Hon. Senators, I have the following communication to make relating to the procedure we shall use in relation to the business regarding the consideration of the report of the Special Committee on the proposed removal from office of the Deputy Governor of Machakos County. As you are aware, hon. Senators, this is not the first time the Senate is conducting business of this nature. We shall, therefore, proceed along similar lines as we have done in the past when Senators received a similar special committee report. As in earlier cases, the Chairperson of the Special Committee will lay the Report of the Special Committee first. After which, hon. Senators will have time to peruse it. The Report will, therefore, not be debated immediately, but the House will adjourn for one hour in order to allow you, hon. Senators, to go through it. We shall proceed in this manner because the point at which the report will be laid, it will not be known to the rest of us in the House, except maybe for the Committee Members which of the two procedures provided for by Section 33(6)(6) of the County Governments Act and Standing Order No.68(4) will be applied. The contents of the report will determine that. Hon. Senators, just to refresh your memories, both Section 33(6) of the County Governments Act and Standing Order No.68(4) provide as follows:- 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 beg to lay the following Paper on the Table of the House today, Friday, 15th August, 2014. The Report of the Special Committee on the proposed removal from office of the Deputy Governor of Machakos County.

Hon. Senators, as I have communicated, the Paper has been laid on the Table of the House. We will give you one hour to look at the report or do you want less time?

Half an hour!

Okay, I will give you half an hour contrary to my earlier communication. We will go by the mood of the House. We will resume here at a quarter past three o’clock. 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. I wish to make the following communication. The communication relates to the procedure we will use in conducting the business that is now before us in the Supplementary Order Paper which I have authorized to be circulated. Hon. Senators, before we suspended the sitting of the Senate earlier this afternoon, one paper had been laid on the Table of the Senate by Sen. Mutahi Kagwe, the Chairperson of the Special Committee on the proposed removal from Office of the Deputy Governor of Machakos County. For your recollection, the paper was the report of the Special Committee on the proposed removal from office of the Deputy Governor of Machakos County. At the point at which the paper was laid, the House was not seized of the contents of the Report. It was, therefore, not known to the House which of the two procedures provided for under Section 33(6) of the County Government Act and the Standing Order No.68(4) will be applicable. Hon. Senators, I have had the benefit of perusing the Report and it is clear that concerning the proposed removal of the Deputy Governor, the special committee, having found that the particulars of certain allegations, have been substantiated, the Senate shall, in accordance with Section 33(6)(b) of the County Governments Act and Standing Order No.68(4)(b) of Senate Standing Orders vote on each of the impeachment charges after according the Deputy Governor an opportunity to be heard. Hon. Senators, I wish to confirm that arrangements have been made for the Deputy Governor of Machakos County to sit at the Speaker’s Gallery during debate on the Motion before the Senate. At the appropriate time before I put the question on the Motion, he will appear before the Senate and be heard by the Senate; either by himself or his representative. I wish to inform hon. Senators that if the Deputy Governor chooses to exercise his right to appear and be heard by the Senate, the Deputy Governor shall be heard here, either by himself or his advocate in total silence and his speech shall not be followed by any question or comment. The Senate shall, thereafter, immediately proceed to vote on each allegation found to have been substantiated. Thank you. Let us move on to the next Order. 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 give to give notice of the following notice. Whereas to Article 181 of the Constitution and Section 33 of the County Governments Act 2012, on 23rd July, 2014, the County Assembly of Machakos approved a Motion to remove from office by impeachment the Deputy Governor of Machakos County. Further whereas by a letter dated 24th July, 2014, Ref. MKACA/ADM/IPDG/Vol.1/6 and received in the Office of the Speaker of the Senate on 25th July, 2014, the Speaker of the County Assembly of Machakos informed the Speaker of the Senate of the approval of the Motion by the County Assembly and further forwarded the Speaker of the Senate documents in evidence of the proceedings of the Assembly. Whereas pursuant to Section 33(3)(b) of the County Governments Act 2012 and Standing Order No.68(1)(b) of the Senate, by resolution may appoint a Special Committee comprising 11 of its members to investigate the matter. Whereas pursuant to Section 33(3)(b) of the County Governments Act, 2012 and Standing Order No. 68(1)(b) of the Senate, by resolution on 5th August, 2014 appointed a Special Committee comprising 11 of his members to investigate the matter of the proposed removal from office of the Deputy Governor of Machakos County and to report to the Senate within ten days of his appointment on whether it finds particulars of the allegations to have been substantiated. Whereas pursuant to Section 33(4) of the County Governments Act, 2012 and Standing Order 68(2) of the Special Committee, the Special Committee has investigated the matter and tabled its report on Friday, 15th August, 2014. Whereas pursuant to Section 33(4) and 6(d) of the County Governments Act, 2012 and Standing Order No.68(4)(b), the Special Committee has found that the particulars of the following allegations against the Deputy Governor of Machakos County have been substantiated; namely, (a) Gross violation of the National Cohesion and Integration Act; and, (b) Abuse of Office. Now, therefore, pursuant to Section 33(6)(b) of the County Governments Act, 2012 and Standing Order No.68(4)(b), the Senate, after according the Deputy Governor of Machakos County an opportunity to be heard resolves to impeach the Deputy Governor of Machakos County on the following grounds. (a) Gross violation of the National Cohesion and Integration Act; and, (b) Abuse of Office. I beg to move.

I thought you were giving notice of Motion and not moving? 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 beg to give notice.

Mr. Speaker, Sir, I beg to move the following Motion:- THAT, whereas, pursuant to Article 181 of the Constitution and Section 33 of the County Governments Act, 2012, on 23rd July, 2014, the County Assembly of Machakos approved a Motion to remove from Office by Impeachment the Deputy Governor of Machakos County. Further, whereas by a letter dated 24th July, 2014, Ref.MKACA/ADM/IPIMPDG/Vol.1/6 and received in the Office of the Speaker of the Senate on 25th July, 2014, the Speaker of the County Assembly of Machakos informed the Speaker of the Senate of the approval of the Motion by the County Assembly and further forwarded to the Speaker of the Senate documents in evidence of the proceedings of the Assembly. Whereas pursuant to Section 33(3)(b) of the County Governments Act, 2012 and Standing Order No.68(1)(b) of the Senate, by resolution may appoint a special committee comprising 11 of its Members to investigate the matter. Whereas pursuant to Section 33(3)(b) of the County Governments Act, 2012, and Standing Order No.68(1)(b) of the Senate by resolution on 5th August, 2014 appointed a special committee comprising 11 of its Members to investigate the matter of the proposed removal from Office of the Deputy Governor of Machakos County and to report to the Senate within 10 days of his appointment on whether it finds the particulars of the allegations to have been substantiated. Whereas pursuant to Section 33(4) of the County Governments Act, 2012 and Standing Order 68(2), the Special Committee has investigated the matter and tabled its report on Friday, 15th August, 2014. Whereas pursuant to Section 33(4) and 6(d) and the County Governments Act, 2012, the Standing Order No.68(4)(b), the Special Committee has found that the particulars of the following allegation against the Deputy Governor of Machakos County have been substantiated; namely,(a) Gross violation of the National Cohesion and Integration Act; and, (b) Abuse of office. Now, therefore, pursuant to Section 33(6)(b) of the County Governments Act, 2012 and Standing Order No.68(4)(b), the Senate, after according the Deputy Governor of Machakos County an opportunity to be heard, resolves to impeach the Deputy Governor of Machakos County; (a) Gross violation of the National Cohesion and Integration Act; and, (b) Abuse of office. Mr. Speaker, Sir, hon. Senators will recall that on the sitting of the Senate held on Thursday, 31st July, 2014 the Speaker of the Senate by way of Communication from the Chair informed the Senate that he had received correspondence from the Speaker of the County Assembly of Machakos communicating the approval of a Motion by the County 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 this opportunity to second this Motion of impeachment. This is one of the toughest challenges when you find yourself in a Committee to fire or retain a person in employment, but this is where we have men and women of knowledge and wisdom; men who have taken oath of office to defend the Constitution of Kenya. In the previous impeachments in this House, both parties have taken a bipartisan approach. In Wambora I, the House unanimously stood to impeach him. In Wambora II, the House took a partisan approach to impeach Wambora. In the Chepkwony proceedings, the Committee report was unanimously adopted not to impeach him. This is a vote which might bring discord when men and women stand by the principles, experiences and facts before them. In this impeachment of the Deputy Governor of Machakos, we had 24 charges. The Committee sat down to delve into these issues. We spent many hours and found out that many of the charges brought before us were frivolous and fictitious. This charge on which the Deputy Governor of Machakos is supposed to be impeached for is false considering what the Chairman has tabled here. There were questions of threshold where some Members were arguing about past cases which have been taken to court on hate speech and people have been left to go scot free. Those might not hold water, because we know that the Directorate for Public Prosecution (DPP) in this country is understaffed and, therefore it cannot be a reason to say that if people have not been charged and taken to jail on accusations of hate speech, it is reason not to impeach the Governor. Mr. Speaker, Sir, first, in the said charge, the Deputy Governor of Machakos uttered the same words not once, not twice or thrice. In those meetings where he uttered those words, he received thunderous applause from the crowds. As a leader who has taken the oath of office, it is wrong to segregate people in a county. We must set standards for public leadership. We are in a new dispensation where we have a new Constitution which requires that we stand firm while performing our duties regardless of which party we belong to. With those reasons, we must set grounds for political impropriety. Some of us have taken the oath of office, which oath of office we have never revisited to read and understand what it stands for and what it states. When I took the oath of office almost 16 months, I was clear in my mind that I will bear true faith and allegiance to the people of the Republic of Kenya. I will obey, respect, uphold, preserve, protect and defend the Constitution of Kenya and I will faithfully and conscientiously discharge the duties of a Member of Parliament. 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 want to thank you for according me this opportunity---

Sen. Hassan, by mutual consent, you are entitled to 15 minutes and the Minority has donated another 15 minutes from his time; a maximum of 30 minutes.

Mr. Speaker, Sir, I want to appreciate the unending generosity of the Minority Leader, Sen. Wetangula, and your kind consideration. I rise under Standing Order No.203 (5) which states:- “A report having been adopted by a majority of Senators, a Minority of Dissenting Report may be appended to the report by any Member or Members of the Committee.” I found it necessary that I codify the issues that I articulated in the Committee, not only about the specific charges that were so substantiated by a majority but also on the procedural fairness of the whole impeachment process. I want to start by reminding every Kenyan and Members of County Assemblies that this is the Senate of the Republic of Kenya. It shall never be party to internal squabbling, witch-hunt, malice, deficient or any other form of trivialities. This Senate shall only guide itself by facts, by law and by public interest. It is therefore my submission that whatever the impeachment proceedings that were averred to were internal issues of the Machakos County Government and County Assembly. It is in this light that this Senate must address itself to some of the issues. We should improve our processes to have some preliminary way in which we can dispense the aplication that in 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.

Yes!

Therefore, for the transcript, you should have called the person who videotaped it. If it is a trial, then we must ensure that we meet certain standards or expectations of law. These standards and expectations of law were not met. It was simply said “Oh, the Deputy Governor should not have uttered the word “Nguu.” But by the admission of the Deputy Governor, his utterance of the word “ Nguu” had a different connotation. Therefore, it was for us to go an extra mile. We did forum shopping; as we filed the impeachment proceedings, the same people have rushed to the National Cohesion and Integration Commission (NCIC) and to all authorities; it shows a scheme of vendetta and this cannot be one of the fora that was shopped to do this work, in which the Machakos County Governor fails to handle his own Deputy Governor Mr. Speaker, Sir, it is my considered opinion that not having tried this particular allegations conclusively, it is premature to validate the allegations of hate speech. In my view, it will be my recommendation that such allegations must be dealt with by the necessary agencies and institutions that have the mandate and capacity to conclusively investigate and try allegations herein – the NCIC and the Office of the Director of Public Prosecution, a recommendation in our own report in Article 3, paragraph 344. This Committee has also made recommendations that this type of allegations which were 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. Wamatangi?

I said something in Swahili; do you not understand it in English, Sen. Wamatangi?

Mr. Speaker, Sir, to begin with, I would want to inform the learned Senator for Mombasa that, indeed---

Mr. Speaker, Sir, I was rising on a point of order until the Senator asked whether there is a point he said in Swahili and whether I do not understand English---

Order! Order, Sen. Wamatangi! It is just a procedure---

Yes, Mr. Speaker, Sir.

You do not rise on a point of order and a point of information.

Mr. Speaker, Sir, I am rising on a point of order. Indeed, the Senator is quite right to have his opinion but is it in order that in his contribution, that he 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!

I think, Mr. Speaker, Sir, that is why it is called a dissenting view---

Order! Order, Sen. Hassan Omar! For a moment, you assumed you do not apply to the word Senators. I did not say “Sen. Wamatangi,” I said “Order, Senators.” That applies to you. Sen. Wamatangi has no point of order.

So, proceed.

