Hon. Senators, I have a Communication to make, which is a Message to the Senate from the Nairobi City County Assembly. Hon. Senators, Standing Order No.42(1) of the Senate Standing Orders provides that, and I quote:- “The Speaker of the Senate shall read to the Senate any message from a County Assembly to the Senate and such message shall be in writing and shall be signed by the Speaker of the County Assembly.” By a letter dated 18th August, 2014, the Clerk of the Nairobi City County Assembly forwarded to the Clerk of the Senate a Message from the Nairobi City County Assembly to the Senate concerning the security for Members of the Nairobi City County Assembly. Standing Order No.42(5) of the Senate Standing Order provides that:- “If a message is received from a County Assembly at a time when the Senate is not in session, the Speaker shall forthwith cause the message to be 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, the Standing Order under which you have quoted the message from the County Assembly of Nairobi City County does not provide that we comment on the matter. But it has been our tradition that whenever a Member of this House or the lower House has faced challenges of security, we have always given it the seriousness it deserves. In view of that, I seek for your indulgence; that you allow me to observe that the issue of security is not only limited to the threats faced by the MCAs. Indeed, as late as yesterday, the life of a Member of the National Assembly was saved after a would-be attacker was shot by the MP’s bodyguard. Nobody is safe in Nairobi or Kenya. Even the President’s limousine was stolen. The President received a signature of shoes, stones and other things in Migori County. We should look at this matter beyond the request by the Nairobi City County Assembly and admit as a House that the Jubilee Government is completely unable to give security to officers and members of the public at large.

On a point of order, Mr. Speaker, Sir. I rise to disagree entirely with the Senator for Kakamega County, my friend, Sen. (Dr.) Khalwale. He is giving the impression that we should deliberate on this matter now because the security of MCAs is in question. I want him to know that the security of all Kenyans is as important as it is for Members of this Senate and even other elected leaders. But---

Order, Sen. Khaniri. I thought that was the same point that Sen. (Dr.) Khalwale was making. I do not see why you are diasagreeing. 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, Standing Order No.42(6) under which you read this message is very clear. It gives you three options. Either you direct the matter to the relevant Committee or you decide that we deliberate on it now or you appoint a day for consideration of the message. Those are the three options given by our Standing Orders. What Sen. (Dr.) Khalwale is asking goes beyond the ruling that you have given. You have directed this matter to a committee. Therefore there is no point to deliberate this message because we will be talking on a matter that you have already assigned a committee to deal with.

I think that is the real point of departure between you and Sen.(Dr.) Khalwale, which I want to agree with. But for the purposes of the message, I have directed that the Committee on National Security and Foreign Relations submits their report to the House on 7th October, 2014. For the matter that you alluded and also Sen. (Dr.) Khalwale made reference to, you still have plenty of options to raise that matter sooner than later in the sense that you have actually broadened it. So, you can bring a Motion of Adjournment or use the other appropriate Standing Orders to do so. Sen. Obure.

Mr. Speaker, Sir, I appreciate your direction on this matter. Of course security is an important matter. We should all be concerned every time the life of a Kenyan is threatened. In the case of the Nairobi City County Assembly, I wonder if I am in order to suggest that we should have been provided with more information and instances of what happened so that we appreciate fully what we are dealing with.

Indeed, Sen. Obure, that is why if you look at Standing Order No.42(6), there are three options. The reason we did not exercise the other two is because we would like the Committee to look into those kinds of details that you are referring to because there will be specifics. The message is about the number of MCAs who have been threatened. The Committee will look into this and when it will report, it will also report on the same. The report will be available to each and every Member. Next Order!

Mr. Speaker, Sir, I beg to lay the following Papers on the Table of the Senate today, Tuesday, 23rd September, 2014. REPORT OF THE SEVENTH AFRICAN EVALUATION ASSOCIATION CONFERENCE Report of Seventh African Evaluation Association Conference held in Yaounde Cameroon from 3rd to 4th March, 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.

Mr. Speaker, Sir, I beg to lay the following Paper on the Table of the Senate, today, Tuesday, 23rd September, 2014:- REPORT OF THE ANNUAL INVESTMENT MEETING HELD IN DUBAI Report of the Annual Investment Meeting Held in Dubai, (United Arab Emirates) from 8th to 11th April, 2014.

Mr. Speaker, Sir, this Paper, being similar in nature to the first Paper laid by Sen. (Dr.) Machage is of a very unusual nature compared to the normal Papers which we have on the Floor of the House. Would I be in order to request that the Chair allows me half a minute to say what it is, so that when it eventually comes for debate, Members will have been encouraged to look through.

Why are you assuming that Members are incapable of reading the reports?

I am quite sure Members read a lot. But they receive a lot of papers; a lot of documents and reports. When there is something a little bit off the normal, my request is that half a minute or so would help in just saying a word. The title is not very clear.

Okay, proceed for one minute.

Mr. Speaker, Sir, you will recall that sometime in April you appointed five Members of the Senate and one Secretary to attend the Annual Investment Meeting in Dubai. This is a meeting, but it is also a large conference where world investors, organizations and governments who have money to invest go to say they want to invest in this or that sector. At the same conference, government institutions, individual bodies like cities in various countries go there saying they are looking for investments in this or that. Whereas, we, the Senators formed the opinion that the conference was very useful, we also at the same time formed the opinion that Kenya as a county gained very little. What is contained in this paper is our observation as to what 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.

Thank you; although you would have still raised those issues when the matter is debated. Before we proceed to the next Order, I want to confirm if there are other Papers to be laid. The Chairperson of the Committee on Finance, Commerce and Budget or a Member of the Committee?

Sen. (Dr.) Machage, I am informed that you laid papers under (i), (iii) and (iv). Let us proceed.

Mr. Speaker, Sir, I beg to give notice of the following Motion:- THAT, this House adopts the Report of Seventh African Evaluation Association Conference held in Yaounde, Cameroon from 3rd to 4th March, 2014. ADOPTION OF REPORT OF THE ANNUAL INVESTMENT MEETING HELD IN DUBAI

Mr. Speaker, Sir, I beg to give notice of the following Motion:- THAT, this House adopts the Report of the Annual Investment Meeting Held in Dubai, (United Arab Emirates) from 8th to 11th April, 2014.

Hon. Senators, I want to bring to your attention the fact that we have a Supplementary Order Paper. However, that will take effect from Order No.8 but I want to give you notice. Let us move to the next order. 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.) Lesan, it is your turn.

Thank you Mr. Speaker, Sir. I am the one who is expecting a report from the Chairperson of the Committee on Agriculture, Livestock and Fisheries.

Proceed, Sen. Murungi.

Thank you Mr. Speaker, Sir. I would like to make the following interim response. This is about a statement being sought by Senators regarding the crisis in the tea trade in this country. My Committee is aware that there is a serious crisis in the tea sector which is caused by the shocking fall in tea earnings which has been the worst in the last two decades. I am aware, as the Senator for Meru County, that tea farmers have rebelled and boycotted the picking of tea in the last one month. These farmers, in their anger, have humiliated directors and purported to sack managers of tea factories. There is a real crisis in this sector which needs to be dealt with in a wholesome manner. So, we need a comprehensive address to the crisis in the tea sector. In view of the magnitude of this problem, my Committee has decided to organize a national tea stakeholders’ conference to be held on 10th October this year. We are inviting all tea directors from the 52 tea factories in the country. We are also inviting the directors of the Kenya Tea Development Agency (KTDA). We are also inviting the managers of the tea auction in Mombasa. We will also invite the Minister, his team and members of the tea board. We are also inviting Senators from the tea growing areas so that we meet and discuss this crisis. That way, we intend to seek lasting solutions to the crisis. Therefore, I request my brother, Sen. Lesan, to prepare himself and come with his tea directors to this workshop so that in the process of addressing this as a national issue, we can also deal with the matter of Kericho County.

