On a point of Order, Mr. Deputy Speaker, Sir!

Sen. (Dr.) Khalwale, what is your point of order?

Mr. Deputy Speaker, Sir, according to the Standing Orders, this session starts at 2.30 p.m. There must be a compelling reason why we have not started at 2.30 p.m. I would like to seek clarification from the Chair, lest we look like we are starting to hold sessions of this House arbitrarily.

What time is it?

Mr. Deputy Speaker, Sir, you entered at 2.36.5 p.m.

So, what clarification are you seeking, Sen. (Dr.) Khalwale?

Mr. Deputy Speaker, Sir, probably the consultations were loud and, therefore, you did not hear what I said. I said, lest it appears like we are holding sittings of this House arbitrarily, it is good that the Chair clarifies why we have started at a time other than that stipulated in the Standing Orders. This is the third time that I am raising this issue in this House.

Thank you, Sen. (Dr.) Khalwale. I do not know, but to be candid with you, I suspect that there appears to be a technical problem. The bell rang longer than it should have and so we could not start the procession before the bell stopped ringing. That is the only reason that I came in when I came in. I hope that satisfies you. This is an important question that you have raised because we cannot have arbitrary time for starting sessions.

Mr. Deputy Speaker, Sir, most obliged. 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, you may recall that on Thursday, last week, the Senate Majority Leader, while issuing his Statement on the Business of the Senate for this week, informed the House that the Hon. Chief Justice of Kenya who is also the President of the Supreme Court, Hon. (Dr.) Willy Mutunga, would address the Senate this week. Taking into consideration that the business scheduled at Order Nos.9 to 12 requires to be expedited as a matter of urgency, I will re-organise the Order Paper so that we deal with Order No.1 to 7, skip Order No.8 and move to Order No.9 and 12. I wish to bring to your attention that at the conclusion of Order No.12, I shall adjourn the Senate. The House will reconvene after 10 minutes to enable the Hon. Chief Justice and the President of the Supreme Court to come in and address the Senate. I will seek your indulgence in that regard. I thank you.

Mr. Deputy Speaker, Sir, I beg to lay the following Paper on the Table:- Report on the Fisheries Management and Development Bill 2015.

Hon. Senators, I propose that we take one or two statements. I do not want us to take too long on the statements because we have to deal with the Divisions which we cannot do until we have the numbers. I will call the Orders as soon as we have the numbers. In the mean time, seeing that there is no notice of Motion to be given, we can have one or two statements. What is your point of order, Sen. (Dr.) Khalwale? HARASSMENT OF BODA BODA RIDERS IN KAKAMEGA COUNTY

Mr. Deputy Speaker, Sir, I rise under Standing Order No.45(2)(b) to request for a Statement from the Chair of the Committee on Security and Foreign Affairs regarding--- 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

Has your request been approved by the Speaker?

Yes, Mr. Deputy Speaker, Sir.

Okay.

Mr. Deputy Speaker, Sir, my request is in regard to the harassment of the boda boda riders in Kakamega. The Chairman should clarify the following: (i) What are the reasons as to why these boys in Kakamega are being subjected by police to: (a) Confistication of their motorbikes (b) Arrest (c) Demands for bribes (ii) Is the Inspector General of police aware that the matter is so grave that some of the boys have lost their lives through extra-judicial killings by the police? (iii) What were the reasons as to why one boda boda rider by the name Jackton Apwoka, a father of four children aged one year to four years, was shot dead in cold blood on the morning of 14th June, 2016 at Sichuayi area in Kakamega, leaving behind a widow? (iv)What action has been taken against a police constable by the name Serem of Kakamega Police Station who shot Jackton Apwoka, the boda boda youth? (v) Why have no arrests been made and charges preferred against the above police, Constable Serem, who is blood thirsty and who has been severally involved in cases of extra-judicial killings in Kakamega in the past. Mr. Deputy Speaker, Sir, I had two points of order. I do not know if you will allow me to raise the second one.

Are you seeking for another Statement?

No, Mr. Deputy Speaker, Sir. This one is under Standing Order No.45(2)(a) and you need proper direction on it.

Sen. Adan, when are you going to issue that Statement because that is your Committee, is it?

Yes, Mr. Deputy Speaker, Sir. I request to be allowed to give an answer to that Statement once we resume from recess.

Assuming that we go on recess tomorrow?

Yes, Mr. Deputy Speaker, Sir.

Is that okay, Sen. (Dr.) Khalwale?

That is okay with me, Mr. Deputy Speaker, Sir.

Is there somebody else seeking a statement which has been approved?

On a point of order, Mr. Deputy Speaker, Sir. Sen. (Dr.) Khalwale has used very serious words “blood thirsty.” I do not know whether it is parliamentary language. Why should he say that the person is blood thirsty yet the person is still alive? What do you mean? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate

Sen. (Dr.) Khalwale, what is your second point of order?

Mr. Deputy Speaker, Sir, my second point of order is that I wish to rise under Standing Order No.45(2)(a). I was asking you to permit me because I was not seeking for a statement. Instead, I want to make a statement.

Has it been approved by the Speaker?

Yes, Mr. Deputy Speaker, Sir.

Could I have a look at it?

Mr. Deputy Speaker, Sir, it was approved out of consultation and he told me---

Order! Before you go on with your statement, could I look at it?

Yes, Mr. Deputy Speaker, Sir.

Is there somebody else seeking a statement? What is your point of order, Sen. Musila?

On a point of order, Mr. Deputy Speaker, Sir. I would like to draw the attention of the House to a situation---

Sen. Musila, you are rising under what Standing Order?

