Order Hon. Members! Hon. Members, I can see there is a lot of interest in the business that is almost before the House. Due to the late period at which we concluded the consideration of the Supplementary Estimates, the Supplementary Appropriations Bill is in the final stages of preparation. It will be made available to the House in the next 30 to 50 minutes. Therefore, for the convenience of the House, I rearrange the business for consideration by the House such that the business appearing as Order Nos.8, 9 and 10 (i) be conducted after the business appearing as Order No.10 (ii) has been concluded. Therefore, can you read Order No.10?
Sorry, Hon. Members. There is a Supplementary Order Paper which has Order No.10 as a Procedural Motion dealing with the reduction of the Publication Period of the Supplementary Appropriations Bill. In keeping with our rules, the Leader of the Majority Party may not, in moving that Motion, refer to a Bill that is not before the House. That business is also to be rearranged until such time as copies of the Bill will have been made available to Hon. Members and the entire House. It is the business appearing as Order Nos.8, 9 and 10 that my earlier comments relate to. Order No.11 (i) is affected. Therefore, the Clerk may proceed.
(Hon. (Ms.) Soipan Tuya): Members, we are in the Committee of the whole House to consider the President’s Reservations to the Finance Bill (National Assembly Bill No.20 of 2018).
On a point of order!
(Hon. (Ms.) Soipan Tuya): Members, please go to the Supplementary Order Paper.
We do not have it!
(Hon. (Ms.) Soipan Tuya): We will make sure that everyone has a copy. Members, we will wait until Members have copies of the Order Paper. Serjeant-at-Arms, please circulate copies of the Order Paper.
Hon. Members, I hope everyone has a copy of the Order Paper. They are in circulation and they should be reaching you.
On a point of order, Hon. Temporary Deputy Chairlady.
(Hon. (Ms.) Soipan Tuya): We have not even started, Hon. Kajwang’. We have not started anything.
(Hon. (Ms.) Soipan Tuya): Sorry, Hon. Members, let us hear Hon. Kajwang’
Hon. Temporary Deputy Chairlady, allow me to raise a point of order. Protect me from the Chief Whip, who is standing between me and the Chair. In keeping with the Standing Orders, in Committees of the whole House, we always begin with other substantive parts of the Bill before we come to the definitive clauses of the Bill. This is because as you will realize, the term “winnings” was never either in the Bill before or in the text that was taken to the President. There will be issues as to whether the definition of the term “winnings” will affect the substance of the Bill or not. In keeping with the Standing Orders, can we begin with Clause 18? When we are done with the Bill, we will then come to Clause 2. I submit.
(Hon. (Ms.) Soipan Tuya): Hon. Kajwang’, there is no harm in that. We shall start with Clause 18.
(Garissa Township, JP) Hon. Temporary Deputy Chairlady, I beg to move :
THAT, Clause 18 of the Bill be amended by deleting paragraph (b).
Hon. Temporary Deputy Chairlady, this is the crux of the matter. I want people to listen to me. This is the most important matter. You remember in Clause 18, the amendment of Hon. Junet proposed to amend Section B of Part I of the First Schedule to the VAT Act, 2013 by deleting the expression “1st September 2016” appearing in paragraph (ii). That is what we did in this House. Because the President has returned it, let me go on record that as we speak today, the VAT on petroleum products as passed by the House in 2013 stands. Whatever action we take this afternoon will change that position. I really want to speak to those who are saying “no” and ‘yes” so that we deal with this matter in the interest of the people of Kenya. So, notwithstanding paragraph (i), the exemption was to be extended by a further two years from 1st September 2018. The President disagrees with that, as provided in the Memorandum he has sent which is in the Order Paper and which I beg to move as it is. I will now go to the justification of why the President felt that he should disagree with the House and reduce the 16 per cent which was passed in 2013. After listening to the people of Kenya and their concerns, he said let us reduce it for this year to 8 per cent. The import of this provision is that at 16 per cent, the National Treasury was to collect a revenue of about Kshs35 billion by the end of June 2019. This figure is already factored in the revenue estimates for this financial year, Hon. Temporary Deputy Chairman.
(Hon. (Ms.) Soipan Tuya): Hon. Duale, you are addressing someone who is not here.
Hon. Temporary Deputy Chairlady, I am sorry.
