Order, Hon. Senators! Could we confirm if we have a quorum?

Mr. Speaker, Sir, we have 19 hon. Senators present in the House. We have a quorum

Let us proceed.

Hon. Senators, I have a communication to make on the criteria for identifying marginalized areas for purposes of the Equalisation Fund. At the sitting of the Senate held on Tuesday 14th May, 2013, Sen. Musila rose on a point of order seeking a ruling of the Chair on matters concerning the Equalisation Fund. As hon. Senators are aware, the Equalisation Fund is established under Article 204 (1) of the Constitution. It says:- “There is established an Equalisation Fund into which shall be paid one half per cent of all the revenue collected by the national government each year calculated on the basis of the most recent audited accounts of revenue received, as approved by the National Assembly.” Article 204(2) further provides that:- “The national government shall use the Equalisation Fund only to provide basic services including water, roads, health facilities and electricity to marginalized areas to the extent necessary to bring the quality of those services in those areas to the level generally enjoyed by the rest of the nation, so far as possible.” The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Thank you, Mr. Speaker, Sir. I stand here to thank you for the wise decision and communication that you have made to the Senate. You recall that I raised this matter in Mombasa and the Chair of the CRA actually said he has been waiting for the Senate, through the Committee, to call him so that he can generate discussion on this matter. Mr. Speaker, Sir, arising from your ruling that the Senate has an oversight role in this matter and in view of the fact that the Equalisation Fund is to take care of counties that have been marginalized, will I be in order to ask that the Chair of the Devolution Committee takes up this matter immediately so that those Senators who may feel that their counties have been omitted and they have got grounds, they can air their view so that the CRA can further make another determination?

Indeed, it only follows, Sen. Musila, that from my communication, your next port of call is the Committees of the House. I, therefore, direct that this matter be considered by the Joint Committee of Finance, Commerce and Economic Affairs; and the Committee on Devolved Government and, further, that the Joint Committee reports its findings to the Senate within two weeks from today.

Next Order.

Hon. Senators, I wish to bring to the attention of the Senate that pursuant to Standing Order No.40(3) and (4), the Clerk has delivered to me the following message from the National Assembly regarding the appointment of Members of the Parliamentary Service Commission (PSC). The subject of the Message is “Approval of Members to the Parliamentary Service Commission” and the content of the message is as follows. Pursuant to the provisions of Standing Order No.41 of the National Assembly Standing Orders, I hereby convey the following message from the National Assembly:- THAT, pursuant to Article 127(2) of the Constitution, the National Assembly by resolution passed on Thursday 16th May, 2013, approves the appointment of the following Members of the National Assembly and Senators to the PSC. (a) Under Sub-section (c)(i):- 1. Hon. Jimmy Angwenyi, M.P. 2. Hon. Regina Changorok Nyeris, M.P. 3. Sen. Beth Mugo, M.P.; and, 4. Sen. Sammy Leshore, M.P. (b) Under Section (c)(ii):- The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I know you have just passed a message about the PSC. I just needed your clarification whether this is the right time for me to give the notice of Motion, or should I wait? This is because some of the requirements for notice were discussed at the Rules and Business Committee meeting where I was not able to attend. So, I need your clarification and guidance.

You are very right; go ahead and give notice of Motion.

(Sen. (Prof.) Kindiki): Thank you, Mr. Speaker, Sir. I beg to give notice of the following Motion:- THAT, pursuant to Article 127(2) of the Constitution, the Senate approves the appointment of the following Senators and Members of the National Assembly to the Parliamentary Service Commission:- 1. Sen. Sammy Leshore 2. Sen. Beth Mugo 3. Sen. David Musila 4. Hon. Jimmy Angwenyi 5. Hon. Regina Changorok Nyeris 6. Hon. Adan Keynan 7. Hon. Gladys Wanga Thank you, Mr. Speaker, Sir. 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.

Senators, as I said earlier, the Senators representing the Senate to the PSC were actually approved by the Rules and Business Committee at the same time when we approved debate on the Floor. You remember that you have debated and you have approved most of those Committees. You have even gone ahead to elect Chairs. So, they are up and running. We have dispensed with the requirements of giving notice and discussing the same Motion so that we prioritize and expedite this particular matter. So, that is why you have to look at the Supplementary Order Paper from that point henceforth. Next Order.

