Mr. Speaker, Sir, it is a very good morning to all of us. The House had a lengthy session last night. I want to congratulate the hon. Members who have been able to make it for this morning session. Mr. Speaker, Sir, this is a Wednesday morning and ordinarily, it is set aside for Private Members' Business. However, when at the rise of the House, the House Business Committee met last night, we felt very strongly that we should just deal with the matter of trying to build consensus and then later in the afternoon, move a Motion of Adjournment of this House. Mr. Speaker, Sir, I am sure that a number of Members will recall that we had hoped that the House would adjourn for the Christmas session on the 11th of this month. That is about a week or so ago. However, it was felt that we could do it yesterday. It was not possible because of the facts that are very clearly elaborate in the minds of each one of us. Mr. Speaker, Sir, I want to plead with the House and I beg to move:- THAT, this House orders that the business appearing in today's Order Paper be exempted from the provisions of the Standing Order No.33, being a Wednesday Morning, a day allocated for Private Members' Motions. Mr. Speaker, Sir, this would enable us continue with the process of consultation. That was clearly what the Motion by Mr. Kiunjuri sought to achieve. I am sure that people were consulting overnight and even this morning. We felt that, if we could give them time up to this afternoon, clearly, all the parties including the smaller parties, will feel accommodated. I hope it is possible, as it has become the tradition of this House, to come up with a consensus. Otherwise, it would look very difficult if we do not move a Motion of Adjournment today. I beg to move.

Mr. Speaker, Sir, I beg to second.

Mr. Speaker, Sir, I would like to support this Motion. As I do so, I would like to thank the Vice-President and Minister for Home Affairs for managing to find a way forward last night. It was very difficult and I would like to assure hon. Members that the little amendment 4164 that I brought yesterday was without any mischief. For this reason, as a way forward and arising from the consultations we have been doing, those Members of this House who do not want to be Members of the Select Committee should join me - I also do not want to be a Member of that Select Committee - so that we appeal to our brothers to make a few sacrifices here and there. Mr. Speaker, Sir, I have seen something which has emerged. In fact, the problem is not very difficult. As we go to our parties, I have found out that there are community interests that are a problem. I am glad to report that the communities of Coast Province have agreed. The communities of Kisii have agreed. The communities of Western Province have agreed. The problem is the shared province of Rift Valley, especially Central Rift Valley. Allow me to use the name of a community. I am appealing to the Kalenjin community and the Kikuyu community who live in the Central Rift Valley---

Order, Dr. Khalwale! You will have to withdraw the word "Kalenjin"! This is the Parliament of the nation that is Kenya. We must think as Kenyans, not as Kalenjins, Luhyas or Kikuyus for that matter! Please, withdraw the word "Kalenjin"!

Mr. Speaker, Sir, I not only withdraw but also apologise. I was saying that these two particular communities have found that there are those competing interests that are making it difficult. So, if you can---

On a point of order, Mr. Speaker, Sir. Dr. Khalwale has just withdrawn the names of the two communities and he has gone ahead to say, "these two communities". I think he is playing games on this Floor. It is the same attitude that got us to difficulties yesterday. If we did not shed that, we would have difficulties agreeing this morning.

Very well. Dr. Khalwale, I would rather you deal with geographical regions or provinces that constitute the country that is Kenya!

Thank you again, Mr. Speaker. My apologies to Mr. Kioni. Mr. Kioni, if you really opened my heart, I have no problem with any community and I mean well! Mr. Speaker, Sir, going by those regions, it, therefore, means that the western region has agreed, the coastal region has agreed and part of Rift Valley has agreed. With regard to political parties, ODM seems to be finding an easier way of moving forward. So, the problem seems to be more with PNU, purely because it is a conglomeration of quite a number of political parties. So, I am requesting hon. Members that we spend a bit of time just here in Parliament, so that we can look at the regional interests. As you go to your political parties, if you are aware that your region has been represented through the PNU side, then ODM should cede ground knowing that, although you do not have ODM there, your region is already represented. With those few remarks, Mr. Speaker, Sir, I thank you for giving me an opportunity and beg to support.