Mr. Deputy Speaker, Sir, I communicated with the Speaker in the morning and informed him that I wanted to raise a matter of importance. As I speak, at Pangani Police Station---

Has he approved it?

Mr. Deputy Speaker, Sir, I am rising under Standing Order No.45(2)(a). I communicated and I have a communication with me here---

Sen. Musila, all I am saying is whether you communicated with the Speaker and not with me.

Mr. Deputy Speaker, Sir, you are the Speaker---

Order, Senator! Who did you communicate with?

Mr. Deputy Speaker, Sir, I communicated with the Speaker, Hon. Ethuro and you are his Deputy.

That is fine. That is why we have things in writing. Standing Order No.42(a) and (b) require that there is an approval of the The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate

Mr. Deputy Speaker, Sir, the assumption---

Let me make myself clear, Sen. Musila. You have served in the same capacity that I am serving in now. I have no issue at all with the statement that you want to seek or issue, but if you look at Standing Order No.45(2)(a) and (b), it requires the approval of the Speaker. Does it not?

Mr. Deputy Speaker, Sir, it does. In any case, if you seek permission in writing and you do not get a response, the assumption is that it has been allowed. If you look at that Standing Order 45(2)(a), there is no requirement. However, I informed the Speaker. I would appreciate if you allowed me to make my statement. It is on an important matter.

Sen. Musila, just take your seat. Give me a few minutes, I will look at it then I will come back to you. Sen. Musila, I do not know what you want to say. Let us start from that premise.

It is an issue of general topical concern.

That is fine by me. Standing Order No.45(3) says:- “A Senator who wishes to seek leave to raise a matter under paragraph 2(a) or (b) shall, before 1.00 p.m. on the day on which the Statement is proposed to be made, hand to the Speaker a written notification of the matter, but the Speaker may refuse to allow the request unless satisfied that the matter may properly be discussed in the Senate.” So, all you need is to show me that there is such a written notification then I will allow you to seek the statement.

With pleasure.

Sen. Musila, we will not proceed that way. Let us have some respect for the House. It may be electronic, but if you show me the Speaker’s signature, I will allow you to proceed.

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

Not on that issue, Sen. (Dr.) Khalwale. I know that we have interpreted Standing Order No.45(2)(a) and (b) and if there was no notification to the Speaker by 1.00 p.m. I will not allow it. What is your point of order, Sen. (Dr.) Khalwale?

Mr. Speaker, Sir, since I approached the Chair, it is important that now that this matter has taken this course, I be on record. I cannot lie about a discussion between me and the Speaker. It happens to pass that the matter being canvassed by the Senator of Kitui is the same for which I met the Speaker of the Senate. I had originally wanted to seek for a Motion of Adjournment so that we discuss the violent arrest of Members of Parliament, including Sen. Muthama. He told me that I do not have to go the route of Motion of Adjournment in view of the risk of the sub judice rule. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate

Order, Sen. (Dr.) Khalwale! I hear you, Sen. Musila. The only thing is that if you are saying that you communicated with me and I am not suggesting that you are telling anything other than the truth, I would have been the first person to confirm that you communicated with me. If you communicated to the Speaker, Hon. Ekwee Ethuro and he has not marked it down to me, then I have no way of knowing that there was a communication before 1.00 p.m. and, therefore, it should be allowed. This is not the first time that the issue of Standing Order No.45(2)(a)(b) has been canvassed in this House. You know as well as I do that the Speaker would not ordinarily refuse a Senator from raising any issue under Standing Order No.45(2)(a)(b). For good order, it has to be done in writing and the Speaker communicates it and endorses it. Therefore, whether it is the Speaker, the Deputy Speaker or a Member of the Speaker’s Panel, it would be common knowledge that such consent was given. So, why do you want to altercate with me and yet you did not communicate with me?

On a point of order, Mr. Deputy Speaker, Sir. I do understand your predicament because you have no communication from the Speaker, Hon. Ethuro, on this matter. However, would I be in order to request you to expand a little bit more on the word “writing” because in this era, we have electronic and hand writing which has not been explained by Standing Order No.45(3)? Why is it assumed that this writing must only be handwritten?

Sen. (Dr.) Machage, you belong to the Speaker’s Panel and you could be sitting where I am now and maybe you would have allowed it or not. I have chosen my own interpretation of “in writing before 1.00 p.m.” to mean that there must be a kind of communication so that if it is you, Sen. (Dr.) Machage, sitting here, you would not have lost ten minutes discussing an issue that you appreciate very much. Having said that, the Speaker will be on the Chair later and the matter could still be raised.

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

If it is on the same thing, with the greatest respect, I must disallow it now.

Mr. Deputy Speaker, Sir, you are right in many ways, but there has been a precedence whereby we have sent a communication through Short Message Service (SMS) and the Speaker agreed.

Two wrongs do not make a right.

Mr. Deputy Speaker, Sir, as I stand here, we have colleagues, Members of Parliament, who have been denied food at Pangani Police Station and anything can happen.

Order, Sen. Musila! You are a senior Member of this House and we are not going to dwell on the same issue unnecessarily. You are pushing me to act against your own Standing Orders. I am not going to do so. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate

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

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

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

(Sen. (Dr.) Machage): Hon. Senators, we only have one Division. So, it is not a lengthy process. I beg for your indulgence that you do not walk out; we finish this before we allow our visitor to address the Senate. I want to put the question. We had canvassed and looked at Clause 3 to 28, the Title, Clause 2 and 1. All that is remaining is the Division. Ring the Division Bell for one minute. I ordered the Bars to be drawn and doors closed. Hon. Senators, take your seats and log in. that is the procedure of the House. You have 30 seconds to vote.

