Hon. Senators, I have a communication to make as a follow up on what the Senator for Nyeri told the House yesterday. I have also received a letter from the Office of the Governor of Nyeri County inviting all Senators to the main ceremony that will be held on Saturday, 23rd May, 2015 at Dedan Kimathi University of Technology, Nyeri at 9.00 a.m. This ceremony is likely to attract over 100,000 pilgrims and guests and has been upgraded to a state function to be graced by His Excellency the President. I, therefore, urge all hon. Senators who will be attending the ceremony to confirm their attendance with the Office of the Clerk of the Senate at the rise of the Senate today to facilitate the necessary logistical details and protocols.
Mr. Speaker, Sir, I beg to lay the following Paper on the Table:- Report by the Standing Committee on Agriculture, Lands and Natural Resources on the Petition on the plight of farmers at Mwea Settlement Scheme.
Mr. Speaker, Sir, I beg to lay the following Papers on the Table of the Senate:- Reports of the Standing Committee on Education on:- 1. The County Early Childhood Education Bill, 2014; 2. The Universities (Amendment) Bill, 2014.
On a point of order, Mr. Speaker, Sir. I would like to seek a clarification. The Senator for Trans Nzoia approached the Table and purported to have laid a Paper. That was before the Order on Papers Laid was called out by the Clerk-at-the-Table. I am seeking clarification on whether he was laying a paper or presenting a petition. That did not come out clearly.
Sen. Sang, the Senator for Trans Nzoia County who is also the Vice Chairperson of the Committee on Agriculture, Lands and Natural Resources Standing Committee was perfectly in order. He rose to the occasion which was Order No.4 as per Order Paper; this was Petitions. The Petition, according to the appendix on the Order Paper is clearly spelt out and he read it as such. You are the one who is completely out of order. You should also ask your doctor during your next appointment to check whether you are okay. Let us move to the next Order.
Thank you Mr. Speaker, Sir. I rise to seek a statement from the Chairman of the Committee on Education. The ever growing number of university students has stretched the ability of lecturers to cope with the capacities. Some universities, therefore, have hired part time lecturers to plug in the deficit. It has now turned out that some of these part time lecturers are a disgruntled lot due to delayed payments. The common complaint is a breach of contract especially not being paid according to the agreed terms. This has happened mainly in public universities; Nairobi and Kenyatta universities where their arrears are between six months to two years. In my statement, I seek a clarification on the following issues. (1) What is the Government’s policy regarding part time lecturer payment terms? (2) When will all part time lecturers in all public universities be paid their dues that have accrued and are long overdue? (3) Will the arrears be paid, especially for the two years plus interest?
Mr. Speaker, Sir, I will respond in two weeks’ time.
It is so ordered. CIRCUMSTANCES LEADING TO ROAD ACCIDENT AT DARAJA MOJA IN KISII COUNTY
Thank you Mr. Speaker, Sir. I rise to seek a statement from the Chairperson of the Standing Committee on National Security and Foreign Relations regarding a recent accident near Daraja Moja in Kisii Town involving a truck and a trailer Registration No.KAD 162N which was loaded with electricity poles causing the deaths of two pedestrians, a student and an employee of the nearby Gusii Institute of Technology. This incident sparked riots extending for over a period of two days leading to several people sustaining injuries, destruction and looting of properties. In the statement, the Chairperson should; (1) Explain why a police officer was driving the truck at the time of the accident; (2) whether that particular police officer is licensed to drive this class of motor vehicles; and, (3) explain why security officers in Kisii failed to stop the riots in time and maintain law and order; and, (4) whether the national Government will compensate members of the public who suffered injuries and those who lost their property as a result of a breakdown of law and order.
Mr. Speaker, Sir, I request the Senator to give us one week to respond. Thursday next week will be good for us.
That is so ordered. SEIZURE OF KENYAN IVORY IN THAILAND
Mr. Speaker, Sir, three weeks ago I requested for a Statement from the Chair of the Committee on Agriculture regarding the arrest and confistication of ivory in Thailand. My concern was the fact that ivory was found packaged along with packets of tea leaves. Two days ago, another consignment of ivory was arrested in Singapore and once again, the Ivory was concealed in package of tea leaves. In this situation tea has continued to be used as packaging material for contrabands like ivory. I want to further request that a Statement be issued on this recent consignment of ivory which was packaged in tea bags. My concern is on the tea packaging. The tea industry is getting trapped in this ivory business and I am sure its reputation is of concern to me.
Order, Senator. It does not concern you that ivory is being smuggled? I understand the interest you represent in the House and I am sure the ones for the ivory will speak out. Where is the Chairperson?
Mr. Speaker, Sir, it is true we undertook to respond within two weeks but the issue is more complicated than I initially thought because it involves multiple agencies. There are so many agencies involved now in trying to find out what happened. It is a matter of
In any case, you now have an additional homework to do.
In view of the additional homework, I do not know whether one week will be enough. For the first part, I undertake to do within one week but the rest can be done in one week.
But if I can manage the two at the same time, the better.
Mr. Speaker, Sir, the issue of smuggled ivory is of big concern in this country and I am sure it is a security issue also. It is also a huge economic issue and the fact that this country is dealing with corruption at the moment, I expect somebody to take responsibility and be prepared to issue a thorough answer which will cover all the issues that I have raised. So, two weeks will be okay.
Mr. Speaker, Sir, I want to issue a Statement and also seek another one from the Minister for Agriculture.
Start with the Statement you are seeking. CONSTRUCTION OF GATITU-NYAYOTEA FACTORY IN KIRINYAGA EAST SUB-COUNTY
I rise to seek a Statement from the Chairperson of the Standing Committee on Agriculture, Livestock and Fisheries regarding the construction of the proposed Gatitu-Nyayo Tea Factory in Kirinyaga East, sub-county of Kirinyaga County. In the Statement, the Chairperson should address the following:- (1)when the construction work will commence; (2)who was awarded the contract; (3)what will be the cost of the construction upon completion; (4) what are the social benefits of the people living in the neighbourhood;
Who is the Chairperson? Vice Chair? Any Member of the Committee? Sen. Karaba, which Committee is that?
Committee on Agriculture, Livestock and Fisheries.
I request for two weeks.
That is okay. Sen. Karaba, you may now issue your own Statement as Sen. Karaba, Chairman for Education. CONTINUED CLOSURE OF GARISSA TTC
Mr. Speaker, Sir, this is the Statement on the predicament of students of Garissa Teachers Training College that was asked by Sen. Obure. Pursuant to Standing Order No.45(b), Sen. Obure requested for a Statement from the Chairperson of the Standing Committee on Education regarding the predicament of students of Garissa Teachers College. The Senator wanted me to explain whether the Cabinet Secretary Ministry of Education is aware that Garissa Teachers College which is adjacent to Garissa University College remains closed and many students have not reported to college for the second term this year, fearing for their lives.
Who had sought that statement? Any contribution?
Thank you, Mr. Speaker Sir. I listened very keenly to what my Chairman said in regard to the schools. He said that first of all you wear an identity badge. We know that one of the ways that terrorists identify people to shoot is when they know who you are; if you are a Christian they shoot you. Is a mere badge a way of securing anybody in a terrorist infested area? One would have expected to hear that there would be units of security personnel. Every education institution would have a sizeable unit of 20 to 30 people taking charge in the vicinity of the school. They would be fully and better armed than any potential attackers of that
Mr. Speaker Sir, what the Chairman has given us is a very shallow Statement especially when he says that they have 10 policemen. He has not told us what the national Government is doing in terms of enhancing surveillance. To revisit my colleague, Sen. Kagwe’s assertion, are badges a security issue? Students from our counties suffered greatly. We have not been told what measures have been taken in relation to those students who are still at home, other than sending 10 policemen to a very porous institution bordering an enemy country. Let me put it that way.