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I beg to move following Motion:- THAT, pursuant to Article 127(2) of the Constitution, the Senate approves the appointment of the following Senators and Members of the National Assembly to the Parliamentary Service Commission:- 1. Sen. Sammy Leshore 2. Sen. Beth Mugo 3. Sen. David Musila 4. Hon. Jimmy Angwenyi 5. Hon. Regina Changorok Nyeris 6. Hon. Adan Keynan 7. Hon. Gladys Wanga Mr. Speaker, Sir, as you have reminded the House, the PSC is not yet fully constituted. This House has already approved the membership of the other Committees. As you said, they are up and running. One of the most critical organs of this House, as Members would know, is the PSC, which is constitutionally mandated to take or, rather, to consider, determine and approve issues to do with the services and facilities available to Members of Parliament, either at the National Assembly or the Senate. So, we are happy that your counterpart at the National Assembly has forwarded to you the list that has come from that House. From this side, we already held discussions across the Majority and Minority parties and we have arrived at the names that I have just read out. So, Mr. Speaker, Sir, without much ado, this is an appropriate time to speedily and quickly discuss and dispense with this Business so that the PSC, with all its representation, including the representatives of this House, can begin Business. This is coming at a time when the Senate is suffering tremendous disadvantage in terms of facilities, welfare, et cetera. So, putting in place or approving this composition, including the representatives of this House, will go a long way in making the Senate more efficient in terms of performing its constitutional functions. Mr. Speaker, Sir, with those few remarks, I beg to move and request Sen. Kipchumba Murkomen to second me. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Speaker, Sir, I stand to second this Motion. I think the seven hon. Members of Parliament, both of the Upper House and the Lower House, are men and women of tremendous capabilities. We know them as passionate people; they have passion to protect the interest of Members of Parliament. I believe that they bring in diverse representation, both in terms of gender, regional and ethnic balance. Mr. Speaker, Sir, I do not want to spend more time because Senators really know that this institution needs to be up and running, particularly when it comes to the welfare of Senators. Senators are here, they do not have county offices or county facilities to enable them operate within the county. We are operating inside a makeshift building in the name of the Senate Chamber. Our offices are not yet ready. We are meeting our constituents or people from our counties in car parks and other places. So, I think it is only fair that we pass these names immediately and request our brothers and sisters who are going to serve us in the PSC to remember that they are our servants. Chapter Six of the Constitution says that they are going to serve us and the country. So, Mr. Speaker, Sir, I beg to second this Motion.

(Sen. Wetangula)

The hon. Senator from Homa Bay County.

Mr. Speaker, Sir, ordinarily, this Motion is like a procedural Motion. Therefore, we should not be debating it much. However, I wish to utilize the chance you have given me to say one or two things. I wish to remind hon. Senators that the Senate and the entire House of Parliament is under attack from all corners of this The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

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

What is it, Senator for Laikipia County?

Mr. Speaker, Sir, I wish to seek clarification on the statement which has just been made by the two hon. Senators, that the PSC is our employer. This is not the case. We are approving the appointment of hon. Members to the PSC. The PSC then employs the workers. Therefore, we are not the employees of this Commission. I want you to clarify this matter.

Order, Senator for Laikipia County! When you rise on a point of order, you do not do so to seek a clarification or address a matter. I was suspecting that maybe the Senator for Homa Bay County had breached some Standing Orders. Secondly, you should have risen at the time when the one who actually made the statement, the Senator for Bungoma County, was on the Floor. So, on the basis of two accounts, you need to involve the appropriate procedure for us to deal with the matter. So, for now, it is disallowed.

Thank you, Mr. Speaker, Sir for giving me this opportunity to say one or two things on this Motion. I stand to support this Motion. I want to join my colleagues who have spoken earlier to say that it is high time that this particular Commission is up and about. It has been about three months since we were elected. Therefore, it is time that we formed this PSC, so that they can start their work. I also join my colleagues in saying that the PSC is, indeed, our employer, doubling as our union. The hon. Senators that we are seconding to this Commission are like our unionists. They are the people who are supposed to defend our interests, to look into our welfare, remuneration, facilities and all the interests that we have. I had the privilege of being appointed to the task force that was appointed to look into the welfare of hon. Senators. We have had a series of meetings under the chairmanship of the Deputy Speaker, Sen. Kembi-Gitura. We have come up with many important proposals to enable hon. Senators to deliver effectively and adequately on their mandate. 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.

Let us get the final contribution from Sen. Obure.

Mr. Speaker, Sir, I support this Motion. There was a time in this country when the work of Parliament could not be separated from that of the Executive. In fact, the Legislature and the Executive was one and the same thing. Since the establishment of the PSC, we have seen significant difference. The institution of the Legislature has become independent. I have looked at the names of hon. Senators who have been proposed as listed in this Motion. These are quality people who will enhance the work of the Commission. I urge them, as we support them to join this Commission, to ensure that the Legislature becomes stronger, that the welfare of hon. Members and hon. Senators is taken care of, so that they are facilitated to perform effectively and represent the electorate. I am confident that there is quality and capacity in these hon. Members and hon. Senators. I wish them well. Thank you, Mr. Speaker, Sir.

Hon. Senators, I will now proceed to put the Question. Please take note that this is a matter where every hon. Senator, elected or nominated, has one vote. It is not a matter affecting counties. I will, therefore, put the question in the general way.

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

What is it, Sen. Musila? As Sen. Musila raises his point of order, I want to agree with the suggestion by Sen. Khaniri. Indeed, the Deputy Speaker has already brought the report of the welfare committee to my office. We will invite the approved Commissioners to have a look at it. We will give them a mandate to take forward in addition to other actions that we will use for that report. Proceed, Sen. Musila.

Mr. Speaker, Sir, on behalf of my colleagues, Sen. Mugo and Sen. Leshore, I stand here, with a lot of humility, to say that we accept the nomination that the Senate has given to us. On their behalf and my own behalf, we pledge that we will work to the expectations of the Senate. I do not want to say much, except to thank hon. Senators for bestowing this honour upon us. We know that it is an enormous responsibility, especially at this time. As Sen. Kajwang said, Parliament is under attack. 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. Musila, I wish to remind you, in the words of the Senator for Homa Bay County, that you should be “the protector, defender and advocate of the Senate.” In the words of the Senator for Bungoma County, that “you will be up to the task” That should be part of your brief. Next Order!

Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I beg to move that the Division of Revenue Bill, (National Assembly Bill No.1 of 2013), be now read a Second Time. This Bill was brought to this House after an agreement was struck between the National Treasury, the Commission for Revenue Allocation (CRA) and the Transition Authority (TA). After consultations, an allocation of an amount totaling to Kshs210 billion was arrived at. This amounts to 34.5 per cent of the most recent audited revenues. This allocation was given to the counties in accordance with the requirements of the Constitution. Mr. Speaker, Sir, I wish to make a few comments regarding this Bill. Out of the Kshs210 billion that has been allocated to counties, Kshs190 billion constitutes the shareable revenue. This is equivalent to 31.2 per cent of the most recent audited revenues, approved by Parliament. These are revenues of 2010/2011, which was about Kshs608 billion. The Constitution requires that in allocating the shareable revenue, the most recent audited revenues approved by Parliament be used. That is why this was resorted to. This is more than twice the constitutional requirement of 15 per cent. As you can see this is a great effort by the Government to ensure that it discharges its obligations to support devolution, not just in theory, but also in practice. The Constitution says that “at least 15 per cent.” Here, we are talking about 31.2 per cent. This is something for hon. Senators to note and appreciate. Mr. Speaker, Sir, there is a further Kshs20 billion that constitutes conditional allocations from the national Government. In accordance to Article 222 of the Constitution, the national Government may make conditional allocations. This has been done up to the tune of Kshs20 billion. This constitutes two segments; Kshs3.4 billion to support level five hospitals at the county level and a further Kshs16.6 billion in terms of loans and grants, which are commitments that the Government has entered into with donors for these purposes. Mr. Speaker, Sir, secondly, the allocation of Kshs210 billion includes both Recurrent and Development Expenditures. Again, this House should note and appreciate that the Constitution requires that the balance between Recurrent and Development The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Thank you, Mr. Speaker, Sir. I stand to second the Division of Revenue Bill that is on the Floor of this House. This is the first such Bill that this Senate is dealing with since the promulgation of the new Constitution in 2010. It is a very important Bill because it lays the precedent for the future allocation of revenue between the national Government and the counties. This is one of the most important roles of the counties. Indeed, in the Constitution, the single most important role of the Senate is to protect the interests of the counties. There is no greater way of protecting the interests of the counties than to review this Bill thoroughly and pass it, taking into consideration the interests of the counties. This Bill is, indeed, the lifeline of the counties because it is the one that provides the revenue. For most counties, the total revenue that they can generate is the national revenue that is being shared out by the national Government. 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, I just want to clarify that, yes, we are debating the Bill, but the format in which we are doing so, is through a Motion. So, we have a Motion before us.

Mr. Speaker, Sir, I will be very brief. I support the Motion. Mr. Speaker, Sir, one of the most difficult tasks to execute in meeting the expectations in devolution lies and will continue lying in how the revenues are divided. There will always be the tussle between the national Government to withhold more and the county governments to want more. In doing so, I think that the role of the CRA The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

On a point of order, Mr. Speaker, Sir. You need to protect me from my friend, Sen. Wetangula. I did not refer to Mt. Kenya at all. We are discussing national issues here. We might lose track if we do not look at issues seriously. When you keep looking at Mt. Kenya and other regions instead of looking at real issues, that is where you miss the point.

Mr. Speaker, Sir, I am sure you can protect me because I was not referring to any region. I was simply talking about the counties that may not be looked at favourably by those who are distributing funds. Even Sen. G.G. Kariuki here from Laikipia requires money to protect that county from the cattle rustling menace and so on.

Order, Sen. Wetangula! 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 just making my final statement.

Order! You are seeking for protection and you not even willing to receive it. You are protected by the Chair because you never used anything against any county, including when the Senator for Murang’a talked about you facing Mt. Kenya. You have just been in this room and there is no---

Mr. Speaker, Sir, you should be eternally blessed for protecting me. We have a saying in my language that says when there is a dog that steals, when you raise a stick, it starts crying before you do anything. With those few remarks, I beg to support.

Sen. Murkomen.

