Hon. Senators, I have a communication to make on this Special Sitting. Hon. Senators, let me take this opportunity once again, to welcome you to this third Special Sitting of the Senate during the current August recess. Thank you for finding time from your busy schedules to attend the sitting. I am sure each one of you has scheduled county events. It is because of the value you attach to the business of the Senate, especially the consideration of the pieces of legislation like the one before us today, that you have created time to be here. Hon. Senators, by a letter dated 18thAugust, 2016, and pursuant to Standing Order No.29(1) of the Senate, the Senate Majority and Minority Leaders, supported by 16 Senators, requested the Speaker to convene a Special Sitting of the Senate to consider:- (1) A Report of the Joint Parliamentary Select Committee on Matters Relating to the Independent Electoral and Boundaries Commission (IEBC). (2) Bills with constitutional deadline of 27th August, 2016. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I beg your indulgence. I request that you give me a little bit of time to lay my papers in the course of the sitting. The papers are at the Speaker’s Office.

Sen. Moi, how long do you think that will take?

Mr. Deputy Speaker, Sir, half an hour.

Okay, let us see how it works out. Next Order. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

(Sen. (Prof.) Kindiki): Mr. Deputy Speaker, Sir, I beg to give notice of the following Motion:- THAT, pursuant to Standing Order 28 (4), the Senate resolves to alter its Calendar in respect of Part III of the Fourth Session for the sittings scheduled to resume on 13th September, 2016 instead commences on 20th September, 2016.

Who is giving the notices of Motion on (a) and (b)?

Sen. Moi.

So, Sen. Moi, you cannot give the notices of Motion until you have laid the papers. Again that will be deferred until we get the papers to be laid on the Table. I will defer Order No.2 and No.3(a) and (b) until the Papers to be laid are brought to the House. Next Order!

Sen. Wetangula, what is your point of order?

On a point of order, Mr. Deputy Speaker.We are getting concerned. This is a Special Sitting where everything must be meticulously done in accordance with the Order Paper. If it is listed that a Notice of Motion will be given and Papers will be laid on the Table of the House yet the distinguished Senator for Baringo County is saying that the Papers are held up at the Speaker’s office, this raises concern. A Special Sitting is not an ordinary sitting where we can juggle and adjust the programme as we wish. It is very strict. Why are the documents not here? If we are not ready to receive this mediation report and the notice of Motion, why did we list it in the first place? This special sitting was gazetted. Having been gazetted, it obligated the office of the Speaker and the Clerk to make sure everything is properly done.

, Sen. (Kembi-Gitura): Sen. Wetangula I hear you, but the papers are not here. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

(Sen. (Prof.) Kindiki): Mr. Deputy Speaker, Sir, I beg to move:- THAT, the Senate adopts the Report of the Mediation Committee on the Natural Resources (Classes of Transactions subject to Ratification) Bill (National Assembly Bill No. 54 of 2015) laid on the Table of the Senate on Thursday, 18th August, 2016 and pursuant to Article 113 of the Constitution and Standing Order 155 (3) of the Senate, approves the mediated version of the Bill. Ordinarily, this Motion should be moved by the Chairperson of the Mediation Committee, in our case, the Vice-chairperson, since in this particular mediation, the chairmanship was with the National Assembly. Generally speaking, I have seen the Report which is available because it was laid on the table of this House, the last time we were here. Allow me to say three things in support of this Report. Mr. Deputy Speaker, Sir, first, I thank the Members of this House and of the National Assembly for expediting this process. The Mediation Committees has been working very hard, not just on this Bill but on all the the other Bills with constitutional deadlines and it is only two reports which are outstanding. They have been called this morning and we are hoping to process today because 27th of August is on Friday this week. It is incumbent that we are able to adopt or pass this Motion today as well as the other Motions that relate to Bills with constitutional deadlines. Secondly, given the sensitivity of these transactions and their ratification by Parliament, this Bill in its mediated version will go a long way in strengthening the governance of our country in the area of natural resources. We are coming from an era where Government officials and functionaries wielded huge powers over natural resources which should not be the case. This Bill, therefore, vests the power of supervising access to natural resources and their exploitation on the people’s representatives, which is 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. Deputy Speaker, Sir, I beg to second the Motion. The clauses that were considered are just about two or so. However, they are so fundamental that I laud the Committee for bringing a report that adds immense value to the original Bill. This is because, unless the law is specific and clear, we have always had a situation where either House is bypassed or ignored. For example, we have the Committee on National Security and Foreign Relations where you and I and the Senator for Garissa sit, where the National Assembly cordoned off the Senate in the approval of international Treaties signed by the Government. This mediated version is important to the extent that Senators represent counties and their governments and whatever agreements are signed by the executive affect resources in the counties. Mr. Deputy Speaker, Sir, in the bad old days, people just used to sit in Cabinet offices and sign away national wealth to themselves and their friends. That is how if you look at this country today, all the rich people have been civil servants, Permanent Secretaries(PS), directors and all manner of people. We have gone a full cycle. Now the new wealthy people are sons of those people. We must move away from a situation where an individual given an office to work for the people of Kenya works for himself. That is why Parliament must be involved. The country is moving into an era of petroleum, gas and mineral wealth economy. The representatives of the people in both Houses must be involved. Just as the Senate Majority Leader has said, the approval of these agreements should not be a ritual or rubber stamp. Parliament must scrutinize every clause and content of the agreement and reject what is onerous to the people and the interests of the country and approve the good. That is why I agree with the mediated Report. They rejected the version that was approved earlier that was creating a situation where there 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.

Hon. Senators, I will now propose the question.

Mr. Deputy Speaker, Sir, I rise to support the mediated version of this report. What was in contention and what had been passed by the National Assembly had created a bottleneck where the legislators appeared to be interfering with something they should not interfered with or seek to approve something that we should not interfere with. In fact, I was one of the persons who had proposed the amendments which were moved by the Committee to amend the schedule which had a problem. I am glad that the Mediation Committee has seen it fit to agree with part of the recommendations and amendments, so that we do not create a bottleneck for classes of persons who wanted to do honest research and who were otherwise going to be impeded by what appeared to have been a condition precedent of approval by the National Assembly. Mr. Deputy Speaker, Sir, the mediation under the Constitution is now getting root to the extent that I dare say again, like I have always done, that there should be no fear by our counterparts in the National Assembly to deal with Bills passed by the Senate because the provision to mediate where we disagree is always there. I have not heard of any Bill that has been rejected in totality at mediation. In very many words, that means that what we disagree with is much narrower than we appear to be. Therefore, I support the Committee and the mediated version in its entirety. Thank you.

There is no other request for the Floor. Senate Majority Leader, would you like to reply?

(Sen. (Prof.) Kindiki): Mr. Deputy Speaker, Sir, I rise to request your guidance under Standing Order No.1. This being a special sitting, we are hoping that very soon, we will be in a position where the question can be put and a vote taken on this matter. Under Standing Order No.1, I request that you put aside the putting of the question before I reply because if I reply, then that request will come under Standing Order No.54(3) and it will lead to some technicalities which we might not salvage, given that this is a special sitting. 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 accept your request. I will defer the putting of the question.

Next Order!

Mr. Deputy Speaker, Sir, I beg to lay the following Papers on the Table of the Senate today, Wednesday, 24th August, 2016:- The Report of the Mediation Committee on the Petroleum Bill (National Assembly Bill No.44 of 2015). The Report of the Mediation Committee on the Energy Bill (National Assembly Bill No.50 of 2015).

Let us go back to Order No.3 which we had deferred.

Mr. Deputy Speaker, Sir, I beg to give notice of the following Motions:- ADOPTION OF THE MEDIATION COMMITTEE REPORT ON THE PETROLEUM BILL THAT, the Senate adopts the Report of the Mediation Committee on the Petroleum (Exploration, Development and Production) Bill (National Assembly Bill No. 44 of 2015) laid on the Table of the Senate on Wednesday, 24th August, 2016 and pursuant to Article 113 of the Constitution and Standing Order 155 (3) of the Senate, approves the mediated version of the Bill. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Next Order.

(Sen. (Prof.) Kindiki): Mr. Deputy Speaker, Sir, I beg to move the following Motion:- THAT, the Senate adopts the Report of the Mediation Committee on the Forest Conservation and Management Bill (National Assembly Bill No.49 of 2015) laid on the Table of the Senate on Thursday, 18th August, 2016 and pursuant to Article 113 of the Constitution and Standing Order 155(3) of the Senate, approves the mediated version of the Bill. Mr. Deputy Speaker, Sir, this is also an important Bill which has gone through successful mediation. It will be recalled when the Forest Bill came to this House, the Senate made significant amendments to that Bill. I am happy to note that the Mediation Committee did not differ significantly with those amendments. The Report of the Mediation Committee only touches on four to five provisions; Clause (9), Clause (72), Clause (75), Clause (77) and the Third Schedule. Mr. Deputy Speaker, Sir, just to highlight two or three of those provisions; first, under Clause (9), the Mediation Committee is suggesting the inclusion of a New Clause (9) (1) (3a) to provide for a new ground for disqualification of members to the Board. It says: “A person shall not appointed to the Board if the person has been convicted of a criminal offence and imprisoned for a term exceeding six months - which is a standard legal requirement - without an option of a fine; a member of a governing body of a political party - to discourage people who are actively involved in political party administration not to serve in the Board - has previously been removed from public office for contravention of provisions of the Constitution; is an discharged bankrupt or violates the Constitution or any other written law.” There is also Clause (72) which provides for the inspection by the public of the information that will be under the custody of the Chief Conservator of Forests. It provides: The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I beg to second. It is a mediated version. I believe our teams put in their best.

Do you always notice that as soon as the distinguished Senator for Elgeyo-Marakwet walks into the Chamber, there is total disorder all the time? Mr. Deputy Speaker, Sir, while I support this mediated version, it will always be good for the people we sent to mediation to come here and explain the reason or the rationale for arriving at what they arrived at. This is because I do not see Sen. Kivuti here - Sen. Chelule has just walked in - or those who went for mediation. I have failed to understand why, for example, the new Clause (9), and I have discussed this with a few colleagues including the Majority Leader, a conviction of a criminal offence and imprisonment for a term exceeding six months. We must always qualify what kind of offence we are talking about. If somebody, for example, Mr. Speaker is convicted of an affray and convicted and sent to jail for six months, how on earth does that disqualify you from sitting on a board about forests? I cannot understand this. Under the new Constitution, we have even said clearly and rightly so that prisons now are not for punishment but for correction; they are correctional services. So if you have been taken to prison and you have been corrected, why would you be denied an opportunity to sit on a Board about forests? In any case, we have convicted criminals elected to Parliament, to the Senate and all over. How would we deny people an opportunity to sit in the boards? I do not think this is a good law. As the Majority Leader has said, we have to rethink about these things and probably bring amendments to the law in the future. We have all manner of people who have transgressed the law. The other day, you saw a Minister hounded out of office for theft, running around the streets with young people and is now headed towards becoming The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker Sir, point of information. In fact I was complaining that the Committee members are not here.

There is something that has always intrigued me. When a Senator says “point of information” and the Senator being informed accedes to be informed, is it automatic without leave of the Speaker that somebody just starts giving the information?

Mr. Speaker, Sir, yes sometimes.

Okay; the Speaker says he is not going to be given the opportunity to do so.

I noticed that somebody rises on a point of information, Sen. Wetangula says he wants to be informed and the Senator just walks to the Dispatch Table, is it right? Rules need to be obeyed. It is just like a point of order, only that the leave has to be given by the Speaker. So I do not want the House to be assumed in its rules and the way it proceeds. Sen. Khaniri, you may give the information.

Mr. Deputy Speaker, Sir, I was a Co-Chair to the Mediation Committee and I am sorry for coming in late. I should have been the one moving this particular motion. I want to thank the Leader of the Majority Party for moving it on behalf of the committee. I want to inform the honorable distinguished Senator from Bungoma County, who is my leader, that the Mediation Committee did not delete any forest from gezettement. 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 also heard Sen. Wetangula saying that we are now standing at 2.3 per cent of forest cover when I thought we have about 7 per cent. What is the correct position, Sen. Khaniri?

Mr. Deputy Speaker, Sir, I know that our target is to get to 10 per cent and we are not there. I may not have the exact figure but I can check and report back to the House.

Thank you.

Mr. Deputy Speaker, Sir, we all live in this country and you know even if you do aerial survey, there are no new forests being developed in this country for the last 10 years or so. If anything, we have been depleting forests everywhere; Mount Elgon, Aberdares, Mau Forest, Embobut and so forth. You remember my distinguished colleague and friend was evicted from the forest.

On a point of order Mr. Deputy Speaker, Sir. I have no doubt that the Minority Leader is right, even if he did not name me, that I was forcibly evicted from my home in Embobut forest; and that is a fact I have admitted in the past. Is that not the reason why the forest cover has increased? Is the Minority Leader confusing forest cover with gazetted forest because the forest cover in the country is higher than gazetted forest?

