Order, hon. Senators! We need to determine if we have a quorum.

Mr. Speaker, Sir, we have 37 hon. Senators in the House. We have a quorum.

In that case, let us commence business.

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I beg to give notice of the following Motion:- THAT, pursuant to the provisions of Standing Order No.175(3), the Senate approves the nomination by the Rules and Business Committee of Sen. Kennedy Mong’are Okong’o to replace Sen. Janet Ong’era in the Standing Committee on Agriculture, Land and Natural Resources. RELEASE OF FUNDS TO POLITICAL PARTIES

Mr. Speaker, Sir, I beg to give notice of the following Motion- 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.

Next Order.

Yes, Senate Majority Leader.

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, the Motion, whose notice I have just given, is listed on the Order Paper. That is why I am standing up.

That is correct. Proceed. APPROVAL OF SENATOR TO MEMBERSHIP OF SENATE COMMITTEE

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I beg to move the following Motion:- THAT, pursuant to the provisions of Standing Order No.175(3), the Senate approves the nomination by the Rules and Business Committee of Sen. Kennedy Mong’are Okong’o to replace Sen. Janet Ong’era in the Standing Committee on Agriculture, Land and Natural Resources. Mr. Speaker, Sir, from time to time, the House and political parties are entitled to re-look at the workload and responsibilities that every hon. Senator has. It is on that context that the request of the Minority to have this adjustment was granted by the Rules and Business Committee. This is a straight forward matter. It involves replacing Sen. Ong’era, who is the Minority Deputy Chief Whip with an hon. Senator from the same side. So, I do not see a big issue. But, of course, it is up to the hon. Senators in this House to approve the proposal which has been forwarded to the House by the Rules and Business Committee. Mr. Speaker, Sir, with those remarks, I beg to move this Motion and request Sen. Muthama to second.

Bw. Spika, nasimama kuunga Hoja hii mkono. Mabadiliko kama haya ni ya maana sana. Kazi itafanyika kwa urahisi. Pia itawezesha Maseneta kuwa na nafasi ya kufanya kazi ya Bunge hii inavyofaa. Bw. Spika, bila kupoteza wakati, naunga Hoja hii mkono.

Mr. Speaker, Sir, I rise to support this move. I urge my colleagues to do the same. In supporting the Motion, I want to take this opportunity to thank Sen. Ong’era for her magnanimity. I am the Vice-Chair of the Committee that she is leaving. I thank her for giving Sen. Okong’o a chance in the spirit of having all hon. Senators participate in committee business. I also want to take this opportunity to urge the Senate Majority Leader to reconsider the case of my friend, the Senator for Kakamega County, Sen.(Dr.) Khalwale. He was dropped from the committees that he was serving. We know him as a very energetic and informed hon. Senator. I want to plead that what Sen. Ong’era has done The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

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

What is it, Sen. (Dr.) Machage?

Mr. Speaker, Sir, this list that is being passed around the House for us to sign is out of order. I find it unfair and unorthodox as parliamentary history dictates. We have always had this done silently by the Serjent-at-Arms as we enter. Now it is here, we are signing it like “small” students. Is this in order?

Why? What is happening?

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

What is it, Sen. (Dr.) Khalwale?

Mr. Speaker, Sir, in fact, the issue being raised by Sen. (Dr.) Machage is very sensitive. We are told that in the morning, when the House was unable to realise a quorum, such a document was circulated, that hon. Senators sign. Under which Standing Order was that made? This Assembly has employed members of staff who clock us in and out. What has become of that responsibility? If there was such a change, why was it not communicated to us formally?

Sen. (Dr.) Machage and Sen. (Dr.) Khalwale, you are raising in-house issues. Since this time should be used in a better way, that is a matter that I will deal with in my Chambers. Thank you for bringing it to my attention. Let us proceed with the business on the Order Paper. I now wish to put the question to the Motion as moved by Sen. (Prof.) Kindiki. Of course, this is not a matter affecting counties. It is only affecting the Senate. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Order, hon. Senators. This Motion had been concluded. We just deferred voting to today. I order that the Division Bell be rung. Could we have the names of the tellers?

Sen. Abdirahman, Wajir County; Sen. Anyang’-Nyong’o, Kisumu County; Sen. Billow, Mandera County; Sen. Bule, Tana River County; Sen. Haji, Garissa County, Sen. Hargura, Marsabit County, Sen. Kajwang, Homa Bay County; Sen. Karaba, Kirinyaga County; Sen. G. G. Kariuki, Laikipia County; Sen. Kipchumba, Baringo County; Sen. Kembi-Gitura, Murang’a County; Sen. (Dr.) Khalwale, Kakamega County; Sen. Khaniri, Vihiga County; Sen. (Prof) Kindiki, Tharaka-Nithi County; Sen. Kivuti, Embu County; Sen. (Dr.) Kuti, Isiolo County; Sen.(Prof.) Lesan, Bomet County; Sen. Lesuuda, Samburu County; Sen.(Prof.) Lonyangapuo, West Pokot County; Sen. (Dr.) Machage, Migori County; Sen. Melly, Uasin Gishu County; Sen. Mositet, Kajiado County; Sen. Mungai, Nakuru County; Sen. (Eng.) Muriuki, Nyandarua County; Sen. Murkomen, Elgeyo-Marakwet County, Sen. Musila, Kitui County; Sen. Kagwe, Nyeri County; Sen. Muthama, Machakos County; Sen. Ndiema, Trans Nzoia County; Sen. Ntutu, Narok County; Sen. Obure, Kisii County; Sen. Okong’o, Nyamira County; Sen. Orengo, Siaya County; Sen. Sang, Nandi County; Sen. Wako, Busia County; and Sen. Wamatangi, Kiambu County

Sen. Bule

Sen. (Dr.) Zani.

Hon. Senators, I wish to announce the results as follows.

(Prof.) Kindiki: Thank you, Mr. Speaker, Sir. I beg to move that the County Allocation of Revenue Bill (Senate Bill No.1 of 2013) be read a second time. The County Allocation of Revenue Bill of 2013 is the one that deals with the horizontal division of revenue among the counties. The brief history of this Bill is within the full knowledge of Members of this House. As Members know, the Senate of Kenya is in court concerning the predecessor Bill or the progenitor Bill which is the Division of Revenue Bill which is now an Act of Parliament. As I move this Bill, I am and the House is, fully aware of the delicate balance that the Senate, through the Rules and Business Committee and the leadership of the Senate, 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. The Senate Majority Leader has repeatedly said that the Division of Revenue Bill is now an Act of Parliament. It is true that it is an Act of Parliament. I agree with him. If he believes in that, why has he come to the House with a theoretical suggestion instead of moving in line with that Act which provides that the money we will be sharing will be Kshs210 billion? Since members of the public may not be following this “financial English”, let me put it in an African English Language. If a father in the African sense negotiates for dowry for his daughter, then he dies before it is paid, when this dowry is eventually paid, what the sons share amongst themselves is not what the father agreed upon with the in-laws but what the in-laws brought. So, under the Act, the in-law has brought Kshs210 billion. Why are you limiting us to Kshs198 billion? Is this a scheme by the clever mathematicians of Jubilee Government towards the game of denying counties revenue?

