Order, hon. Senators. I take this opportunity to welcome you back for this Special Sitting during the Fifth Session of the Senate. I thank you for finding time from your busy schedules to attend the sitting. I am aware of the busy schedules that each one of you has at such a critical time as this in our election calendar. Hon. Senators, by a letter dated 17th May, 2017 and pursuant to Standing Order No.29(1) of the Senate, the Senate Majority Leader and the Senate Minority Leader, supported by the requisite number of Senators, requested the Speaker to convene a Special Sitting of the Senate to conclude consideration of the following business:- (a) The Report of the Joint Parliamentary Select Committee on the election of Members to the East African Legislative Assembly (EALA); (b) Bills pending before the Senate; and, (c) Petitions due for presentation or reporting to the Senate. Hon. Senators, following consideration of the request by the Senate Majority Leader and the Senate Minority Leader, I was satisfied that it met the requirements of Standing Order 29 (2). It is in this respect that I convened this Special Sitting of the Senate via Gazette Notice No. 4898 dated 22nd May, 2017. Honourable Senators, as required by Standing Order 29 (5), the Gazette Notice specified the business to be transacted at this Sitting and it is the business scheduled in today’s Order Paper. Indeed, as specified and in accordance with Standing Order 29(5) of

Sen. Ndiema, proceed! REPORT ON PETITION: MODE OF DISTRIBUTION OF SUBSIDIZED FERTILIZER AND FREE SEEDS TO FARMERS

Mr. Speaker, Sir, I beg to lay the following Report on the Table of the Senate today, Thursday, 25thMay, 2017. Report of the Petition by Mr. Gideon Kiprotich, a resident of Kericho County, on the distribution of subsidised fertilizer and free seeds to farmers. Thank you.

Hon. Senators, I have three other petitions to present to you. ALLEGED CORRUPTION AND NEPOTISM AT THE MAKUENI COUNTY EXECUTIVE Pursuant to Standing Orders No.220(1)(a) and 225(2)(b), I, hereby report to the Senate that a Petition has been submitted through the Clerk by Mr. Justus Mutunga Mutuku, a resident of Makueni County, on alleged corruption and nepotism at the Makueni County Executive. Among the issues raised by the petitioner are the following:- (a) THAT, the Makueni County Government has on several instances flouted public procurement laws by failing to advertise tenders or failing to award tenders to the lowest bidders for supply of goods and services to the County Government; (b) THAT, the Makueni County Government has allocated and spent funds towards projects not falling within its mandate and further, without obtaining approvals for such projects from the Makueni County Assembly or other constitutional bodies. An example is the construction of a residence for the Deputy Governor while the Salaries and Remuneration Commission had issued a circular in 2013 to the effect that only the governor and the County Assembly speaker are entitled to such a benefit. (c) THAT, the Governor of Makueni County has shown undue favouritism and nepotism in recruitment, assignment of duties, promotion and remuneration of staff working at the County Executive, contrary to Articles 27 and 73 of the Constitution and Sections 59, 60 and 62 of the County Government’s Act; and

Hon. Members, pursuant to Standing Order No. 220(1)(a) and 225(2)(b), I hereby report to the Senate that a petition has been submitted through the Clerk of the Senate by a Mr. John Kimani Gitau, a resident of Nakuru County, concerning alleged wrongful dismissal from the public service. In the petition, the petitioner states; (a) The Public Service Commission (PSC) unlawfully dismissed him from the public service without following the administrative procedures and regulations that govern such a process. (b) His efforts to obtain redress from, among others, the Kenya National Commission on Human Rights (KNCHR) and the Commission on Administrative Justice (CAJ) have not yielded any positive outcome. The petitioner, therefore, prays that the Senate investigates this matter and makes appropriate recommendations thereon. Hon. Senators, pursuant to Standing Order No.226, I shall allow comments on this after I have exhausted the remaining petitions. SETTLEMENT OF VARIOUS DEBTS OWED TO NAIROBI CITY COUNTY GOVERNMENT BY THE NATIONAL GOVERNMENT AND ITS AGENCIES

Hon. Senators, pursuant to Standing Orders 220(1)(a) and 225(2)(b), I hereby report to the Senate that a petition has been submitted through the Clerk of the Senate by Dr. Evans Kidero, the Governor of Nairobi City County concerning the settlement of various debts owed to the Nairobi City County Government by the National Government and its agencies. In the petition, the petitioner states as follows; (a) The Nairobi City County Government is currently facing cash flow challenges which have made it difficult for the county government to meet its financial obligations, among them payment of salaries, remission of statutory deductions and the fulfillment of service delivery obligations to the residents of the Nairobi City County. (b) The problem is compounded by the huge outstanding debt that remains uncollected, the bulk of which is owed by the national Government, its agencies, corporations and other government entities. The petitioner states that the amount owed by the National Government is estimated to be Kshs9 billion.

On a point of order, Mr. Speaker, Sir. I do not know whether it was deliberate, but you have not read the last petition.

Order, Sen. Obure! I can confirm that it was not deliberate. I had information that there were three petitions. However, I did not bother to check the bundle that I was holding. Apparently, all the three were in the bundle that I was holding. The third document looked a bit thick because the one you are looking for was attached to it. VARIATION OF THE BOUNDARIES OF NYANGWETA FOREST Hon. Senators, I hereby report to the Senate that a petition has been submitted through the Clerk by the Governor of Kisii County, Hon. James E.O. Ongwae for variation of the boundaries of Nyangweta Forest in South Mogirango Sub-County, Kisii County. The petition is submitted pursuant to Section 34 of the Kenya Forests Conservation and Management Act No.34 of 2016 which outlines the procedure to be followed in varying the boundaries of or revocation of a public forest as well as the factors to be considered in arriving at such a determination. In the present case, the petitioner prays that the Senate approves the proposed variation of the boundaries of Nyangweta Forest in South Mogirango Sub-County, Kisii County by excision of 120 acres thereon to avail land for the establishment of a complex comprising of the following: (a) A sugar production plant (b) an ethanol production plant (c) An electric power generation plant The petitioner indicates that the County Government of Kisii has entered into a Memorandum of Understanding (MoU) with an investor for the development of the said complex and it has since obtained the following approvals and licenses; (1) Approval by the County Assembly of Kisii; (2) The Environmental Impact Assessment (EIA) license from the National Environment Management Authority(NEMA); (3) Approval by the Kenya Forests Service (KFS); and (4) Approval by members of the public through various stakeholder engagement fora. The documents relating to the captioned approvals are annexed to the petition. Pursuant to Section 34 of the Forest Conservation and Management Act as well as applicable provisions of the petition to Parliament Procedure Act and Senate Standing

