying we used both IFMIS as the payment processing platform, which is interfaced or hyphenated with internet banking.
What do you mean by ‘interfaced’? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Interface means that the two are connected. The IFMIS is a payment processing module, but the actual movement of money is effected at internet banking. When we use IFMIS information, anytime we process, even though we have not made actual movement of money to pay, it will be seen as if we have paid, yet we have not. Therefore, depending on IFMIS information, we have used more than what has been authorized to be paid. It is only a process waiting for more money to be authorized for us to pay. We have a system problem that needs to be rectified for all the counties, so that there is a cut-off point at the end of a financial year. We should close the system so that we can generate actual amounts spent.
Have you raised this issue with the Controller of Budget? You must have seen her report.
Yes. We have raised it with her and she confirms to have looked at it. In this year’s annual report she will rectify that.
Have you had a forum to discuss this issue with the assembly to clarify this? The Chair of the Public Accounts Committee (PAC) was here yesterday and said some things that you need to confirm.
This is the end of the Financial Year 2015/2016 – early July - and we have not been called to explain this.
Has this issue been audited?
It is undergoing auditing as I speak.
The Hon. Senators want to know why there is a stalemate in the budgetary making process. You appear to have had an issue with the county assembly, and you are the County Executive Committee (CEC) Member for Finance. Why would you have a stalemate with the assembly on the budget making process?
First, it has nothing to do with keeping timelines.
Why do you say so?
The county treasury by law is required to submit budget estimates to the assembly by 30th April every year. We submitted the budget estimates on 29th April, one day before the deadline. The assembly has up to 30th June to have discussed the budget, with the view of approving it with or without amendments. The approved budget was brought to my office on 5th July, five days late. When I looked at it, it was not a budget coming from the estimates we had given. It was totally different in terms of amendments. It was way beyond what was authorized in law and it was totally un-implementable.
What do you mean by “totally un-implementable”?
I could see variations effected in the budget affecting non- discretionary votes were too much that we could not implement the budget, or use it to service the county services.
Be specific; what is a non-discretionary vote
Mr. Speaker, Sir, for example, is the lighting system that we have in Nyeri County where we pay a monthly bill of Kshs6 million. We had budgeted Kshs80million towards paying the electricity bill. However, it was slashed by half. We were given Kshs40million.
It was slashed from Kshs80 million to Kshs40 million?
Yes. This amount is not enough for us to pay the electricity bill for the entire year. Failure to pay which, we may be plunged into total darkness. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
What happened then?
Mr. Speaker, Sir, as the CEC Finance, I saw that the budget was un-implementable and I wrote a memorandum of objection to the County Assembly. This memorandum is on page 64 of Governor’s bundle Volume II.
What did you write?
Memorandum of objection to the changes effected.
Since it is a long document, what were you saying in a summary? When is it dated?
It is dated 11th, July, 2016.
Just to recollect, when did you say the budget was received?
I received the budget on 5th July, 2016. I did the memorandum on 11th July, 2016. I highlighted the fact that in approving the budget the County Assembly had not done it within the law. I pointed out to them that there were votes which were affected, but they should not have been affected to that extent because we could not have implemented them. I indicated those votes. I told them even if they wanted to vary, the PFM Act 2015 is very clear on it. It says you should not vary with more than 1 per cent of the vote. I indicated why I felt strongly that there was need for the County Assembly to re-look into the budget with a view of approving it within the provisions of the law.
What powers were you exercising under that memorandum? Did you have any title powers?
I had not been given opportunity to go and discuss this budget with the County Assembly---
Do you mean they approved the budget without discussing it with you?
Yes, I was only invited on the last day on 30th June, 2016, to go and give the input regarding the budget policy of the County Government. The same day in the afternoon, the report was tabled in the County Assembly and adopted. I felt I did not have time to go and explain the need to abide with our estimates.
Has the County Assembly ever responded to---
Order, Counsel! You have five minutes to go and you are not done with this witness. You still have two others; that is the Controller of Budget and the Auditor-General.
Mr. Speaker, Sir, we are begging that we be given more time because we had more witnesses.
When did you start begging?
Mr. Speaker, Sir, we are begging now. If you look at the evidence, it is about the impeachment of the Governor. The evidence, as put, is “gross violation and nexus”. It is important that we get this evidence out so that---
I agree Counsel, but you must honour your words. You said you were just going to make your submission within 30 minutes. One and half hours would have comfortably gone to witnesses.
Mr. Speaker, Sir, I apologise. We have done previous impeachments--- The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
I reminded you after one hour. I will allow you 30 more minutes which will take care of all the witnesses.
Mr. Speaker, Sir, I appreciate. Have they ever responded to that letter?
They only wrote back to say that the memorandum I wrote had no legal basis.
You were, therefore, unable to prepare the Appropriation Bill?
No, the Appropriation Bill was based on the Approved Budget. That budget as approved by the County Assembly as I had indicted was not implementable because it was passed without regard to the law. Therefore, we could not progress and have it implemented. .
In your view, what should be done to unlock this budget stalemate? As the CEC Finance, you have a budget stalemate. The County is operating on Vote on Account and we do not have money for development. What do you think should be done? Should we impeach the Governor?
This should not be the reason to impeach the Governor. There are mechanisms to unlock the stalemate. We copied the same memorandum of objection to the Controller of Budget, the Commission for Revenue Allocation (CRA) and Intergovernmental Budget and Economic Council (IBEC). I visited the Controller of Budget’s office, we discussed and that is how we were allowed by her authority to access Vote on Account.
Finally, you need to solve the stalemate?
We held discussion with her and she is willing to break the stalemate. In fact, she has called both the County Assembly representative, my two chief officers and I, this Friday to attempt to break the stalemate.
Thank you very much. Let me go to the last issue, the County Budget and Economic Forum. The issue here is very simple. Have you set up this forum? If not, what are the reasons you have not done so?
I have been acting as the CEC finance from August 1st 2015. I am aware that this is an issue that we discussed at the County Executive Committee level. It had been initiated by the CEC whom I replaced. However, I am informed and it is true that when the letters were sent to various organizations that need to be represented in the forum, there has been an issue getting the persons to represent those bodies. This has delayed the process. However, we are still pursuing it.
what do you mean by “still pursuing it”? Are you working on it now?
Yes, we have written again to those bodies that have not---
when do you intend to finish this process since we do not want to run back and forth again?
In the most practicable time, probably I will give it in the next three months or so.
Okay. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Counsel for County Assembly, you may now cross-examine the witness.
Dr. Charles Githinji, you have said that one of the issues that resulted to a budget stalemate was material deviation from the budget.
That could mean that what you---
Counsel for County Assembly, just trying to manage time, could you do your bit in 10 minutes?
I will try the best I can because he has referred to a lot of material. Your contention is that the Assembly mutilated the budget and removed some of the non- discretionary items which you said made it impossible to operate. Is it not so?
In fact, you gave an example of electricity.
Go with me to County Assembly Documents Volume III at Page 607. Do you confirm that is your memorandum?
Yes it is.
At Page 609, you also say that there was a reduction in the Department of Health. You have also talked about electricity, is it not so?
Now go with me to the schedules or summaries. Let me get you the page. Let us start with Page 627 of the same document. You can see No.8 is Health Services and Sanitation.
Can you confirm to this Senate very quickly that in your Column for Deviation, right from the start to the end, it is indicated o?
The indication being that there was no deviation from your submitted budget to the approved budget?
Yes, in health.
So, to that extent, your memorandum is misleading on the factual position at Paragraph 2.3. Now let us go to electricity on Page 635, where you said that you budgeted to pay electricity but the Assembly is frustrating you. That is at Page 636 No.13 which is Energy. Look at the Column for Deviation and confirm to this Senate that the particular items for electricity, that is payment for those bills, there is no deviation. In fact, what has been deducted was domestic travel which was reduced by Kshs500,000, daily subsistence allowance reduced by The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
You have said that the sum of Kshs808,292,895 was nowhere in your report.
Now, can you confirm that that sum is the aggregate total of the actual expenditure under the Projects Report you gave to the Assembly?
What I indicated is that it is the Assembly that computed the Kshs808,292,895. We reported in wholesome an amount of Kshs1.16 billion.
What I am saying is under your report and the schedules that you provided for the projects and the actual expenditures, the total expenditure under the projects not under the entire Development Vote was Kshs808,292,895, which you did not indicate as a total but only indicated the global sum of Kshs1,161,269,008. Is that it?
That is exactly what I mean.
That is exactly what you mean. In your report, you say you had not captured the balance. I am reading your statement which says; while providing the report on the projects implementation status--- That is on Page 3, Paragraph 3. This is the Governor’s document, Volume I.
Order, Members. Volume I on Governor’s documents, page three.
The statement of the witness. So Dr. Githinji, you confirm on your statement that it is your admission that the items now disclosed under table one were not captured in your Annual Budget Implementation Status Report as presented now?
I will be referring to that computation. I presented the global budget of Kshs1.161 billion not in parts.
So, this table that you have put here as table one was not in that report? It is a simple yes or no answer.
Yes, it was not part of the report.
The sum of Kshs352,976,000 and as categorized and given particulars, in your statement now, it was not part of the report. Now, is there any reason why as the CEC Finance you did not find it important to disclose the particulars as you have now done of this expenditure of Kshs352 million in your Annual Budget Implementation Status Report? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
The format of doing the report does not require going into breakdowns unless the assembly has not understood and you go there to indicate that.
Does that format say that you should not disclose some items?
It is not that we have disclosed but we have disclosed in totality of one billion.
Does that format say that you should not give particulars of certain expenditures?
It does not require giving particulars.
Is there any regulation or any statutory basis for the exclusion of these particulars from your report that you relied on?
Very well and very good. If you go to the Exchequer releases, can you also confirm – and I am looking at page six of your statement on the same document---
Your statement that is signed.
Yes, I am there.
Can you also confirm that in your Budget Implementation Status Report the information now given as table three was not disclosed in that report?
Table three or table two because I am on table two?
The number given as table two was given as total exchequer releases. I am asking – because you have admitted that these are clarifications that you are now making and in the governor’s response which can be found at Volume II of the Governor’s documents, there is an admission that items two, three and four were not captured in the Annual Budget Implementation Status Report. Is that a confirmation you can make?
Table number three---
Was not in your report.
I said our report is totally different from the Controller of Budget report.
No, I am saying table number three as it is was not in your report.
This is part of our response. It was not supposed to be in the controller of budget report. It was to be Controller of Budget exchequer release but not the County Treasury release. That is the difference.
All I need to confirm – and I think we are together – is that table three was not in your Annual Budget Implementation Status Report.
That is the confirmation I wanted.
Counsel, let me add you another 10 minutes.
Thank you Mr. Speaker, Sir. That number and the details of the total which comes to about Kshs800 million was not in your report. Can you confirm that the The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Yes, they are.
Thank you so much. Are you also able to confirm to us that the authorized expenditure – and I am now looking at your clarification on the issue of local revenue – that the authorized expenditure by the Controller of Budget for that period under review was only Kshs545 million?
That is true?
It is correct.
Are you also able to confirm that from their report, the actual expenditure spent by the county government was Kshs615 million?
You have said that there is a clarification that was made by that office on those two numbers, right?
Would you be as kind to give us a copy of that clarification?
It was a conversation?
Very well. On the issue of the budget – and I am now coming to a close so that my colleague will ask you two or three questions – I am referring the witness to page 598 of the County Assembly Volume III documents on the blue volume. It is the County Budget’s Committee Report on the budget. Are you able to confirm that one of the recommendations by the county assembly was to reduce the vote-head on domestic travel and other subsistence costs from the Office of the Governor from Kshs13 million to Kshs4.5 million?
They also reduced on the vote of foreign travel for the governor from Kshs10 million to Kshs4 million in their proposal?
Governor’s office and not the governor.
At (f), there was a reduction of the vote-head to purchase motor vehicles for that office alone from Kshs13 million to nil?
Now, I put it to you that these reductions are what have resulted into this stalemate that the governor and the county government felt slighted by these reductions and refused to co-operate any further with the assembly in the budget making process.
In my memorandum, I was not under any directive from the Governor. So, I was the one looking at the budget and I saw there was a problem.
Did you ever attend any of the Committee meetings you were invited to attend by the Assembly?
I was invited to one and I attended it.
You were only invited to one meeting? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
There was another one on 26th July, which again was cancelled by a mobile phone text.
Look at page 644 of the same Volume III. It is a letter dated 16th June, 2016.
It is on page 644. Can you confirm that that is your letter to the County Assembly?
What is it, Sen. Mutula Kilonzo Jnr.?
Sorry, it is not an intervention, Mr. Speaker, Sir.
Counsel, you have five more minutes.
Can you confirm that by that letter you were requesting for a postponement of your meeting with the Budget and Appropriation Committee?
Exactly. This is what I am referring to. I was to go on 21st June. However, on the same day in the morning, I received a text message from the Chairman Budget and Appropriation Committee telling me that the Speaker had postponed it.
Is that text part of your record? Is it anywhere in your record?
It is on my phone.
On your phone? Well you do not have your phone here with you, but we should have interrogated that further. I do not have the time to do so. My colleague will ask you questions for the last five minutes.
Dr. Githinji, I have a few questions for you. It was suggested that the reason that the substantive CEC has not been appointed is because of the so called budget stalemate. What we want you to clarify, Dr. Githinji, is for how long have you been serving as the acting CEC for Finance?
I did not get your question clearly.
For how long have you acted?
The entire question, please.
For how long have you acted as the CEC Finance?
One year, one month.
So, that effectively since last year August and that was prior to the so called budget stalemate.
When did the budget stalemate commence?
I am talking about 2015.
Listen to my question. The appointment to act in that capacity as the CEC Finance acting was prior to this problem that we have been having with the budget?
Are you aware of any attempt to fill in that position substantively since last year August when you were appointed to act in that position?
There has been no need because the one who was substantive holder of the office---
There has been no need---
Was still under investigation---
So, there has been no need to fill that position? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Is the Chief Officer in that department of Finance also in an acting capacity?
The Chief is substantive. The Chief Officer Finance and Accounts is substantive.
Remember that you are under oath. There is a gentleman called Mr. Richard Kuria Kimani. Is that gentleman serving in the position of Chief Officer Finance in a substantive or acting capacity?
In acting capacity.
For how long has he acted?
For the last two years.
For the last two years? Has there been a substantive Chief Officer in the department of Finance since the County Government of Nyeri was inaugurated?
Under Finance and Economic Planning, we have two Chief Officers, one is substantive.
Dr. Githinji, I have asked you a simple question. Since that inauguration of the County Government of Nyeri, has there been a substantive Chief Officer department of Finance?
Yes, there has been.
Who is this?
I am referring to Finance, since inception and remember you are under oath.
Mr. Francis Kirira is the one and he is substantive.
I am referring to the department of Finance.
What is it, Sen. (Dr.) Khalwale?
Mr. Speaker, Sir, listening to the responses from the witness, maybe as the Chair of the proceedings, you need to caution him of the consequences of deliberately misleading us.
Now my question is and I am not referring to the---
There is no need because the Counsel had already reminded him that he is under oath and I am sure he knows the implications of that.
There are two departments. Mr. Speaker, Sir, I am referring to the department of Finance because we have Finance and Economic Planning. We have Economic Planning where we have a Mr. Kirira. I am referring to Finance Department. Has there been a chief officer before? That is since inception, a substantive chief officer, yes or no?
Not that I am aware of.
Not that you are aware of. So since inception, there has been no substantive chief officer and you have been acting as the CEC for a period of one year and one month. Let us move on. This is in reference to the comment you made that the budget as passed by the Assembly contravened the law. I refer you to your statement. Hon. Senators I am referring to Governor’s bundle, Volume I, the witness statement of Dr. Githinji on page 8. I want to refer to this page together with page 500 of Volume III of the The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
I want to refer, Hon. Senators, the witness to page 500 of Volume III of the Assembly. If you are there, Dr. Githinji, there is a letter dated the 5th July, 2016, which communicates a resolution that was passed by the Assembly on the 30th June. Are we there? It is page 500. Can you confirm that the Assembly is very clear when the approved estimates were adopted and passed by the Assembly? Does that letter talk of on the 30th June, 2016? Look at the opening paragraph. This letter is addressed to you and the opening paragraph is that on the 30th June, 2016 then it goes on and then it provides that in accordance with Section 131(1) this Assembly do approve together with the amendments and then it goes on to say that it further adopts the report of the Budget and the Appropriation Committee. Confirm from that letter that the decision by the Assembly was taken on the 30th June, 2016. Is that correct?
Yes; 30th June, but the letter is dated 5th July.
Therefore, communication of the decision is a separate matter. When was the decision taken by the assembly? Was it on 30th June or 5th July?
Thank you. Refer to your witness statement at Page 8 in Volume I of the governor’s documents. There is the paragraph that he quotes Section 131 of the Public Finance Management (PFM) Act. We want to see whether your comment that their decision was illegal has any basis. You have cited the provision of Section 131 and stated that:- “The county assembly shall consider the county government budget estimates with a view to approving them with or without amendments, in time for the relevant appropriation law and any other laws required to implement the budget, to be passed by 30th June in each year.” Therefore, the decision that we have seen complies with that section, to the extent that it was passed on 30th June. Now, let us go to appropriation. You have said that the appropriation could not be passed by 30th June. I will refer the witness to the provision of Section 129 of the PFM Act, which requires the CEC member to submit to the county assembly the budget estimates and any other bills required to implement the budget, except the Finance Bill, by 30th April in that year. My question is: When you were forwarding the draft or proposed estimates did you as the acting CEC Member for Finance submit to the assembly the proposed Bills, in particular, the Appropriation Bill proposed to implement the proposed estimates, in line with Section 129? Was that done by you, as the Acting CEC Member for Finance by 30th April?
Thank you. Now, after the decision was sent to you by the assembly that the budget estimates, as amended, had been passed by the assembly, was there any attempt by the executive to send the Appropriation Bill for consideration?
Also, effectively without an appropriation Bill being sent by the executive, you agree with me that there is no way that the budget, as approved by the assembly, would have been implemented. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Thank you. The last question is: Did you send the so called memorandum prior to the Appropriation Bill being sent to the assembly?
What are these issues that the executive would have been raising before even a Bill has been considered and passed by the assembly?
The Appropriation Bill is based on the approved budget. The memoranda was to---
Let me put it differently, Daktari. Is it the proposed budget that becomes law or it is the appropriation Bill, once considered and passed by the assembly that would then be assented to by the governor, and in default, would self-assent itself? Is it the approved budget estimates or the Appropriation Bill?
The Appropriation Bill.
Effectively, if there would be any memorandum, it would be after a Bill has been passed by the assembly. Is that correct? But if there will be a memorandum detailing the issues that the governor has with the decision of the assembly on the Bill, it would be after the Bill has been forwarded and not before.
We will take that as your answer. Last question is: You said that the budget was incapable of being implemented. Now, a reading of Section 131 that gives the county assembly the power to consider and approve the budget with amendment--- Does that Section 131 provide for the limit to which the county assembly can make amendments to the budget estimates?
The limits are in the PFM Regulations, 2015.
Are the PFM Regulations subordinate to the Act? Which one would supersede the other in case there would be an inconsistency?
Regulations are meant to operationalize the law?
Let me ask you that question again. If there is an inconsistency between Section 131 and the regulation promulgated by the Cabinet Secretary for the National Treasury, which one would override the other?
So that in your evidence Section 131 gives the assembly the mandate to make amendments without any limits.
Thank you. That is all, Mr. Speaker, Sir.
Sen. Mutula Kilonzo Jnr.!
I want to refer you to your report, and I asked this question yesterday. It appears that you cite Section 166 of the PFMA. My own reading of Section I66 is that it refers to quarterly reports. The section that refers to annual reports is 164; maybe you should check. However, would that explain the reason why by quoting the wrong section in your report, you then ended up not having the documents that are required under Section 164? Perhaps you can check that. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
What is it, Counsel?
Mr. Speaker, Sir, the proper procedure, in accordance to the program, is that when a witness has been cross-examined and issues have arisen, you re-examine the witness. Secondly, looking at the program, I do not see room for Senators to ask the witness questions at this stage. The program is clear that the county government will respond to these issues at a time which has been set in the program. Therefore, it is extremely unprocedural for my witness to be asked questions now on issues, which will appear illegal and we will be responding to at the time when the Senators will be asking questions. We need to make a decision on the issue. He is not a lawyer. We will respond to those issues---
Order, Counsel! Do not assume that because we are not lawyers, we do not understand English.
You are very clear on your objection and I agree, particularly since it is a procedure that we adapted yesterday. You are wrong in saying Senators have no time to seek clarifications via questions. That time will come. What we determined yesterday and what we should do today is that the other party cross examines your witnesses and then you do a re-examination. After that, we then come to Senators. I am sure that you are satisfied with that. Counsel, does that satisfy your fears?
Mr. Speaker, Sir, I think that is perfect. I can proceed with my re- examination in five minutes.
Proceed. Members, may I ask you to note whatever issues you have and then you will have an opportunity to interrogate the witnesses and the Governor’s side. What is it, Sen. Mutula Kilonzo Jnr.?