Thank you, Mr. Speaker, Sir, for giving me an opportunity to support this Motion. Constitution-making in this country has become a never ending process. It is so consuming; Kenyans have waited for it for many years and I think the Tenth Parliament has a unique opportunity to make it happen. Mr. Speaker, Sir, I have been involved in constitutional struggles and attempts at constitution-making for the last 15 years or so. I have had my own personal frustrations with this process. The reason why we have not been able to make a lot of progress is because there are too many parties and interests in the constitution making process. As hon. Members, time has come for us to move beyond our personal, regional and other interests, so that we can put Kenyans and the Constitution first. Mr. Speaker, Sir, regarding the list which has caused that small problem, I would like to state here that, although my name was in that list, and I would very much have loved to continue December 17, 2008 PARLIAMENTARY DEBATES 4165 participating in Constitution-making in this country, especially because I consider myself experienced, they say in life---

Yes! I am experienced! They say that what we call "experience" is the total number of mistakes that one makes in his life, so that you are able to tell those who come after you that: "We tried this and it did not work. Please, do not go that route!" So I have experience on that process because we made many, many mistakes over the years in trying to make a new Constitution. I thought I had some experience to offer to that team. But, I think time has come for us to recognise the new talent which has come to the House. We are all Members of Parliament - whether we are Ministers or not. We are essentially Members of Parliament. Mr. Speaker, Sir, I do not want the name of Kiraitu Murungi to be one of the obstacles in Constitution-making in this country. I would like to subordinate myself to the collective will of Parliament and, indeed, to the interests of Kenyans.

Mr. Speaker, Sir, I would like to follow the steps of my friend, Dr. Khalwale, and withdraw my name from that list. I would like to support other hon. Members of Parliament---

On a point of order, Mr. Speaker, Sir. While congratulating my learned friend and colleague, hon. Murungi, for that magnanimity, as well as the Member for Ikolomani, my friend Dr. Khalwale, I thought that we could dispose off Order No.7, because what we are hearing could very properly be under Order No.8, so that we dispose of the Procedural Motion and then discuss the main issues. Listening to the two colleagues, I have no doubt in my mind that, that should probably even be under Order No.8. So, perhaps, Mr. Speaker, Sir, you could dispense with Order No.7?

Very well. That having been said, hon. Murungi, do you want to continue and finish?

Thank you, Mr. Speaker, Sir. What we are trying to say is that, it is important that, as hon. Members, we move together and try to build the broadest possible consensus in this Constitution-making process. I have discovered that we have only been able to make even the minor amendments to the Constitution when the whole House has worked together. So, in the interests of building the consensus so that we can move forward, those of us whose names appear on that list, let us not be an obstacle to the Constitution-making process in this country. With those few remarks, I beg to support this Motion.

Mr. Speaker, Sir, I beg to move:- THAT, this House do now adjourn until today, Wednesday, 17th December, 2008, at 2.30 p.m. Mr. Speaker, Sir, I am moving this Motion in order to be able to really continue with the spirit that has been demonstrated by Dr. Khalwale and Mr. Murungi, so that we can come up with an agreed list to form the all important Parliamentary Select Committee which will be able to anchor the constitutional review process. Mr. Speaker, Sir, it is important that there are full consultations so that, as Members of this august House, we really feel that we are able to make progress. The House cannot dare adjourn for the Christmas season given the importance of the review process to which we are all committed as Members of the Grand Coalition Government. Mr. Speaker, Sir, we promised Kenyans a Christmas gift, but it would be a half-baked cake if we were to adjourn without putting in place the Parliamentary Select Committee. Mr. Speaker, Sir, therefore, I want to urge that in order for us to be able to come up with an agreed list, we give ourselves this morning so that we can have fuller consultations right across the party lines. In my own mind, I think we should give primacy of consideration to the political parties to which all of us belong.

If we were to follow the ethnic route that my good friend, Dr. Khalwale, was proposing, then I think we will be reminding this country of the pain that we went through after last December.

Mr. Speaker, Sir, it is, therefore, important that we give strength, because that is why all of us are here for - by virtue of the various political parties that we belong to. Therefore, Mr. Speaker, Sir, I beg to move.

(Mr. Musila) seconded.

Mr. Speaker, Sir, I need to say one or two things. First, let us have fresh blood in that Select Committee.

