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

Order, Sen. Orengo! You must appreciate my courtesy to you, in particular. I was already on my feet then I saw you were about to enter the Chamber, but you could not so, I was allowing you to enter. Why not assume your seat and warm it? Whatever matter there is, I am sure it will still be covered after my Statement.

On a point of order, Mr. Speaker, Sir. Did you see the orderlies crossing the Floor while a distinguished Senator like me froze while you were on your feet? Is this not a demonstration that you have not taught your orderlies very well or am I wrong in bringing that point of order?

Sen. Orengo, you are right in bringing the matter to my attention. However, you are definitely wrong in assuming that I did not teach the orderlies what to do while I am on my feet. In fact, for them it is a matter of duty to obey and comply. I caution them that they need to do so. But I would not really want that to be a matter for the Plenary and that is why I still repeat my earlier assertion that you could still approach me so that we know how to deal with it. Let us leave it that way. Hon. Senators, as you move towards your seat, you move with haste so that I do not freeze you where you are. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

On a point of order, Mr. Speaker, Sir. On several occasions we have had challenges sometimes when we do our work as Senators. However, in the process of The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Hon. Senators, that matter has been given a direction and there is no amount of applauding the Chair that will change the position.

Mr. Speaker, Sir, I beg to lay the following Paper on the Table:- A Report of the Standing Committee on Finance, Commerce and Budget on the status of financial allocation to counties by the Commission on Revenue Allocation; the matter of ceilings on the Recurrent Expenditure for the Financial Year 2014/2015.

Mr. Speaker, Sir, I beg to lay the following Paper on the Table of the House:- A Paper on National Gender and Equality Commission Annual Report 2013/2014.

Next Order.

Mr. Speaker, Sir, I have a Statement on sexual exploitation of young girls in the coast region by tourists. It was sought by Sen. Kisasa. She sought to know the steps the Government is taking to protect young girls from being exploited by tourists along the coast region. Bw. Spika, kwa ruhusa yako, ningependelea nisome hili jibu kwa lugha fasaha ya Kiswahili.

Order, Senator! Then you should have started in Kiswahili language; you started in English language and you must finish in 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.

Mr. Speaker, Sir, I am sorry that I did not do that. However, with your kind permission, I beg for your permission to proceed in Kiswahili language.

Sen. Madzayo, the Speaker does not preside over the House in an arbitrary manner. However, he is still subject to the Standing Orders just like the rest of you. S

Pole, Bw. Spika, ninaomba msamaha.

On a point of order, Mr. Speaker, Sir. Sen. Madzayo is a very close friend of mine and we consult quite often. I am aware that the Statement he has is written in Kiswahili language. Can I request the indulgence of the Chair that you allow him to sit down to try and translate it, and then he can issue it after around ten or 20 minutes?

Sen. (Dr.) Khalwale, I do not know who appointed you to be Sen. Madzayo’s advocate. Secondly, the Senator was ready to proceed in Kiswahili language and so he does not need time to translate, unless you are saying that he wants to translate from Kiswahili to English, which is contrary to what he wanted to do.

Bw. Spika---

Order Senator! I appreciate your predicament. You did what your colleagues suggested to you. That is the only request that you would have asked me to grant you; that you go back and then, you will get another opportunity to start in the language that you prefer. You cannot be granted without your request.

On a point of order, Mr. Speaker, Sir. I want to plead with my colleague, Sen. Madzayo to look at Standing Order No. 81(2) which reads that:- “A Senator who begins a speech in any languages provided for under paragraph (1) shall continue in the same language until the conclusion of the Senator’s speech.” You have guided him very well; that he can request for your indulgence so that he can come back a second time and start his speech in the language that he prefers. However, as he is doing that, he is still repeating the same mistake. He had started in English language in his introductory remarks. However, in seeking the Speaker’s indulgence, he is doing it in a different language. Is he in order?

Bw. Spika, naomba uniruhusu nijibu---

Order, Sen. Madzayo! I am afraid that even with a lot of guidance and patience; you have just refused to sit.

Okay, fine.

Order, Senator! You may make your Statement next Tuesday. We have squandered valuable time on what is a fairly straightforward matter.

Mr. Speaker, Sir, I am obliged.

Next Statement. Please, proceed Sen. Fatuma Dullo.

Thank you, Mr. Speaker, Sir. I have two Statements to make. They are both in today’s Order Paper. I hope that you will allow me to finalize both of them.

Let us start with one, and then, we will see if we have time for the other. So, prioritize, please. 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. The first one is by Sen. Khaniri in which he requested for a Statement regarding the status of management of National Police Service (NPS). The hon. Member particularly sought to be informed on the status of police recruitment exercise that was undertaken in 2014 and the fate of the recruits, since they have not yet reported for training. Secondly, he asked for the structure and command of police officers who serve in the Very Important Persons (VIPs) Protection Unit. In response, the NPS recruitment was conducted on 14th July 2014. However, following claims of malpractices from members of the public and other stake holders, the NPS carried out internal investigations which led to annulment of the exercise in some of the recruitment centers. However, a repeat could not be carried out after Independent Policing Authority (IPOA) obtained a court injunction stopping repeat of the exercise or reporting of the recruits to training colleges. The IPOA won the civil case and the recruitment was annulled. Consequently, the Attorney General and the National Police Service Commission appealed against the ruling. The judgment is coming up on 18th May, 2015. The second point is that the Government has developed a VIP protection policy which recommends the establishment of a VIP Protection Unit, which will be mandated to handle the security of VIPs and State officers. The implementation of the policy is in progress. We have agreed with Sen. Khaniri, that if maybe he or any other Senator has recommendations, they can present them to the Committee. We will forward to the relevant department. Thank you, Mr. Speaker, Sir.

Thank you, Mr. Speaker, Sir. I have a few clarifications to seek. I need your guidance on the first part of the Statement on the police recruitment exercise. She alleges that the matter is in court, the judgment is coming up on the 8th of May, 2015, which implies that the matter is sub judice . Therefore, we cannot discuss it here. I cannot ask further question on that first part. Our Standing Orders are very clear; that when a Member is alleging that a matter is sub judice, they must produce evidence of the proceedings or the court case number. Is she in order just to allude to the fact that the matter is in court awaiting judgment without tabling the evidence? It has to be on record.

Mr. Speaker, Sir, I think that this is public knowledge and it is in the public domain. However, if the Senator requires that, we can avail because we have not requested for that.

Order, Sen. Adan! I thought that you mentioned a case number. Sen. Khaniri, you may proceed with the second part as I respond to that one.

Thank you, Mr. Speaker, Sir. The juicy part was the first one. On the second part of the Statement, I really want to thank the Chairperson for the information that she has provided to us. she says the Government has developed a VIP Protection Policy which recommends the establishment of a VIP Protection Unit. As they establish this unit, could she assure the House that they will recommend to the Cabinet 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, as I said earlier, the Committee will present the recommendations given to us by Members. We will push for the allowances through with them. Right now, there is a training going on for the VIP security officers. We will also follow up to make sure that they are up to date and that it meets the requirements of Members.

Mr. Speaker, Sir, the history of VIP protection is crucial and we have seen results of not having good VIP protection in the death of prominent individuals, including Members of Parliament. I, therefore, want a clarification on the timelines because we cannot wait for a policy for people to be trained. What are the timelines that the Chairperson is referring in terms of this policy document? Secondly, is there a stop-gap measure where the current crop of people who are providing the VIP services can be retrained? Some of them have not shot a gun in the last two years.

Mr. Speaker, Sir, I do not want to mention the issue of sub

until it is determined. However, something closely related is that the recruitment of police officers, the tradition has been that it is done yearly. The matter which has been injuncted is the recruitment of the generation of youth of 2014. Could he confirm that there will be recruitment this year to take care of the people who have come of age for the year 2015? Finally, the issue regarding the stipend given to the police officers attached to VIPs is okay. However, is the Chair satisfied that the stipend is able to cushion them up to and including their accommodation when they are out of Nairobi guarding the VIP?