On a point of order, Mr. Speaker, Sir. It is a concern. Counsel Wanyama says that this gentleman cannot answer legal questions. At the beginning of this session for the one-and-a-half hours that he began, there are matters that the lawyer raised. In the clarifications that we will seek, will you restrict the witness to the questions of finance and the other issues that were raised by Mr. Wanyama to him? We need some clarity. Or, will we cross-examine the lawyer? We can also do that.
As far as I am concerned, you will raise any question. It is up to the Governor’s party to answer either by counsel or the witness directly. If the submission of the Statement by the witness raises legal issues, he will answer the questions. So, we will deal with that matter once we reach that stage. Proceed, Counsel.
Mr. Speaker, Sir, thank you very much. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Do you mean two finance officers in your docket?
It is Finance and Economic Planning dockets.
So, you have one Chief Officer for Finance and another for Economic Planning. Could you name them? Who is in charge of Finance?
Mr. Kimani is in charge of finance.
Mr. Kimani who?
The other docket?
Mr. Francis Kirira.
Okay. Are they both on acting appointments or one is substantive?
Mr. Kirira Francis is substantive and Mr. Kimani is acting.
Are you a lawyer?
Do you understand the difference between principle legislation and a subsidiary legislation?
Okay. Thank you. On this budget stalemate, I want to be very specific, ---
Order! I do not know what we heard. What was the response to that question, Counsel?
Perhaps I can rephrase.
No. just the response of the last one. I think your question was clear.
Dr. Githinji, you can respond again loudly.
Did he say yes or no?
Okay. On this budget stalemate, I want you to look at page 3 of that memorandum in Volume II of the Governor’s bundle. Could you read paragraph 2.4 for the honourable House, please?
Mr. Speaker, Sir, it reads as follows: “The total budget submitted to the County Assembly was Kshs6,464,561,041 but the amount was reduced with Kshs95,438,250. Therefore, the approved budget is Kshs6,369,922,791. No explanation has been provided on the variance.”
Thank you. Now, is this the alteration which you said was made on the budget to your dissatisfaction?
Part of it, yes.
Part of it?
Like here, you are talking about how much in terms of variance?
Kshs95.4 million. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Now, in accordance with the regulations guiding the public finance management, what is the percentage of the budget that the County Assembly is allowed to vary?
1 per cent per vote head?
1 per cent per vote head.
Thank you. Now, let me go back again to this budgetary stalemate. Do you usually speak with the County Assembly Committee on Finance? Do you speak and engage each other?
Yes we do, but not on this one.
Was there a complete stalemate on this one?
Were you picking phone calls from each other? On this issue had they previously called you and said come to the Assembly, we want to discuss this issue of the budget for the Assembly; you are the CEC member for Finance. Have you had these interactions?
The correspondence that I have had is through an invitation letter.
Okay. I now want to ask you the final question. Do you believe that this stalemate can be resolved?
Yes it can.
Do you strongly believe it can be resolved?
Yes, I believe so.
By the Assembly especially the Committee on Budget and Appropriation together with the County Treasury and myself can sit down together and discuss it.
So, if you sit down together, you can sort this out?
Okay. Thank you very much. Mr. Speaker, Sir, I have no further questions for re-examination. Thank you.
Very well. Counsel, you have two other witnesses - the Auditor-General and The Controller of Budget. I would propose you get the Auditor-General and the Controller of Budget so that they can attend to other issues later in the afternoon. We will then proceed from there. The witness may retire.
The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Counsel for the Governor, you need to help us; which witness do you wish to start with. I can see both of them are there and that cannot be possible.
Mr. Speaker, Sir, we can start with the Auditor-General for few minutes because we will not take long.
Well, start with the Auditor-General. Meanwhile assist the Controller of Budget to get a seat.
Mr. Speaker, Sir, with your permission we can swear in the witness.
Mr. Speaker, Sir, and Members of the Senate, I am pleased to be here to try and assist in this very difficult matter. I have three issues which I feel I can address.
Order, Auditor-General! I am sure that is the mode you are familiar with but these are interesting times. You are somebody’s witness and therefore, you will wait to be led. Counsel, proceed.
Thank you, Mr. Speaker, Sir. Mr. Ouko, my name is Peter Wanyama. I am the legal counsel for the Governor facing these impeachment charges. I will ask you a number of questions but before that, I will show you the charges so that you can refresh your memory if you have seen them before or if you are seeing them for the first time. I will generally ask you for a comment. Mr. Ouko, have you completed the audit of the County Government of Nyeri’s finances for the financial year ending 30th June, 2016?
(Dr.) Edward Ouko): Mr. Speaker, Sir, we have not yet. We are doing the Report of the Financial Year 2014/2015.
So, for the Financial Year 2014/2015, have you completed the audit?
(Dr.) Edward Ouko): Mr. Speaker, Sir, we are in the process of finalising the audit.
Are you still at the county doing the audit?
(Dr.) Edward Ouko): Mr. Speaker, Sir, we are at the county but now, the reports are coming in to the head office.
Mr. Speaker, Sir, I am making reference to the Governor’s documents Volume II at page one. The Governor is being accused of failure to make proper disclosure of Kshs352,976,913. That is what the county assembly is saying. Can you confirm that this is for the Financial Year that you are auditing? Have you seen these allegations before?
Mr. Speaker, Sir, I have not seen this one. I cannot tell off head whether this figure is this year or not. If it is saying Financial Year 2014/2015, then it is Financial Year 2014/2015. I am not in a position to confirm this now. I have just been given the information that it is related to Financial Year 2015/2016. I am not yet there in audit.
You are not yet there? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Speaker, Sir, yes.
Thank you. You audited the finances of county governments in the year Financial Year 2013/2015. Is that right?
(Dr.) Edward Ouko): Yes.
Can you briefly explain what you did for that Financial Year when you audited? When you completed the audit, where did you forward the reports to?
(Dr.) Edward Ouko): Mr. Speaker, Sir, well according to the Constitution, when I have audited the county, there are two reports which we have. We have the county assembly report and the county executive report. The county assembly report went to the county assembly and copied to the Senate. The county executive report went to the county assembly and copied to the Senate.
A copy is made to the Senate?
(Dr.) Edward Ouko): Mr. Speaker, Sir, yes.
Before you prepare the Reports specifically for the Financial Year 2013/204, do you interact with the county treasury or the client you are auditing?
(Dr.) Edward Ouko): Mr. Speaker, Sir, we interact with them in inception meetings, fieldwork, exit meetings and in-between, there are exchanges of queries back and forth until we reach the final report.
Mr. Speaker, Sir, with respect to the Financial Year 2013/2014. I want to show the Members an extract of a report which was submitted before this House. I am making reference to Volume III of County Assembly documents on page 244. Mr. Ouko, is that an extract of your report?
(Dr.) Edward Ouko): Mr. Speaker, Sir, yes, it is.
Can you read the heading of that extract with respect to the charge in question?
(Dr.) Edward Ouko): Mr. Speaker, Sir, the heading is: “Lack of Prudence of Refurbishment of Buildings Kshs81,384,118.40. Observations: The County Government entered into a lease agreement with Deborah Wangui/Wambui Mwangi – the leassor, who agreed to lease the commercial building title No. Nyeri Municipal Block 1/74 known as Karson Photo House measuring 4,700 square feet on the first floor (1,700 square feet) and the second floor (3,000 square feet) for a term of 5 years and 3 months (63 months), from the 1st day of May 2013 to 30th September 2017. According to the agreement, the County Government was to pay Kshs156,800 per month which was to be subjected to service charge of 10 per cent, Kshs15,800, making a monthly total rent of Kshs172,480,000. This implies that the County Government would pay a total of Kshs10,866,240 as rent during that lease period. However, no reason was provided as to why the County Government spent Kshs29,176,932.40----.”
Order! What is the figure, Auditor-General?
(Dr.) Edward Ouko): Mr. Speaker, Sir, Kshs29,176,932.40 to renovate the rented building and continue to pay rent for the same.
What was your recommendation there? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
(Dr.) Edward Ouko): Mr. Speaker, Sir, the recommendations were the County Government should exercise prudence in the use of public funds by considering constructing their own office block to make a long-term saving on rent payments.
Who was your client at that time when you were auditing the County government?
(Dr.) Edward Ouko): A Mr. Speaker, Sir, as you can see this was in a transition. This was the new system that had just come in place. The new county systems that had come in place and we are referring to May. The county was my audit because it was constitutionally there and it was my client, but there were a lot of instructions that were coming from the Transition Authority on how the transition was being done.
Can you elaborate that issue because it appears to be another issue here?
(Dr.) Edward Ouko): Mr. Speaker, Sir, in between during this period, we were continuing to get instructions and guidance from the Transition Authority on a number of issues.
What do you mean guidance? Who in your opinion was actually incurring expenditure?
(Dr.) Edward Ouko): Mr. Speaker, Sir, in my opinion, the expenditure is incurred by the County Government because the County had come into existence as of March.
There were transitional officers seconded to the County who you said were working at that time.
(Dr.) Edward Ouko): I think that is a known fact that the Transition Authority actually also seconded staff to the counties.
Did you audit the Transition Authority?
(Dr.) Edward Ouko): Mr. Speaker, Sir, yes, we audited the Transition Authority as an institution separately.
Did you find in the audit any funds which had been allocated to spend at the County level for renovation of buildings, the executive Office of the Governor and the Assembly?
(Dr.) Edward Ouko): Mr. Speaker, Sir, the institution would have its own accounts and this own accounts would be the budget which is allocated to that institution. However, the monies which are supposed to go to the counties would not be reflected to the institution’s accounts.
I want to ask you an opinion. If an audit query has been raised and it has been responded to, do you still put it in the final audit report?
(Dr.) Edward Ouko): Mr. Speaker, Sir, the audit query would be raised and if it is satisfactory explained, we might leave it out. However, there are also some issues of audit interest whether they have been resolved or not, that should go into the report depending on their importance.
In terms of this particular allegation, do you usually come across these allegations many times in your audit and can you relate them as operational issues or issues where an individual can be personally responsible at the level of governor? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
(Dr.) Edward Ouko): Mr. Speaker, Sir, these are normal issues especially during this time when a lot of Counties were setting up. There were a lot of issues about renting, a lot of construction and refurbishment. This was quite a common issue throughout the counties and this is a normal operational audit issues which should be considered.
Thank you very much. Mr. Speaker, Sir, that is all for the Auditor General.
Counsel for County Assembly, do you have anything for the Auditor General?
To help us understand the contents of your report, could you advise us or the Senate on the sources of information when you are compiling an audit report?
(Dr.) Edward Ouko): Mr. Speaker, Sir, the sources of information are various; there are people who give information and documents which we look at. There are many other things which we consider; books, the recorded books, the general ledger and invoices, etc. These are the sort of sources of information for audit.
(Dr.) Edward Ouko): Mr. Speaker, Sir, yes, these are the primary documents.
Very well. In your audit report, you said that, for example, in that matter you have been referred to by counsel, that Kshs29,176,932.40 was spent in renovation. This is a number picked from actual documents available.
If you said it was spent, it would be spent and recorded in the books as such. .
That would also be true for, at page 245, the amount that is Kshs41,340,946?
Yes, Mr. Speaker, Sir
I need your comment on one of your constitutional functions under the Constitution and that is Article 229. Article 229 (6) of the Constitution states that:- “An audit report shall confirm whether or not public money has been applied lawfully and in an effective way.” Advise us on how you performed this function of confirming lawfulness and efficiency in spending of public money.
(Dr.) Edward Ouko): That part of the Constitution applies at several levels. There is the first level when you look at these documents and question the basis of the expenditure; how it has been instituted, recorded and spent in the books. ‘Lawfully’ means compliance with various laws, for example, the Public Finance Management (PFM) Act and other laws. Then there is the effectiveness element that looks at a bigger issue, for example, issues of impact, which are beyond the books. It looks at whether the reported expenditure translates into the impact which was expected, in this case, in the delivery of the services to the people.
Finally, on that issue, is that the basis upon which you gave an opinion at page 14; that the spending of the sum of Kshs81 million to refurbish a building and the governor’s office was not prudent in the circumstances. In fact, you advise that there could The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
(Dr.) Edward Ouko): That was our humble view. We are looking at this lease for five years. Therefore, when we total whatever will be paid, our humble view is that if that money would have been available and provided upfront, we could have provided the same building, but it depends on how the money was to come.
In your narrative on that observation at page 14 of the report, can you also confirm that this building that was procured for this amount was only for the first and second floors and not the entire building? That is a direct reading from your observations.
(Dr.) Edward Ouko): That is clear. The total was 4,700 square feet. The first floor was 1,700 square feet and the second floor was 3,000 square feet.
So, it was not the whole building? I have just read your comment on page 5 where the issue of engineer estimates is mentioned. Hon. Senators, this is found at page 395 of the county assembly documents, Volume III. You have made reference to the issue of engineer’s estimates as a guide in procurement for civil works. You have commented that in this particular project there was a variance of about 26 per cent. Make your comment or opinion at clause 3.6 for the record.
(Dr.) Edward Ouko): My point here was in regard to delays in terms of the expected works. I better read so that it is clear. I will read the whole point, if you allow me.
I will allow you.
(Dr.) Edward Ouko): The title is “Delay in completion of non- motorized facility of Kshs48,744,467,055.” “During the financial period under review the Nyeri County Government undertook construction of Non-motorized Facility (NMT) in Nyeri Town at a cost of Kshs48,744,467.55. The engineer had estimated the cost of facility to be Kshs38,638,342, therefore, resulting in a variance of Kshs10,106,125.55 or 26 per cent above the estimated cost. The excess variation would have necessitated a review of the tender before awarding was done. The construction work was also behind schedule as it was planned to be completed on 27th June, 2014. At the time of the audit in August 2014, this work was still ongoing at about 50 per cent complete. In the circumstances, it could not, therefore, be confirmed if the public got value for money from the construction of this building by the county government.”
You confirm that this was your opinion on the prudence of this spending; you were expressing doubt as to whether the public got value for money in the construction of these facilities?
(Dr.) Edward Ouko): The context of value for money was the delay. Money spent but no value received is the concept of ‘value-for-money’ that we are talking about.
That would be good with me. I have no other questions for the Auditor-General, but there is one question by my colleague.
Proceed. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Speaker, Sir, I only have one question. Is the oversight function by the assembly only limited to reports received or prepared by the Office of Auditor- General?
(Dr.) Edward Ouko): The oversight responsibility of county assemblies is in the Constitution.
At any one time, if an issue arises of how funds and resources are spent by the executive, will it be within the oversight mandate of the assembly, even before the audit report has been finalised by your office? Will it be within their mandate to raise that issue and take appropriate action notwithstanding that the audit report has not been finalised?
(Dr.) Edward Ouko): I am an auditor. I do not know if you are alluding for me to interpret the Constitution.
I seek your comment on that.
(Dr.) Edward Ouko): That would be my personal feeling. There are two levels of oversighting; oversight of the institution and the managerial accountability during the period.
I am referring to the institutional oversight of the assembly with respect to resources that are charged with the county executive. What would be your comment if an issue like that arises?
(Dr.) Edward Ouko): I would compare it to a company with a board looking on the executive. You would not expect the board to be asking questions on issues which are on-going during the management period.
Let, me paraphrase my question: If an issue of how resources are being spent by the County Executive is brought to the attention of the County Assembly which essentially oversights how resources are spent, would it be a justification that because the auditor and controller general has not audited the executive, the Assembly should not take any action with regard to how those resources are being spent by the executive?
(Dr.) Edward Ouko): I hesitate to answer “yes” or “no” because it depends on whether that oversight is extending towards managerial accountability.
We take that period. That is all.
The witness is now discharged. Let us get the next one.
He has not been re-examined.
Counsel does not wish to re-examine.
On a point of order, Mr. Speaker, Sir.
I am rescinding your discharge Auditor General because Members are interested. You can trust Sen (Dr.) Khalwale to be asking on some issues. Proceed Sen (Dr.) Khalwale.
Mr. Speaker, Sir, hearing some of the answers the Auditor-General has given, we might need to probe him a little bit so that he is even more clearer at this stage. Mr. Ouko, you have told us that you do not want to say one way or the other when the lawyer asked you whether there is any reason why the County Assembly would be stopped from looking into the Accounts of the Executive if you have not audited the accounts at the time they are doing so? May I take you down memory lane? In your experience in this Parliament, have you ever come across a situation whereby Parliament looked into an issue before you had concluded your audit? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
(Dr.) Edward Ouko): Yes, Mr. Speaker, Sir.
Would you like to give us such an example?
Order, Members! Sen (Dr.) Khalwale, I heard the Auditor- General very well when he responded. He started by saying that he is an auditor. Since he is not competent in certain sectors let us deal with him on his core business. There will be other people and witnessed for other things.
Mr. Speaker, Sir, so that I will not be seen to be fishing for something, I put it to the Auditor-General that he has appeared before this Parliament before and helped it on a matter which he had not concluded audit on and he gave us an opinion. That included the issue of the printing of the Kenya Currency by De La Rue. Is it true or not?
(Dr.) Edward Ouko): Mr. Speaker, Sir, it is true. However, when Parliament called me at that time it did so for me to appear as a friend of Parliament to help it decide on a matter. When you summon me I come and tell you the information I have and share it with you. It is normal when you summon me.
Mr. Speaker, Sir, I inquire from the Auditor-General whether it is his constitutional mandate to understand financial management in all sectors of this country. If so, who gave him and at what stage?
Order, Senator! How relevant is that question? We are doing badly on time today. Let us stick to the relevant critical issues.
Mr. Speaker, Sir, the constitutional mandate of the Auditor-General is to interrogate financials given to other sectors of this country. I was asking whether it is in his mandate to interrogate the financials of every sector.
Order! The witness does not need to respond to that. We are dealing with charges and particulars, not general information. I will not allow deep sea fishing on barren land.
Mr. Speaker, Sir, I hope I will not be fishing. I want the Auditor-General to clarify a matter to me. He will agree with me that the head of the county treasury is the CEC Finance. Would he expect the CEC to be familiar with the legal regime surrounding management of financial resources?
(Dr.) Edward Ouko): Mr. Speaker, Sir, the CEC Finance is a very important post in the county. You would expect such a person to have good understanding of the public finance management aspect of the transactions of the county. There would, therefore, be other legal matters which he or she must seek advice on. However, as far as the PFM Act is concerned, they should be totally familiar with them.
From now, we will just get all the questions written somewhere so that he can respond at once. I realise there is a bit of interest.
Out of your statement you have said that you are now working on the 2014/2015 Financial Year account which you expect to report. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Speaker, Sir, in fact, Junior has asked the very question I wanted to ask. I want to further ride on that question.
Order! Sen. Ong’era, who is Junior?
Mr. Speaker, Sir, I am sorry. I meant the distinguished Senator from Makueni. That is the Duke of Makueni who is Sen. Mutula Kilonzo Jnr. Dr. Ouko, thank you for appearing here. The question I want to ask you is that there is a report of the Auditor-General that was presented here yesterday on the Financial Operations of Nyeri County. In that report is regard to Karson Photo House. We were given information that stated that Kshs10.8 million was paid for rent for this particular private premise that the County Government had hired and they spent Kshs29.1 million to renovate that premise. We noted that in that report, you only stated that prudence should be exercised in the use of financial resources. My question is; why did you not consider that the Governor should be surcharged for spending Kshs28.1 billion on a private property?
Mr. Speaker, Sir, I would like to ask the Auditor-General one question. When you complete your audit, like in the situation of 2013/2014 FY, whom do you direct the management letter and audit issues raised? Is it a CEC, Chief Officer (CO), governor---?
Order, Sen. Murkomen. That question is very clear.
Okay, thank you, Mr. Speaker, Sir.
Mr. Speaker, Sir, I have one question to the Auditor-General. Does it worry you if you go to a county government where the CEC for Finance, as indicated by yourself that The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
(Dr.) Edward Ouko): Hon. Senators, thank you very much for these very insightful questions, some of them trying to turn the Auditor-General to be a legal analyst also. Regarding the issue of the interpretation of Article 226 and the fact that my reports are still pending, the work and responsibility must continue. My take on that is that the Constitution requires expenditures to go ahead. Expenditures have been approved by Parliament and they are being controlled by the Controller of Budget and it has to continue. That is my comment. Concerning the use of the word “prudence” we did not use it in more legal terms but we used it in the context of trying to see value for money issues. That is how we analyse prudence in the context of value for money and maybe the context of Article 229(6) which the other counsel referred to about effectiveness. Maybe you will excuse me for use of the word “prudence”. We used it to show that had the money been delivered all together, in other words the money which was to be spent five years, they could have actually built a house or whatever. I think it was because of lack of a better word but that is our understanding of the word “prudence” there. Therefore, it behooves the question. Do I go there and say because there was no value for money, somebody else must refund it? It depends on the circumstances because there are some cases a person takes a particular decision which we can single out and tell them that they caused the county to lose so much. In that case, we will be very clear and say; Mr. X, you take the responsibility. When it is institutional where you have various ministries, CECs and all that taking decision jointly, you cannot put that responsibility of say Kshs48 million on one person but on the institution. That is why we go asking about the effectiveness and value for money issues. In a way, that also responds to the Karson Photo House issue. When we raise the issues, first of all, we determine the most directly responsible person at a particular level. On the overall, management letters are directed to the people who could be called accounting officers because they are the management overseers in terms of the execution or expenditure of funds. We have the CEC for Finance but there are also other CECs who may be involved and we direct those issues directly to them. However, when we look at the final management or compendium of all issues, the primary address goes to the CEC.