Mr. Speaker Sir, you will be surprised that I am very disappointed with this answer. You are talking of 610 students at Garissa TTC and at the moment only 44 have gone back to college for this term, meaning that 556 have not reported back. We are being told that they cannot be facilitated to go to other colleges even in the face of personal fear for their lives. Is the Government not being too insensitive to the plight of students and their worries about insecurity in that area?
Mr. Speaker Sir, this is the most absurd and unfortunate answer that this House has been treated to. As much as we do not want to look like we are giving in to the terrorists and losing the war against terror, let me tell the Chairman that nobody will believe this Government with their assurances to these students that they are safe if they go back to this particular college. Amongst the measures the Chairman has given that the Government is taking, is that the County government has promised to set up a police post in the college. We all know that security is not a devolved function. It is entirely upon the national Government to establish police posts where they are needed. For them to tell us that the County government is putting up a police post, I think this is the biggest joke that we have been treated to. Can the Chairman and his Committee have some initiative to compel the Cabinet Secretary (CS) to transfer the students who do not want to go back to Garissa to other Government colleges?
Thank you, Mr. Speaker Sir. Security is the right of every Kenyan. The security situation in north eastern counties is very worrying, to say the least. The education sector that the Chairman represents is totally paralyzed in the north eastern counties from Garissa to Wajir – primary, secondary and tertiary. This is the only college that is open. Next month we are voting Kshs210 billion to security and that is this year alone. It hurts the people of north eastern counties who are residents in this country and are required to assist the Government in fighting terrorists, yet their children in primary and secondary schools and colleges are now at home because there are no teachers and the institutions have been shut down. Mr. Speaker Sir, what happened in Garissa University College was a disaster but the Government through the Ministry of education has now decided – and I want the chairman to clarify that point – to completely close down the college and move it back to Moi University in Eldoret. This is the only university in that region. Even the Westgate Mall where dozens of people were killed, has since been rehabilitated and is due for re-opening next month. The Government cannot abandon its people by shutting down the only institutions in this area. Can he confirm and undertake that the Ministry of Education will release the capital expenditure for Garissa University, so that even as the
Thank you, Mr. Speaker Sir. I think it is never about the number but the level of preparedness of our security officers wherever they are. I know in various places where we wanted to show our might, we have done that very well. We have demonstrated it even here within our precincts. That is what gives people a sense of security. They know that they are well protected and that they can go back to where they need to be. It will be very defeatist for us to move the university to another place because it will show that we cannot keep people safe in that area. It is just about heightening the level of our game as far as security is concerned, especially in the university.
Order, Senator, you only need to seek clarification. This is a Statement Hour.
Mr. Speaker, Sir, I just need an assurance and the progress that has been made in terms of how the future security will be looked into. Thank you, Mr. Speaker, Sir.
Mr. Speaker, Sir, when I read the answer to this Statement, I could not believe that this was Prof. Kaimenyi’s signature. This is because the answers given to the issues raised here were obviously given by a person who does not even understand issues. The person says that the county government has provided three armed Kenya Police Reservists (KPR) instead of officers from the national police service. The person goes ahead to say that the county government will set up a police post. I think this answer is unsatisfactory. Mr. Speaker, Sir, my point is, if you are fighting terrorism, you must not show that you are defeated. The action of closing institutions because terrorists have attacked is a clear indication that the Government has given up. The Government should ensure that those institutions remain open and learning activities continue; then terrorists will know that these are resilient people who cannot be defeated. Therefore, Mr. Speaker, Sir, I appeal to the Government to do everything possible and open those institutions. Everywhere in the country now, students – because of the Government’s action of running away – are also afraid. In Kitui, last week, dogs were barking outside the teacher training college and students jumped through the windows and broke their legs. In the same county, people were told that funny people were seen around Zombe Secondary School in Kitui County. The school is now closed.
Order, Senator, you are supposed to be seeking clarification.
Mr. Speaker, Sir, the clarification that I am seeking is: Will the Government take the matter seriously to defeat terrorism or will it succumb to the threats and close down institutions?
Mr. Speaker, Sir, what happened in Garissa University College was a tragedy like what happened in Westgate. The whole education system in north eastern is paralysed. Therefore, I do not agree with the sentiments of Sen. Khaniri suggesting that we transfer students from the college to another university. We know that north eastern is part of Kenya. The Government should act on the security intelligence because we are aware that the information was given. Transferring students to another institution will not help. The Government should accord students from north eastern province the same opportunities like other Kenyans. Necessary support should be given to the university so that it is opened immediately.
On a point of order, Mr. Speaker, Sir. I have realised that most contributors are from the Committee on Education where I sit. I am wondering whether it is in order for the Chairman of my Committee to table a statement from the Cabinet Secretary without consulting the Committee Members.
You have referred to most Members including yourself. However, you started the onslaught.
To deal with that specific matter, the Chair is perfectly in order.
Of course, that does not mean that you should not be consulting in the future. Ideally, it also depends on the timing of some of the statements. Some of them come a bit too late for the Chair to convene a meeting yet he is under the obligation to report to the House. Ideally, the statement should be sought in good time so that the committee can interrogate it. I am sure if the Committee interrogated the issue that would have been to the benefit of our contributions before we come to the Plenary. I will give the last chances for Members to contribute because I see the interest is immense. I do not want more to be added. I will give a chance to Sen. Bule and finally Sen. Sang.
Mr. Speaker, Sir, first and foremost before I proceed, I thank my Chairman for having given an answer. However, Members should know that the answer that the Chairman has given is borrowed from a Cabinet Secretary (CS). This is second hand information. Members should not take it that the answer is from the Chairman himself. He was answering what they asked but the answer came from the CS. If you want a clear answer from the Chairman, you have to amend the Constitution. The other issue is that the Government has to use all possible means and ways to assure the people of Tana River or any other place that Kenya is secure. Garissa University College should be opened immediately and maximum security provided. That is the role of the Government.
Mr. Speaker, Sir, I seek a few clarifications from the Chairman. First, could he clarify that, indeed, the Government, in its attempts to secure all parts of this country especially that region, is receiving the necessary cooperation from the political leaders in that region? He should also confirm whether leaders from the region who gave a promise to share the names of some of the people cooperating with terrorists have shared the details. As the Government continues with the agenda of securing Kenyans, are political leaders in the region cooperating?
Mr. Speaker, Sir, the issue of sharing names is not our concern. That should be done by the security forces or the people who said that they would do so. We know that the security of Kenyans lies with the Kenya national Government. Our counties need security from the national Government. We also need security. Therefore, the issue of victimising individuals should not arise.
Mr. Speaker, Sir, I would like to clarify. The question which I was attempting to answer was not about Garissa University College. It was about Garissa Teachers Training College (TTC) which is different from Garissa University College. So, majority of Members who talked about the university were, therefore, misled. They should put another question about the university but contribute on the issue of the college. The answers that I can provide are as follows:
Order, Senators! Order, Chairman! First, Chairman, you have told the House that you are attempting to answer. We do not make attempts here. We respond to Statements and answer questions. This is not a place for attempts. This is a place where Kenyans are seeking information and they must be given, through their elected representatives. Secondly, the issues at hand are about security. The university was attacked on 2nd April and you are actually confirming that the students are yet to report. Only 44 out of 610 have reported. So, they are giving Garissa University College as an example on the basis of what else you have done. They have even gone further to ask what the Government is doing to ensure that all those institutions are secured. We are worried about all of them. Proceed, Chair!