Hon. Senators, the results of the Division are as follows:-

Mr. Deputy Speaker, Sir, I beg to report that the Committee of the Whole has considered the Political Parties (Amendment) Bill (National Assembly Bill No.2 of 2016) and its approval thereof without amendments.

(Sen. (Prof.) Kindiki): Mr. Deputy Speaker, Sir, I beg to move that the House do agree with the Committee in the said report. I request Sen. Khaniri to second.

seconded.

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. Deputy Speaker, Sir, I beg to move that the Political Parties (Amendment) Bill (National Assembly Bill No.2 of 2016) be now read a Third Time. I request the Senator for Vihiga, Sen. Khaniri to second.

seconded.

Hon. Senators, since nobody is interested in debating that proposal, I will put the question. Let the Division Bell be rung for one minute. Draw the Bars and close the door.

You have 30 seconds to vote. Sen. Wamatangi, take you seat.

Hon. Senators, the results of the Division are as follows:- The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate

Hon. Senators, as I had indicated in the Communication earlier, the Chief Justice, Hon. (Dr.) Willy Mutunga, will be addressing the Senate shortly. We shall adjourn for ten minutes to enable him to come into the House. Since this is the first time that the hon. Chief Justice will be addressing any House of Parliament, I request that all of us are here to listen to his Address.

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

Order! Sen. (Dr.) Khalwale, you do not raise a point of order when the Chair is on his feet. That is a norm that we have had all through. We will, therefore, adjourn until 3.50 p.m.

Hon. Senators, you may recall that on Thursday last week, the Senate Majority Leader, while issuing his Statement on the Business of the Senate for this week, informed the House that the Hon. Chief Justice of the Republic of Kenya who is also the President of the Supreme Court, the Rt. Hon. (Dr.) Willy Mutunga, would address the Senate this week. Hon. Senators, Standing Order No.25(1) of the Senate Standing Orders makes provision for a visiting dignitary to address the Senate. The specific section states as follows:- “The Speaker may, after consultation with the Senate Majority Leader and the Senate Minority Leader, allow a visiting Head of State or other visiting dignitary to address the Senate.” It is on this basis that I consulted with the Senate leadership and the Rules and Business Committee (RBC) following which it was agreed that the Hon. Chief Justice address the Senate on Tuesday, 14th June, 2016, at 2.30 p.m. Unfortunately, owing to his demanding schedule of work, the Hon. Chief Justice was not able to address the Senate as agreed, instead, opting to address the Senate today. Hon. Senators, the Hon. (Dr.) Mutunga holds a Bachelor of Laws (LL.B) and a Master of Laws (LL.M) degrees, both awarded by the University of Dar es Salaam, Tanzania in 1971 and 1974, respectively and a Doctor of Jurisprudence Degree (JSD) awarded by Osgoode Hall Law School, Toronto, in 1992. Dr. Mutunga has published many books, essays and papers on human rights, law and society. He has also presented conference papers at many national and international conferences. In his long and distinguished career, the Hon. Chief Justice of the Republic has served in various capacities as Chair, Executive Director or Member of several professional and law oriented organisations, including University Staff Union, Kenya; the Legal Advice Centre (Kituo cha Sheria); the Law Society of Kenya (LSK); the Council of Legal Education; Citizens Coalition for Constitutional Change (4Cs); the Kenya Human Rights Commission (KHRC); the East African Centre for Constitutional Development (Kituo cha Katiba), Uganda; and, the International Centre for Human Rights and Democratic Development (ICHRDD), Montreal, Canada. He has also undertaken professional consultancies in Kenya and abroad, in addition to being a lecturer at the Faculty of Law, University of Nairobi, among other positions. Prior to his appointment as the Chief Justice, Dr. Mutunga was the Regional Representative of the Ford Foundation. For his outstanding contribution to the development of law, human rights, good governance and social justice, Dr. Mutunga has received several national and international honours and awards, including the national honour of Elder of the Golden Heart (EGH); the Status and Style of Senior Counsel; the Lifetime Award for the Protection and Promotion of Human Rights; the Jurist of the Year Award (2003); and, the The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate

((Dr.) Willy Mutunga): Mr. Speaker, Sir, I am delighted by your kind invitation to make this address to the Senate. I believe that this is the first time a Chief Justice is Addressing Parliament and the Senate in particular. It marks an important and significant development in our constitutional democracy where institutions create and build a custom and tradition of comity. Not too long ago, the Speaker of the Senate graced the occasion of the admission of the advocates to the Roll at the Supreme Court Grounds; and, he and I attended the Council of Governors Devolution Conference in Meru. This is the spirit of cooperation and consultation that the Constitution invites, and which we, as leaders, must embrace. Today I want to talk about the Senate and the Judiciary, especially in terms of what we have achieved in our transformation journey. The gains and challenges of transformation are contained in the Annual State of the Judiciary Reports that I have faithfully submitted to both Chambers of Parliament for debate in the last four years. But I would like us to have this discussion within a broader constitutional and political 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 brings us to the end of this particular segment. I, therefore, suspend the Sitting for 30 minutes to allow the Chief Justice and the President of the Supreme Court of Kenya to take leave and for the rest of us to join him and his delegation outside the Chamber.

(Sen. (Prof.) Kindiki): Mr. Temporary Speaker, Sir, I beg to lay the following Paper on the Table of the Senate today, Wednesday, 15th June, 2016:- The Address by the Chief Justice of the Republic of Kenya and President of the Supreme Court, Dr. Willy Mutunga to the Senate, pursuant to Standing Order No.25.

