(Sen. (Prof.) Kindiki): Hon. Senators, I would like to acknowledge the presence in the Speaker’s Gallery this afternoon of a visiting delegation from the National Council, Parliament of the Republic of Namibia, Standing Committee on Habitat. I request each Member of the delegation to stand when called out so that they may be acknowledged in the Senate tradition. They are:- (1) Hon. Sipapela Cletius Sipapela - Committee Chairperson (2) Hon. Betty B. Kaula - Vice Chairperson (3) Hon. Weich Mupya - Member (4) Hon. Lotto Kushomwa - Member They are also accompanied by:- (5) Ms. Naomi T. Simion - Deputy Director, Habitat Namibia (6) Mr. Simataa Silume - Chief Parliamentary Clerk (7) Ms. Priskila Kulula - Parliamentary Clerk On behalf of the Senate and on my own behalf, I welcome them to the Senate. I wish them well for the remainder of their stay. I 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.

(Sen. (Prof.) Kindiki): Hon. Senators, I would like to acknowledge the presence in the Public Gallery this afternoon of students and teachers of Kenya Relief Academy School in Migori County. In our usual tradition of receiving and welcoming visitors to Parliament, I extend a warm welcome to them. On behalf of the Senate, and on my own behalf, I welcome them to the Senate and I wish them a fruitful visit. I thank you.

Next order.

(Sen. (Prof.) Kindiki): Hon. Senators, we have several Papers to be laid today. The first one will be laid on the Table by the Senate Majority Leader. REPORT ON THE FINANCIAL STATEMENT OF COG FOR FY 2017

Mr. Deputy Speaker, Sir, I beg to lay the following Paper on the Table of the Senate, today, Wednesday, 1st August, 2018. Report of the Auditor-General on the Financial Statements of the Council of Governors Secretariat for the year ended 30th June, 2017.

Mr. Deputy Speaker, Sir, I beg to lay the following Paper on the Table of the Senate, today, Wednesday, 1st August, 2018. Report of the Standing Committee on Labour and Social Welfare on the 2018 Commonwealth Games held in Gold-Coast, Australia, from 4th to 15th April, 2018

(Sen. (Prof.) Kindiki): Thank you, Sen. (Dr.) Milgo. Finally, we have a Paper to be laid by Sen. (Dr.) Langat. 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 lay the following Paper on the Table of the Senate, today, Wednesday, 1st August, 2018. Report of the Standing Committee on Education on the TVET Conference held in Victoria, Canada, from 27th April – 2nd May, 2018.

(Sen. (Prof.) Kindiki): I will discretionally allow the laying of two other Papers that do not appear on the Order Paper for today. Kindly, proceed, Sen. Khaniri. REPORT OF THE PSC ON THE APPOINTMENT OF A NON-MEMBER COMMISSIONER

Mr. Deputy Speaker, Sir, I thank you for your indulgence. I beg to lay the following Paper on the Table of the Senate, today, Wednesday, 1st August, 2018. Report of the Parliamentary Service Commission on the Appointment of the Parliamentary Service Commissioner who is not a Member of Parliament.

(Sen. (Prof.) Kindiki): Order, Sen. Khaniri! That Paper should have been a Petition report---

Very well, Sen. Khaniri. I confused it with something else. Sen. (Dr.) Mbito, we have already called out the order on Petitions. However, you can lay your report now.

Mr. Deputy Speaker, Sir, I beg to lay the following Petition report on the Table of the Senate, today, Wednesday, 1st August, 2018. Report of the Standing Committee on Health on a Petition to the Senate by Mr. Gwada Ogot concerning the decriminalization of marijuana. 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): Order, Senators. We have a notice of Motion by Sen. (Dr.) Alice Milgo.

Order, Senator. There is a microphone infront of you. Why are you using gestures?

Sorry, Mr. Deputy Speaker, Sir. I was not sure, but I am now ready.

(Sen. (Prof.) Kindiki): Proceed.

I wish to give notice of the following Motion- THAT, this House adopts the Report of the Standing Committee on Labour and Social Welfare on the 2018 Commonwealth Games held in Gold Coast, Australia from 4th to 15th April, 2018.

Sen. (Prof.) Kindiki): Very well. The next Notice of Motion is by Sen. (Dr.) Lang’at. NOTING OF REPORT OF THE TVET CONFERENCE HELD IN VICTORIA, CANADA

Mr. Deputy Speaker, Sir, I wish to give notice of the following Motion- THAT, this House notes the Report of the Standing Committee on Education on the TVET Conference held in Victoria, Canada from 27th April to 2nd May, 2018.