Mr. Speaker, Sir, allow me to hail Mr. Mutunga Mutuku, a resident of Makueni County, the Governor for Nairobi, the Governor for Kisii County as well as Mr. John Gitau for petitioning the Senate using that constitutional provision to address issues that may be affecting them or the society. On the petition by Mr. Mutuku, the story reads the same in all the counties where county governments have blatantly and deliberately flaunted procurement procedures, refused to involve the public in what they are doing yet it is expressly provided for in the Constitution that public participation is mandatory. I know that a few of my colleague who have expressed interest for governorship such as Sen. (Dr.) Khalwale and Sen. Sang who have been given the nod by their political parties---. I urge them that once they get there, they should show the difference. I want them to show the difference so that devolution can succeed and benefit the public. Mr. Speaker, Sir, I am only worried that these petitions may not get the justice that they deserve because members of these relevant committees are so busy on their campaign trails. Therefore, it is very difficult to raise quorum. I tried that in my Committee and I can tell you that it is extremely difficult to raise quorum. However, I urge all the committees where these petitions have been referred to expedite this process of looking into them in the next two weeks so that they can table a report in the Senate. I beg to support the petitions.

Mr. Speaker, Sir, my remarks are in relation to the petition brought by the Governor of Kisii County. In normal circumstances, you would expect that Senator of a county to know something about a petition being presented to the Senate by the Governor of his county. Unfortunately, I am hearing about this petition for the first time. This demonstrates the poor working relationship between governors and senators in some of our counties. That notwithstanding, this petition touches on the livelihood of many people in Kisii County, especially the residents of South Mugirango and its environs. The petition is seeking authority to vary the boundary of Nyangweta Forest with the view to apportioning land for the establishment of a sugar production plant, an ethanol production plant and an electric power generation plant. These industrial ventures proposed will have a positive impact on the economy of the county and more directly on the citizens of South Mugirango through the generation of job opportunities and income to local residents, especially sugar cane farmers. The ventures are also expected to trigger the growth of many support services.

Hon. Senators, I encourage you to restrict your comments to not more than three minutes.

Mr. Speaker, Sir, thank you for giving me this opportunity to make my comments regarding the petition by the Governor of Kisii County, His Excellency James Ongwae. From the onset, I congratulate the Governor for coming up with such an excellent idea of putting up a sugar cane factory in South Mugirango. The essence of devolution was to take services closer to the people. By putting up the sugar factory in South Mugirango, it will be a big catchment area for our farmers. The intended sugar factory will serve close to 50,000 farmers from the whole of the former Gucha District. It has a catchment of South Mugirango, Bobasi and Bomachoge constituencies. The nearest factories have been Trans Mara and SONY Sugar companies. Many times, you find that the farmers in south Mugirango are not able to deliver their cane to those two factories because of the distance. You will find that sometimes these two factories want to, first f all, serve their catchment areas. Therefore, I want to laud the Governor for bringing the services closer to the people. If our people in South Mugirango have the factory, they will have their cane harvested in time and processed to produce sugar. That also means that we will have sufficient sugar for the people of Kisii County. Mr. Speaker, Sir, I want to note that the various necessary licenses and consents have already been received. The county assembly has already given its approval and a license has already been given---

Order, Senator! Do not repeat what you said.

Mr. Speaker, Sir, I am speaking on rights but I stand to be guided.

Do not do industrial production on the Floor. Just give a justification.

I stand to be guided. Mr. Speaker, Sir, as I was saying, this is a very commendable petition. Just like the Senator for Kisii County, I also request that the relevant committee moves with speed, so that we have the factory up and running. I thank you.

Mr. Speaker, Sir, the fact that today we have four petitions touching on matters of provision of services to Kenyans before this Senate is an indictment of the Executive and the many independent institutions we have in this country. If institutions carried out their functions and mandate effectively, some of the matters that have been raised like determination of boundaries and collection of intergovernmental debts would not find their way to the Floor of the Senate.

I can see that there is great interest. I direct that the contributions are limited to a maximum of two minutes. Let us have Sen. (Dr.) Machage.

Mr. Speaker, Sir, my concern is with the petition about annexing of Nyangweta Forest. I am of a little bit different view from Senators from that area, especially with the reason that Nyangweta also borders Migori County and the environmental impact that has been studied may not have included Migori County. As a person from a region that produces sugarcane, I would advise the Senators from the area to think twice before jumping into the sugarcane industry, taking cognizance of the size of land available for that kind of introduction in Kisii where land is a major issue.

Order Senator, your time is up.

Mr. Speaker, Sir, I commend and thank the Governor for having brought this Petition. It is a clear indication that some of our governors have the best interest of “Wanjiku” at heart and they are doing what they should be doing. I hope and believe that the committee will look into it so that he gets what he needs. I also hope that proper structures will be put up for accountability for the next Parliaments so that money is utilised properly and the best results are achieved.

Mr. Speaker, Sir, mine is to commend those who have found it appropriate to bring petitions to the Senate but more particularly the petition by Mr. Mutuku of Makueni. I think the Senate should in future look at that petition and allow or provide for an official window where residents of a county can be able to raise issues of governance and malpractices officially without each one of them having to compile a petition. That way, we can help the Senate to cut a lot of embezzlement of funds and malpractices within the counties. Thank you, Mr. Speaker, Sir.

Mr. Speaker, Sir, thank you for giving me the opportunity to add my voice to the petition. My contribution is on the petition on the establishment of a sugarcane factory in Kisii County. I support the idea, the vision and the governor. I believe it is because it will create more opportunities to the people of Kisii and improve the economic growth and status of the county in terms of physical accessibility and development. That is a noble cause in terms of counties and devolution because a county is a country on its own and such establishments improve the growth of a county. I support.