(Sen. (Prof.) Kindiki): Thank Mr. Speaker, Sir. At the time when this Bill was published, the amount in question was Kshs198 billion. Members will recall that even the Kshs20 billion was a negotiated settlement. These figures have kept on changing since this Bill was first published. In any case, the Kshs210 billion is not something that can be varied. As I have said, it is the law and is what has been passed. I do not see how this is a theoretical Bill. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

On a point of order, Mr. Speaker, Sir. I am happy with what the Senate Majority Leader has said. However, for purposes of record so that he does not visit too many clever ideas on us, could he conceive on record that when we go to the Committee Stage, he will be moving away from Kshs198 billion to Kshs210 billion so that we sit on our computers and find out what the entitlement is for our respective counties? Could he make that undertaking?

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I am duty bound, because that is the law, to ensure that the necessary amendments are done. The correct figure is about Kshs198 billion plus Kshs20 billion which are conditional grants to the best of my recollection. However, in terms of making sure that whatever the law has provided for is what we are talking about, those are issues that we have no choice but to make sure that we comply with the actual figure. The challenge, as I have said, for this Senate is that as much as it is a bit difficult to come to terms with the reality that we have to wait a little longer to know whether our position is the one that carries the day or not, we have to continue to apply the law as it is. It is in that context I appeal to hon. Senators to debate this Bill and pass it notwithstanding, perhaps, the expectations that our position may be the one that the courts uphold. It is only that way that this House can demonstrate that we believe in the rule of law and that we are bound by the law as it is unless it is varied. Otherwise, if we keep on frustrating or impeding the legislative process because we expect certain findings, that will be not only speculative but will also undermine our position as an institution that believes in the rule of law and which is bound by the decisions and positions that are lawful in nature. As a Senate, we should proceed expeditiously to debate and pass this Bill because counties, up to now, are complaining. Since a week ago, Members may have noticed that there is impatience coming from our counties. Certain functions have been devolved to county governments, according to the Constitution. They have salaries to pay and programmes to run. What I picked from the media last week is that there are a few people who are saying it is because the Senate has failed to pass the County Allocation of Revenue Bill that things are not moving. We should come out clearly in this matter, in terms of our position in supporting devolution, and in saying that if this is the law, we should comply with it. If the Division of Revenue Act is invalidated, I am sure that will have consequences on this Act as well. Those are issues we can deal with when and if they happen. Even if we are aware that the courts will grant us our prayers; however, we do not know that because it can go either way.

On a point of order, Mr. Speaker, Sir. As you may notice, the Senate Majority Leader has either intentionally or otherwise refused to refer to the figure of the money that is documented on the Bill that he is moving. Is he in order 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.

Order, Sen.(Dr.) Machage! Sen.(Dr.) Khalwale challenged the Senate Majority Leader on that matter and I think that he explained himself. He has continued explaining why he has approached it in that particular manner. Unless, he has concluded, then you can say that the total submissions have not reflected the kind of concerns that you are raising. Proceed, Senate Majority Leader.

(Sen. (Prof.) Kindiki): Thank you, Mr. Speaker, Sir. As I have said, the figure is Kshs190 billion, plus Kshs20 billion in form of conditional grants, under Article 202 of the Constitution. That figure is in the public knowledge. It is part of the Division of Revenue Act, 2013. So, I do not think that there is any room for mischief by or from anybody. In any case, the particular issue of the figure appearing in this version of the Bill can be handled through an amendment. I think that anybody, including my brother, Sen.(Dr.) Machage, can bring an amendment at an appropriate stage---

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

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I accept to be informed by Sen. Billow.

Senate Majority Leader, before I give Sen. Billow the opportunity to inform you, I think that you are contradicting yourself. Dr. Boni persistently, on two occasions, rose on points of order to challenge you, and so, the burden is placed on your shoulders. Now you are transferring the burden to Sen.(Dr.) Machage. If you transfer it to Sen.(Dr.) Machage, then I will have to withdraw the defence that I gave you. Yes, Sen. Billow!

Mr. Speaker, Sir, I would like to inform the Senate Majority Leader that he is moving this Bill with the figures as they are. Whatever amendments that will bring the figures to the Act that was passed, that is, the Division of Revenue Act, 2013, will be done at the Committee stage. I think that is what will happen. We will, at the Committee stage, bring amendments that will bring the figure in line with the Kshs210 billion that was in the Act.

On a point of order, Mr. Speaker, Sir. This is the mother of the Bills. If what the Chair of the Committee on Finance, Commerce and Economic Affairs is saying is going to take place, then for purposes of this House and the general public, especially the people in the counties, it would be nice if the Committee could go out of the way to bring a new matrix, as it will appear if the figure was Kshs210 billion and another matrix as it would appear if the figure was Kshs258 billion. Since we do not know which way the Supreme Court will rule, should it rule in favour of Kshs210 billion, then it will be clear to the leadership in the county governments what it is that they are The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

On a point of order, Mr. Speaker, Sir. I just want to clarify to the Senator for Kakamega that procedurally, in accordance with our Standing Orders, we can only move the Bill that was published, which is being moved by the Senate Majority Leader but whatever amendments, including the matrix, will be tabled in accordance with the procedures at the Committee stage. It cannot be done in the Second Reading. I think that is procedural and we will explain as we go forward.

(Sen. (Prof.) Kindiki): Thank you, Mr. Speaker, Sir. While the concerns raised by Sen.(Dr.) Khalwale and Sen. (Dr.)Machage are valid, I think that they have been ring-fenced against any mischief. At the Committee Stage, the figures will be done accordingly. What I do not understand – and I stand to be guided – is that I did not hear Sen.(Dr.) Khalwale say that we will pass the Bill in terms of scenarios and say: “If the court rules this way or that way.” That is scenario building, which is an academic exercise. Mr. Speaker, Sir, I beg that we move with the law as it is. If in future there is a different position that will affect the Division of Revenue Act in terms of figures, then that will be addressed at that stage. In any case, my own understanding of the position that the hon. Senators took on this matter, was more futuristic and long-term than just achieving a figure for this year. We were trying to say that in the future---

Present!

(Sen. (Prof.) Kindiki): Present, but also with an eye on the future, because you can win a battle this year and lose it forever. So, we are rather winning the long-term battle of saying, one, that this is the role of the Senate and when the Senate says something about this Bill, this is what happens. That is the way I understand it – I could be wrong.

What is the position of the Leader?

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, the position of the Leader is as I have said; that I believe that we should proceed with the Bill, with Kshs210 billion in mind, because that is the law at the moment. You cannot create your own law, because you expect the court to give you some ruling. Mr. Speaker, Sir, other than that contentious aspect of the figure, I think---

Order, Sen.(Prof.) Kindiki! You may resume your seat. I want to agree with the Senate Majority Leader, just to clarify in the minds of other Senators who are still grappling with which is which. When we did the First Reading of this Bill, which was on 2nd July, I made a Communication, in order to explain all the issues. That Communication was also as a result of a point of order raised by Sen. (Dr.) Khalwale, on Thursday 27th June. If you can refer to that Communication, then you will be guided accordingly. I think that what the Senate Majority Leader needs just to clarify is the procedure that was clarified by the Chair of the Committee on Finance, Commerce and Economic Affairs and then, in terms The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

On a point of order, Mr. Speaker, Sir. I quite agree with you. I wonder whether the Senate Majority Leader was helping us, because what I understand to be in the court process is not about figures, but the process. But right now we are concerned about figures. So, if in this financial year we are not able to take as much as possible to the counties, we will not have played our role effectively. So, it would help if, as you said, the Senate Majority Leader owned whatever is being propagated by the relevant Committee. This is because we have seen before that without commitment of the leader, when the matter comes to the Committee, things may take quite a different turn. But if on the Floor of the House he can give us the assurance that, that is the position of the leader and, therefore, the Government, then we can take whatever is being done by Sen. Billow and his Committee, as concrete. Otherwise, if he is talking about the future, whereas we are worried about figures now, then I get really worried. This is because we can never tell what is coming in the future.

