Order, Hon. Members! We are properly constituted. We can begin business.

Order, Hon. Members! This is a Message from the Senate on its decision on the Political Parties (Amendment) Bill, National Assembly Bill No.2 of 2016. Hon. Members, pursuant to the provisions of Standing Order No.41(4), I wish to report to the House that I have received two Messages from the Senate regarding its decision on the following Bills: 1. Political Parties (Amendment) Bill, National Assembly Bill No.2 of 2016. 2. The Community Land Bill, National Assembly Bill 45 of 2015. 3. The Land Laws (Amendment) Bill, National Assembly Bill No.55 of 2015. The first Message relates to the approval of the Political Parties (Amendment) Bill, National Assembly Bill No.2 of 2016. The Message reads in part:- “The Political Parties (Amendment) Bill, National Assembly Bill No.2 of 2016 was passed by the Senate on Wednesday, 15th June, 2016 without amendments.” You may recall that the National Assembly passed the said Bill with amendments on Thursday, 22nd April, 2016. In this regard, I will now proceed to present the Bill to His Excellency the President for assent in accordance with the provisions of Article 110(5) and Article 113 (3) of the Constitution. The second Message relates to the decisions of the Senate on the Community Land Bill, National Assembly Bill No.45 of 2015 and the Land Laws (Amendment) Bill, National Assembly Bill No.55 of 2015. The Message states in part:- “The Community Land Bill, National Assembly Bill No.45 of 2015 and the Land Laws (Amendment) Bill, National Assembly Bill No.55 of 2015 were rejected at the Second Reading by the Senate on Wednesday, 15th June, 2016.” The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.

The effect of this is that the said Bills are referred to a Mediation Committee. The said Bills are part of the constitutional Bills that ought to have been passed by 27th August, 2015. This period was extended to 27th August, 2016. In this respect, the leadership of the majority and the minority parties in the House are hereby directed to expeditiously nominate Members for the appointment to the Mediation Committee to consider the two Bills. Once constituted, the Committee will be expected to speedily embark on the process of developing mediated versions of the said Bills in accordance with Article 113 of the Constitution. Thank you.

Can the Members at the door kindly settle down? I have a Petition to present.

Hon. Members, I have a Petition regarding alleged unlawful establishment of municipal, county and city courts, county inspectorate and enforcement units by various county governments. Pursuant to the provisions of Standing Order 225(2)(b), I hereby convey to the House that my office is in receipt of a Petition from one Margaret Kiiru, a Member of the Nakuru County Assembly, regarding alleged unlawful establishment of county and city courts, county inspectorate and enforcement units by various county governments.

The Petitioner contends that since 2013, some county governments have established and operationalised municipal and city courts at the county level to try offenders who flout county government laws. This is despite the repeal of the Local Governments Act (Cap.265) under which the said courts were established. She states that these courts unlawfully detain, harass and extort money from small-scale traders particularly the youth, women and vulnerable members of the society thereby causing untold agony to the affected. Further, the Petitioner cites that in March, 2015, the Chief Justice issued directive to abolish the courts. The Petitioners, therefore, pray that the National Assembly:- (i) investigates the matter and recommends appropriate action against anyone found culpable; (ii) amends the relevant law to fully operationalise the county courts under the National Government; and, (iii) causes the Auditor General to undertake a forensic audit on the accounts of the said courts. This Petition, therefore, stands committed to the Departmental Committee on Justice and Legal Affairs for consideration. The Committee is requested to consider the Petition and report its findings within 60 days in accordance with Standing Order 227(2). Thank you. Are there Members who want to make comments on this? Let us have Hon. Patrick Makau. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.

Thank you, Hon. Deputy Speaker. I am rising under Standing Order No.33---

I have just allowed comments on the Petition that I have just given. If you have a different matter, hold on for now. The Leader of the Majority Party, do you want to make a comment?

Yes, Hon. Deputy Speaker. I want to support the Petitioner. The Constitution is very clear. Article 169 talks about the composition of the subordinate courts. These are the magistrates’ courts, the Kadhis courts, the court martial and any court or local tribunal as may be established by an Act of Parliament other than the courts established under Article 162(2). I agree with the great lady from Nakuru. Before devolution and even now, Kenyans have been suffering under the arms of the inspectorate and courts which are being established at the basement of county governments. Suspects are taken there and they do not get access to justice through their lawyers. I am sure the Departmental Committee on Justice and Legal Affairs will deal with this matter. If any Kenyan violates any law of the land, that Kenyan must be subjected to the courts identified in the Constitution. Not every county government or municipal government will have its own courts. The people who are in the inspectorate departments are not trained; they are not police officers or CID officers. They do not know the law. What goes on there is just corruption and harassment. I support the Petition.