Mr. Speaker, Sir, the first concern was about badges. The use of badges is one of the many other measures that the university colleges have taken to ensure that those who operate in and out of the colleges are identified. I think that is a normal practice. Even here we have badges and so, that has nothing to do with the guns or whether or not we can be shot. You can still be killed with or without a badge. The purpose of the badges is to identify those entering and moving out of the college. The other concern was about those who have already reported. I called Garissa TTC this afternoon and was assured by the Principal that 343 students have since reported. So, the 44 students indicated in the Statement were as at the time it was written by the Minister. I made my own effort and confirmed that 343 students have since reported. Security meetings are still being held up to now. So, a lot is happening in that college as regards security. The other concern was about a police post. Even in my own county we have created a police post in Kirinyaga University College and it is from the county. So, there is nothing wrong with the county government collaborating with the national Government to put up such security measures. Therefore, I think it is in order for the County Government of Garissa to come up with such an idea. It is a very noble idea and I would encourage many other county governments to think about security before they even think of how the national Government can provide security. The other issue is about the fate of Garissa University College. It was closed temporarily and not forever. The Government is looking into ways and means of reopening it. Meanwhile, quite a number of university students have been transferred to Moi University, Eldoret and they will be there for some time. As soon as security is restored, I am sure that they will either go back or fresh students will be admitted to the university. Regarding other security measures, it is true that every other school or college is gripped with fear and not only those in Sen. Musila’s constituency. Recently, a student died at the University of Nairobi when a transformer went into flames and students thought that they had been attacked. So, every other school, college and institution of learning should see to it that security measures are put in place both by the local and national Government. Thank you, Mr. Speaker, Sir.
Mr. Speaker, Sir, I have one concern that has not been addressed well. I specifically requested to know what appropriate measures the Ministry is taking to ensure adequate security in all institutions of learning in the country. That concern has not been addressed. All he has said is that the national Government will ensure that all learning institutions are provided with adequate security, but what I am asking is: What specific measures are being put in place to ensure that security? Lastly, we have been told this afternoon that there has been improvement in terms of the number of students who have reported back to Garissa TTC. There are still over 200 students who have not reported back due to personal reasons, particularly fear for their lives. What is the Ministry doing to address the concerns of those 200 students who have not reported back? Could we be given an assurance that these students will be accommodated somehow, so that they can pursue their studies? The Chairman has already assured their parents that they will be allowed to complete their studies, but how will they be able to complete their studies if they do not want to go to Garissa specifically? Could he tell us if they are going to make alternative arrangements to accommodate the 200 students who have not reported back?
Order, Senators! Before the Chair responds, yesterday you did a good job on the three Bills which were on Second Reading. Today they are here for the Third Reading. Therefore, it is important that we embark on them the soonest possible. So, I want to encourage each and every one of you to remain present until that particular business has been disposed. Chair!
Mr. Chairman, Sir, I think that I had addressed that concern in my Statement. I told the House that if 44 students reported when they were opening two weeks ago, and now we are in the second week and there are 343 students. Given that trend, therefore, it is likely that we are going to register maybe 400 or 500 students in the third week. The Senator should encourage students from Kisii to go back because there is peace in Garissa. Secondly, the Government is doing everything possible to provide security to all institutions by trying to sensitize even the heads themselves. Several meetings are being held countrywide by various schools’ associations on how to address security issues, including how to take care of rumours about impending attacks and fear. We are, therefore, advising people not to take propaganda seriously. But let them understand that the Government is out to protect everybody in the country. I even have a Kenya National Union of Teacher (KNUT) statement from Garissa telling community members to live peacefully with the other people who are coming in. So, a lot of measures have been put in place regarding not only security, but also counseling.
Order, Chair! First, I want to commend you for a real attempt to answer, but the House is not satisfied. It is not enough to tell Senators to ask their constituents to take their children there. That is not in doubt. The issue is whether it is safe for the students to be there? I will give you another one week to report to the House that it is absolutely safe with concrete measures of safety by the national police. We are not going to rely on the Kenya Police Reservists (KPR).
What is it Sen. Wamatangi?
Mr. Speaker, Sir, ---
Order Sen.Wamatangi! My last Statement was on “behalf of the Senate and on my own behalf”; you are part of the Senate, or are you not?
Mr. Speaker, Sir, I just want to welcome them to the Senate.
Mr. Speaker, Sir, thank you, for allowing me to request a Statement from the Chairman of the Committee on Roads and Transportation with regard to the Mombasa- Nairobi Road. Due to the rains, the section between Mariakani, Voi and Mutitu Andei has become a killer road. This is because of pot holes in that section and, because the huge trucks are forcing the cars off the tarmac road, there has been an increase in the number of accidents. On Sunday, on my way back, there were six accidents between Voi and Mutitu Andei. In my Statement, I would request the Cabinet Secretary (CS) concerned to respond to the following; (1) When will the repair work be undertaken as a matter of urgency before we lose more lives? (2) When repairing, could the Ministry consider erecting bumps at Nyasenyi Centre, Voi, Caltex and Ndii centre, there are so many people who have been killed. These are dangerous spots and many people have lost their lives? (3) What is the Ministry going to do to make sure that there is a maintenance plan on a continuous basis, so that even during the rainy season, we have men on the site to make sure that any pot holes are dealt with before they increase and the road becomes impassable?
Chair of the Committee on Roads and Transportation?
Mr. Speaker, Sir, I will give a response in two weeks time.
In two week’s time. It is so ordered.
Mr. Speaker, Sir, I want to ride on what Sen. Mwakulegwa has requested, knowing very well that quite a number of roads are under the Kenya Rural Roads Authority (KERRA) in the counties. We know that during the last rains, at least quite a number of roads were affected. I believe that other counties have similar problems. Is it possible for the Chair to tell us what KERRA is doing for all roads within our counties which have been affected by the last rains? In Kajiado, a number of bridges and roads have been swept away. So what is KERRA doing for those roads?
It is so ordered, the Chair will include it.
Mr. Speaker, Sir, I also stand with regard to the matter of roads, particularly Thika Road which was recently constructed by the Chinese. I am not sure whether the Certificate of Completion has been issued to the Government. Similar problems are there and what they are now doing is to dig the Fiber Optic Cables between the roads and they are damaging the roads, such that it is almost impossible to drive because of the artificial potholes which are created by the shoddy works which they are doing as they dig in the cables in various places.
The Chair has heard. As we mobilize the numbers for the next order, we will go back to Order No. 4 of Petition by Senator for Kiambu, Sen. Wamatangi.
Mr. Speaker, Sir, this is a Petition to the Senate by Members of the Kiambu County Assembly, concerning the passage of the Kiambu County Supplementary Appropriation Bill, No.3 of 2015, with respect to funds allocated for purchase of vehicles by the Kiambu County Government. It reads:- We, the undersigned citizens of the Republic of Kenya, Members of the Kiambu County Assembly and residents of Kiambu County, draw the attention of the Senate to the following: (1) On 31st March, 2015, the county government of Kiambu submitted to the County Assembly of Kiambu, County Supplementary Appropriation Bill, No.3 of 2015. Among the items listed in the said Bill and which the Assembly was requested to approve was an amount of Kshs221 million for the purchase of 72 vehicles to be utilized by a single department of the county government; (2) That the county assembly considered the Bill and facilitated public participation during which Kiambu County residents submitted their views, key among which was the reduction of the number of vehicles to be purchased following which the Budget Committee of the assembly recommended the reduction of the vehicles from 72 to 15. Consequently, the Bill was passed in the amended form and forwarded to the governor for assent; and (3) That the governor declined to assent to the said Bill as amended and passed by the county assembly and returned the same to the assembly with a memorandum indicating that the number of vehicles proposed to be purchased had been reduced from the earlier proposed 72 vehicles to 42 vehicles. However, the money allocated for vehicles remained unchanged at Kshs221million.
Order, Senators! That was a request put to me, not to you.
Proceed, Sen. Khaniri.
