On a point of order, Mr. Speaker, Sir. I presented a Petition on behalf of the Kirinyaga Miherega Kenda ; that is the nine clans, concerning the border dispute between Kirinyaga and Embu counties in respect of the 54,000 acres known as Mwea Trust Land. The Petition was thereafter committed to the Standing Committee on Legal Affairs and Human Rights which pursuant to Standing Order No.227 was required to respond by way of a report addressed to the petitioners and laid on the Table of the Senate in not more than 60 calendar days. My point of order relates to the time it has taken to have the Petition heard and determined by the said Committee. Under Standing Order No.227(2), the report of the Committee should have been tabled before the Senate on or before 13th July, 2015. It is now one year from the date the report was due. I have no indication when the Committee will consider the Petition and present its report as required by the Standing Orders. This matter is very important to the people of Kirinyaga. When I presented the Petition on 13th May, 2015, I informed the House that tension in the affected area was rising by day as a result of rival claims to the land by the Miherega Kenda people of Kirinyaga County on one hand and the Mbeere and the Kamba people of Embu County, on the other hand. This was primarily on the question of adjudication and demarcation of the land which the Embu County Government had commenced unilaterally; an act that would alienate the people of Kirinyaga from their ancestral land. The situation on Mwea has continued to worsen as the Embu County Government is now processing and issuing title deeds to the people of Embu and Mbeere only. The Kirinyaga people are now angry about this as their ancestral land is being taken away from them. This issue was even covered in yesterday’s newspaper which noted that 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
Could we hear from the Chairman of the Committee on Legal Affairs and Human Rights or any Member of the Committee?
Mr. Speaker, Sir, you know the issue of county boundaries is very close to my heart. The Petition by the people of Kirinyaga was actually determined by the Committee. However, the Committee was of the view that in view of the Bill that emanated from the Committee and recognizing that there was no mechanism for resolving county boundaries under the Constitution, we proposed that the Petition by hon. Karaba should await the Bill that was published. We are aware that this Bill is pending because of some internal issues between the House Business Committees. The direction should be on what we should do with that Bill because the Petition on the question of boundaries cannot be determined until a mechanism is found in the law. Right now, there is no mechanism. Demarcation can be dealt with under other normal processes. Unfortunately, a county boundary is a matter that we cannot deal with. No person can deal with this matter outside the provisions of the law. We know the circumstances under which the Meru- Isiolo issue escalated into warfare. This was simply because of a task force which was appointed outside the law which never resolved the issue. When the Motion was brought here, the contention was that there was no issue. However, when they went on the ground, it ended up with people dying.
What is it, the Senate Majority Leader?
(Sen. (Prof.) Kindiki)
Mr. Speaker, Sir, the concern by the Senator of Kirinyaga is so clear. It is about the lack of response by the Committee as per the Standing Order No.227. The Committee should have tabled the response on the Floor of this House whatever the findings were. If they were not able to write a report for some reasons, which the able Senator for Makueni has tried to present, then that should have been the report to be tabled before this House. Is he in order? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
Mr. Speaker, Sir, I have severally complained but you have mentioned that I should not complain because of the internal processes of the Senate. The Committee finalized this report which includes a report by Vihiga County on the petition by Sen. Khaniri. I am not sure if I should ask the Speaker whether there is somebody from the Directorate who should respond. However, the report is pending approval somewhere in the Senate, but it was done last year. My Bill was also published last year---
Order, Sen. Mutula Kilonzo Jnr. I know that is where you like rushing to and rightly so, but can we just get this one right? Did your Committee finalise the Petition by Sen. Karaba; was the report presented? If so, where is it?
Mr. Speaker, Sir, the report was finalized. We, as a Committee, signed it and it was supposed to be tabled. However, I cannot tell what happened between the Committee of Legal Affairs and Human Rights and the tabling of the report before the Senate. Now it is out of our hands because I signed my portion. Sen. Sang is here, he did the same and signed his portion. Therefore, we finalized it a long time ago. We could find out tomorrow where it is stuck if you allow us.
You will not find out tomorrow; you should find out today and bring it tomorrow. At the rate at which you are moving, if you find it tomorrow you might tell us the findings next year.
Mr. Speaker Sir, we will find out where it is stuck and tell you in a few minutes.
Mr. Speaker, Sir, it is astonishing that some people can escape the rules of the game. In the Senate we have the 60 days period that is provided for in our Standing Orders, which are our guiding principles. What exempts the Committee on Legal Affairs and Human Rights from abiding by the 60-days rule? There must be a ruling from the Speaker telling us whether there are some Committees which are superior, to the extent of taking the Senate for granted. Secondly, there is allocation and demarcation of land that is going on and one of the prayers of the people of Kirinyaga is that it should stop. Now that it is going on, it means that by the time the report comes, the title deeds would have been issued to the people. Could we stop the issuance of the title deeds to the affected areas, so that we can be seen like we are taking some action?
On a point of order, Mr. Speaker, Sir.
What is it Sen. (Dr.) Khalwale? Is it on this matter?
No, Mr. Speaker, Sir.
Let us first dispose of this one and then I will give you the opportunity. Sen. Mutula Kilonzo Jnr., do you wish your Vice Chair to respond?
Yes, now that he is here.
Mr. Speaker, Sir, if I had a choice I would not have accepted that I respond because he has answered the questions. I want to apologize to the House because this report has not found its way to the Senate. As you have directed, we will find the The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
Order, Sen. Sang. You should be the last person to use that maxim. It should apply to you. You cannot take it to Sen. Karaba when you have already owned up.
Hon. Members, this is a serious matter which first appeared in 2015 and a reminder was made in November. It was supposed to have been due by July. Today is 5th July, 2015. Surely, I do not understand how you get to know all those maxims and not know the timelines. Unlike you, I will trust my Committees, including yours. You now know what has been agreed on. I direct that the report is tabled tomorrow.
Order Sen. Sang. Are you the Vice Chairperson of the Committee or should I look for another one? Please, listen when directives are being given. The Senate Majority Leader was not on the Floor when you were prosecuting the agenda and so, he can easily be excused. The responsibility is yours. I will not entertain that as another excuse to delay the report. Look for the report today so that I can approve it for tabling tomorrow. For the purposes of Sen. Mutula Kilonzo Jnr.’s Bill, first, he was connecting what was not necessary because he has confirmed that the report is ready. The issue of the Bill is another matter; you should have just dispensed the Petition as it came. Through petitions and other transactions that you carry, that informed the formulation of the Bill. You know the issues around the Bill and I have had the opportunity to share with you. However, I also want to agree with you that some of these consultations must come to an end. In the absence of further interventions, I will also expedite your matter.
On a point of order, Mr. Speaker, Sir.
What is it Sen. Karaba?
Mr. Speaker, Sir, the key issue is that the County of Embu is issuing title deeds to people living in the same area that is under dispute. Could I request that an order be imposed so that they stop the process?
Mr. Speaker, Sir, I am not sure if this House or the Committees of this House have the powers to issue such orders. I am also not aware that the county government has the responsibility and legal mandate to issue title deeds. That is not possible. I persuade the Member to be patient for today and look at the contents of our report. You have almost alluded to the findings of our report. We realise that certain things cannot be done before certain things are achieved. Since ten or so title deeds 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. Sang, do you also know of a maxim about the equity not favouring the indolent?
Sen. Karaba, let us wait for the report of the Petition tomorrow. But I would also encourage the Vice Chairperson and the Committee that these issues are related and are of concern to the counties. Therefore, even on your own Motion, you can see what else you can do. Definitely, Sen. Mutula Kilonzo Jnr. had mentioned that when there was that taskforce that could not operate, people died. We do not want to see a repeat. Sen. Mutula Kilonzo Jnr.
Mr. Speaker, Sir, for information sake, the question of issuance of titles will have nothing to do with the report. Therefore, Sen. Karaba is advised that if there is a particular complaint on the issuance of title deeds, that matter can be handled easily by the High Court and the Lands Division. The report will not handle that issue because it is beyond it. Issuance of titles was not one of the issues that we were considering, and it will not be answered tomorrow. It is fair that I say so. LEASING OF BUFFALO SPRINGS AND SHABA GAME RESERVES BY THE COUNTY GOVERNMENT OF ISIOLO
Mr. Speaker, Sir, I rise to present a Petition on behalf of residents of Isiolo County, pursuant to Article 37 and 119 of the Constitution of Kenya and the Senate Standing Order Nos.220 and 223. This Petition is in respect of the important and urgent matter of the leasing of Buffalo Springs and Shaba Game reserves by the Isiolo County Government. Allow me to put it on record that this Petition is in respect to a matter which lies before the County Assembly of Isiolo. They made a decision that the lease of these two game reserves be stayed, but the executive has ignored. For the record, this matter is also before the Ethics and the Anti Corruption Commission (EACC). Since time immemorial, the game reserves are a permanent asset of the local community. It is the pride and natural heritage of the county and it contributed to 90 per cent of the local revenue during the defunct Isiolo County Council. It is, therefore, the backbone of the economy of Isiolo County. The matter of leasing of both Buffalo Springs and Shaba Game Reserves was brought to the attention of the Assembly for thorough scrutiny and ventilation by Hon. Hassan Guyo Shano through the request for statement early this year. However, the written response by the County Executive Committee (CEC) Member for Tourism was not satisfactory. It failed to convince Members of the County Assembly (MCAs) 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
Sen. (Dr.) Khalwale, you have absolutely no apologies to make. The residents of Isiolo County are citizens of the Republic of Kenya and this House is a national organ. However, it is good manners, of course, to deal with your colleagues when they are available. All in all, you are perfectly in order. Hon. Senators, pursuant to Standing Order No.226, I shall now allow comments, observations and clarifications in relation to the Petition for not more than 30 minutes. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
Mr. Speaker, Sir, I thank my colleague, Sen. (Dr.) Khalwale, for raising the concerns of the people of Isiolo County. As you have rightly put it, he has no apologies to make. This House is viewed as the voice of the voiceless, particularly from the marginalised counties. I appreciate this particular Petition and many others that have been brought to this House in the past. Communities now know their rights by the fact that they are able to petition gives them an opportunity to raise the issues that cannot be handled at a lower level. What we always see is the tip of the iceberg. Quite a number of them are on the way ranging from the mismanagement of public resources as we have seen in the past to issues that touch on the lives of the ordinary citizens in this country. Mr. Speaker, Sir, public participation is an essential pillar in the Constitution. Our county governments have taken the Constitution in total disregard of relevant laws that exist in this country. The game reserves are an important community resource. Without the consultation of the community, they cannot lease. Governors must be held responsible. Unfortunately, our county assemblies have not been strong enough to defend the interest of the counties just because the executive manipulates them all the time by giving them contracts here and there. I urge the county assemblies to stand firm as we approach the final year before election. I urge the county assemblies to be vigilant with the management of resources. A number of county assemblies have stood firm, particularly with regard to the budgeting process. A number of budgets were rejected in a number of county assemblies. Some of those that went through did so through manipulation. I urge the communities that feel aggrieved to come forward like the people of Isiolo and bring the petitions to the Senate. I also urge the relevant Committee that will be assigned this to speed up and make sure that we get the report on time and follow it up. Our secretariat must follow---
Mr. Speaker, Sir, in conclusion, it is only recommendations that come from this House that the relevant state agencies, including the Office of the Director of Public Prosecutions (DPP), the Ethics and Anti-Corruption Commission (EACC) et cetera should act on.
