Mr. Deputy Speaker, Sir, I beg to lay the following Paper on the Table of the Senate:- A Report of the House Leadership delegation study visit to Germany

Mr. Deputy Speaker, Sir, I beg to lay the following Paper on the Table of the Senate:- The Council of Governors Statutory Annual Report 2013/2014

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.

Hon. Members, on the Order Paper, you will notice that we have Order No.8 which is Committee of the Whole. As you are very well aware, for the Committee of the Whole to take place for the Public Finance Management (Amendment) Bill, (Senate Bill No.10 of 2014), we need to have more than 24 delegations in the House. There is a proposed amendment to this Bill. I am directing that in view of the fact that we do not have a sufficient number of delegations, we reorganize the Order Paper so that we go to Order No.9 instead of Order No.8 and come back to it when it is convenient to do so.

Mr. Deputy Speaker, Sir, I beg to move the following Motion:- THAT, aware that pursuant to Article 96 (1) of the Constitution of Kenya, the Senate represents the counties, and serves to protect the interests of the counties and their governments; further aware that several adverse orders restraining the Senate from executing its role have been issued by the courts; appreciating the need for the Senate to execute its constitutional mandate without interference; further appreciating the wealth of experience and knowledge possessed by Senators in various fields; the Senate resolves to establish an ad hoc Committee, with effect from 2nd September, 2014, comprising the following Senators to closely monitor court cases involving the Senate or which have an impact on the constitutional mandate of the Senate, and apprise the House from time to time and in any event report to the Senate within six months- 1. Sen. Amos Wako - Chairperson 2. Sen. Kembi-Gitura 3. Sen. (Prof.) Kithure Kindiki 4. Sen. Moses Wetangula 5. Sen. Kiraitu Murungi 6. Sen. Fatuma Dullo The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I rise to second this Motion. As mentioned by the Mover, Sen. Mutula Kilonzo Jnr. we have many cases affecting the functioning of this House. In accordance with the Constitution, we know that the function of the Senate and its responsibility is principally to protect the interest of counties through legislation, oversight and other key responsibilities, including impeachment. This House has participated in the process of enactment of some laws. It is sad that so far, one of them is a subject of a court case right now. That is the amendment to the County Government Act seeking the establishment of County Development Boards. We, as a House, did so by passing an amendment Bill in pursuant to our legislative function. That law is now before the courts for the purpose of establishing its constitutionality. That means that the legislative function of the Senate is under question. The second responsibility given to the Senate is oversight. We are given that responsibility under the Constitution to oversight the utilization and management of resources allocated to county governments. Part of the process of oversighting county governments with regard to the utilization of those resources is being undertaken by one of our watchdog committees, that is, County Public Accounts and Investments Committee (CPAIC). The Committee has invited some county governors, who are the chief executive officers of counties. The Council of Governors has gone to court. As I speak, there is an injunction against the Senate Committee from summoning the governors to come and explain the utilisation of those resources. That particular function of oversight has been injuncted by the courts. Mr. Speaker, Sir, the other responsibility given to us by the Constitution and the County Government Act is to participate in the process of impeachment of governors. This House has exercise that mandate with regard to the Embu Governor. I am aware that this is a matter pending before court. We dispensed with the issue of the Governor for Kericho County. We want to appreciate that in that process, the Governor, Prof. Paul Chepkwony did not go to court enabling this House to dispense with that matter without any interference. Two weeks ago, this House was supposed to process the impeachment of Makueni Governor, Prof. Kivutha Kibwana. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I rise to oppose this Motion for very good reasons. Firstly, when you read the Motion, it says that this committee will take effect from the 2nd September, 2014 and yet on the 2nd of October, 2014, it was already one month later. In a few days, that is, on the 2nd November, 2014, it will be two months. Therefore, the lifetime we are giving this committee will elapse even before we have discussed it in the House. Secondly, I have tremendous respect for both the Mover and the Seconder of this Motion. Everybody knows my friendship with both of them, particularly, my deputy chair in the Committee on Information and Technology, who is the Mover of the Motion. When you look at the list of the Members of this committee, you can imagine that you are reading a list of Members of the Legal Affairs and Human Rights Committee. I am wondering then why we are duplicating a committee unless we saying that the Committee on Legal Affairs and Human Rights is so unable to execute its responsibilities and that we should dissolve it and form another committee which we are calling ad hoc to carry out the responsibilities that the Committee on Legal Affairs and Human Rights is supposed to carry out. Mr. Deputy Speaker, Sir, with all due respect to my colleagues, the proposed chairperson of this committee, Sen. Wako is the Chairperson of the Committee on Legal Affairs and Human Rights. I have heard my good friend, Sen. Sang, say that not all Members of this proposed committee are Members of the Committee on Legal Affairs and Human Rights. However, when I read it over, a half of them are Members. 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. What was that all about? Sen. Haji, are you on a point of order?

I would like to contribute.

Then you are pressing the wrong button. Press the correct button. Sen. (Prof.) Anyang’-Nyong’o.

Mr. Deputy Speaker, Sir, I rise to support the Motion and also record my appreciation of the points raised by my dear friend, Sen. Kagwe, which I agree with entirely, but the conclusion of which I am in doubt. I am in doubt precisely because if I were him, I would have amended the Motion rather than defeat the spirit the Motion by throwing it out entirely. I do believe that the Motion is seeking to deal with a certain mischief. According to Sen. Kagwe, that will not be dealt with by setting up an ad hoc committee, but by throwing the ball back to the court or the Committee on Legal Affairs and Human Rights. So, I would have wanted that the Motion be amended to meet that goal. That is why I am disagreeing with him, not because the substance of this speech is wrong. Having said that, I think Sen. Kagwe is right about that issue, because separation of powers is enshrined in the Constitution. However, it is not appreciated nor being implemented by the Government itself. Mr. Deputy Speaker, Sir, in an earlier discussion today in our Committee chaired by Sen. (Dr.) Khalwale, I brought out a point which you, as a Member attending that Committee meeting today agreed to. I would like also to bring it to the attention of the Members. Our Committee talked about these two issues to some extent. If one reads Article 125 of the Constitution with regard to power to call for evidence--- This is in the Kenyan Constitution. Let us remember that the Constitution is the supreme law of this land. Therefore, any other Act passed by any other legislative body which is not in line with the Constitution is null and void. Therefore, any other Act which is in existence must be interpreted in the context of the Constitution. This Article reads very clearly and I quote:- “Either House of Parliament, and any of its committees, has power to summon any person to appear before it for the purpose of giving evidence or providing information.” I do not think anybody can go to a court of law saying that “I have been summoned, but I cannot go. So, I seek the laws to tell me what to do.” If I was a judge, I would say “Have you read Article 125(1) because that is enough?” There is no need nor reason a judge can say “I have heard you; the status quo remains. Do not appear, we will hear this case in six months time.” Then, really, there is no respect for the separation of law or interpretation of the Constitution. 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. Boy Juma Boy, I cannot see your name among those who want to contribute. So, I am will not allow you to contribute through the back door. If you want to contribute, you should put down your name, just like everybody else. When your time comes, you can contribute. Let us respect the rules of the House. Are we in agreement?

Thank you, Senator.