You know I have never been in the teachers’ union, so I do not panic. And I have enough shocks. So, Hon. Milemba, I am not the Teachers Service Commission Chief Executive Officer who you could intimidate. I am the Member for Garissa Township. This figure of Kshs35 billion was factored in the Budget of 2018/2019 by this House itself. Further extension of this will create a huge deficit in the Budget that this House has passed. This morning we were dealing with that deficit. In the course of approving the Finance Bill, 2018, the National Assembly removed other policy measures that could have given us more revenue. In sum, the Finance Bill, 2018 as currently approved by the House, has created a financial gap of Kshs48.6 billion. This is in addition to Kshs18.9 billion which was the gap that we passed with the Appropriation Bill of Financial Year 2018/2019, which we are amending this afternoon, when we get copies. The question that we beg to ask ourselves is that we are, therefore, looking at a budget-funding gap of Kshs67.5 billion in Financial Year 2018/2019 from this amendment. If you look at the Public Finance Management Act Section 50(4), it is incumbent upon this House to pass a budget that balances. There are a number of people who asked: Why are we
charging VAT on petroleum products? Number one, as we stand today, this is the first time we are charging VAT on petroleum products. Suppliers of this product are currently not able to claim any investment in terms of input on VAT. If we pass this legislation today, then they will join the rest of the other suppliers in the country whose products are VAT-chargeable. This will trickle down to the consumers of such suppliers. More fundamentally, this is the one reason the country must know, unlike other sectors in the economy, the Government… This House, under the leadership of the former chair of the Committee on Delegated Legislation, who is now the presiding Chair, passed the Energy (Petroleum Pricing) Regulations which regulate the retail prices of petroleum products. Never again can anybody say that because there is VAT on petroleum products, I will sell kerosene, super or diesel at this price. The moment we pass this 8 per cent, the Energy Regulatory Commission (ERC) as a body mandated will do a calculation on the 8 per cent the President is proposing which will be translated into other sectors of the economy. So, this notion that if we put 8 per cent, tomorrow the bus that plies Garissa to Nairobi will charge Kshs1,000 should stop. The moment this becomes law, ERC will determine the only transferable cost payable by passengers or any other sector of the economy. The Kenyan economy can only be compared to that of our peers like South Africa, Ghana and Nigeria. In South Africa they charge 14 per cent VAT and in Ghana they charge 15 per cent. Nigeria charges 5 per cent. Do not compare us with economies whose Gross Domestic Product when combined does not reach ours. This is the only economy that this House and the Chair of Budget and Appropriations Committee can prove that our Budget is 99 per cent funded by our domestic revenue. We do not beg the International Monetary Fund (IMF) and World Bank. In fact last Thursday, the IMF withdrew the insurance on the volatility of a shilling. Until today our shilling is very strong. I have given enough reasons and I beg to move that the amendment on the Memorandum be approved. I beg to move.
(Hon. (Ms.) Soipan Tuya): Very well, the Leader of the Majority Party.
(Hon. (Ms.) Soipan Tuya): Member for Bomachoge. But before that, I see the Leader of the Minority Party. You have the benefit of precedence.
Thank you, Hon. Temporary Deputy Chairlady. I want to support this amendment. I just want to say two things. We are all aware that the Bill that we took to the President was suspended.
I hear people talking about zero. There is no zero-rating of petroleum products. What is there is that we had asked the President….
No! No! No!
(Hon. (Ms.) Soipan Tuya): Order Members! Please, let us allow the Leader of Minority to have his say.
Before my colleagues who are saying “zero” proceed, I want to say one thing: I am one of the people who were against levying any tax on petroleum products, and for a very good reason. My thinking was that it would send a negative signal to the economy. However, I want to put it clearly that if the 8 per cent tax is implemented properly, even transporters and matatu operators must understand that the 8 per cent VAT on petroleum products is not effectively 8 per cent because if you go down, you will find that Excise Duty is removed as you calculate the 8 per cent.
Zero! Zero! Zero!
Hon. Temporary Deputy Chair, you now see why these Members come here and when they leave, they do not even know what they passed. They are shouting “zero” instead of engaging in debate.
(Hon. (Ms.) Soipan Tuya): Order, Members! Whichever side of the divide you are in, how will you be heard if you shout? Let us listen to the Leader of the Minority Party. We are not in Second Reading. So, please, be brief and to the point, Hon. Mbadi.
On a point of order, Hon. Temporary Deputy Chairlady!
What is out of order? You do not even understand what I am saying. So, I support.
Zero! Zero! Zero!
(Hon. (Ms.) Soipan Tuya): Let us hear Hon. Kajwang’
Thank you, Hon. Temporary Deputy Chairlady. I thank those Members who are saying “zero”. I rise to oppose. Just before we vote, I want Members to know what they are voting for. I want to refer you to the Value Added Tax Act, Section 5, which states that the rate of taxation shall be zero per cent or 16 per cent. Section 6 gives the Cabinet Secretary (CS) powers to amend the rate of tax even through a Gazette Notice, if a value or percentage has been added to it. What does it mean? It means that if today we give 8 per cent, in the next one week, the CS will, by way of a Gazette Notice, without coming to the National Assembly, increase it to a maximum of 25 per cent. That is the law. For that reason, I oppose.
Zero! Zero! Zero!
(Hon. (Ms.) Soipan Tuya): Order! Order, Members! I cannot put the Question when you are screaming. We cannot proceed when you are screaming. I will proceed and put the Question in silence.
(Hon. (Ms.) Soipan Tuya): Order, Hon. Members! Hon. Members, Order!
Hon. Members, take your seats. Take your seats, Hon. Members. Serjeant-at-Arms, I order that we have the bell rung for five minutes to prepare for voting. Ring the bell.
Order, Hon. Members! Order, Hon. Members! Hon. Members, the bell is ringing and at the stop of the bell you will start voting. Take your seats, Hon. Members! Once the bell stops you start voting. Take your seats.