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I will be happy to introduce the amendments as appropriate, but going by the tradition, which has been set by this House in the last few weeks, especially last week when I lost a battle on a different issue, I think that it is only appropriate that the amendments come through the Committee, unless there is any particular reason on this one, we cannot trust the Committees to deliver. It should not be for the Senate Majority Leader to sponsor this amendment, but, definitely, the Government fully supports its own commitments. There is no doubt about that. In any case, the Government is bound to respect the law. So, I do not think that there is the issue of choices or magnanimity here. The Government has to comply with the law as it is and I am willing to bring the amendment. But given the traditions and the way I have seen this House working towards strong Committees which are in charge of their dockets, it is only proper that Sen. Billow’s Committee be the one to sponsor these amendments and defend them but you can give direction. We do not want to appear as if we are lazy. We want to do our job.

Order! Order! I think that what Sen. Orengo wanted was for you to give him and the rest of the Senators comfort; that, first, you are committed to it. I agree with you that in any case, as the Senate Majority Leader, you are in charge of the business, including constituting those Committees. So, for you to confirm to the House that the Committee on Finance, Commerce and Economic Affairs will do it, is good enough. They just wanted that assurance that you read from the same page. On that basis, we will proceed along the lines that you have suggested. The only qualification is that when you start talking about the Government, I wonder whether you are introducing the debate that we had last week. I think that we agreed that those were temporary measures and we will make a definite ruling. You will not just be courting 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 confirm to Sen. Orengo and the House that I fully take responsibility to support this position and will ensure that, that is the position that will be taken. We will consult with my colleague, the Chair of Committee on Finance, Commerce and Economic Affairs and the entire Committee. I will take responsibility. Mr. Speaker, Sir, other than the contentious issue about figures, this Bill has been prepared in accordance with the procedures and parameters which are set out in the Constitution, which are:- 1. Provisions of Article 203 of the Constitution. 2. Revenue allocation criteria approved by Parliament. 3. Cost of running county governments structure. 4. Costing of the ongoing devolved functions. 5. Need to hold harmless the county governments and, therefore, minimize the risks of service disruption. Mr. Speaker, Sir, let me explain in a very general and brief sense, before I rest my case. First and foremost, the horizontal allocation of revenue must satisfy – and it has satisfied – the principles of Article 203. Article 203 of the Constitution sets out the principles that the financial system must satisfy. So, that has been taken care of. And then there is the criteria which was approved by the National Assembly at that time when it was sitting as both the National Assembly and the Senate. Mr. Speaker, Sir, maybe this is the right time for the Senate to decide whether we will have to relook at that criteria again, because the application of this criteria – which was suggested by the Commission for Revenue Allocation (CRA) and approved by the National Assembly, which was also doubling as the Senate before January this year – that criteria has had its own challenges. Some schools of thought believe that, that criteria could end up marginalizing already marginalized counties even further. The Constitution says that every five years, this formula shall be reviewed. So, there is an opportunity to look at the current formula so that by 2017, we see whether or not we need to introduce other parameters and other considerations. Because the whole essence of both the vertical and horizontal allocation of resources to counties and among counties is equity, and that brings me to the second point; that this Bill and the allocation of the sharable revenue has taken into consideration, in line with the formula, disparities among counties as well as disadvantaged areas and groups within counties.

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

What is it, Sen. Ong’era? 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 sorry, Mr. Speaker, Sir, for interrupting. But I note with a lot of sadness that we have a person with disability here, Sen. Linet, and she cannot read and follow these proceedings because she has not been provided with this Bill in Braille.

I feel very sad, Mr. Speaker, Sir, that she cannot even read the Order Paper for all this time that we have been in this House.

Shame! Shame!

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

What is it, Sen. (Dr.) Kuti?

Mr. Speaker, Sir, being a doctor and also the Chair of the Committee that Sen. Linet sits in, we have brought this matter up in almost every meeting that we attend and promises have been made which have not been met. I think we need to have a conclusion on the matter that has just been raised. Thank you.

Order, Senators! First, I want to thank the two Senators for bringing this matter to the House. It is an area of grave concern. What I will just be asking from the Senators is a bit of patience. As you are saying, the secretariat is working on it and in the meantime, we have provided assistance of these persons to assist the Senator. But I also want to order the secretariat to make sure that they expedite the services in order to help these Senators to follow the proceedings more effectively. Thank you.

(Sen. (Prof.) Kindiki): So, Mr. Speaker, Sir, I was talking about economic disparities among counties and I was saying that this Bill, in line with the formula which was approved by Parliament, has taken care of the economic disparities among our counties; although I believe that, that formula should be relooked at in future by this House. Mr. Speaker, Sir, the other issue about disparities and inequities is that, over and above the figures here, there is an additional Kshs4.3 billion, which is part of the Equalisation Fund; although I also think that this figure is extremely small. Since the Constitution only talks about “at least 0.5 per cent of the national revenue---”

Mr. Speaker, Sir, I think the levels of concentration are extremely weak. If you could, kindly--- The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Order, Senators! This is a very, very important Bill and I---

(Sen. (Prof.) Kindiki): Precisely! And I know some of the---

Order, Senate Majority Leader!

You called for the Speaker’s support and then you want to proceed with it!

Order, Senators! This is a very, very important Bill; it is about monies to the counties, and I think it is important that the Mover of the Bill is actually given adequate attention and time to proceed with it and to raise all the pertinent issues. You may wish to challenge some of the issues during your contributions, but I think for now, let us listen to the Senate Majority Leader.

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I want to expedite my remarks. Thank you very much, Mr. Speaker, Sir, and I am sorry for trying to usurp the revered role of the Speaker. There is nothing like de facto Speaker; but I think for the Prime Minister, I still retain that title; that one exists!

Mr. Speaker, Sir, the issue of disparities is so critical because, actually, that is the- --

Take your time, Senate Majority Leader; do not be in a hurry.

(Sen. (Prof.) Kindiki): Thank you, Mr. Speaker, Sir. If I were asked the one single reason why this Senate exists and for what purpose, it is to create a balanced and equitable development in our country; period! So, as much as I know there are other issues that, perhaps, you may be interested in and we are asking why we are not involved in, if we discharge this mandate of equalisation of our country in the next so many years, we would be national heroes. You would not even require scavenging for attention from anybody. So, we should be passionate enough that we have a sacred and important duty to ensure that our country enjoys equitable development. One way through this Bill, as I have said, is relooking at that formula in future to see to what extent it promotes equalisation. Secondly, it is to relook and even engage other stakeholders in the whole issue of the Equalisation Fund, because over and above this revenue, there is Kshs4.3 billion The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Order, Sen. (Prof.) Kindiki! We know you are the Senate Majority Leader representing the majority party forming the Government. Proceed; you can actually talk about Government policies. I think the difficulty in the House was whether you can be the de facto Prime Minister; that was the only question.