Secondly, let us not have people whose position on the Constitution is known. I will call those hardliners: People who already have a fixed mind on the kind of Constitution that this country requires. If your position is known, then you will be second guessed. Let its membership be across party lines and let us, please, have the one third rule applied here. This is something in our control! In yesterday's list, women hon. Members were missing; I think they were only two on that list. It is important that we not only preach the one third rule but we also implement it. Let us also have not only hon. Members but also a few Assistant Ministers on that list, so that they also learn. We have four professional Assistant Ministers; they have been Assistant Ministers since the last Parliament. I think it is high time they are included in this list. December 17, 2008 PARLIAMENTARY DEBATES 4167

On a point of order, Mr. Speaker, Sir. Mr. Githae is very aware that Assistant Ministers are Ministers and he should not be misleading this House.

That is legitimate, but you need not respond to it, Mr. Githae; you have concluded your remarks.

Thank you, Mr. Speaker, Sir, for giving me this opportunity. I support the Motion and want to indicate that the reason we never got a Constitution last time was because we failed to build consensus. The last time we were trying to show our might and power in whichever way. For us to ensure that Kenyans get a new Constitution this time, we must consult and have consensus at every step on the way. I think we need everyone in this process. We need new and old blood in this process, but there must be a balance so that we are not just furthering the old tendencies. So, I would like us to see to be inclusive of everyone. Finally, I want to also add my voice to Mr. Githae's, that we need to include women. Yesterday the list that came here had only two women.

They were four!

Mr. Speaker, Sir, from ODM they were only two, and even for the other party they were only two; so, that makes it four, which does not reach the benchmark of a third. So, I would like to urge that even as we seek consensus we seek to include more women in this list, and also be conscious of regional balance. I am sure that every region has people with expertise and we are all competent here. With those few remarks, I beg to support.

Hon. Members, please, note that the time for this Motion is restricted to a maximum of 30 minutes, and that each of you will have a maximum of five minutes!

Thank you, Mr. Speaker, Sir, for giving me the opportunity to contribute. Just to clarify, I am one of the four professional Assistant Ministers. Mr. Githae is one of the others, but I am not making a case for myself. Mr. Speaker, Sir, yesterday we made comments on the list that was presented to us, and we argued correctly that when you talk about Ministers not dominating the list, we are not saying that they cannot do a good job: It is just that they are busy doing other things which we appreciate. It is high time we gave others an opportunity to also contribute to nation building. Secondly, we also spoke about trying to avoid including people who have been known to take extreme positions; I think this is an important point. The Constitution-making process was impossible in the last Parliament, because there were people who had just decided that this is the way it has to go. Those were the hardliners that Mr. Githae has spoken about. These kind of people, from what we have found, whether it is in party politics or Constitution-making are not good for our country at a time when we are talking more and more about consensus building. We need people who can build consensus and bring this country together, especially at this difficult time. Thirdly, Mr. Githae spoke about fresh blood, but I would like to add that because this 27- member team is going to be involved in identifying nine people competitively who will be commissioners, it must also be competitive in their qualifications. In other words, we need to get people who are not only fresh, but also people who have not been associated with a scandal.

If you have been associated with a scandal, you should volunteer not to be a member of this team, because it is going to be very difficult for you to be trusted to identify other people who are scandal-free to be members of that important Committee. 4168 PARLIAMENTARY DEBATES December 17, 2008 Mr. Speaker, Sir, we were also talking about consultation. I was very dismayed by Dr. Khalwale's proposal. I supported him when he came up with it, but I was disappointed to find that he committed the same crime we were fighting against: Lack of consultation! When he came up with a list and he said he had consulted, even the Chief Whips said he had not consulted them. We appreciate his contribution but I think we should remind him that this is not bull-fighting. In bull- fighting, you need limited consultation between the bull and the trainers, but in this case, we need much more consultation, whether it is Dr. Khalwale's team or a team from the House Business Committee (HBC), to make sure that whatever we start is supported by a broad cross- section of this Parliament. With those few remarks, I beg to support.