Mr. Speaker, Sir, the recruitment of the youth was supposed to be done last year. I understand the case is coming up in May. Could the Chair say whether this is sabotage by terrorists or by people who do not want the Jubilee Government to recruit over 10,000 youths? What is wrong with the other arm of the government? Why are they giving in to sabotage?

Mr. Speaker, Sir, I wish to respond to interventions by Senators, regarding the issue of timelines, I do not have the answer, but we can request the department to fast-track the process and make sure that they are finalized as quickly as possible. Regarding the retraining of the current officers, this is also a matter that we can do a write up to the relevant department and request them to do so. On the issue of recruitment for 2015, I do not have an answer for this. It is a matter that I can get from the relevant department and give further clarification. On the issue of cushioning of the VIP officers, especially on the issue of accommodation, it is an The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Hon. Senators, there was a matter of sub judice raised by Sen. Khaniri. It is true that Standing Order No.92 (4) which states:- “A Senator alleging that a matter is sub judice shall provide evidence to show that paragraphs (2) and (3) are applicable.” Paragraph 2 says that a discussion of such matter is likely to prejudice its fair determination. Civil proceedings shall be deemed to be active when arrangements for hearing such as setting down a case for trial have been made until the proceedings are ended by judgement or discontinuance. We have been given a date for judgment, but there is nothing to prove. We have been told that there are civil proceedings, but there is nothing to prove that. Paragraph 5 states:- “Notwithstanding this Standing Order, the Speaker may allow reference to any matter before the Senate or a Committee.” The burden of proof is on the prosecutor. In this case, if the Chair was coming to use that argument, the responsibility would have been on the Chair to comply with the Standing Orders. Failure to do so, the Speaker cannot help the Chair. I want to believe it is in public knowledge, but our Standing Orders seem to be very elaborate. Therefore, I will allow limited debate or interventions on that matter. If there is a matter we feel might interfere with determination of a case, then I will rule otherwise. Given that there is not much the Chair has assisted the House in terms of prosecuting her case, we will allow Sen. Khaniri to seek for further clarifications on that matter.

Mr. Speaker, Sir, I want to seek for one clarification. The matter of police recruitment has caused a lot of agony to many families. There are young girls and boys who went through the process successfully in a fair manner without bribing anyone. They were recruited, but are now suffering the consequences because of unscrupulous people. What is being done to ensure that future recruitments are not marred by these kinds of irregularities?

Those might be the kind of issues based on the court process. The difficulty here is in the technicality and substance. Sen. Khaniri, literally, recruitments are like an annual event. The month of May is not too far. If by that time nothing would have happened, I will allow you to prosecute the same Statement so that we do not confuse issues.

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

What is it, Sen. Haji? I hope you are aware that you had delegated the Statement to your Vice Chairperson.

On a point of order, Mr. Speaker, Sir. Is the Sen. Khaniri in order to demand an answer from the gracious lady, the Vice Chairperson when he knows that this The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

On a point of order, Mr. Speaker, Sir. The subject at hand is very crucial and critical in Kenya. We are not talking about employment of teachers which can delay because there are no funds. We need to recall that we have a shortage of over 100,000 teachers in Kenya. We talk about shortage of nurses or medical officers. In this case, there is an acute shortage of officers who provide security to the people of Kenya. Suddenly, the Government has been held hostage because of how we have allowed the arms of Government to handle the case. Could the Chairman take this issue so seriously because most of the questions we ask, including the ones I am about to receive answers to, touch on the shortage of security officers to the extent that there is runaway insecurity in the whole country?

Order, Members! Let me hear from the Vice Chairperson first.

Mr. Speaker, Sir, I understand the urgency and importance of the issue of police recruitment that was cancelled. We, as a Committee, might not fast-track the process. However, in terms of structures or measures that we need to put in place, this is a matter that we have to discuss with the National Police Service Commission (NPSC), so that we do not have a similar occurrence in future. Mr. Speaker, Sir, on the issues that Sen. Khaniri asked, about the case number and the rest, we will provide an answer later because we were not given one by the Ministry. We will follow up on the same and provide him with an answer.

The Chairman has found an escape route. If you allege something and you are asked to prove, you can only request for a bit of time to the next sitting day. Sen. Khaniri, we can make use of that provision so that the Statement will be on the Order Paper on Tuesday. If she fails completely to produce anything, then, we will assume that the matter is not sub judice . Sen. (Prof.) Kindiki, it is time for your Statement. BUSINESS FOR THE WEEK COMMENCING TUESDAY, 24TH MARCH, 2015

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I beg to issue the Statement under Standing Order No. 45 concerning the Business of next week, starting 24th March, 2015. Hon. Senators, as you are aware, according to our Calendar, we have two more weeks. This Statement relates to the Business of next week. On Tuesday 24th March, 2015, we shall have the Rules and Business Committee (RBC) meeting as usual at 12.00 noon to schedule the Business of the week. Subject to the directions by the RBC, next week, on Tuesday, the Senate will consider the Alcoholic Drinks Control (Amendment) Bill (Sen. Bill No. 5 of 2014) at the Committee of the Whole. The Senate will also continue with Business that will not be concluded in today’s Order Paper, focusing on debate on Bills at the Second Reading stage; giving priority to the following Bills:- The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Next Statement by the Chairperson, Committee on Education. REBUILDING OF SCHOOLS DESTROYED BY FIRE, WIND OR STORMS IN KISII COUNTY

Mr. Speaker, Sir, this Statement was addressed yesterday by the Cabinet Secretary (CS) for Education who was here. Sen. Obure was also in attendance and has concurred that what he heard from the CS is final. 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, it is true that I was present when the Cabinet Secretary responded to some of these issues. However, that does not remove the need for the Statement to be responded to in the House.

That matter arose yesterday and we made the observation that it was not a Kamukunji, but a Committee of the House where all Senators were invited. So, it still has the same standing as official business. If the issues were canvassed there and you are satisfied, that should be fair and okay. By the way, one of the reasons the Chair had to convene such a meeting and invite the CS himself, is because he wanted him to address those kinds of issues.

Mr. Speaker, Sir, you may not have been present at the meeting yesterday, but I want---

Order, Senator! This is a matter of fact. It is not “may”; I was not present.

Mr. Speaker, Sir, you were not present. However, if you could allow me to express some dissatisfaction with some of the statements and responses given by the CS in respect to the specific issues raised on this matter. You will recall that I had specifically wanted to know if the Ministry of Education, Science and Technology was aware that a number of facilities in public schools, including classrooms had been destroyed. The CS, of course, acknowledges that was the case and they were aware of it. I also wanted to know if he was aware that this would impact negatively on teaching and learning in those institutions and what urgent interventions the Cabinet Secretary was making to restore the infrastructural facilities. Since then, I have received a list of 52 schools out of the 750 schools in my county which have been affected and the Cabinet Secretary says he is not making any intervention. In the absence of any intervention, could the Chair confirm that learning in those institutions will definitely be affected?

Mr. Speaker, Sir, certainly, the effects are there and the impact is great now that the roofs have been blown off. The hon. Senator was seated here and the CS was able to go through all the schools which are affected. He gave all the reasons he thought that the students are affected. That was the CS and now you are talking to the Chairman. Whom do you follow? You follow the CS.