Mr. Speaker, Sir, I rise to support this Bill. This is a very important Bill, being the first Bill that we are debating since we became Senators and since the Senate was re-established. I want to comment the Jubilee Government for doing the best and showing their ambition in their manifesto that says that they will raise the revenue allocated to counties up to 40 per cent in the next five years. It is commendable that they have started with 31.2 per cent or thereabout. It is important to note that these resources are necessary to ensure that counties start with a big bang. The Constitution, in the Sixth Schedule provides that in devolution, there is a possibility of functions and resources being phased out, but this Government has gone out of its way to do a big bang devolution. That means that all the functions are being allocated to the counties at once and the resources necessary to ensure that those counties are performing their functions are being allocated. So, it is commendable that the Ministry of Finance or Treasury and the Jubilee Government are doing such a good job. Mr. Speaker, Sir, it is also important to note that the amount of resources being allocated takes into cognizance the requirement that no county should be harmed as a result of devolution. As a result, an attempt was made to ensure that counties are held harmless. However, as we shall demonstrate tomorrow, as a Committee, that is, the Committee on Finance and the Committee on Devolution, there are still some counties which are going to be harmed if the process is going to be implemented. One of those counties is Elgeyo-Marakwet where I come from. There is a deficit in terms of allocation to ensure that the functions that are being performed by the county are achieved. The other counties are Mombasa, Nairobi, Nyeri, Kisumu, but I am not sure about Bungoma. I will cross-check. It is important to note that although Treasury has said that it has done costing on the functions, there is still confusion in terms of how that costing was done. We, as a Committee, had a chance to interact with the Transition Authority officials on matters of devolved governments. One of the things we asked was the progress in terms of costing of functions. We realized that nothing much has been done by the TA. Treasury is using historical costs in terms of how functions used to be run in various districts compounding them together and getting a basis. It is important to have that historical basis, but it is not enough. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Thank you Mr. Speaker, Sir, for giving me this opportunity. I have gone through Article 202 of the Constitution and also the Bill that has been brought to the House. The matter before the House is a matter of constitutionalism. It is a matter of national importance. We, as the Senate, should be the people to advocate for the success of devolution. If there is failure, Kenyans will blame us for it. To me, a sum of Kshs210 billion is not enough because we are dealing with livelihoods of the Kenyan people. It is a matter about provision of health services to our people at the county level. It is about the provision of food security, commerce and trade. It is about the commitment of leadership in the counties and the betterment of the lives of Kenyans. We must all understand the functions and activities of the county governments as stipulated in the Constitution. As I said, the Kshs210 billion allocated to county governments is not enough to deliver services to our people at the grassroots level. Mr. Speaker, Sir, the Constitution is clear that each functions must be funded. We all know at the county level, there is no delivery of services. For example, most roads are in pathetic condition. There is need to do classifications of all our roads. A lot of health facilities are non-functional. Early Childhood Education (ECD) is a function that will be fully managed by the county governments. In the past, the national Government did not support it. When I talk about the health function that has been brought down to the county government, Kakamega County has more than 261 health facilities. Kakamega Provincial General Hospital will function as a referral hospital. But it has only been allocated Kshs4 million. This money is not enough. It requires more than Kshs1.1 billion to be able to deliver its functions. The allocation for Kisii Level Five Hospital, Kiambu Level Five Hospital and Mama Lucy Hospital in Nairobi County is based on the current standards. This money should be increased. I support the Motion with an amendment to replace the Kshs210 billion to Kshs238 billion.

Order! That is not the way we bring amendments.

Mr. Speaker, Sir, what the Treasury has allocated to county governments is paltry or token. We, as the Upper House, must demand for an increase. We must protect the devolved governments in this country because we have no choice, to the echo sentiments by His Excellency the President. I would like to support the Motion with an amendment. I propose that where we have Kshs210 billion, it should be replaced to Kshs238 billion. Thank 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.

Sen. Daisy, your issues are valid. But in terms of procedure, you may need to consult Sen. (Dr.) Bonni.

On a point of order, Mr. Speaker, Sir. When you refer to Sen. (Dr.) Khalwale, you should not call him Sen. Bonni. She is also not Sen. Daisy. I think if you are on first name terms, it should apply generally then we know from which---

Sen. Orengo, you are completely out of order. You need to appreciate that the Chair has a bit of limitations in appreciating the full names of the new Senators. But for the old bull fighter, I know his full names. I can use his surname. But I would rather use one name rather than saying: “That lady in some colour.”

Mr. Speaker, Sir, I rise to support this Motion and to contribute to this discussion on the Division of Revenue Bill, 2013. First I must say that I am very happy that Jubilee has fully been converted to devolution and has new prophets of devolution. The epistles are quite convincing. Secondly, I want to say that this Division of Revenue Bill, we will definitely see its effect much more appropriately when the Appropriation Bill hits us. When the Appropriation Bill comes we will see how these figures are translated into shillings and cents with respect to specific expenditures both at the national and at the county levels. Having said that, I want to congratulate the Chairman of the Finance, Commerce and Economic Affairs Committee and the Chairman the Committee on Devolved Governments for the contributions they have made and the intentions they have given to the House. Now that they have discussed this matter with the Treasury and other bodies like the Commission on Revenue Allocation (CRA) among others, we are convinced that an amendment to the Bill will be important. The details of the figures will come before the House. This is what Sen. Kipchumba talked about. We neither need say nor commend ourselves for being generous in any way. The Constitution says; very specifically, how public resources should be used. I can refer you to Article 187 of the Constitution as well as Article 203 before I come to the Fourth Schedule. Those two articles tell us very specifically that the Treasury has no option, but to make a budget in line with the provisions of the Constitution. Indeed, if the Treasury turned to do anything outside what is laid down in this Constitution, then we, as a Senate would take the Treasury to account. I was surprised that even in the making of the Constitution, we talked about percentages. This was not really necessary because these provisions to the Constitution give us direction as to how the gross figures of the revenues that are earned by the Kenyan nation will be used between the national government and the county governments. The Constitution provides for this. It is only when that is applied that the Treasury can make a proposal that in a particular year because we are starved, we will reduce expenditures or allocations this way or that way. However, as long as revenues are there to be budgeted for, the Constitution must be followed. Having said that, it is the obligation and, indeed, the duty of the Secretary to the Treasury and other relevant bodies to budget as provided for in 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.