Bw. Spika, naunga mkono ombi lililoletwa na Gavana wa Kisii, Mheshimiwa Ongwae, kwa sababu angependa kutumia ardhi hiyo kujenga majengo ambayo yatafaidi umma siku zijazo. Kuhusu ombi la Makueni, ningependa kusema kuwa nitaenda nyumbani shingo upande tutakapomaliza kipindi cha Bunge hili kwa sababu sijaona gavana hata mmoja akipelekwa jela na kufungwa. Wanaiba usiku na mchana na bado wanatembea barabarani. Wengi wao wamepata vitambulisho na tiketi za kuwania uchaguzi. Huo ni wizi mtupu. Bw. Spika, Bunge hili na mengine yatakayokuja yanafaa kuhakikisha kuwa kazi inafanyika na kuona kwamba mali ya umma inatunzwa.

Mr. Speaker, Sir, thank you for giving me this chance. I would like to make my comments in regards to the Petition by the Governor of Nairobi County, Dr. Evans Odhiambo Kidero, concerning the debt owed to Nairobi County by the national Government. This morning, I happened to have tuned to one of the local FM stations and the guest being interviewed was one Jonathan Mueke, the Deputy Governor of Nairobi County. During question time, when I asked him why Nairobi was dirtier than it was when they took over, he told me to show up in the Senate this afternoon because there would be a petition that would give me the answers. I was looking forward to a petition that would give further details about the incompetence in Nairobi County Government only to be told that there is some debt owed to the County by the national Government. I do not know how that correlates but I will be looking forward to peruse through and get deep into the details. I will keenly want to know what goes into that case.

Sen. Ndiema.

Thank you, Mr. Speaker, Sir. It is very encouraging that we are finally seeing petitions coming to this House from members of the public and governors. This is perhaps an indication that finally they have woken up to the reality that the Senate is there for the purpose of defending, protecting and championing the interests of the counties. They should also be able to avail themselves to account for the funds that the Senate allocates to them. The Petition from Makueni County is very pertinent and it raises issues of accountability. I hope the Committee that has been tasked with that responsibility will act quickly to ensure that accountability is ensured in Makueni County and other counties.

Sen. (Dr.) Khalwale.

Thank you, Mr. Speaker, Sir. There must have been a reason why the drafters of the Constitution, deliberately, in Schedule 4, maintained that this particular function that we are discussing remains with the national Government. Although Gov. Ongwae is right on behalf of his people; that they should have a second factory, where do they expect the rain to come from? Supposing that the people of Kakamega also do the same to Kakamega Forest, the people of the Mau Water Tower and the Aberdares Water Tower also do the same; we are going to finish all our forests. It is critically important that this Petition be defeated. We cannot make it easy for people to exercise deforestation. A forest is a very important thing and how could it be that in your own country as a speaker you have a Senate that is endorsing the destruction of the forest? This is a useless Petition and it must be defeated. If we want to grow more sugarcane in this country we can go to the Tana Delta and many

Order, Sen. (Dr.) Khalwale! Neither I nor your colleagues have endorsed the Petition. That is why it is here for further discussion. Your views, just like theirs, will be taken on board by the relevant Committee. There is no petition that is useless.

Thank you, Mr. Speaker, Sir. As I rise to support to this Petition by Gov. Kidero and noting that I am an outgoing nominated Senator and incoming governor for Nakuru County, I would caution the governor that he needs also to be held responsible for many other monies that have been misused in Nairobi County. Thank God that the Government of Kenya has that huge debt which has not been paid because it might end up paying for it in the next term, whereby it will be in safe hands. I think the delay by the Government was a good timing that the money never ended up in “loose” hands.

Sen. Mutula Kilonzo Jnr.

Thank you, Mr. Speaker, Sir. Being an environmentalist I have great difficulty in agreeing with the excision of forests as a principle. This is because one prominent person in this country was charged because of selling excised forest in Ngong’. Whereas we are supposed to be at 37 per cent of forest cover, we are at 3 per cent. That Petition is, therefore, very strange to me. Secondly, on the Petition from Makueni County, we have had a problem and maybe the next Senate will find a method where we will audit county employees. I remember we found petitions in Bomet County about the governor employing his relatives and he found no wrong reason employing his relatives. A principle must come out clearly on how we should deal with employing relatives. On Gov. Kidero’s Petition, I am aware that the county government of Nairobi is demanding for rates for government buildings including where we are. There are tremendous challenges about the Rating Act. I would like to know the principles under which Kenyans should continue paying taxes or rates in relation to the services they receive. The law says that county governments will get rates from any person including the national Government.

Your time is up Sen. Mutula Kilonzo Jnr. Sen. (Prof.) Lonyangapuo.

Thank you, Mr. Speaker, Sir. I join my colleagues in noting that some of the petitions that have come here instead of looking at the targeted policies that we have, they almost want to deviate from them. The one which stands out as peculiar is the one for Kisii where they want to replace a forest with a cash crop. My colleague, Sen. Ndiema, can tell you that Kitale Town which had a mighty forest surrounding it is now looking awkward just because all the trees were cut down. The rains we used to have near the town have simply not been good. We now have a lot of soil erosion because of that. We should give targets to these counties to ensure that at every year there is a forest cover that they have planted trees on in order to redeem our forests. They should report to this House what they are doing in restoring forests.

Sen. (Prof.) Anyang’-Nyong’o.

Thank you, Mr. Speaker, Sir. I want to make two comments. One is on the bills that the national Government owes the devolved units. In our Committee on Public Accounts and Investments, we were given a promise by the Technical Committee on Intergovernmental Relations headed by Prof. Karega Mutahi that by March they will give us a report on what the Government is doing to settle these debts, so that counties are not hamstrung for too long because without money, services cannot be rendered. Unfortunately, up to now that report has not come. Apparently, that is one of the things that we shall hand over to the next Senate. There should be a very strong word to the national Government that when such promises have been made by institutions of governance, they should be respected. Lastly, regarding afforestation, notwithstanding that we have an organisation called NEMA which is much more concerned about collecting NEMA rates than afforestation; we should learn from the history of USA. In 1971 and 1972 when Richard Nixon was the President, they were faced with tremendous deforestation and they started the Environmental Protection Agency which literally marked out the country and focused on where afforestation was to take place and what trees to be planted and gave a time action plan for this. A country which was being destroyed by deforestation; today when you go along the highways in the USA from any city, you will be surprised at how many trees you will find.