Mr. Speaker, Sir, this raises very fundamental questions. We are in a system where the national Government provides free education to all public primary schools. If classrooms have been destroyed, then how do you provide that free primary education? Where will the students undertake their learning? Furthermore, you will see that the Ministry has been allocated funds for infrastructure development and maintenance. They were saying that despite the fact that they knew that was the case in county, nothing had been done. However, there is need for speedy response when destructions occur. Could the Chairperson then agree that there is need to transfer these funds from the Ministry of Education, Science and Technology headquarters to the counties or even the Constituencies Development Fund (CDF) committees, so that they can respond quickly when these situations occur?

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Order! Order! This House cannot be reduced to two Members. Mr. Chairman, you owe it to the House because you have no capacity to avail any funds. So, even to promise when they are available is a promise that you cannot guarantee. The best is to take the concerns of the Member and make further inquiries. The Member has made a good case. He says there are already resources allocated for infrastructural development. Why were they not applied in the case of the schools in his county?

Mr. Speaker, Sir, when a case similar to that of Kisii occurs, a Member who is concerned goes to Jogoo, fills some forms and makes a case. That case is then taken further to the relevant offices and the Government always responds to such distress issues. So, I would advise my friend, the Senator, to do the same. That money will be released as per the demand, if it is there.

On a point of order, Mr. Speaker, Sir. Is the Chairman of this Committee in order to assume that Senators are Members of Quality Assurance Department in the Ministry of Education, Science and Technology, which is supposed to be equipped, for purposes of quality assurance, with the availability of classes and learning materials? Must they wait for a Senator to go and apply, as if a Senator – if you allow me to use Kiswahili - ni mtu wa mkono? Could he tell us when they are going to build the requisite classrooms in all the primary schools in Kenya? Is he in order to mislead us?

On a point of order, Mr. Speaker, Sir. Yesterday, the CS came here and confessed that they have Kshs180 million for infrastructure. When such an emergency arises, it would be as easy as what the Chairman has actually indicated. The Chairman would quickly take this serious matter that the House has agreed upon and go and allocate a little money to restore the schools. Alternatively, they could divide the Kshs180 million among the 47 counties.

Order, Professor! You were on a point of order. Do not make it a debate. Sen. Leshore.

Mr. Speaker, Sir, is the Chairman of the Committee on Education in order to mislead this House that Senators are the ones who should be going to Jogoo House to fill forms? What is his duty as the Chairman of that Committee? What are the duties of the County Directors of Education in the county, if they do not submit such requests to the Ministry?

Mr. Speaker, Sir, is the Chairman of the Committee on Education confirming our fears that the national Government has failed in doing its function of building schools in our counties? If that is the case, they should relinquish that function and give it to the county governments.

Mr. Speaker, Sir, when emergencies and calamities of this nature visit some of our schools, I want to say this because two weeks ago, one of our schools had the same tragedy, where a whole dormitory was burnt down and we lost three boys in that incident. We, as leaders, need to have a better way of ensuring that schools that are The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Order! It is not debating time.

Mr. Speaker, Sir, let me finalize, as I was saying, so that schools which have these kinds of challenges, some of the principals may not—

Order! Senator, you had already put your case, you gave an example of how you did it in your place, you have basically asked the Chair to consider a better mechanism that is good enough. Proceed, Mr. Chairman.

Mr. Speaker, Sir, speaking from experience, what I have seen is that if there is a tragedy of this kind, it is faster and more prudent for anyone from that area to walk to the Ministry and table the case. Otherwise, if you have to wait until the whole process is done, it may take another three or four months. That is my advice.

Order Chairman! Various Members have raised that issue, including Sen. Leshore, Sen. (Dr.) Khalwale, Sen. Obure and others, including the last intervention from Sen. Sang. The fact that a Senator has sought a Statement is a way of communicating to that Ministry. So, you cannot come here on the basis of your opinions or experiences to tell Senators on how to proceed with the national duty, when the CS has a responsibility to respond to you as the Chair of the House. You pursue the matter with the CS and do not take it to any other person. This House will expect you to come with an appropriate response to the situation of that county and many other counties. In fact, according to Sen. (Dr.) Khalwale, you need to look at all the schools in the nation and do so. Sen. Kanainza has challenged you to confirm from the CS whether they are unable to perform that national function and if they could give it to the county government. Those are very important issues which you need to follow.

Order, Sen. Obure! We have taken a lot of your time and the Chair has assisted you in many ways. Just be satisfied with that for now.

Mr. Speaker, Sir, I want to appreciate that.

I have already determined your appreciation. INSECURITY IN VILLAGES ALONG THE WEST POKOT-TURKANA BORDERS

Mr. Speaker, Sir, the Statement was sought by Sen. (Prof.) Lonyangapuo. The Senator Sought to be informed on:- 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 want to thank the Chairperson for the detailed answer she has given to the effect that the bandits were repulsed and animals returned. However, many a times when cattle-rustling takes place there, I and Sen. Munyes, have always asked about the problems we have at the border and the quick answer the Government gives is that the Pokot and Turkana are competing for pasture and water. I want to say here that these conflicts have nothing to do with resources. Could they give us the true picture that we are asking for? We want the boundary to be clearly demarcated. Secondly, Mr. Speaker, Sir, I call these bandits “roaming bandits,” because they are not stagnant in one place; they are roaming. However, the Chairperson is disputing this and is calling them “armed bandits.” I call them “armed, roaming bandits” because they are not found in one place. Now, since the Government knows that they are armed, what action are they taking other than telling me that “we have General Service Unit (GSU) camps?” Those camps are particularly fixed and they have been there for the last five years, yet the officers have never been stationed where these roaming bandits are. Could the Chairperson assure this House that she can go and rearrange where these camps are located and particularly move them to the zones where the roaming bandits are found? For example, Mr. Speaker, Sir---

Order! Seek clarifications, Senator.

Yes, Mr. Speaker, Sir. Further, to sort out this issue, can the Committee kindly visit this area so that we can show you where the active points are so that you can station your officers there? This way, the bandits can be removed.

There is one request for clarification from Sen. Abdirahman. Make it brief, hon. Senator.

It will be very brief, Mr. Speaker, Sir. Listening to the Chairperson, she spoke about a number of GSU camps that have been established in a number of villages, but that is only going to help us in the short term. I am glad she mentioned something about inter community peace meetings. Short term solutions are never good, but what are you thinking of the long term solutions? Unless you engage the communities in the long term to peace and security, you can even deploy millions of soldiers if you want, but it would not help. So what arrangements are you talking about in terms of community meetings and long term peaceful settlement of their issues?

What is it, Sen. Billow?

Mr. Speaker, Sir, I want the Chairperson to clarify – because she used the term “bandit” and “armed bandit” – what the difference between the two is and whether a bandit is more or less of a criminal than any of the other criminals in the rest of the country. We usually do not hear the term “bandit” being applied to refer to criminals 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 explained myself on the demarcation and I want to repeat it here. We were in Kapedo. We experienced the challenge of that area; it is bordering West Pokot and all those areas. This problem is not only in Turkana and West Pokot, but it is in most parts of this country. Of course, the challenge of resources is there, but we, as a Committee, discovered that the major problem there is about boundary disputes, especially in Kapedo and West Pokot. I agree with Sen. (Prof.) Lonyangapuo on that one. We are making recommendations to look at those boundaries to come up with a quick resolution on demarcating the boundaries. I believe that the Motion that was passed in the House will also help us sort out this problem, especially in Turkana, where we have a big problem, as we found out as a Committee. Mr. Speaker, Sir, again, the issue of moving the GSU units is something we can request the Ministry because we are not aware of the specific areas that have challenges. Sen. (Prof.) Lonyangapuo can meet the Committee and give his recommendations, then we can discuss with the department. As for peace meetings to be a long term solution, it is a matter that is very important because most of the time, you will find that it is done when there are issues. However, we need to inculcate this culture of peace meetings to be in communities for a very long time. When we were in Mandera County, for example, that is an issue we discussed as a Committee with the county government and also with the security agencies. I believe that will also appear in our report. Finally, Mr. Speaker, Sir, is the issue of “roaming armed bandits.” Of course, bandits are armed. I just read the Statement we were given. As much as I am concerned, the bandits are all armed.