Mr. Deputy Speaker, Sir, thank you for the opportunity. I want to concur with the speakers who have spoken earlier in saying that this is a very important Bill. It is going to ultimately determine the survival of our counties and their governments in this particular financial year. Mr. Deputy Speaker, Sir, the county governments have very limited avenues of raising resources. Therefore, the bulk of the funding of the county governments comes from the national Budget. I want to believe that it is for this reason that the Senate was created; to ensure that these county governments get their equitable share of the national Budget as provided for in our Constitution. Article 6 of our Constitution is very explicit. It tells us of devolution and access to services. If I may quote, Article 6 says:-

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

What is your point of order?

Is the hon. Senator in order to say that NIS has failed us while he is here because of the eyes and ears which enable them to control whoever wants to hurt us here?

Order, Senators. First of all, I am not ruling on that point of order, I will let it pass. I want to bring to the attention of Senators that the Bill that is actually before the House, I know you can refer to the one brought earlier where you can make reference if you wish to, but the actual Bill that we are discussing and debating is the one that came with the message from the National 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.

On what, Sen. (Dr.) Khalwale?

Mr. Deputy Speaker, Sir, just some further clarification on what you have just ruled. If I understood the hon. Senator for Vihiga clearly, he was giving us a narrative as to why money which is now being locked in the national government could be unlocked and made available to the county governments. Therefore, when you tie us not to mention the money which is unfairly being locked at the national government---

Order, Sen. (Dr.) Khalwale! It means you did not listen to what I said. Indeed, the figure that Sen. Khaniri referred to, whether in the original Bill or in this one, is the same. I am not asking Sen. Khaniri not to mention or not to deal with the figures but I am just pointing out to him and to you, hon. Senators, that the Bill that is actually before the House is the one which came with the message from the National Assembly. I think you misconstrued me.

Mr. Deputy Speaker, Sir, Indeed, I want to confirm to you that the figure that I am mentioning is contained in the Bill that came from the National Assembly. In fact, it is not Kshs80 billion but Kshs83.5 billion. A whopping Kshs83.5 billion! With regard to the point of order raised by Sen. Haji, you will agree with me, it is a point of argument. I am expressing my opinion that for the national government with this kind of budget, it is incumbent upon the NIS to ensure that Kenyans get value for their money. We cannot be budgeting Kshs83.5 billion and yet NIS could not detect what happened in Tana River, Baragoi, Busia and Bungoma, just to cite but a few examples. Therefore, I am saying that this money could be utilized in a better way. We can cut on this Budget to ensure that we are adequately funding our county governments. I also want to comment on the Equalisation Fund. I know there is that provision of the Equalisation Fund for the marginalized counties but some of us are still questioning how the marginalized counties have been identified. We would like to know the criteria that was used to come up with the 14 counties which are going to benefit from the Kshs44 billion that was set aside as the Equalisation Fund. It has to be above board. Some of us come from counties that we feel are marginalized. We feel that we need to get a share of this particular resource but we do not appear anywhere near there. If anything, I would propose that this Fund be increased so that it can accommodate more counties than the 14 counties which they did this year. I want to agree with my colleagues who spoke earlier that, yes, the counties have not developed capacity in terms of capacity for budgeting, capacity to absorb even these resources that we are giving them, capacity to discharge their responsibilities and so forth. I want to propose that in the next financial year, it is important that we enhance the portion of the Budget that will go to the counties. At the Committee stage, I am going to be moving an amendment to increase this amount from Kshs220 billion that we have been allocated to Kshs248 billion, and I will give my justification for that. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Sen. Catherine Mukiite.

Mr. Deputy Speaker, Sir, I want to thank you that I have been able to catch your eye. I rise to support the Bill. Devolution is a new thing in our country and it is a test for the Jubilee Government, whether they are committed to it or not. The Bill which is before us is a major step by the Government in an effort to fund the county governments so that they can be functional. I will comment on the figures in the Bill. When you look at the Budget, you will realize that the figures are based on historical figures for 2011/2012. When we plan, we would like to know where we are coming from and these figures should have been made available to the Senators so that they can make good decisions. In the absence of these figures, we do not know where we are coming from or where we are going. The way I see it is that most counties will not be able to raise the 85 per cent. Why do I say so? It is because in the first place, Treasury is willing to give Kshs210 billion to fund the counties. This money is not sufficient. We have been given information in the Committee on Finance, Commerce and Economic Affairs that there will be some counties which will not be able to get the allocation. This means we are going to end up with a deficit. In our Constitution, it is very clear that it is the responsibility of the national government to make sure that counties are funded properly so that they can carry out the functions which they are meant to do. No county should be left to suffer because of policies or decisions made by the national government. In the papers which we were given today, there are counties being referred to as harmless. What the Committee decided this afternoon is that this amount being referred to as harmless or deficits in the Budget by certain counties should be taken over by the national government. So, part one and two of the Constitution talks about the functions of the national Government and the county government. When you look at the functions of the national Government, they have not let go some of their functions in view of the devolution. If you look at universities, for instance, the other day we sat here as Senators and passed a Motion 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. I also rise to support this Bill and to interrogate it further to say that I think this is what we were anticipating to get and we should be able to look at the two levels of government as proposed in the Constitution. The Fourth Schedule states that there exist two governments with distinct duties and roles. When you look at the way we are trying to bring up the costing of the items, what this Bill talks about is the cost of ongoing devolved functions. In education, we talk about primary schools, secondary schools, colleges and universities. All of them are being served from the national Government but the national Government does not own land in the air. When we talk about schools, for example, I would want to see a case where we have physical money which is going to infrastructure for schools or colleges. Literally, is it being shown in the national Government as such or is it being shown in the county government as such? For example, we say that the TSC has been given almost Kshs240 plus billions when we know that we have a shortage of almost 80,000 teachers. Have we costed out the function and would we know the number of resource persons missing in the teaching sector in the counties to the extent that we will be convinced that this Kshs143 billion is enough to solve the problems of teachers in every county? Mr. Deputy Speaker, Sir, in West Pokot County, we have a shortage of over 1,000 primary school teachers. I would want to know from this Budget, how many teachers will be employed in the next financial year so that the education level of our children in that county can be catered for. Secondly, what I discovered this morning when I went to look at the level of electrification in our county, I was told that electrification in West Pokot is 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.