Order, Senator! Your time is up. Hon. Members, the Petition by the Governor of Kisii County, under Standing Order No. 227(1), stands committed to the relevant Standing Committee. In this case, it is the Standing Committee on Finance, Commerce and Budget. On the Petition by the Governor of Nairobi City County, the Committee on Finance, Commerce and Budget will have to respond to the petitioner by way of a report. The report will be addressed to the petitioner and laid on the Table of the Senate as per Standing Order No. 227(2). On the Petition by Mr. John Kimani Gitau, the Standing Committee on Labour and Social Welfare will respond to the petitioner by way of a report addressed to the petitioner and laid on the Table of the Senate. On the Petition by Mr. Justus Mutunga Mutuku, the Standing Committee on Labour and Social Welfare will submit a report under Standing Order No.227(2) to the petitioner and table it in the Senate. Next Order!

(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I beg to lay the following Report on the Table of the Senate today, Thursday 25th May, 2017.

Sen. (Dr.) Machage, do you have a Paper to lay on the Table? REPORT OF THE MEDIATION COMMITTEE ON THE HEALTH BILL

Mr. Speaker, Sir, I beg to lay the following Report on the Table of the Senate today, Thursday 25th May, 2017. Report of the Mediation Committee on the Health Bill (National Assembly Bill No. 14 of 2015).

Are there any Notices of Motions? Could we hear from Sen. (Prof.) Kindiki?

(Sen. (Prof.) Kindiki): Thank you Mr. Speaker, Sir. I beg to give notice of the following Motion:- THAT, the Senate adopts the Report of the Joint Parliamentary Select Committee on the election of Members to the East African Legislative Assembly (EALA) laid on the Table of the House on Thursday, 25thMay, 2017. ADOPTION OF MEDIATION COMMITTEE REPORT ON THE HEALTH BILL

Mr. Speaker, Sir, I beg to give notice of the following Motion:- THAT, the Senate adopts the Report of the Mediation Committee on the Health Bill (National Assembly Bill No. 14 of 2015) laid on the Table of the Senate on Thursday, 25th May, 2017 and pursuant to Article 113 of the Constitution and Standing Order 155 (3) of the Senate Standing Orders, approves the mediated version of the Bill.

On Order No.6 I have directed that the two Bills referred to us from the National Assembly, under Order No. 2, should also be read under that Order.

Instead of the next Order, we will go to Order No. 34. The Senate Majority Leader.

(Sen. (Prof.) Kindiki): Thank you Mr. Speaker, Sir.I beg to move the following Motion:- THAT, the Senate adopts the Report of the Joint Parliamentary Select Committee on the election of Members to the East African Legislative Assembly (EALA) laid on the Table of the House on Thursday, 25thMay, 2017. Mr. Speaker, Sir, as the Hon. Senators are aware, the Joint Parliamentary Select Committee on the election of Members to EALA has been sitting for the last couple of days, if not weeks. The current term of EALA expires on 4th June, 2017, that is, next week on Sunday. According to the East African Community (EAC) Treaty of 1993, the successive EALA is supposed to be in place before the expiry of the current Parliament. It is for that reason that the process of electing new Members to EALA has been taking place during the month of April and the better part of May. It started with the formation of the Committee of both Houses of Parliament; the National Assembly and the Senate. We have had very successful deliberations in that Committee. Prior to that, there have been nominations from the various political parties which were determined as follows:- 1) The Jubilee Coalition, being the majority party, nominates five out of the nine representatives from our country.

What is it, Sen. Kivuti?

Thank you, Mr. Speaker, Sir. May I request through the Chairman of the Committee that the Report be distributed so that as the Mover is moving the Motion, we can be able to follow because I believe this is a very straightforward motion as Sen. Kindiki has put it.

Order Members! Sen. Kivuti, the Report should be made available, but you know how to get it if you really want it. Proceed, Leader of Majority.

(Sen. (Prof.) Kindiki): Thank you, Mr. Speaker, Sir. I had already laid the background to this report, but one thing that stands out clearly is that time is of the essence because by 4th June 2017, the nominees from all the partner states of the East African Community (EAC) are supposed to have been elected. The other thing that I ought to have said is that the Electoral College for the EALA Members is the two Houses of Parliament. So, the two Houses of Parliament will be constituted to be a polling station for the purpose of elections on the basis of one person, one vote methodology. We only have between now and next Sunday to finish this process. It was hoped that the Committee, under the rules adopted earlier on by the two Houses of Parliament, by now ought to have brought the Report. That has not happened. The Report on the recommendations on who should be the nominee is not ready. What we are having is a Report that gives progress on what has been achieved by the joint-select Committee. For the purposes of record, it is important to commend the Members of the Senate who represented us in that Committee including the Deputy Minority Leader (Sen. Abdirahman), Sen. Mutula Kilonzo Jnr. and Sen. Murkomen. I thank them for doing a good job. The issue of sharing of slots has become problematic and that is what is contained in this report which recommends the following:- First, the slots for EALA should be shared on the ratio of 5:4 between the Majority Party and the Minority Party. The independents will not be able to get a slot because their ratio is less than 0.1 per cent. Secondly, in future, there will be need to amend the rules on the election of EALA Members to clarify the issue of independent candidates. The rules are not very clear. Therefore, there is need to clarify how independent candidates are likely to be considered for election in future in accordance with Articles 85 and 99(1) of the Constitution of Kenya. Thirdly, the Report recommends that the Minority Party to submit additional nominees. During the pre-nomination meeting which was conducted by the presiding officers, who are the Clerks of the National Assembly and the Senate----. The pre-

Mr. Speaker, Sir, I stand here to support the Motion regarding the election of members to the East African Legislative Assembly (EALA) very eloquently expressed by my brother the Senate Majority Leader, Sen.(Prof.) Kindiki, on the other side. The recommendations on the other side are fairly explicit from the joint committee. As he has rightly put it, we know that this is a political process; that if we as much as possible try to avoid bringing in issues that may negate the process or progress further, we may not really meet the deadline that is fairly clear as well. EALA members are a very important group in terms of enhancing the legislative function with regard to the harmonising of the various laws in our member states. Recently I had a chance to visit Dar es Salaam and I saw the number of laws that were passed by that Assembly. It would really help our people in developing a common vision for a better future in the various countries that form the east African member states. There are a lot of interests regarding elections to the EALA. Unfortunately, a number of our people, particularly at the top leadership, may not choose the individual wisely because we just want to send people just because we think their term is over. For purposes of institutional memory, I know the names are not before us today, but it is very important that we have people who can carry on their mandate so that they are able to move us to the next level. Mr. Speaker, Sir, I want also to support the sentiments expressed by my colleague in terms of the list of nominees from each of the sides. We do not have to be put into a box to say that certain eight or four people and we approve them as they are. I support the vision that we require more nominees to be added into the list even from our side, so that the Senate has a wider choice to elect the members.