Mr. Deputy Speaker, Sir, let me respond to the point of information. I stand guided and informed by the Vice Chair of the Committee and if there were double entries and this is an editorial; in law we say res ipsaloquitur meaning things speak for themselves. They should have said so, so that we do not belabor points that are not relevant. So, in future, I believe this can be clearer than it is. If these are double entries that are being corrected, then I stand corrected. I want to finish by informing the Chair that the quality and quantity of our forest cover is public information. Sometimes exaggerations are made to attract donor funding and so on; but we know we are low in forest cover. I beg to second.

Mr. Deputy Speaker, Sir, I would like to support this mediated version of the Bill. It is important that as a country, we try to protect our natural resource. 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. Deputy Speaker, Sir. I rise to support this Bill which is very timely because it comes at a time when we have counties. Counties are in charge of land, agriculture, water and the environment as well. These are four critical variables in dealing with forests. There can be no better level of government to be in charge of environmental control, to fight environmental degradation and to work for afforestation if it is not the county government. However much we plant trees, if there are other things going on which lead to environmental degradation which lead to the depleting of water resources, then our forests will not be there. Afforestation and planting of more trees must go hand in hand with environmental control and preservation of water catchment areas and forests. At the moment, there is no other county among the 47 counties which have adopted a The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Order! Sen. Wetangula, you were accusing Sen. Murkomen of being disorderly in the House not more than 30 minutes ago. Let us have some decorum in the House. We should consult in lower tones.

Mr. Deputy Speaker, Sir, I am tempted to think that the Minority Leader ate Kalanjiri yesterday. He could consult me on what Kalanjiri is but--- We should set some standards and targets for counties. There is no need of talking about these things in the abstract. Laws can be very good on paper, but they are only important if they are translated into reality. The only way that I know as a planner on how to do so is to come up with a programme with targets that people should meet. As we used to say in NARC; the Coalition Government, that which is done gets measured. If we will claim our forests and have affrorestation, we should have a programme of The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I rise to support the adoption of the amended version of the Bill. As stated earlier on, I had the privilege to co-chair the Mediation Committee together with Hon. (Dr.) Wilbur Otichillo from the National Assembly. We had debated the Forest Conservation and Management Bill extensively and what we are doing today is just to adopt the mediated version. Having been a co- chair and your representative in the Mediation Committee, I owe you an explanation of what transpired. It should be noted that this Bill originated from the National Assembly and the Senate had made very many amendments. In fact, the Senate had amended a total of 23 Clauses. I wish to report that the National Assembly agreed with almost all those amendments save for three clauses plus the Schedule that Sen. Wetangula had earlier alluded to. The first clause that the National Assembly made an amendment to the amendments that we had made was the one to do with the circumstances under which a person shall not be eligible to sit on the board. All the conditionalities that the Senate had put were accepted, but redrafted. One more conditionality (e) was added; ‘a person who violates the Constitution or any other written law.’ Therefore, essentially, they agreed with us but just redrafted the conditionalities or circumstances which the Senate had already enumerated. The other issue was the Schedule, which I have explained earlier. The Senate had proposed deletion of some gazetted forests. The reason for this was because those particular forests were appearing twice. When we explained to them they agreed with us and we deleted those particular forests, but they still remain because they were appearing twice. They appear on the list of gazetted forests, but just once. The last issue that they disagreed on, and which we consented to as a team from the Senate, was that the Senate, in our duty to defend the interest of the counties, had insisted to put a legislation that the relevant counties will at all times be furnished with pertinent copies of all the relevant documents maintained in the office of the Chief Conservator of Forests. This particular amendment was rejected on the premise that this information held by the Chief Conservator of Forests is public knowledge and, therefore, 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. Deputy Speaker, Sir. The Member on the Floor is making very important contribution, but we can hardly hear him because of loud consultations going on around him.

Does that have to do with the Senator for Mombasa at all?

Let us have consultations, but in low tones, so that we can follow the debate on the Floor. Proceed, Sen. Khaniri.

Mr. Deputy Speaker, Sir, the only aspect that we lost in the mediation was that we had moved an amendment as the Senate, so that all the relevant counties are furnished with pertinent copies of all relevant documents maintained by the Chief Conservator of Forests. The National Assembly argued that under the Constitution this is public knowledge and the counties are at liberty to access this particular information. Therefore, it would be cumbersome for the Chief Conservator of Forests to furnish all counties with all these documents. We let go that one. Otherwise, we won all the amendments that the Senate had included in the Bill. I assure the House that the spirit of the Bill was maintained. I believe that if we pass this mediated version of the Bill, it will go a long way in ensuring that we increase our forest cover, as advocated by my Minority Leader. I plead with Members to support and approve this version of the Bill. Thank you, Mr. Deputy Speaker, Sir.

Mr. Deputy Speaker, Sir, I stand to support this Bill that contains very important provisions towards conservation of forests, which are the natural resource for our country. As we move towards conserving forests, we should not lose sight of the fact that we are doing this for the benefit of the people. Forests principally exist for the benefit of the people. Forest conservation should not be viewed at any time as a way of penalizing or punishing them. Forests in this country exist in specific locations as indicated in the Schedule; the gazetted forests. Before any gazettement was done, there were already indigenous people residing there. Unfortunately, when gazettements were done no regard was given towards their wellbeing, in terms of being compensated with land elsewhere or any other way. Even as forests were gazetted, the indigenous communities in some instances were allowed to reside there and eke their livelihood. As we move to the next phase, we believe 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.

Mr. Deputy Speaker, Sir, I support the Motion but with a rider. Apart from the gazetted forests which we knew many years ago, there are forests which were maintained by county councils and the communities who lived within the forested areas. Particularly, I would like to talk about Bota Forest. The last speaker talked about Boni Forest which is also part of the Garissa County. This forest is the only forest in the Northern Kenya and it extends up to Somalia. Unfortunately, while the local people have always coexisted with this forest without any damage - they only use the resources during drought to graze their livestock - the Ministry for Environment and Natural Resources, unfortunately without legal basis and without carrying out public participation went ahead and gazetted the Bota Forest as Government gazetted forest. We object to that and the community has already made an appeal to the National Assembly. I am glad the National Assembly Committee on Environment and Natural Resources went to Ijara to receive the views of the people. We are following it keenly The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I rise to support the report on the mediated version of the Forest Conservation and Management Bill in an attempt to enforce Article 69 of the Constitution. I have a question on the amendment that the Senate had proposed. In my own view - though I can be corrected - the wisdom of the Senate including Clause72( 1) (a), where we had proposed that the relevant counties will at all times be furnished with pertinent copies of all relevant documents maintained by the Chief Conservator of Forests, which was not agreed upon, raises questions. The proposal that a record be kept by the Chief Conservator of Forests and accessible to the public is not the same and cannot be the same with the view that the Chief Conservator of Forests would submit records of forests cover and other records to counties. My view is supported by a resolution of this Senate that forest management be devolved in its entirety to counties. Mr. Deputy Speaker, Sir, although our Committee in its wisdom acceded to that amendment, the amendment does not satisfy that Clause that the county governments are given a role. From the reading of the Bill, the Chief Conservator of Forests is an officer of the National Government appointed by the National Government and reporting to the National Government. The portion where this function is now devolved to counties, the Chief Conservator of Forests should have been given a responsibility to report to the respective county governments. The resolutions we have made; devolving this function and management to counties has been given with one hand and taken away with the other in the refusal by the Committee to accede to the amendment to Clause 72. Otherwise, I am happy that this Bill is now out of the way. Article 69 can now be enforced. There are very few counties that have achieved Article 69 in terms of maintaining 10 per cent of tree cover. Nyeri is at 17 per cent, Machakos is at two per cent and Makueni is at 11 per cent. That is why we are fighting with people who are harvesting sand as if the world is coming to an end. Mr. Deputy Speaker, Sir, therefore, I hope that this Bill and this person called the Chief Conservator of Forests would not become the chief logger. I am on record as having requested the Committee to summon the Cabinet Secretary on the lifting of the moratorium on harvesting of trees. That request is still outstanding. While that was going on, some people who are known invaded the Mau Forest and are continuing to log. I hope The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

(Sen. (Prof.) Kindiki): Mr. Deputy Speaker, Sir, I beg to move. I do not know whether Standing Order No.54 (3) applies.

What did you do with the last one?

(Sen. (Prof.) Kindiki): Mr. Deputy Speaker, Sir, I requested your guidance under Standing Order No.1. Likewise, I request that you put aside the putting of the question so that it can be considered alongside the other agenda for voting.

It is so ordered.

Next order! ADOPTION OF THE MEDIATION COMMITTEE REPORT ON THE PETROLEUM BILL

Mr. Deputy Speaker, Sir, I beg to move that the Senate adopts the Report of the Mediation Committee on the Petroleum (Exploration, Development and Production) Bill (National Assembly Bill No. 44 of 2015) laid on the Table of the Senate on Wednesday, 24th August, 2016 and pursuant to Article 113 of the Constitution and Standing Order 155 (3) of the Senate, approves the mediated version of the Bill. Mr. Deputy Speaker, Sir, the Mediation Committee on the Petroleum (Exploration, Development and Production) Bill (National Assembly Bill No. 44 of 2015) was constituted by the Speaker of the Senate and the Speaker of the National Assembly on 18th August, 2016 and 15th August, 2016 respectively. The Committee comprised the following Members:- 1) Sen. Gideon Moi - Chairperson 2) Hon. Jamleck Kamau - Vice Chairperson 3) Sen. Kiraitu Murungi 4) Sen. David Musila 5) Hon. John Olago Aluoch 6) Hon. Onesmus Muthomi Njuki The Committee held a sitting on 23rd August, 2016 to deliberate on the contentious clauses. Mr. Deputy Speaker, Sir, out of the 21 amendments proposed by the Senate to the Bill, only four clauses, that is Clauses 12, 17, 48 and 49 were rejected by the National Assembly. The Clauses deal with the membership of the National Upstream Petroleum Advisory Committee, membership of the Board of---

Sen. Moi, did you move that Motion? The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, that the Senate adopts the report of the Mediation Committee---

Sen. Moi, this may look easy but it has to be done correctly. You have to move the Motion.

Mr. Deputy Speaker, Sir, I beg to move the following Motion:- THAT, the Senate adopts the Report of the Mediation Committee on the Petroleum (Exploration, Development and Production) Bill (National Assembly Bill No. 44 of 2015) laid on the Table of the Senate on Wednesday, 24th August, 2016 and pursuant to Article 113 of the Constitution and Standing Order 155 (3) of the Senate, approves the mediated version of the Bill. Mr. Deputy Speaker, Sir, out of the 21 amendments proposed by the Senate to the Bill, only four clauses, that is Clauses 12, 17, 48 and 49 were rejected by the National Assembly. The Clauses deal with the membership of the National Upstream Petroleum Advisory Committee, membership of the Board of Directors of the Upstream Petroleum Regulatory Authority and the appointment of an operator and the penalty for offences, respectively. Mr. Deputy Speaker, Sir, after deliberations, I am happy to say that the Mediation Committee agreed with the Senate proposal to Clauses 17, 48 and 49. With regard to Clause 12, the Committee agreed to drop the Senate amendment to include a member of the Kenya Private Sector Alliance (KEPSA) into the membership of the National Upstream Petroleum Advisory Committee. As this was an inter-ministerial Committee set up to jointly advise the Cabinet Secretary on upstream petroleum operations. Mr. Deputy Speaker, Sir, with those remarks, I beg to move. I call upon Sen. Murkomen to second.

Mr. Deputy Speaker, Sir, I beg to second this very important report. I would like to congratulate Sen. Moi for his leadership in the Committee in so far as this Bill is concerned. If you heard Sen. Moi speak, you could see the give and take that always ensues when we are dealing with Article 110 of the Constitution. This is what we wanted in our constitutional order. Mr. Deputy Speaker, Sir, I know what is ahead of us. I debated and made my position clear regarding this Bill in terms of ways of dealing with matters of petroleum. At that time, I talked about my past interactions with the President of Nigeria, Goodluck Jonathan, having been his escort of honour three times. He told me something which is very profound. That, for a country like ours, when we are dealing with matters of petroleum, how petroleum can be very divisive and become a matter of a lot of conflict; he recommended to me then that it is important to have a clear legal framework that ensures that everyone in the community where exploration is done must be involved in consultation in the process of exploration and ultimately when getting out the oil. There is no better legislation. There is no country in the region that has prepared itself so well for purposes of exploring, selling, developing and producing oil than our country. It is good because most of the oil that is being discovered is in areas that were initially marginalised, for example, The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I support the Mediation Committee Report on the regulation of the petroleum industry. Sometimes it can be a curse more than a blessing. I particularly support the regulation or the development of a legal framework because, as we speak, in my own county and particularly my constituency, there is an oil exploration going on. I think this will go a long way in supporting our local communities and our national Government to understand that there is need to guard against risks that are associated with the failure to develop legal mechanism. I support.