Mr. Speaker, Sir, listening to the Petition from the honourable Members of Kiambu County Assembly and looking at the trend that the Governors have taken in spending the monies that we sent to them, it is becoming apparent that devolution may not benefit Kenyans as it was envisaged in the Constitution. That is very sad. We know that devolution was the biggest achievement that the people of Kenya gained in the new Constitution of Kenya (2010). We send money to the counties expecting that our people at the grassroots will get medicine in their hospitals, water supply and good roads. However, officials in the county governments have embarked on buying themselves luxurious cars and Governors building themselves very posh residences; it is very sad. I want to sincerely thank the Members from Kiambu County Assembly who have stood firm and objected to this kind of expenditure and extravagance. We have employed officers in our county Governments and they are paid salaries. Let them buy their cars. We want the little money that we fight for and send there to benefit the people in the counties. Mr. Speaker, Sir, I know that you will commit this Petition to a Standing Committee. We want this matter to be expedited so that this situation can be resolved once and for all. We strongly support the Petition.
Proceed, Sen. Hassan. Sen. Abdirahman Hassan not Sen. Hassan “multiplied by two”.
Mr. Speaker, Sir, listening to the Petition presented by our colleague Sen. Wamatangi on behalf of the Kiambu County Assembly, there is evidence - I do not want to talk about things – or indications that there are malpractices that are going on in a number of counties. Many of them do not come to the fore. I thank the Kiambu County Assembly Members for being courageous and coming out openly to bring out this kind of malpractices in our counties. Immediately after our election, there were issues in Turkana which were ably addressed by this Senate then. It is time for the Senate also to up its sleeves and ensure that we serve Kenyans. This is why we were calling for what we were trying to call the County Development Coordination Board. When issues are not brought to the table for discussion on how we should prioritise our projects, then we are bound to experience these kinds of issues. I thank Sen. Wamatangi, MCAs and the larger Kiambu public for their good efforts.
Mr. Speaker, Sir, I lend my hand and voice to this unfair, illegal, unlawful and flights of fancy by the County Government of Kiambu. I would like to ask the MCAs of Kiambu to come here tomorrow because we will be discussing the regulations with regard to the Public Finance Management (PFM) Act Regulations. This practice where money that is allocated for development is diverted for functions that are not for development will soon come to an end. All is not lost. What is remaining is to take legal action so that proper sanctions are taken against the persons who are involved. This is like a broken record. We have heard about this for too long. Time has come for us to start doing the Nigerian thing; jail a few people.
Order, Sen. Mutula Kilonzo Jnr. Are you implying that Senators have powers to jail? We leave that to other arms of Government. We will do our part and I am sure that they will do theirs. Order Senators! The Petition, according to Standing Order No. 227, will be committed to the Standing Committee on Finance, Commerce and Budget. The Chairperson is present and he has heard his colleagues say that they want the matter to be expedited. So, you do not have to exhaust the 60 days.
(Sen. (Dr.) Machage): Order Senators! We will need the requisite numbers to execute Order Numbers 8, 9, 10, 11 and 12. I request that the Whips make sure that we have the numbers in the House because we have important matters to execute today. We will start with Order No. 8, The Public Audit Bill (National Assembly bill No. 38 of 2014). THE PUBLIC AUDIT BILL (NATIONAL ASSEMBLY BILL NO. 38 OF 2014)
(Sen. (Dr.) Machage): There are no amendments to Clauses 3 and 4 and I see no intervention. Therefore, we will have Division on them at the end.
(Sen. (Dr.) Machage): I propose the Question that Clause 5 be part of the Bill. I see that there is an amendment. Mover! Please proceed.
Order the Senate Majority Leader! We will need your vote today.
Mr. Temporary Chairman, Sir, I beg to move:- THAT, clause 5 be amended in- (a) paragraph (b) by deleting the words “Article 229” appearing immediately after the words “specified in” and substituting therefore the words “Article 229(2)”; and
(Sen. (Dr.) Machage): What reason have you for that amendment?
Mr. Temporary Chairman, Sir, it is just a small adjustment; deleting words like “Article 229” and substituting it with “Article 229(2)”. It is basically typos. It is not going to change the meaning significantly.
(Sen. (Dr.) Machage): Order Members! Can you consult silently? We want to do the business of the House.
Mr. Temporary Chairman, Sir, I beg to move:- THAT
(Sen. (Dr.) Machage): I see no interest so lets us move to the next.
(Sen. (Dr.) Machage): There are no amendments to Clauses 12, 13, 14,15,16,17 and 18. I propose that they be part of the Bill.
Mr. Temporary Chairman, Sir, I beg to move:- THAT, clause 19 be amended in sub-section (2) by deleting the words “review and” appearing immediately after the words “each year for” at the end of the paragraph. It is important that we make that amendment. I think that if Members want to read the import of it is when they put in the word “review and”; then they can see that it is important that we make that adjustment.
Mr. Temporary Chairman, Sir, I beg to move:- THAT, clause 24 be amended in- (a) paragraph (a) of sub-section (1), by inserting the words “who shall be the chairperson” at the end of the paragraph; and (b) sub-section (3) by deleting the words “shall appoint a chairperson from among the persons under subsection (1) above and” appearing immediately after the words “the Auditor- General”. We are suggesting that the Auditor-General shall be the Chairperson of the advisory board like it is the case in all other institutions like the Central Bank and others. I think that it is important that the Auditor-General be the Chairman of the board because the board has a significant role. In sub-section (3), the Auditor-General shall appoint a person from among the persons under section subsection (1) above and may co-opt two other members. We are deleting the words “shall appoint” a Chairperson from among the persons so that it conforms to the earlier one that we have amended.
Mr. Temporary Chairperson, Sir, I have an amendment which is not on the Order Paper. I propose that Clause 26 be deleted and substituted therefor with the following new clause:- “26. (1) subject to section 10 the principal function of the Audit Advisory Board shall be to advise the Auditor-General on the exercise of his or her powers and the performance of his or her functions under the Constitution and this Act.
(Sen. (Dr.) Machage): Chairperson, just to remind you of our Standing Orders. The only person that is allowed to move an amendment on the Floor without notice is the mover of the Bill. I may give an exemption, but you are quite out of order to do that. Next time do not do that. You must give us at least 24 hours notice so that the Members can be privy to your thoughts and digest it slowly. You are hijacking the House.
Mr. Temporary Chairperson, Sir, I actually signed this and gave it to the office of the Clerks-at-the-Table.
(Sen. (Dr.) Machage): Very well! You have the lee way today only.
Mr. Temporary Chairperson, Sir, I beg to move:- That, Clause 32 of the Bill be amended in sub-clause (1)by deleting the word “may” appearing immediately after the words “public entity”. What it means is that the final report by the internal auditor which has been deliberated on and adopted by an audit committee of a State organ or public entity be copied to the Auditor- General. It should not be “maybe”. That is the discretion we are trying to avoid. If you remove “May” then obviously it means that it must be done. I am not a lawyer but I think that makes it.
(Sen. (Dr.) Machage): Sen. Mutula Kilonzo Jnr., I can see you want to speak out.
Mr. Temporary Chairperson, Sir, I was just reminding my Chairperson that it is not assumed that in the absence of “may” you must say “shall” and it is not “could” or “should”.
(Sen. (Dr.) Machage): Your Chairperson said “should”. Are you disputing his amendment? Can you move another amendment if you want?
No, Mr. Temporary Speaker, Sir. I was just reminding him to go with the Order Paper. Thank you.
Mr. Temporary Chairperson, Sir, I agree with Sen. Mutula Kilonzo Jnr. that the Order Paper says “shall” and that is what we are moving.
(Sen. (Dr.) Machage): Now what is it, Chairperson? Is it ‘shall” or “should” because we have the HANSARD recording you and you should be sure.