Mr. Deputy Speaker, Sir, I cannot understand the excitement of Sen. Boy Juma Boy because this is a serious matter. If this is allowed, where the three organs of the Government; Parliament, the Executive and the Judiciary, which are supposed to be working together do not work in harmony, then this country will never move forward in terms of development. If one branch of the Government has the powers to stop the other one from doing its work and says “Okay, we have stopped you and we shall hear this case in 10 months time”. What will happen? Obviously, it means that, that other branch of Government has the powers to stop another branch from working. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I have been in this Parliament for a few years. I remember that in the Ninth Parliament, the former Attorney-General who served under those Parliaments had a major problem of saying “no” to the Government when an issue was worth saying “no” to. He would say it in very many words. I see the Chairperson of the Committee on Legal Affairs and Human Rights currently serving again having a similar problem of saying he has found the ability of some Members of his committee wanting. Therefore, he would in many words want a new committee.

He is now coming up with a very interesting way of telling us the problem he has in the committee; by setting up this ad hoc committee whose nine Members are his Members. So, the question is: Who is being rejected? You already can see who the rejected Members are. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, thank you very much. I want to start where a few other Senators have left, starting from what Sen. Kagwe, also the professor here and also my friend over there, so eloquently spoke. It is very important that this matter should not have been a matter to sit in a hall somewhere and decide a very serious matter like this one to be presented to the Senate assuming that the Senate will just rubber stamp whatever is being said. That is where we go wrong. There was no consultation. If there was, I am sure people with a wealth of experience like Sen. (Prof.) Anyang’-Nyong’o, our Speaker over there, Sen. (Dr.) Machage and a few others, ought to have been consulted to give advice. It is not just because one has become a lawyer that he has, therefore, acquired all the experience that is required under the sun. Mr. Deputy Speaker, Sir, I think we are suffering from mistakes of our own. How did we get into this mistake of our own? It is because when we came as Senators here with the new dispensation, politics of the new dispensation arose. These politics will not be solved through confrontation. If you look at this committee, what are they expected to do? Is it to change the mentality of judges or the Judiciary? Is it to change the mentalities of the people in high offices who are not supporting the Senate? Is it going to give some life to the Senate? This is a practice I have seen. We must separate issues. When we are discussing economic issues, we can get people who are qualified to discuss the economy of this nation and even internationally. They are here with us. If we are talking about the legal aspects, then we have very many lawyers here. The list you are seeing here is composed of lawyers. Out of 13 Members, it is only three who are not lawyers. We need to understand how much a lawyer is expected to do and how much a politician is expected to do. Is this war legal or political? I would like to submit that these are not legal problems, but political. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Thank you, Mr. Deputy Speaker, Sir. I support this Motion. As I support it, I would like to remind some hon. Members that while they were away, there was a Kamukunji which was held which agreed that this committee be established. When it was established, it started work. I know that part of that work was used to prepare a legal brief that was given to the lawyers who are doing the case against the Sang Bill. Mr. Deputy Speaker, Sir, at that time, I was not a Member. If you look at the brief that was prepared by this committee, not for internal consumption, but to be used in the courts, you will find it much better than what had been prepared by the legal department of the Senate which showed that Members were giving a lot more commitment to some of these problems that are confronting the Senate. We are forgetting a very important point: When you form an ad hoc committee that does not mean that there is no other committee dealing with an issue. Formation of an ad hoc committee sends a political message that there is an issue that has arisen and which must be dealt with in a special way as opposed to using the normal committees. This instrument of ad hoc committees has been used before. You will recall when JM Kariuki was assassinated. There was a committee dealing with security and yet Parliament, in its wisdom, formed an ad hoc committee of Members of Parliament to inquire into circumstances surrounding the disappearance and death of JM Kariuki. There was the Kiliku Committee. If you love the Senate and you are a Senator in this Senate and you do not believe that there are special circumstances requiring the formation of this committee, then I am very surprised. I am surprised because it has been said that one of our important roles is oversight. How are we expected to play our oversight when we cannot summon governors? What is your responsibility or mandate if you cannot summon governors? That issue needs to be resolved. It is known that the impeachment process is a very special function of the Senate. In the constitutional design, this special function was conferred on the Senate. I have heard some legal experts saying that this function should go to the Judiciary. Not all the impeachment proceedings that have been mounted from various county assemblies are reaching here due to legal problems. If you do not believe that those circumstances we do not need intervening factors that require a special committee, then I do not know what my colleagues are talking about. On the issue of legislation, there is a pending court case where some patriotic Kenyans are saying that the Senate needs to be involved in every single legislation. 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. Deputy Speaker, Sir. I wish to seek you indulgence. Many times, the Chair does not see and requires to be reminded.

Order! You should not talk about the sight of the Speaker. It is not in your place to talk about the sight of the Speaker. What is your point of order?

Mr. Deputy Speaker, Sir, as you may have noticed, there is a lot of excitement in the House. I thought I should bring to your attention the fact that Mr. Raila Odinga has now---

Are you rising on a point of order pursuant to Sen. Orengo’s contribution or on your own Motion?

Mr. Deputy Speaker, Sir, this is pursuant to the order in the House or lack of it. The lack of order in the House was making it difficult for us to hear Sen. Orengo. I rose to draw your attention to the fact that the Rt. hon. Raila Odinga has now entered the Speaker’s Gallery and it would help if you formally acknowledged his arrival so that businesses can be conducted in an orderly manner. I thank you.

Sen. Khalwale, the problem with you is that you want to preempt situations. You should leave it to the Speaker to deal with the situations. However, I thank you all the same. Proceed, Sen. Orengo.

Thank you, Mr. Deputy Speaker, Sir. I also appreciate the coincidence of my speech with the arrival of my party and coalition leader. This is for the good of all this Senate. I thank him. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Thank you Sen. Orengo.

Hon. Members, I would like to take this opportunity to recognise the presence – on the front row of the Speaker’s Gallery – of the former Prime Minister of the Republic of Kenya, hon. Raila Amolo Odinga, who I believe has come for the very first time to see the deliberations of the Senate under the new Constitution. I wish to welcome him on my own behalf and on behalf of all the Senators here present. I hope he will find our proceedings befitting of the House of Senate. Welcome. We are grateful that you have found the time to come to see how the Senate operates. Karibu sana.

Mr. Deputy Speaker, Sir, I appreciate your Statement of appreciation to the former Prime Minister. 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. Murkomen, I wait to see the Motion from you, which I will approve, so that we can discuss it in the House.

Sen. Sang, what is your point of order?

On a point of order Mr. Deputy Speaker, Sir. In recognising the former Prime Minister, the Rt. hon. Raila Amolo Odinga, you specifically left out the title “Right Honourable.” Was that by mistake or by design?

Do you want to engage me in a debate? What is your point of order?

No, Mr. Deputy Speaker Sir. You left out the Rt. Honourable and I thought---

Why do you think I left it out?

That is why I am seeking your clarification.

I do not think it is in your place to do so. I am the one who recognised the presence of the former Prime Minister, hon. Raila Amollo Odinga into the House of Senate. So you want to go on record as having raised what point of order?

Mr. Deputy Speaker, Sir, titles are very important.

If the former President of this Republic came here and you introduced him as just “honourable” you will have missed a very important title. So my point of order is just seeking clarification that we use the right title “Former Prime Minister, Rt. hon. Raila Odinga.” 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 on my feet now, am I not?

Sen. Sang, thank you for the observation. I wish to recognise the presence of the former Prime Minister, Rt. hon. Raila Odinga. Thank you very much. That is very important particularly for HANSARD.