Auditor-General, which CEC?
(Dr.) Edward Ouko): The CEC Finance. Regarding whether it is proper that we should have CEC Finance acting over a long period of time, of course it will be my concern that the person is substantive but then as an Auditor, it is not my decision to make--- So long as the work is being done and the laws are being complied with it does not mean that the person acting is competent. From the auditing point of view, if we see the acting as a serious point of weakness which casts doubt on the issues of the accounts, then we will be concerned.
Finally, Sen. Okong’o.
Mr. Speaker, Sir, I have heard the Auditor-General mention about institutions. In institutional hierarchy, you do not blame institutions. For instance, in the Republic of Kenya, the buck stops with the President on national matters if issues go wrong. On The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Hon. Ethuro): What is it Sen. (Dr.) Khalwale?
On a point of order, Mr. Speaker, Sir. Sen. Mong’are has raised a very pertinent issue. He has asked the Auditor to explain to Kenyans why he chose not to recommend that the Kshs29 million that the Governor allowed from public funds to renovate a private building should not be recovered from him. Mr. Speaker, Sir, this is going to be a turning point if the country is going to believe that public funds can be used to improve a private building and public funds continue paying rent for that improved building and that the Auditor-General finds nothing wrong with it. Mr. Speaker, Sir, I want to remind the Auditor-General that in this Parliament, there are many times auditors have made these kinds of reports and when the auditees appear before the Public Accounts Committee (PAC), they then vary that recommendation to include actual surcharge and therefore, recovery of the money. Auditor, because we are in public, I want to remind you that you also have an office to protect.
Hon. Ethuro): Order, Auditor-General. You can respond to those two but let me also assure the House that the reports of the Auditor-General come to you. So, you still have a good opportunity to deal with the issues you have now raised. Proceed, Auditor.
(Dr.) Edward Ouko): Thank you, Mr. Speaker, Sir. Let me say about the governor; I am not the people who made the Constitution and set up the position of governor. It is very clear and it is in the Constitution. It is not me to make that decision. On that, you should not be asking me whether he is the CEO or not. I think that is being unfair to me. I did not make the Constitution. The Constitution on the responsibility of the governor is there and we have to accept that. Secondly, when I am doing my audit, the Auditor is not doing the audit to come and hang the people. Therefore, you should not be expecting my report to say hang so and so. As you had put it, that job is left to you here. I am not a hangman but what I can do is to give you enough information in my reports for you to reach that adequate decision.
Hon. Ethuro): Well done Auditor-General. You my now retreat. Let us give this opportunity to the Controller of Budget. You have now confirmed who the hangmen are.
Counsel and the witness, let us proceed. Let us hope this one will be brief.
Thank you very much Mr. Speaker, Sir. With your permission, we can swear the witness.
Hon. Ethuro): Proceed.
The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Madam Agnes Odhiambo, my name is Mr. Wanyama the legal counsel for the governor defending him in these impeachment proceedings. There are two issues that I am going to get your comments on. If I may, I will show you a document where that issue is coming from. There is a charge on page eight of the Governor’s bundle, Volume II. You can read the particulars for the Senate. Charge number two on page eight of that Volume II of the Governor’s bundle. You can just read it quickly.
Hon. Ethuro): Which Volume?
Volume II of the Governor’s bundle, page eight.
It reads; utilizing local revenue at source contrary to Article 207 of the Constitution of Kenya, 2010 and Section 109 of the Public Finance Management Act, 2012. Can I continue?
Yes, please continue.
In the County Government Budget Implementation Review Report, first quarter financial year 2015/2016 from the Controller of Budget, it is reported that Nyeri County Government utilized the locally collected revenue at source in contravention of the law. The Controller of Budget during the first quarter of financial year 2015/2016 authorized for withdrawal of a sum of Kshs545 million into the operations account. However, the county spent Kshs615,143,048 which is Kshs70 million in excess of what the Controller of Budget had authorized.
Thank you very much. Do you confirm for this Senate that this is an extract from your report?
Yes, Mr. Speaker, Sir.
Thank you. You confirm that this content is as contained in your report?
Yes, Mr. Speaker, Sir.
Thank you. Now, this issue, because it appears to be a violation of Section 109 of the Public Finance Management Act, 2012, had you discussed this issue with the County Treasury because your report is principally based on the review of the finance in the county. Have you discussed the issues with the County Treasury?
Mr. Speaker, Sir, yes, and, may be, I can give the context to this matter. The office of the Controller of Budget authorized Kshs545 million to the Nyeri County for utilization. One of the mandates of the office is to prepare quarterly reports. In preparation of these reports, we rely on the financial reports that we get from the counties. So, when we received the expenditure report from the county for the first quarter of 2015/2016 financial year, the total expenditure was kshs615 million therefore giving a difference of Kshs70 million which in our first quarter report, we attributed that excess to use of local revenue at source because at that stage, we did not have any information to the contrary. Mr. Speaker, Sir, we wrote to the head f the county treasury on the same and what we did is in the subsequent reports; the second quarter and third quarter reports, we analyzed to see whether that situation was still obtaining. Mr. Speaker, Sir, there were no discrepancies. Neither did we observe any in the third quarter report. We are now compiling the fourth quarter report. We are also checking to find out The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Thank you very much. Looking at that discrepancy, you say that you had discussions with the county treasury on this issue. Can you remember the context of those discussions for the benefit of this Senate?
Mr. Speaker, Sir, we had a meeting with the representatives of the county treasury on 8th September and the CEC in-charge of Finance did explain that the variance arose because of the way the IFMIS and the Internet Banking (IB) systems were reporting on the expenditure. Mr. Speaker, Sir, with your permission, I can explain. The payments for county government entities and also the National Government entities are processed through IFMIS. The payments are processed in the IFMIS system, but the transmission of the payment is done in the IB system. This is a Central Bank system. Immediately the payments are processed in IFMIS, if there were any commitments in the commitment column, they are automatically moved to the payments column. So, in the event that you do not click the approved button to transmit the payments, you will have this scenario. You will have excess expenditure although you have not paid because the commitments are sitting under the payments column. I hope I have made myself clear. So, the CEC in-charge of Finance explained that in the first quarter, that is what happened. They processed payments to the tune of Kshs70million, but they did not transmit. They processed the payments in the IFMIS system. So, ideally, all amounts that were in the commitments column moved to the payments column. However, they did not transmit those payments through the IB system. They ended up with expenditure being exaggerated in a way. When we received their return of Kshs616 million, ideally that expenditure should have been less the amount that was not transmitted through the IB system. So we had that discussion and what we informed the county is that we need to engage because this could be happening to other Government entities. We need to engage with the IFMIS directorate, the Central Bank team then ourselves and the county treasury. We discussed this and somehow reached a way forward because this will be able to assist other Government entities as well. One of the solutions that we looked at, as the office of the Controller of Budget, is if we could come up with maybe cut-off points that might help so that we do not end up with this kind of situation.
What is “a cut-off point”?
A cut-off point in accounting terminology is the point where you inform the entities that we will process our transactions for say the previous quarter by this date. Which means if you have processed payments in IFMIS, you ensure that all those payments are transmitted through the IB system then you will not end up with reconciliations between what is in IFMIS, what is in IB and what is in your ledger; you will avoid all these reconciliation problems. Therefore, that difference, in my view, as the Controller of Budget is a system issue. It is a matter that was sorted out in our view because we did not experience any discrepancies in the second quarter and third quarter. As I said, fourth quarter figures are not yet out.
Thank you very much. So you confirm that this discrepancy was fully explained. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Yes because we did not experience that difference in the subsequent quarters.
Thank you very much. My last question is; you are aware that there is a budget stalemate at Nyeri County.
Mr. Speaker, Sir, I am aware.
Have you had any communication with the Assembly or the CEC Finance with respect to that budget stalemate?
I have, Mr. Speaker, Sir.
Briefly explain for this Senate.
I have had a meeting with the County Assembly representatives and they did explain what transpired. I have also had a meeting with the County Executive representatives and they also explained their side of the story. Basing on Article 252(1) as the Controller of Budget, I have powers to mediate where there is a stalemate on matters that touch on budget implementation. I have agreed with the County Assembly representatives and the County Executive representatives that we have a meeting on Friday 3.00 p.m. so that I can try and bring these two teams together.
Friday which date?
Friday, 16th September, 2016. We are meeting on 16th September, 2016 to try and resolve this stalemate. I am doing this because the Constitution gives me such powers.
In your opinion, can this stalemate be resolved based on your experience in this office having seen similar disputes?
Mr. Speaker, Sir, this can be resolved. I have looked at the variances between the budget that was submitted by the County Executive to the County Assembly vis-a-vis the County Fiscal Strategy Paper because that was one issue that was raised by the County Assembly. I have also looked at the differences between the budget submitted by the Executive to the County Assembly and the budget approved by the County Assembly and the variances are not big. You are aware I have handled more serious cases like Makueni and I was able to bring the two parties together. So looking at the Nyeri matter, I am very confident that we shall agree. I must say both parties are willing to negotiate. So, I am confident we will be able to sort them out because the variances are not many.
Thank you very much, Mr. Speaker, Sir. That is all.
Counsel for the County Assembly.
Mr. Speaker, Sir, I have very few questions. Are you able to confirm on the issue of this discrepancy between the authorized amount that is Kshs545 million and the amount reported as actual expenditure in the first quarter of Kshs615 million that this number of Kshs615 million was given to your office by the county treasury. That is the information you received from the county treasury.
Yes, Mr. Speaker, Sir. We received Kshs615 million.
As a record from the county treasury of the actual expenditure for the first quarter.
Yes, Mr. Speaker, Sir. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Are you also able to confirm that this meeting that now came about to try and explain or resolve the difference was held on the 8th September, 2016?
Yes, Mr. Speaker, Sir.
For your information that was last week after the Motion.
Yes, Mr. Speaker, Sir.
For your information, that was last week after the Motion that has now precipitated these proceedings was approved. You say that the explanation that was given, after these charges were filed and a meeting was held, is that there were some items that had been committed, but not actually expended. Is it not?
There were items which were committed in the system, but payment for the same was processed in the Integrated Financial Management Information System (IFMIS). However, the transmission of the payment was not made in Internet Banking (IB) system. The IFMIS system is the prescribed system by the National Treasury for all Government entities. The IB is the Central Bank of Kenya payment system.
In your explanation, which was very clear, somebody had not clicked the approval module, so that those amounts may move to the proper section.
I did explain that for the payment to be transmitted, one has to approve. The explanation that was given to us by the county executive is that they did not have sufficient funds in the system. Therefore, the payment was suspended in IB. It was a question of not being able to complete the transaction because they did not have sufficient funds.
Now, in this discussion, the explanations that you are giving and the difference of Kshs70 million that is there between the two numbers, were you given any particulars or narrative as to what it constituted in terms of payment? What was it paying for? Was it for particular a service or good? Is that information you were given?
Mr. Speaker, Sir, as an office, we restrict ourselves to our mandate. We do not check on what was being paid; we look at expenditure. That is the responsibility of the Auditor-General who will then interrogate and check who is being paid and what the payments are for. As an office, we look at the broad categories of expenditure. We look at salaries, hospitality, domestic travel, and the rest. I just want to clarify that we did check the second quarter and third quarter returns and they did not have any differences. Therefore, that is what we used to check whether the issue we had raised in our first report had been dealt with. If our second quarter and third quarter reports could be checked, that issue has not been raised. That is how we check whether the issues we raised in the previous report have actually been addressed.
That is okay. The charges before the Senate relate specifically to the first quarter. If I heard you right, the information on the particulars is really not within your domain. Therefore, that is not information you can have. You have made an observation on page 280 of the same report; the Controller of Budget Report, First Quarter, 2015/2016. You can just read the second paragraph and I will rest at that point.
During the reporting, that is under
This relates to use of locally generated revenue at source. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
During the reporting period, the office noted that a number of county governments had continued to violate the requirement to deposit all locally generated revenue into the County Revenue Fund. Instead, they have been spending the revenue at source. These counties include; Homa Bay, Nairobi City, Nyeri, Taita Taveta, Tharaka Nithi and West Pokot counties.
Just complete because that is also important.
Failure to deposit all locally generated revenue into the County Revenue Fund constitutes a breach ---
Mr. Speaker, Sir, it is our first quarter report ---
Proceed, Controller of Budget. Unless I make the intervention, ignore the rest.
Mr. Speaker, Sir, failure to deposit all locally generated revenue into the County Revenue Fund constitutes a breach of the law. Accordingly, we recommend all counties should deposit all locally generated revenue into the County Revenue Fund.
Now, from where you sit as the Controller of Budget, why is it important as a check and control procedure that all the revenue should be deposited into the County Revenue Fund by counties? Is it just an academic provision? Just comment.
Mr. Speaker, Sir, it is not an academic requirement. It is actually provided for in the Constitution. That just goes to explain and provide for proper accountability of the funds that are being collected by the counties. This is because if counties collect revenue and use at source, then we lose the control function. The Controller of Budget is supposed to approve all withdrawals from public funds. That way, we have accountability and the Controller of Budget will be able to indicate how much has been released and how much has been spent. So, it goes to really provide for proper use of Government resources.
That is all. Thank you very much. Mr. Speaker, Sir, my colleague has just one question for the Controller of Budget.
Madam Controller of Budget, are you aware of any complaints before, reaching your office where the Nyeri County Assembly has protested that the requisition that has been forwarded to you by the CEC Member for Finance with regard to funds that should be released for payment of salaries to the Assembly, have been altered by the executive?
Mr. Speaker, Sir, I am aware of that matter. It is a recent one because of the stalemate that is obtaining at the moment.
Now, give us your comment. When such an action is taken by the CEC Member for Finance effectively affecting the operations of the assembly, is that lawfully?
Mr. Speaker, Sir, as you are aware, there is a budget stalemate in Nyeri County. Nyeri County does not have an Appropriation Bill as has been explained to the distinguished House. Now, because of that, the Public Finance The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Speaker, Sir, yes. Let me probe you further. So, you confirm that you have received a complaint by the assembly that their requisition has been affected with respect to the salaries. Did you receive a complaint to the effect that the monies that were requisitioned by the County Executive Committee (CEC) member ostensibly on behalf of the assembly with respect to payment of salaries were insufficient? Did you receive such a complaint from the assembly?
Mr. Speaker, Sir, I received a verbal complaint which was made when we had a meeting with the county assembly. I requested them that going forward, they should submit those complaints in writing.
When it comes to the Appropriation Bill for this year which you said has not been passed, has any reason been given to your office by the county executive why that Appropriation Bill was not presented to the assembly even after the budget estimates were adopted and passed by the assembly?
Mr. Speaker, Sir, yes. The reason given by the county executive was the alterations or amendments to the various votes that The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
So, the reason given was on alteration not that the budget estimates were passed after the statutory deadline of 30th June? Is that correct?
Mr. Speaker, Sir, the explanation given was on the changes.
But the changes according to them exceeded the set out regulations?
Mr. Speaker, Sir, yes.
I am sure your office has had a chance to consider those regulations as against the provisions of Section 131 of the Public Finance and Management Act (PFMA) which provides that the estimates or the proposed estimates will be considered and approved with or without amendments by the assembly. Your office has had an opportunity to consider the subsequent regulation that seems to cap the extent to which the Assembly can amend. Do you see an inconsistency between the two? If you do, which ones should prevail, is it the substantive Section 131 or the regulations you have referred to?
Mr. Speaker, Sir, I am not in a position to give any comment on that. Interpretation of the law, I think is the preserve of the Auditor General.
Lastly, on the County Budget and Economic Forum. In your report that you have prepared with respect to Nyeri County, have you made a comment to the effect that it is one of the very few counties that have not put in place that very important forum? Were any reasons given to your office why that forum – County Budget and Economic Forum – has not been put into place by the County government of Nyeri?
Mr. Speaker, Sir, we have not been given any explanation for that.
Thank you, Mr. Speaker, Sir.
Counsel for Governor? Yes, Sen. Okon’go.
Mr. Speaker, Sir, my question to the Controller of Budget is, does the correction of subsequent use of funds – especially I am talking about the issues of revenue spent at source – but the subsequent collection of the funds regularise or cure that bridge?
Mr. Speaker, Sir, I am worried about the interventions which have been made by the Controller of Budget because the County Assembly of Nyeri as it should was relying on the power donated to the Controller of Budget under Article 228 (6) of the Constitution which states that every four months the Controller of Budget shall submit to each House of Parliament a report on the implementation of budgets of the National and County budgets and therefore the quarterly budget. The County Assembly has relied on a report by the Controller of Budget. She cannot have it both ways. Either her report then from what I am hearing is inaccurate, and to that extent, she should admit that it is inaccurate and therefore she should not be relied upon, and mark you once you said one part is inaccurate, then the entire report is also in jeopardy. Secondly, I am also worried it is just last week that they met to resolve this problem which arose in the first quarter and she is saying that on Friday we are going to discuss. So, can The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Thank you, Mr. Speaker, Sir.
Order! The Controller of Budget, put what Sen. Orengo has said in another perspective. When people refer to the first quarter, you need to put it in a context, for example, 2015/2016. Now we are in 2016/2017; we are talking about one year ago. The second important issue was that once you made the report and there was the difference that you noticed, on your own motion, what did you do? Is your job just to report and leave it that way or you have a constitutional duty to go beyond just reporting figures? You can handle those two.
Mr. Speaker, Sir, I want to ride on Sen. Orengo’s question about the Integrated Financial Management Information System (IFMIS) and the Internet Banking (IB) System. This problem has arisen in many counties, including Nyeri County. These are information systems that can be synchronized. Is it possible for the Office of the Controller of Budget to work on synchronizing these systems, so that this problem does not continuously arise? This is a figures management issue.
Mr. Speaker, Sir, with regard to the first question on whether correction is sufficient or a harsher decision should be taken, I want to refer the distinguished House to Article 225 of the Constitution. It provides for stoppage of funds where there is persistent--- In this case it is persistence in the use of local revenue. That mandate is bestowed upon the Cabinet Secretary for the National Treasury. The key word is ‘persistent use’. Therefore, if we had observed that in the second quarter of the 2015/2016 the county is using local revenue at source, we would have raised it. If they continued to use the same revenue in the third quarter, we would have raised it in that report, as we do with the other counties. The issue here is “persistence”. That is why I explained that when we raised the issue, we actually wrote to the County Executive Committee (CEC) Member for Finance in a letter dated 26th February, 2016. Therefore, we did not just sit; we took action. We were proactive and wrote to the county treasury on the same. Our report was produced in January 2016 and we immediately wrote to the CEC in charge of Finance. The second question that was raised by Sen. Orengo is whether our report is correct. It is correct because the figures were based on the returns that we received from the county treasury. I explained that we received financial returns showing that the County had spent Kshs615million. On the other hand, the Controller of Budget had released Kshs545million. Those figures are correct because Kshs615million is derived from the financial returns produced by the county treasury. The releases are from our own records. Therefore, I want to re-emphasize that our report is 100 per cent correct. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
You have already explained that. Proceed to the legal matter.
Mr. Speaker, Sir, those were the issues.
Proceed, Sen. Dr. Khalwale.
Mr. Speaker, Sir, I thank the Controller of Budget for taking so long to confirm that the County Assembly of Nyeri was right in finding that Kshs70 million had been spent without the authorization of the Controller of Budget. This is because where I come from, a sum of Kshs70million is a lot of money and the members of the public are watching. It is as simple as this: You have left money in the house for the servant to spend Kshs545 for lunch, since there was other money in the safe in this house, the servant spends Kshs615 and your class eight child who is very clever says there is a deficit of Kshs70. I am glad that you have confirmed that in Nyeri, the County Assembly was right that Kshs70 million was spent without authorization. My question is: I have looked at Article 228 of the Constitution that captures your responsibility and nowhere do I see it giving you the power to arbitrate on disputes. You are now telling this Sitting that you want this matter to rest because on Friday you are going to arbitrate over it. Can you help me so that you clear my fears that this is a consideration that you are being driven into doing by the County Government of Nyeri, so as to sanitize them having been found to have committed an error? Finally, if the County Government of Nyeri had the bad manners of spending money before they banked in the first quarter and you discovered, when you found that the bad manners had not been repeated in the second and subsequent quarters, could you confirm that that does not free them from the mistake that they did in the initial incidence?
Just take all of the questions. Sen. Boy Juma Boy.
Bw. Spika, ningependa Msimamizi wa Bajeti anifafanulie---
Bw. Spika, niokoe kutokana na maneno ya Sen. (Dr.) Khalwale na Sen. Orengo.
Order! Sen. (Dr.) Khalwale. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Bw. Spika, swali langu ni kwamba shitaka la pili limetegemea ripoti iliyotoka kwa Msimamizi wa Bajeti. Shitaka hili la pili linahusu matumizi ya Kshs70 million kinyume na vile ilivyokusudiwa. Katika ripoti hiyo, Msimamizi wa Bajeti amesema kwamba Kshs70 million, kwa mujibu wa jinsi nilivyomwelewa, hazikutumika bali ilikuwa ni
hapa na pale kutokana na International Monetary Fund (IMF).