Let us have Sen. Murungi.

Mr. Deputy Speaker, Sir, I rise to support the Report of the Mediation Committee. Many people have been talking of Africa’s “resource curse”, specifically the “oil curse”. There is no resource curse or Africa’s oil curse. There is only a management and political curse. This new law is putting in place a system to ensure more transparency, better management of the resources in this country so that the resources are more equitably distributed, especially to the host communities. I commend this Bill and the Report of the Mediation Committee because it will ensure that the oil resources are a blessing and not a curse to this country.

Sen. (Prof.) Anyang’- Nyong’o.

Mr. Deputy Speaker, Sir, I rise to support this Motion and congratulate the Mediation Committee for doing a good work and bringing this Motion to its conclusion. I believe it will be supported by this House today. From the geophysical and other surveys of this nation, many more counties are going to be endowed with oil production and other petroleum related products. We need to have forward-looking petroleum policy and laws. We need to establish institutions that will manage the extraction of petroleum products in this country. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I want to congratulate our team for having participated well in this Mediation Committee for the purposes of making laws that will govern the petroleum management in this country. The history of Africa and petroleum management is known. Examples are Nigeria, Angola and many other countries. It has actually been a curse. We very much anticipate that our mining of petroleum in Kenya will be a blessing. We can only achieve that by having good laws as has been done by the participants of this Mediation Committee.

Mr. Deputy Speaker, Sir, I congratulate the Mediation Committee. I have a cautionary note which I heard Sen. (Prof.) Anyang’- Nyong’o and Sen.Murungi allude to. With respect to extractive industry, globally there is now a movement towards greater transparency and accountability in this area. What has bedeviled those countries that should have otherwise been oil-rich or resource-rich is the lack of accountability and rampant corruption and cartels that are manifest in these areas. I, therefore, commend the work of the Mediation Committee. God has apparently blessed us with massive natural resources and as we move into this new tier of extractive industry, I hope we will have the frameworks necessary to ensure that there is great transparency and actual benefit to our economy. As we move into the oil sector, we should not go the Nigerian way and create a dependency but we diversify our economy so that we can continue to rely on areas of manufacturing, agriculture and other areas that are more durable and sustainable when the oil market crashes. I beg to support.

Mr. Deputy Speaker, Sir, I move and seek your indulgence that before you put the question we combine the two motions for the sake of time.

It is so ordered. Next order! The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I beg to move:- THAT, the Senate adopts the Report of the Mediation Committee on the Energy Bill (National Assembly Bill No. 50 of 2015) laid on the Table of the Senate on Wednesday, 24th August, 2016 and pursuant to Article 113 of the Constitution and Standing Order 155 (3) of the Senate, approves the mediated version of the Bill. The Mediation Committee on the Bill was constituted by the Hon. Speaker of the Senate and the Hon. Speaker of the National Assembly on 18th August, 2016 and 15th August, 2016, respectively. The Committee comprised the following Members: Sen. Moi, Hon. Jamleck Kamau, Sen.Murungi, Sen. Musila, Hon. Olago Oluoch and Hon. Muthomi Njuki. The Committee had a sitting on the 23rd August, 2016 to deliberate on the contentious Clause. Out of the four amendments proposed by the Senate to the Energy Bill, only Clause 57 was rejected by the National Assembly. The Clause deals with the membership of the Board of Directors of the Nuclear Power, Energy and Petroleum Agency. The Senate had proposed inclusion of two persons from an organisation representing persons carrying out operations in the energy sector, a person from the Private Sector Alliance, Energy and a person from an institution of higher education. After deliberations, the Mediation Committee agreed that the person from the Private Sector Alliance would sufficiently represent persons carrying out operations in the energy sector. The Committee, therefore, agreed to retain only the provision including a Member from an institution of higher education and one form the Private Sector Alliance. I beg to move and call upon Sen. Murkomen to second.

Mr. Deputy Speaker, Sir, I would like to second this very important mediated version of the Energy Bill for the same reasons that I gave earlier, that we are in a new regime under the new Constitution. The existing legal framework for management of the energy sector is no longer useful in a country that is democratic like ours and the Constitution requires public participation. Secondly, it is because we need a legal framework that will capture the two levels of government. If you look at the Constitution, you will find that energy reticulation is a function of both the national and county governments. We have to find the interface and ensure that there is a role that will be played by county governments when it comes to energy matters. Mr. Deputy Speaker, Sir, finally, as a country, we are moving from the old systems of getting energy towards having green energy. We are talking about wind power which is clean and green. I think the Senator for Nyeri may not say the two words, The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Hon. Senators, I will now propose the question.

Mr. Deputy Speaker, Sir, as I support the Mediation Committee Report as tabled on the Floor of this House, I want to appreciate the fact that they have dealt with environmental and cultural impacts on energy issues in depth. I am however concerned that the Mover requested for a combination of two Motions to be voted at the same time. I think that is unprocedural and I would like to be guided. I would have risen on a point of order on this issue but I did not.

What have you said?

Mr. Deputy Speaker, Sir, what I said was directed to you. I do not know whether you heard me well but I may repeat because you are the boss. I was concerned by the request by the Mover that the two Motions be combined when it comes to voting according to my understanding and I think that was unprocedural.

No, he did not say that. You cannot combine two Motions for voting purposes. What he said was that we vote at the same time in one Division Bell. Sen. Moi, do you wish to reply?

Mr. Deputy Speaker, Sir, I will be very brief because I know we have a heavy load. I would like to take this opportunity to thank Members of my Committee who participated in this.

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On a point of order, Mr. Deputy Speaker, Sir. What is being presented here by the Senator is very important but we cannot hear what he is saying because I have just heard Sen. Hassan calling someone, “former Senator.” Is he in order?

What is your point of order? Is it about not hearing or what is it?

Mr. Deputy Speaker, Sir, my point of order is that there is a “chaotic” behind me where one of the Senators called another Senator “former Senator.”

Sen. Njoroge, a Senator cannot be chaotic in the first instance. So, you are out of order in the first instance. Having said that, Sen. Hassan, we need to have some level of conversation so that we can follow what is going on.

On a point of order, Mr. Deputy Speaker, Sir. I beg to be corrected but if I listened carefully to Sen. Njoroge, he talked of there being a “chaotic” behind him. What is the meaning of a chaotic? Could he enlighten us on what he meant?

Mr. Deputy Speaker, Sir, I meant there are chaos behind because when I heard a Senator call the other “former Senator” I was expecting much to happen. So, that is why I said there were chaos behind me and that is what I meant.

You know there are people who thrive in chaos and that is why you are telling us that you expected chaos because of what was said but there has been no chaos at all. So, that was your own imagination and that is why I said you are out of order in that regard. Sen. Moi, did you make a reply or have you finished with this issue?

Mr. Deputy Speaker, Sir, I would like to add my voice by saying that Sen. Billow should take heart but not to listen to this---

Order! I was talking about your matter, the Motion.

Okay. Mr. Deputy Speaker, Sir, I would like to thank Members of my Committee who participated in this noble task of formulating these two Bills. Especially, I would like to thank Members of the Mediation Committee namely; Hon. Jamleck Kamau, Hon. John Olago Aluoch and Hon. Onesmus Muthomi Njuki who conducted themselves in a most professional and upright manner. I also thank my Members for their support. I thank you. The Deputy Speaker: We will have a division on Orders No. 4, 5, 6, and 7. The Division Bell will be rung for five minutes and then we commence the voting.

What is your point of order, Sen. Wetangula? 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. Deputy Speaker, Sir. Since technology appears to be failing us, why do we not vote by way of roll call and we have three Motions; you call Sen. Kiraitu and he says “yes”, second one “noes” and we go round and finish quickly? We used to vote like that in the “garage”. We can do it here.

Sen. Wetangula, we can have a manual roll call as you have proposed but it has to be on each Motion. When we vote one, two and three is when we are doing amendments and I have to put the question for each Motion.

Let me amend my proposal that we have a roll call vote and if the technology is rectified, then we move back to technology.

Okay, I agree with you because we have already lost more than 10 minutes. Can we now have tellers? Sen. Murkomen and Sen. Sijeny. If you are ready then we proceed. I have already put the question on No.4 as in the Order Paper. Let us proceed.

On a point of order, Mr. Deputy Speaker, Sir. I rise on Standing Order No.77(5) on Roll Call Voting which we have just done. It says:- “When called out, each Senator shall, thereupon rise in his or her place and declare assent or dissent to the question in the following manner, “I vote Yes” or “I vote No” or “I abstain” or use appropriate Kenyan sign language.” Mr. Deputy Speaker, Sir, are you convinced that there has been a Roll Call Voting in view of the fact that several Senators led by Sen. Khaniri of Vihiga County, Sen. Wetangula of Bungoma County, Sen. Murkomen of Elgeyo-Marakwet County, Sen. Kembi-Gitura of Murang’a County and Sen. Murungi of Meru County sat in their seats and screamed that they voted “yes.”

Mr. Deputy Speaker, Sir, I completely disagree---

(Sen. Kembi-Gitura)

On a point of order, Mr. Deputy Speaker, Sir. The Standing Orders are clear that when Roll Call begins it shall be done in silence and without interruptions, like what Sen. (Dr.) Khalwale is trying to do.

(Sen. Kembi-Gitura)

Sen. Murkomen, what is your point of order?

Mr. Deputy Speaker, Sir, considering that we have a few minutes before midday, with your leave, I beg to move:- THAT, pursuant to Standing Order No.33(a), the sitting of the House be extended until conclusion of business appearing in the Order Paper. I request Sen. Wetangula to second. Sen. Wetangula has nodded.

It appears you have no seconder.

seconded.

Hon. Senators, these are the results of the four divisions.

Sen. Murkomen

Sen. Sijeny

Sen. Kembi-Gitura): Hon. Senators, the result of the Division is as follows:-

Sen. Murkomen

Sen. Sijeny

Sen. Kembi-Gitura): Hon. Senators, the result of the Division is as follows:-

Sen. Murkomen

Sen. Sijeny

Sen. Kembi-Gitura): Hon. Senators, the result of the Division is as follows:-

Sen. Murkomen

Sen. Sijeny 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. Kembi-Gitura): Hon. Senators, the result of the Division is as follows:-

On a point of order, Mr. Deputy Speaker, Sir. I rise to request for clarity from the Chair. I am sorry I came into the House a bit late but I heard your communique at the beginning of the Session this morning on radio. You guided us that when we shall handle Standing Order No.8 and 9, we will require a majority of 45 Members. You recall that I approached you; my concerns being that the decision of this House---

Draw the bars and open the doors.

Mr. Deputy Speaker, Sir, decisions of this Senate made under the Constitutional provisions are found in Article 123. However, you persuaded me that I should go and be guided by the provisions of Article 256. I have done so, but I would like further clarification. Under Article 256, Amendment by Parliamentary initiative 256(1) D, says that:- “Shall have been passed by Parliament when each House of Parliament has passed the Bill, in both its Second and Third readings, by not less than two-thirds of all the Members of that House”.

Sen. (Dr.) Khalwale, I am just wondering what you are referring to, for the sake of good order.

Mr. Deputy Speaker, Sir, to your communication about the voting that we are about to do on Order Nos. 8 and 9.

Has it been called?

Mr. Deputy Speaker, Sir, you have made a communication about the same.

Has it been called yet?

Mr. Deputy Speaker, Sir, just for good order, we have not called it yet.

Sen. (Dr.) Khalwale, I know you are making a report on Order No.10, but it has not been called. We are going to call the order but we have some other orders on the 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.

Mr. Deputy Speaker, Sir, I will continue from where I left off. The operative word here is “when each House of Parliament”. This Bill has gone through the Second Reading in the National Assembly and it has been lost. The direction I would like to get from the Chair is that having been lost in the other House in the Second reading, even if we go ahead and vote and it was to pass, of what consequence is it? This is because for a constitutional amendment to be seen to have passed through the Second Reading, it should get the concurrence of both Houses. I would like you to clarify and I will be most grateful.

Sen. (Dr.) Khalwale, we went through this because fortunately I was looking at the HANSARD this morning although on a different issue. The last time we sat and canvassed this issue, we went through it at great length and you contributed at great length. My ruling, since I was in the Chair was that this is a Senate Bill and not a National Assembly Bill. It is not the same Bill that has been to the National Assembly. It is completely different, I had made a ruling on this and we are dealing with it because it is in front of us. A constitutional amendment Bill can originate from any of the two Houses. What was lost in the National Assembly is not in my knowledge and we went through this last time. If I remember correctly just from my memory is that a Bill like this was lost in the National Assembly and because it was lost, no message came from there. I have no knowledge of it. This is a Senate Bill and we must do what we must do and we are going to have to do what we must do; finish with it and send it down via message to National Assembly. If they decide to throw it out, so be it. If they decide to throw it out and it goes to mediation, so be it, but the fact remains that we have a job to do and we are going to do it. If you look at the HANSARD of the last time we canvassed this issue, you will find that we took more than one hour. That is the direction I gave and it is the same I am now giving. 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.