Sen. Kajwang

Thank you Mr. Speaker Sir, I beg to move:- THAT, this motion be amended by inserting the following words immediately after the word 2017- “subject to the deletion of the recommendations, 3, 5, 6 and 7 appearing on pages 16 and 17 of the report”. Mr. Speaker, Sir, the Senate Majority Leader and the Committee has made some very valid observations on the rules for nominations of persons to the East Africa Legislative Assembly (EALA). On recommendation 6.1, the Committee has talked about the relevant clause that talks about the minimum and maximum numbers that political parties are entitled to nominate in this process. In the Report, the Committee has observed that under rule 6.1 of the rules, a party can submit a number of nominees ranging from the minimum number it is entitled to up to three times the number of such entitlement. Mr. Speaker, Sir, it is very clear that rule 6.1 only imposes a maximum number; it does not impose a minimum number. The Committee has also observed that rule 6.1 has provided discretion to political parties as to the number of nominees that they would nominate as long as the number does not exceed the minimum number of entitlement. The recommendation 3 made by the Committee purports to make references to a case by Sen. (Prof.) Anyang’- nyong’o and others. We are so fortunate that Sen. (Prof.)Anyang Nyong’o is a Member of this House and will be able to shed some wisdom and light on this particular case. Mr. Speaker, Sir, the Committee attempts to set aside rules that have been endorsed by this House only in April. The Senate and the National assembly made changes to the rules relating to the nominations of persons to EALA and parliament did not touch 6.1. Parliament only amended the rules to reflect the bicameral nature of the Kenyan Parliament and to recognize the Senate and the National Assembly. Rule 6.1 still

Yes, Sen. Sijeny

Thank you Mr. Speaker, Sir; I second the amendment by Sen. M. Kajwang. This is because this amendment puts the records very clear. So far, there is no justification whatsoever for giving the recommendations numbers 3,5 and 7. This is just a deliberate attempt to delay the nomination for the members of the EALA due to ulterior motives. It has nothing about trying to set the record straight or trying to abide by the law. The majority side should not attempt to do work for the minority side, if the minority side has complied with this rule 6.1 who are they to come and do work for us? The Senate Majority Leader is trying to mislead the House and the whole country. The

What is it Sen. (Dr.) Machage?

On a point of order, Mr. Speaker, Sir. According to our Standing Orders, there are certain regulations that are given in amending a Motion. A Motion can only be amended on the Floor of the House by the person who has provided the Motion but if a Motion is to be amended by any other party, then at least one hour’s notice should have been given to the Chair for that consideration. Is Sen. Kajwang in order to move an amendment to this Motion in the manner he did?

Order, hon. Senators. I would like to respond to Sen. (Dr.) Machage. First, I commend you for the grasp of the Standing Orders and eagerness to ensure compliance unlike Sen. (Dr.) Khalwale who was questioning the process of excision of a forest when the procedures had been exhausted. Hon. Senators, Standing Order No.56 states:- “Amendments to be in Writing (1) The proposer of an amendment to a Motion shall, before moving it, hand the proposed amendment in writing, signed by the proposer, to the Clerk at least two hours before the order is read.” So, it is not one hour, it is two hours. “(2) Despite paragraph (1), the Speaker may, in exceptional circumstances, allow a Senator to move an amendment to a Motion before the Senate at any time during consideration of that Motion.” It is also true that the amendment on the Floor cannot just be brought by the proposer of the Motion. That is possible with a Bill. With a Motion, you are still subject to paragraph 56(1) and (2). There is no other provision. So, despite paragraph (1), the Speaker may in exceptional circumstances--- If the Speaker determined that this is a Special Sitting, these are special circumstances. We do not have the luxury of adequate notices. Like the Petitions today, you know the time given and one Member raised that. It would not be long enough but Members will appreciate the time constraint and act accordingly if they are keen on those petitions. Therefore, I allowed that amendment to be processed under paragraph (2).

Mr. Speaker, Sir, the appointment of the EALA Members reminds me of an issue of operation by democratization where the minorities are always

Order, hon. Senators! You are supposed to be speaking to the proposed amendment. So, I do not think those kinds of reminders are specific to deletion of certain recommendations.

Mr. Speaker, Sir, I am coming to that.

Then go to it straight away.

Mr. Speaker, Sir, let me hit on it straight away. I have listened carefully to the suggestions by the Senate Majority Leader and the opposition by Sen. M. Kajwang. It is all hinged on Section 6(1) of the rules of appointment of these Members in this Parliament. Mr. Speaker, Sir, if it were so, and we start with the suggestion of the recommendations in the report by the Majority Leader, then we should not even accept this report in total plus the membership therein. It means that the report should go back to be done afresh with different membership. If we will support the request as put forward by Sen. M. Kajwang, then we have to reject this report because it is being opposed so that it is made afresh. So, whichever way you see it, there is an anomaly; a big one for that matter because the mischief in it is that some people in this country want to lord it over Kenyans in giving gifts o their sycophantic supporters. That is the truth. This report should be taken back and members from the border communities like the Kurias, Taitas, Subas, those from Mt. Elgon and the Luhyas should be the only members to this Committee.

I will therefore put the question. Hon. Senators, this is a voice vote and is not a matter affecting the counties. So, each and every Member has a vote.

Order, Members. We will proceed with debate on the Motion without amendment. Sen. (Prof.) Anyang’-Nyong’o.