(Sen. (Prof.) Kindiki): Mr. Temporary Speaker, Sir, I beg to give notice of the following Motion:- THAT, the thanks of the Senate be recorded for the address of the Chief Justice of the Republic of Kenya, the Hon. (Dr.) Willy Mutunga, delivered on Wednesday 15th June, 2016 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 rise pursuant to Standing Order No.45 (2)(b) to seek a Statement from the Chairperson of the Standing Committee on Roads and Transport regarding the harassment of boda boda operators in Nairobi County. In the statement the Chairperson should state the following:- (a) Whether the Nairobi County Government has created a designated area for

operations. (b) Why boda boda motor bikes are detained in Nairobi County stores for 14 days with no charges preferred against the operators with a daily fee of Kshs1,000 per motor bike. (c) Why more than 500 boda boda motor bikes have been detained in Nairobi County stores while demanding that each owner pays Kshs200,000 to retrieve their bikes (d) What the Nairobi County Government is doing to create a conducive environment for boda boda operations to flourish so as to create employment.

(Sen. (Dr.) Machage): Where is the Chairperson or Member of the Committee?

Mr. Temporary Speaker, Sir, on behalf of the Chairperson of the Committee on Roads and Transport, I have heard this request on those serious matters relating to boda boda riders in Nairobi. I hope we will raise a response in two weeks’ time.

(Sen. (Dr.) Machage): It is so ordered.

Mr. Temporary Speaker, Sir, I rise under Standing Order No.45(2)(a) to make a statement on the violent arrest of Sen. Muthama, the Senator for Machakos and seven other Members of Parliament (MPs) that took place yesterday. As the country knows very well, there is a new Constitution. Following that new Constitution, Kenyans were expecting a reformed police service. However, events that have been going on in terms of the procedure that the police use to arrest suspects which climaxed over the recent few weeks have left Kenyans in doubt as to whether there has been any reforms in the police force or whether, indeed, the chief of the police force has any respect for the new Constitution. I say this because during the arrest of Sen. Muthama and Hon. Junet, what Kenyans witnessed was almost an episode from a James Bond Movie . We are told that members of the flying squad held the Nation Media House under siege just as others surrounded the homes of Sen. Muthama, hon. Bosire and others; waiting as if they are about to arrest a dangerous, armed, wanted criminal. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate

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

Mr. Temporary Speaker, Sir, he can inform me.

(Sen. (Dr.) Machage): Who do you want to inform? You do not assume the information is only meant for hon. Khalwale.

Mr. Temporary Speaker, Sir, I would like to inform Sen (Dr.) Khalwale that the High Court has rejected that application. They have been denied bail.

(Sen. (Dr.) Machage): Very well, you are so informed.

Mr. Temporary Speaker, Sir, Sen. Murkomen is a privileged Member of this House because he is the Senate Deputy Majority Leader. Could he inform me the reasons why the bail was denied?

(Sen. (Dr.) Machage): Order! Have a seat. There is nowhere in our Standing Orders where a Member can demand for information from a Senator. You are completely out of order.

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

(Sen. (Dr.) Machage): Yes, what is it?

Mr. Temporary Speaker, Sir, I would like to inform---

(Sen. (Dr.) Machage): Order! Can you make the relevant call.

Mr. Temporary Speaker, Sir, is…

(Sen. (Dr.) Machage): Order! Can you sit down and call out a point of information.

On a point of order, Mr. Temporary Speaker, Sir. Is Sen. (Dr.) Khalwale in order to assume that I work for the Judiciary when, in reality, the courts have just issued a decision publicly saying that they will give their reasons tomorrow? 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 are completely out of order. In my recollection, I did not hear Sen. (Dr.) Khalwale mention that you work for the Judiciary. All he said was that you are a privileged individual in this House.

Continue, Sen. (Dr.) Khalwale.

Mr. Temporary Speaker, Sir, if it is true that they have been denied bail, then we are waiting anxiously to know why because the charges facing them are about hate speech. Is hate speech not a baillable offence in this country? My colleagues, especially on the Government side, had better reflect on this, in view of the last remarks by retiring Judge, Chief Justice Willy Mutunga, that we are supposed to rise to the level of statesmanship.

(Sen. (Dr.) Machage): Remember our Standing Orders give you only ten minutes---

Mr. Temporary Speaker, Sir, I am waiting for the signal light.

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

Mr. Temporary Speaker, Sir, I want to seek guidance from you regarding the borderline where a contribution is not sub judice and where it begins. When we question the judges as to whether or not they should be given bail, is that discussion not sub judice? I want to get a clear understanding of it so that in case tomorrow I give a contribution in the same manner, I will know what to do.

(Sen. (Dr.) Machage): I will refer you to Standing Order No.92 (2) which says:- “A matter shall be considered sub judice when it refers to active criminal or civil proceedings and the discussion of such matter is likely to prejudice its fair determination” The decision whether such a matter is sub judice lies on me as a Speaker. That is Standing Order No.92 (5). It says:- “Notwithstanding this Standing Order, the Speaker may allow reference to any matter before the Senate or a Committee.” This is my decision. Sen (Dr.) Khalwale, continue.