(Sen. (Prof.) Kindiki): Thank you, Mr. Speaker, Sir, for that assurance and even the question – I hope it is subject to reconsideration in future – nothing is permanent. The Chair is encouraged, in the spirit of building traditions for this House, to relook at that issue at an appropriate point at his discretion. Mr. Speaker, Sir, other than that, the other issue that I think, as a House, we need to note is that, in preparing this Bill, there has been regard to the whole issue of ring fencing any shortfalls in the expected revenue because there is a possibility that the expected revenue may not be realized. I think this Bill has been brought in the understanding – and I think there is a relevant provision there that talks about ring fencing – that any shortfalls which may come will be absorbed by the national Government. So, I think counties can be sure that, at least for now provisionally – if I may say so – the Kshs210 billion which is being shared is assured; that is the meaning of ring fencing. So, it does not matter what the revenue inflows look like, the national Government absorbs any shortfalls in revenues as is expected under the Constitution and under the law. Mr. Speaker, Sir, the other thing which has been put into consideration is the issue of fiscal capacity and efficiency of our counties, and I know this is a matter of great concern. As much as the counties are unable to do some of the things that are expected of them, one of the issues that need to be tackled, not necessarily in this Bill but going forward through legislation and policy, is that we must address the issue of the capacities of our counties and their efficiency to deliver services. That is why if you look at the Constitution, it says that the national Government, when requested, must or shall enable counties build relevant capacities. These capacities are not just in form of human resources, et cetera . They are also in the form of fiscal capacities or capacity to generate and use public money well. At the moment, the issue of how much money a county can generate is not very clear because of the absence of data---

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

What is it, Sen. (Dr.) Khalwale? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Speaker, Sir, Prof. Kindiki has correctly said that, as provided for in the Constitution, the national Government will wait for the county governments to request for the functions that they would like to be devolved to them. Could the Professor also confirm that he is, therefore, annulling the directive that was given by the President during the meeting of the Summit with the Governors that he was now handing over all the devolved functions to the county governments? Are you now recalling that decision by the President? If you are doing so, we want to congratulate you!

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

Order! The point of order was directed to the Senate Majority Leader.

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, before the Senator informs me, I have not said – for the sake of the record – that the Government or anybody is reconsidering the devolution of functions. All that I have said is that the Constitution talks about the obligation – it is even a duty – for the national Government to build the capacity of counties to discharge their constitutional functions. But that has to be done upon request because of the inter-governmental nature; the national Government cannot just say “we think you are wrong here, let us help you this way.” They must engage by--- For your information, Sen. (Dr.) Khalwale, the President did not--- Mr. Speaker, Sir, the supplementary matter which has come from Sen. (Dr.) Khalwale is that, he is asking me whether the President---

It is procedural!

(Sen. (Prof.) Kindiki): It is unprocedural because it did not come through the Chair.

You are supposed to ignore any matter not coming through the Chair, Sen. (Prof.) Kindiki. How come you seem to be pursuing those matters?

Also, Senate Majority Leader, you can only talk to whomever through the Chair. So, do not look at Sen. (Dr.) Khalwale.

With angry eyes!

(Sen. (Prof.) Kindiki): No, no; they are not angry eyes; they are serious!

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 information.

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I accept to be informed by Sen. Murkomen.

Mr. Speaker, Sir, when Sen. (Dr.) Khalwale talks about what the President said, he must be referring to media reports. The Constitution says that when the President makes a decision, he puts it in writing. Sen. (Dr.) Khalwale has not tabled in this House anything written by the President which says that all functions shall be decentralized immediately. What we know and what we have been informed by the Cabinet Secretary for Devolution and Planning is that the President expressed his intention and readiness to devolve these functions, even all of them, when and if directed by request from counties or by the relevant institution which is the Transition Authority (TA). So, it is not correct to say that the President said that all functions are going to counties immediately. It is however correct to say that the President has expressed his willingness and intention that all those functions be devolved if the counties request and if the Transition Authority gives an okay.

Well, that is information because those are details. I also thought the Senate Majority Leader would, in his defence, indicate the venue of that meeting which was a meeting of governors. Sen. (Dr.) Khalwale has not demonstrated that there was no request by the governors. Proceed, Sen. (Dr.) Khalwale.

Mr. Speaker, Sir, I want to thank Sen. Murkomen. Now that he has clarified that it was the media that I was referring to, can you now table in this House the signed statement by the President as pertains to this matter because it is causing a lot of anxiety among Kenyans and among county governments? By the way, even doctors and nurses have already approached the Senate because they are contesting the issue of their Kshs38 billion in form of emoluments being channeled to the county governments. Can you table that here?

I think again my colleague, Sen. (Dr.) Khalwale, is mixing up issues particularly when it comes to whether or not we can table here a statement that does not exist. If he accepts---

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

Sen. Murkomen is already on a point of order. He is actually responding to a point of order raised by Sen. (Dr.) Khalwale.

Thank you, Mr. Speaker, Sir. If Sen. (Dr.) Khalwale accepts and agrees that whatever statement he was referring to was not written in the media reports, why does he want me to table what does not exist unless he is requesting that this House asks the President to put something in writing so that I come and table it?

On a point of order, Mr. Speaker, Sir. Sen. Murkomen purported to inform the Senate Majority Leader on a statement from the President. He has been challenged to table that information and now he is saying that the statement does not exist. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Order, Sen. (Dr.) Machage! You also need to be accurate with your information. The information provided by Sen. Murkomen was from the Cabinet Secretary. That is what he said.

Mr. Speaker, Sir, thank you for the correction. He has said that that statement does not exist. Can he therefore withdraw and apologise to this House?

On a point of order, Mr. Speaker, Sir. We have heard both the Senate Majority Leader and Sen. Murkomen affirm that the President made certain statements and, many a times Kenyans, have complained about past governments on issuing policies in form of roadside declarations. Are they in order to tell us that these are statements that cannot be quoted when it is known and is in public domain that the President said that the Government is committed to devolution? He actually said that functions must be devolved fully and now. Are they alluding to the fact that this could be a roadside declaration as opposed to meaningful statements from the highest office?

The last one by Sen. Ong’era.

On a point of order, Mr. Speaker, Sir. Is my dear friend, Sen. Murkomen, in order to tell us that unless a written document is tabled from the President when we know that the President can indirectly or directly speak? He need not make any written document in order for the statement to be valid. We clearly saw the President making a submission when he was addressing the Summit where he clearly said that all these functions will be transferred to the counties.

Even as Sen. Murkomen may wish to clarify further, let me also clarify. I hope nobody is purporting to be discussing the utterances of the President. You can only interrogate the policy outcomes. So, Sen. Murkomen, you are equally advised to restrict yourself to confirmed sources. Proceed, Sen. Murkomen.

Mr. Speaker, Sir, the Constitution is very clear. Every time the President wants to do anything, it must be put in writing. If any Member wanted to challenge any decision from the President, he would rather be referring to a particular policy that is written where and when. What I have said here was confirmed by the Cabinet Secretary who came to our joint Committee meeting of Devolved Government and the one for Finance, Commerce and Economic Affairs she stated that what the President said at that point was an indication of willingness to devolve the functions. There are more details in that report of our meeting which shall actually be tabled in the House when the time comes, including an answer to a question which Sen. (Dr.) had Khalwale asked earlier.