Swali langu kwa Msimamizi wa Bajeti ni je, anaridhika kwamba Kshs70 million hazikutumika kinyume na fikra ambayo mimi na wengine tunayo?
Ni nini kilitendeka wakaclick vizuri sana?
Mr. Speaker, Sir, on the same issue, if somebody was given Kshs545 and he spends Kshs615, it is very clear that there was some other source. That is coming out clearly. People are blaming the IFMIS and Internet Banking (IB) system. Why are we not seeing the printers from the IFMIS and IB showing that discrepancy as evidence to that?
I do not know whether you have been shown the report that has led primarily to the impeachment of the Governor on misreporting of Kshs352 million. In that report, the executive quotes Section 166 of the PFM Act which is in reference to quarterly reports. The report we have here is a yearly report. So, I believe he quoted the wrong Section because that should be 164. That brings me to the question. He has cited in the forwarding note that he has forwarded this document to your Office. Maybe we would have saved Nyeri County a lot of problems if these reports had arrived at a desk. A comment would have then been issued saying that the Acting CEC omitted the documents and details in support. For avoidance of doubt, I will read Section 164(2) which states that:- “The accounting officer shall include in the financial statements— (a) appropriation accounts, showing— (i) the services for which the appropriated money was spent; (ii) the amounts actually spent on each service; and (iii)the status of each Vote compared with the appropriation for the Vote; and (iv) a statement explaining any variations between the actual expenditure and the sums Voted; and (v) any other information specified by the County Treasury;” Could you please tell the Senate whether your Office got into details of this report? From the admission of the Acting County Executive, a lot of information that is supposed to be in the law is missing. Secondly is on the budgets. There are people who are proposing – maybe you are aware and the CEC Finance mentioned this – that the only variation that can be done is up to 1 per cent. Are you aware of the findings of this Senate on variations with regard to regulations? Secondly on the same, there are people who are proposing – maybe your Office is aware – that there are amendments that we suggested on ceilings on budgets on recurrent expenses under Section 107. Somebody is proposing that amendment was subdued by the County Revenue Allocation and, The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Hon. Ethuro): Sen. Sijeny!
Mr. Speaker, Sir, I think my colleagues have answered a few of the things I wanted to ask.
Hon. Ethuro): Members, remember it is getting to almost 2.15 p.m.
Yes, but just a quick clarification. You said you are aware there is some stalemate. When did you come to discover this? How many meetings have you had or is this going to be the first reconciliation meeting?
Hon. Ethuro): Sen. Gwendo!
Thank you Mr. Speaker, Sir. My question is in regard to the Kshs70 million. The Controller of Budget said on the Kshs70 million, she had already talked to the CEC and it was in regard to the Integrated Financial Management Information System (IFMIS). Are you trying to insinuate that IFMIS is not a safe system for the counties because you blamed IFMIS for the discrepancy in the Kshs70 million?
Mr. Speaker, Sir, I have one question to the Controller of Budget. That is with regard to apparent conflict between the PFM Act and the regulations with regard to what extent the county assembly can change the budget. Now that you are going to mediate to this process, what is your position? Is it that the law supersedes the regulations or the regulations supersede the law?
Thank you very much, Mr. Speaker, Sir. I will try to answer the questions. On the issue of spending of the Kshs70 million, the county assembly was right in pointing out that matter because the county assembly relies on our figures. In my personal view, what should have happened as is normally the case when we appear before the National Assembly, the county assembly should have summoned the county executive in charge of finance to shed light on the issues raised in our report. If that had been done in February because the first quarter reports were released in January---
Hon. Ethuro): What is Sen. Wako?
It is not me Mr. Speaker, Sir.
Hon. Ethuro): What is Sen. (Dr.) Machage?
On a point of order Mr. Speaker, Sir. We need your guidance on this. We are listening to the gracious lady in her capacity as the Controller of Budget. Now, she is giving her personal views. Is she in order?
Hon. Ethuro): She is perfectly in order. She has to know what happens to her reports. It will be irresponsible not to know. She is not just churning them for the sake of it.
Mr. Speaker, Sir, as I was explaining, we urge the county assemblies to take action on our reports. Those reports should be used by the assemblies. The county executive must be summoned – and I used the word summoned - to appear before the county assemblies to answer. If this had happened, it would not be an issue because the explanation, information and details would have been provided to support that. So, I would then take the issue on the printouts of IFMIS and internet banking system. These documents should be provided and these figures should be looked at. As I explained, I did say that this is the explanation that was given by the county executive. We will not look at all The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Order! There is a small point according to use of wording.
Mr. Speaker, Sir, there is a very slight point of order. On the question of Kshs70 million in the manner in which Sen. Orengo and Sen. (Dr.) Khalwale had put it. It would appear that there was a missing Kshs70 million which was actually spent, but in her explanation, she is trying to say that there was no existence of a Kshs70 million anywhere. She says there is a column here that seems to increase the money if it not dealt with properly. I want her to come out so clearly on whether there was Kshs70 million that was not declared by County Government and spent or there was Kshs70 million represented on paper but there was no actual expenditure. We, as Senate, want to be sure. Was there Kshs70 million raised from the County and spent by the County Government without going through the procedure of the Central Bank? Is it that there is actually no expenditure relating to Kshs70 million? Just explain in simple and plain language so that we can make a determination because it is critical.
Mr. Speaker, Sir, to answer that question accurately, one is that I would have to call for all the documents or request the Auditor General. As I said, there is a distinction between the mandate of the Controller of Budget and that of the Auditor-General. It is the Auditor-General who interrogates the financial records to determine who has been paid what and whether there was proper procurement. If it is revenue, the Auditor-General will delve deeper into the details and tell us so much was collected by Nyeri The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Proceed, The Controller of Budget. We are dealing with the Controller of Budget and we have the distinction.
Thank you very much, Mr. Speaker Sir. I was on where we draw our mandate from. As the Office of the Controller of Budget we draw our mediation powers from Article 252(1) (b) of the Constitution. With your permission, could I read?
Proceed, and Sen. Murkomen is directed to listen as you read.
Article 252 (1) (b) reads:- “Each Commission and each holder of an independent office has the powers necessary of conciliation, mediation and negotiation.” That is where we draw the powers of conciliation from. On the issue of whether I am aware of the stalemate, yes I am aware. This only came to light about two weeks ago. First, I read it in the newspapers and then met with the county assembly and the county executive. Therefore, it is a very recent matter. Under Article 252, I am attempting to try and bring the two parties together, because the people of Nyeri are suffering. They are not getting services. I am within my mandate to try and bring the two parties together, but if I am unable to, I will then refer them to the Senate and other agencies as well. I have covered issues on the Kshs70 million exhaustively. I will now move on to whether, as an office, we analysed the report that was delivered to us. We have not done so in a lot of detail, because we concentrated on the issues that affected the mandate of the office, which are basically two and I have dealt with them. Therefore, we have not analysed the report in a lot of details. In terms of whether we are aware of the variations in the budget, we are aware as I explained. There were variations between the budget submitted to the county assembly by the county executive and also the County Fiscal Strategy Paper. The variances are not many; they can be resolved. There was also variance between the approved budget by the county assembly and the budget submitted by the county executive. I am also aware that the 1 per cent variation is a matter under consideration by the Senate. Therefore, when I try to bring the two parties together, I will be alive to the position of the Senate and advise accordingly. In terms of what takes precedence if a regulation is inconsistent with the law, I will not pronounce myself on this, because this is the sole mandate of the Attorney General. He is the person mandated to interpret the law. With your permission, I will skip that one. From my record I have addressed all the questions from the distinguished Senators.
No more points of order. It is very clear, particularly yours. In fact, of all of them, yours is clearer than the rest. Conclude, The Controller of Budget.
Mr. Speaker, Sir, to conclude, I would want to just repeat for record purposes, one, that when we discovered that there is a difference between the expenditure as provided by the county treasury and the releases, we The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Order, Controller of Budget!
Mr. Speaker, Sir, I was wondering if you were listening.
I am blessed with many capacities.
Mr. Speaker, Sir, thank you very much. We raised this matter and took it upon ourselves as is within our mandate to check if this matter was persisting or it has now been addressed. That is why we did not raise it in our second and third quarter reports. Now, with the new information that has been given to us by the County Executive and this only came to light last week, we have gone a step further. We want to engage with the technical team and just check how the IFMIS and internet banking communicate with each other. However, my office also uses IFMIS and the internet banking system and the two systems are quite efficient, in my view. One handles payments from procurement right through to payment. The internet banking system by Central Bank is a secure payment system. So, we are now comfortable that the payments are secure. You are performing the ---
Order, Controller of Budget! Do not belabour that point. In any case, you have told us that you will look at the technical details.
Mr. Speaker, Sir, basically, that was the main issue that I really wanted to bring across and to say that the office has acted within its mandate. The office has not slept on the job with regard to that aspect. I hope I have explained myself and that the distinguished Senators are satisfied with my explanation.
Order, Senators! She is referring to the Office of the Controller of Budget, for avoidance of doubt. As to the determination of the finality on your performance, we will give it to you another day. For now, you are discharged, honourably. Hon. Members, that should bring us to the end of the morning session, which ends in the afternoon. So, we will proceed with the remainder of business. The House is adjourned until 3.30 p.m. today.
Order Members. Welcome back to the afternoon session of the Special Sitting. You have an Order Paper with you. We will proceed from where we left. The counsel for the Governor will be calling other two witnesses. Counsel, proceed.
Thank you, Mr. Speaker, Sir for the opportunity to further present the Governor’s case. With your permission may I call Mr. Eliud Muchoki Mureithi who is the Vice Chair of the Nyeri County Public Service Board.
Mr. Speaker, Sir, I am wondering whether you gave directions that our queries or clarifications on the acting county executive member of finance will come at the end after they complete this because that was not done.
That is correct. Let us proceed with the swearing.
Thank you. Can you again, for the record, inform this honourable Senate your full names.
Mr. Speaker, Sir, my name is Eliud Muchoki Mureithi.
Who are you?
Mr. Speaker, Sir, I am the Vice Chairperson of the Nyeri County Public Service Board.
When were you appointed as the Vice Chair of the Nyeri County Public Service Board?
Mr. Speaker, Sir, I was elected by the Board Members to be the Vice Chair of the Board when the Board was sworn into office in 2013.
Now, I am sure---
Speak through the microphone.
When were you elected?
Mr. Speaker, Sir, I was elected by the Board Members to be the Vice Chair of the Board when the Board was sworn into office in 2013.
Thank you. I am sure you have seen the allegations before this Senate.
Mr. Speaker, Sir, yes; I have.
Did you write a statement in response to some of these allegations?
Mr. Speaker, Sir, yes.
When did you write that statement?
Mr. Speaker, Sir, I wrote the statement this week 8th September, 2016. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Do you have a copy of that statement? Mr. Speaker, Sir, I am referring to the Governor’s documents, Volume 1 at page 13.
Mr. Speaker, Sir, I have my statement.
There are human resource issues which have arisen in these impeachment proceedings which the Senate would like you to clarify. For instance, there is this issue of the acting county secretary. What is your comment on the appointment of county secretary in Nyeri County?
Thank you Mr. Speaker, Sir. The issue of the acting county secretary of the Nyeri County Government is in accordance with the human resource best practice.
First of all, who is this acting county secretary before we go to the practices?
Mr. Speaker, Sir, the acting county secretary is Madam Alice Wachira.
Who is she?
Mr. Speaker, Sir, she is the substantive chief office for public administration, information and communication. She is now also acting as the county secretary.
Are you in a position to tell who appointed her to the position of the acting county secretary?
Mr. Speaker, Sir, she was appointed by the appointing authority who is the Governor.
In relation to her recruitment as the chief officer, was she subjected to due process in terms of the recruitment through advertisement among others?
Mr. Speaker, Sir, the appointment of Madam Alice N. Wachira - when she came into the Nyeri County Government, she was recruited and selected following the due process that is in place in terms of when officers are being recruited in the County Government. It was competitive, it was advertised and she went through a thorough interview process and was finally recommended to the appointing authority. Subsequently, her name was forwarded to the County Assembly who vetted and approved her for appointment.
Thank you. In terms of the qualifications of a chief officer, we do not want to spend a lot of time on this because it is in the afternoon, but just briefly state this; are you in a position to know the qualifications of a chief officer in terms of length of service? Is it similar to the one of the County Secretary at a substantive level as provided in the statute?
Thank you, Mr. Speaker Sir, and Honourable Senators. The chief officer is a job group below the County Secretary and the Board sets the recruitment criteria and the qualifications required for a person to be recruited to that office. Madam Alice Wachira met all the required qualifications that the County Public Service Board in exercise of its mandate---
What is it, Sen. Wako? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Speaker, Sir, I rise on a point of order because we do not want to waste time necessarily in asking questions which I think are irrelevant. As far as I know on the issue of chief and the Acting Chief Secretary, the issue is not Madam Alice----
Order! There is no position of Chief Secretary.
Mr. Speaker, Sir, I stand corrected. As usual, you correct me, I know. As far as this position is concerned, the issue is not the questions that are being asked. It has been shown and demonstrated that she applied for the post of chief officer, that she was interviewed and she was appointed chief officer. So that issue is really irrelevant, we do not want to waste time on asking irrelevant questions. The issue as far as I know is that she then was appointed by the Governor as Acting Secretary. She was appointed in an acting position for three months and that up now the substantive post of County Secretary has not been filled. It is not in dispute as far as I know that the Governor can appoint the Chief Officer in an acting capacity as County Secretary. However, what is in dispute is why she should continue to be County Secretary after the three months period is over and why the substantive post of County Secretary has not been advertised and appointed. That is the issue.
We have heard you, Sen. Wako.
Mr. Speaker, Sir, thank you.
Mr. Speaker, Sir, I do not know whether it is me who does not understand the question or it is Sen. Wako. In the accusation, the Governor is being accused of employing this lady who is not qualified. She is not competent and she is not qualified. Therefore, to give evidence that she is qualified, it is quite in order.
I understand both of you, Senators. It is just that there is something between you that you are missing and I will not try to explain that. However, I hear Sen. Wako loud and clear; that, in the interest of time, there are some issues that have already been dispensed with. You may just go straight to the particular issues.
Thank you, Mr. Speaker, Sir. Indeed Sen. Wako became an advocate the year that I was born and therefore I stand guided appropriately.
I was wrong in pursuing that approach. Thank you very much. Mr. Eliud Muchoki, the Governor is being accused of appointing an Acting Secretary. Can you read the charge itself for the record so that we dispense off that issue very quickly?
Which document, counsel?
Volume II of the Governor’s bundle on page 31. Can you read the first sentence of the charge so that we finish the issue quickly?
Mr. Speaker, Sir, the charge is that the Governor has made several irregular appointments in the county as follows: The first one, the Governor has appointed the County Secretary in an acting position. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
In an acting position.
Is that statement correct?
Mr. Speaker, Sir, it is not correct because Madam Alice Wachira---
Counsel, let me follow you. Page 31?
Mr. Speaker, Sir, page 31 of the Governor’s bundle, Volume II.
Mr. Speaker, Sir, charge (c).
I have seen it.
The Governor has made several irregular appointments in the County as follows: The first one, the Governor has appointed a County Secretary in acting position.
Thank you. Hold on there, we do not want to go to the details. Is that statement factually correct?
Mr. Speaker, Sir, and Honourable Senators, this is not correct.
Why do you say so?
Mr. Speaker, Sir, it is not correct because Madam Alice Wachira is substantially the Chief Officer, Public Administration, but has been appointed to act as County Secretary.
Thank you very much. Have you received the request from the Executive to recruit a substantive County Secretary?
Mr. Speaker, Sir, yes, I can confirm that the Board has received a written request to recruit a substantive County Secretary, among other senior officers like County Attorney and many others. This is included in our recruitment plan.
How many other officers have you advertised for recruitment?
Mr. Speaker, Sir, we have advertised for a range of positions that are vacant in the county. We have over 150 positions in health, including various cadres.
Mr. Speaker, Sir, we have also received a request to advertise for three chief officers for Infrastructure, Housing, Culture and Tourism and we have done that. We have received applications, we have verified them and we have also given a feedback to the Executive.
Have you been in communication with the County Assembly to update them on this progress? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Speaker, Sir, and Honourable Senators, there are three. There are three chief officers who are in acting positions. We have an acting chief officer for culture and tourism, Madam Mary Kimani, chief officer for infrastructure and roads, Mr. Julius Ringera
Mr. Ringera is for which docket?
Infrastructure and Roads. We have an acting chief officer for lands, housing and physical planning, Ms. Beatrice Koech.
Why have you not recruited these chief officers?
Mr. Speaker, Sir, we advertised for the positions of these three chief officers in August. To be specific, I can give the dates when we advertised for those positions. It was on 17th June, 2016 in The Daily Nation. The adverts for the various positions were closing on 8th July, 2016.
Just hold on. I am making reference to Volume IV, page 1059 of the governor’s bundle. The advert appears twice in the document. Is this the advert in question for the recruitment of chief officers?
Yes. This is the advert that the board put in the newspaper.
Why have you not recruited? We need to finish this issue, so that we can retire you.
Mr. Speaker, Sir, when we put this advert we got various responses after the closure of the advert. The board then put the various responses through the verifying process. We found that a number of them had different observations. But, overall, we found the applicants nonresponsive. We wrote and gave our input on our findings as a board back to the executive on 1st August, 2016. We enumerated what our observations were.
As we speak, what is stopping you from recruiting these chief officers?
Mr. Speaker, Sir, as I had mentioned earlier, as a board, we have a recruitment plan. Currently, we are engaged in identifying suitable candidates who have applied for the positions in various cadres in the department of health. They include nurses, physiotherapists, medical laboratory technicians, dental technicians; a whole range of them---
Go straight to the point why you cannot recruit, so that we save on time.
Counsel, in the morning session, we did not manage time properly. We need to finish with him. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
I am finishing, Mr. Speaker, Sir. Why is it that you cannot recruit?
Mr. Speaker, Sir, we have range of other positions that we have also advertised in infrastructure; drivers, plant operators, technicians, mechanics---
Go to the reason.
Mr. Speaker, Sir, we are giving priority to these particular positions because they are in the frontline in terms of the service delivery to the people. Therefore, we are focusing on getting those particular positions filled, because they will be posted to the outlying areas in the various sub-counties, where they will assist the government in delivery of service to the people. That is why, as a board, we are giving priority to the recruitment of these particular essential services. Thereafter, we will re-advertise the positions that will not have been filled.
Mr. Speaker, Sir, that is all for examination-in-chief.
Counsel for the county assembly.
Thank you, Mr. Speaker, Sir. Mr. Mureithi, I have a few questions for you. You have stated that you are currently the vice chair of the county public service board.
On a point of order, Mr. Speaker, Sir.
What is it, Sen. Okong’o?
Mr. Speaker, Sir, since I do not see the accused governor in the Chamber, will it be procedural and legally in order to proceed without him?
He is represented. Proceed.
Thank you, Mr. Speaker, Sir. In your testimony, Mr. Mureithi, you stated that you are the vice chair of the Nyeri county public service board. Is that correct?
That is correct.
Currently, does the board have a chair and a secretary appointed under Section 58 of the County Governments Act?
Mr. Speaker, Sir, it is true that I am the vice chair of the board. At the same time, I am acting as the chairperson of the board, because the chairperson resigned with effect from 8th September.
What about the secretary?
The secretary is on leave until mid-October.
Are you aware since when the Secretary has been on leave?
He has been on leave since early June.
Was it voluntary or she was requested by the governor to proceed on leave?
The secretary informed the board members that he was proceeding on leave.
Did she proceed on leave voluntarily or she was asked by the governor to proceed on leave?
Mr. Speaker, Sir, I want to clarify that the secretary is a ‘he’ and not a ‘she.’ The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Are you aware under what circumstances he proceeded on leave? Was it voluntary or he was instructed by the hon. Governor to proceed on leave?
Mr. Speaker, Sir, I can only report what the secretary informed the board and the letter that he showed us, as the board.
Are you aware of a letter that was written on behalf of the governor, directing the secretary to proceed on leave for a period of 90 days.
Yes, I am aware. I forwarded the letter to the secretary when it was brought to my attention.
Her proceeding on leave was by virtue of that letter that was written and received by the Office of the Governor, is that correct?
After receiving that letter saying that she was proceeding on l eave, I did not go into details of why she was doing so at the time.
Are you aware of the circumstances under which she resigned?
No, I am not aware.
When do you say he resigned?
Mr. Speaker, Sir, the Chairperson of the County Public Service Board (CPSB) proceeded on her annual according to what she told the Board. During her leave, she sent a letter to the Secretary of the CPSB informing them that she had resigned. She was instructing the CPSB to communicate with the Department of Human Resource to process her dues.
When did it happen? We are interested in the date.
We received the letter in August 2016.
Before you received the letter, how long was she away?
She was away from May this year.
To your knowledge, has there been any attempt to recruit a substantive chairperson?
Not to my knowledge.