Mr. Temporary Chairperson, Sir, I was explaining as the third person. They must have forgotten the English of the third person. It should actually be copied to the Auditor- General. The word is very clear; it is “shall”.
Mr. Temporary Chairman Sir, I beg to move:- THAT
Mr. Temporary Chairperson, Sir, I stand to very strongly support what the Chairperson has proposed because this is one area where abuse of public funds is done in the name of security. We know for a fact that Kenya is losing billions of shillings through dubious ways of spending including procurement, hiding behind the fact that it is security and, therefore, cannot be audited. I applaud and support the amendment.
Mr. Temporary Chairman, Sir, mine is just to thank the Chair of this Committee for bringing this amendment. Whatever has been said here is standard and has to be supported by every one of us. It is absolutely good that we have many problems with procurement and control of our funds.
(Sen. (Dr.) Machage): Order. May I get you right? You said it is absolutely good that we have problems?
It is absolutely good that this amendment can give us light to the problems that we have been encountering all over, every now and then. It is a solution to our problem.
(Sen. (Dr.) Machage): You are now understood.
Mr. Temporary Chairman, Sir, let me take this opportunity to support this amendment. From the outset, if you put some vectors on the work of the Auditor-General then he will not be able to do his work. If you are giving a leeway that expenditure to the security cannot be scrutinized by the Auditor-General it would be wrong. I support.
(Sen. (Dr.) Machage): The amendment is unanimously supported. Is there somebody with a descending voice? I have heard seven contributors---
Mr. Temporary Chairman, Sir, we might be challenged by the National Assembly on our amendments. So, let us tell the country why we are doing this. This is a very dangerous clause and that is why I support the amendment. You cannot give the Auditor-General independence in the Constitution and at the same time claw back by proposing that he needs to seek consent. Therefore, what must be said is that Clause 39 as appears in this Bill is unconstitutional to the extent that it limits or claws back the independent power of the Auditor-General to audit any government entity.
Mr. Temporary Chairman, Sir, I also support this amendment because the biggest cases of corruption have taken place in the Office of the President. We remember that Anglo Leasing was done through restricted tenders. With amendments that we are bringing in, I believe that the Auditor-General will make sure that he captures these restricted tenders and know exactly what is happening. This will ensure that the looting of public funds will not continue. I do support so that we do not have a situation where a few people collude to steal public funds.
Mr. Temporary Chairman, Sir, this matter has been exhausted because it is very clear that all public funds have to be audited. Whether the demand is raised by the National Assembly or the Senate, the Auditor-General has to look at it. The current situation is that a lot of money has been spent; it was being spent by just a single officer. They went round to manipulate the committees to make sure that this matter does not come out. It is very important to have this Clause is amended the way it is.
Mr. Temporary Chairman, Sir, I support this amendment. The Security sector in this country takes a huge chunk of the national budget and I think it is important that whereas we are careful not to compromise the security of this country, we should not leave room for mischief in terms of misuse of public resources. If there is somebody who should help us deal with misuse of resources within this sector, it should be the Auditor-General. Therefore, when I look at the amendment, I do not think it compromises the security of this country but only helps us to ensure that the resources allocated to this sector are utilized for the benefit of this country. I support.
Mr. Temporary Chairman, Sir, I seek your guidance. Although the Bill was moved by the Leader of Majority, it was referred to our Committee and I have been handling it. Under the circumstances, can I, under the Standing Orders move an amendment, as the Mover is allowed?
(Sen. (Dr.) Machage): You are not the Mover.
I am standing in for the Mover.
(Sen. (Dr.) Machage): Go on then.
Mr. Temporary Chairman, Sir, I beg to amend Clause 39(3) by deleting it. Sub-section (3) reads as follows:- “All staff of the Auditor-General carrying out audit under this section shall undergo a vetting process to be carried out by the appropriate security agency.” There is a risk here. What it means is that if the Auditor-General wants to audit the Kenya Defence Forces (KDF), then the KDF will vet all the staff of the Auditor-General who will be involved in the audit. That means there is a risk where they will say we want so and so and we do
(Sen. (Dr.) Machage): It is your assumption that the phrase “appropriate” security agency means the group or firm to be audited.
It means the one that is being audited. You are actually giving a client the opportunity to determine who will audit it or who will not.
On a point of order, Mr. Temporary Chairperson, Sir.
Mr. Temporary Chairperson, Sir, we have not seconded yet.
(Sen. (Dr.) Machage): That is a point of order.
Mr. Temporary Chairperson, Sir, before the seconding ---
Are you arguing with the Chairperson?
(Sen. (Dr.) Machage): There is no problem. We are in the Committee of the Whole.
On a point of order, Mr. Temporary Chairperson, Sir. I think the interpretation given by Sen. Billow is totally wrong because all vetting of security ---
(Sen. (Dr.) Machage): Order! I suggest that you let the seconder second then you will have time to discuss.
Mr. Temporary Chairperson, Sir, the spirit of the amendment on (1) is so that we protect the independence of the Auditor-General. When we say the Auditor- General, it includes the members of staff. In the previous clauses, the Auditor-General, in our amendments, has been given authority to vet the officers that will work with him. To provide a second tire vetting process by the person who is being audited is to say that one security organ will pick Mutula, Kamau or another person whom they like to go and audit them. It is like choosing the judge in a court case. Therefore, it is unconstitutional in every sense of the word. It is my proposal that we must delete this because we will then again, in legal terms, claw back on the authority of the Auditor-General. We must give him the mandate to send you to go there because he is satisfied that you have the qualifications to vet and audit that security agent. Giving them the mandate to choose is to say that at some point, this Auditor-General does not have qualified officers to audit us. It cannot work.
(Sen. (Dr.) Machage): Very well. Just to remind you that seconding an amendment is not really necessary in the Committee of the Whole.
On a point of order, Mr. Temporary Chairperson, Sir. I oppose on the grounds that I think this is being given the wrong interpretation. It is not the officers who are going to be audited who will vet an officer. Generally, any officer handling matters of security has to be vetted by the Director of security intelligence. In any way, he will not know whether these people will audit him or not. Therefore, I think we should not really put a spanner into things that can be worked in a better way. Vetting is very important. How can you say that matters of security remain confidential if the one handling that confidentiality is not vetted? They have to be vetted and it is not against the Constitution.
Mr. Temporary Chairperson, Sir, I think time has come for the things that have to be done in this country to be transparent. The office of the Auditor-General is created within the Constitution and given the mandate to audit. If the Auditor-General moves to audit the security agencies of this country and on top of that he moves up to the door and is told:“Stop there. You have brought the agenda but we are going to give you people now to audit the same people who are supposed to be audited.” Why do we cheat Kenyans? It is appropriate to allow the mandate to take place for the Auditor-General to do his work. He has been auditing since Independence. What secrets are these that are being shielded from being seen and understood by Kenyans? He has been doing the job and audits have been done. Up to this day, we have no threats of what has been audited. Let the Auditor-General do his work and that sub-section must and ought to be deleted to give Kenyans that transparency to be seen that we have absolutely nothing to hide. You cannot take the person to be audited to audit himself and then tell Kenyans that auditing has been done and the work is done.
Mr. Temporary Chairperson, Sir, I strongly support the deletion of this Clause. We must do everything possible to ensure that the office of the Auditor-General receives the guarantees necessary to enable him do his job. It is very wrong for an institution being audited to be allowed to say who will audit them. This is ridiculous because that would be undermining the independence of the office of the Auditor-General and we must shield that office in every respect by ensuring that this Clause does not find its way into the law.