The Bill says that it will use the Equalisation Fund to bring quality and not equity.

Mr. Deputy Speaker, Sir, it says that “the national government shall use the Equalisation Fund to provide only basic services including water, roads, health facilities, electricity to marginalised areas to the extent necessary to bring quality of those services in those areas to the level enjoyed by the rest of the nation as far as possible.” There are areas where there is no inch of piped water. We also have no roads that we can use. So, when we are talking about this, let us look at the services we have in this country and what is required. How many road networks are required in West Pokot County? List everything that is required in Nairobi, Marsabit and everywhere else and bring the list here. Do the same for electrification. We should count our problems and budget according to that without looking at the counties. If you find that the most required kilometres of road are in a certain county, we will not have marginalised anybody by looking at that area. So, I want us to look at the activities or functions rather than talk about who are not marginalised and so on. I know that if we are to talk about whether our roads are good or bad now, 50 years later, the roads will have been spoilt since the weather is not always very good. However, you will have enjoyed certain quality of life before the roads are spoilt. We should look at the functions and the The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Thank you Mr. Deputy Speaker, Sir. I support this Motion fully and congratulate the Government for going beyond the 15 per cent as it is required. The allocation has been raised up to 32 per cent. I think this is a good start although I would wish that it was increased. My friend, Sen. Murkomen, hinted that this is a credit to the Jubilee Government because it goes with the manifesto of the Jubilee Government. I want to remind my friend that, in fact, it is the policy of the CORD Government in waiting.

On a point of order, Mr. Deputy Speaker, Sir. Is it in order for the Senator for Kitui to insinuate that there are two governments in this country, a Jubilee Government and a CORD Government? There is only one Government.

If Senator Musila suggested that there are two Governments, then that is out of order.

Mr. Deputy Speaker, Sir, the HANSARD will bear me witness. I said; “in waiting” and, indeed, we are waiting. I just want to emphasise a point that the issue of devolution has been given more weight by CORD and even the Jubilee Government. Therefore, that is why I commend the Government for exceeding 15 per cent to 32 per cent. As I said, I want this to be more. Possibly, when we go to the Committee of the Whole, we will make recommendations to ensure that this amount is increased. 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, Madam Temporary Speaker. There is no quorum.

Serjeant-at-Arms, can you confirm that?

Hon. Senators, I have confirmed that there is no quorum. So, I order the Serjeant-at-Arms to ring the Division Bell.

Hon. Senators, we now have a quorum and can proceed.

Thank you, Madam Temporary Speaker. I was talking about the Equalization Fund and pleading that when the Committee on Devolution and Committee on Finance, Commerce and Economic Affairs sit finally, as directed by the Speaker, I hope that they will look at the criteria which has been shown, which identifies actually 20 counties which are marginalized. But because the Chair says that the funds are less, he has to cut them to 14. If that is allowed to happen, it will mean that counties like Bomet, Baringo, Kitui, Homa Bay and others which have already been identified as marginalized will be marginalized further for another 20 years, because they will miss out on this Fund. So, I am appealing that even as we wait for the report of the joint Committees, we should kindly look at the counties that have been left out after being identified as marginalized in accordance with Article 204 of the Constitution. Madam Temporary Speaker, I want to end by saying that it is so important that we be transparent and approach these issues in a bipartisan manner. Where funds are to be given to a county, we want it to be clearly shown which county it is, what services and how much money. But preferably, this Senate should insist that the national Government takes over this responsibility and the total amount of money that is to be shared among counties is shared without deducting other funds, particularly what they are calling conditional allocation. Madam Temporary Speaker, with those remarks, I beg to support.

Madam Temporary Speaker, I also stand to support the Bill. Madam Temporary Speaker, I would like to start by also thanking the Jubilee Government – our Government. Indeed, we have started on a good slate and I believe that it is because the President is committed to the principle of devolution. But I know also that when you look at the Treasury, we still have those who believe in the central Government. Therefore, we will always have challenges that come in, as much as we would wish to move on the right slate. Madam Temporary Speaker, I concur with, the Senator for Kisumu, Prof. Anyang’-Nyong’o. Indeed, when you look at Article 187, that should be our base of fighting for more resources to the county governments. Article 187 (2)(a) is very clear that when you devolve a function, you must ensure that arrangements are put in place, to ensure that the resources necessary for the performance of the function or exercise of the The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

By the Jubilee!