Hon. Nkatha, take your seat. Hon. Members, take your seats. Order, Hon. Members! Get ready to vote. The bell is ringing. Those asking for points of order, there is nothing out of order. Just prepare yourselves to vote. Open the doors. Keep the doors open.
(Hon. (Ms) Soipan Tuya): Order, Hon. Members! Now can we have the Bars drawn? The five minutes are over. Close the doors and let us get down to voting. Get ready. Stop making noise. Insert your cards. There is nothing out of order when you are voting. Hon. Jaldesa, insert your card ready for voting.
Order! Hon. Members, take out your cards.
Duale must go! Duale must go!
(Hon. (Ms.) Soipan Tuya): Order, Hon. Members! Put in your cards, Hon. Members. Now sit down and vote. Put your cards, Hon. Members. Log in your cards now, Hon. Members.
No! No! No! No voting!
(Hon. (Ms.) Soipan Tuya): Order Members. Hon. Members, we will be guided by the Standing Orders. I now direct the Clerks-at-the Table under Standing Order No. 72 to take a head count of the number of Members in the House. Hon. Members, take your seats.
Nobody is allowed to leave the House at the moment. Order Members! Hon. Members, take your seats. Hon. Wanyonyi, take your seat. The head count has been taken. We have a total of 215 Members present in the House. In that case, the Ayes have it, Hon. Members.
(Hon. (Ms.) Soipan Tuya): Serjeant-at-Arms, open the Bars. Hon. Members, do you want to do mlolongo?
(Hon. (Ms.) Soipan Tuya): Okay, fine. Listen, Hon. Members, take one queue. Let us do mlolongo . Take one queue. All of you go to one side. This is the queue, Hon. Members.
Sialai must go! Sialai must go! No! No! No! No voting! No mlolongo!
(Hon. (Ms.) Soipan Tuya): Order, Members. Let us be silent. Hon. Members, can you be honest? Do you want the count to happen? Do you want us to count the Members? Then let us do it in an orderly manner. Take your seats Members. Hon. Mishra and your team, please take your seats.
Hon. Members, take your seats. We are taking a roll call.
(Hon. (Ms.) Soipan Tuya): Take your seats, Hon. Members. Please take your seats.
Hon. Kamket and Hon. Millie, please take your seats. Let us take our seats and then we can take the roll call.
Hon. Members, we are taking the roll call. When I call your name, make your stand whether you are voting “no” or “yes”. That is simple enough, Hon. Members. That is simple.
Sit down Members.
Okay, Members, now take your seats. Let us do this quickly.
Hon. Manje and Hon. Kiptanui, please, take your seats. The Hon. Member, here, please take your seat. Let us do this in a simple way. When I call the name of Hon. Member, you rise and say “no” or “yes”. That is simple.
No! No! Why are you counting us? No! No!
(Hon. (Ms.) Soipan Tuya): Hon. Members, do you really want to vote?
Hon. Bashir Abdullahi, say “yes” or “no”. Okay, you will sign.
Order, Members! Hon. Members, you cannot be hypocritical. If you want to vote, then let us have the vote. Do you want a vote? Do you want to confirm the numbers?
We want to do a roll call. The only way the HANSARD will show we were here …..
Let us engage the Speaker.
(Hon. (Ms.) Soipan Tuya): Order Members!
Order, Members! Take your seats!
All Members upstanding please take your seats.
No! No! Zero! Zero!
You have liberty in the House to take whatever position on a matter. Hon. Members, the House must at all times be guided by its own rules. Hon. Members, you were in Committee of the whole House. Some of you claimed for a division.
Hon. Members, when the House is transacting business that requires a fixed threshold, at all times, the Chair must confirm that there is the requisite quorum.
There was quorum!
Hon. Members, the figures that were given were disputed by a section of Members. How can you complain that any Member walked out?
Hon. Jaldesa! Hon. Members, you will have to go by the rules. Let me tell you that, any time there is voting and specific threshold is required, it must be ascertained that there is presence of that number in the House. Hon. Members, just listen! None of you keeps the count.
You will hold your horses.
On a point of order!
Let me make it absolutely clear that you all know that walking out or walking in is part of your rights. Hon. Members, when you start telling me that anybody was influenced, I do not know whether anybody is playing some magic to influence another here. Hon. Members, there is no debate.
Hon. Millie Odhiambo, there is no debate. The House was in Committee of the whole House. At that time, even the Division Bell was rung.
Hon. Members, do not address me as though I was in outer space. I was just here.
Muturi must go! Muturi must go!
Proceed! Proceed! But I can assure you that the House must conduct its business in a manner that reflects its decorum. The House must conduct its business in a manner that reflects its decorum and dignity. Therefore, if the dispute is with regard to the result of the division…
Hon. Simba Arati…
Hon. Richard Onyonka, you have no authority to address me. I must get advice from the lead Clerk-at-the Table.
Haki yetu! Haki yetu! Haki yetu!
Hon. Members, this will not last long because the House must transact. There have arisen some disputes from you making certain claims.
I will listen to the claims a maximum of…
Muturi for president! Muturi for president!
Hon. Members, because the House is still sitting and there has arisen that dispute, we will listen to a maximum of 10 Members, five from each side and each Member shall speak for a period of two minutes, after which, I will make a determination. In the meantime, I direct the Serjeant-at-Arms to open the doors.