Sen. Wamatangi, you are my very good friend and I am a very eloquent guy; you must listen to the very end. You will get a lot of benefit. Even if you might not use it today, you might use it tomorrow when you are in the Opposition. But that said and done, Senator, that was on a light touch, my dear friend. Mr. Speaker, Sir, we have become very paranoid in this country, since I do not know which other context to give it. For a long time we, the people from the Coast region were stereotyped as “wale wanaongojea nazi kuanguka” or those who wait for the coconut to fall. Before long, some friends of mine in the police service were telling me that they had a complaint. So, we said with other leaders from the Coast region: “ Now sisisi wale wa kungojea nazi kuanguka. Sisi ndio wale tunaowatafuta wale wezi wa nazi. We are the ones who are searching for those who stole the coconut. We cannot continue to be paranoid. In this country, the regime of hate speech has been used in a political sense. I was philosophically opposed to the regime of hate speech. I have recorded, not once or twice but three times statements about hate speech, but they hardly meet the threshold. Just because something irks you because I called you a “Nguu,” does not make it hate speech. Fair enough, I have not heard anybody call you a Nguu. So, just because---

Order, Sen. Hassan! Do not draw the Chair into your arguments. You need to withdraw those words.

Mr. Speaker, Sir, I need to withdraw those words because initially I had referred to you and thought that, as decorum, I need to pull back those words. I am apologetic about that matter. Mr. Speaker, Sir, therefore, the whole regime has been politicized. We have become extra sensitive. That is why I am saying that rather than use our personal discretion to say who has committed an act of hate speech, let us use the institutions that are there to arbitrate over these matters. Just because I have said something which you do not like does not merit it to be hate speech. But that is not to mean that people must be careless in their utterances or we gag what we call free speech. My contention on this particular matter is that it can be tried before a court of law. It should have been presented to the right authorities, because it is prematurely before the Senate. The Senate cannot transform itself into a court of law 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.

On a point of order, Mr. Speaker, Sir. I am sorry to interrupt my good friend, Sen. Omar. But is he in order to exhibit emotions and act as if he is the defense lawyer of the Deputy Governor?

Mr. Speaker, Sir, when I spoke with similar fashion when I was in the Committee, our good Chairman who has known me for over 20 years now, Sen. Mutahi Kagwe, actually did inform Sen. Leshore that this is how I usually speak. I do not know any other way to speak. But in certain instances, when we need to camouflage, I can speak in that manner. Mr. Speaker, Sir, these charges are not supported by law. For you to come here and be impeached, there must be a charge that is definite under the law or Constitution. So, we cannot have a charge in a vacuum. Abuse of office issues touch on the constitutionality or constitution of Government. I do believe, in that particular instance, that in no way whatsoever does a lawyer or a doctor writing to a Governor constitute an act of abuse of office. In fact, I read his affidavit. He did not say “I heard.” He says “it was reported.” If it was reported, it constitutes hearsay, which cannot be entertained in this Senate. Mr. Speaker, Sir, I have searched my conscience on this issue and wish that I had any other reason to dissent from this Report or register minority opinion with some of the other Senators. But I have looked purely as a matter of law and fact. One of my elders told me: “It is not in the institution that one is irrelevant. It is what you do that you exhibit irrelevance.” I do believe that the Senate is not the place to arbitrate over matters 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 rise to support this Motion. There are two very critical issues as I get to the threshold of the matters that I would want to rise. When this House receives communication from the county assemblies that a process has been initiated at the county assembly level and that the county assemblies themselves have passed a Motion or a resolution to impeach a Governor or a Deputy Governor, then this House has a duty to conduct its constitutional role of according those parties the hearing of this Senate. When the charges by the County Assembly of Machakos were received by the Senate, you formed a Committee of 11 Members of this Senate to listen to these charges and allegations. I do not think that either the Senate was wrong or you were wrong in constituting that Committee of eleven Senators to go and look into these allegations and the charges and come up with a report. The question that behoves the Senate right now is that all those Senators who voted for the Report that has been tabled here are seven to four. Do we argue as a Senate that seven of those Senators were wrong and five were right? Mr. Speaker, Sir, the rule of the majority is the basic rule of democracy. This House has formed precedence just like any other court of law or any institution. As has been said by earlier speakers, all the time when there have been similar cases, we already have formed or have a trend and we also have set precedence. On the question of whether the hearings which were conducted by the Committee met a reasonable threshold to constitute or to uphold the charges, then I believe that the conscience of seven of those Senators against the decision of the five, then it tells this Senate that there must have been issues that led to that. The Chairperson of that Committee, Sen. Mutahi Kagwe, and the Seconder, the Senator for Nyamira who is a 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, thank you for the opportunity to contribute to this Motion.

Sen. Wetangula, I hope you know that out of your generosity, you surrendered 15 minutes.

Yes, 15 minutes out of my 60 minutes and I intend to use it well. Mr. Speaker, Sir, I have had to rush back to this Senate from Bungoma where I left at 1.00 p.m., this afternoon to participate in these proceedings. Seven out of eleven Members of the Committee voted to say that three counts have been substantiated.

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

Please inform me.

Mr. Speaker, Sir, please, I want to inform Sen. Wetangula that it was deliberate of this Committee not to state the way the vote went or who voted in which direction to maintain the bi-partisanship nature of this House. It is curious to know how Sen. Wamatangi knows how the vote went. I wish to inform Sen. Wetangula that the Chairman decided not to vote after he went round the table. So, six members said they were for impeachment and four said they were not for it. It was agreed that the Chairman does not vote but it was curious to know how he came up with the numbers.

Order, Sen. Hassan. That information is completely unnecessary to the extent in which Sen. Wetangula has made his submissions. He was just referring to what is on record. What Sen. Wamatangi did was to refer to the same numbers. He did not refer to individuals. To the contrary, you have actually gone ahead; one, to name yourself in your 30 minute submission; two, to name your Chairman--- 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, if you allow me, I can proceed.

Proceed, Senator.

Mr. Speaker, Sir, this is a very critical Motion for this Chamber. It may easily turn out to be a trial of this Senate. The new Constitution has brought on board new expectations, new responsibilities, and new associations. It can be likened to Ghana where because a President has a running mate tied together like Siamese twins, when you enter office, you cannot sack your deputy and you must work together. What happened in Ghana is that President Jerry Rawlings, having been unable to push out his deputy, resorted to routinely boxing him in Cabinet meetings with a hope that he would resign and go home. The deputy declined to resign and hang on to the end of the term. Mr. Speaker, Sir, in Malawi, the President even expelled his deputy from the party with a hope that she would get frustrated, resign and go. As fate would have it, a few months later, the President died in office and the mistreated deputy became the President. Here in Kenya, our governors must be advised that where you took a running mate, you took him or her for good or for worse, you will sit and work together for five years. We see a situation where a governor who does not like his deputy can easily resort to underhand manouvres to engineer an impeachment so that he can get somebody he can work with. This Senate will be failing if we rubberstamped this mischief. The case of Machakos is an open page. In law, we say, you can take judicial notice. In the Bible Jesus said, the signs of the times are clear, those with eyes can see, those with ears can hear and that is Machakos for you today. We have listened to the distinguished Senator for Mombasa and I quickly flipped through this Report but with a lot of care. While I thank the Committee and its Members for agreeing to take the task of the House and sitting for long hours to bring a report to the House, we did not expect them to bring any report. We expected them to bring a report; a report that gives a clear reasoned analysis of evidence placed before it, taking into account the judicial notice that I have talked about and inform the House of their reasoned conclusion. I want to inform my good friend, the distinguished Senator for Kiambu, that the Committee is an agent of the House and it does not bind the House. The decision belongs to this House. We can agree or disagree with the Committee because it is our entitlement as the Senate of the Republic of Kenya. The conduct of the Governor of Machakos has not helped this case either. I talked to one of the distinguished Members of the Committee and he told me what was on trial did not turn out to be whether the Deputy Governor should be impeached but the exposition of the rot that is Machakos County. This Senate has a duty and we must discharge it. Since when, and this is uncontroverted, would witnesses in an impeachment proceedings go, depone and execute affidavits in the office of the Governor? That stinks. Even if the Governor wanted to knock out his deputy, not through the Rawlings way, but in the manner he chose to do, he could have been more tactful. He could have done things differently. Since everybody knows that the Governor was the engineer and architect in chief of this impeachment, why did he not come to testify before the Committee? 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 would not like to interrupt the very eloquent presentation by the Leader of the Minority but being an eminent lawyer who knows the Constitution from cover to cover, can we allow him to mislead Kenyans and this House that calling somebody a Mhindi - and we know it can be said in a derogatory manner and it is a racist remark - to trivialize it in the manner in which he is doing and saying that it is nothing. This is a serious racial slur. I would like the Leader of Minority to apologize for misleading the House.

Mr. Speaker, Sir, I am reliably told and even from these proceedings, Dr. Sunil Kumar Dhall; nowhere does he complain that he felt slighted when he was called a Mhindi . A Member of the Committee informs me – and I believe him – that, indeed, even before the Committee, he did not complain that he was called a Mhindi . How can that be a charge that can be brought before the distinguished Senate of the Republic of Kenya to arbitrate? Mr. Speaker, Sir, it is with this that I keep on agreeing that Sen. Murkomen---

Sen. Wetangula, except that I think you need to be fair to the Committee also. If you look at paragraph 262 and 263, it says:- “Although this matter was raised in the Grounds and Particulars of Allegations as forwarded by the County Assembly of Machakos, no evidence whatsoever was adduced by the County Assembly in support of this allegation.” In paragraph 263, it says:- “The Committee, therefore, unanimously found the allegation was not proved and was, therefore, not substantiated.”

Mr. Speaker, Sir, you have just said what I was going to say!

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!

What is it, Sen. Wamatangi?

Mr. Speaker, Sir, I really would not want to disrupt the flow of the thought line of the Senate Minority Leader, but---

But now that you have done it---

Yes, Mr. Speaker, Sir. Is it in order – now that I have done it, as you say – for the Senate Minority Leader to mislead the county that he is unaware or ignorant of the fact that the 2007/2008 clashes were caused by utterances by people in this Republic which caused ethnic tension, eventual fight and confrontation? That, I think, is out of order in my opinion.

Mr. Speaker, Sir, in those elections, there was no Luhya contestant, and Sen. (Dr.) Khalwale can tell you that we probably lost the largest number of people in that conflict. The conflict was caused by a bungled election by the Electoral Commission of Kenya and not by outbursts by people. There was a peaceful campaign and elections, but bungled results, triggering a conflict. If you live in this country, you do not need to be reminded.

On a point of order, Mr. Speaker, Sir. I did not want to interrupt the Senate Minority Leader, but is it his argument, therefore, that actually the post-election violence was not pre-planned? It seems that he is perpetuating that direction.

Mr. Speaker, Sir, even if I said in the affirmative, it is unlikely to help any trial anywhere.

Mr. Speaker, Sir, I will now go to paragraph 280.

Sen. Wamatangi, are you still insisting? You are on a point of order.

Mr. Speaker, Sir, I insist on the point of order.

Except the issue of 2007/2008 post-election violence---

Mr. Speaker, Sir, I am not on that one. I had raised that point of order, so that the nation is not misled. Is it in order for the Senate Minority Leader to insinuate to a Senator whom he knows that he is elected in the County of Kiambu, that “if you live in the Republic of Kenya, then you should know that?” He knows that Kiambu is in Kenya.

Mr. Speaker, Sir, I can say what I know you are about to say, that English is a foreign language.

Order! Order, Sen. Wetangula! You know that I cannot say so. So, you are imputing improper motive on my part. Two, I am actually on record, under similar circumstances, saying that English is an official language according to our Constitution. So, the excuse about being foreign no longer applies. I see Sen. Wamatangi still persisting. Let me just confirm. Sen. Wamatangi, just listen to me. I think that you must appreciate the way Members debate. If he said: “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.

I salute you, Mr. Speaker, Sir. I will invite my brother and very great friend, to pass by the nearest bookshop and buy a book called “The Trouble with Nigeria” by Chinua Achebe and read it very carefully. Chinua Achebe says that recently he heard President Shehu Shagari saying that corruption in Nigeria has not yet reached alarming proportions. He goes ahead to say that anybody who makes a statement of that nature is either a fool, a crook or does not live in Nigeria. He went on to say: “I know that President Shagari very well; he is not a fool. I also know that he is not a crook. The only conclusion that I can draw is that even if he is our President, he does not live in Nigeria.” That is the book that is a-must-read for many of us. Mr. Speaker, Sir, paragraphs 280, 281 and 282 run through allegations that the Deputy Governor made utterances that were derogatory to non-Kambas, non-Machakos Kambas and so on. Then, they go on to conclude that they found it substantiated and it is hate speech. First, the Committee has no capacity to conclude that it was hate speech, unless it is has gone through a trial. Secondly, I it is not an ethnically-laced speech, even if the Deputy Governor was talking about non-Kambas and Kambas who do not come from Machakos. Lest we forget, apart from professional cadre, the purpose of devolution is to strengthen, build capacity and help residents of each county, to the extent that it will be unjust to go and pick a Wanyonyi in Bungoma and employ him to clear the Governor’s office in Turkana. This is because a Wanyonyi in Bungoma can be employed to clean the Governor’s office in Bungoma. That is why ugatuzi came to help people. Where you have doctors and engineers, they can work anywhere. What this man is saying, which is not hate speech, is: “Tafadhali, haya mambo hayasaidii watu wetu.”