Order, Sen. Murkomen! While I appreciate your knowledge of the Constitution and I do not disagree, I wish you could also take the trouble of learning your Standing Orders. You have just clarified that, that message was given to the Committee today. The Standing Orders do not allow you to divulge that information until you have brought a report to the House. It would be much easier for 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, before your ruling last week, I had been falsely accorded the title of de facto Deputy Prime Minister. So, I felt like I was carrying a similar burden. I think I am well informed now that one cannot discuss a committee report before it is tabled. I withdraw the statement and apologise but the day we will table it, I will unwithdraw and apologize.

On a point of order, Mr. Speaker, Sir. You have clearly heard the conditional withdrawing and apology by Sen. Murkomen despite your order as the Chair. Is he in order?

I withdraw and apologize unconditionally.

Order, Senators! Sen. (Dr.) Machage, once you have made your point, you do not get any more credit by just over-emphasizing it. In any case, I heard Sen. Murkomen very well. He withdrew, he was a bit reluctant to apologise but with a bit of nagging, he apologized too. He also said that after he presents the report, which means, after he has made the amends, then he can do the other things that he had wished to do from the beginning and I do not see anything wrong with that. In any case, my problem with him was the procedure. He had not followed the proper procedure. Once the procedure is done, he is at liberty to do all those other things he wishes to do. So, let us not flog a dead horse. Hon. Senators, our broadcast staff are also requesting that you all speak through the microphone so that you can be recorded. Proceed, Senate Majority Leader.

(Sen. (Prof.) Kindiki: Mr. Speaker, Sir, before I make my last point, I just want also to assure this House and the country that the President of Kenya, His Excellency, Hon. Uhuru Kenyatta, does not make roadside declarations. I am saying that because some of colleague Senators have tried to directly or indirectly suggest that the declaration or the statement in question was made in a roadside manner. First of all, there was no road or any sidewalk to stand on. The declaration was made in a properly constituted meeting of the Summit which involves the President and all the county governors of the Republic of Kenya. That is just for clarity and for record. Mr. Speaker, Sir, the first reason why I introduced or mentioned the issue of fiscal capacity and efficiency is two-fold and I have explained one side of it. One side is; there are many things that counties and governments are unable to do now because of capacity. The Constitution anticipated--- because you cannot just create counties and assume that they have infrastructure, human resource, experience and expertise to make sure that they deliver all their functions. I am repeating that the Constitution envisages that process to be ongoing. That is why the national government has been given an obligation to ensure that, progressively, counties have fiscal capacities among other types of capacities. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Order, Senate Majority Leader! Your time is actually up but because of the numerous points of order, I will add you another five minutes to conclude.

(Sen. (Prof.) Kindiki: Actually, Mr. Speaker, Sir, I needed one minute to conclude but thank you very much for that consideration. I want to summarize by saying, it is important for this House to discuss and expeditiously pass this Bill. That way, the Senate will be seen as being sensitive to the needs of our counties because that is why we are here. The fact that there are certain outstanding issues should not be a bar and I just want to encourage us to give whatever input we can in this Bill and pass it so that our governors and county governments can start operationalising their budgets. At the moment, the situation is nearly at a crisis point. I have heard it from the Chair of County Governors, we have seen it from the media and the less the Senate is seen as not the one holding the delay key, the better for us in the long-term. With those few remarks, which were interrupted by many points of orders, I beg to move and ask Sen. Kerrow to second.

Order, Senate Majority Leader. You may move but you do not move before you have identified the Seconder and you have done so.

Mr. Speaker, Sir, I stand to support this Bill. It is a very important Bill because this is the first time that the Senate will be debating the County Allocation of Revenue Bill. Of all the functions that we have, the allocation of revenue among the counties is the most important and the most pronounced. I will not repeat many 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.

Order, Sen. Billow! You have to freeze! Do not move.

Thank you Mr. Speaker, Sir for this opportunity to debate on the first Bill since this Senate came into being. I start by saying that I support this Bill with some misgivings. 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. Is it in order for Sen. Musila to refer to a non-existing constitutional provision; that counties which shall be identified for allocation of the Equalisation Fund shall receive those funds for 20 years when, indeed, the Fund is for 20 years, but every three years, we will review the beneficiaries?

Sen. Musila, which article were you referring to in the Constitution?

Madam Temporary Speaker, I do not have the benefit of the Constitution right here and I stand guided by my friend, Sen. Murkomen. But, indeed, even if we have to wait for three years, if you have already been pinched and told to persevere being pinched for an additional three years, that is unacceptable and unfair. Even if it is one, three or 20 years, it is still bad for a county that has been marginalized for decades. Madam Temporary Speaker, I am appealing to the Committee on Devolution and the Committee on Finance, Commerce and Economic Affairs as directed by the Chair since May, to review the matter and bring it to this Senate for debate. Up to now, they have not heeded the advice or instructions of the Speaker. I urge and plead with them to bring that report here, so that we can ventilate. It is not about Kitui County, but seven other marginalized counties of this Republic. It is our duty to ensure that funds are equitably distributed. Madam Temporary Speaker, the last issue which I want to raise is the central Government staff who have been seconded to the counties. I do not know whether this has only happened to Kitui County, but we have received over 2,000 staff from the national Government who are supposed to be paid by counties. For Kitui County alone, the budget for these 2,000 staff is Kshs1.6 billion. So, out of this money that is being allocated to Kitui County, Kshs1.6 billion is already taken by staff who have been sent there. To make the matter worse, these are not even quality staff. They are staff who have been rejected on account of discipline by the national Government and are being offloaded to counties, to make room.

On a point of order, Madam Temporary Speaker. I have heard my colleague, Sen. Musila, speak about rejected officers. As far as I am concerned, officers who have been working in the Public Service have been working for the Government of Kenya. Unless and until maybe he tables a document saying that these officers have been rejected from various departments, he should rather withdraw and proceed with his contribution. 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, can you substantiate?

Madam Temporary Speaker, there is no way I will withdraw that because this young Senator should know that in the Civil Service, there are public officers who have discipline problems. Even within the Government, whenever they are unable to perform, they are transferred from Station A to Station B. What has happened has been happening. If you want substantiation, go to Kitui and you will find files of officers who have---

Hon. Senator, why are you upstanding and not saying anything?

I am rising on a point of order.

But you have to speak! Proceed.

On a point of order, Madam Temporary Speaker. Did you hear the Senator say “this young Senator?” I may be young but I am well versed in Government operations. On the same note, Sen. Musila has been in the Civil Service for a long time. Is he insinuating that maybe his calibre also in the civil service was wanting? When a Senator makes an allegation in this House, he should substantiate and table documents to support the same.

Point noted, Senator! Sen. Musila, do not make unsubstantiated comments which you cannot support.

Madam Temporary Speaker, I do not want to argue with my colleague, the Senator. I never mentioned about his---

On a point of information, Madam Temporary Speaker.

Do you wish to be informed by Sen. Murkomen?

Yes, Madam Temporary Speaker.

Madam Temporary Speaker, I just want to inform Sen. Musila that those of us who served in the Taskforce on Devolved Government, including his governor, Dr. Malombe, when we went round, were told that marginalized counties like Kitui, Elgeyo-Marakwet, Turkana, Wajir, Mandera and Tana River have suffered because when there is a disciplinary problem in the Public Service, those who have indiscipline cases are transferred to the marginalized counties. So, I believe that what Sen. Musila is saying is possibly happening in the Public Service.