Mr. Speaker, Sir, I rise to support this Petition. I wish to confirm to the House that I was out of the country last week. It is proper for Sen. (Dr.) Khalwale to present this Petition on behalf of Kenyans. At the end of the day, we will work together as a House to achieve the objective. The issue of the parks in Isiolo has been pertinent. It has been ongoing for a very long time. From the information that I have, proper consultation has not been done. In this era, with the provision of the new Constitution, it is important for Kenyans to know their rights and how their property is invested. This park has been generating revenue and creating employment to quite a number of people. It is important for them to be consulted so that they can know what their fate is once this changes hand. Mr. Speaker, Sir, I support this Petition. It is important for the process to be fast- tracked. I am sure the Senate will work on this and make sure that justice is done.
i: Mr. Speaker, Sir, I rise to support the Petition and encourage the people of Isiolo. That is the way to go. Of late, there seems to be a trend by county The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
Bw. Spika, namshukuru Sen. (Dr.) Khalwale kwa kuwasilisha masaibu ya watu wa Kaunti ya Isiolo katika Bunge la Seneti. Nchi hii inaelekea ukingoni; taifa karibu liporomoke. Leo, ni wazi kwamba magavana wote na watumishi wengine wa serikali wanapora na kuharibu mali ya taifa hili. Imechukua miaka nenda miaka rudi kabla mmoja wao kupelekwa kortini. Polisi wa Kenya wana uwezo mkubwa sana wa kukimbizana na mtu ambaye amesimama mkutanoni na kusema kwamba kuna wezi katika taifa hili. Huyo mtu anakamatwa 6.00 p.m.; 6.00 p.m. yuko kortini na 7.00 p.m. amewekwa ndani bila mashtaka. Lakini wezi na waporaji wanatembea barabarani huru bila kusumbuliwa na mtu yeyote. Wakati umefika tutetee na kusimamia maslahi ya Wakenya.
Mr. Speaker, Sir, I thank you for giving me this opportunity. I thank the Senator for Kakamega for bringing this Petition to this House. It is not only Isiolo which has started leasing game parks. Samburu County is in the process of bringing a similar Petition to this House. I support that Petition. I encourage the people of Kenya to participate fully in the use of their natural resources. Mr. Speaker, Sir, with those few remarks, I beg to support.
Bw. Spika, hekaya za Abunwasi sio vile zimeandikwa tu katika kitabu cha Alfu Lela Ulela . Hekaya hizi zapatikana hata kwa wajibu uliopewa magavana na serikali za kaunti. Linalotendeka Isiolo ni jambo la ajabu kwa sababu bunge la kaunti ya Isiolo kujadili mambo haya na kupitisha uamuzi wao na kudharauliwa na serikali iliopo huko hadi haya mambo yakafika kwa Bunge hili, ni jambo ambalo tunastahili kuliangalia na kuanzisha labda sheria itakayowapa wabunge wa mashinani uhuru na nguvu za kutekeleza wajibu wao kwa jambo kama hili la dharura. Naunga mkono kilio hiki kilocholetwa kwa Bunge la Seneti na Sen. (Dr.) Khalwale.
Proceed, Sen. (Prof.) Lonyangapuo. Please be brief and swift. That is the trend.
Mr. Speaker, Sir, I support this Petition. It is absurd and sad that the people we have entrusted to take care of the counties are becoming problems. How can you lease a resource without consultation? This is happening in the majority of the counties in the pastoralist region. It is important that this is resolved so The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
Mr. Speaker, Sir, I congratulate the Senator for Kakamega for bringing this matter concerning public property in Isiolo County. This matter can be replicated in many other counties. Governors do not seem to differentiate between public and private property. Article 1(1) of The Constitution of Kenya, 2010 vests the power of this country in the people of Kenya. Any governor or individual who goes counter to the interests of the people of any village, county, sub- county and the country does so at their own risk. We have lost a lot of public property in the country in this manner.
The people of Isiolo are justified to resist attempts to clandestinely lease out resources that contribute close to 90 per cent of their revenue. Many cases like these have happened, where they start by secretly leasing and eventually you learn that they have secretly sold the assets. I want to urge that the Committee interrogates this matter fully and if anybody is found culpable, it is a clear case that can lead to the impeachment of whoever is responsible, if it is the governor, his deputy or whoever it is. Public property must be protected for the interest of the people of each county and this country.
On a point of order, Mr. Speaker Sir. I rise under Standing Order No. 107. You noticed that when Sen. Wetangula was speaking, Sen. (Prof.) Anyang’-Nyong’o, Sen. Elachi, Sen. Lesuuda and Sen. Mohamoud were on their feet. Are they in order or is this the new meaning of order in this Senate where five Senators stood on their feet, when the Senator for Bungoma was addressing the House?
Order, Sen. (Dr.) Khalwale. Which Standing Order are you referring to?
Mr. Speaker, Sir, Standing Order No. 107 which says:- “Except when passing to and from his or her seat or when speaking, every Senator when in the Chamber shall be seated, and shall not at any time stand in any of the passages and gangways”.
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. Who were those culprits?
Mr. Speaker, Sir, I will start with the youngest, who should know better, Sen. Lesuuda, Sen. Elachi and Sen. Mohamoud . I will forgive Sen. (Prof) Anyang’-Nyong’o because of his age.
Apparently it is only the female Senators who seem to be oblivious of Standing Order No. 107.
Order, Senators. I do not know why you are protesting. Those are the facts. The Standing Order is very clear. I saw for myself. Even now as I am standing, some are still standing and that is proof.
It is fair to concede some of these things learn from it and move forward. Sen. Mutula Kilonzo Jnr.
Mr. Speaker, Sir, it is difficult not to admire Sen. (Dr.) Khalwale because he is the only one who comes up with a petition from a county other than his, and does it with a straight face. However, Sen. Ntutu raised a similar issue in similar circumstances, but in the case of Narok, the matter went to court where there was no public participation. It was nullified. The unfortunate bit is that we never gave Sen. Ntutu’s findings and the Petition that he brought to the Senate with such voluminous documents, the prominence it deserved. As a result, we never learnt a lesson. I want to first of all congratulate Sen. (Dr.) Khalwale, but tell him that there is precedent from Sen. Ntutu and there are findings of a court. In fact, the word, “window dressing” in respect of public participation is from a ruling which was presented to this Senate by Sen. Ntutu. If it was a rally, I would have asked you to clap.
Mr. Speaker, Sir, therefore, I support the Petition, but we also as a Committee on Legal Affairs and Human Rights coming up with legislation on public participation. However, for some reason, that legislation has been taken over by our sister House and the one we developed has disappeared somewhere in the process. One of the things that Kenya will fault us for is not coming up with a framework on what public participation is.
Mr. Speaker, Sir, I sympathize with Isiolo residents because one person can decide the destiny of a whole county. I have been to the famous Buffalo Springs in Isiolo. That hotel collects a lot of money, going by the look of things and even its location. It is prudent that we must be able to come up with measures of trying to The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
Hon. Senators, pursuant to Standing Order No. 227(1) which says that:- “Every petition presented or reported pursuant to this part, shall stand committed to the relevant Standing Committee”. In this case, we are referring to the Committee on Land and Natural Resources. In terms of the same Standing Order 227(2), when a petition is committed to a Standing Committee, the Committee shall, in not more than 60 days from the time of reading the prayer, respond to the petitioner by way of a report addressed to the petitioner and laid on the Table of the Senate” Next Order, Sen. Mutula Kilonzo Jnr.
Mr. Speaker, Sir, I notice that you are not wearing a purple ribbon like me, but I will ask you another time. I beg to---
Order, Senator. In fact, I had at one time contemplated that you give me one. Proceed.
Mr. Speaker, Sir, I beg to lay the following Paper on the Table of the Senate today, 5th of July, 2016:- The 2009, Kenya Population and Housing Census Analytical Report.
What is it Sen. (Dr.) Khalwale?
Mr. Speaker, Sir, the 2009 census was disputed. In fact, the matter went up to the High Court and the Court of Appeal. Could we be guided on whether it is the raw data that was archived from the field or what the former Minister, Hon. Oparanya called the “smoothened”? Is it the “smoothened” or is it the data containing the decisions of the High Court, Court Of Appeal and Supreme Court? We need to be guided because the document is now going to be public. The public must know what they are consuming. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
What is it Sen. Wetangula?
On a further point of order, Mr. Speaker, Sir. You may be aware, if not take judicial notice, that this matter went to the court, which declared parts of the census annulity. It even ordered a repeat that was never done. We do not want this House to rubberstamp public fraud. We have a circle of census that is coming in another three years. I have looked at the census document that has been tabled and remember very well the former Minister for Planning and National Development saying: “We have finished the census; now we are smoothening the figures.” That is a language of fraud. How do you smoothen figures? They are either figures or not figures. As the distinguished Senator for Makueni tables that document, I want us to note that this is a document which is highly questionable and disputable. It remains a questionable document and is not an authority on the demography of this country.
Mr. Speaker, Sir, I want to add that even when we do allocations to counties, we still have conflict because of the same census. Therefore, it is important for the courts to conclude these cases so that we know the way forward regarding the matter that has been pending since 2009. I think we need to close the chapter on census.
Mr. Speaker, Sir, a document has just been tabled in House that we are not privy to and have not read. Are the Members, therefore, in order to debate or dispute a document that we are yet to see?
Mr. Speaker, Sir, this document arises out of what we knew one time; that there was no proper census taken. If that is true, the document is fraudulent. Some of the figures that are in that report are used to allocate money from the national kitty. It is, therefore, important that we get serious about the figures that we have. The figures for some pastoral areas purport to be even more than those of Kirinyaga. We need to know whether those figures are correct and authentic.
Mr. Speaker, Sir, I wish to join my colleagues in wondering how this document has come to the House. If it is not official why have we been using these figures to allocate funds to the counties? We should use the old figures of 1999 and not the disputed figures of 2009. It is not proper to allocate 45 per cent of resources proportion to the population, using figures that are still contested. The Committee should bring a document that reflects 2019 and not this one. In fact, we have been illegally allocating money based on the figures that are contested.