(Sen. (Prof.) Kindiki): The Vice-Chairperson, Senate Standing Committee on Justice, Legal Affairs and Human Rights. Sen. Cherargei is not in? The notice of Motion is deferred.

(Sen. (Prof.) Kindiki): Next Order! Very well. Senators, we have come to the Order on Statements. We will have two Statements today under Standing Order No.46(2)(a) and we will keep to the tradition of spending adequate but measured time on this item so that we can also address other issues on the Order Paper for today. There are two Statements and I will call out the first one in a short while. There is a 10 minute-limit but given the public interest in both Statements which are being issued, I will allow not more than 15 minutes for comments in each case but nothing more than 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, pursuant to Standing Order No.46(2)(a), I rise to make a Statement on a county issue relating to the underutilization of development funds at the counties, massive corruption and alleged diversion of public funds to personal accounts by some county officials. Mr. Deputy Speaker, Sir, the Constitution of Kenya, 2010 has established two levels of Government, namely the national Government and the 47 county governments. Under this arrangement, there is a bicameral national Parliament made up of the Senate and the National Assembly and the 47 county assemblies. Experiences the world over show that such arrangements improve the quality of the legislative output and enables better service delivery. In our case, service delivery in the country has improved to some extent and Kenyans can attest to closer, better and expanded political leadership since 2013 when the provisions relating to the legislature under the current dispensation started being implemented in earnest. Since the inception of county assemblies after the election of 4th March, 2013, there have been both strides towards entrenching operations and improving performance of these important legislative bodies in the country. The 11th Parliament Senate rolled out numerous programmes towards capacitating and entrenching county assemblies. The leadership, staff committees and members of the assemblies were involved in benchmarking visits to the Senate. The Senate Speaker then ensured the establishment of the Senate Liaison Office, an exchange programme, for the induction of various county assemblies to the legislative operations of a legislature. Mr. Deputy Speaker, Sir, the County Assembly of Vihiga in particular, is one of the beneficiaries of the Senate programmes. During the 11th Senate, five delegations from the County Assembly of Vihiga visited the Senate for benchmarking. Senate records which I have had the benefit of seeing, bear evidence that many other county assemblies benefited through the Senate Programme. The Senate has also initiated and operationalized the Annual Legislative Summit whose central objective is promoting engagements between the Senate, county assemblies and the relevant stakeholders in devolution agenda. Further, I have established that a good number of Senators have also taken the initiative to address their county assemblies pursuant to Standing Orders No.241(1) of the Senate Standing Orders and the relevant provisions of the rules of procedure of the respective county assemblies. For Vihiga, I have personally made it an annual engagement. These engagements collectively have ensured the improvement and growth of not only the county assemblies’performance but also county governance as a whole. 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): Hon. Senators, I have a short communication to make on the visiting students and teachers of Barsaloi Primary School, Samburu County. I would like to acknowledge the presence in the Public Gallery this afternoon of visiting students and teachers from Barsaloi Primary School, Samburu County. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Mr. Deputy Speaker, Sir, I join the distinguished Senator for Vihiga in sounding an alarm too on the issues he has raised. In just a minute, I urge the House, through the Committee on Finance and Budget, whose Chairperson is sitting right in front of me, to take cue from this Statement, address three things and bring a comprehensive report to this House. The first issue is about pending bills, which every county is now under a heavy weight of. The second one is lack of absorption capacity by counties in absorbing the little money that we give them. They get just 9 per cent of the national Budget and cannot absorb it. The third issue is gross mismanagement of resources through county activities in the name of corruption. Mr. Deputy Speaker, Sir, I finish by lauding the renewed energy in the war against corruption. I have seen in my county that the “wheelbarrow” culprits were convicted and sentenced, although the masterminds are still walking free.

We want to see those who aid and abet crime being dealt with in the same manner as the criminals themselves.

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

(Sen. (Prof.) Kindiki): What is it, Sen. Outa?

Mr. Deputy Speaker, Sir, is the Senator for Bungoma in order to tell this august House that he knows the masterminds of the “golden wheelbarrows?”

(Sen. (Prof.) Kindiki): Yes, Sen. Wetangula.

Mr. Deputy Speaker, Sir, in Matthew 27:17, a question was asked whether the gentleman called Cleopas was the only stranger in Jerusalem. Is the distinguished Senator for Kisumu the only stranger in this House?

(Sen. (Prof.) Kindiki): Sen. Outa, are you the only stranger in this House or a stranger in any case? If you are a stranger, you are not even supposed to be in this Chamber.

Mr. Deputy Speaker, Sir, I am not a stranger. The stranger that I have seen today could be Sen. Gideon Moi.

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): Order, Sen. Outa. What is it, Sen. Gideon Moi?