Mr. Deputy Speaker Sir, I rise to thank you for indulging me and, especially for allowing me to now apologise for anticipating what you were going to say. However, having said that, I think the tone of the conversation this afternoon suggests we are only remembering that the Rt. hon. Raila Odinga is a former Head of Government, forgetting that Rt. hon. Raila Odinga, as the Leader of the opposition, is indeed, a president in waiting in the near future.

Shall we proceed with the Business of the House? Who is holding temporary card number four?

It is me, Mr. Deputy Speaker, Sir.

I did not invite you to speak. I just want to know who is holding temporary number four. Proceed, Sen. Njoroge.

Asante, Bw. Naibu Spika. Kwanza, nasimama kupinga Hoja hii inayohusu majina ya Maseneta ambao yameorodhishwa katika Hoja hii iiliyo mbele ya Seneti. Nashangaa ni nini hasa kilikuwa kibaya au ni dosari ipi imetokea katika Kamati ya Kikatiba na Haki za Binadamu inayoongozwa na Sen. Wako. Nikiangalia majina ya watu ambao wameongezwa katika hii Kamati tunayoipendekeza, tisa wamekuwa wanachama katika Kamati ya Sen. Wako. Kama hawakuweza na hawawezi kufuatilia yale mambo yote ambayo yanaendelea kule kortini au kushauri hii Seneti kuhusu maswala ya kikatiba, basi ningependekeza tuwe na mwenyekiti mwingine wa Kamati tunayoipendekeza. Si vyema mwenyekiti wa Kamati ya Maswala ya Kikatiba na Haki za Binadamu aendelee kuwa mwenyekiti wa Kamati hii mpya. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

What is your point of order Sen. Sang?

On a point of order, Mr. Deputy Speaker, Sir. Sen. Njoroge, in his contribution, keeps on making statements wondering why this list is like this. There was a

in this House, where, we, as a House, constituted this committee. So, what this Motion is actually doing is to formalise the process of constituting an ad hoc Committee that was decided by this House. So, is he in order to suggest that the Motion is seeking to set up this committee afresh, knowing that there were consultations earlier? By the time we held the

, we were aware that the Legal Affairs and Human Rights Committee existed, but this House, in that Kamukunji, saw the wisdom of creating this a d hoc committee. Is he in order to suggest that the names in this Committee have just been brought because of the Motion, yet we know that it actually existed?

Sen. Njoroge, you have heard the point of order being raised and from hearing you – I would like to know this as a matter of interest – are you against the names or against the Committee? I think there should be a distinction. From what I am hearing you say, I think you have an issue with the names that have been proposed, but not so much with the principle behind it. Sen. Wangari, what is your point of order?

On a point of order, Mr. Deputy Speaker, Sir. Is it in order for us, as a House, to assume that since a committee was deliberated in a Kamukunji, it was operationalized? The due process of operationalizing any committee in an informal sitting should be done in the plenary.

Sen. Wangari, whether the Motion passes or fails is the reason we are here. So, there is no committee that has been operationalized through a

that would be a wrong notion. Otherwise, there would have been no need of bringing the Motion before the House. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

On a point of order, Mr. Deputy Speaker, Sir. Is Sen. Njoroge in order to suggest that lawyers who are in this House are not politicians? He was drawing a dichotomy that if this is a political committee, it should include politicians. Is he suggesting that we are not politicians?

Bw. Naibu Spika, kwanza nitasema kwamba nimenukuu yale ambayo yalikuwa yamesemwa na Sen. Orengo kwamba, hili si jambo la kisheria peke yake, bali ni la kisiasa. Kwa hivyo, hawa ni watu ambao wana usemi mkubwa sana kisiasa. Licha ya haya yote, ikiwa kulikuwa na na Kamukunji wakati mmoja ningepeka kukumbushwa yaliyoajiri katika mkutano huo.

Sen. Wangari, do you still have another point of order.

On a point of order, Mr. Deputy Speaker, Sir. Maybe just for clarification and procedure, even Sen. Orengo had indicated that this Committee has already started work. Does a Kamukunji formally constitute and operationalize? To me, it is still not clear. The reason that this Motion is here is so that we can give the legal mandate to this Committee to actually start operations. Is it in order to refer to the Constitution in the informal set up of a Kamukunji?

The issues that you are raising as points of order are mainly points of argument. I am sure you will be able to raise them when I give you the chance to make your contribution to the debate. Proceed, Sen. Njoroge.

Bw. Naibu Spika, ningetaka nikumbushwe yale mambo ambayo yalitajwa katika Kamukunji wakati mmoja na ambayo hayatakiwi kuhusishwa wakati huu ambao tunajadili Hoja hii. Hapa Kamati hii inasemakana ilianza kazi kutoka 2.09.2014. Ikiwa tutaipitisha Hoja hii, itakuwa ni ufisadi wa hali ya juu. Ningetaka kusema bila kutaja mambao yaliyojadiliwa katika

Order, Sen. Njoroge! Did you use the word “ ufisadi ”?

Mr. Deputy Speaker, Sir, I used the word “corruption”.

Against who?

Ninasema tukipitisha.

Can I follow your line of argument? What did you say exactly?

Bw. Naibu Spika, nimesema kwamba, tukiipitisha Hoja hii kama vile ilivyo, tutakuwa tukisema Kamati hii ilianza kazi tarehe 2.09.2014. Hii itakuwa ni kama tumefanya ufisadi. 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.

Hukutumia neno “kama”. Ulisema kwamba, itakuwa ni ufisadi.

Bw. Naibu Spika, nimesema: “Utakuwa kama ni ufisadi”.

Did I hear you use the word ufisadi ?

Yes, Mr. Deputy Speaker, Sir.

Sen. Kembi-Gitura): Did you say: “ itakuwa ufisadi ” or did you say “ itakuwa kama ufisadi?”

Bw. Naibu Spika, nilisema kwamba itakuwa ni kama ufisadi.

Do we check the HANSARD?

Bw. Naibu Spika, na kama nilisema ni ufisadi, basi niliacha neno “kama”. Lakini nilikuwa ninamaanisha kwamba, tukiipitisha vile ilivyo, itakuwa ni kama ufisadi.

In plain language, what it means is that it will be like corruption.

Yes, Mr. Deputy Speaker, Sir. It will be like we are committing corruption.

On a point of order, Mr. Deputy Speaker, Sir. I would like the Senator to elaborate on what he means that this will be like corruption or it is corruption. Is the Senator in order to allege corruption on a distinguished and honourable committee that is being constituted when we clearly know that a Committee can only be paid its dues after it has done its work? Is it in order to allege that Members are corrupt in this House?

On a point of order, Mr. Deputy Speaker, Sir. Sen. Orengo and Sen. Mutula Kilonzo Jnr. and I, while seconding the Motion, clearly indicated that this House has already benefited from the services of that committee. The committee was constituted by this House and we know that there are formal processes of doing things in this House. There are informal processes as per the tradition of this House and we cannot dismiss agreements that we make within Kamukunjis . That is why we are just formalizing this process. Is the Senator in order to impute improper motive on a committee that is already working and the House is already benefiting from the works of that Committee?

On a point of Order, Mr. Deputy Speaker, Sir. Is the Senator in order to suggest that the business we are transacting in this House is tantamount to promoting corruption when it is so clear that corruption is one of the parameters that the best international practices use to measure good or bad governance? If he means so, he should be forced to withdraw those words and apologize for suggesting that this institution of Senate transacts business that promotes corruption.