Not to your knowledge. The CPSB as presently constituted under the provisions of Section 58 is supposed to have a chairperson nominated and appointed by the County Governor with the approval of the County Assembly. This is a very important CPSB. According to that Section 58, would you consider the current CPSB as duly constituted in the absence of a substantive chairperson?
Mr. Speaker, Sir, this matter has also been brought to the attention of the CPSB and the Committee of Public Administration of the County Assembly. We appeared before the Committee and also put it in writing explaining to them that the CSPB as currently constituted is lawfully and fully compliant with respective statutes of Section 58.
Notwithstanding the fact that you do not have a substantive chairperson who has been appointed and approved by the County Assembly?
Mr. Speaker, Sir, the law envisages that the chairperson may be away for one reason or another. That is why it allows the CPSB members to elect among themselves a Vice-Chairperson who would then step in, in the absence of the chairperson. This is common practice---
Let me ask you then: If you are saying that a Vice-Chairperson would be appointed to step in; do you have a letter from the Governor appointing the Vice- The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Speaker, Sir, it is not the first time that the chairperson has been away from the CSPB. She has been away for---
Would you kindly answer the question? Do you require a formal letter from the appointing authority to act as the chairperson of the CPSB or automatically you become eligible to act by virtue of you being the Vice-chairperson of CSPB?
Mr. Speaker, Sir, I have acted before as the acting chairperson of that CSPB when the chairperson has been away for one reason or another. I am also acting as the chairperson when the chairperson was on leave. Even now that she has resigned, I am acting as the chairperson.
Let me read Section 64(1) for you. It says:- “A person shall not be appointed to hold a public office in an acting capacity unless the person satisfies the prescribed qualifications for holding that public office. (2) Acting appointment shall be made only by the lawful appointing authority and for a specified period.” Mr. Speaker, Sir, my question is: Seeing that the lawful appointing authority is the Governor, have you been given any appointment in writing to act as the acting chairperson of the CSPB?
Mr. Speaker, Sir, yes, I do have the letter.
Do you have it with you or in the documents before this Senate?
No, I do not have it.
Thank you. Let us move on. You have been asked a question regarding the qualifications of the acting county secretary because that is the crux of these impeachment proceedings. Are you aware that the qualifications of a chief officer under Section 45 of the County Governments Act and that of the county secretary under Section 44 are different?
Mr. Speaker, Sir, it is expressly---
Could you, first of all, answer my question? Are you aware that the qualifications of a chief officer under Section 45 of the County Governments Act and that of the county secretary under Section 44 are different?
Mr. Speaker, Sir, the qualifications of a chief officer and those of a county secretary are, if anything the same. These are the reasons---
Let us not generalize. I want to refer you to the section that deals with the appointment to those two offices. We are dealing with the county secretary for the purposes of this proceeding, which is governed by Section 54 of the County Governments Act. It says:- “The county secretary shall be competitively sourced from amongst persons who are university graduates with at least ten years’ experience in administration and management.” So, there is a requirement for ten years’ experience in management and administration with respect to county secretary. Is that correct?
Yes, it is. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Let us go to the segment that deals with the chief officer under Section 45(1). It says:- “The governor shall nominate qualified and experienced county chief officers from amongst persons competitively sourced and recommended by the CPSB. (2) With the approval of the county assembly appoint county chief officers.” Have you seen a requirement under Section 45 for ten years’ experience in management and administration with respect to chief officers?
Mr. Speaker, Sir, there is what we call the---
Could you, first, answer my question, Mr. Mureithi before you can explain?
Mr. Speaker, Sir, the chief officer being an office in public service is guided by the scheme of service that guides the appointment of senior officers into public service. The CSPB has the mandate to set the minimum qualifications of any officer who applies to be a chief officer. The CSPB of Nyeri did set the minimum requirements and qualifications which I have said that they are, if not the same, similar. I am also aware of the ten years’ experience in administration and management for the appointment of a county secretary.
You are taking us through a lot of explanation even when you are asked a direct question. The explanation you gave is that Madam County Secretary is qualified because she had been recruited as a Chief Officer. Are you aware that when this matter became the subject of investigation by the County Assembly, the issue of her qualification with respect to the ten years’ experience became an issue? Are you aware of that?
Mr. Speaker, Sir, I have appeared before the Public Administration Committee of the County Assembly of Nyeri and explained in details that the county secretary’s qualifications are set in the section that the lawyer has read to us. When the chief officer, Madam Alice Wachira joined the county to be the chief officer, she had met all the requirements. By the time she was appointed to act as the county secretary, she had met all the requirements under that section.
Let me refer you to page 708 Volume II of the County Assembly Documents. Hon. Senators, I am referring the witness to Page 708 of the County Assembly Documents, Volume III. This is the Report of the County Assembly Legal Affairs Committee.
Mr. Speaker, Sir, I do have that document.
You can be assisted by your team.
Mr. Speaker, Sir, I have the document.
Could you kindly turn to Page 708?
Yes I am there.
On Page 708, there is a paragraph where reference is made to the Chairperson of the board. It starts by the Chairperson introducing the members of the committee and welcoming the representatives of the CPSB to introduce themselves. The Chairperson referred to the letter of 11th May, where they cited that the issue under deliberation was not The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Yes I am aware.
And are you aware that there was a response that was given when that question was asked, that the issue of qualification of a county secretary is not within the mandate of the CPSB?
Mr. Speaker, Sir, it is the first time I am seeing the document before me from the Legal Affairs Committee of the County Assembly. I do recall very clearly that the issue that was raised before the board was whether the board was in a position to confirm whether or not the appointment of the Acting County Secretary falls within their mandate. We categorically said that the appointment of the County Secretary is outside the purview of the board.
Just turn to Page 712. There is Paragraph 6 that makes reference that there were no copies of testimonials which were provided to the committee to ascertain her academic qualifications and experience in administration and management. You notice that there was a specific finding regarding the non-qualification of the Acting County Secretary as far as this Report of the Assembly is concerned.
Mr. Speaker, Sir, I am not aware because I have not read this Report. It has just been brought in front of me. Therefore, I am unable to comment unless I am given time to peruse and see what they said. It is until then that I will be able to answer counsel effectively.
Let us then go to the recommendation on Page 714. Following that investigation, Vice Chair, you seem very ignorant about matters touching the CPSB. Look at paragraph 6 where it is stated that the CPSB should apprise itself with law and embrace the advisory role provided under Section 59 of the County Governments Act, 2012, in the discharge of their mandate. Are you aware that a recommendation was in fact made directly concerning the CPSB to respect their mandate under Section 59 concerning the matter of the County Secretary and the role they had played?
Mr. Speaker, Sir, it is normal procedure that if a committee of the county assembly wants to communicate any matter to the board when it appears before it, it is only reasonable that they communicate in writing to the institution because when they summoned us to appear before them, they wrote to us. Therefore, the findings of their deliberations ought to have been shared with the board in writing.
So, you are saying that the board, despite appearing, was actually not even aware or did not come to know about the recommendations that were made with respect to the suitability of the County Secretary to hold office? Let me paraphrase it differently. Are you aware of a resolution that was subsequently made by the Assembly and addressed to the Governor making the recommendation that, in fact, the County Secretary is not qualified and should be relieved of her acting position as a County Secretary?
Mr. Speaker, Sir, if the Committee of the County Assembly had required us to know what its findings were, they would have addressed the board. As I stand here, I am seeing the recommendations for the first time. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Okay, let us turn to Page721 of that document and this is my last question. You have told us that only three Chief Officers (COs) are acting. Do you have a Mr. Richard Kuria Kimani acting in the Department of Finance?
Mr. Speaker, Sir, Mr. Richard Kuria Kimani appeared before the board.
Could you answer my question? I am not asking you where he appeared. I am asking you if you are aware, as the Acting Chair of the CPSB, that there is a CO by the name Richard Kuria serving in an acting capacity.
Mr. Speaker, Sir, I am confirming that Mr. Richard Kuria Kimani is the Head of Finance. He has appeared before the board and interviewed to be appointed as the Director. The board did find him suitable to be appointed to the role of Director of Finance.
Mr. Speaker, Sir, I will take that to be the answer of this witness. I am asking a very direct question but the witness is deciding to prevaricate. He took an oath to tell this Senate the truth and nothing but the truth. It will be upon this Senate to make its judgment on these answers. I am asking very direct questions but all we are being treated to is some general comment about---
Repeat your question then he will answer it.
Look at Page 721.
Counsel, that is a different matter.
Mr. Speaker, Sir, thank you. Mr. Mureithi, I have asked you whether Richard Kuria Kimani is an officer serving as an acting CO in the Department of Finance within the Nyeri County Government.
Mr. Speaker, Sir---
Yes or no.
Mr. Speaker, Sir, the board---
Point of order!
Order! Members, this is a straightforward question.
Mr. Speaker, Sir, the document before me is a new document and I would like to confirm who the various COs of the County Government are. With your permission, I can confirm the names and also those who are acting.
Then what is difficult for you to say you do not know?
He is not in my list of the acting officers.
And you are the Acting Vice Chair of the board. Proceed.
So, Mr. Mureithi, you cannot tell whether the persons listed at Page 721 are officers within the County Government serving in whatever capacity? Can you not confirm that?
Mr. Speaker, Sir, I can tell names of Mr. Kimani, Mr. Karuhe, Mr. Materi, Mr. Matheri, Mr. Rigera and Mr. Macharia because I know them and I can confirm in what positions they actually serve in the County Government of Nyeri.
Serving in acting capacity as COs.
Mr. Speaker, Sir, up to the end of last month, Mr. Walter Macharia was the CO in the docket of Culture and Tourism. He has since returned back to the The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
In your evidence, you had already given us only three persons who are acting and from this list, you are confirming that they are much more than those three that you took us through who are acting.
Mr. Speaker, Sir, without contradiction, I confirm that there are three acting chief officers and I also confirm the others who with your permission I can read their names. Those who were in their substantive positions---
Order! The question is acting.
The last question, are you aware---
Order counsel! Let him confirm the three acting ones.
Mr. Speaker, Sir, the three acting chief officers include in Culture and Tourism. There, we have Ms. Mary Kimamo. In Infrastructure and Roads, we have Mr. Julius Ringera. In Lands, Housing and Physical Planning, we have Ms. Beatrice Koech.
Who is the acting in Finance?
In Finance, we have a Mr. Kimani as the Director.
So, we do not have an Acting Chief Officer in Finance?
Not to my knowledge.
Thank you. Not to your Knowledge. Do we have an Acting Chief Officer in Energy?
Mr. Speaker, Sir, in Energy, Mr. Zachary Munga was the Chief Officer---
Who is the current Acting Chief Officer in Energy? Do you have a Mr. Robert Thuo in that capacity?
Mr. Zachary Munga is the Chief Officer in Energy until when he resigned to pursue other careers this month.
So, we do not have a Chief Officer in that Ministry?
Yes, in Energy.
I am not aware as yet.
Do we have a Chief Officer by the name Mr. John Matiri acting in the Department of Trade, Culture, Industrialization and Cooperative Development?
Mr. Speaker, Sir…
Reply with a yes or no.
Mr. Speaker, Sir, what he has read is not consistent with the structure of the departments as they are. If you allow me, I can answer this question by giving the departments as they are structured as I am here before this honourable House. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Let me ask you here, Mr. Mureithi; within the County Government of Nyeri, do we have a formal structure of how departments have been set up and the officers serving, whether substantively or acting? As the Chairperson of the County Public Service Board, can you say whether that structure exists so that this Senate can be able to get that information?
Mr. Speaker, Sir, during the CAPS programme that was launched last year, we went through a very thorough exercise of coming up with the official establishment on the---
What is it Sen. (Dr.) Machage?
On a point of order, Mr. Speaker, Sir. The witness has repeatedly refused, intentionally, not to answer questions directed to him. Would I, therefore, be in order to request that you declare him a hostile witness?
Proceed, counsel! To the witness, you do not have the luxury of answering the questions you like. You have to answer the questions put to you. To the counsel; there is an easier way of disposing it. You just put it to him then we will know your position and his.
I will just leave it to the Senate to make its own determination and judgement with respect to this particular witness but I will ask my colleague to ask one or two questions. Thank you.
On a point of order, Mr. Speaker, Sir. Due to time, could we get some direction from you that the parties as they answer questions particularly the witness that they should answer questions directly so that they cannot consume our energy too much? When they are asked a direct question whether this is a church or a mosque and he says when I was in Dar- es-salaam – naturally, you just get worn out. You better answer the question.
I just have two questions to the witness. Very quickly I am summarizing. This County Public Service Board which you serve as the Vice Chairperson, you have confirmed that the substantive secretary is on leave. Is that right?
That is correct.
Who is now performing in that position?
Mr. Edward Irungu.
So, you confirm that within the Public Service Board, there is also an Acting Secretary?
Yes, that is correct.
Who appointed him?
He was appointed by the appointing authority.
Do you have any documentation in that regard?
Not with me here.
It is not part of your record. Are you aware whether this person you are calling Mr. Edward Irungu Mwangi is a certified Public Secretary?
He is acting on special duty assignment.
The question is very direct; are you aware whether he is or not a certified public secretary? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
He is not a certified public secretary that is why he is on special duty assignment which is allowed within the human resource practice.
Are you aware of the provisions of Section 58 (1) (c) that require a person serving in that capacity as a mandatory procedure to be a certified public secretary of good professional standing, nominated and appointed by the governor?
Yes. If he is serving on substantive appointment, he has to comply with all the requirements under that section.
So, you are confirming to the Senate that the person acting as secretary is not qualified in terms of Section 58 (1) (c) to be a substantive secretary of that board?
That is substantive but in terms of special assignments, he does.
Whatever special assignment means, I will take that as a no. Thank you.
Mr. Speaker, Sir, I had agreed with my colleague outside that it is important to minimize time on witnesses because sometimes we are in court and we can see the mood of the judge is not good. We do not go so long that is why I do not want o waste a lot time asking questions as directed by Sen. Wako. So, I am not doing any re-examinations. The issues are clear and even for the next witness, I will be much shorter. Thank you.
Mr. Speaker, Sir, with your permission, I will request the witness to be sworn in.
Thank you very much. Would you be kind enough to tell this Senate your full name, please?
My name is Patrick Muiti Gitobu. I am the Director of Procurement in the Nyeri County Government.
Speak next to the microphone and be a bit louder, please.
My name is Patrick Muiti Gitobu. I am the Director of Procurement in the Nyeri County Government.
How long have you worked in that position of Director of Procurement?
Mr. Speaker, Sir, I have worked for one year, three months in Nyeri County as the Director of Procurement.
You remember submitting a statement before this Committee. Can you remember the date that you signed it?
I signed it on 11th September, 2016.
Mr. Deputy Speaker, Sir, the statement of Patrick Muiti Gitobu is on page 10 of Governors bundle Volume I. You wish to adopt the contents of this statement before this Senate?
Yes, Mr. Speaker, Sir.
Please, speak louder next to the microphone.
Yes, I do.
Anything that you want to add apart from what you have stated in this statement? Is there anything that you want to clarify specifically on the charges in question? Is there anything that you would want to clarify?
No, Mr. Speaker, Sir.
Just one issue, Mr. Patrick Muiti, for the record. Throughout these proceedings, there were these issues of pending bills. The allegations are that they arrive out of irregular procurement. That most of these procurements were done verbally and, therefore, there are numerous pending bills which have not been paid. What is your reaction on that issue?
What is on record is that we do not have pending bills. What we have are claims which are not substantiated according to procurement law.
What do you mean not “substantiated according to procurement law”?
The process of procurement is very elaborate. You start from the item being in the budget and then we have a procurement plan. After that, we have a requisition from the user department requiring the service of goods then we will determine the procurement method depending on the series. After that, we may advertise or float quotations. They are opened in public, they are evaluated and then they are taken to the tender committee for award. That is following the old procurement law. They are awarded and then the contracts are signed.
I am sure you have seen these pending bills. In relation to this procurement, do you confirm whether any of these documents have ever been brought to your attention? Are these pending letters from the contractors to the County Assembly?
No. None at all.
Has the County Government ever made any payment with respect to this documentation?
Not to my knowledge.
Coming to the task force which was formed by the Governor, the charge is that those tenders were irregular. They were awarded verbally and the Governor formed a task force to regularize them. Let me ask you a question. You, as the person of procurement, to your knowledge, did any contractor ever come before this task force which was formed by the Governor to lodge a claim?
Mr. Speaker, Sir, I was not a member of the task force.
But to your knowledge? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
I know that there was a task force which was formed, but I have never seen the results of the task force.
You have never seen---
So, you are not aware?
I am not aware.
Lastly, in terms of the procurement practices at the County Government of Nyeri, where are we in terms of compliance? Have we fully complied with the law? Are there any queries which have been raised by the Auditor-General with respect to procurement practices? Are you fully compliant with the legislation in terms of how to procure?
Yes, we follow the procurement law.
Do you interact with the authority at Nairobi; the Public Procurement Oversight Authority (PPOA)?
Yes, I talk to them.
Any capacity building that you do?
Yes, we did our capacity building by PPOA. They trained our staff for one week. We have had about five trainings by the Kenya Institute of Supplies Management (KISM). Our staff have had various training sessions with KISM.
Okay. Mr. Deputy Speaker, Sir, most of the other issues can come in during cross examination. I rest my case.
Thank you. Cross examination.
Yes, your honour.
I will be very brief in my questions. I have very few questions. In the morning, we were told in the presentation that has been made on behalf of the Governor, that it is the MCAs who gave out contracts within the County. My question to you is, do you have with you a list of contracts or tenders awarded by the MCAs? Do you have such a record or such a list? Have you ever seen it?
By the MCAs.
By the MCAs.
We were also told in the opening statement by the Governor that when he came back he found that MCAs had given themselves certain contracts and tenders. As the Procurement Officer or the Director of Supply Chain Management, Nyeri County, do you have a list of contracts or tenders given to MCAs by the County Government? Do you have such a list?
No. We do not give contracts to the MCAs.
You do not give contract to the MCAs?
We cannot hear you.
We do not give contract to the MCA or any Public Officer.
So, you are stating for a fact in your position as the Director that there are no contracts or tenders given to MCAs by the County Government?
That is true, your honour. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Thank you very much. We are happy with your clarification for that very important matter. Confirm to us when you were appointed to your position?
It was 1st June 2015.
1st June 2015? So, that is way after the procurement of the Karson House building and the renovation.
When all that was happening, you were not an employee of the County Executive?
I was not.
You were not? Now from your position as an expert or as a professional in procurement, is leasing of buildings part of procurement as a matter of law?
Leasing of building is done by professionals from Ministry of Housing. I repeat Housing---
What is the legal basis of your assertion? Can you cite any legal provision to that effect?
I have worked in the national Government for many years. We have leased buildings---
I am asking you for legal basis and not experience. Let me help you my friend. Section 2 of the old law which, for the record, has also been reproduced in the definitions in the new law has the definition of procurement. I can give you to read, just for the record. Just read it out for the Senate’s benefit.
It reads:- “Procurement means the acquisition by purchase, rental, lease, hire purchase, license, tenancy, franchise or by any other contractual means of any type of works, assets, services or goods, including the livestock or any combination.”
Therefore, by law under that definition, leasing of buildings is part of procurement.
Yes, Mr. Deputy Speaker, Sir.
Although you were not there when Karson House was procured, we were told in the morning that the procurement was through evaluation by the Ministry and then subsequently, a lease was executed. Hon. Senators, I wish to refer you to governor’s documents, Volume IV, at page 130. We can start with 142, which is the lease. Kindly confirm the date of that lease. “This lease is made on”---
20th May, 2013.
he lease was signed by the parties in 2013. One of the parties was the Nyeri County Government. Now let us go to the letter forwarding the valuation, at page 130. It is a very short letter. Probably, you could read for us the second paragraph; “After inspection”---.
It reads:- “After inspection of the subject office space, we recommend a reasonable rent of Kshs172,480,000, inclusive of the service charge per month.”
Very well. This is from the Ministry of Land, Housing and Urban Development. Can you confirm the date of that letter? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
It is written “17th March, 2014.”
rom those two documents are you able to confirm to the Senate that the letter forwarding the valuation on rent was made almost one year after the lease was signed?
That is true.
So, it cannot have been the basis upon which this particular lease was procured, negotiated and consummated. Is that right?
Yes, Mr. Deputy Speaker, Sir.
he last question is on the taskforce, which you say you were not part of and you never sat on it. Are you aware whether this taskforce ever sent out public notices inviting persons with any claims to bring them to it?
There was an advert in the press.
Do you have the advert?
Do you know whether the advert, which you do not have, also included the place, time and dates when that taskforce was supposed to sit? Is it something within your recollection?
You cannot remember. Mr. Deputy Speaker, Sir, Hon. Senators, that will be all for this witness.
Thank you. Any re-examination? Next witness!
Mr. Deputy Speaker, Sir, we do not have any additional witnesses. Regarding the additional witness that we wanted to introduce earlier on, the Speaker issued a ruling that we cannot introduce his statement-in-evidence. Therefore, we will be resting our case now. Thank you very much.
On a point of order, Mr. Deputy Speaker, Sir. I see the witness standing at the door with a very huge file. Could you give directions to dismiss him or something of the sort?