Thank you, Mr. Temporary Chairperson, Sir. Of course, we have agreed and we have passed the law that at least the Auditor-General needs to be given the space to vet the security department. It will really defeat the purpose again if we say that after allowing him to do the audit the same person or institution that will be audited is going to vet the person who is going to do the audit. With all due respect, I know definitely the people who are going to be assigned to the office of the Auditor-General will be credible. They will not even be a security risk because if they are, even the Auditor-General’s office will be a security risk. The issue of imagining that the Auditor-General’s office can be a security threat to that department is not there. So, at the introduction of that, you are giving it out there and then blocking it. We must make sure that we delete it and allow the Auditor-General to make sure that the officers he or she sends will go without intimidation. This is because vetting itself will start intimidating those people. So, automatically it will be compromising the principles of the people who are going to audit. With all due respect, that particular Clause needs to be deleted. I support the deletion.
Mr. Temporary Chairperson, Sir, I also support the proposal to delete Clause 39(3). I also sympathise with some of the concerns raised by Sen. Haji but probably those concerns could be misplaced. I still believe that if an auditor has be sent by the Auditor-General to go and audit those security related sectors, there would still be certain procedures that they have to go through; procedures for access to premises and so on. There would still be procedures that would not need to come here. When you put 39(3) in this Act, it means that the person being audited will be allowed to decide who is coming to audit them. Of course, there is the fear that the Auditor-General might have hired some people who became radicalized along the way and joined funny groupings. When you send them to some of these installations, they can go ahead and pursue their beliefs. I believe there can still be procedures that can be put in place without them coming here. If you put this, then the Auditor-
(Sen. (Dr.) Machage): Next Clause. In any case, Mr. Chairman, are you the one who drafted?
Yes, Mr. Temporary Chairman, Sir.
(Sen. (Dr.) Machage): Then why do we have very many amendments?
Mr. Temporary Chairman, Sir, it is the Committee. No, we did not do the Bill. It came from the National Assembly.
(Sen. (Dr.) Machage): I wanted to hear that because you had said that you did it.
Mr. Temporary Chairman, Sir, I beg to move:- THAT, Clause 40 be amended in sub-clause (2) by deleting the words, “Article 206(1)(b)” appearing immediately after the words “accordance with” and substituting therefor the words “Article 206(1)”. This is about the financing of the Auditor-General’s Office and it says, in sub-clause (2) of the Bill: “The receipts and earnings or accruals from the Office of the Auditor-General shall not be paid into the Consolidated Fund but shall be retained for the purposes of this Act in accordance with Article 206(1)(b).” It should actually be Article 206(1) because Article 206(1)(b) restricts it. It should be on the wider sub-section 1.
(Sen. (Dr.) Machage): I see no intervention. Next Clause.
Mr. Temporary Chairman, Sir, I beg to move:- THAT
(Sen. (Dr.) Machage): I see no intervention.
(Sen. (Dr.) Machage): I see no intervention. Next.
I apologise, Mr. Temporary Chairman, Sir. I seek your indulgence. There is an amendment to Clause 26 that I had proposed earlier which was---
(Sen. (Dr.) Machage): Order, we are now dealing with Clauses 42 to 71.
Mr. Temporary Chairman, Sir, we are through with that one but before we put the question on Clause 3 and the others, I seek your indulgence on Clause 26 about the amendment that I had brought earlier in in my personal capacity. Mr. Temporary Chairman, Sir, I have since learnt from my learned friend.
(Sen. (Dr.) Machage): Wait, where is that? Let me get my bearing.
Mr. Temporary Chairman, Sir, the amendment of Clause 26 is about the choice of words. My learned colleague has advised me that what I wanted to say is not clear.
(Sen. (Dr.) Machage): Are you trying to amend what you had amended?
Mr. Temporary Chairman, Sir, I am seeking your indulgence on that because we have not yet voted on it. Allow me to make a small amendment.
(Sen. (Dr.) Machage): You know the Standing Orders are very clear. You have to re-do what you had already done because I had already proposed the question on what you had amended. If you have to amend again, then you should seek my permission to allow you to amend because you did not give notice. Are you amending the amendment?
No, Mr. Temporary Chairman, Sir. It is just about the choice of words. You can exercise your discretion on that.
(Sen. (Dr.) Machage): But that is already in the HANSARD. How do I do that?
Mr. Temporary Chairman, Sir, I have learnt that where the Clause says “without prejudice to Section 10”, I have been advised that a better language should be “subject
(Sen. (Dr.) Machage): Let me consult.
I think this is just a polishing up issue. I order the secretariat to polish it as suggested. The amendment on Clause 26 by the Chairperson is replacing the phrase “without prejudice to” with the phrase “subject to”. The Clause will, therefore, read as follows: 26 (1) Subject to section 10, the principal function of the Audit Advisory Board shall be to advise the Auditor-General on the exercise of his or her powers and the performance of his or her functions under the Constitution and this Act. (2) Subject to the generality of subsection (1) the Board shall, in addition to any other function that may be conferred by this Act or any other law, advise the Auditor-General on- (a) the recruitment of senior managers into the Office of the Auditor-General; (b) the development and review of organizational development issues; (c) the budget estimates and plans of the Office of the Auditor-General; (d) the remuneration and other terms of appointment of the staff of the Office of the Auditor-General in consultation with the Salaries and Remuneration Commission, and; (e) any other matter that the Auditor-General may refer to the Board from time to time. In the second sub-clause of Clause 26, he is doing the same. That is language semantics.
I see no intervention. Do we have the numbers? Could the Division Bell be rung for two minutes?
(Sen. (Dr.) Machage): Ring the Division Bell for another minute.
Order! Whips, do we have the requisite number? I want us to go to Division. Close the doors and draw the bar.
Senators, we are in Division on Order No.8. We will have three Divisions. The first one will be on clauses without amendments. The second Division will be on clauses with
(Sen. (Dr.) Machage): Hon. Senators, the electronic voting system is not working. We will have a manual roll call voting and for this, we need Tellers. Sen. (Prof.) Kindiki is for the Ayes and Sen. Sijeny is for the Noes.
Very well, that is a good observation. Your Standing Orders dictate that you must stand to vote. Let us continue.
Sen. (Prof.) Kindiki.
Hon Senators, the results are as follows.
Sen. (Prof.) Kindiki.
Hon Senators, the results are as follows.
Sen. (Prof.) Kindiki.
Hon Senators, the results are as follows.
Mr. Temporary Chairman, Sir, I beg to move that the Committee do report to the Senate its consideration of The Public Audit Bill (National Assembly Bill No.38 of 2014) and its approval thereof with amendments.
Mr. Temporary Speaker, Sir, I beg to report that a Committee of the Whole has considered The Public Audit Bill (National Assembly Bill No.38 of 2014) and approval thereof with amendments.
Mr. Temporary Speaker, Sir, I beg to move that the House do agree with the Committee in the said Report.
Mr. Temporary Speaker, Sir, I beg to move that The Public Audit Bill (National Assembly Bill No.38 of 2014) Bill be now read the Third Time
Ring the Division Bell for two minutes.
I order the Division Bell be rung for two more minutes. Hon. Senators take your positions so that we can take a Roll Call vote. Hon. Senators we have two more Bills which we must dispose of. I suggest that after this voting the doors will not be opened so that we continue to the end.
Sen. (Prof.) Kindiki
Hon. Senators, the results of the division are as follows:
(Sen. (Prof.) Kindiki): On a point of order, Mr. Temporary Chairman, Sir. I am standing on a point of order to ask the Chair to allow me to move a short procedural Motion before we proceed. This relates to the next two Orders.
(Sen. (Prof.) Kindiki): Mr. Temporary Chairman, Sir, I beg to move:- THAT, pursuant to Standing Order No.30(3)(a) the Senate resolves to extend today’s sitting until conclusion of business listed in Orders No.9 and 10 in today’s Order Paper. Mr. Temporary Speaker, Sir, we have just concluded the process of finalizing one very important Bill, the Public Audit Bill (National Assembly Bill No.38 of 2014). We have two other Bills which have next week’s deadline and which must also be considered by the National Assembly before that time. It is for that reason that I move this Motion requesting that this House resolves to be patient and pass the last two Bills, that is The Fair Administrative Action Bill as well the Public Procurement and Asset Disposal Bill which have similar deadlines. With a little patience, by around 7.00 p.m. we should have finished, all factors remaining constant. Without much ado, I beg to move and request the Deputy Minority Leader, Sen. Abdirahman to second.