Senator, while you are supporting Sen. Musila, and you could be in order, we have to make reference to Standing Order No.92 which requires that a Senator shall be responsible for the accuracy of any facts which the Senator alleges to be true and maybe required to substantiate any such facts instantly. 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, that information is contained in the Report of the Taskforce on Devolved Government, 2011, and it is a public document.

Table it!

Madam Temporary Speaker, I can table it in a week’s time. But I do not need to table it because it is a public document. You can buy it from the printers, because it is expensive.

Madam Temporary Speaker, I seek your indulgence that I continue, because as my friend, Sen. Murkomen has said, it is in public knowledge and that report exists. In any case, I talked about 2,000 members of staff seconded to Kitui County and there is no way I can table 2,000 files here. Therefore, I seek your indulgence that I continue.

Senator, let me read Standing Order No.92 (2) for the avoidance of doubt. It states:- “If a Senator has sufficient reason to convince the Speaker that the Senator is unable to substantiate the allegations instantly, the Speaker shall require that such Senator substantiates the allegations not later than the next sitting day, failure to which the Senator shall be deemed to be disorderly within the meaning of Standing Order 108 ( Disorderly conduct ) unless the Senator withdraws the allegations and gives a suitable apology, if the Speaker so requires.” I, therefore, direct that while you proceed with your allegations, you should table those documents and the next sitting day is tomorrow afternoon.

Madam Temporary Speaker, I will provide the Report on the Devolved Government, which states that the staff who do not perform are posted to marginalized counties as punishment. I will lay that Report on the Table of the House.

Very well! Proceed.

Madam Temporary Speaker, I will continue and still insist that if we are to get these counties that have not been performing to move forward and perform, these are some of the things that we must not do. We must not offload staff whose credibility is unknown to counties. But above all, where is the money to pay these staff going to come from, because, already, counties have taken over staff from the county authorities, that is, county councils and town councils within their areas of jurisdiction? Where is the money going to come from to pay all these staff? Why are the counties now being given additional staff from the central Government which they have not asked for? That will definitely bloat their payroll. All this money we are allocating here will end up paying salaries. You may say it is Kshs4 billion, but if it all goes to salaries, when are the people we represent in this Senate going to get the much needed services? This money is inadequate. We must ensure that we get more money to allocate our counties, so that they can provide services. We do not want all this money to remain in the national Government. We want monies to go to the county governments so that services can be rendered to members of the public. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Sen. (Prof.) Anyang’Nyong’o.

Madam Temporary Speaker, I equally stand to support this Motion and congratulate the Mover and the Seconder, my colleague Sen. Musila, who has contributed to the Motion. Madam Temporary Speaker, I want to begin by cautioning ourselves and the national Government regarding the budget that we are talking about currently. You will notice that the manner in which county governments developed their budgets and, finally, presented them to the Treasury; and the manner in which they are finally reaching the Senate, is actually something which is not quite procedural. But we can excuse it, because this was the first time it was being done. However, I think it is full of uncertainties and things that we may have to deal with as a Senate to rescue the operation. Madam Temporary Speaker, the counties developed their budgets without any kind of policy passed by the county assemblies. There is no policy on the basis of which these budgets were developed. Secondly, county assemblies were more or less ambushed by their executives to pass these budgets in double quick time to meet certain deadlines set by law. These deadlines were beyond their control. You will find that these county budgets reached their so-called final destination without the knowledge of this Senate. The Senate discussed the County Allocation of Revenue Bill without any knowledge whatsoever on the basis on which this Bill was being developed as far as county budgets were concerned. Madam Temporary Speaker, you realize that we are in a situation I call a “false start.” In the meantime, certain other good things have happened in county governments. For example, the executive and the legislatures of the county governments have been established. We can, at least, say that the process of devolution has started, but with a very shaky financial basis. The previous speakers have already said that the monies going to the county governments will be mainly spend on recurrent and not development expenditure. This is itself a problem because it means that county governments may turn themselves into more of pay offices for civil servants. Now, the very nature in which the county governments have been formed is that they have inherited civil servants of previous local authorities. This matter should not be underplayed. Sen. Musila was trying to make it, but I think that the discussion was kind-of overtaken by the statement he made; that, non-performing or civil servants’ disciplinary cases have been transferred to hardship areas - read marginalized counties - for punishment. Therefore, they have reduced the performance therein. But I will to go further and say that it is not just the marginalized counties. Having been the Chairman of the Public Investments Committee (PIC) in the mid 1990s, I know for certain that local governments had a lot of problems auditing their accounts. I know that this situation did not improve even after the time that the county governments were inheriting these local authorities. 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.

Yes, Sen. Karaba! What is out of order?

On a point of order, Madam Temporary Speaker. Our learned professor is telling us about bad manners. I think it is important to define some of these things, even if they look obvious. How does he assess the bad manners that he is trying to attribute to counties?

Madam Temporary Speaker, I did not mean “bad manners” in the normal day to day meaning. However, these are things that we should not do in the government. In the government we should not be corrupt if we are going to develop. We should not practice nepotism, tribalism and things like that, if we are going to develop. You know that these things have been the bane of our society for a long time. You need not look further than the HANSARD. You need not look further than the reports of the Public Investments Committee (PIC) and the Public Accounts Committee (PAC) of Parliament. They are in our libraries, on the internet and so on. I am just saying that these are the things that should not happen at the local level because at that level, you want to encourage the confidence of the people that this new policy of devolution is going to improve their lives and not add burdens to their lives. The people of Kenya are going to be so disappointed if devolved governments do not perform than the government they are used to since Independence. I am not saying that everything has been bad. However, I am just saying that those bad things that have happened have really been a big disservice to the development of our nation. Therefore, I am appealing to the Senate that as we debate the monies and approve them for counties, we should know that these monies are going to be used in a political context. This money is going to be used by human beings running institutions. It is going to be used in a sense that the purpose of running those institutions to meet certain goals and objectives corresponds with what is written in the Constitution. If you read the section on devolved government, the spirit of the Constitution is that these governments are being taken closer to the people, so that better services can be delivered. There 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.

Hon. Senators, please, consult quietly.

Madam Temporary Speaker, this is one of the things that I think we should really be conscious of. Since the Government is now close to the people, it must be seen to be interacting with the people and explaining to them what is happening. It must not be seen as if there is a new chief in town called a governor, whose word when he speaks comes out ex cathedra . He must be a people’s person who knows what is in the interest of the people and promotes development. So, we must build politics into these Bills; when we realize that if implemented in a political context where democracy, participation, accountability and transparency exist, then of course, they will meet the noble goals in our Constitution. So, I am appealing to our fellow Senators, as we very soon go into recess, to engage our county assembly men and women, particularly on their role in making sure devolution works. These things should not be overly focused in the county executives, but should be spread to the representatives of the people at the local level, who should know what a Bill like this means. They should know how their budgets are made and be involved on how the next budget will be made so that we improve on what we have had at the moment which, to me, is full of false starts. Notwithstanding all that, I wish to support.

On a point of order, Madam Temporary Speaker. My good friend, Sen. Kagwe, in his very eloquent presentation has consistently used the words “central Government.” Where is this central Government he is referring to?

Sen. Kagwe, could you elaborate? Are you referring to the national Government?

On a point of order, Madam Temporary Speaker. Whereas Sen. Kagwe has elevated me to a very enviable position where he is equating me to the Constitution, I would like to ask whether it is in order for him to think that when the Constitution talks about the national Government, that is my own creation?