Sen. Mutula Kilonzo Jnr., what is your response to all the issues that have been raised?
Mr. Speaker, Sir, I appreciate the comments made and will not defend the document. However, we discussed this matter in the Committee of the Senate when we were dealing with the county revenue allocation. The question at the time was whether we can continue allocating revenue based on the population figures that are available on record. Speaking for myself, I think the Senate now has an avenue; that this is the basis upon which Senators can then move to ask for those documents that are in the Court of Appeal and the correct figures, so that by the time we are dealing with the formula, we can correct it because the basis is already at the Senate. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
On a point of order, Mr. Speaker, Sir. Did you hear the Acting Chairperson of the Committee state that the ruling by the Court of Appeal, which was in favour of the people who challenged those figures, has now left any Kenyan with the option to go and ask for the figures to be amended? Could he clarify whether that decision was not directing the Government to go and make those amendments to the figures? Those figures favour certain areas in this country to get resources that they do not deserve, and the Court of Appeal has made a decision. Could you make it clear or do you want me to go to court, because I represent the second largest county with two million people?
Order, Sen. (Dr.) Khalwale. You cannot be a champion of Standing Orders at your convenience. You do not address another Member, leave alone a standing one. Sen. Mutula Kilonzo Jnr.
Mr. Speaker, Sir, what I said is that this document was prepared, from my own reading, before the Court of Appeal judgement. Therefore, in sequence, this document came first and the Court of Appeal document came second. The leaders who have an issue with the document have an opportunity to challenge it based on the Court of Appeal ruling. The tabling of that document in the Senate, in own view and I could be wrong, lays a foundation for the leaders of the Senate to say: “Now we have the wrong document that has caused us problems. This is because we did not have a document that we could use.”
Sen. Mutula Kilonzo Jnr., just help me for my own understanding. Was the decision of the Court of Appeal never challenged?
No, it was just a month ago. There is no court that has overturned the Court of Appeal ruling. For now that ruling stands.
Mr. Speaker, Sir, this is an opportunity for you, as the Speaker of this House, to guide the country. That document contains disputed and disputable figures. The matter has gone to court and the court of first instance, in fact, ordered for a repeat of census in various places, which was never done. The Court of Appeal has said that, that census was inaccurate in every material particular. It is the document that we are purporting to use as if it is factual. You as the Speaker of the Senate that protects the interests of counties and their governments – and it is the basis upon which revenue is distributed – can give a direction to the country. Although we have a ten-year circle to carry out census, the census of 2009 having been carried out Nigerian style, where every county and region inflates figures for purposes of attracting revenue, to the extent that you can never tell how many Nigerians there are in Nigeria, because of fraudulent figures whenever they do their census, it The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
Order, Senators. The difference between the Speaker and the Senate Minority Leader is that I also happen to be a statistician. Therefore, these are matters I am at home with, including the use of the word “smoothening.” It is not necessarily bad and I can read from what the then Minister said. “Data capture was done using scanning technology and the process was highly integrated with tight controls to guarantee accuracy of results to achieve internal consistency and minimize errors, rigorous data editing, cleaning and validation.” These are things that we always do when we get the letter done. For a layman, “smoothening” might mean other things, but that is not my point. Admission of documents is based on authenticity; that is, the source of the document, who the author is and whoever signed it. That is the time honoured practice of Parliament. Regarding this document, you cannot be in any doubt. Just look at the way it is glossed very nicely; this is an authentic document. What you are challenging about this document is the content, which you are at liberty to do. But to ask your Speaker to engage in a process that I would consider an exercise in futility--- I think the House is not better placed to deal with these things. Already there are people who have petitioned the Court of Appeal; let them proceed along those lines. This is 2016 and the next census will be 2019. It is a massive exercise that shall remain contentious. Prepare well for the next one and learn from the mistakes of this one, if there were any. I rest my case. By the way, it is a very old document. It is Volume 13 dated March, 2012. Let us move on to the next Order.
(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I beg to give notice of the following Motion:- THAT, pursuant to Standing Order No.176(a), 177 and 179, the Senate approves the following Senators nominated by the Senate Rules and Business Committee (RBC) to serve in the Procedure and Rules Committee:- The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
On a point of order, Mr. Speaker, Sir. I would like to draw your attention to the order of today. The Motion that the Senate Majority Leader has given notice to is not on the Order Paper.
Order, Sen. (Dr.) Khalwale. You should argue with passion when you have established all facts. First, this is a notice of Motion. Secondly, it is good practice to make it obvious when it is possible but with leave of the Speaker, you allow certain notices to be given. We are not prosecuting the Motion. It is still good notice for you between now and when the Motion will appear on the Order Paper because it also depends on the gravity of the matter. This is a Motion that you are actually fully aware of. Sen. (Dr.) Khalwale, proceed because last time you prosecuted the other matter very well.
Mr. Speaker, Sir, I agree with you that he can do so with the leave of the House. If that is the case, then he should have informed the Senate that he is proceeding with the leave of the Speaker. Otherwise, we cannot just sit here and see the rules of this House being trampled upon by none other than a professor of constitutional law.
Order, Sen. (Dr.) Khalwale. Which Standing Orders are you quoting? Every time you rise with a book but this time round you have not.
Mr. Speaker, Sir, I rise under the Standing Order that speaks to the sequence of events---
Is it Standing Order No.39?
Yes, Mr. Speaker, Sir. If he had gotten your leave, he should have informed us that he has your leave.
Order, Sen. (Dr.) Khalwale, you are completely out of order. I think you are too busy preoccupied with who is on the passages and the gangways.
This is Order No.6 on the Order Paper. That particular Order is about Notices of Motion. The Senate Majority Leader has given a notice of Motion under that particular item. So, how can he be out of order? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
Mr. Speaker, Sir, I am glad that you are also studying law like most of us. However, in Standing Order No.48 where Notices of Motion is contained, the leave you are talking about is not there. Standing Order No.48(2) states that:- “Before giving notice of a Motion, the Senator shall deliver to the Clerk a copy of the proposed Motion signed by the Senator, and the Clerk shall submit the proposed Motion to the Speaker.” The exception are in Standing Order No.48(3). I have checked and I can---
Sorry, Sen. Mutula Kilonzo Jnr., which Standing Order is that?
Standing Order No.48. Mr. Speaker, Sir, we are just doing this for record so that next time we know what we should do. Standing Order No.48 is about Notices of Motion. Standing Order No.48(2) and (3) state:- “(2) Before giving notice of a Motion, the Senator shall deliver to the Clerk a copy of the proposed Motion signed by the Senator, and the Clerk shall submit the proposed Motion to the Speaker. (3) If the Speaker is of the opinion that any proposed Motion — (a) is one which infringes, or the debate of which is likely to infringe, any of these Standing Orders; (b) is contrary to the Constitution or an Act of Parliament, without expressly proposing appropriate amendment to the Constitution or the Act of Parliament; (c) is too long; (d) is framed in terms which are inconsistent with the dignity of the Senate; or (e) contains or implies allegations which the Speaker is not satisfied that the Mover can substantiate— the Speaker may direct either that, the Motion is inadmissible, or that notice of it cannot be given without such alteration as the Speaker may approve.” Mr. Speaker, Sir, all the way to Paragraph 6, there is no portion where there is leave to move without necessarily giving the notice. Maybe, the Senate Majority Leader should have said that he has given you the notice of the Motion and you have approved it under Standing Order No.48.
Order, Sen. Mutula Kilonzo Jnr. You should not argue with me.
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Order! Members, this matter is very simple. Let us proceed because we have a lot of business before us. Let us have Sen. (Dr.) Machage and then Sen. (Dr.) Khalwale.
Mr. Speaker, Sir, either intentionally or otherwise, Sen. (Dr.) Khalwale and the rest have all avoided reading Standing Order No.39(2) which states that:- “Business shall be disposed of in the sequence in which it appears in the Order Paper or in such other sequence as the Speaker may, for the convenience of the Senate, direct.”
But we are not disputing the sequence.
Mr. Speaker, Sir, you decided that the sequence should include that notice of Motion. You have that mandate from the Standing Order.
Sen. (Dr.) Machage, I know you have a duty to help the Chair but you absolutely do not need to exercise it on this one. That matter is what Sen. (Dr.) Khalwale tried to bring and I told him he was completely out of order.
Mr. Speaker, Sir, before I concede that I am completely out of order, I would like you to help me in interpreting Standing Order No.48(6) which says that:- “Notice of an approved Motion other than those under paragraph (5) may be given to Senators by means of a list to be published in such manner as the Speaker may from time to time direct and the Senator giving such notice shall state its terms to the Senate when the Motion has acquired precedence in accordance with Standing Order 51 (Time formoving Motions), but at least one day before the Motion appears on the Order Paper.” Mr. Speaker, Sir, that is exactly what I was disturbed by. The Senate Majority Leader read a Motion that has not met the provisions of Standing Order No.48(6).
Order, Sen. (Dr.) Khalwale, paragraph 6 applies but other than those Motions under paragraph 5. This one is under paragraph 5. It was approved by the Rules and Business Committee (RBC) and the Speaker. Nothing comes here out of thin air. The names were proposed and approved by the RBC today. None other than the senior most Senator is the one giving notice. That should show you where the Motion has come from and its importance. It does not meet the requirements of paragraph 6. Do you now wish to concede?
Yes, Mr. Speaker, Sir. I do concede but wish to point out that Sen. (Prof.) Kindiki is not the senior most Senator in this House. In fact, he is junior than me. Seniority of a Senator in this country is not based on the office that the Senator The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
I will not be drawn into that temptation. I will invoke the Lord’s prayer not to lead me into temptation. In terms of the processing of business, you are only limited to 15 minutes. In fact, before you reach the Majority Leader, you must come through the Minority Leader. So, you have a long way to reach where Sen. (Prof.) Kindiki is, although I know that in parliamentary practice, longevity matters. That is for purposes of allocating you an office when the allotments are done but the office of your bosses are usually assumed and not allotted. That should be enough for now.