Order! Order!

It was a quote, Mr. Speaker, Sir. It means:- “Please, help our people. Employ our people.” This is happening in all counties. We are fighting to increase the amount of money going to counties, so that they can put up factories, industries and employ people, to arrest urban migration and create wealth. How can this amount to impeachment? I want to urge this Senate to rise to the occasion, because the whole country is watching. Either we distinguish ourselves into ignominy as a House of trivial or we rise to the occasion and show Kenyans that we are not a pawn in political maneuvers and games engineered by Governors who want to punish and knockout their deputies. The day that this House---

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

Sen. Wetangula, do you wish to be informed by Sen. Muthama?

Yes, he is my Whip.

Mr. Speaker, Sir, I just wanted to inform my leader that Article 174 (d) of the Constitution speaks volumes. It says that the objects of the devolution of government is to recognize the right of communities to manage their own affairs and to further their 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.

Mr. Speaker, Sir, the beauty of civic awareness in this country nowadays is that great constitutional knowledge is not limited to us lawyers. I thank Sen. Muthama for the information. Mr. Speaker, Sir, when the Deputy Governor was asked what “ nguu” means, he explained to the Committee that what he wanted to tell people was to live in harmony. I have gone out of my way to ask Sen. Musila, who is the much older person here from Ukambani than Muthama and Sen. Mutula Kilonzo Jnr., and he has told me--- There is no doubt that Sen. Musila is a very respected person in this House. He was a District Officer, District Commissioner, Provincial Commissioner, Member of Parliament, Deputy Speaker of the House, an Assistant Minister for Defence and he is our Commissioner. Above all, he is not a man prone to extravagant language or exaggerations. He has told me that the use of the word “nguu” in Kikamba is very common and it is not offensive and does not mean what we are being told it means. I believe him because he has no reason to mislead me. I want to urge this House that let us not fall into a trap of malice, witch-hunt, trivial and spending our energy negatively and above all, portraying ourselves to Kenyans as a House which if a Governor cannot box his deputy, he brings it to the Senate to box for him. That will be a very sad day for this House. I want to say to all the Governors---

On a point of order, Mr. Speaker, Sir. I stand to wonder which Governor is being referred to by the Senate Minority Leader as having brought the Deputy Governor into this House to be impeached. He has repeated it time and again and as we went through the proceedings, I never saw anywhere where the Governor of Machakos wrote an affidavit wanting the Deputy Governor to be impeached. So, that is misleading information and I think for him to continue misleading this nation, it is very wrong because he is a leader who should be speaking the truth at all times. Is he in order to mislead the House?

Mr. Speaker, Sir, it is obvious in my response to the distinguished Nominated Senator that he was not listening from the beginning because I started where Sen. Hassan left, that all the affidavits placed in the Committee in which the distinguished Senator said were deponed or signed in the office of the Governor. It is on record and we were told by the distinguished Senator for Mombasa whom I have no reason to doubt.

On a point of order, Mr. Speaker, Sir. I would like the Senate Leader of Minority just to refer to one affidavit which was taken at the Governor’s office. Who said that an affidavit has a specific area and place where it should be signed? I think and I believe that even if it is taken on the floor, it does not matter; it should be considered as an affidavit. The affidavit having been signed at the Governor’s office does not mean that the Governor wanted the Deputy Governor to be impeached. Is he in order?

Mr. Speaker, Sir, the most difficult undertaking you can ever attempt to take is to defend the indefensible and you will not succeed, Sen. Njoroge.

Sen. Wetangula, I think Sen. Njoroge has raised good points which in the first instance, you dismissed him as if he was not listening and I wonder how he could make interventions without listening and now you are so 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 have been informed and I have no doubt that it is true that CECs who appeared before the Committee on cross examination and this includes one Sheila Mueni Mukunya - It is in the proceedings – admitted before the Committee that they deponed the affidavits in the office of the Governor.

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

Inform me.

Order! I had informed you on the right procedure.

Mr. Speaker, Sir, I will take the information.

I think I am not going to allow information that is really not necessary to help your case. I mean I have heard information which is just repeating what you have said. Of what value is that? I will only admit this after I have heard it so that you can respond.

Mr. Speaker, Sir, when we sat in the Committee, one of the Ministers in charge of Trade, Economic Planning and Industrialization, a Ms. Sheila Mueni Mukunya was asked by the defence lawyers where specifically she swore her affidavits--

Is it in the proceedings?

Yes, it is in the proceedings.

Where?

Mr. Speaker, Sir, in terms of the report, it is in the bundle of documents that we were given but it is not in the actual report. It is in the information shared to us by the County Assembly of Machakos.

Order, Senators! These matters are very easy. If it came as supplementary information, then you would easily find a minute to that effect which are usually attached to the report.

It is in the HANSARD.

If it is in the HANSARD, then get a copy. The responsibility is on your part to prove.

On a point of order, Mr. Speaker, Sir. Without interrupting the Senate Minority Leader – I have already interrupted anyway – this is a serious matter, and if I may request the House that we minimize interruptions so that we can hasten this issue in the usual manner which I do not want to say because the whole country is watching, you know what is needed to ensure that a vote takes place in this House. If we can allow it to flow a little bit, it will allow some of us to make contributions before we vote.

I think that is a good appeal but I still reserve the right because if a Member really feels aggrieved, he or she has the right to get proper information and whoever is making the assertion has also the obligation to prove it.

Sen. Wetangula): Mr. Speaker, Sir, I want to encourage Members of our Committee whom we have already thanked, that having 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 would like to seek a small clarification on Chapter 280 of this particular Report. It refers to the word “nguu”. I understand the Kamba Language and I speak it. When you talk about a “nguu”, you are talking about something that walks slowly because it is a tortoise. So, when it is reported here that the Deputy Governor referred to outsiders as “nguu”, personally that does not make sense at all to me because---

Order, Sen. Mungai.

Mr. Speaker, Sir, he may be out of order but he was arguing very intelligently and I salute him. In law, we have what we call illegally obtained evidence. Illegally obtained evidence can still lead to conviction. I thank the distinguished Senator from Nakuru because he has told us exactly what Sen. Musila told me. My time is up. 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. Sen. Mungai, a good friend of mine, is out of order to imply---

Order, Sen. Muthama. That matter is already gone and more importantly Sen. Mungai did not actually have the Floor. Proceed, Sen. Murkomen.

Mr. Speaker, Sir, this is another very sad afternoon in the Republic of Kenya and the history of devolution. The reason is that we are again, the fourth time, presiding over an impeachment of a public officer in the person of a Deputy Governor of Machakos. The first one was the Governor of Embu, then we dealt with the Deputy Governor of Embu, then we moved all the way from Mt. Kenya region to the land of tea to deal with the impeachment of the Governor of Kericho, then we are now back to the other end, the dry areas of Machakos to preside over the impeachment of a Deputy Governor. Perhaps because it is Machakos and Ukambani area is a little bit dry that tortoises become the subject of this impeachment. Mr. Speaker, Sir, personally, as the Chair of the Committee on Devolution whose mandate is to foster good relationship between the county government, the national Government and also among institutions of governance in the county, presiding over about four impeachments in just about one year and a few months is a sad state of affairs. There must be something going wrong in terms of people obeying the law, in terms of looking at alternative dispute resolution mechanisms, looking for people trying to live by the law or living amongst themselves in good relations. As a Chair of the Committee on Devolution, I feel that we are drifting everyday from the aspirations of our Constitution in Article 174. It says that the objective of devolution was to have self-governance of people so that they can make decisions that are going to affect them and further their own development. The people of Machakos, the people of Embu, the people of Kericho and the people of this Republic of Kenya are looking for services and for those services to be delivered, the leadership in that county must focus more on fostering inter-leaders relations in terms of those leaders abiding by the law or them trying to work with everybody else to attract investment in the counties. Mr. Speaker, Sir, when this Motion was being moved, I said that I have a lot of sympathy on the position of the Deputy Governor and the reason is simple. The position of the Deputy Governor is very unique in the Constitution because apart from Article 179 saying that the Governor shall be the chief executive officer and the deputy shall be the deputy, when we come to the County Governments Act, particularly Section 33 where it is talking about the functions of the governor, nothing is said about the deputy governor. Nothing at all is allocated to the deputy governor. Today, we are presiding over the impeachment of a deputy governor and it is important for us to sit down and think through: What is the position of other deputy governors in this country? I have sat with them. The Embu one was chased to one kilometre away, given an isolated office where she could not do anything in that county. When she was brought to our Committee which was Chaired by Sen. (Dr.) Khalwale and I was the Vice-Chair, they said that she is being punished for being co-superintendent. This term has not been debunked. I am saying 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.

Order, Sen. Murkomen. I can help. You said that the Deputy Governor of Embu was accused of co-superintendent and that word has not been debunked. I am wondering whether it will ever be debunked.

Mr. Speaker, Sir, I have published a Bill and I hope this House will sit down and give meaning to the position of the deputy governor so that in future even as we preside over, we will be looking at the functions vis-à-vis the expectations of the people of that county. In working on that Bill, I have read about Nigeria. The story of Nigeria in the first few years shows very clearly that most governors were impeached. That impeachment was related to matters of accountability. That issue is still going on in the County Public Accounts and Investments Committee. Most of them were sent home because when they came to the office, they suddenly realized that they have enormous resources. In the situation of Kenya, one of the inductions the governors underwent in Naivasha was the “big man induction”. They were told you will be called “Your Excellency”, you will have a siren, you will have a flag and so on.” That is the one thing we are still struggling with in the County Public Accounts and Investmetns Committee. Be that as it may, the later years of devolution in Nigeria became the years of impeaching deputy governors. The reason was this, in Nigeria, the deputy governor is suffering for many reasons, some of which are related to succession, power control, competition for political space and political parties. The Nigerian situation is unique because they do not have the opportunity to appeal against impeachments to another level. In Nigeria, at the state, once the governor has succeeded in removing the deputy governor, he just takes it to an equivalent of the county assembly and the deputy governor goes home. Luckily in this Republic, we have a second look by the Upper House; the most important Chamber in this Republic on matters of impeachment. And as we preside over exclusively an impeachment of a Deputy Governor where the Governor is not in the proceedings, we must remember and have that in mind that issues of impeachment of Deputy Governors put them in a very awkward situation and I leave the rest of that statement to be filled by your imaginations. 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. (Dr.) Agnes Zani. 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. As Sen. Murkomen said, when devolution came to the counties, there was a real promise, especially from the common citizen, that there would be a difference about the way we do things; and that devolution will not be about power and power struggles between various people at various levels within the counties. It was expected as a result that social, economic and cultural development would actually take place. Therefore, we have to put into context this impeachment. For the other impeachments, the socio-cultural implications have not really been there. But for this particular impeachment, the subjective nature of the charges makes it very mandatory for us to relook at the scenario and the context of this particular impeachment. Mr. Speaker, Sir, these impeachment proceedings started with a meeting that was called at the Machakos County for the County Executive Committee (CEC) Members and in a seemingly usual meeting, suddenly, the issue became something else. In that particular meeting, the Deputy Governor, who was present at that meeting, raised an issue about his security, and all this has been very well explained in the affidavits. Upon raising that specific issue about his security, the next thing is that the agenda was changed so that it was his conduct that was going to be discussed and he was requested to leave the room. The next thing we have is a series of affidavits; therefore, this impeachment actually started with the Cabinet and not with the County Assembly, even though it ended with the County Assembly. After the resolution that was made from the County Assembly to proceed with this impeachment, then from there, the Deputy Governor was actually impeached and his case, therefore, came to us as the Special Committee. Mr. Speaker, Sir, one of the things that came out at that particular meeting was that an issue arose about the criminal records. It was clearly seen from the evidence that we have that a particular case that was put into place – that he actually had a criminal case – was finally dismissed. From that point onwards, a letter was written by the County Secretary (CS) for the Deputy Governor to appear in that particular committee that had been set up. By the 9th of July, the Speaker of Machakos County Assembly received notice of a Motion to remove the Deputy Governor by impeachment. On 11th July, a letter was given to the Deputy Governor to appear before the ad hoc Committee. Mr. Speaker, Sir, it is paramount to indicate here that the Deputy Governor, one, was not given sufficient time so that he could actually go to the County Assembly and defend himself and, therefore, the final view that was presented by the County Assembly does not include the input from the Deputy Governor at that particular point. Everything happened so fast and it was almost impossible for the Deputy Governor to really catch up with the process and defend himself. On the 23rd of July, the Motion for impeachment was raised. Mr. Speaker, Sir, it is very clear that when somebody reads through all these affidavits – which have been mentioned already – that they are very common in content and similarity to the point that they were all written and pre-thought at the same time is very evident; and that became very evident even as we met during the meeting. This whole issue raises a real important aspect for us to look at in terms of the relationship between the Governors and the Deputy Governors. It has already been alluded to that in most of the counties, if you ask what the Deputy Governors are really doing, it is almost 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, pursuant to Standing Order 30 (3) (a) and 4, I beg to move that the Senate resolves to extend its sitting time until the conclusion of business appearing in the Supplementary Order Paper.