I do not know the Members who want to contribute on this. Hon. Maanzo, were you on this one?

Thank you, Hon. Deputy Speaker. I would like to support the Petitioner. Before the new Constitution, these courts used to exist. They used to exist under the old law. For example, there is a court at City Hall. Ordinarily, it would be a normal magistrate’s court which would entertain city council or municipal matters. After that, it would go back to normal business. Because the structure exists, the normal court system could have magistrates’ courts so that county matters can be handled in a legal way. What is happening right now is illegal and should not be entertained. Counties have no mandate under the law to operate courts. The normal court system can be used to handle certain matters in relation to the county. Some of the counties have matters relating to environment and health, and there must be a proper way of ensuring that while the normal court system which is being used is applied properly, matters relating to counties and health can also be entertained but in a new framework of law. As things stand now, such courts do not exist. Thank you for the opportunity.

Thank you, Hon. Deputy Speaker. This Petition is a very important one and I would like to support the Petitioner. The quasi-tribunals or quasi-courts that we see cropping up throughout the counties are a cause for alarm. Counties are trying to bring forth certain institutions purportedly to remedy the problems that may appear there. The personnel of those courts are not trained. The dispensers of justice must be people who have been accredited by the Chief Justice. Therefore, we need to be very careful about what is happening in the counties. Those courts are tantamount to kangaroo courts. Counties are known to use such institutions to get money from their residents. You can imagine when you have an enforcement officer like we have in Nairobi. They come, rein in on you and even extort money from you. We need to know that only the established courts under the Judiciary are allowed to enforce the The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.

statutes of general application and other matters that may come into the realm of law enforcement. I support the Petitioner. Counties should stop forming kangaroo courts and institutions with a view of getting money from their residents. We can see this happening. As the Petition goes before the Departmental Committee on Justice and Legal Affairs, I want to urge the membership of this House and particularly the Members of the Committee to go further than just looking at the Petition and recommend a system or a way in which any county that comes up with a city court, for instance, should be asked not to do it at the county level. That is a national Government function. Any establishment of any law enforcement institution should be left to the national Government. Counties should have nothing to do with the establishment of courts, quasi-tribunals or extrajudicial institutions because those institutions are only used to extort funds from residents of those counties at the pretence of law enforcement. I, therefore, support that Petition. Thank you.

Thank you, Hon. Deputy Speaker. This is a very important Petition. In the last few months, you have seen here in Nairobi somebody waking up in the morning and extorting money from small businesses people. The person wakes up in the morning knowing that he will get certain amount of money from some shops. We saw information about M-Pesa transactions by officers of county governments of Nairobi, Kisumu and other places. This is a very important Petition. I hope the Departmental Committee on Justice and Legal Affairs will expedite it. What is important is having the county governments enforcing the laws that they have. Under the Fourth Schedule of the Constitution, we have given counties very many roles which they must enforce. They must enforce these and ensure that within their counties things are done in the right manner. So, the Committee must create that balance on how to ensure that county governments are able to enforce the rules, regulations and laws passed by the county assemblies even as we ensure that those who enforce these laws are well trained and properly ingrained in this Constitution. Above all, we must ensure that county governors have the tools that they need. This is because at their level they can help enforce both national law and county law. So, we should not be blaming county governments very much. However, we should have the necessary legal framework to see how the Judiciary can work with the county governments to ensure that their laws are enforced, people can approach courts in the right manner and that these judicial structures are taken to the areas where the people are because there are costs involved. If someone sells bananas or mangoes and his or her daily earning is Kshs1,000, it does not make sense to take them far away from where they trade because they will incur costs. Hon. Deputy Speaker, I would like the Departmental Committee on Justice and Legal Affairs to look at the proper framework through which the counties can enforce their laws. I support this Petition.

Hon. Members, you have supported the Petition enough. Can we move on? Is there anything new or we move on to the next Order? Hon. Onesmus, what other different thing will you add?

Hon. Deputy Speaker, I want to indulge your attention. We are freezing in this Chamber. It is July and if you look at the way Members are, you will find that they are very immobile because they are freezing. We kindly ask you to instruct that the air conditioner is either turned on or the temperatures are increased.