On a point of order, Mr. Deputy Speaker, Sir. I think with all due respect, every Senator has a right to hold a different opinion. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, mine is simple. We are now discussing something which we may not have been intended. First, the Kamukunji which we had here, with due respect, you were not the Chair of that Kamukunji . You are the Deputy Speaker of the Senate and the matter in front of us is for the Senate and not for Kamukunji. We cannot be guided by Kamukunji here unless we accept so, but our Standing Orders do not work with the

What my friend here is trying to say is that if we pass this Motion; it is like we are entertaining corruption. That is what he was saying. Therefore my point of order is this; is it in order for us to talk about Kamukunji instead of dealing with the matter ahead of us?

Now, several issues arise from that altercation. First and foremost, you have a Motion in front of you, right? It does not talk about a

. It is a Motion duly passed, approved by the Speaker and which has gone through the RBC. If you want to bring in the issue of Kamukunji, that is your own way of debating. I cannot stop you from debating if you want to refer to historical parameters. However, the Motion we are discussing is in front of us and it is very clear, in black and white. The point I want to understand is, in what way Sen. Njoroge can possibly accuse the Senate of corruption or acting in a manner that is leading to corruption in bringing a Motion that has been passed in the RBC and which is properly before the House? In what way can you possibly say that if the House passes it, it will be an act of corruption, or it will be like an act of corruption? Itakuwa ni kama ufisadi ama if you wish, ni ufisadi?

Bw. Naibu Spika, wakati nimesema naipinga Hoja hii pamoja na majina katika orodha hii hapa, pengine liwe ni jambo la ubaguzi, ambalo linaweza kuwa katika hii Seneti kwa sababu mimi si pekee yaka ambaye ametaja mambo ya ufisadi katika Hoja hii. Leo pia kuna Seneta ambaye pia ametaja jambo hilo la ufisadi. Sikusikia wenzangu wakisimama kwa hoja ya nidhamu. Ikiwa mimi ninahisi na naona jambo tofauti, na ninafikiria Hoja hii imewasilishwa hapa ili tuijadili---

No! No! I am not going to go into argument with you. You said, and I heard you because I was here, that is why I raised the point. You said if we pass this Motion as it is, it will be like corruption. If I use your own words, “it will be corruption.” That is what I heard. To use your own words, if I give you the benefit, you said that it will be like corruption. Itakuwa kama ufisadi, if we pass the Motion as a House. Am I correct? Did you use those words? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I used those words. But I think I used the words trying to stress the point why I do not support the Motion.

It is okay. It is your right to support or not support the Motion. However, if you want to cast aspersions against your colleagues, either through the Motion or in whatever other way, that is not acceptable. Therefore, because I believe that you have used the word corruption in your contribution in the Swahili language “ Ufisadi,” I would like you to apologise. If it is allowed to pass, it would be against the House, your colleagues and the Senate that we are bringing in a Motion that amounts either to corruption or to promoting corruption. What is it that you have to say? I am not going to preside over the House when those kinds of allegations are made against this House because that is bringing the House to disrepute. You are either going to withdraw and apologise to the House or take the consequences of your own words.

Mr. Deputy Speaker, Sir, at that point, I withdraw the word “corruption.” I think I mentioned the word “corruption,” in a light tone. I never said that this House---

Sorry, you used the word corruption in what?

I used the word in light tone and I never---

The word “corruption” can never be in a light tone. I would like you to withdraw and apologise so that we can move on to the next point.

I withdraw and apologise Mr. Deputy Speaker, Sir.

Thank you. Now, you can proceed. Sen. Lesuuda, do you have a point of order?

Mr. Deputy Speaker, Sir, my point of order has actually been pre-empted. I wanted to ask whether we could ask the Member to withdraw so that we can move on with the discussion this afternoon.

So you thought I was taking too long?

) Sen. Obure, do you have a point of order?

On a point of order Mr. Speaker, Sir, when the contributor started speaking, he was speaking in Kiswahili. However, somewhere in the middle, he reverted into the English Language. Now, even the withdrawal and apology has been made in English Language. Is that in keeping with our Standing Orders? Is he in order?

Sen. Njoroge, do the right thing. You know the 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.

Bw. Naibu Spika, naomba msamaha na natupilia mbali hayo matamshi ambayo niliyoyatamka.

Now, you can proceed.

Bw. Naibu Spika, nilikuwa ninasema ninapinga kuundwa kwa kamati hii. Hii ni kwa sababu itakuwa ikifanya kazi kama ile inayofanywa na kamati ya Maswala ya Kikatiba na Haki za Binadamu. Ni Maseneta wachache ambao wameongezewa katika orodha hii. Ikiwezekana ni vyema kubadilisha mwenyekiti wa kamati hii tunayoipendekeza. Kamati ya Sen. Wako inawajumuisha wanasheria wengi kama vile Sen. Mutula Kilonzo Jnr. Sen. Kiraitu Murungi na wengine ambao wanaweza kuongoza kamati kama hii. Kwa hivyo, hata kama Seneti itapitisha Hoja hii, naona kuwa kamati hiyo haitakuwa na manufaa yoyote wala haitaongeza lolote katika Seneti hii. Kama ingewezekana, kamati hii ingekuwa na nyuso geni kabisa ili tuweze kubadilisha yale ambayo tunafikiria yamekuwa yakikwama katika mambo ya kisheria. Kwa hivyo machache, ninapinga Hoja hii. Pia ninapinga mwenyekiti anayependekezwa hapa. Asante sana, Bw. Naibu Spika.

Thank you, Mr. Deputy Speaker, Sir. Let me start by acknowledging the presence of the Rt. Honourable Raila Amolo Odinga. For him to have come to the Senate, especially at such a time when we are---

Yes, but presence is both present and past. Presence means that he was there, but he is not here; it is all inclusive. So, presence means he is still here and I acknowledge that. .

Mr. Deputy Speaker, Sir, even as the Senate tries to assert itself - let me not even use the word “tries to.” As the Senate asserts itself, we must do this in a very orderly way and look at the roles that are played by the other organs; that is, the Legislative, the Executive and the Judiciary. Article 1(3) of the Constitution is very clear. It says sovereign power is delegated to the State organs, Parliament and the legislative assemblies; the national Executive and Executive structures in county governments because of devolution; and the Judiciary and independent tribunals. There was a reason for the separation of power. All these are very powerful organs and each will try to get and amass more power, then it, probably, should be able 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. Deputy Speaker, Sir, for giving me the opportunity to contribute. This House has a serious responsibility provided for under Articles 94 and 96 of the Constitution and also under Chapter 12 of the Constitution on Public Finance; and many other provisions of law. There is a systematic and well co-ordinated attack on this House. This is an attack that has perturbed me, particularly when I realized that the attack this House is facing is in relation to its responsibility to protect counties and the people who live in those counties. Mr. Deputy Speaker, Sir, I would not fault any judge for, perhaps, giving an injunction on matters related to personal rights or rights of one individual. However, Article 27 of the Constitution is very clear that you must measure individual rights with the rights of many people. It is also clear that people must appreciate that this House has never faulted the courts for reaching a final determination on well reasoned, well presented case and arguments. However, what we, as a House, have a problem with is the use and misuse of injunctions; what the Senate Minority Leader called the “dishing of injunctions like mandazis .” It should worry this House that a court, even a judge in his right mind, would say that a county assembly cannot summon a County Executive Member. To just say in a blanket manner that the county executive committee members cannot be invited to come and answer questions related to matters of accountability about the county and their performance; that they cannot be removed or they cannot be questioned. To say that the Senate cannot invite a Governor to come and make his case in relation to use or misuse of public funds in the county should really worry anyone in this country. Injunctions are being used as if they are permanent orders against any possibility of anyone questioning any governor. As I have said, without casting aspersions on the institution of the Judiciary, I want to make it very clear here that, that Judiciary has a number of judges, some of who taught me, like my dean, Prof. Jackton Ojwang. 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. Sang, are you on a point of order?