Mr. Deputy Speaker, Sir, it is a well-known fact, which may have eluded my distinguished colleague, that the business of the House is conducted in committees and not “ tanga tangaring ” around the corridors of---

(Sen. (Prof.) Kindiki): Order, Sen. Moi. Is your insinuation that no business is conducted in this Chamber? You should have responded. The accusation against you by Sen. Outa is that you are a stranger in this House. That is the issue, because if you are a stranger, then you are not supposed to be here.

That is very true, Mr. Deputy Speaker, Sir. You and the Members know that I am not a stranger in this House. I was here while the distinguished Senator was jobless or before he made his way to this House. I am not a stranger, and I am happy to see you all again.

(Sen. (Prof.) Kindiki): So, Sen. Moi, you are still a Member of this House and the Senator for Baringo County?

Mr. Deputy Speaker, Sir, it is not only that; I am the Chairman of the Committee on Information Technology and chama chetu cha baba na mama ---

(Sen. (Prof.) Kindiki): Order, Senator. Let the matter rest there. Sen. Wetangula, had you concluded? I will give one other Senator on that Statement because, contrary to the information I had, we had actually approved two more Statements. I will not allow more than two contributions for each of the Statements. Sen. Wetangula has spoken, and I will give the next opportunity on that Statement to Sen. Halake.

Mr. Deputy Speaker, Sir, I congratulate Sen. Khaniri for his Statement, which is in support of counties. We have always talked about counties not having capacity in certain areas. The Salaries and Remuneration Commission (SRC) capped county positions in many areas, including that of research, finance officers and a lot of issues around the capacity in terms of the human resource of counties. We also know that people need hands to implement some of these projects. I know that we are juxtaposing this with the recurrent expenditure, but sometimes recurrent expenditure does not require a lot implementation capacity or hands. However, counties are really suffering from understaffing because they do not have adequate officers that are supposed to do some of this work. Even as we say that the absorption capacity is low, this House also needs to support counties to have the requisite capacity in terms of the people to do the work and oversee some of the projects that they are supposed to implement. 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): Order, Senators. Order, Sen. (Dr.) Langat and company!

Thank you, Mr. Deputy Speaker, Sir, for protecting me. We had legislation before this House to push funds to the lowest levels of service delivery in the counties, namely the wards. This morning, our discussion was on the fact that a lot of institutions at the national level are against this. If we had cascaded some of these funds and provided counties the requisite capacity to implement some of these projects, perhaps, we would not be dealing with lack of absorption of funds. Therefore, even as we talk about corruption and other things, let us not forget that this House is also supposed to support development of capacity of counties to absorb, and that includes providing them with the necessary people to do the work. On the other hand, Mr. Deputy Speaker, Sir, we are aware that sometimes disbursements do not go out at the right time, yet big capital development projects require time to implement them. Therefore, even as we say that counties did not absorb or that they only absorbed 23 per cent or less, we should also look at the fiscal cycle and the disbursement schedules that go to counties. I know that at the beginning of this year, counties were crying for funds and they did not get it in good time, until late towards the end of the fiscal year. Therefore, the capacity to implement some of these projects, which take time, was largely affected and limited. Therefore, as much as we all support the fight against corruption both at the national and county levels, this House has the obligation to protect counties. Oversight is not just about ensuring good stewardship and catching the thieves, but also about ensuring that measures are put in place in advance to ensure that we have proactive measures to ensure counties develop the capacity for absorption. We should not just wait at the end of the fiscal cycle and say that money was not utilized. The question is what did we do, as this House, to ensure that money was disbursed on time? What did we do, as a House, to ensure that counties have the necessary position for capacity to implement some of these programmes?

(Sen. (Prof.) Kindiki: Order, Sen. Halake! Wind up.

Mr. Deputy Speaker, Sir, I support the statement and congratulate the His Excellency the President and everybody who is fighting corruption. However, let us also be fair in our fight against corruption and ensure that we look objectively at the constraints that counties are facing. Thank you, Mr. Deputy Speaker, Sir.