Mr. Temporary Speaker, Sir, I stand to second the Senate Majority Leader’s position, given the fact that we had agreed earlier on that we are going to beat the deadline as proposed by this House. I beg to second.
Mr. Temporary Speaker, Sir, I rise to support this procedural Motion with a very heavy heart. This is not a fault of our own. Our sister House has made it a tradition to drag their feet before they sent Bills to this House, then we are being persuaded by my good friend to
(Sen. (Dr.) Machage): Hon. Senators, I will use the same format that I used earlier in the previous Bill. Let us proceed.
Mr. Temporary Chairman, Sir, for the record, Sen. Mutula Kilonzo Jnr. and I, will be moving the amendments on behalf of the Mover.
(Sen. (Dr.) Machage): It can only be one person.
I will move some and then I will hand over to Sen. Mutula Kilonzo Jnr.
(Sen. (Dr.) Machage): Is that what you want?
Yes, Mr. Temporary Speaker, Sir. We wish to drop the amendment to Clause 3 for the reason that the Bill was poorly drafted and the intention of the Bill will be distorted if we remove that amendment. So, we are dropping any amendment to Clause 3.
Mr. Temporary Chairman, Sir, I beg to move:- THAT, Clause 4 be amended:-
Mr. Temporary Chairperson, Sir, I beg to move:- THAT, Clause 5 of the Bill be amended in sub-clause 2 by deleting paragraph (a) and substituting thereof the following new paragraph: (a) challenge any administrative action or decision in accordance with the procedure set out under the Commission of Administrative Justice Act, 2011 or any successor to the Commission on Administrative Justice under Section 55 of the Commission in Administrative Justice Act. Mr. Temporary Chairman, Sir, the rationale for this amendment is to ensure that the existing framework and processes under the Commission of Administrative Justice Act which creates the CAJ, that then the same procedures are synchronized with this provision because the
.: Mr. Temporary Chairperson, Sir, let me add something small. It is proposed in the Constitution that the CAJ has a sunset clause in the Constitution. It is, therefore, presumed that the action of CAJ would then be merged with the Kenya National Human Rights and Equality Commission (KNHREC). The actions that would be taken by the Commission of administrative action on the presumption after the sunset clause, we have proposed that KNHREC that will take over the work of CAJ continue with its work, hence the words, “the successor of CAJ” in Clause 5.
On a point of order, Mr. Temporary Chairperson, Sir. Rather than the mover reading verbatim what is in the Order Paper, he could simply say that: “I propose that Clause so and so be amended as contained in the Order Paper” and continue to explain why that amendment is there. Otherwise, I see the amendments are very long. We are going to spend more time listening to what we can read rather than listening to the reasons why the amendments are being proposed.
(Sen. (Dr.) Machage): Quite in order. Let that be done. Next Clause!
Mr. Temporary Chairman, Sir, I beg to move:- THAT, Clause 6 of the Bill be amended by inserting the following new sub-clauses immediately after sub-clause (2)- (3) The administrator to whom a request is made under subsection (1), shall, within thirty days after receiving the request, furnish the applicant, in writing, the reasons for the administrative action. (4) Subject to subsection (5), if an administrator fails to furnish the applicant with the reasons for the administrative decision or action, the administrative action or decision shall, in any proceedings for review of such action or decision and in the absence of proof to the contrary, be presumed to have been taken without good reason. (5) An administrator may depart from the requirement to furnish adequate reasons if it is reasonable and justifiable in the circumstances, and shall inform the person making the request of such departure. This Clause relates to requests for reasons for administrative action. We said we need to provide clear timelines to ensure that if somebody has requested for reasons administrative action has been taken, then that should be provided. We have given timelines that ensure that administration of justice is expedited. That is the reason we are amending Clause 6.
.: Mr. Temporary Chairperson, Sir, I beg to move that Clause 7 be amended as follows:- THAT, the Bill be amended by deleting Part III and substituting therefor the following new Parts-
.: Mr. Temporary Chairman, Sir, we have the following amendments to Clause 7A:- Period for 7A. An application for the review of an administrative action Determination or an appeal under this Act shall be determined within Of ninety days of filing the application. applications and appeals We have proposed the amendment above to ensure that there is a period for limitation for the administrative action appeals. In this case, 90 days and the mischief here is to ensure that the administrator of persons in authority do not sit on a review for eternity. For example, if you transfer a teacher to Mandera without any reason, those reasons and the decision must be determined within 90 days.
.: Mr. Temporary Chairperson, Sir, following Clause 7, you will notice that now we have separated and put a neater Title which is “Judicial Review” which is now a province of the courts. We have also included the courts that a person will be entitled to pursue judicial review and we have stated that in the amendments as follows:-
(Sen. (Dr.) Machage): I see no interventions. Let us move on to the next Clause.
Mr. Temporary Chairman, Sir, I beg to move:- THAT, Clause 9 be deleted and substituted therefore with the following new Clause- Rules. 9. (1) An application for judicial review shall be heard and determined without undue regard to procedural technicalities. (2) The Chief Justice may make rules of practice for regulating the procedure and practice in matters relating to judicial review of administrative action.
(Sen. (Dr.) Machage): Next Clause
Mr. Temporary Chairman, Sir, I beg to move:- THAT, Clause10 be deleted and substituted therefore by the following new Clause- Orders in 10. (1) In proceedings for judicial review under section 8 proceedings (1), the court may grant any order that is just and For equitable an order- judicial review. (a) declaring the rights of the parties in respect of any matter to which the administrative action relates; (b) restraining the administrator from acting or continuing to act in breach of duty imposed upon the administrator under any written law or from acting or continuing to act in any manner that is prejudicial to the legal rights of an applicant; (c) directing the administrator to give reasons for the administrative action or decision taken by the administrator; (d) prohibiting the administrator from acting in a particular manner; (e) setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions; (f) compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right; (g) prohibiting the administrator from acting in a particular manner; (h) setting aside the administrative action and remitting the matter for reconsideration by the administrator, with or without directions; (i) granting a temporary interdict or other temporary relief; or (j) for the award of costs or other pecuniary compensation in appropriate cases. (2) In proceedings for judicial review relating to failure to take an administrative action, the court may grant any order that is just
(Sen. (Dr.) Machage): I see no interventions. Move on to the next Clause.
(Sen. (Dr.) Machage): I see no interventions. Next Clause.
Point of order, Mr. Temporary Chairman, Sir.
(Sen. (Dr.) Machage):What is it?
On a point of order, Mr. Temporary Chairman, Sir. I have heard a language which is unfamiliar with Parliamentary languages. Could you clarify to the House what that means?
(Sen. (Dr.) Machage): I did not hear it.
So, if I did not hear it, there was no other language, but English.
Mr. Temporary Chairman, Sir, I beg to move:- THAT, the Bill be amended by inserting the following new clause immediately after Clause 11- Regulations 11A. (1) The Cabinet Secretary may, in consultation with the Commission on Administrative Justice, make regulations for the better carrying out of the provisions of this Act. (2) Regulations made under subsection (5) shall, before publication in the Gazette, be approved by Parliament.
(Sen. (Dr.) Machage): We have to go into Division on this. However, let us wait until the end.