Mr. Speaker, Sir, thank you very much for being magnanimous to me, the House and the country by allowing me to make a statement under Standing Order No.45(2)(a) on a matter of county issue and an issue of general topical concern. Mr. Speaker, Sir, I am making a statement in relation to the extra-judicial killings of a young advocate and colleague, Mr. Willie Kimani, his client Josephat Mwenda and the taxi driver who was driving them, Mr. Joseph Muiruri. The facts emerging about the death of those people are chilling, to say the least. These are Kenyans who, according to the Inspector-General of Police, were abducted by police officers. The Inspector-General, has consistently issued statements to the effect that the police abducted them. The details coming out of the post-mortem are so frightening that even mafia criminals do not kill their victims like that. Wille and his colleagues, were brutalized in a manner beyond comprehension, their bodies decapitated, loaded in gunny bags and dumped in a river. Mr. Speaker, Sir, if the police can do this, my colleague lawyers will tell you that there is Marxism; who will watch the watchers. The police are vested with the authority to protect lives and properties of the people of this country. The new Constitution transformed the police from a force to a service but we are quickly degenerating back to an even more brutal force than a service. We understand that the suspects have been arrested and I hope that the arrests are not a ploy to hide the truth because that is also possible. There is a possibility to pick on junior officers. An AP constable is unlikely to have an issue with a lawyer to an extent of arresting, capturing, abducting and brutalizing Mr. Kimani the way it happened. There must be some hidden big force somewhere. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
(Sen. (Prof.) Kindiki: Mr. Temporary Speaker, Sir, I take this opportunity to laud the Minority Leader, Sen. Wetangula, for rising on this very important matter. Mr. Willie Kimani was a lawyer like some of us in this House. He was also my former student. I personally taught him law at the University of Nairobi. The pain that I express here today is not only personal but it is also personal in another way. The client, Mr. Josephat Mwenda was a young man who had been doing business in Kitengela. He came from Marimanti, in Tharaka Constituency, Tharaka Nithi County. Therefore, that is even a more compelling and personal loss. Mr. Joseph Muiruri on the other hand was an honest Kenyan who was conducting his taxi business and I do not think that he should have met his death in such a cruel and barbaric manner. As a lawyer and as a person who has lost a constituent and a fellow Kenyan, I join the Senator for Bungoma and Minority Leader in condemning the barbaric act of murder that has been done on these Kenyans. What is surprising many of us is that the police have admitted that those who are suspected to have committed this crime are police officers. I, therefore, would like to also demand that some form of personal responsibility has to be taken in terms of the people who did this. Administrative responsibility has to take place also because when you are presiding over an institution that goes amok, then you must take personal responsibility. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
Mr. Temporary Speaker, Sir, this is a sad event but it is a sequence of many things. I am one of the people who visited Sen. Muthama in Pangani. Sen. Muthama and several colleagues were detained for three days and denied basic things. That is called impunity. When police officers arrest and detain a lawyer and his client on their way from the court, this is called impunity. These policemen went further and deleted records. I am surprised that the person who is charge of Syokimau AP Post has not been arrested. This is because if it was not for the wisdom of Willie Kimani to write a small note and push it into a small pocket, we would never have known what happened because the records had disappeared. The three constables, just like Sen. Wetangula has said, have never been arrested or arraigned in court and nobody is taking responsibility. We have allowed impunity to foster. We have allowed them to deprive people of basic things and we are now going to allow them to take away life. In-between, there is nothing. These people have gone to the worst. In a country where law enforcement is supposed to guide enforcement and government--- I am surprised, I have not heard a single comment from the Jubilee Administration. There are some fellows who are famous for writing press statements about anything under the sun, even when the sun refuses to rise but in this case, they have said nothing. This is not about tribe or parties---
(Sen. (Dr.) Machage): Order, Sen. Wetangula. You are too senior for that. Proceed, Sen. Mutula Kilonzo Jnr.
Mr. Temporary Speaker, Sir, it is the Kenyan people who wear a Coat-of-Arms and are given ammunition who are turning against Kenyans, yet we pay them to provide protection.
(Sen. (Prof.) Kindiki): On a point of order, Mr. Temporary Speaker, Sir.
(Sen. (Dr.) Machage): What is it, Sen. (Prof.) Kindiki?
(Sen. (Prof.) Kindiki):Mr. Temporary Speaker, Sir, is the Senator for Makueni in order to take advantage of such a solemn and gravious matter, which we are all sharing as Kenyans, to bring incorrect information by alleging that those of us in the Jubilee Coalition have not spoken against it? I have just spoken in this Parliament and did so elsewhere. We all condemn and demand responsibility for what happened and it is in the HANSARD. I spoke about this issue two minutes ago. I have repeated this for the whole world to know; that the Jubilee Government condemns 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. (Prof.) Kindiki. In this country, we have many communities and each of them has its own ways of crying. Others shout, others sing, others produce tears and others do not. So, allow people to cry in their own way.
Mr. Temporary Speaker, Sir, sometimes, the Senate Majority Leader confuses his responsibility to extend to the Executive. In the new Constitution, he is not the Executive and does not speak for the Executive.
(Sen. (Dr.) Machage): Order, Sen. Mutula Kilonzo Jnr. I thought I saved you; do not go to that level. The question is: Does the Jubilee administration exclude the Senate Majority Leader?
Mr. Temporary Speaker, Sir, my statement was in context. He is talking about two minutes ago and I was talking about the past tense, which is so many days.
(Sen. (Dr.) Machage): Two minutes ago is also past tense.
Mr. Temporary Speaker, Sir, it is past tense to the extent that it is just immediately. That is what is called “kneejerk.” When Sen. Njoroge said something so basic, there was condemnation from everywhere. But this is this is a matter of concern, where somebody’s eyes are gorged out, put in a gunny bag and thrown into a river, ostensibly to hide evidence. This is how we have lost Kenyans. This is how cases collapsed at the International Criminal Court (ICC). We must continue to condemn these actions. Thank you.
Thank you, Mr. Temporary Speaker, Sir. This is a very sad occasion that we must not trivialize. I would like to advise my younger brother to remove the log in his eye before he can see the speck in his brother’s eye. I want to thank our colleague, the Senate Minority Leader, for bringing this matter to the attention of this House. We are all shocked maybe even more than those who are shouting. This is because some of the victims are people we know. You have heard that the boda boda business person is from Tharaka-Nithi in Meru and is personally known to the Senate Majority Leader. The fact that he has not shouted it out does not mean that he is not feeling it. We all have many ways of mourning. Where we come from we mourn in silence. Mr. Temporary Speaker, Sir, we do not have the words to condemn this inhuman, brutal, degrading and barbaric act perpetrated by the members of our own police force. I do not imagine what kind of punishment these criminals deserve when found guilty. The tragedy we have is that the law says that justice must not only be done, but must be seen to be done. In this case, where the police are investigating police criminals, it becomes very difficult to know whether every stone will be turned. The clamour that was there during the making of the Constitution is that time has come for this country to have what is called ‘independent prosecutor’ like in the United States of America (USA). It is The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
(Sen. (Dr.) Machage): I see a lot of interest on this and we also have to execute Order No.8, which is equally important. I will limit the time to only two minutes for the subsequent speakers. It is so ordered. Sen. Sijeny.
Mr. Temporary Speaker, Sir, first and foremost, I wish to extend my heartfelt condolences to the families of the bereaved. To lose a loved one in that particular manner is shocking. I once attended a conference in Harare, Zimbabwe in 2008 and watched a video on extra-judicial killings and police brutality in Kenya. I protested because I saw things that I could not imagine could happen in my country. However, after this incident I am left quiet, embarrassed and ashamed. This is not something that can be tolerated. I support Sen. Murungi in saying that an independent body should take charge of the investigations. It should not be the same culprits; it is normally easy to support one another. The Constitution of Kenya is very clear that every Kenyan has a right to legal representation. Therefore, one should not be condemned for doing their job. Whatever it is, the law should take its course. If we do not take proper steps or condemn this act in the strongest terms possible, doctors may start to be killed for saving lives. People should not be condemned for doing the right thing. Therefore, I urge that the necessary steps are taken. Since I also represented the ‘Muthaiga two’ when they were taking their statements, does it mean that I could have been followed, killed and put in a gunny bag? I condemn this act in the strongest terms.
Mr. Temporary Speaker, Sir, the incident that happened to the three victims at Athi River is unfortunate. This is not the first time that we are discussing the brutality of the police. It has happened in some of our counties before. Last month, a police officer killed a civilian in a bar in Kiangwaci, Kirinyaga County. The only disciplinary action that was taken against that officer was to transfer him to an unknown destination. The other month, a police officer killed another person in a bar. It was taken as a normal incident and the police officer was also transferred. We now have three victims of the Syokimau Police Post. If the police officers concerned will only be transferred, this House must rise up and ask for serious action be taken against them. This is a very serious incident. If it was in the United States of America (USA), someone would have resigned by now; either the police boss or the Cabinet Secretary in charge. We all saw what happened 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 giving me the opportunity to condemn and protest the barbaric killing of Mr. Wille Kimani, a young man at the age of 31 who had not even tasted the sweetness of marriage. I also condemn in equal breadth the brutal killing of his client, Mr. Josephat Mwenda and the taxi driver, Mr. Joseph Muiruri, whom I am told is a constituent of the Senate Majority Leader. These people were not arrested. If I may borrow the words of the Senate Minority Leader, they were kidnapped. They screamed as they were kidnapped. I am sure many other police officers saw what happened, but they chose to keep quiet. They chose to pretend that nothing had happened. This kind of impunity is what we in CORD are saying no to. We stand against this kind of impunity. We demand that the killers and perpetrators be brought to justice. I have just heard one of my colleagues requesting that the Federal Bureau of Investigation (FBI) looks into this matter. In the same breadth, I also demand that the FBI should investigate the murder of Mr. Jacob Juma who was killed in very mysterious circumstances and nothing has been said or done about it. Finally, I condemn the kind of killings that the police are perpetrating because it means had the “Muthaiga two” not been Members of Parliament; they would have met the same fate that met the lawyer, his client and the taxi-driver. I stand with my colleagues to condemn that act.
Mr. Temporary Speaker, Sir, I join the Senate Minority Leader and my colleagues in condemning the despicable act. As I watched the young widow who has a very young son and been left by Mr. Wille Kimani, the young lawyer, all that was running through my mind was that all this could have been avoided. It is a pity this young son will grow up not knowing his father because of an incident that could have been avoided. I have no words to describe what the families of the three young men are going through. Looking at the scenario and the circumstances under which they were killed, we cannot even start imagining what happened to them. The postmortem and the autopsy report was quite a sad story. We can only imagine what they went through. The right to life is not negotiable. That is in the Constitution. We must see justice. I join the lawyers in standing with one of their own. I know that they had peaceful protests in Nakuru County and other counties. That is commendable because we need to show leadership in whatever position we occupy. That leads me to the leadership of the Senate Minority Leader, who has brought this matter to the Floor of the House. Just because some of us are quiet, does not mean that we do not have an opinion. We feel touched that their young children will grow up without fathers. The mothers will have to explain what happened to their fathers. That is the worst thing that can happen to any woman. It is quite a painful experience. I hope justice will be served.