Mr. Speaker, Sir, as I stand to support this Motion, I want to plead with hon. Members, who are in this august House, that whereas we have had democracy in this country, pseudo or factual, right from Independence up to now, Parliament has for once a very good reputation as having stood for the rights of Kenyans, and hon. Members having suffered in the past while fighting for expansion of democratic space in the country and the welfare of this country. But hon. Members are also notorious for having divided this country over a period of time. I think if we fail this time, we will not have an excuse in the eyes of Kenyans any more. We have an opportunity, historical opportunity that we need to seize. We have promoted ethnicization of politics in this country by the politicians themselves, purely for the expediency and trying to access political power. But what we fail to understand is that each one of us will only go back to his own ethnic community to seek their mandate to become a Member of Parliament. I do not have to go to Nyanza or Western Province voters to be elected as the Member of Parliament for Lagdera. But because of the system we have had over a period of time, when we come in here, then we want to become presidents of this country we start playing the tribal card, because then you need communities to be amalgamated into blocks of voters, and that is where the divisions start. Mr. Speaker, Sir, I want to tell on hon. Members and the leadership of this country at the highest level that we need to discard populist politics. I am saying this applies right from the President, the Vice-President, the Prime Minister, Ministers and every hon. Member in here, because that is where the problem is. We are going to put together a team of nine people who are going to give us a Constitution. We need to go for the best! Whereas we are going for regional balance, let hon. Members or Members of the Committee not use this as an opportunity to popularise themselves in their own constituencies, because they need to send a message that "I have put so and so in office!" That is the problem! The other thing is that, when we promote nationalism, we all go far. We allow people to come and preach ethnicity amongst ourselves at the expense of our own sovereignty. An ambassador will stand up in this country right now and talk about our own internal politics, and nobody talks about it. But the moment something is mentioned in here, we are quick to rise up and say: "It is this community or that community!" In this House here, not many hon. Members will stand and defend our sovereignty when it is being attacked by second or third rate envoys, who have no business getting involved in our own internal politics. I think that we have an opportunity right now to rise to the occasion the same way it was when we got Independence, to exercise our nationalism and Kenyanism, and create an environment for the future of this country. Mr. Speaker, Sir, the other thing is that we need to respect Parliament. We as legislators are quick to say that this is the supreme organ of the country or Government, but here we are ridiculing ourselves. If you go to any Parliament, for example, the House of Commons, every Member of Parliament, when he stands up to address it, even when he wants to disagree with another Member of Parliament, there is decorum and a respectful way of addressing them. For

Your time is up!

Mr. Speaker, Sir, I beg to support the Motion.

Mr. Speaker, Sir, I rise to support the Motion. I think we made history yesterday by creating a roadmap to a new Constitution. It has been a long struggle, as witnessed by many Members of Parliament like hon. Murungi, hon. Imanyara and many others, who have stood firm on getting a Constitution and change for this country. If we want to preserve that struggle in the Tenth Parliament, then I think we need to rise to the occasion of making sure that this list is not a contentious issue. It should be owned by the House. It should be all-inclusive and representative of the political parties. We should show the way as democrats as we stand here in Parliament. It is time that we appreciated the diversity of the country, not only of communities, but also regions. It is important that political parties understand that. I believe that they are mature enough to consider those diversities. I believe and trust that the political parties that have been entrusted to give the names, will be considering those diversities. Mr. Speaker, Sir, yes, we need experience, fresh blood, gender and people who are mature and sober, but it is dangerous when we start on a new slate, to talk about or brand people as hardliners. This is going to start derailing the process. I think we have understood and made mistakes throughout. We want to start a new slate altogether. The purpose of a Grand Coalition Government is because of lessons learnt in January and February. One of the fundamental purposes of the Grand Coalition Government was to deliver a new Constitution to the people of Kenya. It is a promise that we should deliver. Mr. Speaker, Sir, I want to commend the Committee on Administration of Justice and Legal Affairs. It has done a fantastic job. It is highly appreciated, particularly the Chairman and his team. I think and believe that particularly, the Chairman and a small team should remain an oversight to this Committee. The minute we just put all of them in this list, it will start losing its meaning of checks and balances within Parliament. I commend their job. I believe that they have the capacity to stand up and correct what the Parliamentary Select Committee will not have done. I believe that it is time for us to give the checks and balances---

On a point of order, Mr. Speaker, Sir. With all due respect to the hon. Minister, there are no provisions in the Standing Orders for one Parliamentary Select Committee or Departmental Committee to have an oversight role over another Parliamentary Select Committee or Departmental Committee. So, essentially, there is no way that a Committee that is going to be set up here will again have another Committee basically playing the scrutiny role.