Sen. Kagwe, you are out of order! That is enshrined in the Constitution. It is not a creation of Sen. Murkomen. 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, I stand guided in this. Thank you, Sen. Murkomen. The national Government is, in whatever name, devolving deficits into counties. I said that we must be very careful in deficit financing. We must realise very consciously that we will not develop the marginalized areas by way of bringing down the counties that appear, in our terms - because we are a non-developed country anyway - developed. This is an illusion anyway because we are not developed. Two weeks ago, I went round with the Committee on Education, Information and Technology. I was surprised because the people we were travelling with around Nyeri, Laikipia and Kirinyaga had not been to that region. They were shocked at the kind of poverty they saw in that region. They wondered whether that was really Nyeri, Kirinyaga and, in general, the Central Province they are told about. We do not really know our country. Consequently, when we see some of these things, we think that, probably, we should remove funds from here and take them there. This is not an issue of either removing funds from one government or the so-called developed counties or taking them to marginalized counties. This is about providing funds, so that the ones that are doing well can continue doing well. Those that are not doing well can be enhanced to do much better and, hopefully, catch up with the others. We must also appreciate that devolution is not an event. It does not happen at a certain instance in time and then stops. Devolution is a process by which our nation has developed faster than it has been growing. Secondly, it is a process by which counties that have been disadvantaged in the past can also develop at a much faster rate than the so-called developed so that with time, there is a level of equity and development. Therefore, it is important for the Cheserem Commission to appreciate that it is not enough to say that we will remove the financing that should make counties “harmless.” I have a few examples here. The New Nyanza General Hospital, for example, caters for a large area, including some parts of Uganda. When you say that money that should be devolved to the New Nyanza General Hospital and managed by the Kisumu County is a lot and, therefore, since we want to equalize Kisumu and Nyeri counties, this money should be divided amongst the other counties, what does that mean? The effect is as follows. It is either; (a) that the hon. Senator from Kisumu with his Governor will eventually agree to close the New Nyanza General Hospital because unless they can pay the staff at the hospital, then they will not operate it; (b) they can also go to the national Government and ask for funds according to Section 6 and, therefore, provide extra funding that is not within the Kshs210 billion to finance that hospital or, (c) they can also decide not to devolve that function. It can stay with the national Government until such a time when it can be devolved with the commensurate funding for the responsibility. 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 information, Madam Temporary Speaker.

Do you wish to be informed by Professor?

Madam Temporary Speaker, the current issue of

is very interesting in the sense that it shows that the people who have actually moved the economy of the United States (US), if you talk of Google or whatever, are actually children of immigrants.

Thank you, Madam Temporary Speaker. I would like to support this very important Bill. This a very important Bill in terms of operationalization of our counties. It is the first Bill that is being passed by this House in terms of contributing to our responsibility under Article 96; to protect county governments. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Order, Senator! You cannot preempt the court ruling because that might actually jeopardize our position. Stick to the debate and withdraw.

I withdraw, but I have said I have confidence in the Supreme Court.

You were trying to preempt. So, do not minimize our chances by debating that.

Thank you, Madam Temporary Speaker. Let me put it this way: I have confidence that next year when we will be looking at the Division of Revenue Bill, we shall have the opportunity to give proper allocation to the counties after looking at the costing of functions. These are the things that we want to look at. Madam Temporary Speaker, Section 10 of the Bill provides that each county Treasury shall reflect all transfers by the national Government in its books of account; the Finance Bill of each county shall reflect the total allocation from the national Government separately and so on. I want to say that whereas these wonderful provisions are provided for in this Bill, we have a serious problem on the ground. Although Schedule Six, paragraph 15 gives the national Government the power to build the capacity of counties, very few counties have qualified financial budgeting officers that can assist them to do a proper budget. Very few county assembly members have ever, in their lifetime, done any budget. In fact, in the few counties that have former members of National Assembly, those members are merely speakers. For example, the Speaker of Tana River County Assembly and the Speaker of Makueni County Assembly, if I am not wrong and I stand to be corrected. Madam Temporary Speaker, we need to ensure that the counties have the capacity to do these things. It is not tomorrow, but today because the budgeting process will start again by October. In their duty to build the capacity of counties, Treasury should even go ahead and come up with a document on how to do budgeting in the Kiswahili language. I have a reason for saying so. The other day, it was reported that some county assemblies are completely unable to debate anything in the English language. It was reported in the newspaper that there was a particular county where the county assembly members, I do not want to mention it because it is not good for purposes of protecting the image, were asking their speaker whether they should not disregard the standing orders because it is disturbing them. They just wanted to talk freely. That is the level of incapacity that we have at the county level. We are just talking about normal debating. I must confess that until I came to this House, I did not know how to draft a Motion. I had to go to the Clerk’s office to be assisted. So, how worse is it at the local level when you talk about them doing budgets, Motions and Bills, among others? It is important that the national Government or the Treasury comes up with a document in Kiswahili that translates 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.

Ongea Kiswahili sanifu.

Madam Temporary Speaker, you know I am not allowed to change and debate in Kiswahili language, but what I am saying is that Treasury has to come up with a proper framework as part of capacity building to enable the county assemblies to understand the budgetary process. The other problem is that it is important for county assemblies to realize that although more money has been put---

On a point of order, Madam Temporary Speaker.

Yes, Sen. Okong’o, what is your point of order?

Madam Temporary Speaker, I am wondering how much time my colleague is supposed to use in contributing.

It is 30 minutes, Senator, as provided for in the Standing Orders.

Thank you, Madam Temporary Speaker. I did not know that my colleague would easily get tired of listening to this very important exposé on this issue. The capacity of the counties must be built by coming up with proper frameworks to assist them. In fact, the County Assembly Budget Office must be quickly established and be allowed to hire enough staff to allow the county assemblies to do proper budgets as we go to the 2014/2015 Financial Year. Lastly, one of the things that must be done at the local level is to show county assemblies that they are not competing with county executives in terms of allocations. Some reports from some counties indicate that some county assembly members have been telling governors that they must share the money 50-50. The county assemblies should get 50 per cent and the county executives 50 per cent. In one county, county assembly members came up with particular budgeting lines that said that they would create some CDF for county assembly members and the money would be wired to the accounts of every county assembly member. This money will be used to take care of elders and persons with disabilities, so that if they go round the counties and see an old man, they give them something small. The capacities for these counties to carry out these budgets must appreciate. A lot of blame has been put on county Governors. People are blaming Governors saying that they have mis-budgeted and that they are the worst Governors. However, budgeting is a function of the county assemblies. However, these assemblies have no capacity. We must build that capacity. We must always understand that we cannot allocate all the money to recurrent expenditure. It must also go to development expenditure. Development is not about building houses for county assembly officers. Development is about creating activities that people of a county will benefit from in terms of roads, hospitals, housing and addressing unemployment, among others. 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.

Before we proceed, Sen. Okong’o, please, make reference to Standing Order No.98 (4). There is 30 minutes provided for you to make your contribution. However, if you speak for two minutes, that is still okay.