Order, Chairperson! You can only communicate through the Speaker.

I am sorry, Mr. Speaker, Sir; he is the one who is actually talking to me from behind. I am sorry about that and I withdraw.

Order, Members! It is now a quarter to 4.00 p.m., and you, yourself need to make a Statement. So, spare these issues; there will always be some opportunities in the near future to deal with them. But I agree with you that she is yet to respond to the issue of the terminology in particular areas and not others. I am requesting that all other Statements be pushed to the next sitting day, on Tuesday, and then we will just have one last one, 2(g). Hon. Members, before I invite the Chairperson of the Committee on Finance, Commerce and Budget, there was a matter I had promised to look into on two words; “demeanour” and “misdemeanour.”

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Hon. Members, I want to start by giving the definitions. A “demeanour” is a mien, facial appearance and behaviour. A misdemeanour is a minor offence.

When the Senate Minority Leader, Sen. Wetangula, rose to seek a clarification from the Chairperson, Sen. (Prof.) Kindiki, he said:- “Mr. Speaker, Sir, you heard the Chairman tell us and you could see from his demeanour--- That is the word he used; facial appearance; “that he did not even appear---” Indeed, Sen. Wetangula even used the word “appear,” which was really being repetitive for purposes of emphasis; “to believe in what he was saying; that our forest cover is 6.9 per cent. This is a big joke---” And he continued. Now, when the Chairperson rose to respond, he said:- “Before I even proceed, I seek your indulgence. I am very disturbed that an hon. Member can stand and say: ‘reading from my misdemeanour---’

“I take it that the Member hates some inherent trait of my personality and not only for today. I will need your protection because the personal grudge being brought under the table in terms of misdemeanour---”

I challenged him as the Chair and the Chairman of the Committee responded; “Mr. Speaker, Sir, I mean misdemeanour.” The Senate Minority Leader retorted; “It is demeanour and not misdemeanour.” I pointed out to the Chair that he is the one referring to himself in the word “misdemeanour” That is not what the Senate Minority Leader said. He repeated saying that the key word here was “misdemeanour.” 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 or order, Mr. Speaker, Sir. There are two things here; one, you recall that the Chairperson refused to answer Sen. Wetangula’s question on that basis. I would wish that the Chairperson is ordered now to answer Sen. Wetangula’s question. Two, he must apologize to the House.

Order Senators! What is it Sen. Dullo?

On a point of order, Mr. Speaker, Sir. I have an urgent request for a Statement on Kenyatta National Hospital (KNH).

Order, Senator! We are on a different matter all together. I am aware of your matter. Since you have made a request, I will grant you the opportunity to make the request. First, I am actually surprised that the Vice-Chairperson of the same Committee is so harsh on his boss.

You do not punish people for difference in understanding certain words. That is why the appeal was made to the Chair to give direction, which I have given and it must end there. So, there is nothing to apologize about. The only matter arising is the issue of responding to the clarification sought by Sen. Wetangula. As I said yesterday, he has no choice, but respond to it and I reiterate today that he will respond to it on Tuesday.

Sen. Adan, you may make your request and then we invite the Chairperson of the Committee on Commerce, Finance and Budget. SUSPENSION OF RADIO THERAPY TREATMENT AT KENYATTA NATIONAL HOSPITAL ON 16TH MARCH, 2015

Thank you, Mr. Speaker, Sir. My request for a Statement is directed to the Chairperson of the Committee on Health. In the Statement the Chairperson should:- (1) State and explain the circumstances leading to the suspension of radio therapy treatment at KNH on 16th March, 2015. (2) State and explain the interim measures that the Ministry of Health is taking to ensure that patients who were on radio therapy treatment at the hospital before the suspension continue with their treatment as scheduled to avoid loss of lives. 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.

Where is the Chairperson of the Committee on Health? Proceed, Sen. (Prof.) Lesan, the acting Chairperson.

Thank you, Mr. Speaker, Sir. On behalf of my Chairperson who was here a while ago, I want to undertake that the Committee will look at this issue. Hopefully, because it is urgent and concerns the lives of individuals generally in the country, we undertake to give an answer in two weeks.

Order! Order, Senators! There is something in essay writing which states that the content of the essay must reach the same conclusion. You put the body so well, but the conclusion---

When can you do it?

Mr. Speaker, Sir, the question asked, as I understood from here, had about five parts and some of them need us to make inquiries then give a satisfactory answer considering that part of the answer would come---

Order, Senator! Your Committee is ordered to bring a response on Tuesday.

I am obliged.

You have to look at the urgency of the matter. The issue of the number of parts is for those you will be inquiring from. You do not start by disempowering yourself. What is it, Sen. Billow?

Mr. Speaker, Sir, in addition to the answer being brought here on Tuesday, because it is not just about the answer, it is about the crisis, could the The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Speaker, Sir, I will ensure that the Chairperson gets the message. We will pass the message to the Ministry as it has been requested as soon as possible. SETTING OF BUDGETARY CEILINGS FOR COUNTY ASSEMBLIES BY THE CRA

Thank you, Mr. Speaker, Sir. As I mentioned on Tuesday on that question by the Senator for Mombasa, Sen. Hassan, we also had a request in writing from the Speaker’s Office to address the same matter. In addition, we also had a visit from the County Assemblies Forum Executive Committee on the same matter. So, we, as a Committee, decided to do a thorough investigation on the matter and do a report. The report was tabled for Members to have an opportunity to go through it. However, I will endeavor to answer. I do not know how much time you will give me so that I can briefly highlight the background and then read out the recommendations to address your specific questions. I am sure the Senator already has a copy of this and there is a point by point answer in the report that he can look at both from the Committee and the Controller of Budget.

Order, Chairperson! The problem I have is procedural. There is a report to be discussed and there is a specific Statement. The beauty of having the report is that the matter is not active before a Committee and the House is already seized of it. So, that allows participation of the rest of the membership. Two, use the report as a base as you are making references as Members are already seized of the matter. But just stick to the normal way of responding to the Statement. So, you do not have more than ten minutes.

On a point of order, Mr. Speaker, Sir. Would I be in order to suggest that the Chair prepares a notice of Motion and a Motion, with your permission, so that we debate the Report substantially at a date to be designated by yourself? This will give us time to debate on the Report apart from the answer we will receive directly.

Are you are telling the Chairman, who is very competent, what to respond to? I think that should be the normal procedure.

Mr. Speaker, Sir, owing to the urgency of the matter, I thought it prudent to respond to the Statement. That is what is on the Order Paper for the day. Our Committee will have no difficulty in moving a Motion next week to discuss the Reports if Members deem it necessary. I would have thought that if this session finds it satisfactory, then the Report that has already been tabled could be the material to be used by Members to interrogate the responses I will be giving. Mr. Speaker, Sir, I will proceed. Very briefly, on the background; on 22nd April, 2014, the Commission on Revenue Allocation (CRA) issued a circular addressed to all county governments recommending a ceiling on allocation for all county assemblies and county executives in the budget for 2014/2015. The basis for the circular was Article 216 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, Members! I see a lot of interest. Do not make your interventions beyond two minutes. I will allow Sen. Hassan to start.

Mr. Speaker, Sir, I hope to stick within the two minutes, but because of the length of the Report ---

I will allow you one more.

Mr. Speaker, Sir, please, allow me two more minutes. I do not know how to respond to this because there is a response to my question and, at the same time, Sen. Billow Kerrow referred very broadly to the substance of the Report.So, I will be a bit more specific because this Report actually validates a lot of the things we have been saying. It makes very scary assertions ---

Sen. Hassan, I had given guidance that the Report is a base document. You still need that opportunity that Sen. Murkomen has requested to debate the Report proper. Try not to quote it.