Very well! Mr. Balala, do you have any response?

Yes, Mr. Speaker, Sir. I think that, that Committee is a Parliamentary Select Committee. When we had a stalemate, it is the Departmental 4170 PARLIAMENTARY DEBATES December 17, 2008 Committee that helped to even formulate the Bill. It even lobbied and mobilised the Members of Parliament to understand what we are talking about. When Bills are drafted, we come and endorse them, without even going through them thoroughly. But it is that Departmental Committee that has helped us all to understand and appreciate even the difference of words and commas. I just appreciate their role. With those remarks, I beg to support.

Mr. Speaker, Sir, I also beg to support the Motion. Lately, I have been wondering why there is a sense of agitation outside the House by the Kenyan people. I am slowly coming to the conclusion that our people feel left out of the discussions about their future. It is for that reason that I wish to also just remind us of a slogan that is becoming quite popular our there; "give us back our country." I think our people are saying: "Give us back our National Assembly, Executive, Judiciary and public institutions." It is for that reason that I think it is important to uphold the principle of participation in this House and begin to give some kind of leadership. Mr. Speaker, Sir, you probably know that I have not said very much this year. I have been watching and listening. One of the conclusions that I am slowly coming to, as we come to the end of this year, is that there are very serious power games in this House, and they are quite ruthless. As we come to the transition, they get into high gear. I would like to plead, through you, that we involve as much as possible, fresh blood in the Parliamentary Select Committee. I would like to plead that we bring in fresh blood to ventilate this process and bring in new paradigms of thought and perspective. It might help the country, as we have seen in other places. It may be, perhaps, a good idea to give some suggestions to the political parties as they go to negotiate the slots. As we take note of the need for the one-third rule with regard to women, we should, perhaps, set some kind of percentage and say that out of the 27 Members, people in Government - that is to say Ministers, Assistant Ministers and the Whips - should not be more than a certain percentage, and then the rest be Backbenchers, so that there is ventilation and a possibility of unlocking what has been a major problem in terms of our Constitution Review process. With those few remarks, I beg to support.

Mr. Speaker, Sir, I stand to support this very important Motion alongside other hon. Members who have done so. I want to make a few comments. Many hon. Members who spoke before me yesterday said constitution making is a very important process. There is something which people have kept on telling us from last week. They have been talking about consensus. We know what consensus is all about. We cannot get consensus unless we narrow our differences. For the second time running, it is unfortunate that the leadership of this country, particularly those of us who were involved in the 2003-2005 constitution review process, in which we lost during the referendum, are not able to identify the pitfalls. This is mainly because we are not able to provide leadership. Mr. Speaker, Sir, if just the constitution of the Parliamentary Select Committee alone could give us all these problems since yesterday and today, how can we, as Parliament, be able to steer the rest of the process? Kenyans expect a lot from this House. Since yesterday, the main problem has been the inability by the party leadership to consult among themselves and follow the House's procedures. We have had a House Business Committee. If there were sufficient consultations, we could not have had the problems we got. Personally, I feel that we should still have been able to bridge the gap between what Dr. Khalwale had raised and the initial list. These are simple issues. We do not have to fight over small issues and make this country suffer. December 17, 2008 PARLIAMENTARY DEBATES 4171 What is coming into play is basically the personal egos between individuals in this House. That should be put aside. We must address the interests of Kenyans. We must address what can bring us together only and avoid what can divide us. If we really want to help this country, the top leadership should not take the Back Benchers for granted. A few of my colleagues said that they are professional Assistant Ministers. I have been an Assistant Minister myself. Whether you are an Assistant Minister or a Back Bencher or a Minister, we all have equal rights and equal abilities - probably, some Back Benchers have even better abilities - to be able to provide something useful for this country. Mr. Speaker, Sir, I, therefore, plead with my colleagues that we tone down and come together, so that we can speak in one voice, as Parliament, which represents Kenyans and all regions for that matter. Thank you very much.

Yes, Mr. Gitobu Imanyara! Please, try and share your time!