Before we go on, I have a short communication to make on Order No.8; the Constitution of Kenya (Amendment) Bill (Senate Bill No.16 of 2015). This is a Bill sponsored by Senator Judith Sijeny. As indicated in the Order Paper, the Bill is listed for Division of Second Reading. As the House proceeds to Division, it is important that I give guidance on two issues that are important on this matter. The first is on the manner on which the Senate is to vote on the Bill and, secondly, is whether the Bill is one that is subject to a referendum in terms of Article 255(1) of the Constitution. On the matter of how the Senate is to vote, the Amendment Bill proposed by Sen. Sijeny is an amendment to the Constitution by parliamentary initiative under Article 256 of the Constitution. Article 256(1)(d) provides that:- “A Bill to amend this Constitution shall have been passed by Parliament when each House of Parliament has passed the Bill, in both its second and third readings, by not less than two-thirds of all the members of that House.” The upshot of Article 256(1)(d) of the Constitution is that at both the Second and Third Reading of a Bill to amend the Constitution, the Bill would only have been passed by the Senate if two-thirds, that is, 45 Senators should vote in support of the Bill. The exact figure is 44.6 per cent which is rounded off to 45. On the question of whether the Bill requires a referendum, hon. Senators, you will recall that on 28th June, 2016, I ruled that and I will quote; “After the conclusion of the debate on the Bill and before the question for Second Reading of the Bill is put, in terms of Standing Order No.131(1) of the Senate Standing Orders, the Speaker shall make a ruling as to whether the Bill falls within the ambit of Article 255(1) of the Constitution and, therefore, whether it is one that will require ratification by the people of Kenya in a referendum.” It is, therefore, necessary that I make a ruling on whether the Bill is one 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.

On a point of order, Mr. Deputy Speaker, Sir. I would like that you clarify further because in Article 255(1)(c), the issue of amendment relating to the sovereignty of the people is stated. The provision of Article (1)(2) which says that: “The people may exercise their sovereign power either directly or through their democratically elected representatives.” The Bill that we seek to amend the Constitution through today, is speaking to the elections of those special members. Those special members upon being elected will exercise indirectly the sovereign power of the people on behalf of those people. Mr. Deputy Speaker Sir, in view of that, would you like to clarify further whether my conviction that the issue of then those people exercising donated sovereign power by the people makes this an amendment that touches on the sovereignty of the people of the Republic Kenya. Could you clarify that?

It is an interesting point to raise Sen. Khalwale. Indeed, if you read the whole of Article 255(1), you might find that there 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.

On a point of Order, Mr. Deputy Speaker, Sir. In view of the fact that we do not have the threshold to vote or for us to be able to tackle Order Nos. 8 and 9, would I be in order to request that we move straight to Order No. 10?

I was going to come to that Sen. Machage. The threshold is agreed at 45. Obviously, we do not have it. It will be absolutely futile to proceed to it without the threshold. Sen. Murkomen, was that your point of order?

Mr. Deputy Speaker, Sir, could Sen. Khalwale because he is the one who raised this issue---

Order! I have finished that issue.

Mr. Deputy Speaker, Sir, I had raised that point of order before you finished. This being a House of record, I support that Article 255 where it talks about things that are touching on, then lists and says, “sovereignty of the people.” The only other place where “sovereignty of the people” is listed is in Article (1) which is titled “Sovereignty of the People.” So, in other words, a proper interpretation of the Constitution would say anything that touches on amending Article (1) of the Constitution, stretching it to say Parliament and so forth. You can see even in that same Article 255, the only aspect of Parliament that requires referendum is not the composition nor the formation of Parliament, but the functions of Parliament which has excluded itself specifically in Article 255(h). So, a proper reading of the Constitution would be saying that when you are amending Article (1), you must go through the referendum. However, a liberal interpretation to include everything that touches on sovereignty of the people would mean the whole Constitution. If that was the case, then there was no need for a list in Article 255, it would have been no easier for the Constitution to say when you are amending anything in the Constitution you will have to need a referendum.

That was my view; that you might decide whether you take a broad view because as far as I can see and I said it myself and Sen. Murkomen, everything in truth will end up touching the sovereignty of the people of Kenya. Hon. Senators, there is no threshold to deal with Order No. 8--- what is your point of order, Sen. Khaniri? 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. Deputy Speaker, Sir. This is an amendment to the Constitution and I think the threshold is provided for as two-thirds. Our Standing Orders are clear that for you to determine whether there is threshold or not, you must order for the division bell to be rung.

We are going to division. What is your point of order, Sen. Ong’era?

On a point of order Mr. Deputy Speaker, Sir. That is the same point I wanted to raise that Sen. Khaniri has raised; that we are not so sure that we have the threshold because the bell has not been rung. We do not know whether there are others Senators waiting in the lounge. This is a very important amendment. As you know, this amendment affects the constitutional requirement of having one-third of either gender in the Houses. So, let us treat it with the importance that it deserves. I plead with you.

On a point of order Mr. Deputy Speaker, Sir. Take note that this is the second time we are staying this Bill on the basis that we do not have threshold to vote for it. What we shall do is to give these Members one last chance on the basis of following what Sen. Khaniri said. There are those who might not be here, but that is their vote in terms of threshold. So, we should allocate and designate one more time specifically for the business of this Bill so that the business should proceed with or without the threshold of 45 members. There could be a misinterpretation that everybody wants to vote in that way.

On a point of order Mr. Deputy Speaker, Sir. I wanted to ask Sen. Ong’era, being the Minority Whip, if she has done the whipping to raise this number.

That is not a matter we can canvass here. Sen. Orengo, what is your point of order?

On a point of order Mr. Deputy Speaker, Sir. I thought what was being raised in relation to the question of quorum and that we defer this Order and that the ringing of the bell was out of caution because if you ring a division bell, then the bars must be drawn. When the bars are drawn, you have to take a vote. You cannot say we cannot vote. Alternatively, you can ring the bell because there is no quorum. But if you ring the division bell, then you must proceed to vote. You cannot ring the division bell and you do not vote. So, I thought those who were calling for deferring Order Nos. 8 and 9 were just out of caution so that the two orders are not locked out by lack of quorum.

On a point of order Mr. Deputy Speaker, Sir. I think this is a very important Bill which seeks to address the issue of gender, specifically women. I agree with Sen. Hassan that we need to have a special day to consider but it is disappointing that even the ladies are not here. Out of 16 nominated women Senators in this House, only six are here.

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Mr. Deputy Speaker, Sir, in view of the Motion that was passed that we sit until we finalize the business which is on the Order Paper, we should go into that business. We know that we have now taken a vote on delegations of 25 Members on the Motions that have been passed. We now know that the Nominated Members, not all of them are here. They may be about seven. If you add to that, it comes to about 32 Members. That is nowhere near the threshold required for a constitutional amendment which takes into account not just the delegations but all the Members of the Senate. That is about 45 Members. You can take note that having voted five times and the vote was of 25 Members and adding the seven Nominated Members who are here, it comes to 32 Members and it falls far below what is required. Therefore, for caution and for my sister, we better proceed on this matter when we have a quorum and we shall support her rather than going ahead and failing. I support Sen. (Dr.) Machage that you make a ruling and we go to the next order.

Hon. Senators, this vote is on a constitutional amendment like I said in my communication, the voting will not be just by delegations but by all Senators. We appreciate that. All Senators are 67 and if we divide by two-thirds, it comes to around 45 Members. So, I hope you listened to the point made by Sen. Orengo. We can ring the bell if you wish. I think what Senators need to be reminded is this; a vote does not have to be positive. It can also be lost. If we ring the bell and we draw the bars, we have to vote. It does not matter whether we are 45 or less; we could still lose the vote. So, it is a question of pragmatism. This is the second time this is happening and it is up to you to make a decision. I have no problem ordering that the Division Bell be rung for eight minutes as provided for and the consequences will follow. So, the points of order you are going to make; if they are related to this, let us reduce them. There are quite a number of you that want to say something. We will start with Sen. Mutula Kilonzo Jnr.

Mr. Deputy Speaker, Sir, it has been a practice that when there is a communication on an important matter, it is put in the pigeon holes. I suspect that Senators are imagining that when we vote, they are delegating their votes to their respective delegations. This being a very important ruling, in terms of Article 254, it is important that, that communication is given to all Senators to the extent that there will be no delegation of those votes. Those who normally give out their votes should be here, and for the first time, Nominated Senators, including my good friend, Sen. Onchwang’i, will have an opportunity to cast a vote. I plead with you that other that designating a different day, that communication be sent to all Senators in whatever form; email, pigeon holes or SMS messages. Since this is the first Bill we are voting on under Article 254, and I suspect that there will not be any other, it is important that we do not appear to fail ourselves by lack of quorum.

Sen. Lesuuda. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I want to echo what Sen Mutula Kilonzo Jnr. has said, that probably most Members, especially the Nominated Senators, were not aware that they would cast their vote on this matter. I propose that we do not ring the Bell, but rather assign another day when we will do proper mobilization to vote on this Bill.

Mr. Deputy Speaker, Sir, we do not have to skirt around the subject; we have said it all. Do we need to call for a Division when we do not have the numbers? I would suggest that you defer these Orders.

Mr. Deputy Speaker, Sir, I also want to add my voice. This Amendment Bill has been mistaken to be a women issue. It is in the Constitution that we all accepted.

Sen. Mugo, kindly do not take us back; we are discussing threshold.

Mr. Deputy Speaker, Sir that is what I am trying to say. We need to challenge the Whips that when we reschedule - I hope you will make that ruling – everybody and not just the Nominated Senators - is bound to come and honour the Constitution and the people of Kenya who gave us this Constitution.

I rise to beg that you do not call for a division and you be guided by the submissions by Sen. Orengo. There has been a deliberate effort in the media by some Members of the National Assembly and this Senate to misrepresent the fact that male Senators and male Members of the National Assembly do not support the two-thirds gender rule. Because of that misinformation, I want to congratulate the six women Senators who are here, including Sen. Lesuuda, Sen. Kisasa, Sen. Mugo, Sen. Sijeny, Sen. Omondi and Sen. Ong’era. Out of 18 women Senators in this House only six have come, compared to a whopping 22 men who are in the House today. May the country know that men came here today, led by me, to vote for this Bill and the women have denied us numbers to support it.

Order, Senators. Let us go through this.

Mr. Deputy Speaker, Sir, first I wish to go on record as being one of the firm and consistent supporters of this Bill in the past, now and in the future. I believe in women empowerment. I disagree with Sen. Mugo that it is not about women; it is about women at the moment. The most disenfranchised group is the women. I am a full supporter of women in this Republic. Having said that, I disagree completely with what Sen. (Dr.) Khalwale said. There are more men who are more absent than women. More than half of the men are not in the Senate. A total of 25 men are not in the Houses. Had the 25 been in the House, we would have had the number. The elected Senators alone can make a quorum. If we have all the elected Senators, we would have 45 plus an extra two 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.

That may not even be necessary because that has been done before twice. What I need to do after you are done with the Standing Orders is to defer the matter to another day. Sen. Sijeny, do you have a point of order?

No, Mr. Deputy Speaker, Sir.

Mr. Deputy Speaker, Sir, may I disabuse this House of this notion that many Senators are not here. We must understand that some Members are in Rio de Janeiro, Brazil, for the Olympics and others are genuinely out of this country on missions and conferences. Therefore, to give the impression to the media that many Members are absent is absolutely wrong. Let us get the facts right. I think there are some Members who are not here for genuine reasons. Let us deal with the number of those who are here and not to speculate that some Members are absent irresponsibly. That is wrong.