Thank you Mr. Speaker, Sir. I thank the Chairman of the Committee on Agriculture, Livestock and Fisheries for the wise decision. He has, first of all, recognized that there is a serious crisis in the tea industry at the moment. Upon that realization, I want to agree with him on the path that he has taken. We really want to get to the root cause of this problem owing to the significance of the tea industry to the Kenyan economy and more particularly as to the livelihoods of millions of Kenyans. We are aware of some of the challenges facing the industry. We need to address those challenges. Mr. Speaker, Sir, we know that the tea industry is being strangulated by the hands of greedy manipulators at the tea auction floors or offices of tea managers with their nonchalant and “don’t-care” attitudes about the survival of farmers. It is important, therefore, that we take the route that the Chairman has suggested so that we get 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.

Mr. Speaker, Sir, first of all, I would like to congratulate the Chairperson of the Committee on Agriculture, Livestock and Fisheries for coming up with very innovating ways of solving problems. When you have a problem of this nature it is useful to sit with stakeholders than to come up with an answer written by a Cabinet Secretary or a Permanent Secretary. This is a good example for the rest of us who are in other committees in the Senate. The Chairperson talked about the people they have invited. I would like him to consider inviting Governors of counties that grow tea and the County Executive Committee Members (CECs) in charge of Agriculture. I am saying this because agriculture is a devolved function apart from the policy. County governments play a major role in terms of finding new markets for this tea and working with farmers wherever they are. Mr. Chairman, consider inviting the Governors and Deputy Governors.

You are being repetitive.

I have been advised by the Senate Majority Leader that he should also include the multinational companies that are playing active roles in matters of tea.

Mr. Speaker, Sir, I also want to join my colleagues in thanking the Chairman of the Committee, Sen. Murungi. As he has collectively put it, there is, indeed, a crisis in the tea industry in this country today. As you are aware, some petitions have been made regarding this issue. Indeed, other questions have been raised. There are many problems that tea farmers in Murang’a County, which I represent, are facing. They have made a petition which I will be presenting to this Senate. I hope that when the committee finally sits to consider these issues, it will invite all stakeholders and not only those who have made a petition. It will be a sad day, indeed, if for any reason the tea industry in this country was lost to squabbles or misunderstandings between the KTDA and farmers. What the Chairman has said is most welcome. I want to assure him that those who come from tea growing areas will give him all the support that he requires so that we have a lasting solution to the tea sector in this country, which is very important to the economy of our country.

Order, hon. Senators. Since you have all been invited to the conference, you should wait for that time. However, since there seems to be a lot of interest, let me allow the last three on my screen; Sen. Khaniri, Sen. Ong’era and Sen. Obure. The Chairman asked Sen. Lesan to bring the names of his directors. I do not think that is the work of the Senator. Proceed, Sen. Khaniri.

Mr. Speaker, Sir, those of us who come from tea growing areas and who represent tea farmers know precisely what our constituents are going through. I 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)

Mr. Speaker, Sir, I would also like to thank the Chair of the Agricultural Committee, the King of Meru, for coming up with this innovative way of dealing with issue of the Senate especially when we are answering to questions instead of waiting. As Sen. Murkomen said, we should take the initiative and meet the real stakeholders. I come from a region in Kisii County where, because of the problems bogging the tea industry, farmers are actually uprooting the crop because it is no longer viable. Therefore, this is a welcome opportunity especially for the real stakeholders to meet and resolve these issues. I wanted to suggest that instead of only inviting Senators from tea growing regions, the Chair could consider inviting all Senators to this very important conference.

Sen. Obure, I said you will be the last one but I see the Senator for Kirinyaga asking. He will be the very last one.

Thank you very much, Mr. Speaker, Sir, for allowing us to make comments on this matter. First, I want to thank Sen. (Prof.) Lesan for his concern on this very weighty matter. I also want to thank the Chairman of the Agriculture Committee for the initiative, and for the very innovative manner in which he wants us to find a solution in this matter. I am one of those who brought a petition on the plight of tea farmers in my county. I am very happy because the Chairman of the Committee on Agriculture, Livestock and Fisheries and his Members have done everything possible to get to the bottom of this matter. I want to take this opportunity to appreciate his efforts and also appreciate the leadership of that Committee because of the various ways they are exploring in trying to identify solutions to this matter. Mr. Speaker, Sir, the tea sector is very critical to this country. We are not only talking about livelihoods of people but the contribution of that sector to the economy of this country through foreign exchange. For a long time earnings from tea exports have made tremendous contribution to the economy of this nation. We cannot afford to see that go to waste. We cannot lose that opportunity. Therefore, I want to appreciate the efforts by the Chairman and to urge him to get all the stakeholders together in this forum so that we can find a way forward.

Mr. Speaker, Sir, much has been said by my fellow Senators, but it is also important to note that tea is not just a crop; it earns money when it has been processed and exported. That is why we need to get more Senators attending that conference. There are so many problems in the tea industry. Recently we have had cases of under-weighing of fertilizers. You find that a bag which is supposed to weigh 50 kilogrammes is sold when it is 45 kilogrammes. So, the difference in kilogrammes, 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 said that would be the last person, but because of gender consideration, I would give exception to Sen. Nabwala.

Mr. Speaker, Sir, I would like to thank you for giving me this chance to add my voice to the report and the interest that the Chair of the Agricultural Committee has shown in the tea sector. I also extent the same to Sen. (Prof.) Lesan for organizing the conference that is coming up. I must say that tea has been a big contributor to our economy in the past few years. I would be interested to know by statistics how much it has dropped. It used to contribute a lot in terms of foreign exchange. Other contributors are coffee and tourism. As Senators we need to check on these issues very closely because we look after counties. When our people are being affected due to drop in prices, we need to take an interest and find out why it is happening. We need to find out whether it is the prices in the world market or because of other local problems affecting our farmers---

Order, Senator. You are now organizing the conference. Wait for the 10th of October, 2014.

I just want to say that I am very grateful for what they have done. I would also like to see more Senators attending this conference because it is very important. It affects very many tea zones in our counties. Therefore, many Senators should attend including those who do not come from tea growing zones.

Order! You are being repetitive. Finally, Sen. Wako, then Sen. Murungi.

Mr. Speaker, Sir, thank you very much for giving me this opportunity. I stand as a fellow Chair of a Committee to congratulate a fellow Chair of the Agricultural Committee in the manner in which he is dealing with problems facing this country. If we all grappled with the problems facing this country through such dialogue, I am quite sure, this country will get somewhere. I would like this particular meeting that he is calling for to examine other issues affecting the marketing of tea. Whenever you travel outside, many people will tell you that Kenya is not earning its due share from exports. They will always tell you that tea from Kenya is the best in the world and it is used to blend other teas from other countries. Tea from Sri Lanka is being marketed as Sri Lankan tea and tea from Jamaica is being marketed as from Jamaica but you do not see anything from Kenya despite the fact that we produce the best tea in the world. That shows that something is amiss. I would like to urge that on the agenda of this conference, we should consider how best we can exploit our tea markets. Otherwise, I urge you to invite other people---

Order, Senator. You are being repetitive.

Mr. Speaker, Sir, I want to thank the Members for the tremendous interest that they have shown in this particular matter. We are going to invite all 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.

Sen. Murungi, the Chair can promise you that we will give you all the support that you need. Next Statement!

Before we take the next statement, we would like to acknowledge a delegation from Riabai High School Debating Club from Kiambu County, with a total of 48 students and two teachers. Let us welcome them in our usual manner.

Is the Chairperson of the Committee on Roads and Transportation here? He is not here. Is the Vice Chairperson present? Is the Chairperson of the Committee on National Security and Foreign Relations here? Is the Chairperson of the Committee on Education here? CHALLENGES FACING THE TEACHERS SERVICE COMMISSION

Thank you, Mr. Speaker, Sir. I have a statement from the Ministry of Education which was sought by Sen. Liza Chelule regarding the constitutionality of the Teachers Service Commission. After going through it with my Committee, we found that it was not satisfying enough to be tabled in this Senate. So, we have further summoned the TSC officials to come the day after tomorrow so that they can give us a better answer, because this one is not adequate. I have already talked to Liz and she has agreed. 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. Karaba! Who is Liz?