Mr. Speaker, Sir, it will be very difficult because it was quoted very widely. The averments, particularly in response to my question as to why the Controller of Budget declined to recognise respective County Assembly Appropriations Act, that did not adhere to fiscal prudence and the ceilings issued by the CRA. Exactly my point is about franchises managing devolution in an adverse way. How can a circular even in the hierarchy of laws, take precedence over an Appropriations Act of a county assembly? 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! Use your time more meaningfully.

Yes, Mr. Speaker, Sir. Once it comes by way of report we will, probably, respond more greatly to this. However, the fourth recommendation is the one of interest to me. Ceilings on Recurrent Expenditure for the Financial Year 2014/2015 were lawfully issued, but not binding as per the court ruling. The courts had approved withdrawals of up to 75 per cent of the ceiling for the first three quarters. Therefore, the Senate directs that the Controller of Budget should, in consultation with the CRA, release adequate funds to county assemblies immediately for the fourth quarter. This is a totally contradictory recommendation. On one side, you say it is not binding, but on the other hand, the High Court has pronounced itself in the matter and then finally you say: “Go and consult further.” Let us not try to kill devolution. Let us act in good faith even as we do things in this Senate. We have crushed these county assemblies and their accountability streams have been frustrated. We cannot then give public relations recommendations that they need to be independent. Make them independent now. Once you tell me that an issue is not binding, how then do you direct me back? Rather than adhere to the Appropriations Act passed by a county assembly, we use some broad prerogative to erode Appropriations Acts that have been passed by county assemblies---. What kind of a recommendation can that be? The clarity I am seeking is if ---

Order, Senator! You have taken more time than I allocated you.

Mr. Speaker, Sir, just to paraphrase for clarity, if an issue is not binding in law and this Senate has not approved it, why would you make a recommendation as a committee which is inferior to the decisions of this House to approve an illegality or a non-binding document which we have already referred to?

What is it Sen. (Dr.) Machage?

Mr. Speaker, Sir, I have to confess, I am in the Committee on Finance, Commerce and Budget. As Sen. Hassan was concluding his intervention, 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.

I can see there is a lot of interest in this issue. I am sure as others make their own interventions, some of those contradictions will be sorted out. Just keep listening.

Mr. Speaker, Sir, I would like the Chairman to clarify whether CRA is mandated by law to issue circulars to county governments and county assemblies or it is a matter of abrogating itself that mandate illegally? I thought the Senate has been mandated to protect counties and---

Order, Sen. Leshore! I hope you are not attempting to answer the clarification you sought.

Mr. Speaker, Sir, what is the Chairman and the other stakeholders doing to prevent the county assemblies rushing to courts on issues which they can solve?

Mr. Speaker, Sir, much as I sit on that Committee, I would like the Chairman to clarify the timelines within which the National Treasury is going to make those funds which we have recommended that they be released to the county assemblies to be made available? Although I only have two minutes, allow me to make a general comment. If, indeed, we want to be seen to protect the county assemblies as well as the county executive arm, we must also protect the institutions that participate in the governance of devolution. In this case, we cannot leave the county while the MCAs and Speakers continue to think that CRA acted outside the law. The CRA actually acted within the law as per Article 216 where they are allowed to make recommendations to us. Having made those recommendations, it is now for us to stand behind the Chairman and congratulate him for moving the Committee to recommend that this money that was released on the wrong perception by a recommendation of the CRA was actually a legal directive, it be corrected, and that creates the way forward.

It is an illegality!

Order, hon. Senators! You will have your bit. That is his opinion; you will have your opportunity.

Mr. Speaker, Sir, I have never understood why people, including some of the Members of Senate, find reading this Constitution very difficult. As the Chairman of the County Public Accounts and Investments Committee, it is my responsibility to inform this House that what drove CRA to rise to an urgent need for recommendations was the national outcry that accompanied the uncontrolled expenditure of public funds by some of the county assemblies in too many unplanned for trips overseas and within the country. It is up to us now to guide it so that we have the proper way of doing these things.

Mr. Speaker, Sir, first of all, the county assemblies play the critical role of oversight on county executives. Therefore, nothing should be allowed to take place which tends to undermine the authority or the capacity of the county assemblies to perform that important function. I, therefore, want to agree with one major 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.

If Senators followed that kind of trend in seeking clarification; you can get much more within that limited period.

Mr. Speaker, Sir, Section 228(5) of the Constitution says:- “The Controller shall not approve any withdrawal from a public fund unless satisfied that the withdrawal is authorized by law.” The reason I read that section is because I know very well that CRA had a right to do circulars and pamphlets as we discussed the other day and that is within their own right. However, when did we as a country convert the Appropriations Act of county assemblies to be less in legal hierarchy yet being law, to be under or below the circulars of CRA, than the law? Because where there is a contradiction between an Act of a county assembly and a circular of whatever institution, including even the President which one should be followed? The Chairperson should tell us whether we should follow the law or a circular. That is the crux of the matter. Secondly, he should tell us whether the county assemblies are not disadvantaged. Is it a coincidence that all the 47 county executives have never complained against the ceilings, but the county assemblies have complained? Does it not show that, therefore, because county executives are fully represented in IBEC meetings, they are have an undue advantage against the county assemblies? Finally, when county assemblies accept certain appropriations as they have done, including my own county under duress and undue influence---

Your time is up! However, as Chairman of Devolution, I will give you one minute.

Mr. Speaker, Sir, when they accept certain payments under duress, that does not validate them. If you go to Makueni County and many other counties, to ensure that people get their salaries because their money is coming through the executive, then in the meantime, the Speakers accepted what had been said as they follow the law. Mr. Speaker, Sir, if we are going to abrogate our responsibility which is to approve everything to make it legal before we can use it, then we will undermine the authority and responsibility of this House in protecting devolution and the counties. 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. On the issue of the ceilings and the role of the CRA, reading the law, their role is to basically recommend. That recommendation goes to the assemblies, the President and the Senate. However, if my memory serves me well, this issue of ceilings being necessary had even come to the Senate. At that time, we all agreed here at the Senate that there is need for certain levels of ceilings. Are we really being consistent in telling CRA now, that they were wrong to set the ceilings? If the ceilings that were set, cannot work in the middle of the year, is there no provision that CRA can reconsider and recommend to the Senate and the assemblies to adjust accordingly in form of revised estimates by the counties? Lastly, on the issue of releasing funds directly to the counties assemblies, they are independent and this should have been done a long time ago. The Chairman should also clarify whether all county assemblies have been connected to the IFMIS system because as I am made aware---

Your time is up, Senator! Unfortunately, you are not a Chairman. Please, proceed, Sen. Mutula Kilonzo Jnr.

Thank you, Mr. Speaker, Sir. I have listened to the arguments here and it appears that Senators have not read the ruling of Justice Lenaola. I urge them to read it so that we educate this country and for us to also appear learned. The questions raised by Sen. Omar and Sen. Murkomen have been answered by the Judge. The fact is that the Judge said: - “The Act is in place and that is the law.” As far as he is concerned, the question of ceilings was overtaken by events and was, therefore, not an issue. But for clarification, so that---

Order, Senator! You are participating in an illegality.

Mr. Speaker, Sir, secondly, so that we do not create a false impression, could he, please, clarify to the nation that in the recommendation number four that the Committee has made, the counties are not going to revise their budgets, to the extent that the budgets of the county assemblies; the ones that have agreed on the ceilings, would then increase by lowering the budgets of any other entity, so that we are not misquoted? Lastly, the reason I said that Senators should read this is because the court was very concerned that the county executives and county assemblies have not learned that funds are supposed to serve the public. However, these funds are being used for purposes that are not for services. Therefore, these are issues that Senators should read so that when they defend illegalities because we have passed here an Act of Parliament and now we look like we are reversing it like the proverbial Mussolini tank, we should then be accountable to the country for looking as if we are blowing hot and cold.