Thank you Sen. (Prof.) Anyang’- Nyong’o. The direction I am making is that we do not have a threshold to carry out the Business of Order No. 8. Since we cannot conduct the Business of Order No. 9 in the absence of having disposed number Order No. 8, I am deferring Order Nos. 8 and 9 to a future date. So, we still have two other Orders to deal with. Therefore, Orders No. 8 and 9 are deferred. THE CONSTITUTION OF KENYA (AMENDMENT) BILL (SENATE BILLS NO.16 OF 2015)

Mr. Deputy Speaker, Sir, I stand to move:- THAT, the Senate adopts the Report of the Joint Parliamentary Select Committee on matters relating to the Independent Electoral and Boundaries Commission (IEBC) laid on the Table of the Senate on Thursday, 18th August, 2016. I beg to move this Motion on behalf of the Committee and the Co-Chair, Sen. Murungi with whom I had the privilege and honour to co-chair the Committee. I commend and appreciate the work done by the Committee and each Member of the Committee individually. We had a Committee consisting of Members of the Senate and the National Assembly. Without mentioning each and every Member of the Committee, I register my appreciation to each one of them. If you look at the report, there was 100 per cent attendance by each Member on each occasion that we sat. A Member may have walked out for a moment or a few minutes but on each and every day that we sat, all the Member of the Committee took part in the proceedings. Mr. Deputy Speaker, Sir, I also want to register my appreciation to the leadership of the coalitions. As you know, the Motion that was passed respectively by the National Assembly and the Senate was as a result of consultations between the leaders of the coalitions, Jubilee and CORD. For those who thought that the Committee was working on a partisan basis; from the very beginning, even in drafting the Motion that was passed by the National Assembly and the Senate, the leadership of this country both in Government and in the CORD coalition, consulted and came up with the text that constituted the work of this Committee. The reason why I want to register my appreciation to the leadership of both coalitions is; when initially this matter arose, the only question on the table before the political formations in the country as exemplified by the various political activities prior to this Motion was the question of the constitution of the IEBC. The Motion originally that was to come to this House was based on the question of determining the vacation from office of the commissioners. However, through consultations that were made strenuously and overtime between the leadership of both coalitions – you realise from the Motion that the leadership of the coalitions decided that the mandate of the commission should go beyond mere consideration of the vacation from office of the commissioners. In consideration was also the question of the secretariat and the electoral process and law; not only for the purposes of the elections in August, 2017 but also to ensure that the elections that we hold meet the constitutional standards of accuracy, verifiability, transparency and accountability. All those words are in the Constitution. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

(Sen. (Dr.) Machage): Very well. Sen. Murungi, as you know, according to Standing Order 100, you have 15 minutes to second the Motion. However, having been a Co-Chair, I will allow a further five minutes so that you have 20 minutes.

I want to thank you, Mr. Temporary Speaker, Sir, for extending my time by five minutes because I have a lot to say on this matter. First, allow me to thank my Co-Chair Sen. Orengo for moving the Report and the draft Bills on behalf of the Committee. He has done an excellent job and in an eloquent manner that impresses everybody. Mr. Temporary Speaker, Sir, I also want to thank the Members of the Joint Select Committee with whom we worked; the “bullfighter” here and the other group which is now called “the Pangani Six”. I think this team worked very hard and we did a great job which is making our country proud. The group worked tirelessly, we burnt the midnight oil and we were able to meet the 30 days deadline which had been given to us by Parliament. So, I sincerely thank the Members of the Committee. Mr. Temporary Speaker, Sir, also allow me to thank the members of the secretariat, our rapporteurs and the experts who supported the Committee and we sometimes worked up to 5.00 a.m. of the next day; filing up the discussions and coming 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. This is a very important document. We entrusted very senior people who have been in the struggle for a long time who qualify to be legal luminaries to come up with this document. Members of this Joint Committee should not be given priority over people who are not Members of the Committee. They should take a back seat a bit and listen to Members who are not Members of the Committee. They know what is in the report. They have been involved. We do not have to be briefed for too long. Those who were not there have already been briefed by the Mover and the seconder. We also know how to read. Members who were not in the Committee should be given priority to speak on this Motion. Thereafter, they can speak.

(Sen. (Dr.) Machage): Order! Being a Member of this respected Senate, you do not just shout across the House. So, keep your peace and listen to my order. Here it comes. Although common sense has never been common, what Sen. Wako has suggested makes a lot of sense to me. We have had a Mover and a seconder. I am not ruling that Members of the Committee will not contribute. However, I accept the request that we listen more to Members who were not in the Committee first. That is my ruling. What is it Sen. Murkomen?

On a point of order, Mr. Temporary Speaker, Sir. We have Standing Orders which clearly provide for a mechanism of when someone is allowed 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. (Dr.) Machage): Order! Are you challenging the decision of the Speaker?

Mr. Temporary Speaker, Sir, I am challenging the proposal of Sen. Wako.

(Sen. (Dr.) Machage): There are ways in your Standing Orders where you can challenge the decision of the Speaker.

Mr. Temporary Speaker, Sir, that is why I rose on a point of order.

(Sen. (Dr.) Machage): I have not denied anybody to speak. I have said that I will give priority to the Members who were not in the Committee. What is it, Sen. (Dr.) Khalwale?

Mr. Temporary Speaker, Sir, the rules of debate in this House are very clear. I am not pressing for an opportunity to speak but I would like to urge the Chair to be guided by those rules. There is no rule that suggests anywhere---

(Sen. (Dr.) Machage): Order, Sen. (Dr.) Khalwale! I have just given a ruling on that.

Mr. Temporary Speaker, Sir, you have given me an opportunity to speak.

(Sen. (Dr.) Machage): Order! You are repeating. I may also surcharge on the same Standing Orders you purport to support.

Mr. Temporary Speaker, Sir, maybe you could have heard me.

(Sen. (Dr.) Machage): No, I will not. This is what it is. I will give every Member time to speak, but I will give priority to Members who were not in the Joint Parliamentary Committee on the IEBC. Discretion of the Speaker, Standing Order No.1 says:- “In all areas where matters are not expressly provided for by the Standing Orders or by any other Orders of the senate, any procedural question shall be decided by the Speaker”. Order Members! I call upon Sen.Wako to speak.

Mr. Temporary Speaker, Sir, it is only right that the leadership of the Senate, the senior people who we appointed to this Committee should also listen to the Senator who was not there. We voted and elected them because of their qualities, and we hoped we were also electing them because of their humility. In that humility, they should also listen to us. I will not take long because I have absolute confidence in the people we appointed to the Committee. This is our Committee, fairly selected, equally represented 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. Deputy Speaker, Sir. Did you realise the Sen. (Dr.) Machage is not listening? Secondly, he did not bow when he left the Chair. He just walked as if he is in a market in Kehancha.

Sen. (Dr.) Machage, did you bow when you vacated?

Mr. Deputy Speaker, Sir, maybe some Members need to see opticians for correction of eyesight. I did bow so efficiently that I felt my neck crack.

The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Sen. (Dr.) Machage, you actually did not bow when you vacated the Chair. It will be good to do it the correct way.

Sen. Wako, you may proceed.

Mr. Deputy Speaker, Sir, thank you very much. That has taken three or four minutes. Please add me time.

I told you that your time was held.

Thank you. Mr. Deputy Speaker, Sir, I was talking about the issue of party hopping and so on. I entirely agree with the recommendations because they should lead to the strengthening of political parties because Kenya is a multi-party state under the Constitution. Mr. Deputy Speaker, Sir, we are in a transition period where we know that although the IEBC will do the primary nominations, there will still be very many complaints. We still need to have strong traditions of nominations at the party level. Therefore, during this transition period, a number of people could be denied the right to stand. We have seen quite a substantial portion of the current Members of the National Assembly, the Senate and so on. If they had not hopped to other parties, they would not have been elected. The same case also applies to a number of governors. So, rather than a person to be rigged out hopping to another political party, that person should be allowed to stand as an independent candidate. In other words, he is not leaving one party to strengthen another party but it means that he is the most popular person in a certain constituency. Therefore, such a person should be allowed to stand as an independent candidate. That would have meant that the process of nomination of people who want to stand as independent candidates has to begin not simultaneously with the political parties but slightly after and it would have meant amending that law and so. However, I accept what they have come up with. It must have been for very good reasons. Mr. Deputy Speaker, Sir, the other thing that I am very happy about the recommendations here is the issue of the biometric. Biometric means unique identifiers or attributes including fingerprints, hand geometry, earlobe geometry, retina and iris patterns, voice waves, DNA and all that. To me, this is a step in the right direction. Mr. Deputy Speaker, Sir, there is also the Integrated Electronic Electoral Systems (IEES). I listened very carefully to what the Mover and the Seconder said about the entire system. This is a system that will help the electoral process in this country. The law that has been proposed is excellent. However, it must be implemented. Uganda recently had its general elections. All these issues that have now been covered under recommendations in the law were in place in that country. However, 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.

Thank you, Mr. Deputy Speaker, Sir. I would like to support this Report having been one of the Members that sat in this Committee and I am conversant with what happened and the negotiations. I would like to tell the House that this is a product of extensive consultation across the political divide. This is a product of nationalism and patriotism. The leadership of Sen. Orengo and Sen. Murungi enabled us to reach consensus on all the issues that we dealt with. As a matter of fact and for the record, we never voted on any of these issues. We thought we should sit down and we agreed from the beginning that there are positions that come from our political parties. We invited them and they came to make presentations. Both Jubilee and Cord coalitions made their presentation before the Committee. In fact, they made their presentations on behalf of the parties we belong to individually. As a Committee, we had a responsibility to behave over and above those positions because we were balancing both the positions of the political parties but there were also various positions of Kenyans from different walks of life; whether it was the private sector, the religious sector or the civil society. Therefore, when you look at this Report as it is here, it is a product of extensive public participation by the people of Kenya who wanted a position on the IEBC and electoral reforms. On Thematic area No. 1, I was in one of the media houses today with my friend, Sen. (Dr.) Khalwale. When I left there, somebody told me that the debate was not as interesting as they wished it to be because we did not fight. There has been misconception in the public domain that this Committee declared commissioners immune from any prosecution. They say that the Committee sat down and cleared them of any allegations. May be some people are unable to read and comprehend English language. We said that we made no findings at all on matters related to whether or not, the allegations were factual and substantiated. We decided in the public’s desire to have a free and fair election next year, to let them voluntarily vacate the office. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Order, Sen. Hassan! Hon. Senators, I have about 11 requests seeking the Floor. That is virtually everybody in the House. If each takes 15 minutes, you know where that will take us and we have not had a break since 9.00a.m. As you know, I like operating on consensus, I do not want to say we reduce the time for debate but if the Members are inclined, we may try less than 15 minutes so that we all get a chance.

Five minutes!

It looks like there is a consensus for five minutes for each. Therefore, it is five minutes for each Member.

Mr. Deputy Speaker, Sir, I will be brief. I will begin from the point that Sen. Wako made. It is unfortunate that we did not agree a year ago. We did not agree because politics is about struggle and interests. Those who have been interested are those who want to rig elections in this country so as to stay in power. Therefore, what we need in this country, notwithstanding that we have a good law, is a political culture that respects trust, fairness and dedication to public duty. As it has happened since independence for the purposes of “tenderpreneurship” and the reaping off of the State, this law will remain good on paper but not in practice. Mr. Deputy Speaker, Sir, I thank the IEBC for having been intransigent. It is because they were intransigent that we went to the streets to force them out. It is because they were intransigent that the Government also thought that it was good to defend the IEBC.

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

On a point of order, Mr. Deputy Speaker, Sir. Thank you, the noise has subsided. I was begging for protection from Sen. Wako and Sen. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I hope my time was held while that was going on.

Sen. Wako, Sen. Murkomen, you have contributed and people listened to you. So, give people a chance also to contribute. Sen. (Dr.) Machage, Senators do not make noise. They consult. That is important. However, Sen. Murkomen, that is not a license for you to continue to make very loud consultations. You are in my line of vision, clearly. So, I will keep a tab on you. Proceed, Senator.

Mr. Deputy Speaker, Sir, I was thanking the IEBC for having been intransigent. That made us go to the streets to protest and call for their leaving. The Government supported them for some time. They were more intransigent. Finally the whole world realised that there was something wrong in Kenya and the other side came to the negotiation table. That is what I call struggle. If they had not been intransigent, we would not have struggled. We were determined to get an IEBC that would run elections properly. That forced the other side to come to the table and we have this law. Thanks to those who have been prepared to sacrifice for proper democratization in this country. On the Floor of this House, I thank all Kenyans who came out to say, “IEBC must go.” We have won. We must congratulate ourselves. Therefore, now we have a good law. However, this law will not continue being good if as Sen. Wako says, it is not implemented. The implementation of this law requires some political hygiene in this country. In other words, let us have people in public service who respect the Constitution, law and order and will implement this Constitution. Let us have a Government which knows that they may be in office today, thanks to the sovereignty of the Kenyan people who have exercised their rights in democratic elections to put them in power. They are not in power because they have money or were born in a certain region of this country. They are in power, thanks to the Kenyan people who have exercised their rights in this Constitution according to these election laws to put them in power. When the people of Kenya through the same Constitution and the same law vote in an election, let the rights of those Kenyans be respected and let people go in and out of office according to this law and our Constitution. Then, we will have a proper political hygiene and culture in this country. Mr. Deputy Speaker, Sir, therefore, what has failed in Africa and has just happened in Zambia last week is that; elections are held, some people win but those in power refuse to go out and put countries in a lot of jeopardy. Zambia does not lack proper electoral laws or a Constitution; but so long as we have men and women in power who have bad political hygiene, we shall not have our democracy progressing. While we may have good laws, we still have another mile to travel. This mile is to institutionalize a democratic political culture in our nation. I do not want to celebrate this law until I see 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.) Anyang’-Nyong’o, I can see you want to develop the language. That word, “tenderprenurefilia”, is not in the dictionary or anywhere near, but that is innovative.

Mr. Deputy Speaker, Sir, “tenderprenurefilia” are the seeds of those who believe in “tenderprenureship”.