Order! Order, Members! The import of this is that 30 minutes before normal closure, we should be able to extend time if we want to conclude this business today. If we do not do so by 6.30 p.m., it will go to another day. So, I would like you to understand. I feel that the mood of the House is that we try to conclude today. 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 seek your guidance, whether we can support a Motion that has a specific time, for example, that we can end the business by 7.30 p.m.

Until we finish!

Okay, I guess that is the mood of the House.

On a point of order, Mr. Speaker, Sir. I stand to support the extension of time but I think that it should be left until we finish business. This is a very important issue and I do not think that the Members’ time for contribution should be shortened. We should be able even to go up to midnight, to make sure that this issue is properly dealt with. This is because impeaching an individual is not a light matter.

Sen. (Prof.) Anyang’-Nyong’o, if we shorten by five minutes only, you will remain with ten minutes. You might wish to go up to midnight, but how many Members can you sustain up to midnight? If you do not get the requisite number for voting, you will not take a vote. So, you have to balance all these things. Sen. (Prof.) Anyang’-Nyong’o, I have the requests before me which might guide us. I have eight requests. So, if you speak even for ten minutes, we are talking of about one hour and twenty minutes. That would be reasonable.

Mr. Speaker, Sir, I agree with you. I think that, that is reasonable. I think that within ten minutes, a reasonable human being should make points.

Order! Order, Senators! I, therefore, wish to put the question.

The next contributors after Dr. Zani will have ten minutes each. Proceed, Sen. Zani.

Mr. Speaker, Sir, I want to directly go to the specific issues, especially the issue of threshold. It was important for us, as a Committee, by the time we actually said that these are charges that should lead to an impeachment, that we adduced very clearly that the evidence given really supports the charge as put across. The first charge was that he used derogatory language against the people of Machakos. I had an opportunity to talk to a friend that I had not talked to in a long time. Without even her knowing exactly what we were doing at that particular moment, she mentioned that she is a Kamba from Machakos. Therefore, I proceeded to ask her: What does the word “nguu” mean? If it was a word that was used so commonly in a particular derogatory way, she would have quickly told me exactly what it meant. She took time 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.

Senator (Dr.) Zani, your time is up.

First of all, I must thank you, Mr. Speaker, Sir, and the Clerk of the Senate for extending my travel abroad this afternoon to tomorrow so that I could attend this sitting. It is important because if I did not, I would have been disturbed. I am not very intimately knowledgeable about the proceedings like those which were in the Committee. I have read it rather sketchily towards what I consider to have been the resolutions. Impeachment is a very, very serious matter. In fact, it is an offence greater than most of the crimes that we know. This is an offence that can make the whole United States of America remove their President whom they have elected by a majority from office. It is not a joke. In fact, this Constitution while referring to impeachment was very specific. Sen. (Dr.) Zani who has just spoken talked of the threshold which I believe is in the Constitution. In Article 181 which seems to have been referred to in the proceedings, the Constitution did not leave us in doubt as to what is the threshold. It said in Article 181 (1) (a) “Gross violation of this Constitution” and not just a violation of the Constitution because you can violate the Constitution. In fact, this Constitution seems to accept that you can actually violate the Constitution, but to bring you to impeachment, it must be gross. So, this must be a very serious matter. Then it also says that it must be a violation of any other law, although I think they made a mistake by saying that the real offence is gross violation of national cohesion. You cannot grossly violate an Act of Parliament; you can only violate a section of an Act of Parliament. You should have told us exactly what this Deputy Governor violated. If it is ethnic discrimination, you must give us evidence which supports the view that he actually committed what is called ethnic discrimination or is it like it is said in Section 6; harassment on the basis of ethnicity and then you give us evidence that supports the fact that the Deputy Governor actually harassed people on the basis of ethnicity or you come to hate speech and tell us that the Deputy Governor said “a” “b” “c” “d” which is hate speech. Hate speech is not against individuals. In fact, it is not an offence to hate you. What is an offence is to hate a community. You can even hate them but to speak with hatred against a certain community, that is what is covered here because it is likely to bring ethnic conflict. That is what we were dealing with when we wrote these things into law. When I listened to Sen. (Dr.) Zani saying that a nguu is mostly referred to as “he” rather than “they”, then I thought, then the Governor is the nguu . 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 feel disturbed. Is it in order when the Senator is insinuating that the Deputy Governor was actually referring to the Governor as nguu, when in the proceedings it was very clear that the Deputy Governor referred to non Machakos Kamba and Kikuyus?

Mr. Speaker, Sir, we should not just disturb other people’s trail of thought because you do not agree with them. If you do not agree with them, you will get your time to say what you want to say. There is nothing out of order—

On a point of order, Mr. Speaker, Sir. Is it in order for the distinguished Nominated Senator to bring ethnicity on the Floor of the House when the proceedings that he has brought to us simply says that

was said to mean that there were too many Kambas and non-Machakos Kambas. Where is he getting the Kikuyu? These are the kind of statements that do not help the country.

Mr. Speaker, Sir, I was in those proceedings and I think it is quite unfair for the Senate Leader of Minority to just pick one line. When I attended those proceedings, in one of the bundles, we have the document where the non-Machakos Kambas and Kikuyus were referred to.

Order, all of you. Let us not be excited about these things. Let me just confirm that the language we have is about non-Kambas and non- Machakos Kambas. Let us not introduce others that are not there.

Mr. Speaker, Sir, after looking at the recommendations of the Committee, earlier on, I was of the view that the recommendations would be bipartisan and unanimous because if really somebody has created a crime, then it should be unanimous that there is a crime and if somebody has killed another one, then it should also be unanimous. However, immediately I saw that there was a vote taken, then I knew that there is something more in this thing than meets the eye. What was the real charge? It is on Page 20, paragraph 29 allegation No.1, because usually, you put the most grievous allegation first. Now, the allegation No. 1 is that the Deputy Governor conducted himself in a manner that undermined his position as a member of the Machakos County Executive by antagonizing the Governor.

Order Sen. Kajwang. Are you putting first a matter of your own practice or what actually happened in the Committee?

Mr. Speaker, Sir, that is my view and that is what I am stating; that this, in my view, was the real allegation. Members of the Machakos County Executive Committee undermined the collective responsibility of the county executive as 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.

Your time is up!

Mr. Chairperson, Sir, thank you very much for giving me the opportunity. First of all, I really want to thank my Chairperson---

Order! Your Chairperson is not here.

My apologies, Mr. Speaker, Sir. I would like to thank the Chairperson, the Vice Chairperson, the Committee itself and all Members of staff who worked on this report. The distinguished Senator from Nyeri has presented the report in the spirit in which the Committee discussed it. I would like to inform the House that when the Committee decided to submit a majority and a minority views, it is purely on the impeachment article. It was a very weighty issue because of what Sen. Kajwang says; that it is a major contravention of the Constitution. Personally, I spent a sleepless night just thinking what that means. Is it really possible to send a Deputy Governor home with the consequences of what impeachment means on this particular issue? 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 time to contribute to this very important Motion. I was honoured by this House to become one of the 11 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! Order, Sen. Hassan! When you were making your contribution the whole House was very attentive.

en. Hassan, you are a lawyer and you know that impeachment sometimes does not need to prove--- We found that most of the offences are misconduct, but not gross. The lawyers and the Senate must come up with a law which will guide us on threshold. This is because they say that threshold is left to the individual member. Some of us might say that threshold means something different. We need some guidance in law, so that we know the parameters of threshold. Mr. Speaker, Sir, with those few remarks, I support.

Thank you, Mr. Speaker, Sir, for allowing me to contribute to this very important Motion. Mr. Speaker, Sir, I want to start by saying that what we have witnessed part of this afternoon and even in the early hours, is an impression that has been wrongly created that this Senate acts in a manner that affects its integrity. This is not the very first Motion of impeachment that we have had in this House. Ordinarily, this House has a bipartisan approach. We do not support or oppose an individual because of his party affiliation. Our starting point must be looking at the merits and demerits of each of the cases as they come. It is important that all of us get to understand that the reputation of this House is far greater than anything else. It is a House that is viewed as the voice of reason. It is a House that has created hope amongst Kenyans. I do not just want to support Bernard Kiala or the supposed factors who may be engineering his removal, but I stand here speaking my mind based on what the Committee has presented and any other factual information which will help us achieve the right decision this evening. Mr. Speaker, Sir, one can have a dissenting voice from the Committee that he or she is a Member of. But I think that it is important that the individuals who also want to differ with the Committee that represents this House look at issues objectively. We must address the issues rather than personal issues. That should be the starting point. The issues that have been raised are weighty. There were quite a number of issues, but I ran through some of these and decided to look at the two major ones that have been zeroed down on by the Committee. There is one that relates to the abuse of office and the other that relates to the derogatory remarks supposedly made by the Deputy Governor. These 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. Murungi?

Mr. Speaker, Sir, our Committee was a fact finding Committee and the final decision whether to impeach or not to impeach the Deputy Governor is a personal one made by each of the Senators. I think we have now read the report and heard the views. Would I, therefore, be in order to call the Mover to reply so that we can exercise our right?

Order Senators! You remember we had actually taken a decision that we are extending time and that we limit it to the ones who are on the screen. We have actually exhausted that number and we are going on with others. I see three requests here. The one of Sen. (Dr.) Khalwale seems to have disappeared. So those will be four. So, I think if all of you took five minutes each, that will be good and then we will call upon the Mover to reply.

Mr. Speaker, Sir, I stand to support the impeachment Motion of the Deputy Governor of Machakos, that is after noting the Report by the Special Committee which was given the mandate by this Senate to go and deal with the matter of impeaching the Deputy Governor. I remember out of eleven Committee Members, without naming names, only two found the charges not to be substantiated. Mr. Speaker, Sir, nevertheless, I would like to say that if the offender is left unpunished, it means that the impeachment process will become valueless and meaningless. If we take sides on party lines or on ethnic considerations, the process will remain a fraud. To be very clear, personally why I believe that the Deputy Governor should be impeached is because of the evidence that was testified in the proceedings that at one time he said that the nguus should leave Machakos. He was very categorical and that the nguus he meant were non-Machakos Kambas and Kikuyus.

On a point of order, Mr. Speaker, Sir. Would I be in order to tell my brother Sen. Njoroge to kindly desist from mentioning names of communities in this House. We are talking about Kenya and he has kept on talking about Kikuyus. Where is he taking this House to? Is he in order to continue inciting and misleading this House? We are a serious House.

Mr. Speaker, Sir, without contradicting myself, I think the document which was tabled in this House at some point has some evidence stating what I am saying. I know every Member in this House has that document and I do not think I am cooking anything. This issue should not be taken out of proportion because I am just repeating what the witnesses said.

On a point of order, Mr. Speaker, Sir. When a Member who was in the Committee alleges a certain fact as evidence and the fact is so serious as to say that

referred to non-Kambas and Kikuyus, he must bring that affidavit or evidence and read it to us. He must tell us that it is paragraph this and this. He cannot come here and make funny allegations.

I think the point has been made by Sen. Kajwang. Sen. Njoroge, could you respond? 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, because all the Senators opposing me are my seniors and good friends, I am in a lot of trouble because I cannot keep arguing over this. I might end up violating the rules. I do not want to continue on that line and so I drop it.

Sen. Njoroge, by the way, it is not a matter of being persuaded. According to our Standing Orders, you have a responsibility to give accurate information. So, you either have it or you do not. If you do not have it, apologize and move on.

Mr. Speaker, Sir, as a matter of fact, I would say without contradiction that what I said here before this Senate is in this document. If you gave me five minutes, I can produce it and read it to this House. If they persist asking me to give the evidence, I will do so.

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

Order, Sen. Musila! I thought your name was being floated by one Sen. Wetangula for all the good reasons and one of them which I heard was that you were a former Deputy Speaker and, indeed, the Chairperson of the Standing Orders Amendment Committee and I know that for a fact. The current Standing Orders allow a Member to even seek time to substantiate not later than the next day. He has only asked for five minutes and that is not too much to ask. Conclude your submissions, I will give you the five minutes, you produce it or you suffer the consequences.

Mr. Speaker, Sir, considering the seriousness of people issuing ethnic related threats and the reference we have heard before of the consequences, whichever way the voting will go, I wish to make it clear that, that should not be let go without punishment.