Mr. Temporary Speaker, Sir, I was coming to the tail end of my contribution, by appealing to colleagues to reflect on the statement by the retiring Chief Justice that we should rise to the level statesmanship. I say this with maximum respect, because it is on record in the history of this nation that when hon. Kenneth Njindo Matiba, then Member of Parliament for Kiharu Constituency was arrested facing charges of consciousness touching on his beliefs, he was denied access to medical treatment. He got a stroke, while in there, and that was the end of the best president that Kenya would have had. I know that Sen. Musila will speak about this more authoritatively, but we have information that hon. Junet Mohammed’s wife has been denied an opportunity to give him medication for control of blood pressure. I am a medical doctor. I want to caution the The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate

(Sen. (Dr.) Machage): I do not intend to allow too much discussion on this because we do not have a lot of time. We have also to consider the speech of the Chief Justice. I know Standing Order No.45 (2) allows for some debate, unless you show me a contrary Standing Order. Let us also be conscious of time because we also have to execute and finish the discussion of our guest’s speech. However, I will not want to gag anybody over the issue. I am only calling for your own discretion of the importance of time. I will also like to refer you to your own Constitution, Article 51; I thought Sen. (Dr.) Khalwale would have quoted this: the rights of persons detained, held in custody or in prison. That should be our guiding point on this issue. Therefore, if you become precise and short, I may allow more Senators.

Mr. Temporary Speaker, Sir, I am going to speak about the experience I had this morning. This morning, Sen. Madzayo, several Members of Parliament (MPs) and I visited Pangani Police Station with a view to seeing our colleagues.

(Sen. (Dr.) Machage): Please let this not be more than three minutes.

Mr. Temporary Speaker, Sir, I beg you because I have some very important points to explain. We went to Pangani Police Station not to see Sen. Muthama, Hon. Junet or Hon. Bosire but to see all MPs who are there, including Members of the other side. We went to the Officer Commanding Police Station (OCS), Chief Inspector Benjamin Kisela. We begged him to allow us access to see our colleagues but he refused and insisted he cannot allow us. What surprised and shocked us was that he threatened us. He said that; “If you do not get out of my office, I will open my armory.” That was a direct threat. After we went outside, we met the spouses of the arrested MPs and they showed us the medications. They told us that they had tried to give the medication to their husbands but they were refused. They were refused to give them food, water and medicines. As you rightly said, their human rights were violated under Article 51 of the Constitution. Eventually, the police have ended up throwing teargas to those people who were there and who wanted to see their people. If we had gone to Kamiti Maximum Prison, we would have been allowed to see our colleagues. Kenya has slowly become a police state where the rights of individuals are being violated. We want to appeal to the Government and in particular, Hon. Nkaissery, that police stations are not military installations. It is wrong if he has come 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 rise to comment about this very important issue. Hate speech and hate mongering is a threat to the fabric of this country. The bad manners of our politics will tear this country apart. It is nothing compared to sleeping in a cell and being arrested when Kenyans kill themselves and butcher each other because we politicians incite them. To the contrary, we continue to benefit from the same political environment that we find ourselves in when we are arrested, charged and taken to court. This behaviour must come to an end. The Chief Justice has just spoken about statesmen. This country yearns for leadership that is focused on competition on issues but not talking about human genitalia, tribes and religion all the time. As a leader of this House, we must rise to the occasion to condemn what we have witnessed in our country in the past few weeks that can tear this country apart. In the end, there will be no Senate to take care of this country. Our seats will be useless if the people of Kenya will continue killing themselves for us to remain or fight for power. Mr. Temporary Speaker, Sir, be that as it may, the police and the Judiciary have a responsibility to abide by the law. Article 51 of the Constitution must be respected by the police and everybody who is going to preside over it. Although I heard the statements they made, as a lawyer, what I can say is that, maybe, they are morally wrong but they have the presumption of innocence until proven guilty. Therefore, if what has been said about being denied access to medicine and food and not being allowed to be visited by their lawyers is true, the situation must be corrected immediately. The Inspector-General of Police must take corrective action. Secondly, if the Judiciary has made a decision about bail, it is not for this House to make a determination. There have been cases that this House has been a participant and we have lost in courts because we believe in the Independence of the Judiciary. The magistracy and the High Court which makes a decision must be respected. However, human rights of any Kenyan – because it could be them today and us tomorrow – must be respected. In conclusion, we must, as politicians, learn from what we have seen and learn from the behaviour of those who have gone before us and behave ourselves for the sake of our children and the children of our children.

Bw. Spika wa Muda, mimi pia niliweza kufika katika kituo cha polisi cha Pangani leo asubuhi. Nilienda pale kama wakili wa wale walioshikwa. Nilikuwa nimeambatana na Sen. Musila. Tulitaka kuzungumza na mkuu wa kituo hicho anayeitwa Bw. Benjamin Kisela. Baada ya kumwambia kuwa mimi ni wakili na vile vile Seneta na kwamba nilikuwa Jaji wa Mahakama Kuu ya Kenya katika Mahamaka ya Kazi, sijui ni kitu gani kilimfanya kuwa katika hali ya kutishika na kusema kwamba angetoa zana za vita ili apige watu risasi. Hicho ni kitendo ambacho kinarejesha Serikali na nchi hii nyuma ya miaka ambayo tulishapita na ni lazima tukikemee kwa hali ya juu sana. Leo ni Sen. Muthama na Mheshimiwa Junet Mohammed. Huenda kitendo kama hicho kikatokea upande ule 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 also wish to comment on this matter and express my shock that an inspector or a person in charge of a police station can actually threaten Senators and MPs, particularly with the kind of violence that he was clearly intent on. When he talks about his armoury, he is talking about his guns. Therefore, we condemn that kind of activity without any reservation, whatsoever. I agree that this is not a police State but a democracy. However, we must also be alive to the fact that democracy, if not watched, as was written way back in 1500 by Nicholai Machiavelli, can also degenerate very easily into anarchy. Those of us in the political field need to be very conscious that what we say does not stop at where we are. What we say goes a long distance and can create the kind of anarchy that I am referring to. I would also like to urge the media in our country to also exercise caution and to realize that when eventually a chaotic situation or anarchy sets in, in this country, they too will not be able to exercise the freedom of the media that they exercise today. Mr. Temporary Speaker, Sir, had those who spoke in a manner that was prejudicial to our people; if the hate speech that they expressed had never been reported by the media, the circumstances would have been completely different. Let the media not say that, for example, because I have a panga, I am not responsible for who the panga cuts; or because I have a gun, if the gun goes off, I am not responsible for who the gun shoots. Let it be clear that the media also has a responsibility. They are perpetuating this problem by ensuring that, not only do they report, but also report in an exaggerated manner, anything that is divisive in our country. Anything that is positive in our country takes a back burner. Anything that is negative or of hate speech gets attention on the first pages of the newspapers or the first item on the news. What is it supposed to do? What is supposed to be the end result of these reports? As media, we should take responsibility in this matter.