It is interesting. Sen. (Dr.) Machage.

Mr. Deputy Speaker, Sir, I praise the team that took all the time to come up with a document that has been tabled on the Floor of the House today for our adoption and more so Senior Counsel, Sen. Orengo and Senior advocate the ‘King of Meru, Sen. Murungi. However, today is a very sad day for me when Parliament is being used to sanitize law breaking. Article 251 is very clear and this is a Constitution which the President of this country swore to protect. The Article is very clear on how commissioners are to be removed from office. In Article 19(3) the rights and fundamental freedoms in the Bill of Rights is guaranteed to every Kenyan. Article 25 says: -

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

What is your point 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. Deputy Speaker, Sir, we had heard the Senator for Migori allege that the Committee has exonerated the commissioners from blame. Could he point out in the report where the Committee has done this? I was a Member of the Committee and I am aware that the Report says that we make no finding on the allegations made against the commissioners. Could he stop misleading the country?

Sen. (Dr.) Khalwale, let that be a point of debate. Maybe that is his own interpretation. I will also give you a chance to contribute.

Mr. Deputy Speaker, Sir, I hope you preserved my time. It is very clear that the Chair said that to get facts to accuse the commissioners was a tall order. Therefore, the benefit of doubt should have gone to the commissioners. Why do we have to legitimize a wrong move by Parliament? What we are doing is to make what we call parliamentary dictatorship where Parliament will disregard all facts of the law in the Constitution. Parliament will break them from top to bottom and make its own law to expunge members of a commission who are protected by the Constitution. This Report may be adopted because maybe the majority have said so but today is a sad day for this country for openly disobeying the Constitution in the House of creation of law. We will be out watching how the new commissioners will be selected. In my own mind, the whole purpose of this exercise was to expunge the minorities and replace them with the majorities in this country. That was the whole purpose and there was no other purpose of this commission. This might be very painful but it is a bitter pill to be swallowed by those who listen. I oppose.

Mr. Deputy Speaker, Sir, I am going to be very brief on this. First of all, I want to thank Members of the Joint Committee of both Houses of Parliament for having taken time and taking upon themselves the very heavy duty of making a decision about the electoral commission. I also thank the outgoing commissioners who have been disgraced yet what has been reported here is that there were no findings. I think the statement of no findings is an escapist statement. They should have made it clear that there was no offence committed by the commission except the fact that they failed the confidence test, which is a thing that has no measure in terms of how you can quantify or qualify confidence. Mr. Deputy Speaker, Sir, it is very unfortunate that these commissioners had to go. These are commissioners that we had a lot of confidence in when we put them in office. Unfortunately, we have accused them of all sorts of evil, including the “Chickengate” scandal and all manner of stuff, yet the Joint Committee has reported that there were no findings about their culpability of what we are accusing them of. I really commend the commissioners. We do not want to be like Zimbabwe. Zimbabwe chose some athletes to go to Rio de Janeiro, Brazil. She sent them to Rio to go and try to win medals but they did not win the medals. They left for Rio as athletes but they are now arriving back to Zimbabwe with the Commissioner of Police having been ordered to arrest them at the airport because they did not win any medals but they tried their best. The commissioners 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.

Thank you, Mr. Deputy Speaker, Sir. I realise that most of us did not follow what was happening in the Committee. However, the fact of the matter is that, that was an exceptional circumstance that we found ourselves in a committee. Sometimes, when I think about the people who set up this Committee and how it was set up, nobody thought it would come up with a Report like this or that some thought we would not agree. However, I want to point out several issues that can inform some of our decisions. The fact of the matter is that there was a big failure in terms of management of our elections. That is borne in the reports of the special audit shown on pages 130 and 131. The Public Accounts Committee has tabled their report. It makes adverse findings 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.

Sorry!

That cannot be five minutes Mr. Deputy Speaker, Sir.

Your time is not up yet.

Mr. Deputy Speaker, Sir, the proposals that have been made in the Election Amendment Bill are revolutionary in every sense of the world. They are not unique to Kenya. We did our research and in a country like India that has got over---

Your time is up. Sen. Lesuuda!

Thank you, Mr. Deputy Speaker, Sir. I rise to support this Report and to congratulate the team that worked on it. It is quite a detailed one. Within the five minutes, it is important to echo what many of my colleagues have said. In Kenya, we are not short of laws and good laws for that matter. It is the implementation that continues to drag us back and put us in positions that we have found ourselves in as a country and we are not proud of 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.

Thank you, Mr. Deputy Speaker, Sir. Having sat on this Committee, I would want to use this opportunity in supporting the report to register my tribute to the following people: one, the Kenyans who pressed so hard for us to have these mediation talks. Some of them lost their lives, property and even got injured. I thank them. I also want to thank President Uhuru, the Rt. Hon. Raila Odinga, Hon. Kalonzo Musyoka and Sen. Wetangula who were the people that we would consult whenever we hit a stalemate. What came out clearly is that they all gave us the latitude to do what we did and we believe that we succeeded. I also want to thank Sen. Orengo and Sen. Murungi for the leadership that they gave when we were preparing this report. There are only two points I would like to use graphically to request members to we support this report. The first one is a picture which I have put in my library of Sen. (Prof.) Anyang’-Nyong’o born on 10th October, 1945. He is now going to be 71 years old. That photograph was taken outside Anniversary Towers when he was running for his The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Your time is up. Sen. Omar Hassan.

Mr. Deputy Speaker, Sir, I rise to support this Report and also make several observations. First and foremost, I appreciate the Committee’s findings, particularly in terms of the concessions made by the IEBC, in ensuring that there will be a dignified exit for the members of that commission. However, as is the practice of law, that will not stop any other processes where anybody has criminal culpability of being held responsible for any crime that might have been committed by people individually. I wish well those who will exit. Some have exited based largely on the premise of ensuring that this nation is greater than them; not because there is any culpability or guilt established on their part. Time is short and I cannot speak on all areas I would have wished to speak on. However, nothing in the proposals of this Report must formulate foundations of law that will abrogate other fundamental freedoms. We come here and pretend that we want to build political parties that are founded on certain ideologies. Let us debunk this myth that all our political parties are founded on any particular ideologies. Most of these ideological issues are issues of plebiscite. Look at the composition of our membership. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Your time is up. Sen. Ndiema. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I also would like to thank the Committee and its leadership for having dedicated itself to work and delivered its Report in good time. The IEBC, according to the Constitution, is supposed to be independent. Therefore, whatever we do or say, we must make sure that any Commission in place or in future, is guaranteed independence. I do not know whether the Commission that will be formed will feel secure and independent. This is especially since the allegations that were put forward against the incumbent commission, have not been proved beyond any reasonable doubt. However, the Commission has to vacate office. Mr. Deputy Speaker, Sir, you will excuse those who think that the pressure for these commissioners to go had more than just the malpractices. Other things have come to bear in terms of each person wants his or her own referee. It may even be proper but perhaps this country may consider having a commission for each and every election. They should not be continuous. Perhaps that will cure the misuse that may be there. However, be that as it may, the commission which is comprised of individuals will never be effective unless we look at the systems. Let us not look at the individuals so much but the systems. The weakest link in our electoral system is not in the commission or the commissioners. We should have looked at the secretariat as well. Beyond that, in our electoral system, the weakest link today is the party nomination process. We should form an independent Select Committee, first of all to look at the nomination processes where there is massive abuse and corruption that cause candidates to party-hop. They do not just hop for nothing. There is unfairness. This House should press for a Select Committee to look at nomination process so that we weed out malpractices in nomination. Unless we do that, we shall have elections which are not free and fair. On that note, until we sort out the nomination process, we should not limit candidates from deciding and enjoying their freedom of association guaranteed in the Constitution. After nomination, if you feel you have not been taken care of properly, you should be free. It is guaranteed in the Constitution; one can move to their party of choice. As we speak, I have been a victim of rigging in a nomination process. There was supposed to be a nomination but no nomination ever took place and a certificate was issued to somebody.

Your time is up. I will give you a chance to say whether you support.

Mr. Deputy Speaker, Sir, I support with amendments to take care of what I have said.

That will come at its own time. The last speaker is Sen. Wetangula. I will give you 10 minutes.

Mr. Deputy Speaker, Sir, I know that according to the Standing Orders, I am entitled to an hour. However, I beg you to give me at least 20 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.

Then, we must set a compromise. I will give you 15 minutes. We had discussed that with you earlier. Time is running.

Mr. Deputy Speaker, Sir, thank you for giving me an opportunity. First, I salute all the 14 Members who served on this Committee; seven Members from this House and the seven Members from the National Assembly. When this Committee was set up, some radio stations cynically remarked that some Members like my friend hon. Moses Kuria and hon. Jimmy Angwenyi had been deliberately put in the Committee by Jubilee to go and cause a fracas. However, the information we have is that the proceedings were tranquil, non-partisan and patriotic. When they were starting their proceedings, I addressed the Joint Committee. I could see how eager everybody was ready to do their work. This Committee report is so important to this country because the manner in which the outcome of elections is received can lead to peace, tranquility and prosperity of this country or confusion. This country has recorded more than three conflicts at different times either preceding, during or after elections, the worst being 2007/2008. I fully support the Report and the accompanying Bills. I was disheartened while coming back to the Chamber when I heard one Member speak in a manner that I thought was completely out of tune. You cannot have everything. I salute this Committee because many people have accused the Coalition for Reforms and Democracy (CORD) of ceding too much ground to Jubilee. However, as a leader on the CORD side, I have said to everybody that you cannot go and negotiate from a fixed position. You go to negotiate because you have a different positions and the person or group you are negotiating with have a different position and you must find a middle ground. Mr. Temporary Speaker, Sir, looking at the report, you can see that each of the 14 Members has appended their signature, signifying that it is a unanimous decision of the Committee and is a Committee report reached by consensus. I know that there are certain issues that some Members are uncomfortable with but I also want to encourage Kenyans that the question of IEBC commissioners leaving office in the manner that is recommended is neither an assault nor a derogation of the constitutional provision. This is a negotiated process. You and I and everybody else know that when you hold an office of public confidence, even where you are not culpable, once the public has lost confidence in you, you are obligated to reconsider your position. I salute the commissioners, among them there are bad ones and good ones. It is a cocktail of the good the bad and the ugly, but they all appeared before the Committee and said that if their position was putting the peace and future of this country on a slippery path, then they would opt to leave office. That alone is patriotic thinking and decision. Mr. Temporary Speaker, Sir, they could have dug in for a bruising, ugly and fatal fight in terms of character. They opted to say that they would leave to do something else for their country. As we go to elections, we always as lawyers say that justice is not what you as the judge is doing but what the public think you are doing. The perception you create is what people see and perceive to be justice. The public had lost confidence in The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

On a point of order, Mr. Deputy Speaker, Sir. The Senate Minority Leader has mentioned Chirchir but I do not which Chirchir. Could he substantiate?

Mr. Deputy Speaker, Sir, Chirchir is a man who was a Minister for Energy. He “ate chicken” and it is in the reports that are with the EACC and everybody has seen them. He left office because the President brought a report to Parliament that implicated him. We also know that at the time he was working with the IEBC as the head of ICT and he was the mastermind of the electoral fraud that we know.

On a point of order, Mr. Deputy Speaker, Sir. Repeating a statement twice is not substantiating. The Standing Orders make it clear that a Member who makes allegations against any person must be ready to substantiate, either now or at the time appointed by the Speaker.

What are you relying on?

I am relying on the Standing Order Number---

Just a minute. Let him get the Standing Order because he is on his feet.

Mr. Deputy Speaker, Sir, it is Standing Order No.94 which is about the responsibility for statement of fact. Standing Order No.94 states that:- “(1) A Senator shall be responsible for the accuracy of any facts that the Senator alleges to be true and may be required to substantiate any such facts instantly. (2) If a Senator has sufficient reason to convince the Speaker that the Senator is unable to substantiate the allegations instantly, the Speaker shall require that such Senator substantiates the allegations not later than the next sitting day, failure to which the Senator shall be deemed to be disorderly within the meaning of Standing Order 110 (Disorderly conduct) unless the Senator withdraws the allegations and gives a suitable apology, if the Speaker so requires.” Mr. Deputy Speaker, Sir, I would like the Senate Majority Leader, because of the allegations against Mr. Davis Chirchir now that he has confirmed which Chirchir he was talking about, to provide to this House evidence of the statements that he has made to the extent that he masterminded election fraud. 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 your point of order?

Order, Senators! Order! Let me dispose off the last one first. Sen. Murkomen is entitled to seek further clarification on the point of order that he raised and that satisfies Sen. (Dr.) Machage. Sen. Wetangula, you made an allegation against a certain Mr. Davis Chirchir whom you have indicated to be a specific one. You made serious allegations against him. Are you able to substantiate?

Mr. Deputy Speaker, Sir, it is a rule of thumb that a Member is not obligated to substantiate what is obvious.