I will not say that it is Jubilee, but there are those technocrats who think that women have no value in this country, yet we pay tax. Madam Temporary Speaker, indeed, I am pleading with the President that as much as we are pushing for the Kshs238 billion, we have to look at what has been devolved to the counties that will serve the women also in those counties. As we push, I would urge the whole House to interrogate the expenditures of each line Ministry. When you look at some Ministries, you will find that in the next financial year, instead of the funds going down, they are still going up, yet we are saying that we are devolving power to the devolved governments. I think that it is an insult also in the eyes of Kenyans who believe in the same. Madam Temporary Speaker, about the Constituencies Development Fund (CDF), I think that it is time that the Senate should fight for the women in Parliament to also get CDF. I do not think that it is fair for the Members of Parliament who were elected in single constituencies to say that CDF is only for them, yet in the whole House, the women representatives are part and parcel of the business of Parliament. Therefore, if we are talking of Members of Parliament, women are also part of them. Therefore they should be given CDF money as any other Member of Parliament in that House. They were not nominated but elected. I support fully their fight to get something to make them visible within their counties. Madam Temporary Speaker, I want to look at the education sector. There is one important sector that we have always forgotten in this country and yet, it is the foundation of a child as she grows up to become a Kenyan who will be of service to this country. When you look at the early childhood education that has now been devolved to the county governments, it is important to devolve the function, but also give powers and 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.

Madam Temporary Speaker, Sir, I want to start by saying that I agree with those who have contributed before me. I just want to look at the Constitution and see what it tells me when it comes to the issue of allocation of funds. Article 96(3) says that the Senate determines the allocation of national revenue among counties as provided for in Article 217 and exercises oversight over national revenue allocated to the county governments. I just want to contain myself within this Article. The shareable total revenue in our country is Kshs920.4 billion. Out of this, what was proposed was Kshs154.8 billion. Then after pulling strings with a lot of pain, it was brought to Kshs190 billion. Looking at the allocation itself, it was supposed to be Kshs198.7 billion. Those who have spoken in support of the Government have indicated that the allocation is Kshs210 billion. That is not true. It is Kshs190 billion. Kshs20 billion are conditional funds that will remain with the Government. Madam Temporary Speaker, we must be law abiding citizens no matter what position we hold in this country. The Commission on Revenue Allocation was put in place within the laws of this country but the same commission is spending public funds to come up with Kshs238 billion. How it was sliced to Kshs190 billion nobody can tell. Any Government in the world that would want to be seen leading its citizens properly will consider and think about what the Government gives its citizens. So, when we went to the devolved system of government, every Kenyan believed that there will be equality. But if we have to go with Kshs190 billion, I want to assure you that 50 per cent of the counties will get less than what they have been expecting to get. Madam Temporary Speaker, the Jubilee Government is an amazing government. It is being indicated that Kshs317.2 billion of the Equalisation Fund has been allocated to 14 “marginalized counties” but they are not known. They have never been mentioned here. We are not being told if the 14 counties are Turkana or Lamu. It is blindly within the cover of a curtain. I think the Kshs317.2 billion Equalisation Fund has also been diverted to energy. Again, it is to the most marginalized counties which are 14 but they have never been mentioned. For the last 50 years of our Independence, what has killed The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Hon. Senators, it is now 6.00 p.m. and I have to interrupt debate to allow Sen. Hassan under Standing Order No.42(2) to make a Statement of topical concern on Mariakani Weighbridge. Sen. Hassan, you have five minutes after which we shall resume debate.

Madam Temporary Speaker, thank you for granting my request. When I made this request this afternoon to the Speaker, I had been reliably informed that The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

We now resume debate on the Motion on the Floor of the House.

Thank you, Madam Temporary Speaker, for giving me this opportunity so that I can also make my contribution on the Motion before the House. I rise to support this Motion. As I support it, first of all, I would like to thank the Jubilee Government for implementing CORD’s very big vision of ensuring that devolution becomes a reality. I say this with a lot of passion because devolution has been a baby that has been supported by many people in this country who wanted to see a reality of taking facilities to where they belong; that is to our people at the grassroots. As I look at this Budget in terms of the division of revenue, the amount that has been given is not sufficient. I want to join my colleagues who said that this amount should actually be raised. I have heard that there is a proposal to raise it to 40 per cent in the next five years. The real funds are not needed at the Central Government but where they belong; the grassroots. I feel that the Division of Revenue Bill as was presented by the Commission should have been accepted and we raise that figure rather than bringing it down. Madam Temporary Speaker, as you are aware, in terms of infrastructure in the counties, it is really in a deplorable state. Many of our counties do not have the requisite infrastructure. There are no roads and other facilities including even the seconded civil servants who have been taken there to take office. Because of this, there is a real genuine need to jumpstart these counties so that they can start offering the very services that they should have already started offering. In terms of the division of revenue, I hope that when these counties settle down and get the necessary revenue, they shall be able to establish programmes that will be able to cater for women and youth. I hope there will be a fund for women and another fund for the youth. That can be able to take care of the needs of these very important constituencies. I will be tabling a Motion here for that fund to be established in the counties. Finally, as I look at this Division of Revenue Bill, I am looking at the provision to the Police Services. It has been put under the national interest Vote. Police services are really community based services and I do not see the need to put them under the national interest Vote. Instead it should be put under county interest, because as you are aware, there is high insecurity in the country as we speak simply because there is a lot of confusion in the counties where we do not know who is in charge; whether it is the Governor or the County Commissioner. Because of this state of insecurity, we do not know which hand is doing what in terms of security. Things are just flying haywire. I, therefore, feel that, that budget for the Police Service should go to the county and not to the national interest. 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. Ndiema.