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

Thank you Mr. Temporary Speaker, Sir. I also rise to condemn very strongly what has happened in the last two days here in Kenya. We have witnessed excessive force and police brutality being meted on Hon. Members of Parliament. Sen. Muthama has been subjected to excessive erosion of his fundamental rights. 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): I see a lot of interest. I will reduce the time to two minutes. Sen. Mutula Kilonzo Jnr., please summarise quickly.

.: Mr. Temporary Speaker, Sir, I will summarize. The Bible is clear that he who rules by the sword, will die by the same sword. The only right that is limited when you are in custody is the right to movement. Every other right is readily available to you. In fact, the people who have been exported to Guantanamo Bay are possibly treated better than the way we have treated our own legislators. We need to remind the Inspector-General (IG) of Police, who was vetted through this Constitution, and the Government that this Constitution demands that the Government has the obligation to observe, respect, protect, promote and fulfill the rights under CAP 4. Therefore, this obligation is on the State. They should ensure that these leaders and all the persons who are innocent are given their right to medicine, television if they want, food among others. This is because I know the ‘Muthaiga five’ that is our colleagues who are in Muthaiga were treated like kings and queens when they were there. Therefore, we should not discriminate. There is no animal farm in Kenya. If it exists, it does not exist in this Constitution. Thank you.

Mr. Temporary Speaker, Sir, as I stand, I yesterday witnessed when Hon. Junet was being arrested because he had been at the Nation Television Network(NTV) news room. I wondered whether it was appropriate for 60 to70 police officers to arrest one Hon. Member. That is a very big number. You sensationalize issues that would have been dealt with in a proper way. I want to plead with the police that the more they engage in drama, the more they create a lot of tension in this country. 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 criticize very strongly, the manner in which the police acted. I remember a couple of months ago when I was arrested for a similar thing.

(Sen. (Dr.) Machage): Order, Sen. Murkomen! You walked from the right side of the House, crossed to the other side of the House without bowing. I was watching you. Can you return back and bow before you leave the House?

What is it Sen. (Dr.) Khalwale? He has disappeared.

Mr. Temporary Speaker, Sir, Sen. Murkomen can go. However, there is the need for us to uphold the dignity of the Senate. Where in the Standing Orders is it provided that a Member can stand and engage the Speaker in altercations? Some of us feel that we are in a very special institution and we do not like this.

(Sen. (Dr.) Machage): He is completely out of order. Actually any Member of this House can name him. The mistake is so grave that any Member can stand but since I see none, we can continue.

Mr. Temporary Speaker, Sir, I agree with my colleagues that this level of use of hate speech is unacceptable. Similarly, I do not think that gives the police the permission to break the law. The manner in which the police dramatize the arrest of hon. Members of Parliament (MPs) leaves a lot to be desired. A couple of months ago, I was arrested at the Wilson Airport when I was coming from Mandera. Imagine six flying squad police cars were waiting for me to escort me to the Criminal Investigation Department (CID) headquarters to record a statement. These are the same police who cannot deal with criminals in this country but can dramatize things to that level. I do not think that is acceptable. I think holding MPs incommunicado and without allowing the lawyers’ contacts is unacceptable. I represent a gentleman called Hon. Junet. He comes from Mandera County. Let me say it very clearly here, if anything happens to Hon. Junet, the Government of the Republic of Kenya will be held liable. 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): Order!

Mr. Temporary Speaker, Sir, my time was taken by that interruption.

(Sen. (Dr.) Machage): Who said so? You have 30 seconds to make a full stop.

Mr. Temporary Speaker, Sir, last week, three FM stations voted 99 per cent for Hon. Moses Kuria. The public called into three radio stations. Where will Kenyans go if they want to support people who are simply calling for killings? That kind of mentality of Kenyans wanting to make a hero out of their ethnic chauvinists is not acceptable. This is what is driving politicians. This is wrong. We, as politicians, must rise above that. However, we must also equally condemn it.

Mr. Temporary Speaker, Sir, I also condemn the manner in which MPs were arrested and detained. The reason that the judge gave yesterday to deny the Hon. Members bail was that they would interfere with investigations. How could they do so when their speeches were captured on video? So, I think there was some sinister motive in detaining these MPs. The way they are being treated is inhumane because ---

(Sen. (Dr.) Machage): Order, Sen. Wako!