Order! Order, Sen. Wetangula! I do not think so. You made an allegation against a person who is not sitting in this House and therefore he is not supposed to defend himself.

I have not finished---

Order, Sen. Wetangula. I heard you. I am in control of the debate. You made an allegation against a person who is not in the House. You made rather serious allegations against him. They could be true or maybe they are not true. I have absolutely no idea. I do not know about the veracity of any of the things you have said. So the questions that Sen. Murkomen is asking is: Are you able to substantiate? If you cannot, then you must withdraw and apologise.

Mr. Deputy Speaker, Sir, a man called Mr. Davis Chirchir was a Cabinet Minister for Energy. Prior to that, he was the Head of ICT at Independent Electoral and Boundaries Commission (IEBC). In the dossier about the now famed Chickengate, his name is there.

Has that dossier been tabled in this House?

Mr. Deputy Speaker, Sir, that dossier is a report in the National Assembly.

Has it been tabled here?

Mr. Deputy Speaker, Sir, it has been tabled in the National Assembly.

Has it been tabled here?

Mr. Deputy Speaker, Sir, if you give me time I can bring the report.

Exactly; that is the point. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I can bring the report. Let me finish.

No, Sen. Wetangula!

Mr. Deputy Speaker, Sir, I cannot be asked to substantiate and then I cannot be given time to substiante---

Order, Sen. Wetangula! Order! I cannot allow you to altercate with me. I am sitting here and I know the rules. I am here to enforce the rules of the House. I am not doing it to please any Member of this Senate. I will do it according to our own Standing Orders. That needs to be understood clearly. The point here is this: You made a serious allegation against a person who is not in this House. I have no idea of knowing whether or not what you have said is true. I have no idea at all. It is not part of my responsibility, really. However, the point I am making is that you are either going to substantiate what you have said or give us a date when you are going to substantiate with documents or you are going to withdraw and apologise. It is as simple as that.

Mr. Deputy Speaker, Sir, what is there to substantiate? You are challenged on an issue you have raised then you explain. There is no requirement in these Standing Orders that substantiation means I have to carry documents and place on the table. I have been challenged to substantiate and I am substantiating by explaining the source of my information, the basis of my assertion and why I said so. I feel disheartened that my distinguished and respected Speaker in the Chair now is trying to participate in debate instead of giving me time to explain myself.

Order, Sen. Wetangula! I will give you directions on this matter because you and I are not going to argue on this issue. You know the rules as well as I do. When you tell me that a report on something called “chicken gate” is somewhere, and I ask you a question whether it has been tabled in this Senate, you talk about the National Assembly. I do not preside over the National Assembly, and I have no knowledge about that report. You must protect the dignity and personality of every Kenyan. If you want to talk about “chicken gate”, it is an individual issue. I am not protecting anybody. You can substantiate it. If you cannot do it now, give us a date when you are going to table documents to show that there is something called “chicken gate” and the person you are naming was involved or in the alternative, bring us a court record to show that the person has been charged in a court of law and indicted. I cannot allow statements to fly in the Senate against persons who are not able to defend themselves here. It is not fair and it is against the rules of natural justice. If you call that an argument with me; I am not arguing with you at all. I am stating the law as I know it and the procedure of the Senate as I understand it. What is it, Sen. (Dr.) Khalwale?

On a point of order Mr. Deputy Speaker, Sir, I realize how difficult it is for you to rule because this is an important matter. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

I have ruled. It is not difficult for me to rule.

I am saying I appreciate. I want to agree with you on your ruling but it will also help. I sat on this Committee and during the presentations that various stakeholders made, the name of Mr. Chirchir was mentioned in respect of “chicken gate”.

You may want to help Sen. Wetangula in substantiating when the time comes, whether it is now or in the future. Do not enter in the same fray unless you are able to substantiate now or in the future.

Sen. Wetangula): To cut a long story short, Mr. Deputy Speaker, Sir, let me give you the following undertaking that at the next sitting, I will bring evidence to show that Mr. Chirchir worked at IEBC, that he was in charge of Information Communication Technology (ICT), that he was named in the “chickengate” where two white men are in jail in the United Kingdom (UK), that he was among the list of people the President brought to Parliament when he addressed joint Houses of Parliament as one of the then suspects of corruption, that on the basis of that Report by the President, he was suspended from office, that as a consequence of that suspension, he was subsequently dismissed by the President and another Minister appointed in his place, that consequent upon his suspension and dismissal, he has not been hired by the same Government to any other job because he does not fit the requirements under Chapter Six of the Constitution. I will bring all those at the next sitting.

Very well. At least you have now told us that you are going to be able to substantiate. It is on HANSARD that you have mentioned seven items that you are going to prove to substantiate and it is so ordered that at the next sitting of the Senate, you have to substantiate by tendering and tabling documents.

Sen. Wetangula): I will do it, Mr. Deputy Speaker, Sir.

Mr. Deputy Speaker Sir, the reason I raised the point of order is not in the seven areas of substantiating. Sen. Wetangula said that Mr. Chirchir participated in masterminding the greatest rigging using technology. That is the very reason I raised that issue and he must add it in the seventh list. To the best of my knowledge, Mr. Chirchir never worked for the Independent Electoral and Boundaries Commission (IEBC); maybe the Interim Independent Electoral Commission (IIEC). He has never been a head of a technology unit, he was then a Commissioner. He, therefore, must add the question of masterminding the greatest rigging. In his first statement, he never said that it was an allegation. He, therefore, must add it in his seventh list of issues because this is captured in the HANSARD.

This is a very serious issue, not because of any individuals named but because it is an allegation or a statement against a The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker Sir, there is no problem whatsoever. The Independent Electoral and Boundaries Commission (IEBC) is a successor in title to the other. The distinguished Senator for Elgeyo Marakwet knows the facts that I am talking about. Let me conclude by saying that from my position of leadership, I encourage both Houses of Parliament to pass this Report and move on to deal with the Bills both on election offences and on the amendment of the Elections Act. But more importantly, it is very critical that we all embrace this reform process so that there are no people feeling they have lost or won. I want to stand here and defend Sen. Orengo and the entire team because I have heard some people alleging that Sen. Orengo and his team gave in too much. Hon. Kalonzo Musyoka, Rt. Hon. Raila Odinga and I have spoken publicly in full support and confidence in the product of this process and so has President Uhuru Kenyatta. Finally, we came to where we are, not because we all of a sudden discovered our sanity but because there was interlocutors. Allow me to salute the leaders of various churches led by Bishop Korir of Eldoret, Canon Karanja of the National Council of Churches of Kenya (NCCK), Bishop Okoth of Kisumu, Bishop Obanyi of Kakamega, Bishop Kilioba of the Pentecostal Evangelical Fellowship of Africa (PEFA), Bishop Rotich of the Army and the leaders of the Muslim community. All these people shuttled between the leadership of CORD and Jubilee in the midst of the demonstrations that we had. Allow me to also salute the diplomatic community, more particularly, the American ambassador Robert Godec and his British counterpart who shuttled between Jubilee and CORD consistently and tirelessly to make things happen. More importantly Mr. Deputy Speaker, Sir, allow me to salute the Kenyans who lost their lives to bring sanity to the leadership of this country. There are people who are six feet deep and those who are still in hospital. They were crippled and suffered serious injuries because they wanted the country to find a direction of sanity that can take us to the next elections without the risk of a conflict. Those people sacrificed, including their own lives. Allow me to salute the young men and women who, on hungry stomachs, braced the brutality of Maj-Gen.(rtd) Nkaisserry and his policemen on the streets of Nairobi; firing at them with water cannons, tossing teargas at them as if they are throwing cakes at children and boasting on television in the evening that “ kama hawaogi nyumbaninitawaosha tena.” Kenyans made a sacrifice to make a point. Indeed, without those sacrifices, I can say without any fear of contradiction that we would never have formed the Joint Select committee to sit and bring what they have brought. Allow me to salute people who at the beginning sounded obstinate and belligerent - they were digging in saying ‘never, no retreat no surrender’ - but came back and agreed to serve in this Committee. They turned out to be great negotiators and did a good job. 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, Sen. Wetangula. Sen. James Orengo, do you want to reply?

Mr. Deputy Speaker, Sir, very briefly because we have been at this for very long. I thank the leadership of the House from both sides of the divide for the leadership they have shown in this matter. I also thank the membership of the Committee. I want to respond on one issue only. Sen. (Dr.) Machage said that the commissioners have been treated unconstitutionally, but that is not true. As we speak, nobody has removed the commissioners. I can assure him that nobody is going to remove them at any time. I can also assure him that no commissioner has been forced out of office. Mr. Deputy Speaker, Sir, no Commissioner has been forced out of office. Those who wish to remain can do so. That is not in doubt. The Committee was well aware about their legal limitations. The Members should look at Article 251 of the Constitution again. It provides about the removal of the Commissioners. We knew we could not go under Article 251. What we were looking for was vacation from that office which the Commissioners voluntarily told us that they were willing to do. That is how we started talking about a dignified exit from office. However, having said that, Parliament has a great opportunity to show leadership on this occasion; that we can resolve conflicts amongst ourselves. This is the day we should show it. We will not resolve conflicts by looking at selfish interests as other leaders may do but by looking at the question before us today. I am encouraged by the spirit in this House. Mr. Deputy Speaker, Sir, with those few remarks, I move.

Thank you, Sen. Orengo. Hon. Senators, it is the end of the debate and as required under Standing Order No. 72, this is a Bill not affecting counties for purposes of voting by the delegations. It is a voice vote. Therefore, I will put the Question. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

(Sen. (Prof.) Kindiki): Mr. Deputy Speaker, Sir, I beg to move:- THAT, pursuant to Standing Order 28 (4), the Senate resolves to alter its Calendar in respect to Part III of the Fourth Session for the Sittings scheduled to resume on 13th September, 2016 instead commences on 20th September, 2016.

Hon. Senators, we still have some Business to dispense. I am requesting you to sit in.

(Sen. (Prof.) Kindiki): Mr. Deputy Speaker, Sir, I do not wish to speak a lot but I will be brief because we have been here since 9.00a.m., for which I am grateful and I do not take it for granted. I know it is our responsibility but I think this is over and above what is expected of us. As Senators are aware, we have interrupted this recess three times. Every time we have interrupted it, we have had Senators here and on one occasion we missed one Member to put through the vote. However, notwithstanding, we had 23 delegations who were present. Therefore, I thank the Senators for being kind enough and responding to the national duty by interrupting the recess. Mr. Deputy Speaker, Sir, secondly, during those three interruptions in the middle of the recess, we have transacted extremely useful Business. I am happy to note that all the Bills that had constitutional deadlines are now dispensed to finality. We need to applaud ourselves because of that national duty.

The country should rest assured that by Friday, 27th August, 2016 the two Houses will have discharged their responsibilities. Thirdly and finally, I wish the Hon. Senators, fruitful remainder of the recess. It is in this connection, that I consulted with the Senate Minority Leader and the other House Business Committee Members and it was agreed that perhaps in order to adjust to that interruption, we extend the recess by one more week. Instead of resuming on 13th September, 2016, we resume on 20th September, 2016 so that we finalise the important Business that we have started this morning. The Report that has been adopted has two Bills which must be enacted as soon as possible to allow the process of reconstituting the Independent Electoral and Boundaries Commission (IEBC). I take this opportunity once more to thank Senators and wish them a fruitful recess. God bless you. God bless our The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I beg to second this Procedural Motion that seeks to give the Senate an extra week of recess because we have eaten away a whole week of our recess by recalling Members twice. Although today, we have had an uninterrupted sitting, these are literally two sittings. We have sat in the morning and in the afternoon. We expect Senators to be out there also doing some public work, constituency work, et cetera .

Mr. Temporary Speaker, Sir, as we extend this recess by one week, allow me to acknowledge that the President has finally succumbed to public pressure and signed the Bill that caps interests into law so that we can tame banks that have been fleecing Kenyans. You saw cases in---

(Sen. (Dr.) Machage): Senate Minority Leader, although it is really not unparliamentary but be fair in your language; that, the President has succumbed to public pressure is not fair.

Mr. Temporary Speaker, Sir, if you watched the television over the weekend, I personally put pressure. There are many others who did, including the Member who brought the Bill. They were threatening all manner sanctions from his own party; Jubilee.

(Sen. (Dr.) Machage): You are entitled to your language. Proceed.

Mr. Temporary Speaker, Sir, sometimes I ask myself why this country likes copying. My colleagues including the Senate Majority Leader can bear witness. In America, banks cannot increase interest rates by 0.5 per cent without sanction from the Federal Reserve Director. They cannot. In England, the head of the Bank of England which is equivalent to our Central Bank will not allow any bank to escalate interest rates by one per cent without its sanctions. I do not want to give a personal testimony but I can tell you that in 1995 I borrowed Kshs970,000 from then Kenya National Assurance to purchase a mortgage. By the time I sold another property to pay that loan, I had paid Kshs19,800,000 up from Kshs970,000. There are people who have suffered even more. Even with the in duplum rule that we adopted as law, banks do not care. We have a governor of the Central Bank who does not seem to know what he is doing. He is busy telling banks that if, for example, Sen. (Dr.) Machage goes to withdraw Kshs1 million you have literally to write an essay to explain what you will do The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

(Sen. (Dr.) Machage): Let us go back to the main point lest I hit you on irrelevancy.