What directions do you expect me to give? He has finished his evidence and is free to retreat. Witness, you are free. Thank you for the evidence. CLARIFICATIONS AND QUESTIONS FROM SENATORS We are not doing badly. We are now at clarifications. We have one hour for clarifications from Senators. Like we have been doing in the past, all you need to do is state the clarification you are seeking, either from the governor’s or the county assembly side. As to who will answer the question, will be at the discretion of Counsel. We can proceed from there. Sen. Mutula Kilonzo Jnr.
Mr. Deputy Speaker, Sir, I have about four questions. The first question will be directed to the governor or his lawyer. From the letter dated 25th August inviting the governor to appear before the county assembly, the governor did not respond. The letter by the advocates to the county assembly does not refer to the notice by the governor and The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Deputy Speaker, Sir, mine are two little ---
Order, Sen. Murkomen! You are in the direct line between Sen.(Prof.) Lesan and me.
Mr. Deputy Speaker, Sir, thank you. Now you can see me. Let me seek two clarifications. It is about the renovations that were done. I would like to know from the Counsel for the Governor, whether these renovations that were done in this building; were they the type of renovations that were going to be removed at the end of the lease or they were permanent modifications of the building? Two, I would like to have a simple explanation of this variation in the dates of valuation and lease. Looking at it as it is now, it can only mean that there was a mistake or there is a case of deception in the dates of the lease and the dates that the valuer moved into the building. I would like to have a clarification.
I believe the procedure that we are following is that we shall take all the clarifications at the same time. So, we take all of them and they will be given at the same time.
Mr. Deputy Speaker, Sir, thank you for giving me this opportunity so that I may also ask my questions. The first one is to the Governor and his lawyer. Why, of all the CEC members that you have, out of the 10 members, I can see nine men and one woman. This is in clear contravention of Article 29(8) of the Constitution. Second is on the rent. I had asked this question earlier in the morning but I will repeat. Why did the County Government do renovations on a private property amounting to Kshs29.1 million and go ahead and pay rent of Kshs10 million and why the County Government did not see it necessary to recoup the rent from what it had already expended on? Finally, just like Sen. (Prof.) Lesan asked, could you make clarifications? Why was valuation done one year after the lease had already been issued? The last question is in regard to a clarification on the actual amount paid to Karson Photo House. Was it Kshs14 million and some cents or Kshs29 million for the renovations? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Deputy Speaker, Sir, my question is with regard to gender compliance, just as Sen. Ong’era has spoken to. Earlier on, the Counsel to the Governor said that the Governor did not comply with the gender due to the failure on the same at the national level. Due to the fact that the gender balance had not been done, does that warrant the kind of imbalance that they have in the executive? Is it that they did not have any competent persons from the said gender that is not represented?
Mr. Deputy Speaker, Sir, thank you. To the Governor, there is evidence that indeed, you were invited to attend the proceedings but could not. Could you clarify; did you present yourself accompanied by your lawyer and you were turned away? Two, you have asserted that the accounting officer was responsible for the mistake of non-disclosure of the amount of around Kshs352 million. Are you aware that had you honoured the invitation, you were free to be accompanied by that officer and that all you needed to do was to introduce the officer and he would have discharged on your behalf during the hearing in the County Assembly? Mr. Governor, you have said that the Public Accounts Committee (PAC) in Nyeri County Assembly must sit pretty and wait for the Auditor-General to complete the audit of the entire financial year. In view of your background as a former Member of Parliament (MP) in this Parliament and in fact, you were my colleague, are you not aware that PAC is free to be seized of any matter and in fact, has the discretion of ordering for a special audit? Governors are expected to hold and indeed they do hold regular CEC meetings on decisions made by accounting officers. In fact, further to that, Article 226(5) of the Constitution - --
Sorry! My time is up. Could I?
In fact, Article 226(5) of the Constitution – I will not read – provides even more emphasis for the same. Governor, in view of this, do you still hold that you are not responsible for the transgressions that the Nyeri County Assembly found upon you?
Mr. Deputy Speaker, Sir, I have a few questions to the Governor. One, a lot of senor staff of the CEC are working on acting capacity. The chief officers and the County Secretary and, in fact, even the CEC for Finance whom all of you have agreed even in your own presentation, that he is on acting capacity but when he made his statement, he purported to call himself the substantive CEC in charge of Finance. Mr. Governor, do you not find it important to have these staff confirmed and give the responsibility to the County Assembly to carry out its responsibility of approving. The second is with regard to the county secretary. What is this obsession with this county secretary to the extent that when the county assembly has made a recommendation, you have stuck with her? What is this particular qualification that this county secretary holds that no other person in your county or in this country would hold? For your information Mr. Governor, the last Governor that we sorted out through an impeachment, had the same obsession with his county secretary. So, can you tell us what specific qualification your county secretary holds? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Thank you Mr. Deputy Speaker, Sir. Mine is in the form of an observation addressed to both parties. In all these proceedings, I get the impression that the working environment between the executive arm and the county assembly is severely strained. There is bad blood between the members of the assembly and the executive. This has obviously led to a lot of misunderstanding and conflict between the two arms of government in the County Government of Nyeri. Therefore, I want pose a question or two to both parties: Do both parties acknowledge the existence of this poor working relationship? Do they both accept having contributed towards this situation? As a way forward, does each party feel that the differences can be resolved and that the relationship will grow in the interest of the citizens of Nyeri County? Thank you.
Thank you, Mr. Deputy Speaker, Sir. I have a number of questions. I will be precise. One of the things that are not clear in my mind as we head towards making a decision is the leasing of Karson House. During your presentation, one of the information was that when you invited bids for property to lease, there was no response and that Karson House was the only facility that was ready. The accusation that the assembly is making against you is that prudence. Prudence is not a definite thing. I thought in your further clarification to us, you may want to show us advertisements that went out and minutes of the tender opening or things like that which may justify your allegation that there was no other bid received from other entities. Mr. Deputy Speaker, Sir, secondly, in your presentation about the county secretary, you alluded to the county secretary being there to perform, sometimes, special duties. What are these special duties that you alluded to? Finally, to the assembly, you said that in your charge item six that the road was built at a cost of Kshs10 Million higher than the engineer’s estimates. Could you please-perhaps it can be here but I have not seen it-point us to the specific document. It can be a letter from the engineer showing that for sure, the road was built at a higher cost. Thank you.
Mr. Deputy Speaker, Sir, I want to pose a question based on the signed lease. I base this on my experience as a serious landlord. When you sign a lease to rent a property you take it the way it is. The value is based on the cracks appearing and the leakages on the roof. That is where you signed the contract. The assessment must be done after the renovations to look at the cost. I want the counsel to consult the Governor and come out with some clear answers on why the valuation was done after the lease was signed? The property is leased for Kshs10 Million for example but the renovation is taking Kshs29 Million. A property that will cost rent of Kshs10 Million in 10 years, normally with simple calculations, it will cost you to buy a plot on that land with Kshs5 Million and construct it with Kshs7 Million and that totals to Kshs12 Million and you own the building. Why did you cost the county that money? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Deputy Speaker, Sir, the Senate in a couple of hours or minutes will make a decision on the impeachment of the Nyeri County Governor. The decision will go either way. There is a question I wish to know from the Governor. For how long will the situation be and the relationship between the county assembly and the executive be? For how long do you intend for people to act in office? For how long will the county public service board have officers acting? For how long will this state of limbo be in Nyeri County? Even the questions that are beyond the impeachment of the governor, the Senate is interested in knowing, for lack of a better word, that the county has been disabled. It is not functioning. I will also be happy to hear from the county on how long this impasse will continue. Mr. Deputy Speaker, Sir, I am not clear on the question of Kshs352 Million and the one for Kshs70 Million, both from the county assembly perspective and from the Governor. From the county assembly perspective, whether the county assembly is saying that the documents are not available or they are saying that Kshs 350 Million plus Kshs70 Million is misappropriated; this needs to be clear from the county assembly but also to the county executive. The information you are giving us must be clear whether it is answering the question of documentation or accountability on the misappropriation of that money. If there is something that is playing around my mind that looks closer to being weighty, is the amount of money we are talking about.
Mr. Deputy Speaker, Sir, I would want to say this with a very heavy heart. A lot of times when people want authority and power, there is an element of excitement, but when it comes to accountability, then people try to run away. In accordance with the Constitution, in fact, the Constitution of Kenya borrowed words which are more relevant in the corporate world than in the public affairs. It says that the County---
Where are you reading?
Mr. Deputy Speaker, Sir, I am reading Article 179 of the Constitution. First of all it says: “A County Executive Committee consists of the County Governor and the Deputy Governor and the members of the County Executive.” Sub-Article (4) says: “The County Governor and the Deputy Governor are the Chief Executive.” This is a language from the corporate world. Then it says again at Sub-Article (6): “The members of the County Executive are accountable to the County Governor.” Mr. Deputy Speaker, Sir, if you read the Constitution and the County Governments Act, things begin and end with the Governor. That is why I am saying it is very important when you take these positions to be prepared to take these responsibilities. I am worried by the fact that at the end of the day despite these constitutional provisions, there is a tendency to argue that this is not the responsibility of the Governor. There is the Chief Executive or there is the Board. So is The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Deputy Speaker, Sir, I would want both the Governor’s side and the County Assembly to clearly give clarity to the people to tell them because four months down the line you have not done your budget, you have not done your appropriation and we are now in September. When will this county start its work? How will you ensure all your workers, especially your health workers are not going to go on strike? Secondly, the Governor to explain to us what happened to the CEC of Finance who was from the Treasury and therefore definitely he was a competent person at that time. Was it issues of mismanagement? Can he explain to us and also to the Nyeri people to understand and indeed to look at the Public Service Act and realise that you are not supposed to be acting more than three months? So, what are you going to do with all your officers who are acting? If they go to court definitely, they will be heard and you will have to explain. Lastly, is on the issue of utilising your local revenue at source. I know the Controller of Budget talked about this but it is something that we need clarity so that no one will blame the institution of Senate that indeed Kshs70 million was either in the budget of 2014/2015 and you had appropriated it to do something. That is why it was carried forward to come and deal with issues of 2015/2016 or indeed the money was used at source. You must help this Senate to clarify that or else Kenyans will believe indeed Kshs70 million was misappropriated. Thank you.
Mr. Deputy Speaker, Sir, most of the issues have been raised by other Members but I will raise about three or four. First, I heard somebody say that Section 24 of the County Governments Act is not capable of being violated and this is in reference to the giving of consent to the Bills. Section 24 of the County Government Act is similar almost word for word to Article 115 of the Constitution which I had the pleasure of participating in the drafting. The mischief was; how do you deal with the President and in this case with the Governor who refuses to give assent or refer the matter to the County Assembly with the reasons of refusal. A Governor who does not exercise his discretion because that had been the mischief under the previous regimes, they were sitting on the Bills. We came up with a solution that in that case the country should not suffer because the Bill can become effective after 14 days of publication. However, the mischief of the Governor or the President is there and can be punished in whatever way possible. The third one is the issue of the County Secretary. All the documents we have been given are documents of an attempt to feel the positions of acting chief officers. We have had no document whatsoever to fill the post of the County Secretary. Although, the County Assembly did point out that the post must be filled and that he was not capable of doing the work of the County Secretary; that is in spite of the fact that the period which is allowed in any acting position could be three months, but at most six months according to the Public Service Regulations and those are long gone. So, why is it that that post has not been advertised and they are only advertising posts of chief officers and the two positions are separate?
Sen. Wako your time is up. It has been up for a very long time.
Thank you, Mr. Deputy Speaker, Sir. There are three clarifications I am seeking and I hope they will be quick. First, this Karson Photo House which was rented, it was The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Sen. Madzayo, are you on a point of order?
No, Mr. Deputy Speaker, Sir.
Mr. Governor, in your introductory remarks to this House, you told us that for some time you were ill or had poor health. In your own opinion, do you think that is the reason you have very many acting secretaries in your cabinet? Two, did you appoint them into that capacity or another person does the appointment and waits for your ratification? Thirdly, under Article 181 (d) of our Constitution, the county assembly could have as well have taken that opportunity to remove you from---
Order, Sen. (Dr.) Machage. Are we pursuing the right line?
Yes, Mr. Deputy Speaker, Sir. I am asking a question. I am just quoting what I want to base my question on. In your view and opinion, do you not think that the county assembly has been fair to you?
Finally, Sen. Hargura.
Mr. Deputy Speaker, Sir, I would like to get a clarification from the county assembly on the issue of splitting of tenders, contrary to Section 30 of the Public Procurement and Disposal Act. Normally, when this kind of splitting is done, somebody is trying to avoid a particular procurement process like direct tendering. They split so that they can do quotation. Is there any achievement on the part of the executive in being able to avoid a particular procurement system because of splitting these tenders?
Mr. Deputy Speaker, Sir, in accordance with our observations, there are quite a number of senior people who work with the governor and are in acting capacity. They The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Thank you, Senators. There are no more requests for the Floor. The direction is as per our programme. We will now proceed to the responses after which we will go to closing remarks. This will take just about one hour, together with the time that we have already taken.
Sen. Wetangula, what is your request? I had essentially closed, but you have two minutes to raise an issue.
Mr. Deputy Speaker, Sir, I am sorry I was away for part of the morning. I had gone to represent all of you at the burial of Mzee ole Ntimama, and it went well.
Your time is running.
Your Excellency Governor and your Counsel, in all these proceedings, every governor goes to office with a running mate called the deputy governor. When the governor is away, the deputy governor should be there to do some of the things that you are being asked. Where is he, and what has been the role of your deputy governor in this entire process?
We shall now have the responses starting with the governor’s side.
Thank you, Mr. Deputy Speaker, Sir, for giving me an opportunity to respond to some of the issues. From the outset, as I said a little earlier in my opening remarks, and given that this is the first quasi-judicial hearing being conducted at the Senate by the Plenary, and being the accused person, by and large I am fairly happy with the way the proceedings have gone. In the closing remarks, we will put our case. So far, as the Governor of Nyeri, I am happy with the way proceedings have gone. Mr. Deputy Speaker, Sir, I want to explain a little about the county secretary who seems to have generated so much heat. Indeed, this is a very crucial position in any government. Were it not that we are the ones in the dock today, you would be surprised at how many governments have county secretaries. This is the heart of the county government. It is an office where a lot of day to day decisions that affect so many are made. Therefore, that the office generates heat. The last substantive county secretary that we had in Nyeri resigned. As the appointing authority she confided in me that she could not take the pressure of the office of the county secretary. She was a very competent, hardworking and ‘soft’ young lady. It is that ‘soft’ bit of it that could not make her conduct this job. On a number of times she was admitted to hospital for high blood pressure due to the pressure that she was getting at the county assembly; the summons, unnecessary demands, timelines within which she had to do things and sometimes even the use of unsavory language. She was always summoned and there was little she could do. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
(Sen.) Kembi-Gitura): You have ten minutes.
Mr. Speaker, Sir, the Department of Works was going to look for these offices. I can only give such a direction at the Executive Committee. I cannot divulge this to the Cabinet.
(Sen.) Kembi-Gitura): Order, Governor! For the sake of good order and timing, you have ten minutes between you and the Counsel. After which I shall give 20 minutes to the County Assembly to deal with their issues.
Thank you. Counsel, do you have anything to say in a very short time?
Mr. Deputy Speaker, Sir, I will address the issue of representation at the Assembly. I request for strictly 10 minutes.
I gave you the timelines, did I not? Just take your five minutes so that we see how far you will go. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Thank you, Mr. Deputy Speaker, Sir. What happened at the County Assembly is that the Governor, in accordance with the provisions of Section 5 of the Fair Administrative Action Act was to be represented by counsel in the quasi-judicial process which was happening at the County Assembly. He did not come to the County Assembly in person but he sent legal counsel. We communicated the fact of us acting for Governor to the County Assembly a day before they impeachment because everything was being done very quickly. A day before the impeachment, we communicated through a letter which they acknowledged. Indeed, when I went there, there was massive security at the entrance of the building. Because I had communicated that I was coming, the Speaker had made arrangement for me to go straight to the Clerk’s Office and later to his Office. When I went to his Office, the issue was read out. We discussed and then the Speaker said that; unfortunately, we cannot allow you to represent the Governor before the County Assembly. I had gone there with documentary evidence which had been given to me by County Executive Committee and the Governor too addressed those issues. That is what happened at the County Assembly. I was asked to leave and then the impeachment proceedings continued. Secondly, regarding the issue about non-disclosure of the Kshs70 million, first of all, I appreciate that--- There are more senior lawyers here. Yesterday they raised the issues and based on the experience of doing impeachment before, I thought that there is more than we need to do in terms of bringing documentation. Remember that it was very late. For the first time, we received the County Assembly’s evidence from the Clerk’s Office. That was a day before yesterday. So, we did not have time to look at these issues. Nonetheless, we prepared a huge bundle of documents which contain most of the issues. We worked overnight. Yesterday when these issues arose, even if the burden lies on the Assembly, for purposes of making sure that Senators do not think that we are hiding anything, I requested for a printout of the IFMIS payment and the IB payment from the County Executive which I requested to be availed before this Senate. I also requested for many other documents including the complete tender documents for the Karson’s Building. The documents I have before me are those documents which contain the extract of the IFMIS payment and the extracts of the IB Module to clear the issue that the Kshs70 million has been accounted for and it is consistent with what the Controller of Budget submitted today. Again, I requested for the file on the Karson’s Building. From the evidence that is in this file, it is very clear that in terms of the procedures, for instance, the renovations which are said to have been done on this Building are actual partitions to make the Building fit within the needs of the County Executive. They are not renovations and I have documentary evidence for that. Unfortunately and this is our own mistake, we prepared this bundle yester night up to 2.00 a.m. but unfortunately, we requested for this. It is really our mistake and we cannot blame the Speaker for having ruled against us because the rules were very clear. At the end of the day, we are saying that we have documentary evidence in proof of most of these allegations in a complete manner. If we had been given time and opportunity, we would definitely have brought this to the attention of the Senate. I made 40 copies of this yester night. It is not that we are hiding anything. From where we stand as the position of County Governor, we have documented evidence. So the issue of Kshs70 million and any other issue which requires documentary evidence is indeed there. For instance, with respect to the non-motorized facility, I requested the specific payment vouchers which we now have which shows that contrary to the County The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Is that all? Do you require more time? How much more time do you require?
Perhaps 10 minutes.
No, I will give you five minutes, in which case the other side will also have 25 minutes if they need it.
Mr. Deputy Speaker, Sir, I appreciate. On the issue about whether these allegations are gross or not, I wanted to simply explain that – I appreciate my senior colleague, Sen. Mutula Kilonzo Jnr. – we may have a difference of opinion on the issue. Perhaps, your opinion is much weighty in terms of experience and all that but in my humble opinion in terms of whether these allegations are gross or not, we thought that the Court of Appeal has interpreted the decision fully regarding the provisions of Article 181. The Court of Appeal said that impeachment is a serious matter and it ought to meet the threshold in the Constitution. Therefore, there must be nexus between the Governor and those allegations and that those allegations are supposed to be specifically detailed and gross. So, that was my opinion. I may be wrong and all that but I respect the comments. Secondly, in relation to the provisions of Section 166 and the reports which are required under 167, I went to check the issue. I went to check and if you look at the provisions of Section 164 of the PFM Act, it talks about financial statements. I may be wrong on this but the financial statements are the balance sheet, the income expenditure of the county government and the cash flow. So, these are the financial statements which are required by the PFM Act for the county treasury to submit to the county assembly on 30th September every year. However, if you look at the provisions of Section 166, this talks about quarterly reports. So, I agree with you that there may have been some mistake which was made in that documentation resulting to this impeachment. I perfectly agree. I do not need to belabuor that point further. On the issue of gender compliance, I need to point out that indeed, there is no gender equity in the County Executive of Nyeri. That is very clear. However, in terms of the evidence which has been represented by the governor, it is something that the governor needs to look at for purposes of remedying but at least a third of the County Executive Committee Members are not supposed to be from the same gender to meet that law. So, it is not an excuse that they are saying all these paralysis at the national level will affect issues at the county level. Something ought to be done at the county level. It is a challenge but it must be done. Steps should be taken to ensure that we do not have that problem at the county executive level in terms of composition. I know my time is up. I will retire because my five minutes are up.
Thank you very much counsel. Counsel for the county assembly, you have 25 minutes if you need them. Just to remind you that you will be dealing with only the issues directed to you.
Thank you Mr. Deputy Speaker, Sir. I will want to directly respond to the issues raised knowing that we responded to most of the issues from our presentation yesterday. On the issues of Court of Appeal decision alluded to it by my learned senior Sen. Mutula Kilonzo Jnr. Yes, a full evaluation of that judgment by the court, it revealed that the The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
What is your point of order Sen. Murkomen? Just a minute counsel!
Mr. Deputy Speaker, Sir, will I be in order to make an application according to the relevant Standing Order that the House extends its sitting until we complete these proceedings?
What Standing Order is that? You said relevant. I do not understand what you mean by “relevant.”
Mr. Deputy Speaker, Sir, it is already 6.00 p.m. I have made the application on time. I notice it is 6.00 p.m. I just want to put you on notice.
I do not believe we need to extend time.
Mr. Deputy Speaker, Sir, it is Standing Order No.30.