(Sen. (Prof.) Kindiki: Very well. The next statement is from Sen. Chebeni. 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, pursuant to Standing Order 46(2)(a), I rise to make a Statement regarding the celebration of International Youth Day (IYD) scheduled for 10th August, 2018, in the National Assembly Chambers. Mr. Deputy Speaker, Sir, I wish to inform this House that the IYD has been set up by the Cabinet Secretary for the Ministry of Public Service, Youth and Gender Affairs to recognize the role of the youth in national building. The theme for this year’s fete is “safe spaces for youth.” This theme resonates well with the Government’s commitment to ensure that the youth are accorded a platform to engage in meaningful discussions with stakeholders in order to better its service delivery to the youth. It is worth noting that the youth need to be engaged in the Building Bridges Initiative and the Jubilee's Big Four Agenda discussions, where they are conspicuously missing. This will ensure that the Government policies are inclusive of the youth, who are trustees of the future of this country. Mr. Deputy Speaker, Sir, the event will offer an opportunity for the youth and the Legislature to engage and develop a clear roadmap towards harnessing the demographic dividends that the youth provide. Moreover, it will open up the legislature as a safe civic space for the youth of Kenya. Mr. Deputy Speaker, Sir, it is for this reason that I seek your indulgence to make an appeal to Members of this House to sponsor at least two youth, male and female, from each county across the country to come and celebrate the IYD event that will be held on 10th August, 2018, at the National Assembly Chambers. Finally, Mr. Deputy Speaker, Sir and hon. Senators, I thank you for your commitment towards ensuring that the IYD is not only a success, but also the start of a journey towards making Kenya a youth-friendly society. Thank you, Mr. Deputy Speaker, Sir.

(Sen. (Prof.) Kindiki: Order, Sen. Cheruiyot! Order, Senator for Kajiado! You cannot just walk into the Chamber and instead of greeting colleagues quietly, you are almost clapping hands!

Hon. Senators, I have the following communications to make. 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: I would like to acknowledge the presence in the public Gallery this afternoon of visiting students and teachers from Sitotwo Primary School in Elgeyo-Marakwet County. In our usual tradition of receiving and welcoming visitors to Parliament, I extend a warm welcome to them. On behalf of the Senate and on my own behalf, I wish them a fruitful visit. Thank you.

(Sen. (Prof.) Kindiki: I would like to acknowledge the presence in the public Gallery this afternoon, of visiting students and teachers of Chop Primary School in Elgeyo-Marakwet County. In our usual tradition of receiving and welcoming visitors to Parliament, I extend a warm welcome to them. On behalf of the Senate and on my own behalf, I wish them a fruitful visit. Thank you.

(Sen. (Prof.) Kindiki: Finally, I would like to acknowledge the presence in the Speakers Gallery this afternoon, of students and teachers from St. Camillus Academy School, Baringo County. In our usual tradition of receiving and welcoming visitors to Parliament, I extend a warm welcome to them. On behalf of the Senate and on my own behalf, I wish them a fruitful visit. Thank you.

Very well, proceed, Sen. Malalah.

h: Thank you, Mr. Deputy Speaker, Sir. I stand to support my colleague, Sen. Mercy Chebeni, for the exhaustive statement she has just made pertaining the IYD. First, I am a proud Senator who is a youth, and--- The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

(Sen. (Prof.) Kindiki: Order, Senators! Proceed, Sen. Malalah.

h: Mr. Deputy Speaker, I do not know---

(Sen. (Prof.) Kindiki: Sen. Malalah, I was creating order for you to proceed.

Mr. Deputy Speaker, Sir, I want to repeat that I am a youth, because I was born on 30th June, 1985. I am proud to be here as a youth. Mr. Deputy Speaker, Sir, I can already see the enemies of the youth, starting with- --

(Sen. (Prof.) Kindiki: Order, Senator! Are there enemies of the youth in this chamber or are they outside?

They are outside, Mr. Deputy Speaker, Sir, but they---

(Sen. (Prof.) Kindiki): Therefore, if they are outside the Chamber, you cannot see them. Just say there are enemies, but they are out of jurisdiction and they exist.

Yes, Mr. Deputy Speaker, Sir; we have the visible and the invisible enemies. Mr. Deputy Speaker, Sir, I want to appreciate that the youth form a bulk of the Kenyan population. However, it is sad that in the current dispensation, the youth of this country are not given the focus and attention they deserve. You will find, for example, that when a youth completes his formal education and wants to pursue his career, he will meet a lot of obstacles on his way.

Welcome, Hon. Mwaura. You will---

(Sen. (Prof.) Kindiki: Order, Senator! That is not your business. Order! Order, Senator! You are out of order!

Mr. Deputy Speaker, Sir, I was saying that there are a lot of obstacles in the path of a youth who is pursuing his career. When the youth goes for an 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: Order, Sen. Malalah. Is it your case that anybody below 35 years cannot commit a crime?