Mr. Speaker, Sir, I want to clarify why we took that case to the East African Court of Justice (EACJ) The election to the East African Legislative Assembly (EALA) is provided for in the Treaty. Therefore, when we elect Members to the Assembly, we must follow the provision of the Treaty. That is a fundamental principle to the Parliament of Kenya, which is composed of two Houses; the National Assembly and the Senate. In the case of the other members of the East African Community (EAC), the division of parliament into two Houses does not exist.

Order, Sen. (Prof.) Anyang’-Nyong’o. Did I hear you ask whether we are clear on our bicameral process?

What I am saying is that we must be very clear on the bicameral process.

I may wish to know which Member of this House does not have such clarity.

Mr. Speaker, Sir, I am just laying down the principles of my argument. I hope that we will not debate this Motion without those two clarities in mind. Otherwise, we shall be making false arguments regarding how to elect these Members to the Assembly.

Very well, proceed.

The third issue is, as Members of Parliament, we must also recognise how Parliament is constituted. The Parliament of Kenya is constituted by political parties. They nominate candidates to the Independent Electoral and Boundaries Commission (IEBC) who vie for elections to come to parliament. In parliament, they will either be in Government or the opposition. Our Standing Orders and the Constitution recognise two sides of Parliament; the Majority side and the Minority side. In electing Members to the EALA, the Kenyan Parliament must recognise its composition and decide how it is going to elect Members to the Assembly and who will represent them regarding the majority and the minority sides. What happened in the year that we went to EACJ, when the Membership of the Assembly was elected is that notwithstanding the Majority and Minority composition, the composition of Parliament in terms of political parties was not fully recognised. The Majority political party found itself to the Minority party and the Minority political party found itself to be the Majority party in the Assembly. That is the point of contention we took to the Assembly. We said the Assembly cannot reflect the opposite of the manner in which political parties nominate their candidates, through the IEBC, to the Assembly. In the end, the EACJ ruled in our favour. Therefore, if this Motion is going to use our case in the Assembly, it must say on what basis we will nominate Members. These parties must present nominations to Parliament which can elect on the following basis: It can approve the nominations by the political parties instead of voting for individual Members.

(Dr.) Machage) took the Chair] Nomination does not mean that every Member must be voted on. It means that, if political parties have chosen those who will go to the EALA and brings them to

Thank you, Mr. Temporary Speaker, Sir. I rise to support this Report. I want to congratulate - using very strong words that I will not mention - the Committee for coming up with these recommendations. Equally, I would like to congratulate this House for having rejected the strange amendments from a youthful Senator, Sen. Moses Kajwang. I do not understand how the Coalition for Reforms and Democracy (CORD), and more recently the National Super Alliance party (NASA), that has been preaching inclusivity and equal opportunity for all Kenyans, can dream that the popularly elected Senator for Kakamega, voted for by 700,000 people, can rubberstamp the names and not be given an opportunity to elect. There shall be no selection in the process of identifying leadership in this country that represents our interests in the East African region. Our youths must be given an equal opportunity. This opportunity can only be seen to have been given to the youth and the rest of the people by the CORD fraternity if the 41 applicants are allowed to participate in this election. I, therefore, commend the Committee which has recommended that the new names be added to this list. I would like to speak to the hearts and minds of the “President in waiting”, Hon. Raila Odinga, his deputy, Hon. Kalonzo Musyoka and the other three co-principals, Hon. Isaac Ruto, Sen. Moses Wetangula and Hon. Musalia Mudavadi, who might not know these things. We know these things. When a similar matter came up in the EACJ in the year 2005, I was the Assistant Minister for East African Community.

(Sen. (Dr.) Machage): Order, Senator. I have been thinking over your statement of “President in waiting”. You could be riding on matters of treason. We have not had an election in order to have a President in waiting. What are you referring to?

Mr. Temporary Speaker, Sir, had I called Hon. Raila ‘President elect’ I would be breaking the law. But if I say “President in waiting”, he could be waiting for two years or two weeks. For now, he is just waiting until 8th August, 2017.

At the time when this matter came up at the EACJ - the principals may not know - I was there as the Assistant Minister of East African Community. The late Sen. Mutula Kilonzo in this first Senate under the Constitution of Kenya, 2010 was one of the prime movers of this matter at the EACJ. If for nothing else, let us honour him. I was there when he defeated Sen. Amos Wako when he was the Attorney-General. Sen. Wako spoke a lot of English but he could not manage, we were defeated. Those of us who were serving in the EAC used to live with the embarrassment of being asked by representatives from the other partner states: “What is wrong with Kenya? Can you not sort out your issues?”

(Sen. (Dr.) Machage): What are you talking about?

Mr. Temporary Speaker, Sir, I am speaking on behalf of the millions of humble Kenyans.

(Sen. (Dr.) Machage): So keep to one language; that is what your Standing Orders say.

Thank you, Mr. Temporary Speaker, Sir. On behalf of those humble Kenyans, I will push this agenda the way I do. In conclusion, for anybody who thinks it is a joke, only this week our youths were presenting application documents for some position that had been advertised by Parliament. My brother, Sen. M. Kajwang, who moved this amendment and my sister, Sen. Sijeny, who seconded the amendment, how I wish you had seen the queue that was there for just a few positions. The queue is still there for very few positions and yet, for a juicy position like being a Member of the EALA, you want to restrict our youths from competing. Where will they go? Do we want them to become Members of EALA through Uganda?

(Sen. (Dr.) Machage): Order! Your conclusion is completely out of order. I would order that that conclusion is expunged.

Thank you, Mr. Temporary Speaker, Sir. I rise to support this Motion. I have gone through the report by this Committee, but I have issues with the Report.

(Sen. (Dr.) Machage): Order, Sen. (Dr.) Khalwale! You have done your part and everybody has listened. So, give a chance to others to be listened to.

Mr. Temporary Speaker, Sir, thank you very much.