Thank you very much, Mr. Speaker, Sir. As I rise to support this Motion, let us remind ourselves that we are Members of the National Assembly of Kenya. When we were elected to this National Assembly, we ceased to represent tribes. We ceased to represent regions, and we became Members of the National Assembly. So, let us provide leadership to this country as Members of the National Assembly. The second point I would like to make is that when the Standing Orders Committee, under your able leadership, started the process of formulating new Standing Orders of the House, this problem did not arise. We did agree on broad principles, which saw us bring very far-reaching changes in the manner this House is run. One of them was the need to recognise the role of political parties because, under our Constitution, we seek to make ourselves a democratic parliamentary democracy. One of the reasons for the failure that we are seeing in terms of building institutions in this country is that the political party leaders are not making sufficient consultations. We have seen that even the Bill that we passed yesterday, it had failed three times until we built sufficient levels of consultations. Consultation involves everyone, from top to bottom. We cannot afford to leave out any section of our leadership in constitution-making process. Therefore, I would suggest that, with regard to the principle that Mr. Mutava Musyimi has mentioned, we do not leave out Ministers entirely, but we limit their participation to a maximum of one third. We do need their input, so that the final product that we will bring to this House can reflect the broad consensus reached by all Members of the National Assembly. Let us follow the principles we adopted in formulating the Standing Orders of this House. I am sure that we will be able to reach a consensus within one hour and start this process and get a new Constitution for our people. With those few words, I beg to support.

Mr. Speaker, Sir, I rise to support this Motion. This is a very historic moment; a moment we cannot afford to throw away. What is good for Kenya is good for my people and good for me. What is bad for Kenya is bad for my people and for me. I would like to appeal to my colleagues that even as we proceed to constitute the Select Committee we look for people whose thinking is national as opposed to tribal or ethnic. They should be people who care for the Turkana people although they are living in the Coast Province, or who care for people in Nyanza Province although they are in Central Province, or who care for people in the North Eastern Province although they live in Nairobi. That is the only way we can get out of the malaise we find ourself in. It pains us and the public when we fail to consult, or when our own egos and ambitions for the future--- 4172 PARLIAMENTARY DEBATES December 17, 2008

What is it, Mr. Githae?

Mr. Speaker, Sir, my understanding is that the purpose of this Motion is to enable us to go to a Kamukunji before the House Business Committee meets to endorse the outcome. If we continue with this debate, we will lose time. I suggest that we proceed to the

Order, Mr. Githae! The record indicates that you have been accorded an opportunity to contribute. That, obviously, is very selfish! You are out of order!

Mr. Speaker, Sir, I thank you for that protection. What I was saying is that it is good for us not to protect our own future ambitions at the expense of Kenyans. It is not good for us to protect our own interests, either for now or for the future. If we do so, our sons will continue to fight. I would rather fight and my son lives in peace. With those few remarks, I beg to support.

Thank you, Mr. Speaker, Sir, for allowing me to contribute to the Motion. I stand here to support my colleagues in supporting this Motion. As we all know, the Constitution is the supreme law of this land, which is also the case in any country. It is the duty of this House to ensure that this is done right. Kenyans feel let down by the leadership of this country because, so far, they have not been given the new Constitution they were promised. So, I support this Motion because we need consensus, so that we can agree on the way forward. We need consensus because constitution making is extremely important. The first few days have shown that this Parliament can rise and serve this country. We have refused to be used like a rubber stamp, or accept things just for the sake of accepting. I want to appeal to this House. Fortunately, the Tenth Parliament has got the most intelligent people than any other Parliament in the past. Under your able leadership as the engine of the nation, we need to steer this country in the right direction. We must maintain the dignity of this House and, by extension, the dignity of this country. I want to take issue with the Minister for Foreign Affairs. We have ambassadors accredited to this country, who are directing how this country must run. We cannot allow that to continue. We may be poor, but we have our dignity. We must maintain that dignity. We must never allow any ambassador to dictate terms to this country.

Time is up!

Mr. Speaker, Sir, I beg to support.

Hon. Members, that concludes the business on the Order Paper. Therefore, the House stands adjourned until today, Wednesday, 17th December, 2008, at 2.30 p.m. The House rose at 9.55 a.m.