Elizabeth; that is what she is called. She is Sen. Chelule from Nakuru County. She is here.

Order, Sen. Karaba! This House is very clear on how you address your colleagues.

She is Sen. Liz Chelule. Thank you, Mr. Speaker, Sir.

Proceed, Sen. Chelule.

Thank you, Mr. Speaker, Sir. I do not have any objection. If he is asking for one or two weeks, I think it is good for me to give him time because we need concrete answers on the same. Thank you, Mr. Speaker, Sir. Mr. Speaker, Sir, I am Sen. Liza Chelule. So, it is the same as Liz.

Order! Sen. Karaba, when do we get the statement?

In the next two weeks, on a Thursday; I think that will be better.

Two weeks from now?

Yes, Mr. Speaker, Sir.

Next Order. What is your point of order, Sen. Elachi?

Mr. Speaker, Sir, I stand on a point of order for guidance on a matter that has been going on and which has been occupying the media when we were on recess. This is the issue of separation of powers, with specific reference to Parliament. Of late, we have seen the Judiciary raise so much about Parliament by bringing in orders halting the work of different Committees. I just wanted guidance on how we can deal with the issue since it is affecting most of the work in this Senate and even in the National Assembly. I think it is time; when we were going on recess, I remember very well that we also talked about it, but we said let us give them time; maybe they will change. But I think when you look at the activities that are happening, it is becoming worse and I think, as a House, we need to deal with it. So, I just need guidance on how we can deal with it and maybe even give Members an opportunity to ventilate about 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.

Who was that? Order! Order, Sen. (Dr.) Khalwale! Employ technology; we ran away from those shouting matches. I am not seeing your request on the screen. So, let us listen to Sen. Murkomen as Sen. (Dr.) Khalwale gets his act together.

Thank you, Mr. Speaker, Sir. I think the point of order raised by Sen. Elachi is very important. There is a growing trend that the Judiciary, an institution that we have a lot of trust and we are supposed to have a lot of trust in – is beginning to micro manage other institutions of Government, particularly this House. I have never seen anywhere in the world where judicial activism - however criticized it has been all over the world - has been exercised by the courts as against institutions that are carrying out matters of accountability. Mr. Speaker, Sir, judicial activism is a new concept; it is about 20 years old all over the world, used more so in countries like India and to a great extent in South Africa, among others. But even all that activism has always been used to tilt in favor of public interest, particularly in situations where you are protecting the public. In India, it is in environmental cases; in South Africa, it is about issues of democracy and matters of race relationships, human rights and so on, and so forth. In Europe, it is the same; it is fostering matters of human rights. Actually, one of the most conservative judiciary in the world is the American Judiciary. But if you come to our Judiciary, which has adopted this activism of micromanaging other institutions--- I am shocked as a Member of the County Public Accounts and Investments Committee (CPAIC), ably led by Sen. (Dr.) Khalwale, that the courts of this country can even attempt to stop the Senate of this Republic from inviting any Governor to appear before this Committee. It even bothers me more for the simple reason that more than 80 per cent of the Governors we have invited have appeared either by themselves or their deputies. But at the request of less than 20 per cent of the Governors, the courts can be willing to stop the questioning of matters of accountability maybe at the behest of two or three Governors, as if there is a stratification of a class of Governors of this country; that there are certain Governors that are more important than others. What is it that two or three Governors or the Chairman of the Council of Governors, the Governor for Bomet, have that is so special that the Governor of Tana River, the Governor of Elgeyo-Marakwet who appeared today or the Governor for Kwale, who is the Vice-Chair of the Council of Governors, do not have? What is this special category of Governors in this country that collude with the courts to stop this House from working? There were days when I was a student in the University of Nairobi. One of the things that Ahmednasir, who is a lawyer in this country, did was to resign from Law School to go and carry out some activism to remove certain Judges who were 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 am sorry my system has a problem. Mr. Speaker, Sir, the issue raised by my sister Senator here from Kakamega is so serious that while we were on recess, I did realize as a layman that court injunctions could be dished out the way a parent dishes out popcorn to kindergarten children, or the way hotdogs are dished out at a restaurant when children are on a picnic. It is very sad that on serious matters, where there is actual evidence from the Auditor-General, Governors have chosen to face the country on podiums from various parts of the country, 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. (Dr.) Khalwale. If I were you, I would stick to the initial issues because I think they are so important; you do not want them to get lost in the way you are moving.

Thank you, Mr. Speaker, Sir. The reason why sometimes some of us get angry and we are swayed into commenting on some of the issues that the “sky team” of Jubilee specializes in; it is because of the high levels of poverty. Even the former beautiful Elgeyo-Marakwet that used to be, the Kericho that was a very nice place to live in, today these areas are just as poor as Ikolomani, Kabuchai and the traditional Teso areas of Luhya land. The leaders of this country must say “no”. My colleagues, I tell you, the sword will cut you. We will catch you.

On a point of order, Mr. Speaker, Sir. With all due respect, listening to the Senator for Kakamega, and reading between the lines, he has thrown Migori County into bad repute, whereas this is a respectable county which appreciates the magnitude of mistakes that they may do and have the courtesy to apologize---

Order Sen. (Dr.) Machage, you stood on a point of order to challenge a statement said by 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.

I am building it.

It is not an opportunity for you to start marketing your county.

Mr. Speaker, Sir, those are part of my duties as per the Constitution. Mr. Speaker, Sir, I request that you give Sen. (Dr.) Khalwale the earliest opportunity to table this information that he has such as the Governor for Migori sleeping on a bed of Kshs1.2 million. We need this information like yesterday.

On a point of order, Mr. Speaker, Sir. While I agree with a lot of comments made by Sen. (Dr.) Khalwale, he mentioned the Governor for Nandi, Dr. Cleophas Lagat and yet I am not aware if his Committee has summoned him and the Governor has refused to appear before the Committee. Mentioning Nandi County together with the counties where the Governors have refused to appear before his Committee suggests that the Governor has refused and yet I know that if my Governor was summoned, he would appear before the Senate. Could he be clear on that?

Mr. Speaker, Sir, even while on that, the Senator for Kakamega insinuated that there are Members of this House who donate a lot of money. I am aware that the Senator for Kakamega donates between Kshs3,000 to Kshs3,500 in funerals in his place. That is a lot of money. But I will not hold it against him because not a single Senator here manages public funds and therefore we cannot also legislate against the generosity of any Member of this House. Some of us who have read the Bible so well know that it says that the more you give the more you receive. It also says in Micah: “Test me and you will see if I will not bless you”. For those of us who are not willing to test God like me, we must not be punished for giving our personal resources or be discussed negatively for giving. Lastly, if you go to Israel, the difference between Lake Galilee and the Dead Sea is that the Dead Sea receives but does not give out water. You cannot drink the water of the Dead Sea. The Lake of Galilee receives from the River Jordan and has an exit to the Dead Sea. So, some of us have chosen to be River Galilee and, maybe, others have chosen to be the Dead Sea. So, why should it be an issue here? The only concern we have is that some of the Governors who are Members of the “sky team” which includes the Governor for Kakamega who has been flying from one county to another - we suspect they are using county funds in this business and that is why we are questioning.