Thank you, Madam Temporary Speaker. I stand to support this Motion, which is an important Motion which will ensure that devolution takes effect. The amount of money that will be allocated to the counties is really what will determine whether devolution will succeed or not. Looking at the functions that have been devolved, I see that it is quite substantive in accordance with the Constitution, and this is quite in order. Madam Temporary Speaker, it has been mentioned here, that the Government’s wish is to gradually increase the allocation up to 40 per cent of the revenue, but you cannot do that if you have already devolved the functions up to 100 per cent. Actually, the increase should automatically be to 40 per cent in order to match with the functions which have been devolved. You cannot talk of gradually increasing the allocation while you have devolved all the functions. Madam Temporary Speaker, when you look at the functions that have been devolved, these are the ones which have a lot of impact on the productive capacity of this country. We are talking about agriculture, fisheries; we are also talking about the areas that are of major concern in terms of welfare, health and so forth. So, these are really important and as we devolve funds to the counties, it should not be seen as a measure of generosity – that the national Government is doing the counties a favour – it is a right; it is in the Constitution and it is going to very important areas of concern and of production. If we invest in counties, we are sure we are investing the proper way because that is where even the national revenue is being raised. It is in the counties where we collect taxes; it is in the counties that the level of our Gross Domestic Product (GDP) will be determined, not at the headquarters. Madam Temporary Speaker, when we look at how revenue has been proposed to be divided, we really do not have a basis on which we can judge the functions. The functions have not been costed and itemized properly and it is likely that a lot of money has remained in the Ministries; monies that were supposed to be devolved. It would appear that the Ministries have been given discretion to devolve whatever funds they want to devolve and retain others. If you look at agriculture, for instance, the funds that are likely to be available to the Ministry of Agriculture, Livestock and Fisheries in all counties are much less than what still is being retained in the Ministry headquarters at the national level. Why is that so, when all functions of the Ministry of Agriculture, Livestock and Fisheries have been devolved? If you look at the Ministry concerned with devolved governments, you will still find that it is holding some funds to the level of Kshs68 billion while the counties do not have anything. A function like Children Services and child care is a function that is being devolved, but I have seen some estimates where you still find Children Services being given Kshs7 billion at the national level in the Ministry of Devolution and Planning, which is concerned with county governments. Surely, this is money that should already have been devolved. Madam Temporary Speaker, there is also the issue of borrowing, and this is an area that really needs to be looked at critically. Governments borrow for certain functions or reasons; sometimes it is the issue of cash flow – you do not have the money immediately to pay salaries – so, you get Treasury Bills, float them and you get the The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Sen. Mositet.

Thank you, Madam Temporary Speaker, for granting me this opportunity. This Motion is quite important to us because actually the creation of the Senate was purely because of the devolved systems. I am very sure many institutions are fighting to be seen to be working so that, at least, the mwananchi on the ground can really feel that the results of devolution are going to be felt. I thank my fellow Senators because of the way we are working in this House and even in the Committees; we are really working to make sure that, at least, devolution is realized. Madam Temporary Speaker, the Bill which actually came to our House is a great success to wananchi who voted for the new Constitution, which actually has allowed even this Senate to function and, specifically, to the Jubilee Government, which has really come in to implement its manifesto. Madam Temporary Speaker, we know that the threshold is about 15 per cent, and we can see that the Jubilee Government is really generous because it has come up with 32 per cent right from the start. We know very well that even on the ground, we may not have sufficient structures to help in the implementation or even to make sure that the funds which go there are well utilized or they have planned well for them. But despite all that, at least the first impression we are getting is that we are getting some good funds. But all said and done, it is quite good if all of us can focus to make sure that the structures which are going to allow capacity building at our counties are really put in place so that by the end of maybe two or three years or by the time that the transitional period ends, which has been set in our Constitution, we make sure that all the devolved functions have been achieved and, at least, that capacity has been achieved on the ground in all counties. Let me just note that in my county, I know and I believe also that in other counties, the capacity which is there is still low, but I believe we are still building it. Still on that, I know we have a body we are calling the Transition Authority (TA) which is mandated to make sure that the functions are well devolved down there, including the funding. When we talk, particularly of infrastructure, to make sure that when this budget goes through, the infrastructure has been put in place, the TA went round to make sure that, at least, they have done some needs assessment in every county, and they were allocated some funds. But at the Committee on Finance, Commerce and Economic 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, Madam Temporary Speaker. From the outset, I rise to support the Bill. The responsibility of this House is to protect and to serve the interest of The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Hon. Senators, it is now 6.30 p.m., and the Senate stands adjourned until tomorrow, Wednesday 22nd May, 2013, at 9.00 a.m. Sen. Sang, you still have 25 minutes if you still wish to continue tomorrow. The Senate 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.