Mr. Temporary Speaker, Sir, the manner in which these MPs are being treated is inhuman. This is because when you are arrested, you are entitled to see your spouse, family members and have access to medicine. It is not fair to deny Hon. Junet medicine. I, therefore, condemn this action. I ask the Jubilee Government to consider this issue seriously because the way things are moving, we might degenerate into more troubles as we move closer to the elections.

Mr. Temporary Speaker, Sir, maybe you will give me three of four minutes because ---

(Sen. (Dr.) Machage): Only two minutes, Sen. (Prof.) Anyang'-Nyong'o. 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 am the one who has been detained in the highest number of police stations, not just in Nairobi, but other cities as well, as we were struggling for the second liberation. There is a man called Donald Trump in USA who has spewed a lot of racist sentiments in his own country. I have never seen Mr. Trump being accosted by any policeman because they respect the rule of law in that country. A man or woman is innocent until proven guilty. As the Chief Justice said, Articles 159 and 51 should be taken into account when dealing with such issues. In any case, the policy of the police is

. I would like to suggest that the Inspector of Police who behaved dishonourably in Pangani Police Station be dismissed forthwith by the National Police Service Commission (NPSC). It is because he is known to have done something which is extremely unconstitutional. His staying in Pangani Police Station is a danger to all citizens who are detained there. Further, the idea of denying Hon. Junet his medicine is not just unconstitutional but criminal. Somebody is denying him medicine with the intention of injuring his health or killing him. We should take this very seriously. I propose that as a result of what has been going on, not just yesterday, but since the demonstrations started, the kind of police killings that have gone on in Kisumu County, we as the Senate, should establish a select committee to inquire into these things. It is very important that we get the truth and the police who have done this are dully punished.

Mr. Temporary Speaker, Sir, I join my colleagues in condemning the barbaric manner in which these legislators were arrested. These are people’s representatives. They were mishandled. In fact, Hon. Junet was arrested as if he was a criminal number one. The number of policemen that we saw surrounding that building was higher than the number that you saw going to the Westgate Mall when there was a terrorist attack. We, as a nation have taken things too far. We should allow people to express themselves, but within limits. Going to the extent of using force in such scenarios really is painting ourselves in bad light as a nation. Secondly, our children watch television.The movies they watch were exhibited live yesterday. This is not a military State; therefore, whatever we saw yesterday would be abnormal. Last year, I was also taken through the same procedure, but not as worse as this one. You are supposed to be summoned and then you offer yourself. These MPs would not have disappeared. In the same vein, before we speak and make any utterances, let us carry the nation on board and not run into tribal enclaves whenever such incidences occur. Let us not wait when elections are around the corner and then we start knocking the door ---

(Sen. (Dr.) Machage): Order! There are three more contributors; Sen. M. Kajwang’, Sen. Wako and Sen. Mositet. Please, if you can save on a little time, I will be happier. I will not allow any more contributions because we have some work to do.

Mr. Temporary Speaker, Sir, thank you because of what you have said. I hope that the Senate Majority Leader is here. You heard what your Deputy said and condemned the mistreatment that is being meted out to these MPs. It was brought to his attention that somebody could actually die tonight. I hope he is not here now because 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. Hate speech or incitement cannot be fought by breaking the law. This nation now knows about Article 251, because the President has told us to follow the Constitution in matters to do with the Independent Electoral and Boundaries Commission (IEBC). It is time we highlighted Article 51 as well because people in custody have rights. I hope that the Government will also parrot Article 51 the same way they have parroted Article 251 to the nation. The thrust of my argument is that there is clear evidence that as a nation, we have not matured enough to police ourselves. We have a police force that we thought had been transformed, but we still see them killing people and taking actions that lead to bloodbath. Last night in Kibera the Nubians and the Luo communities were fighting and people were killed. Muslims and Christians were fighting and people were killed. This blood must be on someone’s head. This is the more reason Kenya should not withdraw from the International Criminal Court (ICC). One day, somebody will have to pay for this. We might not have the maturity to hold people to account today, but someday in future we will. As a young Senator, I long for that day when justice will be served on the people responsible for the deaths in Kisumu and Siaya in the hands of police and the 500 people who were killed by the police in post-election violence.

Thank you, Mr. Temporary Speaker, Sir. I agree with my colleagues that the police should not have mishandled the Members of Parliament (MPs). On the other hand, I fully support the police for making sure that the hate speech mongers, whether they are MPs or members of the public are contained. If we continue to allow hate speech, this country will be ruined. I do not agree fully with what Sen. (Prof.) Anyang'-Nyong'o said. I will not compare the United States of America (USA) with Kenya. The presidential aspirant in America, Mr. Donald Trump, may be seen by some Americans as insane because of what he says but the situation is different here in Kenya. We need to look at the history of this country. Whenever the incumbent Government has sought re-election; what is happening now keeps recurring. It is time for our security system to be tough. They must make sure that MPs and members of the public do not continue to break the law or preach hatred. This is the time to be united. 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): Order! The Senate has spoken. Hon. Junet Mohammed is a Member of Parliament from Migori County, and so, you can understand the predicament of your Speaker today. Be it the opposition or Government, let us not destroy our country.

I will not allow any Statement request because time has elapsed. Next Order!