Mr. Temporary Speaker, Sir, this is a very important institution – the East African Legislative Assembly. It is the key institution that drives the integration of East Africa; a process that is political integration and economic integration. This is a process that has stalled because some of the protocols developed by this Assembly have not been domesticated or approved by our Parliaments. This is because also we do not give enough teeth or power to that institution. However, given what is happening in in the European Union (EU) and other regional Parliaments, this is an important institution that we need to strengthen. One of the ways in which we can strengthen this institution is to put people of a high caliber, based on merit who can make a difference in that institution. Unfortunately, as my colleague the Senator for Kakamega just said, the process of determining who goes to that House is still fraught with danger. Why? This is because it is largely determined by principals or the leaders of the political parties. What we are being asked to do when we come for the nomination will be nothing but to rubberstamp a list that has literally been handpicked. Even as we speak now, this list that we see attached in this Report has been dictated by the political party leaders, unfortunately. If you look at the 99 names of the applicants who were received and see the list that has eventually been developed by the political parties of Jubilee and CORD, it is a shame. It is a shame! The rules that have been developed by this Committee have not been followed.

Mr. Temporary Speaker, Sir, we have just concluded party nominations and there is a great deal of outcry all over the country. What stands out is that many political parties, including leaders themselves, have chosen candidates. As a result of that, the country has been divided more than ever before. Considering where we are coming from; despite the fact that leaders and the top leadership on daily basis in this country keep on talking about a united country; a country that is free of tribalism, but what we witness at the end of the day is the other way round. Mr. Temporary Speaker, Sir, I have been on the forefront and I can be quoted having fought against tribalism. I have gone ahead to criticise the current system by saying that they Government should not be formed on the basis of two communities because these are the communities that supported the current system. I have made it clear that at any given time, a president of this country would be elected from a certain community. Once the president is elected, he becomes the president of 40 million Kenyans. Sometimes I have been accused of attacking a certain community. I want to make it clear here that I have been fighting for justice for Kenyans and I will continue doing the same as time allows. Mr. Temporary Speaker, Sir, my Coalition, the National Supper Alliance (NASA), is now in the line of fire. It is because the leadership sat down and selected those who could manage to go and sit down with the top leadership and bargain for their positions. Those who were selected are cousins, fathers and sons to others but those who could not manage to get there were left out yet salaries being paid to Members of the EALA in Arusha are a contribution by all Kenyans. The leadership is now being placed in the hands of few selected people. Mr. Temporary Speaker, Sir, we are fighting tribalists but allowing impunity. Which is worse than the other one? Should we allow and usher in impunity by criticising tribalism where you find a Mkamba being appointed from Kitui and another one from Machakos? We call that tribalism but when a cousin appoints a cousin, a brother takes care of a brother, or a father appoints a son, we want to close our eyes and call it democracy. Mr. Temporary Speaker, Sir, if you elect Muthama as the president of this country and he appoints his son as the ambassador of Kenya to the United States of America, what will you be telling Kenyans? When I fly to USA, it is my son to welcome me. That is why the discussion will not be about Kenya as country, but how we will build houses

I might.

I do not think he used the word “might”, he said he will vote a certain candidate. I want to tell my brother to let another candidate be nominated from a poor background because---

(Sen. (Dr.) Machage): Order, Sen. Muthama! If you listened carefully, I expunged that sentence. Therefore, it is not a matter of discussion.

Thank you, Mr. Temporary Speaker, Sir. I stand to be guided. These positions should go to the children of the poor who have never been in leadership. When I visit those regions, I can say confidently that I voted for a child from a poor background so he might put food on his table. Let us not select, but elect leaders. My sister Sen. Sijeny, is a lawyer and maybe one day she will be a judge or even a chief justice. I wish her all the best. However, I wonder how her judgements will be because when she stands here she is fighting for gender balancing, but at the same time, she is supporting a candidate who has been handpicked. How does she expect us to support the Gender Bill? I want to tell my sister that she should better be crucified than budge from the truth. I stand for one united Kenya, one community and fair distribution of resources. May God bless this country.

(Sen. (Dr.) Machage): As a Temporary Speaker, that might be the best speech I have ever heard from Sen. Muthama.

Thank you, Mr. Temporary Speaker, Sir. I want to join my colleagues in congratulating the joint Committee for coming up with the criteria that will be followed to nominate leaders who will serve in EALA. I support recommendations as indicated from number 1 to 7. I support the proposal that CORD coalition present 12 names because according to law, for every position that falls vacant, 3 names must be submitted. Therefore, this Committee is in order to compel the CORD coalition to submit 12 names for the 4 vacancy slots. For the Jubilee Coalition, 5 names were submitted. We should have 3 more names that must compete appropriately to make it a total of 15 names. How many political parties form the CORD coalition? I hope those names will represent all the parties that form that coalition. At least one person, per political party. Jubilee coalition is made up of 12 parties. Therefore, I expected each party to nominate one person.

(Sen. (Dr.) Machage): Do those parties still exist under the law?

Mr. Temporary Speaker, Sir, we are alive as a leadership and presidency of Jubilee courtesy of that formation. I would have liked to see that kind of representation to have been done. Secondly, these positions are for the EALA which is a regional parliament. It has members drawn from the 5 countries which make the East African Community. One

Thank you Mr. Temporary Speaker, Sir. I want to oppose the report on EALA. I do not see the reason as to why we should open--- I know that the political parties have been given legal powers to nominate their candidates. People applied for the positions, they have been interviewed and we are now adopting the report. I want to urge my fellow Senators to adopt the report the way it is. I oppose the extension of time so as to allow us to add more names. That will be cutting the powers of the political parties. If there is a Member amongst us who feels that he has a personal interest on why we should open this, let them come out clearly. This is something that has gone through the legal process and it has come to this House. Our work is to adopt the report unless otherwise. I oppose.