Yes, but what does the gazette notice say?
Mr. Deputy Speaker, Sir, I was just acting out of caution because---
I appreciate that very much, but even yesterday we finished past 6.30 p.m. I am perusing the gazette notice to see what it says.
Mr. Deputy Speaker, Sir, we rose at 6.30 p.m. We only extended by two minutes or so.
Hon. Senators, if you follow keenly the programme we have been using, including the one we used today, you saw that we rose long after 12.30 p.m. The normal rising for the House in the morning is 12.30 p.m. The reason for that is the gazette notice that was issued by the Speaker on 9th September, 2016 talks about the sitting days. For today’s Wednesday, 14th September, 2016 commencing at 9.00 a.m. Those are the riding words, “commencing at 9.00 a.m.” So we do not have to extend time, but we can sit until midnight. We may want to extend time at midnight, but I do not think it will be possible because then you need another gazette notice. Thank you very much Sen. Murkomen for raising the issue. That is the legal position. You may proceed, Counsel.
Thank you, Mr. Deputy Speaker, Sir. There is a Senator, forgive me for not recollecting who it was, specifically. The Senator asked specifically where within our documents one can get the issue of the Engineer’s estimates. That should be in County Assembly documents, Volume III on page 411. It is an extract from the audit report of the Auditor-General and the categorization and the breakdown is clear from that 4.5, contract sum Kshs48,744,467, Engineer estimate Kshs38,638,342, the variance Kshs10,106,125. On page 276, a few pages before of the same document, you will see the agreement made between the County Government and the contractor. The contract sum is indicated as Kshs48,744,467. Those are two reference documents that you will be looking at in considering that particular ground. I take that question also with regard to the issue of the splitting of tenders. On page 433 of the same document, you will see in the matter of this Karson House. This Karson House needs to be understood properly in context. It is not really the entire building. The County Government is only acquiring about 11 offices, one and a half floors to house some of their officers. So it is not really the whole building that they we were partitioning or renovating. The total tenders in our estimation the contract ought to have been awarded to one contractor who could then have subcontracted the works, but the split tenders are as highlighted to make a total expenditure for The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Thank you, Mr. Deputy Speaker, Sir. There is a question that was asked on how one unlocks this impasse. First, we do not ourselves see any impasse. What we have is a problem that has been created solely by the Executive. We say this because, first of all, when the Assembly discharged its mandate and approved the budget in line with the law, it is the Executive that intentionally sabotaged that process. What you heard is that they did not forward the Appropriation Bill to the Assembly. Therefore, without that Appropriation Bill then there was absolutely no way that the budget would have been implemented. Mr. Deputy Speaker, Sir, you heard the Controller of Budget in the morning saying that the opportunity that she has had to listen to the parties, the variation was not big. However, we were then told by the CEC Finance, that this budget could not be implemented. I think the Hon. Senators were quick to see where the problem lies. If the problem was that variation, what then would have been so difficult in having the Bill forwarded to the Assembly, passed by the Assembly then you initiate the process of implementation of the budget? Then along the way, you can either come up with a supplementary budget or just resolve whatever issues there might be in the process of implementation. The problem that we have, where the residents of Nyeri County cannot access services, has not been occasioned by the assembly. The assembly is now being blamed for discharging its mandate. But just because that document that was approved by the assembly is not what the executive considers palatable, the executive now decides that they will not have this budget implemented. That would be wrong because it is blackmail. Probably, they want to push this institution to a point where salaries are delayed, operations cannot go on and then, you will be told that it is you who caused this. That unless you rethink your position and forward to them a budget that they can work with, this problem will continue indefinitely. That is not how devolution was fashioned to work. If the independence of this very important organ called the assembly is not protected from this sort of machination, then the dream that was envisioned by the framers of the Constitution will be lost. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Very well. Thank you very much. We will proceed to the closing remarks. Let me kindly have an indication from Counsel about roughly how long each of you will require for the closing remarks. Sen. Murkomen.
From the body language of both counsels and both sides, it appears to me as though the clarifications they were making were their closing remarks.
Order, Sen. Murkomen! I cannot see their bodies from here.
Mr. Deputy Speaker, Sir, the mood of the House.
Order, Sen Murkomen! No, there is no mood of the House. I need an indication so that I know how much time to give you. I will give you the time that you require. I will not curtail your time but I would just like to have an indication so that I have the timelines. Counsel for the County Assembly? Sen. Mutula Kilonzo Jnr., what is your point of order?
On a point of order, Mr. Deputy Speaker, Sir. We were thinking that most of the issues have been raised. However, the conclusion of the processes after the submissions--- I thought it would have been much better the submissions and our deliberations are done simultaneously, if we think that we can do that today.
We agreed on our timetable, if you recall. I have a working sheet. I am not just getting this from my own mind. I have a programme that I want to follow. All I know is that we have until midnight if we wish to go on until then, but that is the programme we have and I think it has been shared with the counsel. So, even as I am asking them, I think they know that now it is time for them to make closing remarks. For their convenience and that of the House, I am just seeking an indication. If you have no indication, then I will give you timelines within which you must make the submissions.
On a point of order, Mr. Deputy Speaker, Sir. I would like to bring your attention to Standing Order no.109 and request that you adjust that Standing Order to today’s sitting and read it to the ---
Standing Orders No?
Mr. Deputy Speaker, Sir, Standing Order No.109. It deals with matters of irrelevance and repetitions. I request that that Standing Order will also be respected by the lawyers. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Sen. (Dr.) Machage, with respect, I am not going to preempt the situation. I do not know what they will say. They are doing an extremely important function of representing their respective clients. I do not want to be pre-emptive. Now, Counsel, if you do not have any indication of the time, then I will give you time within which to do your submissions. Sen. Orengo, are you on a pint of order?
On a point of order, Mr. Deputy Speaker, Sir. I thought that you would be useful in terms of pointing out to the counsel what we would like to hear at this stage because it is not really a general address.
I am asking them, in the first instance, to let me know how long they will require. If they do not do that, then I will give directions. Counsel for the County Assembly.
Mr. Deputy Speaker, Sir, between ourselves, we will take a maximum of 15 minutes.
What of Counsel for the Governor?
Mr. Deputy Speaker, Sir, I will take similar time. Strictly 15 minutes.
That is good. Okay. Now, I am not going to - --
Order, Sen. Murkomen! Unlike what Sen. Orengo has said, I will not restrict you. It is up to you to say what you want to say in your closing remarks because it will help us as a Senate to recap everything that we have heard since yesterday and today. So, it is up to you. Use the time. You have asked for 15 minutes, I will give you 20 minutes each. So, Counsel for the County Assembly, you begin. CLOSING STATEMENTS ON BEHALF OF THE COUNTY ASSEMBLY
Mr. Deputy Speaker, Sir, it is good you have good intentions of me. One day, I will be a Senator but for now, I am just counsel for the County Assembly. I proceed to make our closing remarks. I will not go back to the grounds because in our closing submissions, we submit that all the grounds that are set out in the Motion and the charges before you have been well established. A factual basis has been laid. Evidence has been read and a legal foundation of each charge both in statute and in the Constitution has been established. We have done more than that in our documents. We have reproduced copies of the extracts of the material statutes just for your evaluation and convenience. However, I want us to evaluate this ruling by the Court of Appeal that has been alluded to one time too many. It is found in the documents of the Governor Volume III. There is a very important finding that I wish the Senate considers in exercising your mandate in this matter. That is on page 111. Governor’s documents, Volume III on page 9 of the judgment of the Court Appeal in Civil Appeal No.21 of 2014. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Thank you, Mr. Deputy Speaker, Sir and the Hon. Senators. This Senate is being called upon to discharge a solemn mandate. It is a mandate that is enshrined in our Constitution that is only reposit on this Senate. Before this matter was escalated to where we are today, the assembly has really suffered. It has been frustrated. The people of Nyeri County have suffered. They are looking upon the assembly to alleviate that suffering. Mr. Deputy Speaker, Sir, this Senate has been seized of a matter of this nature before. This Senate does not just rubberstamp the decision or the resolution of the assembly. It considers very critically what is before it. That is why it has agreed with the decision of the Assembly, and in other instances, it has disagreed. There is no better way to demonstrate the independence and the ability and the capacity of the Senate to interrogate the matter before it. Mr. Deputy Speaker, Sir, with the respect to the matter that is for consideration this evening, we have been able to demonstrate that the charges facing the Governor are largely not by omission but intentional acts of gross violation of the law. The law is clear, as has been said before, and I do not intend to take this Senate back on the issue of threshold, but suffice it to state that there is no mathematical formula that you will find under Article 181 that you are to employ in determining what is gross and what is not gross. Our courts have in the past attempted to set out some regulations or a sort of some loose formula for guidance purposes. Allow me to just refer the Senate to the Governor’s documents Volume III, a decision you will find at page 116. I refer to this decision because, first, it is a decision from the Court of Appeal. In fact, it is a decision that we have from the highest court in Kenya on the matter of threshold and, therefore, it would be a useful tool in guiding the deliberations of this Senate. Mr. Deputy Speaker, Sir, and Honourable Senators, if you could refer to paragraph 46 of that decision - I know it starts from paragraph 45 - This is what the Judges of the Court of Appeal sitting in Nyeri had to say about what constitutes gross violation. “We reiterate that what constitutes gross violation of the Constitution is to be determined on a case by case basis. Gross violation of the Constitution includes violation of the values and principles enshrined under Article 10.” So, if Article 10 prescribes gender parity in appointments and you have a violation of that article, within the interpretation of the Court of Appeal, it is a gross violation. Mr. Deputy Speaker, Sir, then much more importantly is what follows thereafter. “That Article 10 of the Constitution and violation of Chapter 6 of the Constitution – I want to pause here to emphasise, Honourable Senators – or intentional and/or persistent violation of any article of the Constitution or intentional and blatant or persistent violation of the provisions of any other law.” So, if this Senate is satisfied that there is a violation of one section of any other law, a section of the statute, an article of the Constitution, if you are satisfied that the Assembly has been able to demonstrate, one, violation attributable to the Governor, then there would be a basis to return a verdict that the charge has been substantiated. That is the Court of Appeal speaking. Mr. Deputy Speaker, Sir, just a brief highlight.
Your time is up. How much more time do you need? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Deputy Speaker, Sir, five minutes so that I can wrap it up.
You have five minutes.
You could extend, but your time is up.
Mr. Deputy Speaker, Sir, under Section 33, if you find only one out of the various grounds substantiated, then there would be a basis for you to confirm the removal of the governor from office. We urge the hon. Senators to find that the assembly has, indeed, substantiated its charges and under Section 33 and Article 181 of the Constitution, we should proceed to pass a resolution that the governor cease from holding office.
Thank you very much. Counsel for the governor, you have 20 minutes. CLOSING STATEMENTS ON BEHALF OF THE GOVERNOR
Thank you, Mr. Deputy Speaker, Sir, for giving me this opportunity to make our final closing remarks. I notice that Sen. Wako is not here. I want to apologize for the earlier statement that he was admitted to the Bar the same year that I was born. Indeed, that is not true. He was admitted to the Bar in 1970 and I was born in 1981.
I accept the apology on his behalf and it will go on the HANSARD anyway.
This is a good forum. An opportunity has been given to us to give our side of the story. The Senators have interacted with us more than we expected. They have put us to task to explain some of the issues and we appreciate that. The county assembly brought charges before the Senate for impeachment, but at the end of the day, it is important to emphasize that the burden of proof entirely falls squarely and resolutely on the county assembly. From the evidence adduced before the Senate, it is clear that there is something wrong on the charges that have been brought by the county assembly. First of all, in terms of procedural fairness, we have demonstrated that the governor was not given an opportunity to be represented by Counsel at the county assembly, the impeachment proceedings were done in a hurry and the documents were not prepared properly. In terms of the issues that the governor ought to have raised, you get the impression that even in terms of the institutions at the county assembly, those mechanisms to exhaust these problems that the county assembly has drafted for impeachment, were not utilized. The county assembly did not bother to find out the truth of what transpired on some of the issues they have adduced as grounds for impeachment. For instance, it is now clear from the evidence of the Controller of Budget and the evidence of the County Executive Committee (CEC) Member for Finance that the issue about spending money at source is something which has credible explanation that makes practical and legal sense. Instead of seeking this explanation by way of the powers that the county assembly has been given under the Constitution, the county assembly chose to impeach the governor. This The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Use the microphone for the sake of the HANSARD.
My apology, Mr. Deputy Speaker, Sir. Having found that the impeachment charges did not meet threshold, the Senate proceeded to dismiss and find those charges unsubstantiated. We urge that on the question of burden of proof alone and the issue of procedural fairness, you make a similar finding that these charges are not substantiated. The threshold which has been laid down in Article 181 of the Constitution is a high a threshold, which the Senate in its decision concerning the impeachment of Governor of Kericho confirmed. For a governor to be removed from office, the allegations must be extremely serious. That is why the Constitution expressly uses the words ‘gross violation of the Constitution’. There must be evidence brought before this House to demonstrate the act of ‘gross violation,’ which has been directly attributed to the governor. There must be gross violation of the law. After the county assembly has uttered the word ‘gross’ they will ultimately confine themselves ‘a violation.’ It is our submission that if you find that there is a violation of any legislation or a section of the Constitution, then from the evidence adduced that violation is not gross at all. ‘Gross’ has been defined as something serious. If the governor had directed the expenditure of public resources, contrary to the provisions of public finance, then that would amount to be gross; your face-type of allegations that are extremely overt and done in unashamed manner. Our submission is that if you examine the allegations based on the issue of threshold, the only conclusion you can get is that these are usual and normal operational challenges in the County Government of Nyeri, which the Auditor-General confirmed today in his submissions. It is normal to find some of these operational challenges whenever you go to a county government. There are mechanisms in legislation to provide for how to deal with these operational challenges. These operational challenges principally arise because even though the governor is the chief The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Thank you very much counsel, you may resume your seat.
Hon. Senators, we have come to the end of the active proceedings. As the Programme shows, we will go into a closed session for a period not exceeding one hour. The closed session means that everybody who is not a Senator or an officer of the Senate will withdraw from the Chamber and the Gallery so that we can have our own deliberations on the issues that you have raised. I want to thank you very much for all the issues that both the parties have raised to us. Therefore, we will make a decision. So, please withdraw from the Chamber. I request you to come back at exactly 8.15 p.m. The Serjeant-at-Arms and orderlies will show you back to where you will sit. At that time, we shall then proceed in open House and, hopefully, complete the proceedings this evening. So ordered.
Order, Members! We have resumed. Next Order!
Order, Members! Just for guidance; as we proceed, all of you must be having a Supplementary Order Paper. As we agreed in the closed session, this particular session will take a maximum of one hour. A Motion will be moved and apart from the Mover and the Seconder, the rest of the contributors will have a maximum of five minutes and that will be reduced as we go towards the end of the limit, depending on the interest. So we will proceed along those lines.
(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I beg to give notice of the following Motion: THAT, WHEREAS, pursuant to Article 181of the Constitution and Section of 33 of the County Governments Act, 2012, on 2nd September 2016, the County Assembly of Nyeri approved a Motion to remove from office by impeachment the Hon. James Nderitu Gachagua, the Governor of Nyeri County; AND FURTHER, WHEREAS by letter dated 2nd September 2016, Ref. No.CAN/CEN/PMNT/COR/2/(3) received in the Office of the Speaker of the Senate on 5th September 2016, the Speaker of the County Assembly of Nyeri informed the Speaker of the Senate of the approval of the Motion by the County Assembly and further forwarded to the Speaker of the Senate documents in evidence of the proceedings of the Assembly; AND WHEREAS pursuant to Article 181 of the Constitution and Section 33 of the County Governments Act, 2012 and Standing Order No.68, the Senate also heard the County Assembly on the grounds of removal from office by impeachment of the Governor; AND FURTHER, WHEREAS pursuant to Article 181 of the Constitution, Section 33 of the County Governments Act, 2012 and Standing Order No.68, the Senate The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
(Sen. (Prof) Kindiki): Mr. Speaker, Sir, I beg to move the following Motion:- THAT, WHEREAS, pursuant to Article 181of the Constitution and Section of 33 of the County Governments Act, 2012, on 2nd September 2016, the County Assembly of Nyeri approved a Motion to remove from office by impeachment the Hon. James Nderitu Gachagua, the Governor of Nyeri County; AND FURTHER, WHEREAS by letter dated 2nd September 2016, Ref. No.CAN/CEN/PMNT/COR/2/(3) received in the Office of the Speaker of the Senate on 5th September 2016, the Speaker of the County Assembly of Nyeri informed the Speaker of the Senate of the approval of the Motion by the County Assembly and further forwarded to the Speaker of the Senate documents in evidence of the proceedings of the Assembly; AND WHEREAS pursuant to Article 181 of the Constitution and Section 33 of the County Governments Act, 2012 and Standing Order No.68, the Senate also heard the County Assembly on the grounds of removal from office by impeachment of the Governor; AND FURTHER, WHEREAS pursuant to Article 181 of the Constitution, Section 33 of the County Governments Act, 2012 and Standing Order No.68, the Senate The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Speaker, Sir, I beg to second. I hope I am entitled to my usual one hour.
Mr. Speaker, Sir, this is precedent setting. This is the first time this House sits as a Committee of the Whole to listen to an impeachment case. We have listened to a case presented by the County Assembly of Nyeri, to the defense mounted by His Excellency the Governor of the County of Nyeri. The House has listened to the witnesses. I salute the lawyers appearing on both sides for their tremendous industry in presenting and defending the case for their clients, respectively. In this process, just as we said, at the opening session, the cardinal rule is fairness, fair play, the right to be heard which we have accorded the Governor, and the duty by this Senate to make a finding without fear, favour or prejudice. Mr. Speaker, Sir, at the end of this session, each of the 47 Delegations are obligated in law to cast a vote either to send that gentleman home or to keep him in office; to make him an ordinary citizen or retain him as the Governor of the County of Nyeri. Allegations have been placed before us, running from impropriety in management of finances to non-observance of the law, including the supreme law of the land, the Constitution. My colleagues and I, and, indeed, you, Mr. Speaker, Sir, have listened very carefully with our support staff guiding us from the background. At the end of the day, we must also bear into account that the public out there, particularly the distinguished people of Nyeri, who elected their Governor and who have either received adequate services, or the opposite, have been watching and have an interest in this process. Consequently, like my distinguished colleague has said, this Senate is now faced with a very simple, but daunting task of making a decision that will go down in the annals of history as being the first ever impeachment proceedings that are heard publicly, and viewed by every Kenyan because it was live broadcast and, above all, this House is able to uphold and or disagree with the findings of the County Assembly. Mr. Speaker, Sir, we are not sitting on appeal; we cast an original vote as a House of Parliament. In doing so, I encourage my colleagues to remember the words of the great mercurial lawyer: Johnnie Cochran in the case of O.J. Simpson versus the People of America. In his submission, he told the jurors that: “If the glove fits, convict, if the glove does not fit, you must acquit." That is a case that set the entire American nation spellbound to the extent that President Bill Clinton had to address the nation an hour before the verdict. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Speaker, Sir, from the outset, I would like to congratulate the County Assembly of Nyeri for carrying out their oversight responsibility with diligence and commitment. Apart from my own county, this is the first county assembly that I addressed with your permission outside my county. Of course I have addressed almost 10 counties. Mr. Speaker, Sir, I just want to say straightforward that first of all I have some lamentation to make. Because of constraints of time, we are unable to delve into issues before us. Be it as it may, out of the rush, I will just go straight to the point so that I do not waste a lot of time. Mr. Speaker, Sir, I had the privilege of being the Vice Chair in the First Impeachment of a governor in this House. The impeachment of a governor is provided for in Article 181 of the Constitution. There are grounds of gross violation of the Constitution and the law where there is a serious reason believed that the county governor has committed a crime under national or international law and abuse of office and so on and so forth. The reason I am reading this is because I would like to go straight to the point. This Governor was brought to this House to be impeached on three grounds. Of the three, I would like to say without any fear of contradiction that failure to comply with the law is not a ground for impeaching a governor. Therefore, that gives me opportunity first of all to strike out the thought and reasoning that the Second Ground that was brought before this House is not a ground for removal of a governor, even though the grounds provided there could have been argued under gross violation of the law. That leaves me with two grounds to look at. The First Ground is gross violation of the Constitution. The grounds laid down here in support of this impeachment are matters related to finance. I have heard the County Assembly, the Governor and the witnesses brought before this House. Mr. Speaker, Sir, the summary of my thoughts is as follows. There are questionable issues regarding accountability on information related to finances in Nyeri County. These issues The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
As the Deputy Senate Majority Leader, I will add you one more minute.
Mr. Speaker, Sir, thank you. It is not easy to be a deputy and watch your boss having 10 minutes and you have none. Mr. Speaker, Sir, in conclusion, I would like to say that the issues raised therein can be addressed in a different forum but not in the most extreme decision of impeaching a governor. My decision is that the Governor must be set free. Thank you.