Mr. Temporary Speaker, Sir, as a parent, I would like to condemn the killing of these young people. I had an opportunity today to speak with the Government Spokesman over lunch time and I challenged him to explain what is going on. As Sen. (Prof.) Kindiki and Sen. Wangari have said, he told me that we in 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): Order Senator! Your time is up. Please, proceed, Sen. Lesuuda.
Mr. Temporary Speaker, Sir, I thank the Senate Minority Leader for bringing this serious matter to the attention of this House. What happened is very unfortunate. I would like to pass my condolences to the three families. It is sad to see young people lose their lives as they seek justice. The initial case that the young lawyer was following on pro bono was also against police officers for the rogue act that they had done. To add salt to injury, the same people came to finish the three victims totally. That is a very unfortunate incident and it does not matter whether we are in Government or the Opposition. This is a matter that every Kenyan is condemning. This is not the first time that this is happening and it raises a lot of issues that we look into. The issues of the Independent Policing Oversight Authority (IPOA), witness protection and people who are seeking justice against the system because we have witnessed in our counties the police officers kill people in a manner that is unlawful. To date, some of them have not been heard in courts. We must be a country that takes care of its people and not the other way round, especially for people who are seeking justice. I hope that this is not just about statements that we will forget. The three families have to get justice for what happened.
(Sen. (Dr.) Machage): Please, proceed, Sen. Muthama.
Mr. Temporary Speaker, Sir, I request you to add me two more minutes.
(Sen. (Dr.) Machage): Order, you have two minutes only.
Mr. Temporary Speaker, Sir, I am the last born child to be baptized with police brutality. I am asking for two minutes to explain this to Kenyans and four minutes to explain what happens in this country. First, I was surprised to see the Director of the Criminal Investigations Department (CID) before a magistrate. He said that this country has brought the Federal Bureau of Investigation (FBI) to assist with the investigations. This is evidence that The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
(Sen. (Dr.) Machage): Order, your time is up. However, as we discuss this sensitive issue, let us be careful not to abuse our privileges as Members of this House.
Mr. Temporary Speaker, Sir, I conclude by saying---
(Sen. (Dr.) Machage): Order, take your seat.
Mr. Temporary Speaker, Sir, I am concluding. I will sit down. I am just giving the last word. We want fairness. We want those people to be prosecuted without delay.
(Sen. (Dr.) Machage): Do you want to add more?
Okay, order! That is enough. We appreciate what you have gone through. I also appreciate that you needed more time but do not forget that the current Chair was also accused on the same law that you are being accused now. Let us give other Members an opportunity to contribute. Proceed, Sen. Gwendo.
Mr. Temporary Speaker, Sir, I thank you for giving me this chance to add my voice in condemning these barbaric acts and painful occurrence that has happened to our fellow Kenyans. I am a Christian. I believe that no human being has the right to take the life of another. So, whoever thinks or believes that because they are a police officer or Government official, they can take away the life of another Kenyan is wrong at all levels. This is not an issue of Jubilee or CORD. It is about protecting the lives of Kenyans. As leaders in this Parliament, who will we lead if people keep dying or we keep encouraging the loss of lives of these Kenyans? We are leaders because we are leading Kenyans. 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
(Sen. (Dr.) Machage): What is it, Sen. Wangari? Are you on a point of order?
Mr. Temporary Speaker, Sir, I was earlier during Sen. Muthama’s contribution.
(Sen. (Dr.) Machage): Very well. Proceed, Sen. Gwendo.
Mr. Temporary Speaker, Sir, in our line of protecting these Kenyans, we have to ensure that something serious is done to these police officers to serve as a lesson to other police officers. The badge that they wear which is written, “ Utumishi kwa Wote,” - Utumishi is supposed to be in the right way, not to kill us, end our lives and make us fear them. You should not drive around and when you see a police officer, think you will die or wonder which mistake you have done. We see what they do. Sometimes you are stopped on the road and an offence just comes to their mind. All of a sudden you have just committed an offence; for instance, you do not have your driving licence. I need to see a police officer and feel safe around him or her; not to fear. Therefore, I condemn this act. As leaders, we should come together and ensure that justice is served to these families that lost their loved ones.
Mr. Temporary Speaker, Sir, I am coming at the tail end. It is tragic that in Kenya, death brings us together but the fight for freedom never brings us together. It is better to remember that the fight for the living is as important as fighting for the dead. Unfortunately, even if we come together in death, we are not always coming out fairly. I am sorry about the death of my colleague who is a lawyer. This is a tragic affair. When Mr. Jacob Juma died, he was just a statistic and is gone. He died in similar circumstances yet now we are being told about the FBI. What about FBI for Mr. Jacob Juma? I am happy that this matter in a way has brought us together in terms of the fact that judges, magistrates and lawyers have come together. In death, you must remember that when Mr. J.M. Kariuki died, it was hon. Masinde Muliro who stood up in Parliament and said that independence was not one to kill another. For that he lost his job. I am appealing to this House, that when the leadership of these institutions that we put in place is not accountable, these things will continue to happen. One thing that I liked about former President Mwai Kibaki is; when Mr. Alston brought a report about extrajudicial killing, he was the first to accept that, indeed, there was extrajudicial killing. A way was to be found out how to deal with it. I do not want to take a partisan position on this matter. However, I take it seriously that nobody in the Executive at the highest echelons of Government---
(Sen. (Dr.) Machage): Please conclude. You have 30 seconds.
Mr. Temporary Speaker, Sir, it has become evident that police kill in two ways. In the earlier years, there was a mafia kind of killing; killing first Mr. Tom Mboya, Mr. Pio Gama Pinto and so on. There is a new pattern like perfect crime, for The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
(Sen. (Dr.) Machage): I see a lot of interest. We also have an equally important Motion to deliberate on. Therefore, try to save time. I have given you two minutes but if you can save one, I will be happy. Proceed, Sen. Sang.
Mr. Speaker, Sir, I want to take this opportunity to thank the Senate Minority Leader for bringing up this Statement. Willie Kimani is personally known to me. He was one year behind me in campus. When we were in school, we were student leaders together. Looking at the organisation he worked for, this is somebody who believed in justice. In this, he was handling the case not because he wanted to be paid but because he believed in the rule of law and respect for human rights. It is unfortunate that such kind of an individual would find himself in the situation he found himself in. Mr. Speaker, Sir, what is more saddening is that we have no doubt that this was done by police officers. As we speak, we are only hearing of three police constables. What about the Officer Commanding Police Station (OCS)? We are told that the three gentlemen were kept in a police station container the whole day. Where were the other police officers? Even as we ask for proper investigation, administratively, political responsibility must be taken. Even if it means going to sit with the police as a whole and the Cabinet Secretary (CS) in charge, we must be able to bring this to an end. Mr. Speaker, Sir, back in Nandi, there is a growing trend where police officers are colluding with criminals. When you get a situation where a thief colludes with a watchman or the person who is supposed to protect you colludes with the person who intends to harm you, where shall we head as Kenyans?
(Sen. (Dr.) Machage): Sen. (Prof.) Anyang’-Nyong’o
Mr. Speaker, Sir, I want to be very brief and to tell this House that nothing is going to happen because the trend is that nothing happens when there are extra-judicial killings. For example, during the post-election violence, a young man called Peter Adiyo in Langas was shot by a police man who took him to hospital and followed him there to finish him. He was seen and a rescuer brought him to Nairobi. Eventually he died because of that shot. The policeman was transferred to Ongata Rongai. He is still working with the police force to this day. Secondly, Maina Njenga’s wife and the people who were going to Naivasha to see Maina Njenga, on reaching Limuru, were gunned down gangland style. Nothing has happened to this very day. Thirdly, Onyango Kwega was gunned down by policemen riding on motorbikes at 10.00 a.m. in Kisumu. Up to this very day, nothing has happened. So, how do you think that something is going to happen this time? Nothing! This is because people in high echelons of Government have their hitmen in the police force. They use them to settle 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): Fortunately, no Member of this House has the capacity to shout like a wolf.
Mr. Speaker, Sir, I join my colleagues in condemning what happened to the three people who were killed in the last five days. It is a surprise to me because a policeman who is supposed to give you security is the same person who will turn around and brutally kill you like what they did a few days ago. I give my condolences to the families of these three men who died in a terrible way. We condemn this and I hope this act is an individual act and it is not about Jubilee, Orange Democratic Movement (ODM) or any other party. It is about all of us, as leaders to come up, stand up and condemn the act. I hope justice will be done and I believe now that they have been arrested, proper investigations will be done and justice will be seen to be done. I rest my case and condemn it.
(Sen. (Dr.) Machage): Sen. Obure.
Mr. Speaker, Sir. First, I want to convey my personal condolences to the families of the three. Secondly, this brutal and barbaric action has provoked the anger of the nation. This is not the first time this is happening. This issue of abductions is a common occurrence. On this particular occasion, I believe that the matter has received widespread condemnation because it involved a prominent human rights lawyer. About four years ago, a matatu driver was asked to stop by traffic police officers near Kamkunji Police Station and then the policeman took away his driving license. Later on, he discovered that that the police officer who had taken his licence came from Ruiru Traffic Base. The following day he went to collect that licence and upon doing so, was requested to give a bribe. He did not have the money and did not see the sense of giving a bribe. The following day he went and reported the matter to the then Kenya Anti- Corruption Authority (KACA). A trap was laid and the policeman arrested. The matter went to court and a date of hearing was set in which this young man was going to be one of the key witnesses. The young man stayed in Eastleigh and kept going to the High Court in Nairobi where the hearing was taking place, the young man then disappeared.
(Sen. (Dr.) Machage): Sorry, it is long. I wish you could conclude it in ten seconds.
Mr. Speaker, Sir, the man has since disappeared. The family has visited every morgue, police cell in the Republic and the young man has not been traced. We condemn these kinds of actions and we demand justice for the victims.
Mr. Speaker, Sir, I rise to support the Motion. From the onset let me send my condolences to the families and declare my interest. The young lawyer, Willie Kimani is my constituent, in my neighborhood in Kikuyu. Recently, there was a time the most dangerous thing to do in this country was to ride in a matatu . If you did so, more than five matatus would be carjacked in a day. When a probe was ordered, it came out that the hijackers were policemen. I have been a victim. 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): Sen. (Prof.) Lesan.
Mr. Temporary Speaker, Sir, first, I also join my colleagues in sending condolences to the bereaved families of those very brave Kenyans who met their death in very unfortunate circumstances. I believe the people who did that heinous act are cowards. This is because their target was the human rights lawyer but to conceal the evidence, they killed the taxi driver and the other person. That was deliberate in order to conceal the evidence. As the case continues, I am sure there will be further dillydallying in trying to conceal evidence for others who will be implicated. Mr. Temporary Speaker, Sir, with technology and forensics, we really wish that the case will go to the extent that we will identify the killers. I thank Safaricom so far in that they are giving us evidence. I am sure the evidence will go a long way to reveal and convict at least one person who has been committing heinous crime in this country. Mr. Temporary Speaker, Sir, I condemn the act of killing of the three Kenyans by the criminals.