Mr. Temporary Chairman, Sir, I beg to move:- THAT, the Bill be amended by inserting the following new clause immediately after Clause 12- Transition provisions 12A.(1) In all proceedings pending whether preparatory or incidental to, or consequential upon any proceedings in court at the time of the coming into force of this Act, the provisions of this Act shall apply, but without prejudice to the validity of anything previously done. (2) Despite subsection (1)- (a) if, and in so far as it is impracticable in any proceedings to apply the provisions of this Act, the practice and procedure obtaining before the enactment of this Act shall be followed; and (a) in any case of difficulty or doubt the Chief Justice may issue practice notes or directions as to the procedure to be adopted.
(Sen. (Dr.) Machage): We will do Division at the end. Next Clause.
Mr. Temporary Chairman, Sir, I beg to move:- THAT, Clause 2 of the Bill be amended by- (a) inserting the following new definition after the definition of the word administrative action- “administrator” means a person who takes an administrative action or who makes an administrative decision;
(Sen. (Dr.) Machage): I see no intervention. Let us move on to the next Title.
(Sen. (Dr.) Machage): I see no intervention. We move on to Clause 1.
(Sen. (Dr.) Machage): I see no intervention. We will, therefore, go into Division. Could the Division Bell be rung for two minutes?
Order, Senators! Close the doors and draw the bar.
Hon. Senators, we will have four Divisions. The first Division will be on the clauses with amendments. The second one will be on the clauses without amendments. The third one will be on New Clause 11A and New Clause 12A, Second Reading. The fourth Division will be on New Clauses 11A, 12A, Title and Clause 1. We will start with New Clause 11A and New Clause 12A.
On a point of order, Mr. Temporary Chairman, Sir. There are hon. Senators who are outside. Since we are allowed to open the Bar, perhaps we can open it for two seconds for them to come in. These are hon. Senators and they cannot walk out there aimlessly like goats.
(Sen. (Dr.) Machage): Let the Division Bell be rung for 10 seconds.
(Sen. (Dr.) Machage): Hon. Senators, the results of the Division are as follows:
(Sen. (Dr.) Machage): Hon. Senators, the results of the Division are as follows:
(Sen. (Dr.) Machage): Hon. Senators, the results of the Division are as follows:
(Sen. (Dr.) Machage): The results of the Division are as follows:
(Sen. (Dr.) Machage: Proceed, Sen. Mutula Kilonzo Jnr.
Mr. Temporary Chairman, Sir, pursuant to Standing Order No.139, I beg to move that the Committee of the Whole do report to the House its consideration of the Fair Administrative Action Bill (National Assembly Bill No.10 of 2015) and its approval thereof with amendments.
I now call upon the Chairperson to report.
Order, Senators! Get seated, please. Consult in low tones. Continue to report, Chairperson.
Mr. Temporary Speaker, Sir, I beg to report that a Committee of the Whole has considered The Fair Administrative Action Bill (National Assembly Bill No.10 of 2015) and its approval thereof with amendments
Mr. Temporary Speaker, Sir, I beg to move that the House do agree with the Committee in the said Report.
Mr. Temporary Speaker, Sir, I beg to move that the Fair Administrative Action Bill (National Assembly Bill No. 10 of 2015) be now read a Third Time.
We are going to have a Division. So, ring the Division Bell for one minute.
Since we have the numbers, I order that the Division Bell be stopped now.
Order, Sen. Mutula Kilonzo Jnr. and Sen. Kagwe. Could you, please, consult in low tones? Close the door, draw the bar and call the Roll Call.
Sen. (Prof.) Kindiki.
Hon. Senators, the results of the Division are as follows:-
Mr. Temporary Chairman, Sir, I beg to move:- That, Clause 33 be amended in sub-clause (2) by inserting the following new paragraph immediately after paragraph (f)- f (a) promote preference and reservation schemes for residents of the county to ensure a minimum of twenty percent in public procurement at the county. Mr. Temporary Chairman, Sir, this is simply an amendment to ensure that persons within the counties also get a chance to participate in supply through the procurement process.
Mr. Temporary Chairperson, Sir, we proposes:- That, Clause 51 be amended in sub-clause (3) by deleting the words “and licensed” appearing immediately after the words “agents registered”.
(Sen. (Dr.) Machage): Could use the words “I propose” instead of the words “we propose.”
Mr. Temporary Chairperson, Sir, it is only that these are Committee proposals.
(Sen. (Dr.) Machage): You are presenting to us as the chairperson. So, it is procedural that you say “I propose.”
Mr. Temporary Speaker, Sir, I propose.
Mr. Temporary Chairman, Sir, I beg to move:- That, Clause 124 be amended by inserting the following new sub-clause immediately after sub-clause (3)- (3A) In evaluation of tenders by public entities, the financial and technical capability of the tenderers shall be given equal weight. Mr. Temporary Chairman, Sir, the purpose of this amendment is to ensure that not only do procurement entities consider financial considerations, but also give technical capability equal weight. This is because there are people who can present very attractive financial documents, but cannot technically be able to deliver.
Mr. Temporary Chairman, Sir, I beg to move:- THAT, Clause 165 be amended in sub-clause (1) by deleting paragraph (d).
Mr. Temporary Chairman, Sir, I beg to move:- THAT, Clause 176 of the Bill be amended by- (a) inserting the following new sub clauses immediately after sub clause (4)- (5) A procuring entity may lodge a complaint with the relevant professional body for the institution of disciplinary proceedings against a contractor who is a member of a professional body and who contravenes the provisions of this Act. (6) The penalties imposed by a professional body pursuant to a complaint lodged under subsection (5) shall apply in addition to any penalties that may be imposed under this Act. I withdraw part (7) because it appears to have been covered under Clause 41. Therefore, it is not necessary.
Mr. Temporary Chairman, Sir, under Article 227 (c), the Constitution provides that sanctions against contractors that have not performed according to professionally regulated procedures and contractual agreements and legislations be punished. In the sanctions provided under Clause 176, there was no method whatsoever to discipline any contractor who has not complied with professional standards as proposed under the Constitution. Therefore, I have proposed that any procurement entity will be at liberty to report engineers, doctors and even road contractors to their respective professional bodies for disciplinary action. Secondly, the penalties provided by their professional bodies be in addition to any penalty imposed under the proposed law.
(Sen. (Dr.) Machage): I order that the Division Bell be rung for one minute. We have three divisions to carry out.
Sen. (Prof.) Kindiki
(Sen. (Dr.) Machage): Order, hon. Senators. I wish to announce the results as follows:-
Sen. (Prof.) Kindiki
(Sen. (Dr.) Machage): Order, hon. Senators. I wish to announce the results as follows:-
Sen. (Prof.) Kindiki
(Sen. (Dr.) Machage): Hon. Senators, I wish to announce the results as follows:-
Mr. Temporary Chairman, Sir, I beg to move the Committee do report to the Senate its consideration of The Public Procurement and Asset Disposal Bill (National Assembly Bill No.40 of 2014) and its approval thereof with amendments.
(Sen. (Prof.) Kindiki) seconded
[ The House resumed ] [ The Temporary Speaker (Sen. Mositet) in the Chair ]
Mr. Temporary Speaker, Sir, I beg to report that the Committee of the Whole has considered the Public Procurement and Asset Disposal Bill (National Assembly Bill No.40 of 2014) and approved the same with amendments.
Mr. Temporary Speaker, Sir, I beg to move that the House do agree with the Committee in the said Report.
Mr. Temporary Speaker, Sir, I beg to move that the Public Procurement and Asset Disposal Bill (National Assembly Bill No.40 of 2014) be now read a Third Time.
We are going to vote by Division because all of us are here and we had not drawn the Bar. Let us use the roll call voting.
Sen. (Prof.) Kindiki
Hon. Senators, the results are as follows:
Hon. Senators, there being no other business, the Senate stands adjourned until tomorrow Thursday, 21st May, 2015 at 2.30 p.m. The Senate rose at 7.15 p.m.