Thank you, Madam Temporary Speaker. I am glad to stand before you and to contribute to this fantastic Bill. It revolves around a lot of controversies and many good things. We had a problem with it and today, we accept it. Mine is to support it since it is a starting point. This Bill is very controversial. We all know devolution is something that is gradual. We cannot say that we will change everything today and turn around the counties at once. So, we need to accept it. I, therefore, accept it and support the Bill. The Committee on Finance, Commerce and Economic Affairs has to bring some amendments. With regard to the people in Tana River, the Bill does not favour us at all. It only worsens our problems. If we are given this money, but are not given capacity, it will be mismanaged by Governors. Governors have more powers more than our Executive at the national level. So, Governors can mismanage this money if no provision is put in place to oversee its usage. Senators must pull up their socks and come up with a solution, so that the money is closely monitored with regard to how it is utilized down there. Governors have not been informing us what they are doing down there. These Governors are just moving up and down. Since the Senate is there to act as the Prime Minister of the counties; since we represent our counties and the county assembly members are our partners, we have to liaise with the county assemblies and come up with Finance Oversight Officers. We want the Senate to come up with a Finance Oversight Committee which will be going round to see what is happening out there. I beg support.

Thank you, Madam Temporary Speaker. I think we should all follow the Senator for Tana River in being brief and precise. I stand to support this Bill. This is the first and crucial Bill we are discussing. It is what will set the pace for the counties to do what they have planned and budgeted to do. I would like to echo everybody’s concerns regarding the fact that loading counties with functions and responsibilities without accompanying these with funding is setting them up for failure. Also, loading counties with functions and responsibilities without the accompanying function assessment and capacity building is also setting them up for failure. Being a medical person and the Chairman of the Health, Labour and Social Welfare Committee, I would like to speak to two issues about loading responsibilities to counties without giving funds and without assisting them in terms of capacity in relation to health. We summoned the Cabinet Secretary for Health to come before us and to tell us what challenges he and his team are facing at the national level in terms of devolving the health functions. This is the only Ministry that has been devolved at a go before assessing the capacities on the ground. He wrote back to us. We realized that the health sector The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Order, Senator! Do not introduce very, very extreme religious comparisons.

Madam Temporary Speaker, it is with a light touch. Well, the hope is that the poor will go to heaven, let us hope so. But I hope heaven will not also follow the same law. Madam Temporary Speaker, I stand here to say that there are projects in which I think the national Government has been left with 85 per cent of the money. Of course, we know through the budgets where it will go. This money being allocated right now is very little. A lot of it, will go to pay salaries, with very little of it to do projects. Therefore, it is important that the national Government actually utilizes this 85 per cent to do one major project that is in the heart of the county to ensure that there is some balancing. For example, if a major dam is done in Isiolo – of which I know one is being done right now – and a similar project is done elsewhere like that, then I think we will feel that, besides the small money from the county governments, we are also developing and benefitting from the national Governments’ funds. Madam Temporary Speaker, with those few remarks, and in order to also give other Senators some time to speak, I beg to support.

Sen. Janet Ong’era.

Thank you, Madam Temporary Speaker, for giving me this opportunity. I rise to support this Bill. Let me, first of all, congratulate the Mover and the Seconder of this Bill for bringing it to the House. Madam Temporary Speaker, today the Senate is caught between a rock and a hard place due to the unprocedural activities that were carried out by the Lower House. As you know, this matter eventually led us to the Supreme Court; a matter that I would not go into to discuss its merits and demerits because of the principle of sub judice . However, Madam Temporary Speaker, it behooves this Senate to rise above all this and exercise real wisdom when looking at this Bill. It is not the might of the tyranny of numbers or the might of the stroke of the pen that determines real wisdom. Real The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

What is out of order, Sen. Kagwe?

Sen. Ong’era, what exactly did you mean?

Thank you, Madam Temporary Speaker. Because of poor policy guidelines and lack of proper planning and ensuring that there is sufficient capacity, this problem has arisen. Because of this, we know that there are so many problems. In fact, the hon. Senator knows that in his county, this is where all this mess is occurring because there are no sufficient nurses and labour wards to deliver these babies. As a result, this is what we are talking about. Let us not load functions to the counties without being clear in our minds that, indeed, we have sufficient resources to do so. With those few remarks, Madam Temporary Speaker, I beg to support the Bill.

Hon. Senators, I know there is a lot of interest in this Bill, but we will continue with this debate tomorrow. So, we shall have one last speaker. Sen. Karaba has really been on his feet. Senator for Kirinyaga County.

Madam Temporary Speaker, I am happy I have finally caught your eyes. That has really touched me.

Sen. Karaba, proceed with your debate.

Madam Temporary Speaker, I would wish to bring to the attention of majority of the Senators here, as they try to wonder why some counties are getting more on Column “B” as opposed to others a few facts. Out of the percentage that is supposed to be devolved to the counties, that is, 15 per cent, 85 per cent is left to the national Government for its own national projects. What is important for us to understand is that revenue in this country is generated within the counties. The counties that generate more, should be supported, so that they can continue generating more. If you abandon a county which produces a commodity that brings in a lot of revenue, then you are denying the county the chance to generate that revenue which, later on, is shared with the other counties. What I am trying to say is that when you talk about marginalized counties and others which are advantaged, there is nothing wrong there. It just happened that 12 per cent of Kenya is advantaged. So, about 80 per cent is disadvantaged for one or two reasons. So, when people start talking about advantaged, disadvantaged and all the other 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. Is the Senator for Kirinyaga in order to tell the House that the Government has given an incentive to counties to generate revenue and denied marginalized counties while he knows that the Bill we are debating on will give very new allocations? This is very different from what he is debating on.

Madam Temporary Speaker, I did not say that. I said it is clear that counties such as Kirinyaga, where I come from, which had been given Kshs2.7 billion will need a billion more. The money that will be given to such counties will go into production and multiplication of more money. Using the multiplier effect, more money will be generated from such productive counties. The Government should continue to give more to those counties. I am trying to justify the fact that counties that are endowed geographically and environmentally should not be left behind. As some Senators have argued counties such as Meru and Kirinyanga; owing to their geographical position of being at the Equator, since they are located on the windward side and not on the leeward side, continue to receive more rainfall than others. That is a geographical fact. You cannot run away from that. That is what I am saying. Counties like Kirinyaga and Nyeri need to be given more money because they will generate more revenue. We have rice which we grow. That rice fetches a lot of money. This money is what is divided to other counties. I think I am right in justifying my point. We need to have roads in Kirinyaga which lead to the Mwea Settlement Scheme. 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. Is the Senator for Kirinyaga in order to imply that some counties should be given more money just because they are used to getting more money than others and that other counties that have not been producing any money and contributing any revenue to the national kitty should be left out? Is he in order to imagine that it is only rice from Kirinyaga that generates revenue that can be shared equally by all other counties?

Madam Temporary Speaker, it is not only rice that grows in Kirinyaga. We have a lot of other cash crops. We have tea, coffee, forestry and even

On a point of order, Madam Temporary Speaker. Is the hon. Senator from Kirinyaga in order to tell this honourable House that since some counties exist around the Equator - if I got him right - deserve to get more allocations? Is he also in order to tell us that because his county in particular and other counties within that area and jurisdiction supply more items like rice and trees, among others, deserve to get more money? This Bill is about revenue allocation to all counties on equitable basis. Is he in order?

Sen. Karaba, you have 20 minutes left. If you wish to continue with your interesting contribution, you will do so tomorrow.

Hon. Senators, it is now time to adjourn the Senate. The Senate, therefore, stands adjourned until tomorrow, Thursday, 18th July, 2013 at 2.30 pm. 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.