Mr. Temporary Speaker, Sir, I also rise to condemn the killings. Today, this country is sad that when young people want to stop mafias or cartels in land and businesses of tendering, they are killed. We must stand and condemn that completely. 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, first, let me pass my message of condolences to the families of the three who were killed brutally by the police. This is really very sad. It is taking us back to the dark days of this country which is unacceptable. The police are supposed to protect the lives of Kenyans and deal with criminals. In this particular case, these were not criminals but Kenyans who were going about their business to work for their lives. Mr. Temporary Speaker, Sir, we always make noise when such things happen but I believe after this, the families will be left alone. I wish to appeal to the Law Society of Kenya (LSK), where I also belong, to do something to take care of the families and moreso the child that is left behind by Mr. Kimani. This is very sad and we should not accept it. Mr. Temporary Speaker, Sir, secondly and finally, the police are investigating themselves. We raised such an issue when I was at the Kenya National Commission on Human Rights (KNCHR). We cannot allow people to investigate themselves in this country. No evidence will come out and everything will be concealed. We need independent bodies to investigate these matters and make sure that justice has been done. This is really very sad and very serious and it will make young lawyers who are coming up to fear to carry out very serious cases like this. This is killing a profession. Mr. Temporary Speaker, Sir, we need to---
(Sen. (Dr.) Machage): Order, Senators, I have this important communication to make. Hon. Senators, it is with a heavy heart that I bring to your attention the demise of the late Leonard Patai Ndiema, the firstborn son of hon. Henry Tiole Ndiema, Senator for The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
(Sen. (Dr.) Machage): Hon. Senators, because of the importance of a very important Motion which is Order No.8, I will defer all statements until we conclude that Motion. CAMPAIGN AGAINST MANUFACTURE AND CONSUMPTION OF SECOND GENERATION ALCOHOL HARASSMENT OF BODA BODA RIDERS IN KAKAMEGA COUNTY COMPENSATION OF LAND OWNERS ALONG THE STANDARD GAUGE RAILWAY (SGR) ROUTE
(Sen. (Prof.) Kindiki): Mr. Temporary Speaker, Sir, I beg to move the following Motion:- THAT, ACKNOWLEDGING that the sovereign power of the People of Kenya may be exercised directly or indirectly through their democratically elected representatives and that the Peoples sovereign power shall be exercised---
(Sen. (Dr.) Machage): Order, this is an important Motion. What is happening with the technicians? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
(Sen. (Prof.) Kindiki): Mr. Temporary Speaker, Sir, I will not allege sabotage because this is a bi-partisan Motion. I am sure it is an ordinary disruption. Please, allow me to repeat. I beg to move to move the following Motion:- THAT, ACKNOWLEDGING that the sovereign power of the people of Kenya may be exercised directly or indirectly through their democratically elected representatives and that the people’s sovereign power shall be exercised only in accordance with the Constitution; RECOGNIZING that through pronouncements, sections of the Kenyan society have raised issues on the credibility, impartiality, integrity and independence of the Independent Electoral and Boundaries Commission (IEBC), the electoral processes and the electoral law; APPRECIATING the need to have the August 2017 general elections conducted by a body enjoying the broad confidence of most Kenyans; NOW THEREFORE in accordance with the provisions of Article 1(1) and (2) of the Constitution of Kenya and Rule 9 of the Houses of Parliament (Joint Sittings) Rules, the Senate resolves that:- (1)The two Houses of Parliament establish a joint select committee consisting of 14 Members, seven each from the two coalitions in Parliament. (2)The mandate of the said joint select Committee shall be to: (a) Inquire into the allegations against the IEBC commissioners and the secretariat; (b) On the findings of (a) above may recommend legal mechanisms for the vacation from office of the current commissioners of the IEBC and secretariat in accordance with the Constitution; (c) Recommend legal, policy and institutional reforms to strengthen the IEBC and improve the electoral system and processes so as to ensure the August, 2017 elections are free and fair and are administered in an impartial, efficient, simple, accurate, verifiable, secure, accountable and transparent manner; and (d) On the basis of the findings and recommendations in (a), (b) & (c) prepare a report and a draft Bill or draft Bills. The senate further resolves that:- (3)The joint select Committee shall report to Parliament within 30 days; (4)The leaders of the two coalitions agree to issue statements separately to support the final report and draft Bill or Bills; (5) The Majority and Minority leaders in Parliament will signify the approval of the final report and draft Bill or Bills by affixing their signatures thereon prior to presentation to Parliament; The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
Mr. Temporary Speaker, Sir, I beg to second this Motion. This is a bipartisan Motion. We have come a long way to reach where we are now. I start by sending a message of condolence to the innocent members of the public who have lost their lives on the journey to reach where we are. I also wish those who are recovering in hospitals a quick recovery. This Motion is a culmination of a process long, winding, protracted violent and diplomatic. I thank the interlocutors, the religious groups led by Bishop Korir of Eldoret together with Bishop Rotich of the Army, Cannon Karanja of the National Council of Churches of Kenya (NCCK) and all the other bishops of other evangelical churches together with the Muslim leadership. Above all, I thank two distinguished ambassadors to this country; the American Ambassador, Mr. Robert Godec and the British High Commissioner, Mr. Nic Hailey, who spent a lot of time shuttling between the two protagonists. Mr. Temporary Speaker, Sir, this is not an ordinary Motion. It is trying to bring sanity into the electoral system. You may recall that Kenyans lost lives pre-elections of 1993 as well as pre-elections and during the elections of 1997. They were then cheekily christened as tribal clashes, but we all know that the conflict was due to election. In 2007/2008, hell broke loose and the country nearly went into an abyss. We rediscovered ourselves as a nation and came back to where we are. In 2013, we went to elections and the outcome is a history that we all know and can read about. Everybody questioned the outcome of that election. Even those that were declared winners have privately said that they did not win. The manner in which we conduct elections will determine the future or the disintegration of the Kenyan nation. You may recall that during the conflict arising out of election in 2007/2008, we even started hearing belligerent statements such as cessation. Forget about “ Pwani si Kenya ” slogan which has been misconstrued to mean cessation. What the people at the Coast have been asking is: “Kwani, Pwani si Kenya?” People misinterpreted it to mean “Pwani si Kenya.” What they mean is that the Jubilee Government is concentrating all resources to the places where you come from. I stand here today to laud my brother, Sen. (Prof.) Kindiki, who is normally very measured. He does not get toxic. He is more sensible than many of his colleagues across the divide. We have talked about this Motion, and I am very confident that the leadership that we have given---
On a point of order, Mr. Temporary Speaker, Sir.
(Sen. (Dr.) Machage): What is it, Sen. Sang?
On a point of order, Mr. Temporary Speaker, Sir. Did you hear the Senate Minority Leader, a presidential aspirant, who some of us believe has very good chances to lead the CORD fraternity to take leadership, say that Sen. (Prof.) Kindiki is more sensible and less toxic than his colleagues, include some of us? We have a lot of tremendous respect for him. Is he suggesting that some of us are toxic? 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! Whereas in my own capacity, I have no latitude on that kind of training to assess the thinking of an individual on his own analysis on people’s behaviour and character, it might have been extreme to explain this verbally, but that is his opinion. If you do not reply to him, it will not hurt at all. Please, continue, Sen. Wetangula.
Mr. Temporary Speaker, Sir, I did not intend to hurt any body’s feeling. Where I come from, we have a common saying that a dog that is a thief, any time you raise a stick, it is the first to bark pwee pwee pwee even when you are not aiming at it.
(Sen. (Dr.) Machage): What is it, Sen. Sang?
On a point of order, Mr. Temporary Speaker, Sir. I did not intend and still do not intend to withdraw my potential support for the presidential candidate, Sen. Wetangula. However, he has almost directly shot at me as being toxic. Is he in order?
(Sen. (Dr.) Machage): Order, Sen. Wetangula. I am digesting this. I would like to advise the Senator for Bungoma that I could easily punish him under Standing Order No.110(e). Please, do not use your privilege to stumble on other Members’ feelings. Proceed.
Mr. Temporary Speaker, Sir, I believe the distinguished Senator for Nandi just wants to colour the debate. I welcome him. Debate must not be boring. It must have some light moments, a few irrelevancies and so on.
(Sen. (Dr.) Machage): Order, Sen. Wetangula. You are becoming extreme. Stick to the point.
Mr. Temporary Speaker, Sir, I salute Sen. Orengo and Sen. Murungi, distinguished colleagues in this House whom we all respect. It is little wonder that they have been chosen by both coalitions to co-chair this important Committee. We have also met the threshold that in Joint Committee of both Houses, each House must produce an equal number. We have seven members each. I have absolutely no doubt that the two will steer this Committee efficiently, effectively and deliver the desired results. I do not want to speak for long. We want to pass this Motion and set the team to work. I would like to point out that the current Independent Electoral and Boundaries Commission (IEBC) even when you want to give them the benefit of doubt, they fall under the category what we, lawyers, the distinguished Senate Majority Leader, young Sen. Sang, Sen. Orengo, Sen. Mutula Kilonzo Jnr. – we say the error is on the face of the record. For the current commissioners, the error is on the face of the record; their demeanor, conduct and utterances. They have been daring that they want to leave. We do not want to punish anybody if they are not culpable. We want a Commission that enjoys 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): What is it, Sen. (Prof.) Kindiki?
(Sen. (Prof.) Kindiki): On a point of order, Mr. Temporary Speaker, Sir. I seek your guidance. Should the Senate Minority Leader not be 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): He is completely out of order. I might be forced to invoke Standing Order No. 90(3). Let me read it for the purposes of the Senate Minority Leader to fully understand, despite the many years of experience that he has been in this August House. He was here five years earlier than me. Standing Order No. 90(3) says:- It shall be out of order to use offensive language whether in respect of Senators or other persons.
Thank you, Mr. Temporary Speaker, Sir.
(Sen. (Dr.) Machage): I could say it Kiswahili too.
Mr. Temporary Speaker, Sir, I understand both languages. I understand a lot of Luhya and a little French, Kikuyu, Kalenjin, Luo and Kuria. I am sorry if I have offended anybody but when you say somebody has a bloated image, it is not offensive.
(Sen. (Dr.) Machage): Order. Can you move away from that? It is a bit inferior to your status.