Mr. Deputy Speaker, Sir, I am on a point of information.

If it is a point of information, you can only ask it from your colleagues.

I am ready to be informed, but I---

Incidentally, our screens do not have that kind of intervention.

Is it a point of order or a request for the Floor? Now, Sen. Murkomen, do you want to be informed?

Yes, Mr. Deputy Speaker, Sir.

Mr. Deputy Speaker, Sir, I wish to inform Sen. Kipchumba Murkomen that Kshs22 million being given to the CoGs by every county government can sink more than 50 boreholes. Therefore, it is really imprudent use of resources to sink resources---

Order, Sen. Sang! We are not discussing boreholes now. Are 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.

Mr. Deputy Speaker, Sir, Kshs22 million multiplied by almost 50 counties translates to over Kshs1 billion. A billion shillings is more than the development expenditure of Elgeyo-Marakwet County and Lamu County combined in a whole year. Those resources are available for the CoGs to use the way they want. That is why they are able to get the right lawyer who will get them the right judge for them to make the right decision. This House has been accused of being unable to be represented in court, but to hire a lawyer to go to court requires money. This Senate alone, we have been informed that there are over 100 cases in various courts in the Republic of Kenya where Parliament has been served and where this Senate requires representation. Shall this Senate perform the function given in Article 96 and 217, Chapter Six of the Constitution or shall we be a Senate working to be represented in court? Therefore, this issue must not be cheapened. The seriousness of the attack on the Senate is something closer to the first Senate of the Republic of Kenya from 1963to 1969. First of all, it is said that the Senate is useless and has no responsibility. Today, we have just come as a Committee from discussing the future formula that will be used for three years. The Constitution, in Article 217 says that that formula belongs to the Senate. We are not a useless House. We know our responsibilities. Even a lay person who has not gone to a school of law can see the powers of the Senate in the Constitution. Mr. Deputy Speaker Sir, what this committee will do is to think innovatively of how then we shall be able to continue dealing with the judges that are not seeing? In the Bible, Jesus said that they have eyes, but they do not see. How will this committee work with those other many judges about 80 per cent of them who have eyes and see? How shall we work with them to ensure that the other 20 per cent can respect the institution of the Senate? I dare say that when I think somewhere in my heart; I always respect my intuition. I think the Chief Justice of the Republic of Kenya who is the President of the Supreme Court is with the Senate. He appreciates because if those people do not appreciate, then the Senate will have to find a way that we can communicate that information to other stakeholders. It is also important for the governors to appreciate that what Senate is doing is to assist them to do well. If you put them in a corner to account for the money and to prudently use the money, the persons who take the glory are finally the governors. Senate is complimenting their responsibilities. We are not attacking them; we are assisting them. It is also suspect that the challenge against Parliament is only targeting the Senate and not the National Assembly. Could it be because this Senate does not allocate money to 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, Mr. Deputy Speaker Sir. I rise to support this Motion. I start by begging my brother, the Senator for Nyeri, Sen. Kagwe, not to be worried about an adhoc committee. I remember in 2012, there were land clashes in Nakuru County, specifically Banita Settlement Scheme. The Committee on Lands in Parliament was working on the case, however, Parliament then formed an ad hoc committee which I chaired. When we went on the ground, in spite of there being a Committee on Lands, we found that the then sitting Member of Parliament, the previous Member and their cohorts of supporters were the ones fueling the problem. We found that some of the members of the then Provincial Administration were also involved. When we went there and held meetings and barazas in pubic as an ad hoc Committee of Parliament, the Luos and the Kikuyus who were being chased away by whoever was chasing them, actually found peace and started living in harmony with them. From then, I have never heard of any land clash in Banita Settlement Scheme. I wish to beg Sen. Njoroge who comes from that county that the peace he saw there was taken there by an ad hoc committee. My second point is to beg our colleagues who are opposing to realize that, the reality is that there is a problem even if we want to bury it in whatever points they are raising. At the moment, there is abuse of the doctrine of separation of powers.

On a point of order Mr. Deputy Speaker Sir. Sen. Khalwale did allude to the fact that we are afraid of ad hoc committees. We are not afraid of ad hoc committees, neither are we against them. We are simply saying that as a matter of moving forward on this matter, this may not be the most effective way of doing so. I am convinced that even though there have been other ad hoc committees in the past, as Sen. G.G. Kariuki said, there is more than one way of killing a cat. We are convinced that a smaller part of the Committee on Legal Affairs and Human Rights can do this job more effectively than an ad hoc committee. It is a question of implementation and not one of liking or disliking. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker Sir, I have heard my colleague. I was making the point that there is obvious abuse of the doctrine of separation of powers to the extent that there appears to be an attempt by a section of the Judiciary to try and be seen to be superintending the other two arms of Government. If we may call it a triangle, that has got the three corners of government. However, we want to remind the Executive, Parliament and the Judiciary that, that triangle has got the angle 60 at all their turning points. Therefore, they should not misconstrue the triangle of the doctrine of separation of powers to be a pyramid where one arm of the Government sits at the apex. The issue of governors has been spoken to. Indeed, if those who wish to oppose this committee could just spend a week in the County Public Accounts and Investments Committee of the Senate, they will realize how we are heavily disadvantaged and challenged. Today, we are dealing with an issue of summons pertaining to a particular county. Tomorrow, another one and the next day, we will deal with another excuse. It has made it difficult for us to report to this House on time because most of the time getting a governor to come is not easy. We are forced to invite him two times and, subsequently, summon him before it dawns on him that he cannot run away. We hope that this committee will unlock this impasse so that our Committee can be functional. The issue of Governors running to court for summons as evidenced in the case of the then Governor for Embu is very sad. Members of the public still think that this man is a Governor. He is not. The purpoted winning of a case was in respect of an earlier case that was there which was overtaken by events in the sense that it was in respect of the first attempt to impeach him. Today, in my Committee, the Governor of Murang’a, who was doing very well caused me to come up with a Motion that is about to come to the House so that he could be exempted from the four counties that had refused to honour summons. He has now written to us a letter telling us that he has summons but cannot come. So, we have to put our feet down and ensure that we force them to move away from impunity. They should respect invitations from this House. I am glad to inform the House that the County Public Accounts and Investments Committee (CPAIC) has taken a decision whereby in two weeks’ time on 11th November, we will sit with the Attorney-General and the Director of Public Prosecutions (DPP) to decide the next step we should take now that some Governors have defied summons. We do not want to ask the DPP to take up the matter to cite a Governor for contempt and then he belittles us. I am very hopeful that if this Committee swings into action, the threat by MCAs to sue the Senate to stop over sighting counties so that they can become superior to the Senate will not take effect. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Thank you, Mr. Deputy Speaker, Sir. I rise to support this Motion. The formation of this Committee is not a new undertaking. This is not something that we should have taken time to belabour about. As we all know, in the Constitution, Article 124(1) gives us the mandate to establish committees. This one says that each House of Parliament may establish committees and shall make Standing Orders for the orderly conduct of these proceedings including the proceedings of its committee. If there is an idea that we want to work on, especially now that we think that there is some misinterpretation or misunderstanding on the role of Senate, there is no harm getting a specific and specialized and dedicated committee, in this case, an ad hoc committee that can take a short time to deliver what we want. This does not have to be a standing committee. It is just like the one that we formed the other day for Royalties Accruing from Exploitation of Natural Resources in Counties which was led by Dr. Zani. A Bill has just been generated now to that effect. With regard to this one, this is a committee that will work strictly with the other arms of Government in interpreting and telling them about the work of the Senate. Indeed, in Article 96(3), the Senate participates in law making functions of Parliament. We are supposed to make those laws. However, if the Judiciary finds that it has a challenge with what we have come up with, it is essential that we have a committee that can canvass with the other arms of Government to know why we are moving in one direction. We cannot be stopped from doing what we are supposed to be doing just because the courts have come up with an injunction. That should not make us not to proceed with the law making business that is here. Sen. Khalwale has cited an example where some Governors have refused to appear before the Public Accounts and Investments Committee and yet in the same Constitution that those Governors have, Article 96 (3), you will see that the Senate determines the allocation of national revenue among counties. For the last two days, as Sen. Murkomen mentioned, the Committee on Finance Commerce and Budget has been in Naivasha looking at the horizontal formula of sharing the funds among counties. Mr. Speaker, Sir, the Senate is also supposed to exercise oversight over national revenue allocated to the county governments. So when anybody purports to say that they are challenging that mandate, we do not know what they mean. They misinterpret and misquote this Article of where the functions of the county assemblies are given, Article 185 which talks about the legislative authority of the county assemblies. We should not mix the two and misinterpret them. Article 185 (3) says: “A county assembly, while respecting the principle of the separation of powers, may exercise oversight over the county executive committee and any other executive organs.” This is not oversight over the national revenue allocated. That is our duty. 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. Wangari.