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However, I want to say something about the Petition even though you want to bring it to an end. Having power in the wrong hands is as dangerous as having a grenade in the hands of children. At the moment, we have governors who have militia forces that are pretending to be law enforcers in this country. They have been harassing our people and now they have gone ahead and formed courts that are used by these law enforcers to harass these people further. The law is very clear that courts can only be created by an Act of this Parliament. Since that has not happened, I support that Petition that this should not be left to continue and the Committee that has been given that job should not even take 60 days. It should take less than 60 days. Dispose of the matter in two weeks and those governors having militias should be disposed of. If they want to employ guards, that is a different case. Watchmen are different from law enforcers. Thank you, Hon. Deputy Speaker, I beg to support.

Thank you Members. Next Order.

Hon. Deputy Speaker, I beg to lay the following Papers on the Table of the House today, Tuesday, 21st June, 2016:- The Supplementary Estimates II Programme-Based Budget of the National Government of Kenya for the year ending 30th June, 2016. The Supplementary Estimates to Recurrent Expenditure for the year ended 30th June, 2016 The Supplementary Estimates to Development Expenditure for the year ended 30th June, 2016. The Annual Reports and Financial Statements for the Kenya Airports Authority (KAA) for the year ended 30th June, 2015. The Annual Report and Financial Statements of the Privatisation Commission for the year ended 30th June, 2014 The Reports of the Auditor-General on the Financial Statements in respect of the following institutions for the year ended 30th June, 2015 and the certificate therein:- (a) The National Government Constituencies Development Fund, Kisauni Constituency. (b) The National Government Constituencies Development Fund, Kinangop Constituency. (c) The National Government Constituencies Development Fund, Mvita Constituency. (d) The Ministry of Education, Science and Technology, State Department of Education. (e) The Ministry of Education, Science and Technology, State Department of Science and Technology. Thank you, Hon. Deputy Speaker

Hon. Mutava, you have the Floor.

Hon. Deputy Speaker, I beg to lay the following Paper on the Table of the House today, Tuesday, 21st June, 2016:- Report of the Budget and Appropriations Committee on the consideration of the Second Basis for Equitable Sharing of National Revenue among County Governments. Thank you. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.

Next Order.

Thank you, Hon. Deputy Speaker. Pursuant to Standing Order No.43(1), I wish to make a general Statement regarding the ongoing court case at the High Court with regard to the NGCDF Act, 2015. In the recent past, a civil society group filed Petition No.178 of 2016, Case No.14 under Justice Onguto whose hearing is ongoing. Further, the matter was deliberated today, Tuesday, 21st June, 2016 at a meeting of the Members of Parliament in the main dining room. It was resolved that the Members present themselves at the court to be enjoined in the case. Indeed, some Members of Parliament including myself attended the court and two constituencies namely Kikuyu and Kasarani were enjoined as parties to this case. This matter was heard today and adjourned for further hearing on Monday, 27th June, 2016. Hon. Deputy Speaker this is, therefore, to request Members to ask the remaining constituencies to be enjoined so that they participate in the case. Thank you.

Hon. Members, this is a very emotive matter that concerns all of us. We live by the rules that we make for ourselves. Hon. Members, Standing Order No.89(2) states: “A matter shall be considered to be sub judice when it refers to active criminal or civil proceedings and the discussion of such matter is likely to prejudice its fair determination” Hon. Members, all of us know how this is an extremely emotive matter. However, with your concurrence, allow Hon. Gichigi who was in the meeting to give us the status and not to discuss the ongoing case. Just give us the information then we can call a Kamukunji tomorrow to get our lawyers to tell us the status of the case so that we can discuss the way forward. That way we will get a minor brief of where it is. We will not discuss the case. We will leave it to tomorrow for us to ventilate further on what needs to happen. Let us give Hon. Gichigi and two other Members a chance for now. Please be alive and aware of Standing Order No.89.

Thank you, Hon. Deputy Speaker. The position is that on 5th May 2016, two civil rights activists filed Petition Case No. 28 of 2016. They sought an application as well as filed a petition. In their application, they are seeking to stop the Cabinet Secretary (CS) for National Treasury from releasing money to the National Government Constituencies Development Fund (NGCDF) in respect of 2016/2017 Financial Year. That is the essence of that particular prayer. The application says that before the petition is heard, the application should be allowed. The Petitioners were heard and the respondents, who are the National Assembly, the Senate, the CDF Board, the National Treasury as well as the Attorney-General and the Council of Governors (CoG) as an interested party, were being heard today. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.