On a point of order, Mr. Speaker, Sir. Is it in order for “The duke of Makueni”, Sen. Mutula Kilonzo Jnr., to completely mislead this House and the nation that there is anywhere in this country we ever passed any legislation providing for ceilings of any county assembly? That is completely misleading.

Order, Senator! You are completely out of order. Sen. Mutula Kilonzo Jnr. sought a clarification from the Chair on certain specific things 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 are witnessing the exuberance, energy and the excitement of young lawyers. I thank my Chairman for the clarity in which he has explained the matter. I just want him to confirm to this distinguished Senate that one of the cardinal feelings of the Committee that will advise this House is that everything must be done within the law and the Constitution to ensure that we have financial independence of the county assemblies as houses of primary oversight on the county governments. We do not want to see situations where the county assemblies and assemblers are held hostage by governors simply because the funds that they get pass through the hands of the governors. This Committee will engage the Controller of Budget to ensure that the county assemblies are locked in the IFMIS system, and that funds available to them are directly remitted to their accounts so that they can exercise their independence.

Thank you, Mr. Speaker, Sir. I only wish to seek one clarification from the Chairperson of the Committee. The Committee made a recommendation that the Controller of Budget and the CRA, release adequate funds for the fourth quarter. Are these funds going to be subjected to the same ceilings that have been used before? What are the time lines considering that some of the counties who have used their funds without following the ceilings are almost in a crisis and are, perhaps, not able to perform their responsibilities until they are due for the next funds? What are the timelines in which they can get these adequate funds?

Thank you, Mr. Speaker, Sir. My concern is on the Public Finance Management Act which stipulates that all the funds from the Treasury must be pushed to the county treasury and managed by the executive arm before they are is given to the assemblies. Sen. Wetangula has said that an arrangement should be made for the IFMIS system to be adjusted in a way that funds can be directly remitted to the assemblies. With that section of the law, how are we going to manage this? In any case, I find it as a sibling war between the executive officers and the speakers of the assemblies. Would you be ready to call the two from all the 47 counties and advise them on what to do?

Thank you, Mr. Speaker, Sir. I would also like to add my voice to the documents laid on the Floor of the House by the Chairman of the Committee on Finance, Commerce and Budget and also congratulate my Committee for what they have done. The matter of ceilings was brought to our attention in this House through the Chair because we had some counties which have not been given their money and they had gone to court. Four counties went to court although 13 counties had not been given their full monies. They petitioned the court and the matter was dismissed, although in the ruling---

Hon. Senator, this is not a debate. Your Chairperson has already spoken for 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, I am supporting him because I sit in the Committee on Finance, Commerce and Budget ---

Order! We want to believe that when the Report was tabled, all of you supported it. Now, we want the ones who may be opposed to him.

In our recommendations, we said that funds should now be disbursed directly to county assemblies. The complaint that is coming out is that the executive is denying them use of funds, thus, compromising delivery of services.

Hon. Senators, before I call upon the Chair to respond, I have two Communications to make.

The Standing Committee on Finance, Commerce and Budget has organized a workshop for all the major players on accountability and oversight this weekend. Just to remind the Senate leadership that it is invited. All the issues we are raising here, the Committee has provided an opportunity for us to interrogate these kinds of matters. VISITING DELEGATION OF SPEAKERS OF COUNTY ASSEMBLIES I am pleased to acknowledge the presence and to welcome to the Senate this afternoon a delegation of Speakers from various county assemblies accompanied by the Chief Executive Officer (CEO), County Assemblies Forum (CAF), who are seated at the Speaker’s Gallery. I request the Speakers of the county assemblies that when your name is called out, you stand so that you may be acknowledged in our usual Senate tradition. 1. Hon. Jimmy Kahindi - Speaker, Kilifi County 2. Hon. Teddy Mwambire - Deputy Speaker, Kilifi County 3. Hon. Titus Mbiti - Deputy Speaker, Kitui County 4. Hon. Gideon Kimathi - Deputy Speaker, Meru County 5. Hon. (Dr.) Nuh Nassir - Speaker, Tana River County Assembly and Chairman of CAF 6. Hon. Hashi Mohamed - Speaker, Lamu County Assembly 7. Hon. Geoffrey Kipng’etich - Speaker, Bomet County Assembly 8. Hon. Geoffrey Kaituko Eyanae - Speaker, Turkana County Assembly 9. Hon. Meshack Maganga - Speaker, Taita Taveta County 10. Hon. Aresmus Mwarabu - Speaker, Taita Taveta County 11. Hon. Haroun Mwasase - Speaker, Kisii County Assembly 12. Hon. Evans Mokoro - Kisii County Assembly 13. Hon. James Mwangi - Majority Leader, Nyandarua County Assembly 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, let me clarify from the outset that the Commission on Revenue Allocation (CRA) forwarded its recommendation for the ceilings for the 2014/2015 to this House. However, the recommendations came on 30th September and our Committee felt that it may be too late to table them because some of the counties had already done their budgets and appropriation accounts. I also want to clarify that CRA is mandated under Article 216 to give recommendations relating to financial management at any time. It is important that those recommendations include those that ensure prudent financial management by the counties. Mr. Speaker, Sir, the court held that the recommendations by CRA, although they were not binding, were lawfully issued. That circular was legal. At no time did the court declare those circulars a nullity. However, our understanding that the ceilings are not binding means that the ceilings can actually be rediscussed or renegotiated. This is our understanding of the point. Therefore, when the court refused to declare those circulars null and void by dismissing the prayers, it is very clear that the courts were saying that the CRA was within its mandate to issue a circular in accordance with Article 216. The issue raised by Members that this circular is an illegality is not correct Mr. Speaker, Sir, when the CRA and Controller of Budget last year came up with those ceilings, we agreed with them that it is in keeping with prudent financial management and that it also provides a structured basis for sharing out that money for the new administrative structures. This year, it is going to come in the Division of Revenue Bill. There will be Kshs45 billion for new administrative structures including the governors’ officer, county assemblies and all those new offices created. How do you share out this money? Last year, there are assemblies that had asked for Kshs1.1 billion, others asked for Kshs900 million and others got only Kshs300 million. Therefore, to avoid that disparity, a structured basis for computing the figures was provided. That is why we agreed with them at the time that the ceilings were in order. In fact, we went even further and proposed an amendment to the Public Financial Management Act in that regard, which has since been adopted. Mr. Speaker, Sir, the point raised by Sen. (Dr.) Khalwale is the timeline for the remaining quota from April to June. The timelines depend on the requisitions that will be met based on the returns that they submit. We have directed the CRA to ensure that they get adequate money; which means that they should review the amount of money they are The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

On a point of order, Mr. Temporary Speaker, Sir. I am aware that Trans Nzoia County is not connected.

Mr. Temporary Speaker, Sir, that is why we asked the Controller of Budget to get in touch with the Director of the IFMIS in order to determine the status of connectivity and activation of the IFMIS in all counties. So, we will have the report as soon as possible. Mr. Temporary Speaker, Sir, Sen. (Prof.) Lesan asked about the issue of adequate funds and I have explained that. I want to make it clear to Senators that, that is our Committee’s determination. We have already done so but we will make it very clear again tomorrow so that Members can also appreciate; those who will be joining us. We want adequate funds to be provided to county assemblies so that they carry out their mandate completely unhindered; including the opportunity to travel, benchmark and do whatever is necessary so that they build their capacity. That is why the amounts proposed this year are significantly higher. The House will have an opportunity to review and settle on whatever ceilings it deems necessary. In this regard, for the remaining quarter, we have also made it clear that they must release adequate funds. Therefore, we have asked the CAF to get in touch and ensure that they get whatever they require to complete their work for the remaining period. Mr. Temporary Speaker, Sir, all the other points raised by other Senators have been addressed. Therefore, I rest my case.