Order Members! I thought we have agreed. Member for Mvita, we want to listen to any of the 10 persons make their contributions with regard to the disputes.
Hon. Members, with regard to the decision we have taken, we will have 10 Members to explain what the dispute is all about. The House must transact as it normally does. There will be five from this side and five from the other side. That is the way we operate in this kind of governance. Let us listen to every person without saying people are out of order. There is a general concern that the female gender gets side-lined most of the time because they are not always here in good time to log in their cards. You will allow me the liberty to…
I am not saying it is only the female gender.
From Nairobi, we will have Hon. T.J. Kajwang’, from western, there will be… I am told to consider the youth. So, Mohamed Ali from Kisauni. Let us also agree. Those of you in leadership, who always get a chance, let us allow Hon. Millie Odhiambo and Hon. Zuleikha. We
have agreed on five. Whoever is going to speak, we have agreed he is going to speak on behalf of the majority.
The Leader of the Majority Party and the Leader of the Minority, you will have to listen to this. Let them say what they have to say. Who is this talking on phone? The Lady from Laikipia County, Hon. Jaldesa and the Member for Mandera North. We agreed on five Members from each side. There is nothing out of order now. We are not going to operate that way. These are the Members who are going to speak for a maximum of two minutes each, or one and a half as you say, namely, Hon. TJ Kajwang’, Hon. Mohamed Ali, Hon. Makali Mulu, Hon. Millie Odhiambo and Hon. Zuleikha. From this side, Hon. Waruguru, Hon. Jaldesa, Hon. Abdullahi, Hon. Tuwei from Mosop and Hon. Wamuchomba. That is five.
We agreed on 10. Can we start? Let us hear Hon. Kajwang’.
Hon. Speaker, I may have lost my voice, but I will try to address you in the best way. With a lot of respect, Hon. Speaker, when we went into Committee, Clause 18 was called by the Chairperson and Members made representations and a vote was called according to the Standing Orders.
Just a minute. Just give me time. I will get there. A voice vote was called and the Chair pronounced herself very clearly that, “The Noes have it.” When we began, the Chair had satisfied herself that we were more than 232 in the House. So, after the voice call voting was done, Hon. Duale, Member for Garissa Township, led a drove of people, including my brother - a person I respect, my friend. We were 304. I have not called anybody. We were 234 when Hon. Duale led a horde of people away. All of them went. Hon. Speaker, what you have to rule on… I want to get your attention. I request your attention. One of the issues you want to rule on is whether after a vote has been called and when there is no division called, Members able to leave the Chamber. And if they leave, is that discounted from the general membership of the plenary when we vote? I will leave time for the rest. But you need to decide whether, first of all, it was in order for Hon. Duale to leave with his people. Two, if they went out, is that discounted from the general membership of the plenary?
You can do nothing to me. This is Bunge.
Order, Hon. Kajwang’. I think you have prosecuted your point. Let me appeal to you: Do not make any direct attacks on one another, please. Just address whatever issue you want to address through the Chair. Hon. Mohamed Ali.
Mhe. Spika, Shukrani sana kwa kunipa fursa hii. Kwanza kabisa, ningependa kuweka rekodi sawa kabisa. La kwanza na muhimu zaidi ni kwamba idadi ya Wabunge waliokuwa wakitaka kupiga kura ilikuwa mia asili mia. Ya pili, swali likauliza na Wabunge wote kwa kauli moja wakakubaliana na kupinga na kusema ya kwamba hawatakubali kama wanavyotaka ila kama anavyotaka Wanjiku. Hamna mtafaruku wowote ambao umetokea baina yetu. Wakati ambapo Mwenyekiti aliomba tupige kura, tulikubaliana kwa kauli moja tuweke foleni lakini baadhi ya viongozi ndani ya Bunge, wakiwemo Duale na Mbadi, wakaanza kuiingilia na kuzuia upigaji wa kura.
Hon. Members, I want to listen to what the Member is saying.
Ya pili, tunataka access to information . Tunataka kujua venye kila Mbunge atakavyopiga kura. Kura tumepiga. Tumemaliza kupiga kura. Na kauli mbiu ni kwamba Wabunge wamekataa. Nitampisha ndugu yangu naye achangie kwa dakika moja yangu.
Amenidonetia dakika moja, Mhe. Spika.
That is wrong. Hon. Mohamed Ali, that is disorder, because there are very many Members who needed to speak, but we agreed it is five-five. To want to use the Floor to donate other time is not right. We could have said even 10 Members. Hon. Makali Mulu.
Thank you, Hon. Speaker. As you have heard, the no vote carried the day. Procedurally, what is expected is for people to stand wherever they are if they want to go for a division. I can confirm nobody stood up. Instead, people started walking out. So, the issue is: Should they have stood in their places to be counted so that we go for a division or should they have walked out? From that point, we lost it. But the vote was taken and the no carried it. Thank you.
Hon. Millie Odhiambo.