Mr. Temporary Speaker, Sir, let me move away from that and end by the following: Out of this Committee, we want to have an Independent Electoral and Boundaries Commission (IEBC) that will enjoy the full confidence of Kenyans from all walks of life. Whether a Kenyan is contesting for a Member of County Assembly (MCA), Member of Parliament (National Assembly or Senate) or presidential seat, he needs to enjoy the process by having an IEBC that enjoys that candidate’s confidence; an IEBC like the one in Ghana, where President John Dramani Mahama, defeated my friend Nana Akufo Ado. In fact, the two are my friends. I know them at a personal level. Nana Akufo Ado was my counterpart when I was Foreign Affairs Minister. In Ghana, they went for elections where there was a near tie and because there was an issue the deciding constituency, the IEBC equivalent of Ghana stayed the election for the next day where President John Dramani Mahama defeated Nana Akufo Ado by 23,000 votes only. The two accepted the results because the electoral body enjoyed the confidence of everybody. Mr. Temporary Speaker Sir, you cannot say this of our current IEBC or the Kivuitu - God rest his soul in eternal peace - Electoral Commission. That is why we are where we are. I urge this House to unanimously support this Motion so that we can get down to work, prepare for elections and have a peaceful election in 2017. You may have noticed some of our colleagues from this House, in fact, in today’s media, the distinguished Senator for Kirinyaga and I, had seen even my distinguished colleague my brother Sen. (Prof.) Kindiki--- 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, Members. When the Speaker is on his feet, you freeze on your seats. This is a very important Motion if you could just give it time and let it flow slowly into people’s hearts. I will repeat for the purposes of slow digestion.
Mr. Temporary Speaker, Sir, I rise to support this Motion. From the outset, I want to appreciate what has gone into the negotiations that led into setting up this Joint Committee. Mr. Temporary Speaker, Sir, elections and the body mandated to carry out elections is a very important issue in this Republic. It is an urgent issue, knowing very well that we have very few months to the next election. However, it is unfortunate that we have taken too long to have these discussions and sort out the issues of the IEBC. From the initial stages when the Coalition for Reforms and Democracy (CORD) insisted on negotiations to relook into these issues, I personally made it clear that it would be important for us to follow the law. Even as we demand for negotiations, discussions and engagement on the IEBC, it was important that it was based on institutions that are already in place and supported by the Constitution. I do not understand why it had to take three or four years for any coalition to appreciate that negotiations on the IEBC and The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
Mr. Temporary Speaker, Sir, I rise to support this Motion and to draw attention to the mandate of the select Committee 2 (c). While doing so, I would like to express my confidence in the Co-Chairs and my colleagues in the second liberation who have contributed tremendously to reforms in this country. 2(c) states that:- “Recommend legal, policy and institutional reforms to strengthen the IEBC and improve the electoral system and processes so as to ensure the August, 2017 elections are free and fair and are administered in an impartial, efficient, simple, accurate, verifiable, secure, accountable and transparent manner” I want to emphasis the issue of institutional reforms. The Committee must understand that institutional reforms are not internal to the IEBC. The institutional reforms refer to the political and constitutional context in which IEBC functions. We The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
What is your point of order, the Senate Majority Leader?
(Sen. (Prof.) Kindiki): On a point of order, Mr. Temporary Speaker, Sir, I am sorry to interrupt my senior in the academia, Sen. (Prof.) Anyang’-Nyong’o. With your indulgence, I beg to move a very short Procedural Motion given that we are approaching 6.00 pm:- THAT, pursuant to Standing Order No.30(2), the Senate resolves to extend the sitting of the House until the conclusion of the Business appearing under Order Paper No.8 of today’s Order Paper. 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
The second issue makes sense for we will then be able to finalise debate on this matter. Every Member will contribute to a maximum of five minutes with the exception of Sen. (Prof.) Anyang’-Nyong’o.
Mr. Temporary Speaker, Sir, in light of that Motion, I will be very brief and conclude. Given what is in the public domain and has actually been proven by court decisions in the United Kingdom (UK) and the Auditor- General’s report and volumes of writings that scholars have done on the IEBC, I hope the Committee will do its work expeditiously when it comes to Mandate No.8 (a)(b). Kenyans do not want to see anyone of those commissioners and the culpable people in the secretariat back in office. This would be an exercise in futility if that happens. Finally, I hope that the Committee will use the resources from the experts to quickly do a comparative review of electoral processes and look at various jurisdictions how electoral commissions are established, how they function, how they deal with issues of ethical responsibility and accountability, how results are announced, who announces results, what forms the context of final results so that in fulfilling mandate No.(c) in terms of an impartial, efficient, simple, accurate, verifiable, secure, accountable and transparent manner, we are not reinventing the wheel. Such efficient and verifiable mechanisms exist in other jurisdictions. By a quick look at comparative review of such things, we will be able to have a very good report that we can adopt so that in the year 2017, for the second time in the history since 1963, we shall have another free and fair elections in the Republic of Kenya in addition to the one we had in the year 2002. I beg to support.
Mr. Temporary Speaker, Sir, I thank the leadership of both sides inside and outside Parliament for including my name in this Committee. I hope that this Committee will be able to accomplish its mandate and come up with a report that is acceptable to all Kenyans. I do not want to say a section; I will say a report that is acceptable to all Kenyans. 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 support this Motion. It is important. It is clear from the events that have been happening lately that there were issues. As the saying goes, “where there is smoke, there is fire.” Half of the country would not have been protesting if there was nothing wrong. This exercise is important because this Committee will be given an opportunity to strengthen the IEBC. As CORD has been saying, dialogue is required and is the only way to go. The question also arises, 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 support this Motion. Since 1962, I have had the opportunity since 1962 to witness elections in this country. I remember that in June, 1963, I sat beside a transistor radio listening to the results of the election. From that time, I have had the opportunity to witness other elections, for instance; Kenya Africa National Union (KANU), Kenya Africa Democratic Union (KADU) and APP contest the elections in 1963. The results were announced and accepted throughout the country. I have since witnessed elections in the years that followed until 2007; the lowest point in my listening to results when the Chairman of the Electoral Commission then, Mr. Kivuitu, appeared on radio and announced that as Chairman of the Electoral Commission, he did not know who won the elections. This was perhaps the lowest in terms of conduct of elections in this country. He only did not declare the elections as a drawer which was of course going to be a very serious problem in the country if there is no winner who has been declared more so by the Chairman of the Electoral Commission. Mr. Temporary Speaker, Sir, from 1963 onwards until last year, there has been a continuous progression of the grumbling and dissatisfaction of the citizenry on the results of the election. We know what happened in 2007 when the public was not happy with the results of the election. Therefore, it is right that at this point in time, we need to look at the IEBC and review how it conducts elections. We know that election is a very serious issue in any country that desires to have a leadership. This Motion is so important in this country. We need to pay attention on it. This is the only way where we can escape possibilities of violence that erupts after election. 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 support this Motion. I want to thank the Coalition for Reforms and Democracy (CORD) for choosing me as one of the Members of the team of the Select Committee of fourteen. I also want to thank the heroes and heroines of the teargas Mondays without whose resilience we would not have had this wonderful Motion before this House. I want to send my heartfelt condolences to all those who lost their lives and those who got injured in the process but as they say, there is always a price tag. Mr. Temporary Speaker, Sir, my understanding is that we shall not be meeting to discuss the fate of the IEBC. It is gone. It is finished. It is over. We will only be discussing more important things like I wish to speak to. One, Kenyans must appreciate that why it is that I particularly with a lot of passion, was involved in this thing, the anti IEBC demos to the extent that on one occasion, I participated in Kisumu in the morning, drove very fast and participated in Nairobi. The passion is because of the handling of the presidential election by the IEBC of 2013. How on earth could it be that in the other elective positions like Women Representatives, Member of County Assembly, Senator, Governor and Member of Parliament (National Assembly), the cumulative total vote for each of those positions was 10 million and the one of the president, the cumulative vote was 12 million? Where did these two extra million come from? Mr. Temporary Speaker, Sir, where and why only for the President? Could it be that the 5.3 million votes that hon. Raila got was the real victory and the 6.7 million that The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
Thank you, Mr. Temporary Speaker, Sir. For this opportunity to contribute to this very important Motion and to say that all Kenyans have been looking forward to this moment, where we could resolve this matter and finally have an amicable way to sort out the issue of the electoral process and the IEBC. We know that many Kenyans were getting anxious on the manner that this issue was being carried forward and it is good to ultimately see that it ends up in an institution that is recognized in our Constitution even as we look on matters to do with the Constitution on issues to do with the electoral process. It is important to also note that many of us in this country both from the Jubilee and CORD coalitions were saying the same thing but expressing ourselves in different ways. At no time had the Jubilee Coalition said that there was no need for electoral reforms or expressed their interest in one way or the other but was only very categorical that we use the institutions that are in place. I am happy that finally, sanity has prevailed upon all of us and we are having this process happening in the precincts of Parliament. I have no doubt that the Members that have been chosen to sit in this Committee, the two co-Chairs Sen. Murungi and Sen. Orengo, have immense experience, they are distinguished lawyers in this country and they will look into the mandate of this Committee. The only sad part is that, I know there is a third in terms of gender balance and that is not something that we just talk about because we want just want to talk about it, but it is something that is in our Constitution. We are dealing with a constitutional 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. Sen. Lesuuda is making a very important point that you should have heard.
Mr. Temporary Speaker, Sir, I hope you are not bringing the bullfighter to my attention.
You may restate your point because it was very important.
Mr. Temporary Speaker, Sir, as I conclude on this matter because of time, it is important that next, the two-thirds of the other gender should sit in such a very important committee. I am sure that they are also equal to the task. I want to speak on issues to do with electoral process. In any country, matters of elections are very emotive because people want to have trust and confidence in the whole process of elections. That is like what we were talking about concerning the police. It is more about building the confidence and people having trust in certain institutions. I hope that the Members of this Committee will look at this matter in a critical manner but not party politics if we really want a credible process to happen in 2017. I also think that 30 days are adequate so that whichever way it goes, then the process of preparing for the next general elections will not be interfered with. Mr. Temporary Speaker, Sir, it is also important to note that the mandate that needs to be looked at so that we do not have any quagmire and gaps that we will need to sort out later. This Committee will have to look at all those matters and what happens if the commissioners have to go---
Mr. Temporary Speaker, Sir, I will be quick. First, I want to thank CORD for appointing me to sit in this important Committee. Without saying more, the mandate is extensive. I have just been quietly telling my colleague here that I hope we will not engage or boggle ourselves into enquiries on the IEBC but we will concentrate on more fundamental issues of ensuring that we have a verifiable, accurate and quick election. Mr. Temporary Speaker, Sir, I have been privileged to have acted in election petitions. I participated in 17 of them in 2003 including the one for the Deputy President, Hon. William Ruto, where I represented him. I represented people in four petitions in 2007 and three in 2013. The elections in this country have been a joke throughout. I think that is the most important aspect. 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 want to support this Motion. I appreciate that we have come back to our senses as politicians. I remember when the issue on the IEBC started, the first cry was why can we not do the process through Parliament. If we had started earlier and agreed on the numbers and the method, we would have already sorted out this issue. Therefore, I thank my brothers and sisters from the CORD for appreciating that the institution of Parliament is key in terms of taking forward our country with the new dispensation that we have. Mr. Temporary Speaker, Sir, having said that, it is also important to note that Kenyans are looking at us. I believe what the Senator for Makueni has just said is what The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
On a point of order, Mr. Temporary Speaker, Sir.