Mr. Speaker, Sir, I hear three points. The first one is that Sen. Sang would like a confirmation that his Governor has not prevented my Committee from summoning him. I have a copy of that court order which was signed on 18th and issued by Lady Justice M. Ngugi. The first defendant is all the Governors represented by the Council of Governors. So, yours is included. The second one is Dr. Alfred Mutua, enjoined by Patrick Khaemba of Kitale, Ahmed Abdalla Mohammed of Wajir, Wycliff Opranya of Kakamega, James Omariba Ongwae and finally another non-existence Governor called Martin Nyaga Wambora. 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, hon. Members. I will start with Sen. Khalwale. Sen. Khalwale, had you heeded my advice, you would be a very popular Senator and Chairperson as it had already been indicated. However, you have deliberately decided to take a route that you obviously know will invite the wrath of your colleagues which you can already see in them. However, I want to persuade your colleagues. Sen. Khalwale has said that you should laugh it off. Two, some of you still want to contribute. Why can you not use this opportunity to challenge those issues? By the way, there is no matter before us that should invite this kind of altercation. I can easily terminate the issue. There is no issue and you are abusing the issue. My idea was that you would ventilate the issues raised by Sen. Elachi so that you help me come up with some opinion. However, you have now made it an issue about several Senators. I do not think that was the intention.

(Sen. (Prof.) Kindiki): Thank you Mr. Speaker, Sir for your guidance. I totally agree with you that the time we have in this House is so precious that we should maximise on it by talking about issues that will help this country like accountability of public funds. 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. Khalwale did not mention names. That is what you should demand first. If some of you suspect to be “members” it is only fair to acknowledge then we deal with the matter at that point.

Mr. Speaker, Sir, I have made myself very clear. It does not matter whether Sen. Khalwale suspects me. He was looking at me while he was talking. I am a Member of that Committee and in my earlier contributions; you will see that I have maximum respect for Sen. Khalwale.

Absolutely!

Unprompted, I had lavished on him a lot of respect because of his responsibility in our Committee. Sen. Khalwale is trying to say that there are some people in this House who are colluding with the Governors or with public officers who are messing up with public funds so as to steal funds. That casts doubt on the integrity of this House even if we do not name names. Some of us have gone all over the country to preach that the Senate will not entertain any pilferage on public funds. When he stands in this House and says that we should laugh it off--- I need to emphasize that unless it is happening in other counties, where I come from, I and other Senators have not been given the responsibility to manage a single cent of any Fund. Some people are saying that they want a CDF for the Senate. That is a different issue. We do not deal with public funds. The only institution that has the moral authority to question usage of public funds is this House because unlike the Lower House, we do not manage any Funds. When a Member of this House makes such allegations and we laugh it off, that becomes the heart of the discussion of the accountability that we are accusing other institutions of doing. We are all paid, in this House, the same amount of salary. Some people choose to “drink” their salaries in the bar. Others prefer to go and buy plots. Others like Senators from marginalised areas are paying school fees from their own salaries. Others would choose to go donate money to schools in their areas because they feel not enough has been done. You can choose to spend your generosity the way you like it. You can extend the generosity to woman in the bar or give it to a school in your county. You can also pay school fees for children in Turkana. That cannot be a basis for accusing somebody. 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. Murkomen. The last contribution is worse than what you are accusing Sen. (Dr.) Khalwale of.

Order Senators. I had directed Sen. (Dr.) Khalwale earlier and if you heeded my directive, we would all be safe because you have also raised issues to imply improper motive on the unnamed Senators. The Senators also are implying improper motives on others who are unnamed in sense of where they go to spend their money. This kind of discussion is not useful to the House. Sen. (Dr.) Khalwale, since you are the originator - and I really want to agree with senator Murkomen, to the extent that you had earned a lot of respect across the political divide; each and every contributor alluded to that, and I think you would not want to squander that. So, just apologize, withdraw and proceed on the issues of accountability. Those issues are more important than the side shows we are engaging in.

Mr. Speaker, Sir, I request that you allow me to apologize; but to withdraw so that it is no longer part of the HANSARD is to assume that what is going on today is not happening. The Ethics and Anti-Corruption Commission (EACC) has already written to Parliament asking what is going on about the issue that I have spoken about. Maybe, I should just apologize to any colleague who might think I referred to him, for example, the young Murkomen who thought I am looking at him. This thing is much bigger than we might be thinking about. Allow me to apologize to you if I made you uncomfortable but let it just rest there because the record will continue speaking. I apologize.

On a point of order, Mr. Speaker, Sir.

Sen. (Dr.) Machage, we need to make progress.

Yes, and I will do it in a better way.

Take us forward then.

The tradition of this House is that if somebody apologizes then he must withdraw. Standing Order No.94 is very clear on the procedure to be followed if somebody cannot substantiate his claims. I am a Member of the Kenya Airways sky team. Am I one of those being referred to by Sen. (Dr.) Khalwale? I am convinced that before Sen. (Dr.) Khalwale mentions the names of Members of this House, a substantive Motion is necessary. Otherwise, he should also withdraw. He has apologized, yes, but he must withdraw that remark.

Sen. Kajwang.

Mr. Speaker, Sir, I wanted to contribute but before then I could make a small contribution on what you are exercising your mind on.

No. You will continue with the other one. For one, we want to bring that to a close. It is up to Sen. (Dr.) Khalwale to sort out the mess he created. 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, the Standing Order being quoted by Sen. (Dr.) Machage says that no Senator shall impute improper motive to any other Senator or to a Member of the National Assembly except upon presentation of a specific substantive Motion of which at least three days notice would have been given. This is the law. I have not mentioned the name of any Senator. I need this Standing Order to protect me. I have said clearly that I am guided by facts that the EACC has written to Parliament over that matter. Since I have not mentioned anybody, I have apologized to anybody I have made uncomfortable. Surely, that is good enough. Sen. Murkomen knows how much I respect him. He is only three or five years older than my son. So, in a way he is my son. I met his father and he is my v akochi.

Order. Sen. (Dr.) Khalwale, you are actually misreading that Standing Order. Initially, I allowed you because you had not dug deeper but you have gone further to confirm that you looked at somebody and mentioned him. You have even gone further to describe the differential in age. Therefore you have made a specific one, making the Standing Order more binding than you are appreciating. That Standing Order is still applicable when you are talking about any other Senator in the House. That brings disrespect to the House. If you wanted to bring evidence, there is a demand for a substantive Motion and three days notice and both of them are not applicable now. On that basis you should do a simple thing: Take forward your own words of laughing it off and terminating this. What is wrong with adding the word “withdraw” to the apologies that you have already made? In fact, I thought an apology is graver than the swallowing. Sen. (Dr.) khalwale, you may be reminded that Winston Churchill once said that swallowing words has never caused him indigestion. You are a medical doctor, you will appreciate that.

I want to profusely and abundantly apologize. Mr. Speaker, Sir, my conscience on the fight against corruption in this country does not permit me to withdraw something that the public knows is going on and I have not mentioned anybody. I find it difficult only this afternoon to go against you because then I will be admitting that my fight against corruption is conditional. I was saying that having talked about governors who are not here today, we should also re-examine our own hearts and say if there is anything we are doing, me included, who gives Kshs3,000 to Kshs5,000 in funerals; then I should make sure I give that little money from my own sources. That is all. Am I asking for too much? I have apologized but withdrawing matters of corruption, not today.

(Sen. (Prof.) Kindiki)

On a point of order, Mr. Speaker, Sir. I rise on Standing Order No.110(1)(i). The orderly conduct of this House is actually dictated by the respect to the Chair. You have instructed as the Chair and the substantive Speaker of this House that Sen. (Dr.) Khalwale withdraws, and he has refused to withdraw. In my opinion, Standing Order No.110(1)(d)---

Order! Order, Sen. (Dr.) Machage! Just hold there for a while; resume your seat.