Members of the CDF committees of Kikuyu and Ruaraka constituencies filed applications this morning to be joined in that case with a view of giving the face of the CDF and what it is doing. The judge allowed the two committees to be joined in the case, but he indicated that he will not permit them to be heard for this particular application. They are supposed to wait until he has made a determination on the application. They can be heard when the Petition is being heard. First, the Petition has sought to declare the Division of Revenue Bill, which was passed here unconstitutional for dividing the money to the counties after giving money to the Ministries and the CDF. Secondly, it has also sought to declare the National Government Constituencies Development Fund Act unconstitutional based on issues such as separation of powers and involvement of MPs. Those issues are a bit vague. The main issue they are canvassing is the Division of Revenue Bill. The National Assembly is represented by our legal officers led by the Director, Mr. Njoroge. The Senate is not appearing in court. The AG and the National Treasury are represented by a State Counsel from the AG’s Chambers, and the CDF Board is represented by Mr. Waweru and Gatonye Advocates. The advocates of the National Assembly and the State Counsel were heard. The matter was adjourned to Monday for hearing of Mr. Gatonye for the CDF Board as well as reply from the two Non-Governmental Organisations (NGOs). Hon. Shakeel Shabbir is indicating that in the case, and we are not going to its merit or demerit, the face of the CDF has not come out clearly in terms of what it is doing in the constituencies, bursaries and the ongoing projects. Presumably, if this matter had been brought to a serious person, every constituency ought to have sworn an affidavit indicating the impact of that order being given. While we appreciate the fact that the judge indicated he is aware that stopping NGCDF is likely to impact on every part of this country especially on bursaries, the issue is that the face of the NGCDF is not in that court as we speak. My brothers and sisters, I want to remind you that recently there was a similar case for the Affirmative Action Social Development Fund and perhaps it is good to ensure that we give the true picture. The fact is that a Member of Parliament (MP) is no longer a member of the CDF Committee. Our role is oversight. When they challenge that we should not approve CDF Board and committee members, then that does not make any sense. We approve officers like the CS, Chief Justice (CJ) and the Deputy CJ. Those issues ought to come out. We have not lost everything. We should have a Kamukunji to strategise and tell the nation that MPs are no longer CDF committee members. Our role is oversight. We have a role of representing our people and getting resources from the national Government to the ground as well as approving. This debate should take that direction. Finally, we should speak with our colleagues representing the counties. It would be good for our constituencies if these funds are processed to the extent that at any given time, they can be released. If the Budget and Appropriation Bill is passed, if the court gives an injunction against it and we get a few days where there is a window, that money can reach the constituencies. If we stop it at this particular stage, it will have an impact. In the meantime, we are suggesting a Kamukunji, so that we can deal with this issue.

Hon. Members, I think we now have the brief. We should be alive to the Standing Order No.89. We will do this in a Kamukunji tomorrow. I wanted you to get the brief from Hon. Gichigi, who is now our Chairman in this matter. Let us first have the Leader of the Majority Party and maybe the Leader of the Minority Party. Let us not discuss the contents of the Petition. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor.

Hon. Deputy Speaker, I cannot see the Chairman of the CDF Committee in the Chamber. I am sure the law we passed here was watertight. I have looked at the questions raised by the Petitioners. We are borrowing this money from the national Government kitty and we should be very firm. I want to raise one important point that as we sit here, we do not have NGCDF money in the Budget. We are scared because up to this afternoon, the CS for the National Treasury has not received any orders. We do not have money in the NGCDF until the House passes the Appropriation Bill. As we continue with the case, the only option that will remain for the judge is to order the CS for National Treasury not to disburse money to our constituencies. We must first secure the money.

You can disagree with me.

Order, Hon. Members!

I am not telling you to pass the Appropriation Bill, but the Budget also includes our salaries. As we defend the NGCDF in court, we have no money in the Budget. Why are we in court? What are we defending?

Order, Members!

We do not have NGCDF allocation in the Budget. What are we defending? That is the simple question. Why do we have lawyers in court? We are supposed to defend the NGCDF, which means resources. Members need to meet and look into this matter because it is very important for us to deal with it.