What is your point of order, Sen. (Dr.) Khalwale?
Mr. Temporary Speaker, Sir, is the distinguished Senator in order to use the figures that I have given using what she found on the website of Independent Electoral and Boundaries Commission (IEBC) prepared by IEBC, when my source for the figures that I gave was electronic data bundle that was given to the lawyers of Hon. Raila after the court ordered that IEBC to do so? On adding up the data bundle, it brings up the variance of 2 million votes for the presidential election alone. Is she in order to use the evidence given by the thieves when we are interrogating the behaviour of the thieves of our ‘cows’ called votes?
Mr. Temporary Speaker, Sir, if he will not agree with this, then all of us are here illegally. Therefore, we are all thieves because we stole from those who lost.
Order, Sen. Elachi! You are trading on dangerous grounds. You have given us contradicting figures. Sen. (Dr.) Khalwale, you also gave us some figures. I direct that the two of you submit the sources of the information to this House. Both of you should table the documents that you have so that we can establish the veracity and accuracy of that information.
Mr. Temporary Speaker, Sir, I must thank you. I want to be on record that on Tuesday at 2.30 p.m. next week, I will bring that evidence. We got it following up a court order---
Mr. Temporary Speaker, Sir, I will table it tomorrow in the House.
I direct that both documents be tabled at 2.30 on Tuesday, next week. Sen. Elachi, you have one minute to conclude. 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, if we want to heal this country, it is important for all of us, as we move forward, to learn from the past. I have pleaded with IEBC commissioners to resign on their own volition so that we concentrate on building this nation.
Mr. Temporary Speaker, Sir, thank you for giving me the opportunity to support this Motion. This is an important and a landmark Motion for our country because it is after the culmination of very serious events that occurred in our country that we have arrived at this decision. I, therefore, rise to support it. First of all, I would like to commend the CORD principals, hon. Raila, hon. Kalonzo and Sen. Wetangula. I would also like to commend Sen. Muthama and Sen. Orengo for ably steering serious protests against the IEBC that have led us to this dialogue. I also commend Sen. (Dr.) Khalwale who was even imprisoned for championing this matter.
Order, Sen. (Dr.) Khalwale! What you have just done is completely out of order. Since you are on your way out, please, take note. Proceed, Sen. Ong’era.
Mr. Temporary Speaker, Sir, while we are supporting this select Committee, I hope that it will not bog itself down with the issues of 2(a) which is inquiring into the allegations against IEBC. We do not want to know who ate what part of the chicken be it the drumstick or the back. We are particular about---
What is it, Sen. (Prof.) Kindiki?
(Sen. (Prof.) Kindiki): On a point of order, Mr. Temporary Speaker, Sir. Is Sen. Ong’era in order to suggest that this Committee should never care to find out whether the allegations against the IEBC are true or not? Is she in order to suggest that this Committee should simply condemn the IEBC unheard and regardless?
Mr. Temporary Speaker, Sir, had the distinguished professor waited for me to complete my sentence; he would have known what I am arriving at. We are concerned about item (b), to find out a legal mechanism on how to deal with the current IEBC. Looking at the key words for this Committee should be impartiality, efficiency, accuracy, verifiable, secure and accountable system. We want an electoral process that is independent and can assure us of a level playing field that is free and fair. I am not saying that item 2(a) is not necessary. However, those are issues that the court will determine as to who ate which part of the chicken be it the drumstick or the back. Mr. Temporary Speaker, Sir, we do not want this Committee to be bogged down with issues that should be left to the purview of courts. We want this Committee to give us a report that can jumpstart and accelerate the elections to be done in August 2017. We do not want the Committee to be bogged down by non-issues. I can see the professor agreeing with me.
Sen. Ong’era, you have not responded to the point of order. Item (b) says on the findings of (a). Are you suggesting that (a) which is supposed to be established before (b) is addressed is a non-issue?
Mr. Temporary Speaker, Sir, I am merely highlighting what is important to Kenyans right now; the issues that Kenyans really need. That is why I am The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
What is it, Sen. (Prof.) Kindiki?
(Sen. (Prof.) Kindiki): Mr. Temporary Speaker, Sir, I am sorry to interrupt Sen. Ong’era. I like the last part where she says that is her opinion which should have settled the whole issue. However, in my view, for clarity, the Senator should be directed by the Chair to clarify that there is no hierarchy of mandate. This mandate is all inclusive and in fact, (d) depends on the findings in (a).
I was going to rule you out of order, Sen. (Prof.) Kindiki. You are the Mover of this Motion. The way you worded it, clearly there is hierarchy that you have to address (a) and on the findings of (a) then (b), (c) and (d). So, being the Mover of the Motion, you are completely out of order to mislead this House. Therefore, Sen. Ong’era, there is a hierarchy on (a) but you are highlighting your opinion.
Mr. Temporary Speaker, Sir, I have just been confirmed right that there are important issues that need to be looked at where the elephant is in the room and there are other issues where the elephant is not even in the room. 2(a) is where the elephant is outside. The choice of distinguished hon. Senators and Members of the National Assembly is a very good. I commend the two coalitions for choosing these able men and women. I believe they will deliver. It only saddens me that in terms of the gender threshold, we were not able to achieve it but be it as it is we are happy to see that at least we have three distinguished and hon. ladies who will are equal to that task. I also want to---
Order, Senator. I will add you half a minute.
Mr. Temporary Speaker, Sir, let me also take this opportunity to congratulate the leaders of the two coalitions for seeing sense and agreeing to have a dialogue. I congratulate the CORD co-principals and the President of the Republic of Kenya and his deputy for agreeing that we need to have dialogue in this country. Had we agreed on this, three years back when we raised this issue, we would have not had to suffer all the problems because we have lost lives. Therefore, I commend these leaders. Let us follow and pursue the path of peace. It is what can build this country. With those remarks, I beg to support.
Mr. Temporary Speaker, Sir, I also rise to support the Motion as presented to the House. I express my confidence especially in the leadership of this Committee. I have all the assurance from the past records of the Senators that they will prosecute the matter in their hands with proper legal confidence. However, from the outset, I believe that the work of this Committee will lead them in many times at the boundary of asking themselves serious legal and constitutional questions. 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. Wamatangi. You do not have the luxury to read the sentence selectively. It says, “in accordance with the Constitution.” So, you are reading half the sentence and leaving out the aspect of “in accordance with the Constitution.” Are you sure that does not address what you are raising?
Mr. Temporary Speaker, Sir, I was not even half way. I wanted to lay my case very well. However, in a nutshell, it behooves us that we, politicians, must also realise that we are stakeholders in a larger community where there are other stakeholders. The political will and the intentions of politicians should not override the intentions of the rest of the country. More so, we also must agree to be bound by the Constitution. I am short of time, I would have required more time to prosecute my point of view and what I think but let me summarise by saying that I believe that once this Committee sit and come up with a Bill, as politicians, we would want to know if this Bill will be a substitute for the provision, that, in the process of removal of commissioners, then that a petition must be put forward and debated in this House. Will that Bill be 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. Sang): Senator Dickson Daniel Karaba,
Chairman Committee on Education and Senator Kirinyaga County.
Thank You, Mr. Temporary Speaker, Sir. In absence of any other contributor, you can extend my time to maybe 15 minutes until we get the next contributor coming around. I am happy to be here and support the Committee, and wish that what prompted this Committee to be formed should not be used as a precedent to prompt other commissions to be under surveillance. In this case, I am imagining that we are not going to use the same method which was used to have a committee formed and discussed in the Senate and extend it to other constitutional committees. I hope it will not happen. Secondly, I am a victim of what is called the Independent Electoral and Boundaries Commission (IEBC). I remember in 2007, I had won the elections. The same IEBC we are discussing discussed my fate through Judge Kriegler and found that I had won because the Returning Officer even apologized to the Commission that he had made a mistake by announcing the wrong person. If this is the same IEBC that we are discussing, then it should have gone a long time ago, because it is the one which made me stay out for five years without even appearing in the Tenth Parliament, having won. If that is what we are discussing, to have credible IEBC, then I support the Committee. I hope that they will not only sit for the 30 days but they should even be confirmed to be there even after election, if they will all be elected. Mr. Temporary Speaker, Sir, it is important also to also note that once IEBC or a member in the name of Returning Officer makes a mistake and it is confirmed that the mistake is theirs, they should own it so that we do not go into unnecessary costs of going for a by-election like the way it happened in my case. If it was not for the mistake that was made by the Electoral Commission, I would have been declared the winner of my constituency in the 2007 elections but it never happened. So, I hope that this Committee might also find it necessary to divulge a bit and come up with some possible amendments to the electoral laws so that if a situation like that one is to happen, somebody should not be seen like he can be denied the opportunity to represent his people just because somebody in IEBC has made a mistake. I am holding the Electoral Commission responsible for not declaring me a Member of Parliament in the year 2007, for five years. It also important to note that the IEBC should be responsible for maintaining peace and tranquility in this country, in the sense that when it comes to nominations, there are some areas where nominations will be like the elections. Going by the recent Bill that was assented to the other day, it is like now we are having blocs; one in CORD and the other one in Jubilee. If somebody gets a nomination in some areas in CORD, that is the end. It is similar in Jubilee. I am asking this Committee and the IEBC to take note of that. The nominations should be taken seriously as if there were no other elections except that. In the absence of IEBC not taking the nominations seriously, we are going to The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate
Sen. (Sang): Thank you, Mwalimu Senator. There being no other interest to contribute on this matter, I call upon the Mover to reply.
(Sen. (Prof.) Kindiki): Mr. Temporary Speaker, Sir, I beg to move.
Hon. Members, this is not a matter affecting counties. Therefore, we will vote by acclamation.
Hon. Senators, it is now time to interrupt the business of the Senate. Therefore, the Senate stands adjourned until tomorrow, Wednesday, 6th July, 2016, at 2.30 p.m. The Senate rose at 7.00 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