Thank you, Mr. Temporary Speaker, Sir. The first time I saw this Motion in one of last week’s Order Papers though we were not able to debate it, I was in a meeting with Sen. Wako. The first thing I told him was that it looked to me like the Committee on Legal Affairs and Human Rights. That was my first reaction. Secondly, I asked him whether it was a preserve of lawyers only. Thirdly, I also enquired whether out of 13, we only had two women in it. Mr. Temporary Speaker, Sir, before I even go to the composition, I know it is a fact and it is in the public domain that the Senate is being fought from every quarter. We have issues with the Governors, we have had problems in my Committee, that is the County Public Accounts and Investments Committee. I know my Chairman has already alluded to some of the issues that we are facing; we have a problem with ex parte orders being given by courts or by the Judiciary. That is in the public domain. But we also must interrogate, as a House, whether we want to do things just for the sake of it or we want to critically look at the matter before we act and make rushed decisions. I do not dispute the floatation of this idea in the kamukunji . It is well in order. However, any time a Motion has been brought to this House, it is up for debate. It is up to Members to express whether they agree with it or not and it is their constitutional right to either support or oppose a Motion. Mr. Temporary Speaker, Sir, as we split Committees in this House, we should realize that we already have an operation problem as the Senate in terms of quorum of Committees. There is no one committee you will walk in today and find more than four Members. We are doing only bare minimum in most committees because most Members are in two or more Committees. Some are in three. We already have even an ad hoc Committee on Harambee. We have four of them. Despite this being a political tool like we term it, in terms of output, the expectations of the big mandate and of the very heavy load being put on this Committee in terms of expectations to the Senate and guiding the public, I feel that, given our constrained numbers, we cannot have another properly, an ad hoc committee. Mr. Speaker, Sir, when I look at this composition, I think this work can very well be done by the Committee on Legal Affairs and Human Rights. I know we want to make a political statement. The leadership of this House, and I know recently we have had a retreat for the leadership, where we interrogated some of these issues. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Thank you, Mr. Temporary Speaker, Sir, for giving me this opportunity so that I may also make my contributions to this Motion. From the outset, I would like to support this Motion, first of all, by thanking the Mover and the Seconder of this Motion for seeing it fit that they should look at the very issues that we have been interrogating as a Senate with regard to our relationship with the courts and they saw it fit to form an ad hoc committee. This is politics and we are here as politicians to play politics in this House. We know that if you are still playing your politics “ kwa ligi ndogo ”, it is high time you moved to a bigger league so that your politics can be heard and listened to. It is only in this wisdom that the Mover of this Motion saw it fit that he gets an ad hoc committee that is extra-ordinary by having representation from the Senate Majority Leader and the Senate Minority Leader and also to pick on eminent lawyers who can help interrogate these issues with the courts and also to pick on very distinguished Senators who have had a long standing experience. Mr. Temporary Speaker, Sir, I am very pleased to note that Standing Order No.177 with regard to gender threshold has been met; at least we have four women and we can live with that for the moment. It is quite encouraging to note that the Mover of this Motion noted that it was important to ensure that women leaders were there and even those who are not lawyers. I note that Sen. (Dr.) Zani is there and she will be able to contribute immensely having been a teacher of long standing. As we know, we now have rogue courts that have decided to take the Senator for a ride. They do not have respect for the doctrine of separation of powers. I am glad that when you were on the Floor of the House, you noted that it is not all the judges who are rogue; there are other judges who are eminent and who I agree with you in private discussions actually say that they get shocked at the political activism that some judges have actually taken to. They have decided to become politicians. These are the kind of judges we are hoping can step aside from the Bench and come and join us in this august House other than doing politics on the Bench. I hope that when this Ad Hoc committee begins its honourable task, it will be able to jumpstart the ill relationship that exists between us and the Judiciary. It is high time that we had respect for the doctrine of separation of powers between the Executive, the Legislature and the Judiciary. I do not see any reason why the Judiciary does not appreciate and respect the constitutional work that this Senate has been given. It is our inherent right to impeach governors. We do not just do it in an ad hoc manner; we do it based on reason and proper evidence before us. Once more, I want to congratulate the Mover of this Motion. I beg to support. 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 oppose this Motion. I want to pick from where Sen. Martha Wangari left. As we oppose this Motion, we are not refusing the spirit of this Motion. It is something that we have discussed in this Chambers. As it has been clearly stated, we have discussed this at the kamukunji level. I am also aware and we are all aware that it is something that has been deliberated on even informally, led by our own Speaker and also some of the Members who are in this Ad Hoc Committee led by Sen. Amos Wako. He has continuously given us briefs of what has transpired. We also know that the Mover of this Motion, Sen. Mutula Kilonzo Jnr. has been doing a lot on the background, with many of the Members who are in this Ad Hoc Committee. We also agree that as an institution and as the Senate, a lot is at stake. We agree that from the first day when we started the impeachment process, we saw the role that the Judiciary played to curtail the function and the duty of this House. We have continued to see it, and the number of injunctions and the cases as well. So, it should not be misconstrued that any Member of this Chamber who is opposing the formation of this Ad Hoc Committee is not alive to the magnitude of the challenges that we are facing as an institution or as the Senate. We are saying that at the committee levels that we already have in this House, it is possible to reach a consensus and a solution with the other arms of the Government. Secondly, it is important to note that this requires more of an engagement and dialogue, we need to sit down. It is more of an engagement between this House and other arms of the Government that we do not look like we are antagonistic, we are forming the best. With all due respect, these are some of the best brains that we have here in terms of law as well, leading from the Chairperson. However, we also have to explore the soft power which we have in this House. I know that the Committee on Legal Affairs and Human Rights also can and should probably, that is what Sen. Mutahi Kagwe was saying that we have two or three Members whose business is to lead this issue from the front. Every other time that is what they are thinking about, they are bringing ideas even to the Committee on Legal Affairs and Human Rights on how to resolve some of these issues. Mr. Temporary Speaker Sir, we will continue to talk in this House. We are talking about the Judiciary every day, at committee level, at political rallies and at the kamukunji level, we are talking about other arms of government. By now, the Committee on Legal Affairs and Human Rights should have started taking action and steps and leading from the front as well apart from us now saying “Let us start fresh and let us have an Ad Hoc Committee to solve some of these problems that we are facing”. I would like to echo the sentiments of my colleagues who have opposed this Ad Hoc Committee and say that let us have the existing committees. Even all the Members of this Senate should continue to give their input, support and ideas of how best we can resolve the issues that are facing this House. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