Thank you, Hon. Speaker. Procedurally, I want to reiterate what the Member has said. The Chair was very categorical when she called out the vote and the Noes had it. For her to do that, she must have first convinced herself that there was quorum. The quorum for such a matter is two-thirds and she convinced herself that we had two-thirds and we took the vote. Thereafter, we were being forced to go into a further voting after we had voted. Being obedient Members of Parliament, we were even willing to subject ourselves to that, but even the mode that was used to determine the number of Members was extremely faulty. We even challenged that, because at that point, Members had already finished. We had already voted. No Member on the other side stood in their place. It was over. Now, when we were dancing, some
are celebrating, some are out, some are in the toilet, they purported to do a vote. If you looked at the electronic system, it showed we were even more than the actual legal numbers. Jesus Christ and religious and spiritual leaders, including Muslim ones, were with us in this House. That is why the numbers were higher.
Finally, I want to reiterate what Hon. Mohammed Ali has said. Article 35 of the Constitution on freedom and access to information which is also contained in the access to information Act says that we must know who was in the House.
Let us have Hon. Zuleikha. Please, do it in two minutes
Ahsante sana, Mhe. Spika kwa kunipatia nafasi hii ya kuzungumza. Tulipiga kura kama wenzangu walivyosema na tukakataa na tukafaulu na Mhe. Naibu Spika wa Muda akakubali. Lakini baadaye, kukawa kuna wengine ambao wanataka tupige kura kupitia tarakilishi. Kwa hivyo, tukaweka kadi zetu na zikaonyesha idadi kubwa zaidi ya mia tatu hamsini na mbili. Kukawa na utatanishi kwa sababu hiyo idadi si ya jumla ya Bunge kwa hivyo, haiwezekani. Makarani wakaanza kutuhesabu sisi na vidole kwa kweli, huwezi kuhesabu watu katika chumba kikubwa kama hiki kwa vidole. Kwa hivyo, hiyo kura haiwezi kuwa halali.
Mlango ukafungwa lakini Serjeant-at-Arms wakawakubalia wengine kutoka. Mimi nimekuwa hapa Bunge kwa muhula wa pili na ninajua kwamba mlango ukifungwa Wabunge hawaruhusiwi kuingia na kutoka. Saa hizi, hakuna njia ya kuonyesha ni Mbunge yupi alikuwa ndani. Ni haki ya wananchi kujua ni nani yuko na wao na nani hawako na wao. Kwa hivyo, ninataka utusaidie tupate huo ujumbe. Shukrani sana.
Let us have Hon. Waruguru.
Thank you, Hon. Speaker for according me this rare opportunity to explain the situation. You realise that this House is covered by CCTV cameras and there is nothing happening which is not recorded. For the sake of the HANSARD and moving forward in terms of the way this House is going to be judged by Kenyans and the people who have been critiquing the legislative arm outside there, the truth of the matter is that there was a unanimous “No”. For that purpose, there was no need for a Division Bell. That came as an after-thought when the Hon. Leader of the Majority Party caused confusion at the Floor of the House by championing people to walk out of the Chamber. So for that reason, let it come on record. I support a “No”, I am standing with zero and nobody can take away the rights of Kenyans.
Hon. Rehema Jaldesa.
Thank you, Hon. Speaker. What my colleagues have stated is the true position. The Hon. Temporary Deputy Chairlady called for a Division, but 99 per cent of the House had voted “No”. At that point, the Leader of the Majority Party started pushing people to go out and he locked some people in the toilet. So, we voted “No” and shall still vote “No”. It is dishonest when the media was put off and they sent a fake message out there that the Bill was passed. The Bill was not passed and we rejected the proposal.
Next is Hon. Abdikhaim.
Thank you, Hon. Speaker, I want to reiterate what other Members have said before me. When the vote was happening, two-thirds of the Members were present in the House. However, when that happened, some Members were forced to walk out of the Chambers and that resulted in numbers not being enough. Even after
they walked out, I suspect we had the numbers. The issue that came into play is that the Members who remained here became agitated and that is why there was bit of confusion and disorder, but from where I sat, the “Noes” had the majority. Thank you.
Let us have Hon. Tuwei.
Thank you, Hon. Speaker. What is at play here is parliamentary democracy guided by its own rules. Under Article 95 of our Constitution, which is very clear on the mandate we have today of representation, legislation and oversight, one cannot believe what we have seen here today when Members took a vote and there was an equivocal “No” in the whole House.
Hon. Speaker, I am a first-time Member and if this is how Parliament is going to be conducted, the public there will not have confidence in us. I wonder why we have gadgets before us showing the programme of voting. We voted and it totalled to 352; rigging which surprised us.
Hon. Speaker, the vote was taken and the “Noes” had it. As a Member of Parliament for Mosop, I cannot stand this. I have been sent here to represent my people and I must be given my position to state it clearly whether “Ayes” or “Noes”, but not what we have seen here. Games are being played and party positions are here, but it has come to Members’ position to realise where they want to vote. I have seen Members’ position to decide where to cast their vote. I have seen Members’ cards being taken away including my neighbour’s here. All these cards have been taken by a Member and he has disappeared to the toilet. It is a shame. We cannot conduct the House business like this.