Mr. Temporary Speaker, Sir, I rise to support but I also want to question my party Jubilee which has forwarded 15 names. The most important thing that we need to ask ourselves as we nominate these candidates is whether women have been considered. This is because I know that many women have worked in these political parties. These slots are not just to be given. They are to be used to appreciate those who have worked hard in their political parties. People have spent money to ensure that their political party functions. However, we are not afraid to talk about our political parties. All we want to do is to stand and listen to those who come and take things. People go through nominations and they spend their money. When they do so, they are building the party. There is no fear or favour when a party says that it has chosen five names. There is a reason as to why they do that. It is for the party to decide. It is the party to ask itself if the five names are people who have worked for that party even when the party was in a storm. If Jubilee brings 15 names, I would want to see 15 names of men and women who have sacrificed themselves. This is because nobody pays anyone salary in a political party. You volunteer. Therefore, when there is such chance, it is important for those people to be appreciated. It is true that they are going there to serve Kenya but the law is very clear that they must go through a political party. We do have independent candidates who can also

Thank you, Mr. Temporary Speaker, Sir. I do not agree with the recommendations of this Committee. I think they went beyond their mandate. After listening to what was being said, I believe there is no justification for giving all these recommendations. Political parties have been given the powers by the East African Court of Justice Rules, which they have abided by to the letter. A few leaders may feel that since the people they wanted were not nominated and they did not succeed through any other process to get what they wanted, the process must be canceled. That nullification is unfair and not legal at all. Mr. Temporary Speaker, Sir, you listened to the submissions of most of our colleagues, and in your wisdom, expunged those proceedings. It is clear that the only reason the list of nominees to the EALA has been submitted to Parliament by various political parties is because they all have their personal views. Some have personal vendetta which, in my view, should not be settled in Parliament. Take the scenario of a Kenyan, and more particularly, a youth who has applied for a position and met all the requirements. He has gone through the rigorous panel of interviews and vetting. Due diligence has been done and his integrity confirmed. The academic qualification befit and he has justified why he wants to join the EALA. He has demonstrated his passion and enumerated the things he has done for more than two years. Just because you happen to be a son of a politician, it does not mean that you are condemned. I believe that is not the case. The Bill of Rights is there to protect everybody. Why should you discriminate someone just because their names are similar to that of a politician who is not even in Parliament? We know how Parliament has treated the same politician. However, that is not the issue. There should not be any discrimination. I would not want my children to work hard, get education, graduate and be barred from getting a job because I am a politician; whether former or current. I am also a child of a former politician who is deceased – may the good Lord rest his soul in peace - but I am here. If I had been denied a chance just because my father was a politician, that would not be justice. I am certainly not in support of these recommendations at all. There is no legal justification. The facts in the Anyang-Nyong’o case are so different. Sen. (Prof.) Anyang-Nyong’o clarified that the facts are not similar to this. What we - and I was one of the lawyers - wanted to correct is not what was done here. The political parties here have followed the due process of what they ought to have done. It is not because there was a complaint and he has clarified the fact. Misleading people and trying to settle personal scores, I repeat - When you are given the opportunity to do it within your political party and you do not because you are coming to the Senate or Parliament to exercise your muscles is, for me really, abuse of office. We cannot say that the youth cannot be empowered. We need to empower them irrespective of their background. This is just one job. Leaders should be creating more jobs. Just last weekend as a Committee on Delegated Legislation, we went to Mombasa to look at a series of regulations which had been brought to us by the Cabinet Secretary (CS) Kazungu to support the Mining Act. There are several jobs which are going to be created once the Act starts being implemented. Those are the kind of things we should be doing, but not to fight people for only one job; the entire country cannot sit on that seat but one person at a time.

Mr. Temporary Speaker, Sir, I am a Member of the committee which prepared this report and procedurally, therefore, I support. The rules are clear. They talk of election and in any election process, there must be competitors. While the minimum number of people to be nominated by parties to vie is not mentioned, the spirit of any election and not approval, is that there must be more than the number required. This is a matter that had gone to the court and it ruled that an election cannot be an election unless there are candidates from whom the voters have to vote for. I support the idea that the names should be increased to give opportunity to Kenyans to compete. While on the same, I think in future, we need to look at the rules and if need be, the Treaty itself in as far as election to EALA is concerned. We in Kenya have a bicameral Parliament and it is said that Parliament elects Members but we know in this country we have two houses where neither is subject or junior to the other. Both have equal strength in terms of the Constitution and the law despite the numbers. Mr. Speaker, Sir, to subject an election to universal suffrage to say each Member of the Senate and the National Assembly have one vote would therefore mean that more power is conferred to the National Assembly. In the African scene, we always see that a cow is slaughtered when it is alive, meaning that it is divided when it is alive. The nine positions should have been divided by virtue of the county assembly and the National Assembly perhaps having more Members. May be, they could get five and the Senate allocated four. We both elect and then the list is presented for approval. However, basically the Senate should have its

(Sen. (Dr.) Machage): Senator Ong’era

Thank you, Mr. Temporary Speaker, Sir, for giving me this opportunity to make my contribution. From the onset, I rise to support this report. One of the reasons we set up EALA body was to ensure that we have high representation among the partner states within the East Africa region. We wanted to have a body which could legislate and make laws that would help run the East African Community. One of the great reasons that we went to Arusha with regard to Sen. (Prof) Anyang’- Nyong’o’s case where I was one of the counsels with my sister here Sen. Sijeny and led by the late distinguished Sen. Mutula Kilonzo Snr, was precisely to ensure that the elections are held within political parties when they are making presentation to Parliament. It behooves that even within CORD to ensure that we have due process. We are not saying that the names presented here by CORD Coalition are wrong names. These are distinguished people who have ‘died’ for the CORD coalition. They are people who have fought in the terrain and are loyal party members. For example, hon. Judy Pareno is someone who has really fought for ODM party. However, our concern here is due process. Did CORD hold due process? I am a member of the National Executive Committee of CORD, but I was not called so that we could hold elections for these nominees. It is necessary for us, Members of Parliament, not to be taken for a ride by CORD for just presenting four names. They are blocking us from making a right democratic choice of elections by limiting our choice to only four names. It is very clear in the rules that an election must be held. No elections have been held.

Sen. (Dr.) Machage): I see no other interested party. Therefore, I call upon the Mover to reply.

(Sen. (Prof.) Kindiki): Mr. Temporary Speaker, Sir, I am grateful to all the colleagues who have contributed. The majority, if not everyone, has supported this Motion. As I said, this is a matter where time is of the essence because of the dictates of the EAC Treaty and other provisions. Mr. Temporary Speaker, Sir, with those few remarks, I beg to reply.

Sen. (Dr.) Machage): I will therefore put the question. This is not a county matter. So, voting is by acclamation.

Order, hon. Senator! You are out of the Bars. Stand there and freeze. Okay you can come in. For technical reasons, I will defer orders No. 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 and 35.

Sen. (Dr.) Machage): There being no other business, the Senate stands adjourned until Tuesday, 13th June, 2017 at 2.30 p.m. The Senate rose at 5.35 p.m.