No, I am just trying to build my foundation on how the youth face obstacles before they get employed. Mr. Deputy Speaker, Sir, even in this Parliament, youth related issues are not handled seriously. The other day, they reduced the budget for the Youth Enterprise Development Fund (YEDF) and the National Youth Service (NYS). Why do we reduce budgets for the youth-oriented organisations? There are many organisations which are riddled with corruption, but their budgets are not reduced in every financial year. Our Constitution provided for a platform for us to nurture youthful leadership. I want to appreciate that Article 176 of the Constitution established the county assemblies. In doing so, it brought leadership nearer to the youth in the grassroots level. As a young legislator, I would want to encourage more youth to vie for the position of Members of the County Assembly (MCAs). Mr. Deputy Speaker, Sir, yesterday while I was following the proceedings in the National Assembly, I was aggrieved by the fact that certain leaders believe that the position of an MCA is a village position. It is a position for those people who are not well informed. I want to state here categorically, that the position of an MCA is a distinguished position. It is a platform whereby young people can exercise their leadership positions. Yesterday, hon. Aden Duale, the National Assembly Majority Leader---

Order, Senator! You are aware about the Standing Orders.

Order, Senator! Resume your seat. I have not asked you not mention anybody. However, you can do so, but within the Standing Orders.

Thank you, Mr. Deputy Speaker, Sir. I know that if I mention a name of an hon. Member, I am duty bound to substantiate. Yesterday’s HANSARD of the National Assembly is very clear. I went through it today morning. It is a public document. I want to make reference to it. Hon. Aden Duale demeaned Sen. Cleophas Malalah, the Senator for Kakamega County, by calling him a mere MCA and that he was elected to the Senate by mistake. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Order, Senators! You can proceed, Sen. Malalah. You have one more minute to wind up your contribution.

Mr. Deputy Speaker, Sir---

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

What is it, Sen. Haji?

Mr. Deputy Speaker, Sir, is the hon. Senator in order to attack---

It is not tribal. Keep quiet.

Order! Both of you are out order! Sen. Nyamunga, you are out of order! Similarly, Sen. Haji, you are out of order! What is out of order, Sen. Haji?

Mr. Deputy Speaker, Sir, I understand.

You can raise your point of order, but do not shout across the aisle to Sen. Nyamunga.

I oblige, Mr. Deputy Speaker, Sir. She provoked me. I am not a tribal leader at all. Is Sen. Malalah in order to attack another Member of this Parliament who is not here to defend himself?

Order, Senators! Sen. Malalah, I had hinted to you that, ordinarily, the Standing Order No.88 does not allow a Member of this House- --

It is Standing Order No.90.

Yes, it is Standing Order No. 90. Thank you, Sen. Khaniri, although you did it irregularly. Standing Order No.90(5) is clear that you should not question proceedings before another House. That is exactly what you did by mentioning who spoke, where and the content of their speech. Sen. Malalah, you can say what you want to say, but differently and achieve the same results. So, I would rather urge that this matter lies there. I give you a maximum of two minutes to summarise your contribution. 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 warn Hon. Duale that he shall not use his privilege as the National Assembly Majority Leader to abuse the Members of the Senate. He said that the Members of this Senate are old and retired people. Shame on hon. Duale! I will not tolerate this. I am also the Deputy Senate Minority Leader. I can answer him in my capacity. Mr. Deputy Speaker, Sir, I think the Holy Spirit---

Order, Senator! Sen. Malalah, stick to the issue of the International Youth Day. I also direct you to Standing Order No.88 on irrelevancies. So, please, stick to the issue of International Youth Day. You have one- and-a-half minutes to conclude.

Thank you, Mr. Deputy Speaker, Sir. As we approach the International Youth Day, I would like to encourage leaders to respect youthful leaders. Let us not be intimidated because we are newcomers in this House. I want to warn those leaders who keep on abusing young leaders that their time has come. We have emerged as young leaders. We will deal with them perpendicularly and thoroughly. Let it be a warning to hon. Duale that I will not tolerate him again.

Very well. Order, Senators!

Order, Sen. (Dr.) Kabaka and Sen. Mutula Kilonzo Jnr.! This is not a place for greetings and hugs.

Order, Senators! We have two more statements and I will be very strict on time. Proceed, Sen. Seneta. Be as brief as possible. DEATH OF 11 BLACK RHINOS IN TSAVO EAST NATIONAL PARK

Thank you, Mr. Deputy Speaker, Sir, for giving me this chance to request for a Statement. Mr. Deputy Speaker, Sir, Pursuant to Standing Order 46(2)(a), I rise to issue a Statement on the death of eleven rhinos that were translocated from Lake Nakuru and Nairobi National Parks to Tsavo East National Park. As you may be aware, black rhinos are the most endangered wild animals in Kenya today. According to statistics, there are only about 700 black rhinos in the country and the number keeps on decreasing day by day. The question that begs to be answered is: Did the Government through its agency, the Kenya Wildlife Service (KWS), in resolving to translocate the 11 black rhinos from Nairobi and Lake Nakuru National Parks to Tsavo East National Park, 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): Order, Senators! Proceed, Sen. Seneta.