Mr. Speaker, Sir, first of all, let me thank the County Assembly for coming up with this matter and particularly the lawyers who made a very strong case. Their performance before us was really commendable. However, we need to ask ourselves; what is the evidence which has been presented before us by the County Assembly? What is the evidence that has been presented before us by the County Assembly in pursuit of this impeachment? From their own bundle, the three most important documentation that they have brought here are; a report of the Controller of Budget, that of the Auditor-General and their own report of the committee. I asked The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Order, Sen. Orengo!
I withdraw those sentiments.
You better, because you also know Volume IV is even bigger.
That is why I am saying things are even wrong with the governor’s office. I think when accusations against the governor are being made like for example, you are putting somebody in acting position for two years, there is something you are trying to tell us; that you are putting somebody there on notice that he can go anytime. Those are not good management practices. You are the one who is the overall in charge of affairs in Nyeri. If anything goes wrong, you are the person to be taken to account. I thank you and I oppose. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Thank you Mr. Speaker, Sir. I rise to oppose this Motion. I wish to associate myself with the sentiments of Sen. Murkomen and Sen. Orengo. With regard to impeachment, you are talking about “gross”. I think this House has addressed itself on several occasions in each of the various impeachment motions to that particular threshold of “gross”. Mr. Speaker, Sir, if you look at it from the evidence presented before us, from the counter by the governor, there is no gross violation of the Constitution. However, I want to state clearly that what exists in Nyeri County is a management crisis. Even as we proceed to vote on this matter, it should be clear that to the Governor of Nyeri, there is a management crisis. Sen. Wetangula asked one question; within this management crisis that we are witnessing within Nyeri County, where is the position of the Deputy Governor? Mr. Speaker, Sir, the governor himself indicated that for quite some time, he has not been around the county because of the reasons that are best known to us, but the Deputy Governor is completely missing in the equation. This means there is a problem within the management and governance structure in the county. For you to keep six County Officers (COs) on acting capacity, that is a crisis in itself. These are the accounting officers. So, I want to ask the governor that for me, I will be expressing my vote on this particular one. I think the issues are not as gross as required by the Constitution but the governor must sit down with his executive and his county assembly together with the Senator and address the serious management crisis within Nyeri County. Mr. Speaker, Sir, I also want to address myself to one particular fact. This is the fifth impeachment motion that we are handling as a Senate. However, the enthusiasm with which the National Assembly Members coming from this particular County have shown interest in this matter leaves a lot to be desired. Members of this House have been receiving messages, we saw people demonstrating and we saw people making certain positions known. We want to tell the National Assembly Members from Nyeri that this House will not be directed on how it is going to discharge its mandate. The best we need from them is that when a matter goes to the National Assembly to support this Senate in terms of oversight, giving us the resources to do oversight, they should be at the forefront supporting the Senate and the county assembly so that these institutions mandated by the Constitution can carry out their responsibility, but not to transfer their bitterness which we do not understand for what reason. As a Senate, we will not be directed. We are going to discharge our mandate on the basis of the Constitution. With those few remarks, I do oppose.
Thank you Mr. Speaker, Sir. Under normal circumstances, I would have just said I support all that has been said by the previous speakers. As I said earlier, in all the other four impeachments, I never commented and I never voted. The reason was, instead of me relying on evidence given to other people which came to me as hearsay, I have been in the Chamber today and yesterday to hear both the accused and the accusers giving their evidence and they are cross-examined. From the onset, I do not find that there is enough evidence in all the three charges to impeach the governor. What we should ask ourselves is; what drove the assembly to impeach the governor at this time, four years down the road? Where were they all this other time? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Thank you for giving me this opportunity, Mr. Speaker, Sir. Five minutes is too short so I will be brief. Of course, there is a ground for gross violation of this Constitution or any other law. The underlining word is “gross”. So, two or three acts may not suffice. It must amount to “gross”. Do we have enough evidence here to show gross violation of human rights?
Gross violation of law, sorry. Mr. Speaker, Sir, I used to be a special rapporteur on human rights of the United Nations so human rights come easier. Let me go on. On count seven of the first Charge, I think there has been a violation of law in that although Section 137 of the PFM Act says a forum be set up as soon as practically possible---. I can agree that from 2013 up to now, it has not been set up. Even then, the assurance of the CEC Finance that it will be set within 30 days from 30th March, 2015 has not been done. That is a gross violation. On failure to assent, that is a violation of the Constitution because the grounds are set out in the Constitution for reasons that the governor must either assent or return the Bill back with reasons. He never did that and he cannot rely on the fallback position of 14 days from publication for the Bill to come into force. On the issue of the appointment of the County Secretary, there has been a violation of the law in that he has been acting for more than six months according to the guidelines given by the Public Service Commission Regulations. They have not taken any steps up to today to amend that situation. They have advertised all posts of all other acting county officers, but not this one. There has been a violation of law on that regard. On the acting County Executive for Finance, again, there has been a violation of the law on acting. It says you cannot act for more than six months. Here it is even worse because we are told that he does not have a chief officer. That key position of Finance without a chief officer and acting CEC, maybe has led to some of these violations and infringements on the issues of budgeting process and other things. To me, there has been a violation of the law. However, in my mind, the violations of this law do not amount to gross violations of the law on that regard. I would speak on the other issues, but my colleagues have spoken very ably on the other issues of procurement and budgeting process. I almost agree that the Governor can be found guilty on this enough to send him home. However, the evidence of the Auditor-General and the Controller of Budget made me start doubting and the fact of the matter is that I also sit on the County Public Accounts and Investment Committee, and I know that the audit report, which forms the basis of this allegation, is yet to be completed. It is now before us and in due course it The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Order, Sen. Wako! You time is up!
Mr. Speaker, Sir, I rise at this very solemn moment to comment on all the accusations. Accusation number one has got item one concerning the question of expenditure of Kshs352 million plus. The question was not about accounting for that money, it was about non-disclosure. The evidence before this Senate is that the disclosure was not made. The Governor should have convinced this House that he made that disclosure. He did not. In the same charge, there was the issue of utilization of revenue at source and that is Kshs70 million. The Governor should have taken this opportunity to show this House that the variance of Kshs70 million whereas it was not captured, but then he should have used this opportunity to show us on what he spent the Kshs70 million. He did not. There was the issue of procurement contrary to public procurement law. Listening to the Governor and his Counsel, they have adequately discharged themselves of that allegation. In the same charge, there was the issue of lack of prudence in refurbishment of the building amounting to Kshs81.3 million. Neither the Governor nor the Auditor-General has convinced this House that there was prudence in refusal to put up a new building instead of renting or renovating. The issue of splitting tenders; the Governor has convinced this House. It is a non-issue. There was in the first charge lack of prudence in use of public funds contrary to Section 201(b) of the Kenya Constitution. The Governor through his lawyers has convinced this House that this allegation is actually wild. There was the issue of failure to establish Economic Forum and the Governor has discharged himself and so has he on the issue of undermining legislative agenda. However, on the issue of the Bills that were originated by the County Assembly, we cannot encourage Governors in this country and not even the President of Kenya that he can just be sitting in the office when legislative agenda is brought before him, he does nothing, does not consider and expects people to believe that he has not abdicated his duties. The Governor failed to convince this House. On charge B on the failure to comply with the law, the Governor has discharged himself. Charge C on the issue of abuse of office and gross misconduct, the Governor has discharged himself. I now face this House that since the Governor had discharged himself from C and B, but because there are serious glairing issues in the first charge, this House must tonight rise and send a clear statement that the Senate of the Republic of Kenya practices zero tolerance to corruption. I, therefore, want to support the Motion that the Governor of Nyeri should go home to send a clear message that Kshs70 million would have changed many lives in Nyeri County. To send a clear message that Kshs352 million--- The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Thank you, Mr. Speaker, Sir. I want to, first of all, congratulate the House for sitting through these proceedings. This is one in history. It is one that we are setting precedence and the first case that we have had in plenary. When we speak of devolution and audit devolution we expect that it should be able to transform lives. We have said this even in the previous impeachment Motions for other counties that this must be seen to be done. Are there issues in Nyeri? Definitely there are there. Is Nyeri County running smoothly the way it should be? Of course, not! These issues have been demonstrated not just here, they are even in the public domain, not just with this Motion, but even before. We have seen the issues in running of the County Assembly and the County Executive. These issues have actually been a contributor to where we are today. When the High court pronounced itself on the issue of Governor Wambora on the threshold of impeachment, one thing I read from that ruling was that the “gross” must actually vary from each case to case. It is not a universal measure in every county. When I look at these three charges, one I agree with the Counsel for the Governor. However, in their defense, they do not see Article 181 of the Constitution talk about failure to comply with the law. Personally, I feel Charge B does not even need to move beyond that point. Secondly, on the issue of natural justice and the rules of natural justice, I am not convinced why the county assembly did not admit the Counsel for the governor to be heard. The defence and reaction we got from the county assembly lawyers was that they did not get a written response from the governor. Since the governor had been accused, it was not really for him to write a letter. It was for him to either be present in person or represented by his Counsel. The same case should have happened here. Had the governor chosen not to come and sent his lawyers, we would still have listened. That said and done, this impeachment was void abinitio. It was faulty from the beginning. I am not convinced that it should warrant impeachment; the threshold has not been met. However, allow me to talk about a few issues. One that is very close to my heart is the issue of gender balance. Although the governor talked about having one lady who was very ‘soft’, I want to confirm that Nyeri women have been known in the public domain to be very tough.
We must see more women in the County Government of Nyeri. That is not a favour, but a requirement in the Constitution. It must be done and seen to be done. Having said that, I want to also comment on the premature bringing of this issue here. Some of these issues are actually being dealt with in the County Public Accounts and Investments Committee. I hope that when the Committee resumes its sittings, we can use the report of this impeachment to deal with some of the issues because they are actually listed and the case is still ongoing. With those remarks, I oppose the Motion.
Order, Members! It is about the end of time and we have 16 requests. I will, therefore, reduce the time to a maximum of two minutes.
Mr. Speaker, Sir, I wish to congratulate the Members of County Assembly of Nyeri for taking keen interest in changing the lives of the people of Nyeri. They brought this matter here to try and make things better in Nyeri. I also congratulate the Senators for the patience and having the psyche to try and solve the problem in Nyeri. Having said that, I would like to delve into the roles of the governor. He is given authority over the county government, as provided for in the Constitution. After looking at the bundles of information that were provided in front of us, it clearly proves that there is a problem in Nyeri that needs to be solved by the person given the authority to take care of Nyeri. The governor should play a key role in changing the lives of people in Nyeri. When devolution was introduced in Kenya, it was supposed change the life of women back in the villages in Nyeri. Yes, there is a problem, but the other problem is the governor’s attitude towards the problem. Is the governor bent on getting the solution? I heard the Counsel talk about finding a solution to the one thing I had a problem with; the gender issue in the county executive. Considering that the Counsel agreed that there is a problem in that sector, to me it is not gross violation. Yes, we need the other gender that is not represented to be in that executive. However, the kinds of issues that have been presented here do not go down as issues that should let the governor to be impeached. The governor needs to have the attitude of sorting out the problem in Nyeri, since the county government is there to change the lives of people in Nyeri. If at all he will be saved by this Senate, let him first of all make peace with the Members of the County Assembly (MCAs). Truth be told, the bad blood will be there because they brought him here with a view that there is a problem in Nyeri. Since the governor has the authority to take care of the county, he needs to go down and sort out the problem in Nyeri. I beg to oppose the Motion.
Mr. Speaker, Sir, governors countrywide have made their counties enclaves of despair. They have literally monopolized power unabated. They have created so much frustration that the whole promise of devolution has almost been squandered. That is the frustration that the county assembly is trying to speak to. We have had five impeachments here and this cannot be taken lightly. There is something structurally wrong with county governments. We call our governors to account and we are not malicious. We call them to account because there is a law and promise of devolution. These are not enclaves of unabated and unqualified power; 47 little regimes almost replica to the Moi regime that we have read about. That is why there is frustration in counties; there is frustration with Members of the National Assembly and this Senate. However, even as we bring the impeachments, this Senate must exercise the high standards, because we are people who are not malicious. We are calling our governors to account because we realize that there is a promise and responsibility that we all have. Therefore, some of these areas that are alluded to are matters that I wish the county assembly will pursue to the very end. There are institutions like the Ethics and Anti-Corruption Commission and the Directorate of Criminal Investigation; this is not the end of it. Unfortunately, I join my colleagues to agree that the threshold might not have been met in this The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Speaker, Sir, corruption and impunity is county No.48 of this country. In this bundle there is corruption and impunity. The governor then uses the mantra, like all of them do, “it was not me; it was somebody else.” If there was a charge of gross incompetence, Nyeri County counts for it. I am satisfied that the governor was served and he ignored the assembly. I see a systematic contempt of the County Assembly of Nyeri. He ignored them for seven days, because there is a default clause. That is impunity. If he cannot follow the law, dictate the law and show the people of Nyeri what to do, that is impunity. A county government spends Kshs48 million; Kshs29 million for renovation and the rest to pay rent for one year, and the Auditor-General thinks he can give them a slap on wrist to go home and think why they should pay rent for 10 years. How can the County Government of Nyeri perpetuate itself by imaging that they will be there for another term before the election? This is impunity. The people who were supposed to surcharge these people have given them a slap on the wrist. We are, therefore, left with an unenviable position of saying that we have no evidence and yet we can look at it. In the Committee of Chepkwony where I sat – this Report is one of the best that we have done – there were various contraventions but it was not gross violation because everybody thinks that you can give governors a slap on the wrist and go home; “It was not you, after all. Somebody else will do it.” The CEC member, produces a report, quotes the wrong section and does not see the problem with it. In fact, I am told that he is a doctor and he is doing finance. Gross negligence! You then wonder why we have a country that is so poor yet, we, leaders, are wining and dining in the best hotels. The Governor has violated so many laws, as Sen. Wako says. He has operated on the default Clause under 24 and the CEC, 137, yet he is supposed to be the Governor and set up that The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Speaker, Sir, thank you for giving me this chance. First of all, I wish to congratulate Nyeri County Assembly for work well done. I consider them and rank them along other county assemblies and some of the things that we see are brought to us for those of us who sit in the Committee on Finance, Commerce and Budget. We get to read some of the petitions and you get the sense that this is a county assembly that is serious with the work that it does. However, the matters that are before us are grave and serious. I have had an opportunity to read through each of the three charges that have been brought before us. I take keen interest in charge “a” where the Governor is accused that as the Chief Executive Officer (CEO), he failed on account of gross violation of the Constitution of Kenya, the County Governments Act, the PFM Act of 2012 and the Public Procurement and Disposals Act. The charge is about prudence and whether the Nyeri County Governor made good decisions. It is not about whether there was theft of money but whether he made the right decisions. I liken them to two boys who were sent with Kshs100 each to go and buy packets of milk. One chooses to buy two packets in a supermarket and the other buys one in a shop. If you run the test of theft on these boys, none of them will be found to have stolen. If you run the test of prudence, one of them fails. If you run the test of prudence on Nyeri County Government, they will not pass. Something is wrong on the account of the lease of this Karson Photo House. The County Assembly may not have demonstrated to us properly and the people that were supposed to have done the job of studying this document with more prudence have equally failed us. They have come here and contradicted us and we find ourselves in a difficult situation. We make decisions based on the evidence that has been adduced before us. It is so unfortunate that when we eventually gather here today, we will make a decision that perhaps later or in retrospect, we will look back and question why we let this happen. I hope governors watching us tonight including those of us in this House who aspire to be governors, will not take this as an excuse and know that they can play with public resources and get away with it. Let it be known, and I think this is a yellow card that we will give to the Governor of Nyeri County. If you do not change, a red card awaits you. We will let you ---
Mr. Speaker, Sir, let me also make my contribution. Clearly, there have been violations that have been committed by Nyeri County Government. The first point that I consider a violation under the Constitution is Article 27(8) of the Constitution that is very clear. There was no promotion of gender equity. Indeed, from the evidence adduced, we saw that there is only one woman CEC member out of 10. Second is the issue of ad hoc sourcing of contracts without clear tendering procedures. This is a violation under Section 34 and 35 of the Public Procurement and Disposals Act. I come to the abuse of office and this is in the leasing of Karsons Photo House. We were told that renovations amounting to Kshs29 million were done and yet another Kshs10 million The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Mr. Speaker, Sir, I wish to address two issues only. The first one is, this whole process has been going on for close to 10 days now up to when the media started reporting that the Assembly will vote and so on. In my observation, the social media has been awash with all manner of comments and views. However, you will find roughly eight or nine out of 10 of the issues which are being commented on are not on the charge sheet. This House has even gone ahead and conducted impeachment of a governor. Sometimes when the House finds that there is no reason enough to impeach the governor, again, you find the social media and sometimes personalities and so on with all manner of comments that this person has done this and that. However, the point is, the actual charge does not include those issues. My suggestion is, when impeachment proceedings reach the House, I think the Senate should take enough opportunity to publish and publicise what the issues are so that everybody is aware of what is being looked into. The other issue is, this time we have done it as the whole House. When we are doing it through a committee, the governor is normally given the last chance to address the House before the voting. Now that we have gone the Plenary way, that seems to have not been included. It would have been okay if this session of debate did not appear. Now that we have commenced again, I suggest that it would be at the discretion of the Speaker that the Governor if he so wishes-just like we have done with others before because we may raise issues which he may wish to clarify or comment upon-may be given a chance if he so wishes to reply.
Order Senator. Hon. Members, our time is up but I will give the Member for Nyeri County the last opportunity.
Proceed Sen. Kagwe.
Thank you Mr. Speaker, Sir. May I say from the onset that I am proud of being a Senator and I could not have been prouder than today to see the expression of Members and the honesty with which it is expressed. I feel that it is a historic occasion. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Order, Members. That brings us to the end of our contributions. The Mover may now reply.
(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, may I say three things in reply to this Motion. First, I am concerned with matters corruption in this country. In the three and a half years I have sat in this Senate, I continue to be tormented with stories of carcinogenic wheelbarrows that cost Kshs100, 000 apiece, money being ferried in vehicles and there was one case where a governor spent public money to buy fish fingerlings to pour into moving waters. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
What is it, Sen. (Dr.) Khalwale?
On a point of order, Mr. Speaker, Sir. Sen. (Prof.) Kindiki is our Senate Majority Leader. How can he assume that this case is going to be lost and say that it is a major flop? Could he speak for himself and if he does not want to speak for himself, could he speak for corruption because it is corruption that is the reason that the children in Tharaka Nithi County have no chance of becoming a professor the way he is. Could he speak for himself?
Order, Sen. (Dr.) Khalwale! The Senate Majority Leader represents Tharaka Nithi County and is a child of Tharaka Nithi County. So, every child of Tharaka Nithi County has an equal chance to become a professor.
On a point of order, Mr. Speaker, Sir. Is it in order for the Senator for Kakamega County – and the Chair needs to rule on this - to impute improper motive on all the Senators including Sen. Hassan, Sen. Orengo, Sen. Wako, Sen. Mutula Kilonzo Jnr., Sen. Sang, Sen. Cheruiyot and Sen. Haji who have spoken publicly that they are not satisfied with the evidence and all the other issues and impute improper motive that the reason for that lack of satisfaction is corruption? This should not go unchallenged.
Order! Order! This will go unchallenged because your challenge is not helpful at all, for the simple reason your contributions have nothing to do with your voting until the vote is taken. That is the only determination, Sen. Murkomen. You can still change your mind.
(Sen. (Prof.) Kindiki): Thank you, Mr. Speaker, Sir. That is why you got a First Class in the university. For the avoidance of doubt and for the information of Sen. (Dr.) Khalwale, the fingerlings that were bought corruptly and poured into moving eleven rivers - this was done in Tharaka- Nithi. So, I speak against corruption with the greatest amount of pain and grimace that is possible. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.
Order, Majority Leader! You have to be careful. Restrict yourself to what you heard in the last two days.
(Sen. (Prof.) Kindiki): Thank you, Mr. Speaker, Sir. Somebody sent me a not so pleasant SMS as a Senator and I felt offended because you cannot direct me how I will vote. I have shared with few other Senators who received such offensive messages. Having said that, I do not support this impeachment but I beg to move the Motion. Thank you.
Order Senators! Therefore we wish to put the question. This is a vote affecting Counties. There may be no greater vote that would affect a County than this one. So, voting will be by delegations. The voting will be electronic. I am therefore directing that the Division bell be rung for one minute.
Order, Senators. Close the doors and draw the Bar. I want to guide you on the voting. We will vote on each of the three grounds. Therefore, we will take three votes. I will announce the results at the end of the voting for the three grounds. The Senate Majority Leader has asked me to remind you that, for avoidance of doubt, if you vote ‘Yes’ you are voting for the impeachment and if you vote ‘No’, the Motion is negatived and so, there will be no impeachment. This is in consideration of the tendency to vote ‘Yes’ always. Make sure that your cards are working now. You may now commence to vote on the charges, starting with the first charge.
Hon. Senators, the results of the Division are as follows:-
Hon. Senators, the results of the Division are as follows:-
Hon. Senators, the results of the Division are as follows:-
Order, Members. Now we have come to the end of the business of the Special Sitting. Therefore, the House stands adjourned until Tuesday, 4th October, 2016, at 2.30 p.m., of course unless another petition comes from the Senate Majority Leader or the Senate Minority Leader. The Senate rose at 10.05 p.m. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.