Your time is up. Sen. Wangari and remember you have five minutes.

Five or ten?

Five.

Mr. Speaker, Sir, I want to, first of all, thank the Committee under the chairmanship of the Senator of Nyeri County, Sen. Kagwe. I thank the secretariat for the work and hours they put to make sure that this report was presented to this House. Mr. Speaker, Sir, from the outset, I support this report because I know there are some things in this country that we take to be normal. When we were listening to the submissions of this case, and we sat for long hours, listening to accusations and counter accusations, we were in agreement on many of these issues. The fact that we brought a majority and minority report should tell this House that we did a good job. It was also expected that we do not always agree on everything. However, just because we brought a majority and minority report does not mean that we were wrong because we were inconsistent like the others that have gone before us. Since we did not agree on every issue, it does not mean that we, as a Committee, were wrong. Mr. Speaker, Sir, there were many issues that were raised. In fact, as you heard from the Members who have spoken before me, there were 24 charges that were presented to our Committee. Personally, I was only convinced on three and very strongly on one on derogatory language and issues that could cause ethnic tension. 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. Senator! Your time is up, five minutes have elapsed. Sen. Njoroge.

Mr. Speaker, Sir, if you could allow me because I believe we are on live proceedings, I would like to refer to page 40, paragraph 93 up to page 43, paragraph 105.

Can you be specific, we cannot go through all those paragraphs. I have already read paragraph 93 which talks about non Kambas and non- Machakos Kambas. Just tell me where those others are mentioned.

My time was very little. Can I apologise and withdraw?

That is an option available to you. I think that is the right thing that you should do. 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 apologise and withdraw because of the limited time.

On a point of order, Mr. Speaker, Sir. If the Chair so directs, since I was the last person who was supposed to speak, I wish to donate my five minutes to Sen. (Dr.) Khalwale, for him to have at least ten minutes.

It is unnecessary, but if it pleases you, it is so directed.

Mr. Speaker, Sir, I rise to oppose the report of this committee in its conclusion. I would like to share a word of caution that I have given myself, namely, that we should not lose the fact that the deputy governors, in all our 47 counties, have no jobs prescribed to them. The governor might very well visit injustice to the deputy governor. I have also cautioned myself that if we do not navigate this case very well, and treat it casually, we should not be surprised, in the hot politics of Kenya, if in the fullness of time, the same frivolous and vexatious accusations can visit the Deputy President of Kenya and you find he has also lost his job. I want to thank Sen. Kagwe. He is going to turn on only the issue of hate speech. I would have expected that the Chairperson would lead the Committee in bringing to this House evidence to support that particular conclusion. I have gone through the file and here is the evidence. The first one is a photocopy of Short Message Services (SMSs) messages purportedly from Safaricom. I want this House to find that this is not evidence. It is not admissible by the standard evidence and parliament for the reason that this evidence preferably should have been authenticated at the very least, but at the best, should have been introduced by Safaricom itself. There is nothing that could have stopped somebody from taking a photocopy in the Governor’s office in Machakos and purporting that this is

. It is not evidence. This is a photocopy of some placard about nguu toka. This is a mere photocopy, it is not authenticated. It might have as well been taken in River Road. This is not evidence. This is another so-called poster of nguu Toka. Again, it is not evidence. It could have been done on the back streets of Kakamega Town. Mr. Speaker, Sir, the next one is a speech that is attempting to translate the words uttered by the Deputy Governor. It is not evidence because it becomes evidence if it is signed. It is a piece of paper. The next so-called evidence is a speech by the Deputy Governor from Masii Catholic Church. The best they could have done---

Sen. (Dr.) Khalwale, I hope your time is limited. You can only produce documents to illustrate a point and then you move on to the next one.

Mr. Speaker, Sir, this is not evidence. I am, therefore, disputing everything that the Committee has tried to persuade us to be evidence. It is not evidence, they are pieces of paper. The next point I would like to make is in respect to the Deputy Governor. When you go through this evidence, the Deputy Governor is actually the hunter who became the hunted. If anything, the Deputy Governor should be receiving commendation from this House and, especially from my Committee of the County Public Investments and Accounts. This man is being hunted because of him pursuing issues of transparency 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.

Order! You are moving on a very dangerous trend. You know how documents are admissible in the House.

Thank you, Mr. Speaker, Sir. I, therefore, find that there is no hate speech whatsoever---

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

What is it Sen. Elachi?

Mr. Speaker, Sir, I would wish my Senator to show us the documents because we do not have them. I am wondering if they are part of the report.

She is absolutely right. For you to table those documents, the Chair must see them and confirm whether they are the ones that were presented.

Mr. Speaker, Sir, I have simply pulled them from this for ease of reference. They are actually part of the documents and paginated. Mr. Speaker, Sir, on the allegations that the Deputy Governor was trying to suggest in any way that people who do not come from Machakos or people who do not come from Kambaland should not take the lion’s share of the opportunities in Machakos, that is perfectly constitutional. That is what I see every Senator fight for in his county. So, if the poor Deputy Governor was observing Article 10 of the Constitution which in Article 10(2) provides as follows:- “There must be equal and social justice” If the people of Machakos County, for 50 years have not been enjoying access to opportunities, now it is up to the Governor and his deputy to ensure that they have access. This Deputy Governor by making that exposure, he was actually giving effect to Article 10(2)(a) which says that a public officer should have patriotism, sharing, devolution and the rule of law. If the Deputy Governor is so patriotic that he is a whistle-blower as is found in this evidence, I beg that at the end of this particular exercise, the House and the County Government of Machakos waits for the report of the County Public Accounts Committee on Machakos because we are working on the findings of the Auditor General. These issues raised by the Deputy Governor have actually been tabled in this House and passed over to our Committee for determination. If anything, this Deputy Governor should be equated to the character in the book called The Enemy of the People by Henrik 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. Is my good friend in order to mislead this House that the Deputy Speaker is the only corrupt-free man in Machakos County? Could he substantiate and table documents to support his opinion?

Mr. Speaker, Sir, indeed, the Deputy Governor on oath has submitted all these documents and when you go to through, and I expect Sen. Okong’o as a Member of the Committee to have gone through, he has demonstrated how he is fighting corruption. What greater patriotism would Sen. Okong’o be asking from this gallant son of Machakos. We have great gurus in Ukambani and some of us are old enough to know them. We have former Minister, hon. Titus Mbathi, retired Chief Philip Waki, the father of Justice Waki, hon. Kiala Mwendwa, former Minister and his brother Mr. Ngala Mwendwa. The Committee could have invited any of them or all of them to speak to the issue of Kamba language. I fear to be before your Committee on a matter requiring interpretation from the Luhya Community. As Sen. Wetangula told you kukhu might mean your grandmother and it can also mean your small little girl who your wife has given birth to and whom you love the way you loved your grandmother. Finally, the Governor of Machakos and all other governors must accept forever to live for five years with their deputies because it is like in the Luhya culture, the lady after a few days after marriage ran home to tell the mother that I am walking out because my husband snores. The mother told her that your husband will soon discover that you----

Sen. (Dr.) Khalwale, your time was up and I am glad you said that off record.

Mr. Speaker, Sir, today I stand before this House to say that the main issue that came from the Committee is about gross violation and hate speech, looking at the National Cohesion and Integration Act being violated. This country has walked a long journey. As much as we would want to be emotional or as much as we would want to look at it politically the way we are trying to do, this Senate must address how we will ensure that the 30 per cent in every county who will be experts from other counties is adhered to. Coming from a situation where we used to call people madoadoa, coacroaches, grass and so on, we must ask ourselves if that is the direction we want to take this country. This Committee should also in future look and reflect without looking 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 have the last two contributors; Sen. Mutula Kilonzo Jnr. and then, finally, the Senate Majority Leader.

Thank you, Mr. Speaker, Sir. First of all, I must declare my interest; that I have represented both Governor Mutua and his deputy successfully in their election petition. Therefore, while I speak about this impeachment, I will stick to the law. Mr. Speaker, Sir, I am greatly appalled by the references given to the word nguu because my late father, in doing conservancy, left over 300 of them in Machakos.

Therefore, I wish this Committee went to see those peaceful animals we call nguu in Kikamba so that, then, any references – derogatory or otherwise – would give those nice, beautiful animals called nguu in Kikamba, that we keep at Maanzoni Ranch, a different meaning. Thank you. Secondly, Mr. Speaker, Sir, I am extremely concerned about how the Committee wanted to handle the question of Sections 3, 6 and 12 of the National Cohesion and Integration Act. Particularly on how they determined allegations, under part 4 on whether or not this met the threshold of beyond reasonable doubt. To me, that does not appear 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.

Dr. Machage here!

Sen. (Dr.) Machage was acquitted---

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

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

Mr. Speaker, Sir, may I inform the hon. Senator that the arbitration of the case took one-and-a-half years and I won the case!

Thank you for the information. Mr. Speaker, Sir, although we cannot condone – and I wish when Deputy Governor comes here, he apologizes because it is not in Kamba custom to insult people. If that is what he did, he should apologize. However, if he was making, like we do in every Kamba parable – Kamba’s are famous for parables. We like parables because they describe things. It is possible that if you are not a Mkamba, you will not understand a Kamba parable and you will get lost. So, we should ask this gentleman to come here and explain what he meant. If it was an insult---

Order! Except that, hon. Senator, by the way, this did not just come straight to the Senate. I want to believe that a majority of the Members of County Assembly (MCAs)---

Are Kambas. 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.

Yes; thank you for that, Mr. Speaker, Sir. But I want- --

(Sen. (Prof.) Kindiki): Thank you, Mr. Speaker, Sir. I will be brief. I have listened with great admiration to the various contributions that have been made by my colleagues this afternoon. Mr. Speaker, Sir, I want to start by thanking the Committee for doing a good job because in the tradition of this House on the matter of impeachment and even on other matters that we have had to deal with, we have relied overwhelmingly on the trust, confidence and expertise that our Committees have displayed. So, I want to go on record as thanking every Member of this Committee; those who supported the majority report and those who supported the minority report because we are not here as robots. If you are not careful, we might push this bipartisan thing in the wrong direction. The reason we are here is because every Senator has a right to arrive at a conclusion so long as you justify why you have arrived at that conclusion. So, I am grateful to every Member; those who supported and even those who dissented. Having said so, Mr. Speaker, Sir, I want to agree also with Sen. Mutula Kilonzo Jnr. that this is an apex body for devolution and we have a lot of work to do in the coming months and years. The only small area I disagree with him is when he says that this is like the House of Lords in the UK; and that when we make a decision, it is followed in the village. With due respect to him, that is not true. In the House of Lords in Great Britain, colleagues, that House is both a House of Parliament and it is a court of law. In our Constitution, the Senate of the Republic of Kenya is not a court of law; it is a House of Parliament. So, that difference needs to be brought out. Thirdly, Mr. Speaker, Sir, I want to say that I heard my brother, the Senate Minority Leader while he was contributing saying “Oh, we are a quasi-judicial institution;” that is also not true. This is not a tribunal; this is not the Liquor Licensing Board. This is the Senate of the Republic of Kenya. We are Senators!

Mr. Speaker, Sir, what we are doing here, and that is my fourth point is that impeachment is not an academic exercise. It is not a judicial exercise, but it is a political process. That does not mean that we cannot be fair. By being a political process, we can still be fair. However, we need to set the record straight that this is not a court process. That is why we have had issues with courts once in a while when they have not understood what we do here every time we are dealing with impeachment. Mr. Speaker, Sir, fifth point is that I have also listened with horror and disbelief as some of my colleagues, with due respect, have tried to trivialize some of the things that have been enumerated by the Committee. I am very proud that the Committee found some of the charges not substantiated. That is good enough. But at the same time, the Committee found that one of the charges was substantiated. That is also good enough. Section 33 of the County Governments Act says “if any of the charges is substantiated.” 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 now call upon the Mover.

Thank you very much, Mr. Speaker, Sir. From the outset, I want to thank all Senators. This is because the fact that we hold different views does not seem to affect the relationship between the various Senators. Mr. Speaker, Sir, I also want to particularly thank the Committee that dealt with this issue. On many nights we argued and disagreed on these issues and eventually agreed on most of them. In fact, out of a line of 24 issues that we were supposed to discuss, we agreed on all of them, except three. Therefore, the fact that we did disagree on those three issues does not mean that the Committee did not work together. 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. Is the Chairperson of the Committee in order to misinterpret our contribution? It is not that we doubted his words, but we were insisting that he confirm to us whether, indeed, that legal officer is an expert and authority on the Kamba language. We gave you various alternatives, including interpretations by leaders from that community who have been communicating with us. Is he in order to mislead?