On a point of order, Mr. Temporary Speaker, Sir. At the very outset, Sen. Murkomen made an appeal to you for this Report to be tabled as a Motion so that the House can ventilate and pass resolutions. This is because this debate has been by way of question and a matter of opinion. Therefore, could you direct that the Motion be tabled next week on Tuesday when the House resumes next?

(Sen. (Dr.) Machage): Order, order Sen. Hassan. The document will be tabled when the Committee is ready.

Pardon me, Mr. Temporary Speaker, Sir. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

(Sen. (Dr.) Machage): You heard me right.

Mr. Temporary Speaker, Sir, ---

(Sen. (Dr.) Machage): Order.

On a point of order, Mr. Temporary Speaker, Sir. By having tabled the Document that shows that the Committee is ready. Therefore, we are just requesting that they bring it by way of a Motion.

(Sen. (Dr.) Machage): Order, Sen. Hassan. To my knowledge, you are not a Member of that Committee. So, you are not privy to that information. Let us move to the next order.

I am deferring Order Nos. 8, 9, 10, and 11. We have Motions to be reallocated.

Thank you, Mr. Temporary Speaker, Sir, for allowing me to contribute to this important Bill. Natural resources have, up to now, not benefited communities that reside within the areas where resources are exploited. When I refer to resources, what comes to my mind are forests, minerals, water, wildlife and even fisheries. It is not fair, equitable, and it is contrary to the Constitution for some people or organisations to continue exploiting resources which belong to other people without giving them any form of compensation or support. Where some of the resources are located, the communities have suffered historical injustices. For example, their land, in some cases, has been forcefully taken by the Government for the purpose of either conservation or exploitation of the resources. Mr. Temporary Speaker, Sir, we have cases like the use of forests. We have communities whose only home has been areas where forests are. When forests were delineated, those communities were not considered for any form of compensation. Whenever resources are being exploited, whether timber or any other resource, the communities have never been considered for any share. This has been going on for a long time and communities there like the Dorobo have been suffering. Mr. Temporary Speaker, Sir, in a county like Trans Nzoia, for instance, on the slopes of Mt. Elgon and Cherangany Hills, where forests are, the communities had to surrender their land. Sometimes, they are forced to “surrender” because they were forced 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. Temporary Speaker, Sir, thank you for allowing me to contribute to this Bill. Allow me to congratulate Sen. (Dr.) Zani for having thought deeply into the many things that can assist Kenyans and they will be happy and appreciate. Let me also congratulate the entire Committee for working tirelessly because I know it worked very hard to an extent that they visited countries outside this country, so that we can borrow the experience that those countries have, so that we can have the best. This can be a good example to our county assemblies so that whenever they are accused of going out of the country, they should always go for a good cause. Being a Member of this Committee, I am very happy because some Members visited some countries and they brought a lot of wisdom and made a lot of input to this Bill. This country is endowed with a lot of natural resources, and we can start with the good fresh air that we have, the waters, the trees, the animals and also the beautiful people. Mr. Temporary Speaker, Sir, you will realize that when you are outside the country and you see somebody dressed in the red shukas in a photo, you will appreciate that the person must be from Kenya. That is also a resource on its own. I do not know 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.) Machage: Are you suggesting that the red colour belong to the Masaais?

Yes, from creation, that is our colour.

(Sen. (Dr.) Machage: So, can Parliament benefit because of the chairs?

Mr. Temporary Speaker, Sir, you know also Nairobi was named by the Maasai, so we are in the heartland of the Masaai. When it is red and this is where power is exercised, I think we appreciate that. Allow me to say that Sen. (Dr.) Zani did a good a job. Regarding Clause (3), I wish to say that instead of itemizing petroleum, natural gas, minerals, maybe we could come up with some like the geothermal, wind and solar power; some trees, so that we can define them just like the way you have defined others. When it comes to the issue of minerals, I understand that some sand is also defined as mineral, like the building sand which is a natural resource. We know that the entire of Nairobi has been built with sand from Machakos and Kajiado, and I believe it is a resource. If the counties from where it originates can get something, the communities and the counties can really benefit. Our own county is endowed with a lot of minerals, for example, soda ash and salt. That is why we have Magadi. Magadi started way back during colonial times. The British investors went and settled there and apart from the social responsibility they plough to the communities there, the community and the county hardly benefit. It is just the other years when the rates were revised, otherwise, they used to pay the local authority at that time about 15 cents per acre. You can imagine that kind of exploitation but at least I know with the passage of this Bill, the county and the community there will benefit a lot. It is also sad to note that when it comes to a natural resource like wind, you find some areas which are very well known that they are in the county and belong to some community, due to some laws, they are owned by Kenya Forest Services like the Ngong Hills, where we have a resource of wind. It is a good resource. I believe KenGen and the people who are harnessing wind to get power need to pay for exploitation of that resource, so that the communities and counties where the resource is being harnessed can gain. There are quite a number of resources like sand and being a natural resource, I believe the areas that are classified as arid areas or semi-arid areas can also benefit out of this. I also appreciate the fact that we have an authority here that will try to come up with the guidelines and also control the way these minerals or natural resources are extracted. Mr. Temporary Speaker, Sir, there is quite some impact coming up after the harnessing of these natural resources. For example, in the Ngong Hills, where wind is extracted and out of that, we get power, you will find that there are some serious impacts which were not anticipated when the assessment was done. I have two very good examples; one, you will find that after the turbines were erected by Kenya Electricity Generating Company Ltd. (KenGen) and after the lines were connected to the transmission systems, the mobile cellular network within that area has been seriously 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. Temporary Speaker, Sir. I also want to take this opportunity to add my voice to this very important Bill and from the outset, I want to support it. This issue of sharing natural resources has been one of the most vexatious issues in the world; not just in this country. In every nation you go to, it is one of the issues that people raise. When you look at the disparities, inequalities and skewed allocation of resources, one of the issues that people always raise is; “look, here we raise a natural resource, but we do not benefit from it.” Mr. Temporary Speaker, Sir, as the Committee on Devolution, we recently visited Mexico and we had an opportunity to meet with some academicians who run the universities in the main state which produces oil. But the interesting thing they told us is that although it is the only source of oil in that country, it is the poorest state in that country for the simple reason that they do not have a system for sharing the benefits of those resources in the country. They were surprised when we told them that we are working on the Natural Resources (Benefits Sharing) Bill and they could not hide their excitement. They asked us to give them a copy of that Bill because they had no idea, 50 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. Temporary Speaker, Sir, thank you for the opportunity for me to support this very important Bill. We all know that unless people living in an area; citizens or communities are convinced that the resources around them belong to them, they will not take care of them. It is also a fact that unless the resources are properly taken care of, they cannot be properly managed for the benefit of people. 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.) Machage): Very well. Since I see no other interests, I will call the Mover to reply.