Thank you, Mr. Deputy Speaker, Sir, for protecting me. The Government has not been forthright on the cause of the death and measures that are being undertaken to avert future deaths. The Cabinet Secretary for Tourism has been heard and seen blaming the Kenya Wildlife Service (KWS) and its Board for the deaths. It is very sad that such a big number of this much endangered species of animals are dead and nothing is coming forth from the Government in form of explanation, except a blame game on who is responsible for the deaths. There is need for an inquiry into the factors that led to the death of the animals. The inquiry should extend to KWS to establish why, in addition to the death of the animals, there are many other issues including human-wildlife compensation that still remain unresolved. The inquiry should also look into the process that led to the need to relocate the animals. A report on research findings of the new habitat should be availed and the translocation process and whether the process including that of monitoring after relocation was done in accordance with the recommended procedures. Mr. Deputy Speaker, Sir, KWS is bedeviled by many wolves which could have been part of the cause of this rhino fiasco. I would appeal to you to direct the relevant Senate Committee to look into the state of affairs at KWS including how the service is being managed because there are reports of demotivated staff due to low salaries and poor working conditions which might have contributed to this rhino saga. There is also need to ascertain whether there are policies on moving animals from one sanctuary to another and, if so, whether the relevant policies were applied in the current rhino issue. Lastly, since the current CS came into office a couple of years ago, there has been no improvement in service delivery in KWS which begs the question about his contribution to the improvement of service delivery. It is. for instance, open knowledge that so many cases of compensation for loss of human life, livestock, crops and properties 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): Sen. Seneta, with or without the direction of the Chair, nothing prevents you from sharing your Statement with the relevant Committee. Also, nothing prevents the Committee from moving suo moto . So, we want to make it clear that it is not always the case that you ask the Chair to direct a Committee to do its work.

Thank you, Mr. Deputy Speaker, Sir. I thank Sen. Seneta for bringing this matter to the attention of the Senate. Indeed, it is disheartening to learn what happed to the rhinos while being transported. We only have 700 black rhinos in our country and the loss of 10 is unfortunate. Somebody must be held to account and there must be responsibility for this. As the Committee looks into this issue, I would like to advise the CS in charge to be a bit more conscientious and sensitive with the remarks and actions that he makes. He is reported to have told all of those who have been asking about this to take a trip to a location that none of us can take ourselves. Some people said that he meant: “Go to Hells Gate, Tembea Kenya”. This is the same CS that we have a lot of respect for but just previously, he arbitrarily and unilaterally cancelled sponsorship for the Kenya Rugby Sevens Team because of failing to display the “Brand Kenya” on their T-shirts. We had to tell him that Brand Kenya is not a logo. The rugby team itself, is brand Kenya. Cancelling sponsorship of Kshs20 million was out of term and he later apologised. We ask him to be a bit more careful so that he does not have to keep coming back to apologise for actions that he makes and such outbursts. Finally, we need to preserve these animals because, indeed, they are the heritage that we are leaving for our children and for the young people. This is timely as Sen. Chebeni has given us a Statement on the International Youth Day that is coming. I thank her for that but I do not think it was very clear. Next Friday, 10th August, 2018, we will have young people from across the country. We would like Senators to nominate at least two and even sponsor them to come so that they are taken through the procedures of Parliament. There will be a session and a debate in the National Assembly Chamber where they will be taken through this year’s theme which is; Safe Spaces for Young People . They will then go into committees at 11.30 a.m. and bring reports in the afternoon for debate and adoption. That is meant for them to understand how the Senate and the National Assembly operates and how Parliament works. The young people of this country are the trustees of the posterity of this country. Unless we make them front and centre of all our policy discourse and what we do in this House, then we will be legislating in vain. It is unfortunate that Sen. Malalah, my good friend, had to respond to the infantile and juvenile outbursts from the other House. It is infra dig for any Member of the Senate to go to the level of the National Assembly. Whenever they come up with such statements or if they insult us, let us not play the same game. This is a House that Kenyans look up to for decorum. It is a House that is respected. 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 had sought an opportunity to talk about our rhinos and I thank Sen. Seneta for having walked ahead of me to your Office to get the opportunity. I support fully what she said. The committee that will look at this must establish the following facts. They need to tell us why rhinos were being removed from Lake Nakuru and Nairobi national parks where there is more vegetation and taken to Tsavo East National Park which is Arid and Semi-Arid Land (ASAL). The second thing is that rhinos are an attraction to tourists and therefore part of the economy of the counties where they are domiciled. Was public participation undertaken for the public in Nairobi and Nakuru to allow their rhinos to be taken elsewhere and therefore lose revenue? The facts are as follows. Those rhinos were sedated and crated and moved to Tsavo East National Park. Upon arrival, they were maintained in the crates and fed for five days but I do not know whether that was right. After five days, the rhinos were released into a sanctuary that had not been properly analysed scientifically to see whether they could survive or not. More importantly is that boreholes had been drilled in the sanctuary. Their waters were taken and tested and found to be 30 per cent more alkaline than is required for bovine consumption. So, as the rhinos were released to go into the bush, they were going to actually drink poison because the water from the boreholes had 30 per cent alkaline content, over and above the required level for animals to consume. When the rhinos died, we have now heard a charade like a theatre of the absurd. The Cabinet Secretary has said all manner of things including, but not limited to, lying to Kenyans that the Board of the Kenya Wildlife Service (KWS) was responsible when he knows that the term of KWS board expired on 17th April this year but the rhinos were relocated on 26th June this year. So, which board is he referring to? Secondly, the Cabinet Secretary, in a fit of impatience and arrogance, moved quickly to sack employees of KWS. We know under the law that a Cabinet Secretary cannot sack employees of a board. So, under what authority was he purporting to dismiss the employees of the board? The excessive display of raw authority and power is what is destroying this country. When Kenyans got angry with the Cabinet Secretary, he said, “Go to hell”. He thought that Kenyans have got brains the size of a pinhead but swung round and started saying that he did not say “Go to hell” but “Go to Hells Gate”. What a shame! I am sure 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): Thank you Sen. Wetangula. Hon. Senators, I have two communications to make.