Hon. Members, you are also being dishonest. We agreed that we were going to have five Members from every side and so, we are through on this side. How many people have spoken? Please, on this side, Hon. T.J Kajwang’ has spoken. We are not repeating, Hon. Makali Mulu, Hon Zuleikha and Hon. Millie Odhiambo have spoken and we only have one Member from this side. Hon. Wamuchomba.
Hon Shakeel, why are you behaving that way? You are doing your third term. I thought you would be the one to show the way and you are the Chair of the African Parliamentarians Network Against Corruption (APNAC). Let us allow Hon. Wamuchomba to speak.
Thank you, Hon. Speaker for giving me this opportunity. I want to, indeed, confirm that when we came in the House, we had enough numbers, but I am very concerned about the conspiracy that has been seen in this House to ensure that they create a divide. Even when Members have soundly given their views, I want to understand the technology in the House which is actually deceiving Members. The screens were showing that we had 352 Members. How did they come up with that number, yet you say there is no quorum?
I have some information that the 411 platform has sent information to the effect that the Bill has been passed, which is completely wrong. This is shameful. We cannot allow that. We came here dedicated, ready and committed to stand with Wanjiku. We must stand with Wanjiku, no matter what.
Hon. Members, we agreed that we will have five Members from the left side to express themselves and five from the right side. The issue being raised is one of numbers.
The two of you, do not tell me. That is to the two of you, Hon. Tuwei and Hon. Wamuchomba. I was just here observing what was on the screens. If you read Article 97 of the Constitution, it shows you the numbers of this House. They are 349. It is, indeed, true. Part of the reason why I came in is because I got shocked how the screens could show that 352 Members were present.
Hon. Tuwei and Hon. Wamuchomba, in their own words, have also admitted that, indeed, that was the figure being shown on the screens. It was also the figure being shown on the screen in the room behind here where I was. Surely, looking at this hall which has got 350 seats, I do not know where the 352 were seated. You can see how seats are empty. Hon. Members, it, therefore, means that we must fall back to Standing Order No.72. We must be guided by our own Standing Orders. Where there is doubt, the Speaker…
Hon. Members, where there is doubt, the Speaker orders a second round of voting. Hon. Members, it is good to listen. Before we do that, it is mandatory that where a specified threshold is required, the first thing to be confirmed is the number of Members present in the Chamber. Therefore, I have already contacted our IT Department so that we do not fall into a similar problem of having more Members present than the Constitution allows. Hon. Members, therefore, to allow the technical department of Parliament to address the issue of the electronics, I will suspend this sitting for a period of 15 minutes so that when we come back…
Hon. Members, those of you who are insisting on going on with the Division… Hon. Members, if we go on with the Division with faulty machines, you will reject the results. Let our technicians work on the machines. Hon. Members, there can only be one person to make some decisions. They may be unpopular, but they must be made because in any event, none of you is leaving. So, let us just get the technical department finish the problem and we come back here.
So, Hon. Members, the sitting is suspended for 15 minutes to allow them to finish what they have to do.
Hon. Members, I appreciate that some of you may have taken a tea break. It is only fair that we alert them that we are starting the business of the House. Serjeant-at-Arms, ring the bell for five minutes.
Order Members. We may now resume.
On a point of order, Hon. Speaker.
What is your point of order, Hon. Onyonka? How can there be a point of order? What is out of order?
Hon. Onyonka, thank you for what? Hon. Members, as you know, this is a House of rules. This is a copy of the Constitution of Kenya, 2010. I am doing this, Hon. Members, just to remind ourselves of my Communication on Tuesday, but in very minor details. Article 122 of the Constitution is headed, “Voting in Parliament.” Clause (1) says: “Except as otherwise provided in this Constitution, any question proposed for decision in
either House of Parliament shall be determined by a majority of the members in that
House, present and voting.” The operative words are “except as otherwise provided in this Constitution.” So, is there anything that is exceptional? Yes, and I am sure you all know it: Presidential Assent and Referral. Article 115(4) says: “Parliament, after considering the President’s reservations, may pass the Bill a second time, without amendment, or with amendments that do not fully accommodate the President’s reservations, by a vote supported- a) by two-thirds of members of the National Assembly; and b) two-thirds of the delegations of the Senate.” Hon. Members, that is the Constitution. Our Standing Order No.72(2), titled “Roll call Division claimed” says:
Hon. Members, do not address me. We are now in serious business.
Hon. Members, please, do not engage me in semantics.
“The Speaker shall direct a division to be taken in every instance where the Constitution lays down that a fixed majority is necessary to decide any question.”
For that to happen, whether in the plenary or in committee, where there is a fixed majority requirement, the first step is to ascertain the presence in the House of not less than two-thirds of the Members of the Assembly present and voting.
Hon. Members, as far as I am concerned, and I am sure all of you know the official record of Parliament and of this House is the HANSARD. I have got a transcription of all what transpired in the Committee of the whole House. I now want to read.
Hon. Members, take your seats. Take your seats, Hon. Members. Serjeant-at-Arms, I order that the bell be rung for five minutes to prepare for voting. Ring the bell.