Order, Senators! This is a straight forward matter. First, I want to say that when you look at Standing Order No.90(4), it states:- “No Senator shall impute improper motive to any other Senator---” Standing Order No.91 on retraction and apologies states:- “A Senator who has used exceptionable words and declines to explain or retract the words or to offer apologies for the use of the words to the satisfaction of the Speaker, shall be deemed to be disorderly and shall be dealt with in accordance with the rules pertaining to disorderly conduct. ” So, I have already pronounced myself and I think that Sen. (Dr.) Khalwale needs to appreciate that the Chair has been really generous and sympathetic to his cause. But this House has procedures. We are not asking you to withdraw because you do not believe in the fight against corruption; all we are saying is that when you make remarks against fellow Senators, then you must substantiate. You know, there are procedures in which that is done and you are yet to comply with those procedures. It is under those circumstances that you wish to withdraw and apologize. When you want to produce the evidence and all that, you know what to do; you will do a Motion to the Speaker and I will approve it; and you will come and prosecute it here. So, I really think because the mood of the House is really favoring you as the Chairperson of the Committee, it does no harm in doing so. I really want to plead with Sen. (Dr.) Khalwale because I, like any other Senator, respects all our Senators. It is honorable to do the simple thing; because failure to do so, the consequences will also be there. So, I just want to give you one last 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 have been following this debate very closely and I do not quite understand why we are pinning Sen. (Dr.) Khalwale on the wall. Standing Order No.94 is very clear and I listened to what Sen. (Dr.) Khalwale said; he turned to the House and said “We, Senators.” But the Standing Orders talk of:- “No Senator shall impute improper motive to any other Senator---” This is specific, identifiable and nameable. It is not like when I stand here and say “many of us have logs in our own eyes and we are seeing specks in other people’s eyes.” That does not amount to improper motive envisaged and cited in Standing Order No.90(4). It is very clear. If I stood here – and I am not saying that I will say so – and said “my distinguished learned senior, Sen. Kiraitu has done this or that;” then I have imputed an improper motive. But if I say “some of us are conducting ourselves in a manner that is below the expectations of the public,” that does not amount to imputing an improper motive on any Senator because the Standing Order is about “a Senator;” not the Senate, not Senators, not an amorphous grouping, whether they are called “sky team” or “ground team” or “water team.” So, Mr. Speaker, Sir, I think we are over stretching the issue about Sen. (Dr.) Khalwale and having apologized generally in the same general manner in which he had made it, it is unfair to demand that he withdraws allegations against nobody specifically because he has not maligned anybody; he has not imputed improper motives on anybody. I think my distinguished senior, Sen. (Dr.) Machage, is also over stretching the application of Standing Order No.110 because I do not think there has been any disorderly conduct in the manner that this debate has been going on. Mr. Speaker, Sir, again may I urge the House---

Order! Order, Sen. Wetangula! You saw me stopping Sen. (Dr.) Machage.

Yes, you did.

I will do the same to you.

Thank you.

Do not make reference to a matter that is not before the House.

Thank you, Mr. Speaker. Finally, Mr. Speaker, Sir, I do not want us to turn the instruments of orderly debate in this House into swords of tyranny, because that will amount to gagging Members from expressing themselves. We have seen it all happening in this country from Independence; some people who take money to Harambees on wheelbarrows; others in sacks; others cannot explain how they got their money. We know it; that we do not say it does not mean that we cannot say. 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, Senators! By the way, I am very clear on this one; I really thought that Sen. Wetangula, you were to help the House.

Yes.

But you have miserably failed even to read the language.

If it is for any other Senator, assuming to borrow from your own understanding of one Senator – and you also admitted that he said “all the Senators” – is that not a greater multiplier effect which makes it even worse than when you are dealing with one?

By the way, you can say all the things that you want to say, but it depends on how you say them. However, when it comes to imputing improper motives on another Senator or group of Senators, then the rules are very clearly. That is really the problem. So, if we really want to help this House, we need to go the simpler route which your Chair has suggested. The other route is the one that Sen. (Dr.) Machage and you were trying to pursue, which you know that I am equally not inclined to pursue. So, if Sen. (Dr.) Khalwale does not seem to appreciate the balance of proportionality, then we will apply the rules. Unfortunately, I am the enforcer of the Standing Orders for now. I also want to confirm that there is no terror in the application of the rules. There will be none. Sen. (Dr.) Khalwale, really this is a small matter.

Mr. Speaker, Sir, I want to agree with you that this is, indeed, a very small matter. Since we are all men and women of letters in this House, we know of some facts in history. I will remind some of my colleagues about the life of William Wilberforce, a Member of the House of Commons in 1500. He faced many moments of being belittled at the time he was fighting that the Abolition Bill becomes law. I believe in the fight against corruption. I want to disagree with the Senate Leader of Majority that I am breaking the law. I have specified the Leadership and Integrity Act and the Public Officer Ethics Act. I spoke about this “sky team” with the full knowledge that the Ethics and Anti- Corruption Commission, which I consult from time to time, has written to this House. Since these are facts---

Order, Sen. Khalwale! I have consulted the Clerk and I want to confirm that I am yet to receive a letter from that institution that you are referring to. 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. With due respect, I cannot be held responsible for the accuracy of that claim. It is only you who can confirm the truth or otherwise. Mr. Speaker, Sir, since I believe in this so much, I want, as I apologize, to clarify abundantly that I do not want to disrespect this House by disrespecting you. This is because if you throw me out, any Member can say that I be named. I do not want that to go down in my Curriculum Vitae (C.V.) in the few years that I will be in leadership in this country. Mr. Speaker, Sir, as I withdraw, I leave it on the conscience of the members of the “sky team.” This is because withdrawing, as I do, does not preclude me from coming here tomorrow and saying the events, amounts and registration and numbers of choppers, including over the weekend when they were in Navakholo in Kakamega. The Kshs10,000 that we sent through Dennis Odoto was cheered more than the hundreds of thousands that they donated.

Order, Sen. Khalwale. Order all of you Senators! By the way, the Chair cannot be intimidated by a Professor of Law, tyranny of numbers or Members who want to make certain statements and want the Chair to disregard rules. Whatever you do here, it must be subject to the rules. It will uphold and hold that dear. I will bend backwards to accommodate you, as I have done, but will not break them. I know William Wilberforce and have also read about him and the great job that he did. But he had also to work within the rules of the House of Commons. Proceed, Sen. Kajwang.

Mr. Speaker, Sir, on this matter now, I would want to be very clear in my mind that if I am asked to withdraw by the Chair, I would be asked to withdraw specific words that offend the rules of this House, so that you do not withdraw a speech. This is because, sooner than later, the HANSARD will be in a lot of trouble, knowing what is withdrawn and what is to be retained.

Order! Order, Sen. Kajwang! Why are you challenging the Chair? This matter is settled. You appreciate what we are making references to. Even Sen. (Dr.) Khalwale himself, when he was withdrawing, made specific reference to what was being withdrawn. It was improper motive on fellow Senators and not the entire speech.

Mr. Speaker, Sir, I am quite clear about that, but that improper motive must have been expressed in certain words. Those words must be specific. We have to leave this House feeling that Sen. (Dr.) Khalwale said these words and withdrew these words. We cannot just leave here with “improper motive”. The phrase “improper motive” does not mean anything, unless it actually did impute improper motive. Those words must be clear, specific and withdrawn from the HANSARD.

Mr. Speaker, Sir, I want to thank you. I think that you are a great man and we appreciate your commitment to the rule of law and Standing Orders. 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.

That is the issue before us, Senator.

Mr. Speaker, Sir, what I want to say is without prejudice to the great respect that I have for the Chief Justice of this country and many of the Judges who are working hard to promote the integrity and impartiality of the Judiciary in promoting constitutionalism and the rule of law.

Order! Order, Sen. Murkomen! You are better of being where you were. The same applies to Sen. Obure. You are allowed to consult, but you should know how to do it. Proceed, Sen. Kiraitu.