(Sen. (Prof.) Kindiki): Hon, Senators, I would like to acknowledge the presence, in the Public Gallery this afternoon, of visiting students and teachers from Matunda Primary School in Murang’a County. In our usual tradition of receiving and welcoming visitors to Parliament, I extend a warm welcome to them and on behalf of the Senate and on my own behalf wish them a fruitful visit. Thank you.

(Sen. (Prof.) Kindiki): Hon, Senators, I would like to acknowledge the presence, in the Public Gallery this afternoon of visiting students and teachers from Gatanga Primary School in Murang’a County. In our usual tradition of receiving and welcoming visitors to Parliament, I extend a warm welcome to them and on behalf of the Senate and on my own behalf, I wish them a fruitful visit. Thank you.

Let us go to the 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): Let us have the Chairperson of the Committee, Sen. Mutula Kilonzo Jnr.

Mr. Deputy Speaker, Sir, with your permission, I beg to move the Motion in an amended form under Standing Order No.51: THAT this House adopts the report of the Select Committee on the Solai Dam Tragedy, laid on the Table of the House on Thursday, 26th July, 2018. I am waiting for your leave to proceed.

(Sen. (Prof.) Kindiki): Sen. Mutula Kilonzo Jnr., have you moved the Motion?

Yes, I have requested for your leave to move the Motion in an amended form.

(Sen. (Prof.) Kindiki): Proceed.

First, may I begin by mentioning---

On a point of order!

(Sen. (Prof.) Kindiki): What is it, Sen. Moi?

Mr. Deputy Speaker, Sir, I rise to seek your guidance and ruling since the subject matter is actively in court. Standing Order No.92 states that no Senator shall refer to any particular matter which is sub judice or which, by the operation of any written law, is secret. It continues to say: “A matter shall be considered to be sub judice when it refers to active criminal or civil proceedings and the discussion of such matter is likely to prejudice its fair determination”. Mr. Deputy Speaker, the characters, who are in this Report, have been charged in a criminal court and are facing over 24 counts. Some of them are facing murder charges, which if found guilty, will constitute life sentences, if not death. In light to the above, the doctrine of the presumption of innocence is anchored in Article 51 of the Constitution, which gave birth to Standing Order No.92. I want to seek your guidance and ruling. Can we proceed with this matter in light of the fact that it is

and in court?

What is it, Sen. Olekina?

Mr. Deputy Speaker, Sir, as you prepare to give your ruling on this matter, this is a matter of national interest. The characters that my good friend, Sen. Moi, 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. Olekina, I would rather you use the word “persons” as opposed to “characters”. The word “characters” is dramatic and more of drama.