I am reading you the official record, which even 100 years from now…
Hon. Members, this is not made by me. The HANSARD record is not made by me. Hon. Members, it shows ‘loud consultations’. “Order, Hon. Members. Order, Hon. Members! Order, Members! Hon. Members, the bell…”
Just listen. Hon. Members, listen to the HANSARD. “Hon. Members, the Bell is ringing and at the stop of the Bell, you will start voting.”
On a point of order.
Hon. Member, you are out of order. Hon. Member, you are out of order. You are out of order. Hon. Member, you are out of order! I am reading the official record.
You can all deny, but there will be no other official record.
Hon. Murunga, there will not be any other official record of the proceedings of that time except this one. It reads:
“Hon. Members, once the Bell stops ringing, you start voting. Take your seats”.
Hon. Nkatha, take your seat. Hon. Member, take your seats. Order, Hon. Members! Get ready to vote. The bell is ringing. Those asking for points of order, there is nothing out of order. Just prepare yourselves to vote. Open the doors. Keep the doors open.”
Hon. Members, unfortunately, even what I am saying is also being captured on the HANSARD. It is also going to capture that there was loud noise. That is the way it is configured. It will also be showing that there were loud consultations. That is what is going to happen even now. What I am saying is also being captured on the HANSARD.
On a point of order!
There cannot be any point of order. I am the one delivering this.
Hon. Member, because you are not very regular, I am not able to remember your name or recognize your face well, but very soon, I will know your name. It is the Member for Rongo. Member for Rongo Constituency, please, relax. Hon. Members, I am not going to look for any other official record except this one. Each of you is at liberty to obtain a copy of the HANSARD which continues to say...”
On a point of order!
There is no point of order!
On a point of information!
I am not going to take information.
“Stop making noise. Insert your cards.
Hon. Kamket, you have been an employee of Parliament. You have never heard of the HANSARD capturing anything except what is said on the Floor of the House. You better relax, Hon. Kamket.
Hon. Simba Arati, this is very dispassionate. I have nothing personal about this. The HANSARD goes on: “Hon. Members, we will be guided by the Standing Orders. I now direct the Clerks-at- the-Table, under Standing Order No.72 to take a head count of the number of Members in the House. Members, take your seats.
Nobody is allowed to leave the House at the moment. Hon. Wanyonyi, take your seat. The head count has been taken. We have a total of 215 Members present in the House. In that case, the Ayes have it.” Hon. Members, that is the record of the proceedings of this House as captured in the HANSARD.
You can repeat that as many times as you wish. I cannot read anything different from what is on the official record! It concludes that the Ayes have it. It, therefore, means, Hon. Members, that the clause which was under consideration at that point was carried. Therefore, we will proceed to the Committee in the next Order.
Order, Hon. Members! We have had more than enough consultations. Hon. Members, we have done more than enough consultations and, as far as I am concerned, until or unless a court of law invalidates the record here, I have no other record to go by, except the HANSARD. It is the official record of Parliament and of this House in particular. It, therefore, means, as the record shows, that the clause that was being considered… Rightfully, the record shows Hon. Kajwang’ had said it should be Clause 18. It is the record that I am reading. The vote on that clause was lost on the basis that you did not have 233 Members opposing.
Hon. Members, that is the official position and the House shall now proceed to the Committee to continue with the consideration of the other clauses.
Let us have the Leader of the Majority Party.
Hon. Deputy Chairman, I beg to move: THAT, Clause 31 of the Bill be amended— (a) in Part 1 subparagraph (iii) by inserting the following new item─ Description Rate of Excise Duty Sugar confectionery (including white Shs. 20 per kg chocolate) of tariff heading 17.04; chocolate in blocks, slabs or bars of tariff Nos. 1806.31.00, 1806.32.00, 1806.90.00 (b) in Part II by inserting the following new subparagraphs— (i) by deleting paragraph 1 of the Act and substituting therefor the following new paragraph- 1. Telephone and internet data services shall be charged excise duty at a rate of fifteen percent of their excisable value. (ii) by deleting paragraph 2 of the Act and substituting therefor the following new paragraph – 2. Excise duty in fees charged for money transfer services by banks, money transfer agencies and other financial service providers shall be twenty percent of their excisable value. (iii) by deleting paragraph 4 of the Act and substituting therefor the following new paragraph- 4. Excise duty on other fees charged by financial institutions shall be twenty percent of their excisable value.
Let us have the Leader of the Majority Party.
Hon. Deputy Chairman, I beg to move: THAT, the Bill be amended by inserting the following new clause immediately after Clause 18- Amendment of section 18A. Section 5 of the Value Added Tax Act, 2013 is amended in subsection 5 of No.35 of 2018 (2) by inserting the following new paragraph immediately after paragraph (a)- (aa) in the case of goods listed in section B of Part I of the First Schedule, eight per cent of the taxable value, effective from the date of assent: Provided that- (i) the taxable value in respect of these goods shall exclude excise duty, fees and other charges; and (ii) despite section 1 of the Finance Act, 2018, this paragraph comes into effect upon enactment of the Supplementary Appropriation Act.
Let us have the Leader of the Majority Party.