Mr. Speaker, Sir, I want to tell my friend, Sen. Boni Khalwale, that if he reads that particular affidavit, one of lines reads:- “I confirm that I am an expert in Kikamba language.” Sen. (Dr.) Khalwale clearly is not an expert in Kamba language, just as much as I am not. Therefore, when I am told, in a sworn affidavit, that somebody knows the language, I presume that he knows it. I have no otherwise. Mr. Speaker, Sir, if you look at---

On a point of order, Mr. Speaker, Sir. I have heard my good friend from Nyeri suggest that this was a legal officer of the county government. After 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.

Chairman, would you like to be informed?

Yes, Mr. Speaker, Sir, let me give the professors a chance.

On a point of information, Mr. Speaker, Sir. My Chairman is right in the sense that it is the guy from the County Assembly who did the translation, but the lawyer to the Deputy Governor, I think raised the issue that he wanted an independent translation from somebody else because since the County Assembly was party to the process, the prosecution wanted another independent authentification of the translation. I think that is where the difference is.

Mr. Speaker, Sir, be that as it may, we were sitting as eleven people in a House, out of who each one of those eleven people is a respected and able individual to make a decision. We were not sitting in a court of law as has been adduced in many instances. We were sitting in a committee of the Senate; quasi judicial, quasi political. In the United States, when a jury retreats to go and make a decision on a matter that is before the court, they do so on the basis of two things; law and the understanding of the individual who is there. The majority of the individuals sitting in the Committee were convinced, given the evidence that we were given, that nguu does not mean anything to do with peace. It means everything except anything to do with peace. Even as we debate this matter, one of the things we should really not do is slight the feeling of those people who felt affected by the use of that word and the understanding that was given by the majority of the people.

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

Order Senators. The Mover is just replying. I take note that when Sen. (Dr.) Khalwale and Sen. Kajwang were contributing, they had lean interruptions. I think it is only fair that you treat him in the same way unless there is something really burning, which is not the case.

Mr. Speaker, Sir, I really---

Sen. Muthama, if your colleagues dismiss the opinion of the legal counsel of the County Assembly on the basis of where he comes from, do you think they will take yours? Proceed, Chairman.

Mr. Speaker, Sir, finally I just wanted to point out something as I sit down. That because of the nature of the impeachment process which is quasi- judicial,

political, I think it is important for us to look at precedent as far as the impeachment processes are concerned and they are there in the Report including the dismissal of the Oklahoma Governor who after being cleared of many charges, he was dismissed for general incompetence. That is enough for us to do what we did. If the Committee were to say that there was general incompetence on this individual, it would have been enough. Therefore, even as we try to restrict ourselves to issues of law etcetera, let us remember that the Committee in its wisdom can recommend impeachment as long as it is convinced that the continuing holding of office by the Deputy Governor does not help the Machakos County. We are convinced that the future of Machakos County is the most important— 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. Is it in order for the distinguished Senator for Nyeri who has done a very good job for this Committee to tell this House that the Committee can recommend impeachment by feeling that continuing to be in office of the Deputy Governor will not help Machakos County? That is a feeling. We are dealing with facts and evidence and not feelings.

Kagwe: Mr. Speaker, Sir, I normally understand Sen. Wetangula, but this one time, I do not know whether he heard me wrong. You cannot raise an issue of objection by imagining, you cannot rise on a point of order by imagining. I did not talk about feelings. I said and I would like to repeat it that Governors have been impeached by precedent in the past not just on the basis of the charges that have been given to the Committee but on consideration of the Committee and coming to the conclusion that it is in the interest of the county that the Deputy Governor does not continue to hold office. As I said, we have tremendous respect for the people of Machakos County and for the Senator who represents Machakos County and he has been wise in the manner that he has behaved throughout this process, but, however, we considered very many aspects both judicial and political and wondered to ourselves, if we sent back Bernard Kiala, what happens then to the stability of the Government of Machakos County, to the well being of Machakos County and what happens if he continues with the issue of nguu ? We made a decision on this matter, not a personal decision but a decision based on facts and on the consideration that we would like to see a prosperous and well run county government. In our Report, we pointed out that there are issues that were raised during the deliberation on the impeachment process, there were issues of governance that were raised in a general way both within the Deputy Governor’s office as well as the County Assembly and the other institutions within the County Assembly of Machakos establishment. We recommended that some of these issues should be subjected to other Committees of the Senate to investigate and see where those issues lie and the truthfulness or otherwise of the same. We did all this because at the back of our minds was the importance of the people of Machakos; that we want to see peace and prosperity in Machakos County. It is the consideration of the Committee that that is going to happen when we impeach the Deputy Governor. Mr. Speaker, Sir, it is also imperative that this House considers these matters from a very non-partisan manner. I want to recommend that we do so because if this argument of political parties is pushed to its conclusion, this may well be the last impeachment process that will take place here because if we ever take partisan positions, what will happen then is that at every impeachment process, political parties will take their position, defend their people and in so doing, kill the entire stability---

On a point of order, Mr. Speaker, Sir. The Chairman of the Special Committee is misleading the House by saying that political party positions are at play here, because since the debate started here, no one has talked about political parties. Where is he getting this from? Is he in order to mislead the House? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

He is perfectly in order because he did not name the party. He was just guiding that the direction in which you should vote. That is his contribution and opinion.

In fact, I was making an appeal but having said that, I have been to school and I have two eyes and two ears. I can see and I can hear and expecting you to pretend that I cannot do that is completely out of order. We can try and bury our heads in the sand like the proverbial ostrich but when you come out, the fire will still be there. So, let us not hide and say that there are no considerations that relate to political considerations. I admitted that this is a quasi -judicial and quasi -political. Therefore, to deny that it is a matter not in front of this House is frankly lying to ourselves. You might want to do it yourself but I am sorry I am not going to do so. Mr. Speaker, Sir, let me once again appeal to the House that let us walk united, let us make decisions in a united manner.

Conclude.

I thank you, Mr. Speaker, Sir.

I am afraid the Minority Leader does not have such luxury. Order, hon. Senators. I think we have now concluded the debate and before we go to the next stage of voting, I had stated earlier in my Communication that we will give the Deputy Governor the opportunity to put his case before the House. Is he or his lawyer around?

Hon. Senators, now that we have the Deputy Governor of Machakos, Hon. Bernard Kiala, present, pursuant to Section 33(6) of the County Governments Act, the Special Committee of the Senate having found that some of the impeachment charges against you have been substantiated and before the Senate votes on the charges, you have a right to be heard by yourself or through your counsel. You have 30 minutes to do that after which the Senate will vote. You may utilize the full 30 minutes by yourself or you may share it with your counsel. You may begin now.

Thank you, Mr. Speaker, Sir. I propose to share my time with legal counsel who is present. I wish to record my respect to the Senate and the Committee. I have had a chance to listen to the charges against me. I was never given a chance to defend myself at the county level 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.

Deputy Governor, I will remind you that you deal with allegations that have been substantiated and they are two; one, gross violation of the National Cohesion and Integration Act; and two, abuse of office.

Mr. Speaker, Sir, I want to submit that I have not abused my office and that never have I at any one time given a hate speech. My fight for equality and affirmative action has been twisted to mean something different. I want to state that I wish the Committee had invited a Kamba speaking expert to give meaning to the word “nguu” because in our community, we have many idiomatic expressions and metaphors. We do not have a word like “nguus”. I heard the word “ nguus” in the Committee. We only have “nguu” and “ngu”. There is a time I talked about “ngu” meaning slow space when you are driving along bad roads in our county and which need to be fixed. There are times when I talked about “nguu” when I was referring to people eating in the government; the fact of corruption, the face of impunity and the face of nepotism in our county. Never have I at any one given time used the word “ngu” or “nguu” to refer to a specific community either within Machakos or elsewhere. I have always used those parables in a very positive way; calling for peace and unity. I know the Senate will use its position to protect devolution and counties. Irrespective of the outcome of today’s verdict, I still request that you get an expert to give a correct transcription of my speech because I know it has been quoted out of context so that it may try to confirm some charges that have been leveled against me. With those remarks, I now wish to invite my legal counsel, Mr. Ndubi, to pick up from there. 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.

Thank you, Mr. Speaker, Sir and distinguished Senators. It is, indeed, a pleasure for me to appear in this august House. It is a pleasure that I enjoy with a measure of regret because as you know, outside there, legal practitioners like my friend, hon. Sen. Madzayo or the Senate Majority Leader, Sen. (Prof.) Kindiki, Sen. Murkomen and the Senate Minority Leader know. We are referred to by the specialty of law we practice; you will hear about constitutional lawyers; you will hear about commercial lawyers; you will hear about environmental lawyers. I hate it. I dread the day we shall have impeachment lawyers.

I hope that we shall be slow---

Order, lawyer! They also practice here something called “Senator So-and-so.”

They are all my friends here. Mr. Speaker, Sir, there is a saying in Kiswahili which I am sure many of you will know which says “Baniani mbaya, kiatu chake dawa.” You may not like me; I may not like you, but we must respect each other and befit each other so that – again if I may use the Swahili expression – “Undugu sio kufanana ila kufaana.” I am saying this as expressions to deal with the background of the problem that has brought us before this venerable House this evening for the whole day. If you look at the record of the proceedings before the Committee and the record of the affidavits and statements filed by the County Assembly before this Senate, certain things become apparent. The first is that there is unanimity in Machakos County Executive or Machakos County Government that the Deputy Governor, Bernard Kiala, is bad. There is also the silent unanimity from those records that everything in Machakos is good except Bernard Kiala, the Deputy Governor, because nowhere in those myriad of affidavits do you find anybody saying anything positive about Bernard Kiala – not even his name – and there is nothing negative or no problem is described about Machakos except Bernard Kiala. Mr. Speaker, Sir, we do remember that in recent history, Machakos has been in the news for many other reasons. Machakos has been in the ears and lips of Kenyans because of the ambitious launch of the Machakos Modern Techno City; Machakos has been in our ears and lips about the Konza City; Machakos has been in our ears and lips about the ambulances; Machakos has been known for the many police cars; Machakos has been known for the fastest building or construction of a road; Machakos has been known a little bit ignominiously over the incidences of the Masaku 7s. Machakos has not been known in our ears and lips, even in national circulating media, about expulsion of people from different communities – whether from other counties other than Machakos or ethnic communities other than those originally resident in Machakos. This we got to hear it for the first time before the Committee and it is curious. 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.

You have five minutes left.

Thank you, Mr. Speaker, Sir. I will try my level best.

It is not trying, you have to conclude within five minutes.

Thank you, Mr. Speaker, Sir. The fact that no expert witness was called in respect of those two allegations is important material to allow the Deputy Governor resume his duties as Deputy Governor of Machakos. Secondly, the allegations are cogged in a very nebulous way. I do not mean disrespect to the Special Committee which found that they were substantiated, but when you say that you have substantially offended one statute or another, each of those statutes contain different offences. Which one is it that Mr. Kiala is supposed to have committed? There is another offence that says that he caused anxiety to individuals. I think reference was made to the annexure to the affidavit of one Dr. Obade who did not testify before this Committee. That is just a letter dated some day in May 2014 or April 2014, raising concerns generally, not specifically talking about Bernard Kiala but saying: “Can you assure us that members of staff working here are safe?” I want to invite all of you to recall that early this year, there were even threats by medical professionals to strike on account of this question of devolution. Some wanted to be devolved and others did not want. So, this was an illegitimate inquiry unrelated to the Deputy Governor, but it is now being used as though the Deputy Governor was the cause. Mr. Speaker, Sir, remember that whatever the allegations, including those matters that were not substantiated, some of those actions like the SMS, borrowing of money and others are things that happened in January and March, nothing happens in between, but somehow around 7th July, they become matters of consideration for seeking to impeach the Deputy Governor. Then what happened in that letter of April, the text messages of Janaury and March, the borrowing money of about that same period of March, where does the anxiety come from where we are now being told that people from outside of the county are anxious; that they are living in anxiety and fear yet – this is, for me, very important – no person or independent witness was brought to testify before the Committee to say that I have heard this; there is a preponderance of this nguu statement 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. That brings us to the end of this debate. It will now be time for voting. I order the Division Bell to be rung for five minutes.

Order, Senator. The Bell has stopped, draw the bar, close the door and then we will put the question.

On a point of order, Mr. Speaker, Sir. Looking at the number of delegations, I stand on a point of order to ask you to defer putting of the pursuant to Standing Order No.54 (3).

Where are the whips? Do we have the delegations? I need to know the issue of delegations.

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

I need to know the issue of delegations first.

I want to speak on her point of order.

I know you want to speak but as you do, I also want to have some basis. We have 21 delegations.

Mr. Speaker, Sir, according to Sen. Elachi, pursuant to Standing Order No.54(3), she is requesting you to move to another date the putting of the question and her reason is that we have less than 24 delegations. I would like her to guide us, which point of order in the Standing Order requires that before we take today’s vote, we must have 24 delegations present. Could she kindly direct us to that point of order in these Standing Orders before you give assent to her request? My submission is that if she fails to direct us to that kind of order, we should proceed accordingly. The process of voting is spoken to in these Standing Orders under No.68 (5), No.72 (1) and No.73 (1) and at no point, do they demand that we should have 24 delegations before a vote is taken.