Mr. Speaker, Sir, with due respect, I think that there appears to be a judicial conspiracy to undermine the work of the Senate, paralyze it and destroy this great institution called the Senate. It is being done through the guise of the Constitution and the rule of law. Somebody said that when tyranny counted to America, it would come wrapped in the American flag. When judicial tyranny comes to this country, it will also come wrapped in the garb of the Constitution and rule of law. Mr. Speaker, Sir, the legitimate legal processes of temporary injunctions have been abused by the Judiciary to frustrate the work of the Senate. This Senate has declared on two occasions that Governor Wambora is no longer the Governor of Embu County. But the Judiciary, through a series of injunctions has maintained Wambora in office. He even attempted to appear before Sen. (Dr.) Khalwale’s Committee the other day, but the Judiciary through a series of injunctions blocked those who attempted to appear before the Committee the other day. That is a shame. The Judiciary itself has undermined the Constitution by not concluding Wambora’s case in good time. The Constitution clearly states that disputes which have been brought to the Judiciary must be determined in reasonable time. Five years might expire with the Judiciary illegally maintaining Wambora in office under the guise of injunctions. Mr. Speaker, Sir, the Senate has attempted to summon several Governors on issues of accountability, but the Judiciary has frustrated the Senate in its constitutional mandate to ensure accountability of the county governments in this country. We are not taking this issue of the summons lightly and the Judiciary will one day account for the crimes they are committing under the guise of protecting the Constitution. The Senate, in an attempt to implement its mandate under Article 6 through creation of the County Development Management Boards, has now been heavily challenged and frustrated. Every Senator has been taken to court for doing what the Constitution requires him to do. Again through a series of injunctions, the High Court, the Court of Appeal and the Supreme Court, we are going to leave this Senate without 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 would like to speak in the same spirit with my colleague, Sen. Murungi, and to say something which I think the Judiciary is missing. I understand that the Constitution lays down the broad and general principles of governance in a Republic. It is the duty of the legislature to use those principles in establishing those laws regarding how those principles will be practiced in governance. I would like it to go on record and also to remind the Chief Justice that this is a very important Article with regard to the function of the Senate in the Republic of Kenya. Although the role of the Senate is summarized in Article 96, there are sub-articles which are pregnant in meaning and which require extensive legislation in Parliament for them to be realized in governance. Article 96(1) says: “The Senate represents the counties, and serves to protect the interests of the counties and their governments.” Article 96 (2) says: “The Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided for in Articles 109 and 113.” 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. Senators, as you continue ventilating, I would like to bring to your attention, Standing Orders No. 90(1) and Standing Order No.92 on

. Keep away from certain specifics.

Thank you, Mr. Speaker for giving me this opportunity to contribute. I would like to commend my sister, Sen. Elachi, for raising this matter which is very important in this Senate. We created the County Public Accounts and Investments Committee (CPAIC) in exercise of our constitutional rights under Article 96(3). It says: “The Senate determines the allocation of national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the county governments.” Mr. Speaker, Sir, for this very reason, this is a mandate that cannot be shared with any other organ of State, including the Executive or the Judiciary. It is, indeed, a shame that the Judiciary continues muzzling and interfering with the powers of this Senate. A time has come for us to stand up and to refuse the muzzling and interference of any other organ of State. As you know, this is interference under the doctrine of separation of powers. This is unacceptable conduct from the Judiciary. I want to urge my friend, the Chief Justice, to tame the many rogue judges he has in his Judiciary. Mr. Speaker, Sir, you are aware that we made a resolution on a rogue Governor of Embu. However, this ex-Governor purports to be a Governor. This makes this Senate a paper tiger. We are not really in control. I urge you to take up this matter very seriously. Secondly, it behooves us, as legislators, to pass laws that can tame the Judiciary. I know that my brothers and sisters in the National Assembly are very willing to take up this exercise because we have been made, as legislators, to appear as nobodies. We cannot pass legislation every time and continue to have orders being issued left and right. I want to request the CPAIC led by Sen. (Dr.) Khalwale not to fear. They should continue to exercise their powers. Recently, the Committee was paralysed and stopped working. The Committee should not have accepted those orders. First of all, the order was in contravention of the rule of law which is clearly known. This matter saddens me. It is sad that some rogue Governors can put the Judiciary in their pockets. I want to agree with Sen. (Prof.) Anyang’-Nyong’o that, indeed, we know what they are doing behind our backs. They are getting these orders left, right and centre as if they are receiving biscuits from a shop. We, as legislators of Kenya, should not allow this. Thank you for listening.

Hon. Senators, please identify the areas that you want the Speaker to look into in the ruling.

Thank you, Mr. Speaker, Sir. The matter raised by our sister, Sen. Elachi has been eating me since I joined this House. Before I joined this House, I read the Constitution. Otherwise, I would not have come to this House. I read the Constitution again and again and realized that the sovereign power belongs to the people. 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, in due fairness, everything else must have been said, but I want to convey the public policy message. Men, women and institutions are judged in terms of character with respect to the judgements that they deliver and decisions they make. As much as we may not sit on the bench as judicial officers, we have people around the country with sufficient intellect and sufficient reason to make a determination whether a judgement has public appeal; it drives public policy or whether the judgement in its own manifestation is reasonable and accurate. What the Judiciary has continued to do over the years since its transformation under the new Constitution is to severely undermine its authority. My concern is that if the Judiciary continues to make orders to gag institutions that are constitutional, the authority of the Judiciary will be waned to the point where nobody will ever trust their decisions. Mr. Speaker, Sir, I think we are faced with almost a constitutional crisis; that an institution is quite keen to frustrate the transactions of a particular arm of government. The public policy message that must be driven is that we are not summoning these governors for a cup of tea. We are summoning them on account of accountability of public resources. I think it is an extra-ordinarily narrow public policy message that the Judiciary is driving to the country that governors or public officers cannot be summoned by the Senate on matters of accountability. Even if the Judiciary exercises its mandate, it must be in tandem with public policy because the public believes that governors and State officers must account for resources. Therefore, for the Judiciary to say that in the interim as money is being embezzled the Senate cannot conduct its responsibility, is a blow to the Constitution. The more the Judiciary keeps giving these types of orders which are not reasoned, are irrational, do not ascribe policy and illegal, the more it is opening itself to the possibility of its orders being ignored. Sooner than later, you will find ordinary Kenyans not respecting the judiciary. Their respect must be earned by things that make sense and meet the threshold of public policy and the Constitution.

Mr. Speaker, Sir, I once watched a movie called “the Star Chamber”.

What is that?

Order!

The star was Yaphet Kotto and Louis Coze Junior. In this movie, set in America, the country had lost faith in the judiciary and a group of patriots set themselves up as “the Star Chamber”. Every time the courts passed judgement, the Star Chamber would sit, review the judgement and decide 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. Is it in order for the distinguished Sen. Wetangula to put my reputation as a lawyer on line, by saying that I was scared of judges, when he knows very well how strong I was in defending not just my clients, but the right things in this society? Could he withdraw and apologize?

Mr. Speaker, Sir, I withdraw. It was a general comment that nobody walked before Justice Aragon and walked out with an ex parte injunction.

Mr. Speaker, Sir, on a point of information, if he agrees.

Please, inform me.

Mr. Speaker, Sir, I also appeared before Justice Aragon. Justice Aragon would not even allow you to adjourn a case on the basis that your opponent was not there. If he thought that actually what you were adjourning was not a case after all, he would dismiss it and immediately say: “Okay, I would have allowed you an adjournment, but unfortunately, your case is useless. So, I dismiss it.”

Mr. Speaker, Sir, it is absolutely true and testimony can be borne by the distinguished Senator for Meru, Senator for Murang’a and Senator for Busia who appeared before these judges. At that time, we thought that they were overbearing. However, in reflection, they were actually very good judges. This is because they did not entertain frivolous issues. We also had, of course, the alternative. There was another Mzungu ---

Sen. Wetangula, you had been challenged by Sen. Kembi-Gitura that he is not one of those lawyers who were scarred.