There being no other contributor Sen. Mutula Kilonzo Jnr. to---- Sen. Kagwe, you have something to say?

Mr. Temporary Speaker, sir. I wanted to propose that the Mover replies but it is okay that you have called him.

Thank you, Mr. Temporary Speaker Sir. I have listened carefully to all the pronouncements made by my fellow Senators. Frankly, I want to say that I am a little disappointed. One, because none of you as bothered to say that your fellow Senators have The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

On a point of order, Mr. Temporary Speaker Sir, Sen. Naisula in her contribution made it very clear and in my contribution, I made very clear that we are very grateful about the work that has been done. I specifically mentioned Sen. Mutula Kilonzo Jnr. because I know that Sen. Mutula Kilonzo Jnr. has spent a lot of his time and money in defense of the Senate. I hope that it is something that he will continue to do. So, let the Senator stand corrected that we appreciate, are thankful and grateful.

Thank you, Mr. Temporary Speaker, Sir. My Chairman, Sen. Mutahi Kagwe, has very nice words but always qualifies them when he finishes the sentence but I appreciate together with other Senators. Senators, I do not think even in your arguments and appreciating the work, we have, in fact, delved in to the details of this. Let me highlight that the work that you are doing as Senators under Article 96, there is an injunction. There are also injunctions in your work in the oversight committee and under Article125, the right by the committee to summon witnesses. Make no mistake that the in junction is against the County Public Accounts and Investments Committee, the one which is chaired by Sen. (Dr) Khalwale. It actually reads all committees and it is not governors. The fact that there is an injunction means that we are injuncted in all ways. On Articles No.181 and 182 on impeachment, there is an injunction. The only thing that has not been injuncted, which may be they will, is Article 217 on the revenue sharing formula. I want to repeat the words of Sen. Orengo, which, in fact, captures the mood. Most of you have said that you capture the spirit but you forgot the mood. We have to make a statement about what we are doing as a Senate in terms of the numerous court orders and court cases that have singularly and collectively rendered the work of this Senate useless. Article 110 of the Constitution, Article 111, legislative making, Sang Bill injunction--- You know what happened to Sen. (Prof.) Anyang’Nyong’o when he wanted to have a meeting. It is all about court orders and I do not think there is anything more important today in the Senate and in your Committees other than these court orders. I was waiting for somebody to say that, in fact, we should suspend all the work of the Committees until we sort out this issue. If you want to subject this to the Committee on Legal Affairs and Human Rights where we have six pending Bills from various Committees, what is the purpose of sitting down to read all these Bills, use all our legal staff to give us briefs on this and yet by the time we finish, just like the Sang Bill, an injunction is issued against convening, sitting and whatever else that comes with that Bill? The gravity of the things that are happening at the Senate will soon dawn, that by the next time we come back during the new term, we will have no work to do. There will be no board, there will be no Committees, it will be the end of the financial year and no governor would have set foot here yet the reports that are coming--- The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

What is it, Sen. Njoroge?

Mr. Temporary Speaker, Sir, is it in order for the Mover to keep on repeating, time and again, the word “allowance?” I never heard any contributor objecting to the formation of this Committee because of allowances. Once again, this has nothing to do with the Committee on Legal Affairs and Human Rights. What we were saying is that this is a duplicate of the Committee. Thank you, Mr. Temporary Speaker, Sir.

So what is out of order?

Is he in order to insinuate that some Members have any claim regarding the allowances?

Order, Sen. Njoroge! I heard the Mover replying very clearly. What he said is that just in case there is anyone out there who thinks that it is anything to do with allowances, it is not about allowances. It has nothing to do with an individual; it has nothing to do with Sen. Njoroge. Proceed and conclude, Senator.

In fact, Mr. Temporary Speaker, Sir, the word that was used by Sen. (Dr.) Machage in so far as the date is concerned, suggested that there are people who wanted to be paid as Chairperson and Vice Chairperson in retrospect. That is all there was about allowances and I think it was being a little – let me use the word – “petty.” 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. Mutula Kilonzo Jnr.! That is unparliamentary language; there is nothing in Parliament called “petty.”

Well, let me substantiate and, in fact, withdraw the word “petty.” I think there are Senators who suggested that somebody wanted to be paid in retrospect and they were being misled or were misinformed about the true purpose of this Committee. Therefore, Mr. Temporary Speaker, Sir---

What is it, Sen. Kagwe?

Mr. Temporary Speaker, Sir, would I be in order to ask for clarification? I recall that during your contribution, you alluded to the fact that either the Committee was not going to be paid at all or that they were going to ask not to be paid at all. In fact, in your contribution, you alluded to something to do with the aspect of pro bono work. Would I be in order to ask the Chairperson or the Mover to clarify that particular position?

Order, Sen. Kagwe! What kind of point of order is that? I am no longer on the Floor. Continue, Sen. Mutula Kilonzo Jnr.

Mr. Temporary Speaker, Sir, Sen. Kagwe is being a little mischievous. I do not think I said those words.

But maybe for the record, I simply said that any Member who may not be happy or who may imagine that I may not want, in future, for any allowances to be paid, he can move an amendment to ensure that, that is indicated in the Motion but it is too late now.

Thank you, Mr. Temporary Speaker, Sir. Therefore, as I conclude, I want to ask the Senators who are right in front of me and who ably opposed this Motion for reasons that this is a matter that should go to the Committee on Legal Affairs and Human Rights, to consider that, in fact, if you come to the Committee, there is a larger agenda than we should have because of many things that need to be done. But this Committee, from what I have seen in the recent past, is an extreme sacrifice from your fellow Senators in order to address issues that affect you directly. If, in fact, you are to suggest that the Committee on Legal Affairs and Human Rights should suspend its work, maybe that would be a good idea so that by the time you come back, we will have a solution to what is bedeviling this Senate. That will simply sound a death knell to our mandate through several court orders, court injunctions and people imagining that they will stop you. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Very well. Hon. Senators, before I put the question, I would like to remind you that this is not a Motion affecting counties under Standing Order No.72.

Order, hon. Senators! Order, Sen. Kagwe! Order, Senators! When the Chair is on his feet and reading a very serious Motion, it is only fair that you become calm, Sen. Naisula and Sen. Sang.

Let us move to the next order.