(Sen. (Prof) Kindiki): Mr. Temporary Speaker, Sir, I beg to move the following Motion:- THAT, the thanks of the Senate be recorded for the address of the Chief Justice of the Republic of Kenya, the hon. (Dr.) Willy Mutunga, delivered on Wednesday 15th June, 2016. I take this opportunity to say what an honour it has been for me this afternoon to sit and listen to the outgoing Chief Justice of our country, my colleague and senior in the profession, the Hon. (Dr.) Willy Mutunga. Allow me to say that this is the first time this House has used Standing Order No.25 which provides that the Speaker and the leadership of the House may allow a dignitary in our country to come and address this House. Going forward, in my humble view, this is the Standing Order that we must use from time to time, because we have a number of eminent Kenyans who have served this country well in strategic positions. We end up losing them when time comes for them to leave; with a lot of information that would have served this country well. Time has come for the country to learn to chronicle our journey as a nation. It is only by chronicling our past that we can plan about our future. I hope that the leadership of this House will utilize Standing Order No.25 to allow people who have retired as Presidents or leaders of arms of Government to address this house. I feel honoured as a Senator because the outgoing Chief Justice of our country would have chosen to address any other institution. Particularly, when it comes to Parliament, he would have chosen to go to the National Assembly. I do not want to go into what I read somewhere about what the Chief Justice said when he was asked why he chose to come to the Senate. What I read said that he had the confidence that this is a mature House, which is not petty. He thinks that his thoughts will be given effect and will have an impact. He did not think as much of any other institution including within Parliament. He felt that the Senate is the right place for him to have his valedictory remarks. 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 would like to share most of the points that the Senate Majority Leader has made by way of comment on the speech by the retiring Chief Justice. I also thank him for allowing me to second him. This is a momentous Motion but not very surprising because after all Sen. Wetangula, the Senate Minority Leader is the national party leader of FORD Kenya while I am the deputy party leader. So, it is natural that I should discharge where I was expected to do. I am so proud of the Chief Justice.

(Sen. (Dr.) Machage): Is that hierarchy of leadership recorded in the Registrar of Political Parties’ office?

Mr. Temporary Speaker, Sir, that is for another day.

(Sen. (Dr.) Machage): This is a House of records.

Yes, Mr. Temporary Speaker, Sir. Let the records reflect.

(Sen. (Dr.) Machage): So we have de jure and de facto leadership in parties.

Yes, Mr. Temporary Speaker, Sir I am referring to the de

. I am the de facto deputy party leader of FORD Kenya. In due course, we will make it de jure .

(Sen. (Dr.) Machage): Very well. What is it, Sen. (Prof.) Lonyangapuo?

On a point of order, Mr. Temporary Speaker, Sir. Sen. (Dr.) Khalwale is in the Senate courtesy of the United Democratic Forum (UDF) which is a member of the Jubilee Coalition.

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

Mr. Temporary Speaker, Sir, you heard the Senator say that he is the de facto and will be the de jure . Is he suggesting that in this political outfit called FORD Kenya, the leaders and deputy leaders are all from one village? 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 may not prevent a man or a woman from dreaming. It is not possible. You may also not prevent anybody from building castles in the air. In any case, the old saying goes: “If wishes were horses, beggars would ride.” Anyway, that is for another day.

Mr. Temporary Speaker, Sir, I really get very excited when I hear some of the things that people think about me and it reminds me about my early days. When I was a little boy in Musingu High School, nobody would ever have imagined that we would scale the heights that we have. I am very proud of the Chief Justice because he has really fought for this country. This is a man who in 1997 many started thinking that he would be the compromise presidential candidate. I remember he led us in the National Convention Executive Council (NCEC) when we were fighting for the greater expanded democratic space in this country. I used to buy tickets in the Akamba Bus for Prof. Kivutha Kibwana and (Dr.) Willy Mutunga to come and address us in Kakamega when I was the coordinator of the NCEC in the former Western Province. It has been a very long journey. Mr. Temporary Speaker, Sir, I am proud of his résumé. Indeed, if he chooses to pen his biography, it will be a must read for the children of this country. I am equally proud of his tenure as the Chief Justice of the Republic of Kenya. More importantly, he made me very proud today to the extent that Sen. Billow shared with me on a light moment that maybe we should continue pursuing our careers as Senators in view of the high stature that we apparently have not realised that we occupy in the echelons of power in this country. In seconding the Senate Majority Leader, I would like to celebrate the following moments of the life of the Judiciary under Dr. Willy Mutunga. First is his advisory opinion on the role of the Senate in terms of Bills concerning the two Houses of Parliament. Had that advisory opinion not been given in the manner that it was, it was going to render this Senate completely useless. Secondly, I want to celebrate the ruling of last night on the retirement age where the Supreme Court was involved because it was not too clear to some of us who are not lawyers. He upheld the ruling by the Court of Appeal that the retirement age is 70 years. That is very important. Mr. Temporary Speaker, Sir, you and I who were MPs at that time will remember that we momentarily lost our seats so as to quickly take a new oath. As soon as we did that, Members of the Cabinet rushed to State House to also take a new oath under the new Constitution in 2010. Similarly, all judges took that oath. It, therefore, meant that Justice Kalpana Rawal and Justice Philip Tunoi were taking an oath under the new Constitution, vowing that they shall not only abide by the Constitution but they will also retire at 70 years. Sometimes I look at a doctor like you and feel we are privileged because we are extremely factual and we are forced to make critical moments in the so-called the golden hour where if you make a decision just minutes or seconds later, a patient dies. If we had the luxury of the legal profession, we would be protracting things the way they do. A simple thing like this one of reading that the retirement age is 70 years has taken so much 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): Order, Sen. (Dr.) Khalwale, you will continue tomorrow.

(Sen. (Dr.) Machage): Hon. Senators, it is now 6.30 p.m., time to adjourn the House. Therefore, the Senate stands adjourned until tomorrow, Thursday, 16th June, 2016, 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