I give opportunity to the Leader of the Minority Party.

Thank you, Hon. Deputy Speaker, for giving me this chance to contribute.

Hon. Members, can we listen to the leaders? Order, Members! Let us listen to the Leader of the Minority Party.

Thank you, Hon. Deputy Speaker. I wanted to say that the NGCDF is very important to this House and the country. It has contributed so much to development. If there is no NGCDF, there will be no Budget.

We will stop the budget process unless the NGCDF is secured. If you go to any part of this country, you will find no development that has been undertaken with all the billions of shillings that are allocated to governors except NGCDF projects. The NGCDF has put money in most of the court infrastructure which Dr. Willy Mutunga, the outgoing Chief Justice, opened. We have a leverage point. This is the card that we will play. If there is no NGCDF, there will be no Budget! That is the card which we will take. I rest my case.

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Order, Members! Hon. Members, I am using Standing Order No.1 to close debate on the current statement. I have closed the debate.

Next Order!

Hon. Deputy Speaker, I rise under Standing Order No.53(3). I seek the indulgence of the House and the Speaker to defer debate on Order No.8. This is in accordance with the Standing Orders. I am asking for deferment of the debate under Standing Order No.53(3).

Order, Members! Hon. Members, I am using Standing Order No.1 for the convenience of the House. I am deferring Order No.8.

Next Order!

Order, Hon. Members! We had agreed that we will have a

a mukunji and we will ventilate there. Allow the House to move on with the other business.

Hon. Deputy Speaker, I beg to move the following Special Motion:- THAT, pursuant to the provisions of Article 217 of the Constitution, as read together with Section 16 of the Sixth Schedule to the Constitution, this House concurs with the Senate and approves the following Second Basis for Equitable Sharing of National Revenue allocated to Counties:

Order, Hon. Members!

Hon. Deputy Speaker, Article 217 of the Constitution requires Parliament to determine the basis of sharing allocated national revenue among county governments.

What is your point of order, Hon. Sakaja?

Hon. Deputy Speaker, I have a suggestion that will give us a quick solution. Hon. Angwenyi, relax.

Order, Hon. Members! Let us conduct ourselves well. I have already indicated that this is an emotive issue. However, can we do it in an orderly manner? I can see that Members are interested in discussing this matter now, but there is no need for shouting. It is just a question of agreeing. Let us hear each other. Let us hear the proposals.

Order, Hon. Members! It is a proposal on National Government Constituencies Development Fund (NGCDF). Hear him out Members.

Hon. Deputy Speaker, the proposal is very simple. That we adjourn the House for one hour and go into a Kamukunji and then we resume the House. That is because the Order we have right now on the Order Paper needs to be resolved today because it is the deadline.

Hon. Angwenyi, listen. The proposal is that we go into a Kamukunji for one hour now and then we resume and resolve this matter. That is the best solution. Hii ingine yenu ni keleletupu.

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She has agreed but it has to be done officially. So, we adjourn for one hour. We go into a

now and resume after one hour with a solution.

One hour-and-a-half and we finish. Hon. Members, can we acknowledge the visitors we have in the Galleries today? We have St. Thomas Catholic Academy, Nyeri County, Othaya Constituency; Holy Trinity Girls Secondary School, Kapenguria County, West Pokot Constituency; Bethel Academy, Uasin Gishu County and Kisauni Secondary School, Machakos County, Mwala Constituency. We also recognise seven members of staff from Nandi County Assembly seated in the Speaker’s Gallery and, last but not least, pupils from Lwak Girls Boarding Primary School, Rarieda Constituency. You are all welcome to the National Assembly.

Hon. Members, I now order that we go into a Kamukunji. It is without cameras. We will go for one hour-and-a-half to complete this and then come back to resume the House.

The Galleries can now clear and our visitors can leave. The House is now suspended until 5.00 p.m. for us to hold a Kamukunji. Thank you, Hon. Members.

Hon. Members, there is no requisite quorum to start the business of the House. Ring the Quorum Bell for another five minutes for us to get quorum.

Order, Members! Obviously, we do not have quorum. Before we adjourn, I would like to remind Members that under Order No.9, we were to conclude a matter whose deadline was today. We will give a comprehensive statement on it tomorrow. Due to lack of quorum, this House stands adjourned until tomorrow, 22nd June, 2016 at 9.30 a.m.

The House rose at 5.09 p.m.

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