Thank you, Mr. Temporary Speaker, Sir. I beg to reply. I thank Senators for all their contributions which have really brought new perspectives and many ideas into thought. I think they are going to be very critical even as we move the amendments that are very necessary in this Bill. Those comments and contributions are not going to be taken for granted. As we go into the Committee of the Whole, we are going to take into consideration the deliberations that have been made to ensure that at the end of the day, we finally put into place an Act that will help to benefit Kenyans in line with Article 69(h) that aims to ensure that societies benefit from their resources. This is such an important thing because people feel that they own and they are part of these natural resources. I am of the feeling that if they do not benefit from them, sometimes it causes a lot of the conflict that we see but can be actually avoided. It is very critical that as we enact this law, we think about the natural resources; how they will benefit people and also ensure that conflicts are reduced. I will briefly go through some of the comments that were made by various Senators, highlighting specific areas and also thinking about the areas that will be amended, probably at the Committee of the Whole. Sen. (Prof.) Anyang’-Nyong’o talked about the importance of royalties and the need for communities to benefit broadly. Sen. Mutula Kilonzo Jnr. brought this into perspective even better when he gave the example of Tanzania and how they were able to protect their parks. I find that the easiest way to mobilise communities is to educate them about their natural resources and empower them to take care of those natural resources. When they feel that they have something that they will get back, then, surely, they will do that. It gives them a reason to protect those resources. 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.) Machage): You have forgotten to say something at the end.

Pursuant to Standing Order No. 54(3), I request that the putting of the question be deferred to an opportune time when we are able to vote. Thank you Mr. Speaker, Sir.

(Sen. (Dr.) Machage): Very well. Time will be allocated next week for the Division.

I will defer Order No.13 and No.14 to next week. Proceed to next Order.

After consultations with the Senate Majority Leader, I reinstate Order No. 13 due to constitutional deadline on the 27th May 2015. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

(Sen. (Prof.) Kindiki): Mr. Temporary Speaker, Sir, I beg to move that the Public Service (Values and Principles) Bill (National Assembly Bill No.29 of 2014) be read a second time. This Bill is among the three or four Bills that this House or this Parliament must pass before the expiry of the extended period of 27th April, 2014. That means that I will not go to a lot of details but I will provide adequate overview---

(Sen. (Dr.) Machage): Order. For purposes of record, is it 27th April, 2014 or 27th May, 2015?

(Sen. (Prof.) Kindiki): It is 27th May, 2015. Thank you for the correction. In accordance with the calendar that was adopted by this House, we will proceed on recess in early April and we will not be back until late April. So, it is important that these Bills are disposed of considering that when we resume, it is expected there will be other Bills for 27th August deadline. Having said so, I want to provide a general overview of this Bill. This is a brief Bill; it has about 17 sections. Basically, this Bill is aimed at giving effect to Article 232 of the Constitution. This article basically talks about the Public Service Commission and the need to have a law to be enforced by the Public Service Commission on the ethics, principles and values that should guide all public servants. There has been a lot of concentration on state officers but this Constitution envisages that just like state officers, public officers must be held accountable for the administrative actions they take. There must be a system of promoting integrity and good values in the public service among public servants. This Bill does three things: First, it provides for a code of values for public servants; secondly, it provides for public participation by the society generally on how to promote good values and principles in the public service; thirdly, it provides for a mechanism of reporting the status of implementation of values and principles in the public service. Mr. Temporary Speaker, Sir, the law applies to all state organs in the national and county governments and also to all officers who work in state corporations. Clause 5 of this Bill provides that every public officer must maintain high professional standards and professional ethics. This is the software of our public service. By software, I mean the values and the issues that you will not find in the training that people get in universities. 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.) Machage): Your Speaker is, even now, registered and licensed.

Mr. Temporary Speaker, Sir, I suspected so. I see the kind of confidence that you exude in this House. I take that with a lot of pride. Likewise, the Senate Majority Leader is a lawyer of good standing with the LSK and participates every year in all the continuing legal education programmes of the LSK. This is what this Bill is trying to build in public servants. Likewise, any person who is a member of a professional association must be subjected to the disciplinary processes of those professional associations. This is a good thing so that they serve the public well. You should know that if you are a lawyer, you must be a good lawyer in the public service the same way lawyers in the private service are subjected to disciplinary processes in the event of professional misconduct. Mr. Temporary Speaker, Sir, Section 6 relates to the use of public resources. A public officer is under obligation to ensure effective and efficient use of economic resources under their control. It is an offence to occasion loss or destruction of resources. Under Section 7, public servants are under duty to ensure that they provide services promptly, efficiently, impartially and in an equitable manner. This will put aside nepotism, favouritism and all manner of ills that have bedeviled our public service in the past. The same clause obliges public servants to ensure that there is no unreasonable delay in the provision of service. If a parent wants to register the birth of their child 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.

Mr. Temporary Speaker, Sir, I want to thank the Senate Majority Leader, Sen. (Prof) Kindiki, for requesting me to say something about this Bill and also to second it. I cannot claim to have read this Bill fully but the little I have read, I am convinced that this is the best Bill which is expected to drive the civil service in the right direction and also to give opportunity to all of them, men and women, as opposed to what it is today, where you have a lot of problems like nepotism, tribalism and others. This Bill is expected to do away with this kind of behavior in our institutions. If you are all clean as you are supposed to be – especially in the Legislature, in the Judiciary and, of course, in the Presidency – everybody else will fall in that category. But since we have no law which will give warning to our activities, I think we will continue having this problem. Mr. Temporary Speaker, Sir, this law is almost a copy of what is contained in the Constitution because Article 232 has given authority to this Parliament to provide this kind of legislation. I am very glad that my honourable friend here, the Senate Majority Leader---

(Sen. (Dr.) Machage): Order, Sen. G.G. Kariuki! You stand advised that you must conclude your seconding so that I can propose the question; otherwise if it is not allocated time next week, it will die.

Mr. Temporary Speaker, Sir, I do not think I follow what you are saying.

(Sen. (Dr.) Machage): I advise that you try and conclude your seconding in the next---

Oh, before 6.30 p.m.?

(Sen. (Dr.) Machage): Correct.

Thank you, Mr. Temporary Speaker, Sir. In fact---

(Sen. (Dr.) Machage): You should conclude before 6.29 p.m. so that I may propose the question.

Thank you, Mr. Temporary Speaker, Sir. I concur with your ruling. There is not much actually to say here because it is all what we ought to do. This is human; the way you can organize people and the way people are expected to behave. In fact, this may called a natural law because there is no way you can get somebody to behave the way you want. But if you can convince them and change them using a law like this one – for those who fear to be involved – maybe they might change. 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. Temporary Speaker, Sir. I stand to support this Bill, which is very timely. This Bill is timely especially at a point where the public service, which is a key sector – and at this point I think everybody interacts with the public service – for a long time has operationalized itself and operated in a way that is just meaningful for itself. It is, therefore, very important to put into perspective Chapter 13 and also Chapter 6 on leadership and integrity – which I think also borders on the way people perform – and also Chapter 4 on the Bill of Rights, which is about the whole issue of equality, human dignity, taking care of marginalized groups, which are also important. Therefore, it is very important that rules are put into place. When we have a situation where there is a possibility of conflict between personal issues and public duty, it calls into cognizance the need to put laws into place so that people know what to do, when and exactly how to go about it. Mr. Temporary Speaker, Sir, with this Bill, we have a situation where nobody will ever come and say “I did not know what was expected of me” because everything has been laid out very clearly and expectations have been put out very clearly for everybody to follow through and have a regulatory system that creates a commonality. It creates a general code, public participation and also a reporting status where people can actually report. For many organizations where they have introduced the whole issue of customer service, it has enhanced public participation and the giving of that particular service. That way, people can come to complain, say what went wrong and how they expect it to be rectified and made better. Mr. Temporary Speaker, Sir, just like the Mover of the Motion, Sen. (Prof.) Kindiki said, it is very important to have high standards of professional ethics, which are usually enacted in the different bodies. But specifically in the public service, it becomes very critical that these high standards are maintained---

(Sen. (Dr.) Machage): Order! Sen. (Dr.) Zani, you still have 13 minutes.

(Sen. (Dr.) Machage): Hon. Senators, it is now time to interrupt the business of the House. The Senate stands adjourned until Tuesday, 24th March, 2015, at 2.30 p.m. The Senate rose at 6.30 p.m. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.