Mr. Speaker, Sir, our vote in this House should be guided by the rules of quorum. Our quorum for the House is 15 Members. As it is, we are more than 15 delegations. To do anything different or to fall 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 heard the Leader of Minority saying that our Standing Order state that our quorum is 15 Members but it is also our tradition that we always say we have a delegation of 24 Members. It is also good that we honour what the leadership of this House had agreed before. We had agreed that whenever we are less than 24 Members, we defer the voting.

On a point of order, Mr. Speaker, Sir. At his particular moment, we are in division. If you look at our own Standing Order No.36, it is quorum during voting or division. That one is specific. It says that if from the number of Senators taking part in electronic or roll call division, it appears that the Senators do not themselves constitute a quorum, then the vote or division shall be invalid. This means that it is up to us, if it appears to us, that there is no quorum. Then the question is; what is the quorum? The quorum of the Senate or a Committee of the Whole shall be 15 Senators. So, as long as 15 Senators or delegations are present in this House, the quorum is achieved. In fact, the application before us is very mischievous. In fact, those who want to get this Motion passed are not 24 but they say that since they cannot get 24, the House must adjourn. That is shauri yako. If you cannot raise 24, then the matter dies.

Order, Sen. Kajwang. This is the second time you are using that phrase “shauri yako”.

I am sorry. I do not know much Kiswahili.

I want to include that phrase especially in the way you have used it, in what may be considered unparliamentary language.

I am sorry, I withdraw and apologize. Mr. Speaker, Sir, the burden of getting this report approved by this Senate is on the people who want it approved. It is on the Committee and those who support it. I know as a matter of fact that for you to get this thing approved, you need at least a minimum of 24 delegations supporting it. If you do not have 24 delegations supporting it or you suspect you may not have, you do not adjourn. Why should we suffer because you cannot raise the numbers?

Order!

I oppose the recommendation.

Mr. Speaker, Sir, my little knowledge of law tells me that tradition only comes into play where there are no express provisions. But when you do it 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. Hassan! While sympathy may be called for, we will remain level headed. Yes, Sen. Mutula Kilonzo Jnr.

Mr. Speaker, Sir, for those who have doubt, this process that we have carried out is under the Constitution at Article 181. In particular, Article 181 (2) where the Constitution of Kenya required that Parliament shall pass legislation in order to give effect to Article 181 which is the exercise we have carried out. I want to refer this House to Section 33 and in particular Section 33(4) of the County Governments Act which states, and I repeat on record:- “A special committee appointed under subsection 3(b) shall:- (a) Investigate the matter and; (b) Report to the Senate within ten days on whether it finds the particulars of the allegations against the governor to have been substantiated.” If the Committee led by my Chairman of the ICT Committee, Sen. Kagwe, has followed this procedure and the ten days have already lapsed, when Sen. Elachi says: “Please defer this question,” you are being requested to extend time under Section 33(4)(b) which you have no jurisdiction to do. In fact, if you read the section all the way to subsection (10), there is no provision where the Senate is required by law to consider an extension of time. Therefore, if the law has conferred a specific time for us to conduct this business and that last day is today, I am sorry, we must finish today and go home.

Mr. Speaker, Sir, I want to be on record that my Majority Leader has not whipped anybody outside. If, indeed, he did that, I would have been the first one because I was seated with him. Therefore, I think it is good because some of us came running to exercise our responsibility which we were voted for. Therefore, I want to make that clarification so that everybody is not condemned. If people walked out, it is on their own volition, nobody was whipped out. I, however, want to seek clarification on the following: The quorum is 15, which is mandatory, for the business of this House to be transacted. For now, we qualify because we are more than 15. In fact, we are 23 here. The reason we have been saying we The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Very briefly, Sen. Wetangula.

Mr. Speaker, Sir, the distinguished Senator for Kericho County has raised a very important issue. For a Motion or Bill affecting counties to go through, those that do not require what I ordinarily call a “noisy vote”, “Ayes” or “Nays”, where we require a division vote, for it to go through, we must meet the threshold of 24 voting for it. But for you to go to a vote, you require the quorum of 15. If, for example, if we go to a vote, like I know we are going, all you require to have are 15 delegations in this Chamber. Those who are agitating to send that gentleman home must bring 24 Senators to vote “Yes”. Those who vote “No”, even if we were 24 delegations, which is half of our numbers and the half voted differently, then the Motion would be lost. So, we are properly constituted. We have a proper constitutional quorum meeting the requirements of Standing Order Nos.34 and No.36 and the Constitution. Nobody can challenge or impute the vote we are about to have because we are voting within the context of the legal instruments that established us.

Mr. Speaker, Sir, I just want to raise a point in respect to the timing of the point of order raised by Sen. Elachi regarding Standing Order No.54(3). I know we have applied that Standing Order on several occasions before. But I have also noticed that where we have it before, it has been immediately after the Speaker has put the question. On this particular occasion today, the Speaker has put the question, the bars have been drawn and we are virtually ready to go to division. Therefore, in my view, that particular Standing Order cannot be raised.

Sen. Murkomen, very briefly, not a treatise on law.

Mr. Speaker, Sir, I am no longer in law class. The first thing I want us to appreciate is that we are here on a special gazettted day. Being a special gazetted day, we are sitting on a Friday, it is not even the normal sitting day because we had to beat constitutional or legal timelines. Standing Order No.54(3) says:- “Despite paragraph (2) the Speaker may, on the request of a Senator, defer the putting of the question to the following day, in which case the Speaker shall thereupon nominate a time of which the question shall be put.” The following day would presuppose, in my personal opinion, and I may be wrong, that the next day that the Senate is sitting and we are in a normal sitting time. This is so that, even Friday, if we were sitting in a House and we were not bound by time, we The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Sen. (Dr.) Khalwale, you had not made the intervention? You are the one who started.

I want to thank you for accommodating me. For the record, I want to speak to the issue of constitutional and legal timelines. Under Standing Order No.54 (3) where it is anticipated that the question can be taken to the following day, on this occasion, there is no following day because this day started and must end today at midnight. The second point which I would like you to weigh heavily is that there is a parallel. The constitution itself says that the decision of the Supreme Court on the matter of presidential election should be decided within seven days. You can imagine from 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. Ndiema, last one.

Mr. Speaker, Sir, in the past, we have actually postponed voting by consensus and today, you have already ordered that the Division Bell be rung, it has been rung, the bars have been drawn and the doors locked. There is no time that we have postponed voting after all that process. We have always done it before. If we go by tradition, then it means we should actually continue.

That was the last one. Senators, first, I want to agree with Sen. Murkomen on the fact that there is the discretion of the Chair for any Senator to request for putting of the question to be deferred. It does not mean you co-relate with other Standing Orders. It means that the Speaker can nominate another day. That must be made abundantly clear. Secondly, Sen. Obure, I have not put the question, I was about to. Thirdly, the presidential judgment may have been right but if you take our own example when we took the Division of Revenue Act to the Supreme Court, we were given a date. I remember I travelled purposely for that hearing only for it to be put off when we were already assembled. So, the Supreme Court has done that before. The timelines of the Constitution that we all seem to be eloquently enunciating just because we are equally interested parties and to borrow from Sen. Mutula Kilonzo Jnr., Article 181 led to county governments. The one you read says that a Special Committee appointed under sub-section 3(b) shall investigate the matter and report to the Senate within ten days on whether it finds the accusations against the governor to have been substantiated. We put today Friday because it is the tenth day. Once it is reported, it is subject to the procedures of the Senate.

Sen. Hassan, just read with me, it is plain English. I am not a lawyer, you are the lawyer but I invite you to read English. The English is; report to the Senate within ten days on whether it finds the particulars of the allegations against the governor to have been substantiated. They have dismissed some and found some to have been substantiated. That is the report. It is subject to the debate of the House. We extended time, we could as well have ended at 6.30 p.m. and spilt to the other day. We were trying to redeem the situation. On the issue of 24 Senators, we have always without any fear of contradiction because any matter to be voted by delegations, we wanted the requisite number. It is not 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.

But, Mr. Speaker, Sir---

Order! The Deputy Governor is not out of the job. So, he will not suffer any damage for the next couple of days. My ruling is that we will give this another chance. If again they do not give us the numbers that we are talking 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 do not intend to challenge your ruling. For posterity, you have touched on it, but I want you to elaborate. If we come back again let us, say, on Monday, and we are faced with the same situation we are in today, can we get the clarification so that we know what we will do at that time. Suppose we will not have the quorum at that time again, what will happen? That is what I wanted clarified.

That is correct.

Mr. Speaker, Sir, I want to implore you because those who are lawyers will tell you that there was a time Lord Denning had a criminal trial. After he finished, he wrote the judgment and went home to have lunch with his wife. He was going to deliver the judgment in the afternoon. At the lunch table, he recited evidence to his wife. The verdict he had reached, and he had left his secretary transcribing the judgment for him to come and deliver. The wife gave him a different variable to his thinking. You can find this in one of his books. He left the lunch on the table and drove straight back to court, called his secretary and dictated a new conclusion to the judgment. Mr. Speaker, Sir, V.I. Lenin the founder of Russia once said that some minds are like concrete; all mixed up, but permanently set. We know that you have a very flexible mind and have always been on the side of the express provisions of the law. Traditions, usage and precedents are only relevant to the extent that there are no express provisions of law. I want to urge that you see the point; that the threshold of 24 is to make a decision affecting counties and have a validity of the vote when it is won. But you do not need 24 to vote. I cannot put it any better eloquently than Sen. Murkomen put it; that we canvass. Mr. Speaker, Sir, in fact, we always tell hon. Senators who bring Motions here that on the voting day they should ensure that they have 24 delegations if the Motions affect counties. So, they will make frantic calls to friends and colleagues and say: 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.

Finish up, Sen. Wetangula. It is not a Motion.

Mr. Speaker, Sir, I want to urge you to go back to the express provisions of the Standing Orders. They are more powerful and carry more legal potency than our traditions, usage and precedents and take the House to a vote. I have represented many cases in court challenging validity of parliamentary votes on the basis of only one thing; quorum. You can challenge anything else, including the constitutionality of the law, if it has been passed. The question is: Did the House have quorum at the time they voted? Yes, we have quorum. Yes, we can vote. Yes, we have the capacity to vote and are properly constituted. You are properly in the Chair and I salute you. Since you sat there, you have not even responded to the call of nature. You have sat there diligently guiding the House through the debate. I urge you to diligently guide the House to the conclusion of today’s business. Mr. Speaker, Sir, I implore you and have no doubt that a good idea will always give way to a better idea. A better idea will always give way to the best idea. The best idea is in this book.

Order, Senators! I think that I have given what we would call the two sides another opportunity. That will be an odd number. I think that two is good, representing the divide. There are many points of order, but we must stop somewhere. Let me start with the one of Sen. Keter. I had actually indicated that if we give another opportunity and do not get the numbers, then we will proceed, because we will have given sufficient notice. Secondly, I still believe that we cannot operate on a minimalist approach. Sen. Otieno Kajwang is present in the House. There was a time that he brought a serious Motion of no confidence against the late Prof. George Saitoti. Sen. Kajwang, then a Member of Parliament for Mbita, actually came very late when the next Order had been called. The Speaker then, hon. Francis ole Kaparo was a friend to the late Prof. Saitoti, but he still allowed hon. Kajwang to proceed. If he went by the prescriptions of the Standing Orders, he would have barred him from proceeding, but that issue was of immense interest. To me, this issue is of immense public interest. It is important to the Senators. My recommendation is that we will agree on two days. It 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.

Mr. Speaker, Sir, you have put me in the biggest dilemma of my life. Before I spoke, I had said actually that I should have travelled, but because of your generosity and that of the Clerk, you extended it for one day, so that I finish this business of voting today and travel tomorrow. So, I was very happy. Sen. Ndiema and Sen. Kiraitu are coming along with us. Now that the law as read is that we have the quorum and we should vote, but your own feeling is that this would be unfair – I do not know to who – would it not be even unfair if the day you appoint, I will not have not come back, because we are travelling for 12 days? On that day, Sen. Ndiema and Sen. Kiraitu will not be there. If we lose, how will I feel? Even this gentleman is feeling like he is waiting for a guillotine on his neck. Are we waiting for some people to organize themselves, so that they can then deliver what they had planned to deliver? It is going to be the most unfair thing to postpone this voting.

Order, Senators! Let Sen. Kajwang finish.

Mr. Speaker, Sir, I would have even been happier if, probably, we would be travelling at night, because we could do it even in the morning. But we will not be here by 10.00 a.m. So, it means that when this vote is taken and I do not know which date it will be, probably, I will not be here. Likewise, probably our other brothers and sisters will not be here. If we lose by one vote, how will we explain to our constituency why we lost, when actually in law, in the Constitution and Standing Orders, we are in order to proceed now? This would be the worst judgment ever made. Thank you, Mr. Speaker, Sir.