Mr. Temporary Speaker, Sir, normally in this Motion you say anything under the sun. It is like contributing to the President’s Speech. We have sat for a long time. I beg to second that we extend our recess by an extra week and as we go on to our extended recess, I wish each Member a very good recess and congratulate all of you, just like my brother did for the job well done this afternoon. I fully appreciate your out of turn dissent on the matter---

(Sen. (Dr.) Machage): Order. The minorities will always be heard when the majority have their way.

Mr. Temporary Speaker, Sir, that is why I am saying that we appreciate your point of turn in dissent. As your leader, I had pronounced publicly that every Member must be whipped to support. You dissented, but I will not take any action against you. I beg to second.

(Sen. (Dr.) Machage): Order. You cannot take action against the Speaker.

On a lighter note, he is the Principal of my party.

Mr. Temporary Speaker, Sir, I strongly support this Motion, not because I have become lazy but because I want to appreciate the fact that the few days we have been here, we have done tremendous work. It gives me a lot of pleasure that we have now met all the deadlines on all constitutional Bills. That is yet 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. (Dr.) Khalwale, if I were you, I would have waited for their term to come to an end. Now you are waking them up.

They have no time. Even if they try, we have got them. As we speak now, the Senate Majority Leader, who is a youth, will also agree with me that I am crying for many youths including those ones in Tharaka-Nithi, that not even a single wheelbarrow of sand intended to construct a stadium has been delivered. The Jubilee government instead went to Chuka and annoyed and irritated the youth by trying to honour some characters for the tremendous work they have done for the people of Chuka by naming the great roads of Chuka after them. Please, the people of Chuka; hold in there. How can you build a road in honour of the Deputy President? Is he not the one that we are told that opinion polls say that his Office is the most corrupt in the Republic of Kenya. It appears like there is no achievement until you put it on the scale at the international level. Internationally, Kenya has been rated to be the third most corrupt country. So, if Ruto is the most corrupt person in Kenya, it means he is the third most corrupt person in the world. 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): May I remind you that newspaper information is not admissible in this House.

Mr. Temporary Speaker, Sir, I was using opinion polls but not newspapers. In the current age of technology, there are many ways of getting access to opinion polls and not necessarily through the media. If the Deputy President of Kenya is the third most corrupt person in the world, it begs the question; what happened to Chapter Six of our Constitution on Leadership and Integrity? Because the Senate Majority Leader is respectfully in the House today and he is on record for having---

On a point of order, Mr. Temporary Speaker, Sir. You have heard Sen. (Dr.) Khalwale saying that opinion polls indicated Ruto to be the most corrupt person. Did the opinion poll actually indicate the individual or the office? Could he substantiate that?

(Sen. (Dr.) Machage): Very well, you have been challenged.

Mr. Temporary Speaker, Sir, I take the challenge in my stride. Allow me to remind my good colleague from Trans Nzoia that Parliament does not expect a debater to substantiate the obvious. If you are in doubt---

(Sen. (Dr.) Machage): Order! Sen. (Dr.) Khalwale, it might appear obvious to you but that is a subjective issue. Whatever may be obvious to you may not be obvious at all to other legislators in this House. So, just go ahead and do the noble thing by substantiating.

Mr. Temporary Speaker, Sir, I want to do it gladly and thank you for the invitation. Mr. Temporary Deputy Speaker, Sir, the opinion poll indicated office by office. The first is the Office of the Deputy President; the second is the Office of the President; the third is the aaah of the aaah ; the fourth is the eeeh of the eeeh ; all of them offices of Jubilee.

(Sen. (Dr.) Machage): Order! Order! You are a medical doctor. I know your IQ is far much above average and you have a very good memory. You are supposed to just clear the air whether the name of Deputy President William Ruto was mentioned or just the office. That is all. Why do you labour a lot about the aaah and the eee h ?

Thank you, Mr. Temporary Deputy Speaker, Sir, I wanted to make it abundantly clear because you had suggested that these Senators are not informed. So, I wanted to make it even clearer. Therefore, if number one and two are the offices of the Deputy President and the Office of the President, the question, is Sen. Ole 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. Ole Ndiema?

Mr. Deputy Speaker, Sir, on a point of order. I asked for substantiation because we know an office comprises of many officers. An office may not necessarily mean the individual who is heading that office. What I asked is; can you substantiate whether that report actually indicated the name of the Deputy President by the name William Ruto or was it the office. Can you clarify that?

Mr. Deputy Speaker, Sir, instead of beating around the bush, to further substantiate, some of the scandals that are the reason why the Office of the Deputy President is in the lead, include an occasion where none other than the President of the Republic tabled in a Joint Sitting of this Senate and the National Assembly the list of the names of the people who were named as being suspects. One of those people involving Kshs200 million was none other than the Chief of Staff of the Deputy President, Ms. Mary Keittany.

(Sen. (Dr.) Machage): Order! Order, Sen. Khalwale! May you have a seat. I know you are a good legislator and a seasoned politician in this House. I call upon you to look at Standing Order No.90(3): “It shall be out of order to use offensive, insulting language whether in respect of Senators or other persons” Please, I may not reprimand you too much on this but tilt your discussion and tone down on mentioning the Deputy President on this or else I will hit, and I will hit very hard.

Mr. Deputy Speaker, Sir, so guided. As you guide me---

(Sen. (Dr.) Machage): I have not allowed you. You heard my order to Sen. (Dr.) Khalwale and that was enough.

Mr. Deputy Speaker, Sir, on a point of order. Is it in order and is it Parliamentary for the distinguished Speaker to tell a Member that you will hit and hit very hard? The Speaker only rules either for or against an issue. I am on a point of order Mr. Speaker.

(Sen. (Dr.) Machage): I thought you are through.

Mr. Deputy Speaker, Sir, I get worried because the Chair is an impartial Arbiter. The Chair rules a Member out of order or rules you in order to proceed.

(Sen. (Dr.) Machage): Very well I have heard that. Let me hear another point of order.

Sen. (Prof.) Kindiki): On a point of order, Mr. Temporary Speaker, Sir. My point of order is twofold; one, whether the Leader of Minority is in order to challenge the Speaker. To the best of my knowledge, the Speaker cannot be out of order. Secondly, is it in order for Sen. (Dr.) Khalwale to impute the motives he has imputed considering that corruption is a crime and criminal law 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): Of course, he is not in order and for Sen. Wetangula; “hit” is an English word that could mean beating, application of fire and so on.

Which is not applicable in this case---

(Sen. (Dr.) Machage): Order, Sen. Wetangula! Continue, Sen. (Dr.) Khalwale.

Thank you, Mr. Temporary Speaker, Sir. Allow me to respond to the point of order by the Senate Majority Leader. Had he been listening to me carefully, he would have realized that I was not discussing the conduct of the Deputy President. The rules of debate do not allow me to. All I was doing was asking oversight questions. Once you are in public office, you must be prepared under a democratic dispensation like the one we have in this country---, you must be prepared to live with the questions of what, why, when, how and why not. Whenever we ask this question, people start running away saying you are debating my conduct, they are running away saying it is hate speech; not that way. If people in public office cannot take such kind of questions, they are free to tender in their resignations and go home. It is about our money and people’s private money. They have their own privet money. We are demanding for accountability of how public offices are run and how public resources are expended. Mr. Temporary Speaker, Sir, having said those many words, I hope I will come back from the recess a very happy man that the Sports and Culture and Arts Cabinet Secretary Hassan Wario has been given justice and not converted into a sacrificial lamb. I support.

Thank you, Mr. Temporary Speaker, Sir, for the opportunity. I stand to thank the leadership of this House for convening this Special Sitting. I want to congratulate my colleagues Senators. I believe we have put in a genuine hard work to be able to accomplish the important business we were convened to transact; in particular, that we were able to debate and vote on the important constitutional Bills which had the deadline of 27th August, 2016. All that is behind us now, and I appreciate and thank the efforts of all the Senators. Mr. Temporary Speaker, Sir, we have also debated and adopted the Report of the Joint Select Committee on matters relating to the IEBC. We hope to put in place an institution which is credible and acceptable by all Kenyans to manage our elections. We all agree that the conduct of fair, credible and democratic elections is an important prerequisite for stability and harmony in any country in the world. We are looking for good days ahead of us. In respect to the one week extension, I believe we deserve this and I wish to take this opportunity to wish every Senator a very fruitful vacation. Thank you. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

On a point of order, Mr. Temporary Speaker, Sir. I want to urge the Chair to, probably, reduce the time of contribution so that we can run through the list and allow Senators to attend to other things. We can each be given two minutes because this is a Procedural Motion.

(Sen. (Dr.) Machage): Very well, the subsequent legislators will have two minutes.

Mr. Temporary Speaker Sir, I am concerned that if part three of the fourth session of the sitting of the Senate is to begin on 13th September, 2016, some of us have suspicions about it. It, therefore, appeared to us that the Session will be mired in negativity. I am very pleased that the negativity will be no more now that we will start on 20th September, 2016. We have achieved a lot. When I retired as the Attorney General, one of the greatest achievements I had achieved with other stake-players was that we ensured that the legislation which was supposed to be enacted under the Sixth Schedule of the Constitution within one year was actually enacted within one year just before I retired. I also want to reiterate that I do hope that there will be no need for diplomats and church leaders to come in for us to put our heads together in future. There will also be no need for people to be injured and even end up dying before we can sit round a table and solve problems. We should be able to see the problem and solve it. There would have been no need for us to have been called during recess had we done this before then. This would have been passed in good time about a year or so ago and we would now be focusing on implementation. I wish all the Senators good recess. Let wananchi see what you are doing in the Senate. Please, explain to them because the role of the Senate has not been understood by the electorate.

Mr. Deputy Speaker Sir, it was wise and pragmatic for the leadership to realize that they had called us far too many times. I thought this recess was supplied so as to give us an opportunity to go into our fields. They must try to see if they can communicate so that we also limit the committee meetings so that people can go to the ground and be felt. Unless the leadership has very compelling reason to call us between today and the 20th September, 2016, I believe that the decision they made is wise. Let us now serve the full length of our recess for us to be visible in the counties that we serve.

Thank you Mr. Temporary Speaker, Sir. I congratulate the leadership of this House and all Senators for the dedication that has seen us clear all the business that was before us, especially Bills with constitutional deadlines. We have done it in record time despite the fact that these Bills always reach us late. Today we have had a marathon Sitting, I believe like in the true athletics spirit of Kenya that our marathoners have shown. Kenyans won quite a number of medals. We are proud of our athletes more so, our marathon runners who won both the female and male titles in marathon for the first time ever. I congratulate them. 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 join my colleagues in appreciating the efforts of the Joint Select Committee of Parliament that prepared a Report worth mentioning and recognizing. I applaud the manner in which they conducted the business, particularly the bi-partisan approach with which they handled these matters that had a lot of divergent views. They carried the country together. They carried both Houses and the leadership from both sides together. It is a very good effort. The history of IEBC in this country has not been very good, honestly. The Kivuitu-led commission was sent home and now another one is about to be sent home. I recognize the legal, institutional and policy recommendations suggested by the Joint Select Committee. In fact, it is important to build sound institutions. Individuals come and go, but institutions that are built firmly on sound principles normally last. I would encourage that beyond picking individuals to serve as commissioners, our country, leadership and legal minds must set up sound systems that will move us forward in the years to come. Finally, I thank the top political leadership in this country for the commitment they showed towards restoring peace and order and creating harmony amongst the various communities in this country. Kenya is not a small country; it is a country that has many tribes.

(Sen. (Dr.) Machage): Your time is up. Sen. Godliver Omondi.

Mr. Temporary Speaker, Sir, I join my colleagues in supporting the Motion on the alteration of the Senate Calendar. As we proceed on recess, I would like to pass the message that the Bill on the one-third gender rule is for either gender. A time will come when more women will be elected and this Bill will support more men to be in Parliament. We need God’s intervention to deal with the issue of corruption in this country. This is because it is the common mwananchi who is suffering in the process. It is the high time that everybody goes back to God. At the end of the day, everything that we have is provided for by God. I say this with a heavy heart. There is corruption even in sports and the sportsmen and women are suffering. I support the Motion.

(Sen. (Dr.) Machage): Hon. Senators, we remain seated because I have not put the Question. However, it is a procedural Motion and the Mover does not need to reply. 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, this brings us to the end of today’s session. We have no other business today. Therefore, the House stands adjourned until Tuesday 20th September, 2016 at 2.30 p.m. The Senate rose at 4.30 p.m. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.