.: Thank you Mr. Temporary Speaker, Sir. I beg to move that the Government Proceedings Amendment Bill, Senate Bill No.10 of 2014, be read a Second Time. The amendment contained in the Governments Proceedings Act seems to amend Section 21 of the Government Proceedings Act by inserting the following new sub section immediately after sub section 4 which will read; “this section shall, with necessary modifications apply to any civil proceedings by or against a county government in any proceeding in connection with any arbitration in which a county government is a party.” 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 stand here this afternoon to second this Bill and from the outset, I would like to congratulate my colleague; the Duke of Makueni, Sen. Mutula Kilonzo Jnr., for having had the foresight and thought of bringing this very important Bill. The proposed amendment under Section 21 of the Government Proceedings Act is meant or seeks to extend the application of this provision to county governments. In so doing, this Senate as the guardian angel of the county governments will be protecting the interests of county governments.

On a point of order, Mr. Temporary Speaker, Sir. Did you hear Sen. Ong’era referring to the Mover of this Motion in other terms other than the ones provided by the law? Do we have dukes in this House?

Sen. Murkomen): Sen. Ong’era, did you refer to him as Duke Mutula Kilonzo Jnr.?

Mr. Temporary Speaker, Sir, I was expressing my opinion, but I referred to the Senator for Makueni as Sen. Mutula Kilonzo Jnr., although I only refer to him as the Duke of Makueni. It is a just a tongue that praises in case Sen. Sang has forgotten. Under Article 96 of the Constitution, we are aware that this Senate represents the counties and serves to protect the interests of the counties and their governments. It is very timely that we should have an amendment that provides to protect the interests of the counties. This amendment will provide for transitional provisions for dealing with pending actions and judgements against local authorities which now became the counties. 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. Let me start by congratulating Sen. Mutula Kilonzo Jnr. for thinking about counties and remembering them, especially in this dispensation under devolution when county governments must be protected. I think this was something that was overlooked by many of the statutes that have been put into place. As much as Sen. Mutula Kilonzo Jnr. says that this is a small amendment, I think the impact is great because it addresses a big mischief that needs to be addressed well before time. The Government Proceedings Act, Cap. 40, of course, was enacted long before devolution and, therefore, it did not envisage, calculate or put into place provisions. Indeed, quite a number and bits of legislation need to be amended to include county governments right from the onset. Before devolution, most of the statutory provisions that were being made were made only with the national Government in mind, yet it is very clear that with devolution now, we really have to think about the counties and their impact. Mr. Temporary Speaker, Sir, I want to touch on specific articles just to emphasize on the whole idea that counties and county governments are now very much entrenched and we cannot overlook them at all. In Article 174, where we have the objects of devolution in Section (h), one of the objects of devolution is to facilitate the decentralization of state organs, their functions and services from the capital of Kenya and, therefore, entrenching enough responsibility at the county level. That decentralization has to be decentralization not only in terms of resources, but also in terms of statutes that need to be applied. I think it is good at this point to also encourage Members of County Assemblies (MCAs) to look at legislation that is already in existence and try 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. Temporary Speaker, Sir, I rise to support this very important Bill. I want to take this opportunity to congratulate the Senator for Makueni, Sen. Mutula Kilonzo Jnr. – the “duke” of Makueni, as you have allowed Sen. Janet Ong’era to refer to him today – for a very important Bill. Sen. Mutula Kilonzo Jnr. has had a fruitful day today, having moved a very important Motion that succeeded; and, now, moving a very important Motion, which I am sure my very good friend, the Senator for Nyeri, Sen. Kagwe, will obviously support, unlike his position with regard to the Motion that was successfully moved by Sen. Mutula Kilonzo Jnr. The functions and core mandate of this House are to protect county governments. There cannot be a better law that seeks to protect counties than this Bill that has been brought by Sen. Mutula Kilonzo Jnr. 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 would like to thank the Mover of this Bill. This Bill will go a long way in enabling us to protect and serve the interests of the county governments. As it has already happened, Kenyans will always demand what is due to them from the county governments and the national Government. However, Government institutions have been insulated from some processes which if not controlled, will make it difficult for the Government to operate. There is no way we will have the county governments being an exception to this rule.

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Thank you very much, Madam Temporary Speaker. From out outset, I rise to support this Bill; I could see a bit of concern somewhere---

Madam Temporary Speaker, when we are out there as Senators, because we are not seen in Harambees, we do not have the Constituencies Development Fund (CDF), we do not have the Governor’s kitty and we do not have money to give for scholarships, one of the things we are asked is: “What is the role of the Senator?” Today, thanks to Sen. Mutula Kilonzo Jnr., this is a very good example of exactly what the role of a Senator and the Senate is. I, therefore, want to start by congratulating Sen. Mutula Kilonzo Jnr. I would have expected no less than what he has done; I would have expected no less than him noticing an anomaly like this within the law; just to pick out of all the things that are going on around the country and to have such an eye for detail is, indeed, a great thing for our Senate. It goes to show that Sen. Mutula Kilonzo Jnr. is an asset to this House. Having said so, Madam Temporary Speaker, this is also a good opportunity for us to explain to the nation what we really do rather than what we are expected to do. We will also tell the public that the role of a Senator is to legislate, so that when they do not see us in Harambees or at cattle dip or church functions that that other elected leaders are able to attend, it is a good opportunity to tell them: “This is the work that we do and how we protect the counties.” We protect counties by ensuring that the laws that exist in our land are those that are explicit in terms of protecting not just the county individuals, but also the county assets. The law as exists today exposes our counties so viciously and badly that we are lacking. Not many people know of this gap in the law. If people knew of this gap in the law, a lot of our counties would be in problems. In fact, when you hear of, for example, Bungoma County and other counties, this is just the tip of the iceberg. When you combine two things, the huge bad debts that exist and historical debts some of which were definitely illegitimate and were a result of serious corruption, both in the Judiciary - I dare say- and also amongst the suppliers to the local governments, when you look at the bulk of that debt, if the people who are owed that money and who have got injunctions were to go around the county governments collecting what they are owed and what they are holding injunctions about, the country would come to a standstill. The county governments would simply stop at an instant. Therefore, it is important for us to appreciate what we are doing here and the importance of this particular amendment. 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.) Anyang’Nyong’o 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, Madam Temporary Speaker. I would also like to support the amendment to that Act of Parliament as Moved by Sen. Mutula Kilonzo Jnr. If you look at Fourth Schedule in the context of the Fifth Schedule of the Constitution which lays out the separation of powers, assignments or functions between the National and county governments, you will find that we made laws in the last Parliament regarding the Fifth Schedule. But we did not make all the laws that were necessary to make sure the separation of power between the national and county governments work smoothly. Many laws that exist in the Republic of Kenya assume that there is only one government. It is, therefore, just logical that my friend, Sen. Mutula Kilonzo Jnr., has started this very important process of making sure that the Senate makes relevant laws to effect the Fourth Schedule because it assigns functions to the two levels of government, but only one level of government has what you might call “completer laws” to perform functions than the other one. The other one still has a huge deficit of laws to be passed by this House, which looks out for the affairs of the counties to function properly.

Order Sen. (Prof) Anyang’-Nyong’o. You have spoken for only two minutes; you have 13 minutes remaining to continue your contribution.

Hon. Senators, it is now 6.30 p.m. and it is time to interrupt the business of the House. The House, therefore, stands adjourned until tomorrow Wednesday, 29th October, 2014, at 2.30 p.m. The House rose at 6.30 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.