Bw. Spika nimekaa hapa kwa utulivu nikisikiza mawaidha ya Maseneta wezangu kuhusu mashtaka ya Bw. Naibu Gavana. Kuna mnyama anayeitwa fisi. Mnyama huyu anapenda sana kula nyama. Aonapo nyama ya tumbo lake mwenyewe, anaanza kuikula mpaka anakufa kwa sababu ya tamaa yake. Seneti hii haifai kuwa hivyo. Tusifikiri kwamba kwa sababu kuna shida, kuna nafasi ya kula na kuchafua jina la Bunge. Mkuki kwa nguruwe ni mtamu lakini kwa binadamu ni mchungu. Huyu nguruwe, kwa mfano, labda ni Naibu wa Gavana ambaye yuko hapa leo. Bw. Spika, kwa hivyo uamuzi wako ni lazima uwe wa hekima siku ya leo. Hii ni kwa sababu itaandikwa kwa historia ya Seneti na kusomwa, kwamba Spika wa Seneti, ambaye kwa miaka karibu miwili ametoa uamuzi wa haki, hivi leo ameamua vingine. Haijulikani kura zetu zitaenda wapi. Wao wanahesabu tu na kuamua kuwa wale walioko upande wa kushoto ni wapinzani. Je, unajua ningepiga kura vipi? Wangevumilia chuma kiive. Lakini sasa kwa sababu wamedhihirisha na kuthibitisha uoga hadharani, mbele ya vyombo vya habari na Kenya nzima--- Wakenya wamesoma na wanaona kile kinachoendelea katika Seneti hii hivi sasa. Bw. Spika, kwa hivyo nakusihi kwa hekima yako, ukiwa kiongozi wetu tunayempenda, kwamba ingawa umetoa hukumu hapo awali kwamba tungoje siku 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. (Dr.) Khalwale! Hon. Senators, we should be building more consensus now.

Mr. Speaker, Sir, in our culture during hard times like now, when you want to appeal to your age mate, you normally refer to the pain you felt when you went to the river on your way to circumcision and thereafter. Mr. Speaker, Sir, for the first time since you became Speaker, I want not only to disagree with you, but I want to disagree with you very strongly. I want to beg you to remember the years you and I have worked together, especially in the last Parliament during the Grand Coalition Government. It is during those days that we did many other things, including working on these Standing Orders. Mr. Speaker, Sir, I want to say the first bad thing to you and that is that these Standing Orders not only apply to me and the rest of the Members, but they also apply to you as our Speaker. Therefore, I want to agree with you that you have the power of that discretion. However, because of the love that I have for Parliament, I want that discretion to have a basis in law. To me, that discretion you are exercising under Standing Order No.1 – this Standing Orders states that; in all cases where matters are not expressly provided for in these Standing Orders or by Orders of the Senate, any procedural question shall be decided by the Speaker. Since this is the only Standing Order under which you can make that decision, you will then be contravening Standing Order No.34 because the problem today raised by Sen. Elachi is the issue of quorum and Standing Order No.34 has determined that there is quorum this afternoon. Mr. Speaker, Sir, in the many years you and I have been in Parliament, you have never seen that Bar drawn and then you open the doors without the vote being taken. Never! Even during the days of former Speaker, hon. ole Kaparo, when we were dealing with constitutional issues, he used to go out of his way to establish from the orderlies that the prerequisite numbers are in the House. If you move the way you are moving, you are training the young Senator for Kakamega wrongly as far as we are concerned. She stood for guidance and, therefore, she is properly guided. If she was not standing up for guidance, the Speaker should have told us that she was being frivolous. We love Kenya. There can be no Kenya without order. This thing has very serious ramifications.

On a point of order, Mr. Speaker, Sir. I rise to speak as the youngest Member of Parliament in Kenya if not in the world. I was a Member of this Committee though I have not done law, but I know that this is a special day that has been gazetted and the Committee was given ten days to conclude our duty. I remember last week on Thursday we stayed late so that we could ensure that we finish business. We agreed and you gave direction that today, 15th August, the Senate will be holding a Special Sitting. Now that today is a special gazetted day, it means that the work done by this Committee must come to a conclusion. The conclusion can only be done by us casting a vote. 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 have put your case. Sen. Murkomen!

Mr. Speaker, Sir, my position is known and we cannot go back to that. The danger here is that you have made a ruling. However much we may not agree with your ruling, it can only be varied another day, although Sen. Wetangula, referring to Lord Denning, had eloquently expressed a possibility of one changing his mind even midway. That day may not have come today. Mr. Speaker, Sir, considering that you have made you decision so that we can move forward, and you have never let us down in the past, so that even the day we disagree with your decision, we have a soft spot for you. I want to make an honest appeal to my colleagues that because you gave us a window in your ruling on deciding the day, I want to suggest and request my colleagues that the vote be put tomorrow at 9.00 a.m.

No! No! No!

Mr. Speaker, Sir, the only basis I made that decision is so that instead of the earlier ruling that we sit until we finish the business, we use the Standing Orders to say that the business that was going on continue tomorrow so that we do not have to go through the rigors of gazetting. Although you made your ruling at 5.53 p.m. today to extend the sitting of the House until we conclude business, I suggest that we make a decision under the Standing Order No.99, that the House do now adjourn until tomorrow morning as part of continuation so that we do not have to gazette the sitting. Mr. Speaker, Sir, tomorrow, I am supposed to travel to the last county of this country and I was to leave very early in the morning.

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

Mr. Speaker, Sir, I am willing to be informed by our co- panelist, Sen. (Dr.) Machage. S

Mr. Speaker, Sir, I want to inform Sen. Murkomen that legally we are on recess. Therefore, the Standing Order he is trying to use may not work.

Mr. Speaker, Sir, because you gave us your window and because it is important for us to progress and we are the Senate; and decisions are made in this House; they do not have to wait for gazettement to take effect. The gazette is a notice to the public. The people to be given notice are seated there and this House can make that decision now without being invited to come here with a gazette notice. I am requesting my colleagues that we make the decision to vote tomorrow at nine and get finished with this matter. What is the point of a deputy governor staying for another one week, imagining all those issue? I want Sen. Hassan to second me on this.

Mr. Speaker, Sir, first and foremost, if you would allow me, it is the same Sen. Elachi who asked for an extension of time until we finish the business 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.

Mr. Speaker, Sir, I have been really wanting to speak for a long time, but maybe there was something wrong with the gadget. What I am going to say is very weighty. For one, you were right that the issue of 24 Senators has been more of a tradition rather than by law. That is a fact. Another fact is that the issue of whether we are going to be 24 Senators or not, has always been raised been before the bar is drawn. It is something that we consult ahead of Division so that when we come to it, we are not embarrassed. Mr. Speaker, Sir, the third fact is that the whips of both sides of the divide are responsible for whipping their Members to make sure that we have a quorum in the House. My dear sister and Sen. Elachi stood on a point of order to extent the sitting of the House today to which we agreed. It means that it was incumbent upon her to whip her Members to be here so that the business of the House is completed. The fourth fact is that there is something in English which is called “malice aforethought”. If, indeed, Sen. Elachi had asked for extension of time, she should have taken the time to find out whether we are 24 Senators or not, but she did not. Instead because we are human beings with God given senses, we watched as she walked out with Senators who were sitting here and when she came back, she was minus some of them. At a time when she should be whipping them to come in, instead, malice aforethought forced her to let them go away. Mr. Speaker, Sir, we are hon. Senators and we should speak the truth to each other. Should I stop going to Kisumu tomorrow because my old mama is sick just because somebody by malice aforethought wants to punish me again not to fulfill a personal or family responsibility when I knew that a special day had been dedicated 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, hon. Senator! I think I have been persuaded by Sen. (Prof.) Anyang’-Nyong’o and Sen. Kajwang who is travelling, but not Sen. Hassan. First, I want to make it absolutely clear that my proposal still remains the best under the circumstances. I will have an occasion in the future to give you more citations based on what has happened not only in this Parliament of the Republic of Kenya, but elsewhere under similar circumstances. That one you can take home. Secondly, Standing Order No.1 is not an issue because if you look at Standing Order No.1 (2), it says that even if a matter is not provided for, you go by the practices. The practices of the Senate of the 11th Parliament have been that under these circumstances we do 24. This is the first time this matter is arising. So, we also need to be fair to ourselves. The job of the Speaker is to ensure that predictability is maintained in the way we conduct our business. Under the circumstances and the mood of the House is quite determined---

Bullish!

Order! I would not want to use the word “bullish” because if I determine that you are bullish, you know I would send you out. So, I would not say you are bullish, but persistent and consistent. The Senate must demonstrate to the country that we accommodate each other and we are a responsible House. You can add as many words as you wish. I would, therefore, allow the Bell to be rung for one hour for purposes of ensuring we have more Members. If Sen. Elachi, what you have been accused of is true, since you did not respond, and given that you are also a Whip, then this is your opportunity to whip as many Members as possible. In the event we do not get the numbers, we will confirm that your whipping capacity is highly constrained and we will proceed on the minimum of 15 Members. Draw the bar and open the door.

Let us get an indication of the number of delegations. 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.

It is still a reasonable minimum! We have 25 Senators in the House.

Order, Senator! I appreciate your Minority role, but it does not include counting delegations. But we appreciate your assistance.

Hon. Senators, please note that this is a matter affecting counties. We shall undertake an electronic vote. I will reduce that period to zero because already we had the Division Bell ringing for an hour. We also have the requisite number of 24 delegations. So, how many seconds do I give you to prepare for the voting?

We are ready!

I am hearing the readiness from one side and not across the House.

We are all ready!

Okay, if you are all ready, we will be voting on item “a” first and once those results are out, we will vote on item “b”. Please note that there are two votes because there are two allegations that have been substantiated. I hope I am clear. We will start with the first one which is “Gross Violation of the National Cohesion and Integration Act.” As the practise is, let us try the one minute. If we do a good job with that one minute, we will reduce in the second vote. Hon. Senators, you may now start voting.

Are there any assisted voters?

I suppose the assisted voters know what to do; register at the Table. Vote “Yes” if you approve the allegation and “No” if you are against the allegation. Of course, you still have the vote of abstaining too. However, it is gross misconduct if you do not vote either way.

Hon. Senators, I wish to announce the Division on charge one:-

Okay, let the systems be first set. You have 45 seconds to vote. Of course, assisted voters you know what to do. Proceed.

Hon. Senators, the results for charge “B” are as follows:

Hon. Senators, I wish to announce the results of the Division That is again, 25 delegations.

Hon. Senators, I want to bring your attention to Standing Order No.68(5) which says:- “If a majority of all the county delegations of the Senate vote to uphold any impeachment charge, the Governor shall cease to hold office. Here you read “Governor” as “Deputy Governor.” Further, Standing Order No.68(6) says:- “If a vote in the Senate fails to result in the removal of the Governor, the Speaker of the Senate shall notify the Speaker of the concerned county assembly accordingly and the Motion by the assembly for the removal of the Governor on the same charges may only be reintroduced to the Senate after the expiry of three months from the date of such vote.” So, the reading of this is that none of these have sustained the impeachment charges. The Motion is, therefore, lost.

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.

Therefore, issue notice!

Order! This is the Senate. There is no better authority than the Standing Orders, better than myself. I read to you what the provisions state; as they are.

Well done, Mr. Speaker, Sir.

Sen. Kagwe, as the Chairperson of the Special Committee.

Thank you, Mr. Speaker, Sir. From the outset, I once again, want to thank and congratulate both the Committee and the House. The Committee did what it was charged to do by this House and made the recommendations it was supposed to make. The House has made a decision and clearly they have made a decision that was contrary to that of the Committee, but the Committee must clearly, as other Senators, whether they voted “Yes” or “No”, respect the decision of the House. Mr. Speaker, Sir, in a night of political long knives like tonight, we will experience many aspects of politics. We will see the politics of unity as we have witnessed here. We will also see the politics of purpose, even the politics of betrayal as Joe Khamisi once said, come to bear. It is the nature of the animal which we deal with. Mr. Speaker, Sir, at this moment, I want to congratulate the Deputy Governor of Machakos County and to tell him that the decision of the House, as Sen. (Dr.) Machage said, has saved him. Paramount should be the unity of Machakos County. In that regard, I seek the intervention of both the Senator of Machakos County as well as those from the neighbourhood who are well meaning to work at ensuring that the Governor and the Deputy Governor should start working together.

Mr. Speaker, Sir, I hope that this experience will also be a lesson to many people in the country that even though the Senate has ruled that the threshold for abuse of office and the threshold for hate speech has not been met in this particular case, I think nonetheless, it is an area that we would like to hold very highly for the purpose of the unity of this country. In congratulating, Mr. Kiala, I just want to say that he ran away from the word go.

Order hon. Senators! Standing Order No.85 states:- “No Senator shall speak to the Question after the Question has been put by the Speaker” 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.