Mr. Speaker, Sir, I can tell you for free that any lawyer who was waiting to enter the chambers of Justice Trainor or 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 think that we are ventilating on a point of order raised by Sen. Beatrice Elachi. The Senate Minority Leader is telling interesting stories, but will he tell these stories forever or there is some consideration of time?

Order, Sen. Wetangula! Conclude.

I am about to conclude, Mr. Speaker, Sir. Mr. Speaker, Sir, I was drawing these parallels to put everything into perspective; that justice must be dispensed within the context of how our country is moving. We are in a new dispensation. We cannot have a situation where a group of people sit somewhere and even decide, boast and say:- “If you hire lawyer so-and-so, the injunction is coming. If you hire lawyer so-and- so, something is coming.” Some even stage-manage which judges to go before, to get these injunctions. It is not right. Mr. Speaker, Sir, I am talking about judges in the past, because I do not want to bring names on the Floor without a substantive Motion. But I am sure that many Senators here have serious issues to raise if this matter comes up. Mr. Speaker, Sir, in conclusion, as a head of a critical institution in this country, you know very well that the Executive draws its authority from laws passed by the Legislature. The Judiciary exercises jurisdiction and authority bestowed upon them by the Legislature. This is the grand norm of democracy. If the grand norm of democracy becomes a national darts board, then we are headed in the wrong direction. It is incumbent upon you and all of us to do something before things get too late. Mr. Speaker, Sir, I thank Sen. Elachi for raising the issue and encourage her that if she brought a specific Motion, we will be more than available to discuss it. Thank you.

Order, Senators! In the light of the suggestion by Sen. Kiraitu, which I agree with, we should conclude this in the next ten minutes or less. So, I will give a chance to only three Senators who have expressed interest consistently. They are Sen. Wako, three minutes; Sen. Kembi-Gitura, three minutes and Sen. Machage, three minutes. Sen. Wako.

Thank you, Mr. Speaker, Sir, for giving me this opportunity to speak on this very important matter raised by Sen. Elachi. It is, indeed, a grave matter. Some of 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! Your time is up!

Can I just make a point please?

Why did you not start with that very fundamental point? Just make it on the basis that Sen. Kembi-Gitura has given you one of his minutes. Proceed.

Thank you, Mr. Speaker, Sir. One of the things we are seeing is that a fundamental understanding of the role of the Senate by the Judiciary-- and maybe in addition to what Sen. Murungi proposed, if you bring up an Act of Parliament, it can be declared unconstitutional in view of the unlimited jurisdiction of the courts and, particularly the High Court. Maybe time has come when we should engage the Judiciary so that they can better understand what the role of Parliament is and what the role of the Senate is in this whole constitutional make up. I would urge you, if you can use your good office with the Chief Justice to ensure that this takes place as quickly as possible because some of these mistakes that are being made which are so obvious are being made unwittingly by young advocates. Maybe a proper dialogue between us and them will sensitize the judges when it comes to matters that relate to the functioning of the Judiciary. 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, Mr. Speaker, Sir. I want to join the ranks of my colleagues who have contributed very positively to this important debate on the issues of the Judiciary as against the Senate. The Constitution that we have in this country today is actually a lay man’s Constitution; anybody can read it and anybody can understand it. It is actually not even difficult to interpret. Article 125 of the Constitution is very clear and I think it is important to read it so that one understands exactly what it says. Article 125(1) says:- “Either House of Parliament or any of its Committees has power to summon any person to appear before it for the purposes of giving evidence or providing information”. Secondly, Article 125(2) says: “For the purpose of clause (1), a House of Parliament or any of its committees has the same powers as the High Court-” Mr. Speaker, Sir, then it gives the areas that it has the same powers as the High Court. This is important because what it means to me as a lawyer is that when a Committee of the Senate is acting pursuant to or under Article 125(2), it has the same power as the High Court. Mr. Speaker, Sir, therefore it cannot be fathomed that the High Court is not sitting on appeal against what has happened in the Senate nor is it reviewing an order of the Senate because it does not have that power. So, the question is; on what basis can the High Court possibly say that the Senate does not have the power to summon a governor or any other person? Exactly where does the High Court get the authority to say under Article 125 that we cannot ask a governor to come before us? I think this is dangerous. I am on record as having said that dictatorship is bad. It is wrong in all its forms. It does not matter where it comes from. Parliament can create a dictatorship of its own which is wrong. The Judiciary can create a dictatorship and that would be very worrisome because it has the instruments which can be very dangerous if they are not used properly. Mr. Speaker, Sir, as I said, our Constitution is very clear and everybody can read it. Article 174 of the Constitution is the cornerstone of devolution. It is the Article which we look upon when we talk about the importance of devolution. How are we going to oversight if we are having Governors who are opaque in the way they operate and who, against the operations of the Constitution which has underlined the importance of public participation, do not allow anybody, leave alone the public, but the elected leaders from participating in what they are doing? Why does the nation think that the Sang’ Bill came into force? Was it not because of that opaqueness so that under Article 96(3) we are able 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, by the way, we are counting your time. You have done more than four minutes.

Mr. Speaker, Sir, with your permission, let me conclude and say this: The reason that the Constitution gives timelines even in a Presidential petition is for the nation to know where it stands. However, when a court adjourns a matter of great importance - I remember you standing up in this House and declaring the seat of the Governor of Embu County vacant as of 12.00 midnight; that night, when we made a decision. Without a reversal of that, the people of Embu are forced to have a Governor they do not wish to have at this point in time. This is the danger that I speak about when I am referring to dictatorship at whatever level. I thank you and thank Sen. Elachi for bringing this important Motion.

Yes, Sen. G.G. Kariuki.

I think my name appeared on your screen by mistake. I will give my contribution later.

You have to take only three minutes.

Mr. Speaker, Sir, as I appreciate the hawk-eye of Sen. Elachi on this issue, I also take cognizance of the good and elaborate way that some parts of the law have been pointed out - especially Article 125 of this Constitution - by the Deputy Speaker. That leaves me to wonder whether this House is being hit by its own ignorance. The law is very clear on what should be done. In any case, if you look at part I of Chapter 10 concerning the Judicial Authority and Legal System, you will see that it is clear under 2(d) that justice shall not be delayed. That is exactly what we are seeing now. Justice is being delayed with regard to matters of the Senate. It is very clear, in part (d), that justice shall be administered without undue regard to procedural technicalities. That is exactly what the courts are using left and right to hit at the Senate in trying to prolong the terms of people who have been confirmed to have misused public funds or those who have been involved in practices that are unacceptable for a leader in this country. We have to open our eyes and look at the same Constitution to map out the latitude within which to operate. It is our fault, in some way, that we have not fought for our rights as per the Constitution. If this Constitution is deficient in terms of completely separating the powers of the three arms of Government, then we need a referendum. We need it and it is justifiable. We have this Constitution, but it needs some amendments. After all, as it was earlier thought, 20 per cent of this Constitution was not acceptable 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, Sen. (Dr.) Machage, for faithfully doing your three minutes. I have heard you. I want to thank each and every Senator who has made very valuable contribution. All of it will be considered. Sen. G.G. Kariuki can approach my Chambers and say whatever he wanted to say because he did not do it now. Obviously, these are grave matters which will be considered. Most of you acknowledge that we are all constrained because some of these matters are active before the courts. We have the sub judice rule under Standing Order No.92. This is also under Standing Order No.90(1). We cannot really discuss the conduct of judges unless we bring a substantive Motion. Those are the narrow confines in which we were deliberating. Having said so, I want to confirm, in the interim that nobody can injunct Parliament and its Committees. For the specific matter of Sen. (Dr.) Khalwale’s Committee, I showed restrained otherwise I would have sent him out this afternoon. You can only serve the Speaker and the Speaker is not Sen. (Dr.) Khalwale. You can only serve the Clerk on behalf of the Senate. You cannot serve the Committee Chairpersons. Therefore, you need to disregard all that. You need to proceed with those invites and summons as the case may be.