Hon. Deputy Chairman, I beg to move: THAT the following new clause be inserted immediately after clause 48A— Insertion of section 48A. The Miscellaneous, Fees and Levies Act, 2016 is amended by inserting the 8A into No. 29 of 2016. following new section 8A immediately after section 8- Anti-adulteration 8A. (1) There shall be paid a levy to levy. be known as the anti-adulteration levy on all illuminating kerosene imported into the country for home
use. (2) The levy shall be at the rate of eighteen shillings per litre of the customs value of the illuminating kerosene and shall be paid by the importer at the time of entering the illuminating kerosene into the country.
Hon. Deputy Chairman, I beg to move: THAT, the following new clause be inserted immediately after Clause 50 — Amendment to Sections 50A. The Betting, Lotteries and Gaming Act is amended as follows — 29A, 44A, 55A and
59B of Cap.131 Section 29A of the Betting, Lotteries and Gaming Act is amended Amendment of Section 29A of in subsection (1) by deleting the expression “thirty-five” and substituting Cap.131 therefor the expression “fifteen”. Section 44A of the Betting, Lotteries and Gaming Act is amended in Amendment of Section 44A of subsection (1) by deleting the expression “thirty-five” and substituting Cap.131 therefor the expression “fifteen”. Section 55A of the Betting, Lotteries and Gaming Act is amended in Amendment of subsection (1) by deleting the expression “thirty-five” and substituting Section 55A of Cap.131 therefor the expression “fifteen”. Section 59B of the Betting, Lotteries and Gaming Act is amended Amendment of in subsection (1) by deleting the expression “thirty-five” and substituting Section 59B of Cap.131 therefor the expression “fifteen”.
Hon. Deputy Chairman, I beg to move: THAT, the following new Clause be inserted immediately after clause 78 — 79. The Employment Act, 2007 is amended – Amendment of Section 2 (a) in section 2 by inserting the following new definitions in the of No.11 of 2007 proper alphabetical sequence- "employer contribution" means the employer’s contribution payable into the National Housing Development Fund; “employee contribution” means a contribution payable under this Act for his or her benefit; “employee earnings” means the taxable amount determined under the Income Tax Act for purposes of levying income tax on the employee emoluments. “National Housing Development Fund” means the Fund established under section 6 of the Housing Act.
Hon. Deputy Chairman, I beg to move: 80. The Employment Act is amended by inserting the following Insertion of a new Section 31A into new section immediately after Section 31 - No.11 of 2007 31A. (1) An employer shall pay to the National Housing Payment to the Development Fund in respect of each employee – National Housing Development Fund
(a) the employer’s contribution at one point five per centum of the employee’s monthly basic salary; and (b) the employee’s contribution at one point five per centum of the monthly basic employee’s salary: Provided that the sum of the employer and employee contributions shall not exceed five thousand shillings a month. (2) The benefits to an employee shall accrue as follows – (a) for employees who qualify for affordable housing, the contributions accrue to the employee and shall be used to finance the purchase of a home under the affordable housing scheme; or (b)for employees who are not eligible for affordable housing, upon the expiry of fifteen years from the date of the start of making the contributions, or after the attainment of retirement age, whichever is sooner ─ (i) a transfer of their contributions to a pension scheme registered with the Retirement Benefits Authority; (ii) a transfer of their contributions to any person registered and eligible for affordable housing under the National Housing Development Fund; or (iii) a transfer of their contributions to their spouse or dependent children; or, (iv) to receive their contributions in cash: Provided that contributions paid out in cash shall be included in the contributor’s taxable income for the year and be subjected to tax at the prevailing rates. (3) All contributions shall get a return based on the return on the Fund. (4) The employer shall remit both employee and employer contributions to the National Housing Development Fund before the ninth day of the following month. (5) If the contributions due under this section are not paid on or before the day on which the payments are due, a penalty of five percent of the contributions shall be payable by the employer for each month or part thereof during which the contributions remain unpaid, and any such penalties shall be recoverable as a sum due and payable to the National Housing Development Fund. (6) This section shall become effective upon the gazettement of regulations prescribing the requirements for qualification to the scheme by the Cabinet Secretary responsible for housing in consultation with the Cabinet Secretary responsible for finance.
Hon. Deputy Chairman, I beg to move: THAT, the Bill be amended in Clause 2 by renumbering the existing provision as (a) and inserting the following paragraph - (b) by deleting the definition of the word “winnings” and substituting therefor the following definition- “winnings” includes winnings of any kind and a reference to the amount or to the payment of winnings shall be construed accordingly.
Hon. Deputy Chairman, I beg to move that the Committee doth report to the House its consideration of the Presidential Memorandum to the Finance Bill (National Assembly Bill No.20 of 2018) and its approval without amendments.
Hon. Speaker, I beg to report that a Committee of the whole House has considered the President’s Reservations to the Finance Bill (National Assembly Bill No.20 of 2018) and approved the same without amendments.
Hon. Speaker, I beg to move that the House doth agree with the Committee in the said Report. I also request Hon. Ichung’wah to second the Motion for the agreement with the Report of the Committee of the whole House.
Hon. Speaker, I second.
Hon. Members, you cannot claim division from the gangways!
Hon. Members, the time being 6.30 p.m., the House stands adjourned until Tuesday, 2nd October 2018, at 2.30 p.m.
The House rose at 6.30 p.m.