I want to appreciate that most Governors have heeded to the summons of the Senate. So, we should not create the erroneous impression that all Governors have failed to come. We were told that this morning, the Governor for Elgeyo-Marakwet appeared. Last week, we had the Vice Chairperson of the Council of Governors, the Governor of Kwale County. They have been coming. I urge Governors, instead of making expensive trips to the courts and to media houses to instead take cheaper routes. There is what has already been ordained in 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.

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I just want to thank you for the ruling you have just made. I want to highlight two things which you might have to reflect on. Until we see the end of this approach where the Judiciary thinks they can supervise Parliament like a parastatal, there would be need for both the Chair and our Legal Affairs Committee to think a little more around this issue. I want to say two things. First, the supposed reliance on Article 226 by Governors is oblivious of the fact that it talks about accounting officers. Governors are not accounting officers. So, Article 226 talks about summoning of accounting officers by county assemblies. Our summonses to governors are based on Article 125 that talks about summoning any person. If the intention was to exclude Governors, then Article 125 should have said that we can summon any person, except Governors. That clarity needs to be given. The county assemblies can call their accounting officers, but we can call any person under Article 125. The second and last point is that you have properly guided that, indeed, Parliament cannot be injuncted. That is my position. In fact, I am preparing an academic paper to be published internationally and demonstrate how erroneous this crippling jurisprudence is not only to the Kenyan legal system, but to the Commonwealth legal jurisprudence. Mr. Speaker, Sir, this is something for reflection, going forward. I have seen my seniors here; Sen. Wako, Sen. Wetangula, Sen. Kembi-Gitura and others. In my view, Parliament cannot be injuncted when it is performing its core business. Core business means oversight, legislation and representation. I say so, because in Parliament, there are many other things that happen of administrative nature which do not relate to our core mandate. For example, it is the work of the Parliamentary Service Commission to deal with human resource management, procurement and so on. So, you can issue out injunctions on those issues. However, you cannot issue out injunctions on the core business of Parliament. Similarly, the other arms of governments cannot interfere with the Judiciary in its core business which is hearing and determining cases. That is why I find it ironical when the Judiciary tries to make itself immune from any oversight, including the oversight of Parliament even in non-core issues like the work of the Judicial Service Commission. The magistrates and judges who sit in that commission are not exercising judicial functions. It is just an independent constitutional commission just like the Constitutional Implementation Commission (CIC) or the Teachers’ Service Commission (TSC) and others.

Order, Sen. (Prof.) Kindiki! That matter is exhausted and my intervention was in the interim. So, wait until the final one comes.

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, think about the core functions of Parliament and that would save us a lot of headache. 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 rise on a point of order under Standing Order No.39(2) where it says that business shall be disposed of in the sequence in which it appears on the Order Paper or in such other sequence as they Speaker may for the convenience of the Senate, direct. I want to plead with the Speaker that for the convenience of the Senate, taking into account that we have less than one hour to go, there is a Bill on National Honours which can only take ten minutes because there is just one amendment. That is to make sure that the Leader of Majority and the Leader of Minority of the Senate are also members of the Honors Advisory Committee. It is for the benefit of the Leader of Majority and Leader of Minority that this passes very quickly. We can dispose of, it for the convenience---

Order! On such matter, you should have approached the Chair in good time so that I give you direction before you canvas it in public. Now I will be forced to ask Sen. (Prof.) Kindiki about his next order. There is a request by Sen. Wako that we bring Order No.9 ahead over Order No.8.

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, the information I have is that Sen. Wako’s Bill is just like mine and both of them are coming for the second reading. Given the time, if Order No.9 is brought forward, I have had to detain the Seconder of my Bill way beyond any further patience that I could have drawn from him. If it is in order then Order No.9 can be last, subject to the direction of the Chair, I have no objection, I can move my Bill tomorrow.

(Hon. Ethuro)

Mr. Speaker, Sir, I beg to move that the National Honours (Amendment) Bill, Bill No.16 of 2014, be now read a Second Time. Mr. Speaker, Sir, this is a very straight forward Bill. The National Honours Act established the Parliamentary Honours Advisory Committee. These are the national honours that are normally given to deserving Kenyans. According to our Constitution, Parliament is both the Senate and the National Assembly. Therefore, it is important 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.

Thank you, Mr. Temporary Speaker, Sir. I rise to second the Motion that the National Honours (Amendment) Bill, 2014, be read a Second Time. Mr. Temporary Speaker, Sir, as explained by the Mover, really, the gist of what we are doing in this amendment is to; once again, remind the country that after the promulgation of the new Constitution, 2010, Kenya became a bicameral Parliament. Therefore, any further piece of legislation, when it is being done, it should always be done with that proviso being clear at the back of the minds of the legislators. So, in the 2013 Bill No.11 of the National Honours, when they constituted this particular organ, they left out the two critical offices in the Senate; namely the Senate Minority Leader and the Senate Majority Leader. They were either being mischievous, or they had forgotten that Kenya had since become a bicameral legislature. Mr. Temporary Speaker, Sir, this matter is so important that I want to say it here and now; that this is one of the glaring reasons the Okoa Kenya proponents for the constitutional amendments will not rest. To this extent – and I wish the Senate Majority Leader was here today – and I am glad that he is ably represented by the Whip of the Government side. You see, the 10th Parliament, because many of the Members of the National Assembly then knew that either they were unable to become Governors or Senators, being a tougher election, they chose to deliberately remove some of the powers and functions of the Senate from this particular Constitution. You will recall, as a Member of that Parliament – and Sen. Wako is here – he sat on the Naivasha Committee which deliberately did this. If you look at this Constitution and you look at the issue of offices of Parliament, that Committee in Naivasha deliberately removed what was in the Nzamba Gitonga’s draft that provided for the Senate Majority Leader, the Leader of the Majority Party in the National Assembly, the Senate Minority Leader and the Leader of the Minority Party in the National Assembly, respectively. Mr. Temporary Speaker, Sir, that it is not here and to pretend that because that it is not here, we can, therefore, not legislate for it, is a pretext to the extent that if we did not have Sen. (Prof.) Kindiki as the Senate Majority Leader; and Sen. Wetangula as the Senate Minority Leader, this House would not function. This is because the only position of leader of majority that is given to hon. Duale, he cannot come to this House and lead the Government in its Business for the reason that if he attempted to approach this Dispatch Box, he would be quickly declared a stranger. So, the Office of the Senate Majority Leader and the Senate Minority Leader, until we amend the Constitution very soon, will, therefore, be exercised de facto . We will make it

as soon as the new Constitution is realized when we do those amendments. I want to use this opportunity to ask Sen. Beatrice Elachi that you must lead your Government in supporting Okoa Kenya initiative for the amendment. This is because if we do not, your Government---

(Sen. (Dr.) Machage): Order! Please, do not divert. Conclude, if you are about to finish.

Mr. Temporary Speaker, Sir, I have not finished. 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): I see no further interest to discuss this Bill; I now call the Mover to reply.

Mr. Temporary Speaker, Sir, I wish to thank all the Members who are here present who heard me and the Seconder. Obviously, we did our job so well that we made a perfect case. There was no need for more debate on the matter. Therefore, I beg to reply.

On a point of order, Mr. Temporary Speaker, Sir. Taking into account the Members who are in the House---

(Sen. (Dr.) Machage): Order! Are you replying or you are on a point of order?

Mr. Temporary Speaker, Sir, I have replied.

(Sen. (Dr.) Machage): Can you sit down?

This is not a Bill affecting the counties. Therefore, I will put the Question.

(Sen. (Dr.) Machage): Hon. Senators, an order had been made earlier by the Speaker that this would be the last business on the Order Paper. Therefore, it is now time to adjourn the Senate. Therefore, the Senate stands adjourned until tomorrow, Wednesday 24th September, 2014, at 2.30 p.m. The House rose at 5.55 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.