Mr. Deputy Speaker, Sir, I am guided. I was taking cue from my good brother, Sen. Moi, who actually referred to them as ‘characters,’ because of all the drama in this matter. This is a matter of public interest and the HANSARD will bear me witness that this House began deliberating it so that the people of Solai could get justice, way before the Director of Public Prosecutions (DPP) initiated the proceedings that he did. Mr. Deputy Speaker, Sir, looking at issues, we have to think about everything we do in this country. I sit in the County Public Accounts and Investments Committee (CPAIC) and we are considering matters to do with Ruaraka land. That issue has not been brought here and suggested that it is sub judice . The matters we are dealing on Ruaraka touches on broad issues, some bordering on legislations and authorities like the National Environment Management Authority (NEMA), National Construction Authority (NCA) and the Ministry of Water and Sanitation. Therefore, this matter does not only focus on criminality. There are laws that guides---

What is out of order?

Mr. Deputy Speaker, Sir, as you make a ruling on this matter, I want you to consider public interest.

Are you assisting me to decide?

As a Member of the Committee, these are the issues that we shared. I request that you put in mind the lives of those poor people in Solai.

Order, Senator! Sen. Mutula Kilonzo Jnr., respond to the point of order raised by Sen. Moi.

Mr. Deputy Speaker, Sir, when I was younger, I used to represent Sen. Moi. During that time, he was in good stead with the law.

Order, Sen. Mutula Kilonzo Jnr! Are you trying to say that Sen. Moi is not acting and behaving in accordance with the law?

Mr. Deputy Speaker, Sir, for this particular point, he is misadvised legally. When I used to advise him, he would not have raised this point, and I will elaborate. In a matter like this, Sen. Moi should have disclosed his interest. What is Sen. Moi’s interest? Is he a business partner of Mr. Patel or any of the accused?

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

What is it, Sen. Moi? Sen. Mutula Kilonzo Jnr. is responding.

Order, Sen. Khaniri! I have not asked you to help the Chair to run the House. 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, this borders on imputing improper motive on a colleague. In order to do that, he needs to bring a substantive Motion to the House.

Order, Senator! If I heard Sen. Mutula Kilonzo Jnr., he just needed you to clarify whether you have any interest. The Standing Orders provide that any interest must be disclosed. Do you have any interests?

I do not have any interest whatsoever, real or imagined.

That is good enough.

Mr. Deputy Speaker, Sir, that makes my life easy. Sen. Moi is raising a point of order for the sake of it. If Sen. Moi bothered to read the Standing Orders all the way to Standing Order 92 (4), it says:- “A senator alleging a matter is sub judice shall provide evidence to show that paragraphs (2) and (3) are applicable.” First and foremost, the sub judice objection is premature because he has not laid a basis. So, I am responding to something that has no basis. Two, the accused person who spent three days in Naivasha was seated here. He never brought up the question of subjudice and that is why I asked him to declare his interest. Mr. Deputy Speaker, Sir, I know what the problem is with my colleague. He was away for too long and this Motion was moved before the charges preferred against these persons. My colleague, Sen. Olekina, said that we went wider because this Senate approved a Motion with four things.

Let me get it clear, Sen. Mutula Kilonzo Jnr. Is it your case that this matter is not sub judice ?

It is not sub judice to the extent that we warned ourselves, as a Committee, in the Report. Sen. Moi should have read the caveat which we put in the Report that we never requested for a statement from any of the witnesses or the DPP. When he showed up here, we chased everybody and sat with him in camera, because we were protecting the fair rights of the accused persons. The person who should come and say that the discussion and report---

Do you know the witnesses?

Mr. Deputy Speaker, Sir that is why I am saying that we never requested for a statement from any of the witnesses. We do not know who the witnesses are. We never requested for evidence from any person. When Mr. Perry Mansukh sat here, he never bothered to give us any statement of any witness to state that the mandate we were given from (a) to (d) and the letters we gave him were sub judice . Lastly, Mr. Deputy Speaker, Sir, what Sen. Moi does not know is that the principle of sub judice vis a vis parliamentary proceedings is weighed against public interest. Do we have public interest in the Solai Dam tragedy vis a vis the rights of one or two people? On the matter of public interest, I beg that you rule that notwithstanding the fact that Sen. Gideon Moi has not produced any evidence before you that complies with the Standing Orders; first, that you do not need direction to dismiss the sub judice argument. This should be very easy for you, being a lecturer of law. However, even worse, the matter of public interest in the Solai Dam tragedy is being investigated by both Houses. It is, therefore, in the interest of the Senate to get to the bottom of this matter as 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): Order, Sen. Mutula Kilonzo Jnr. You can resume your seat. First, you have argued that this matter is not sub judice, although you have not provided me with authority, because Sen. Moi read out Standing Order 92(5). Second, you have pointed to the argument of public interest involved, which is obvious.The facts in themselves are such that the matter is of public interest, because of the number of people who died and those who were affected by this tragedy. On that point of public interest, I will require to listen to a few more interventions on the point of sub judice so that I can make a considered ruling. I will start with Sen. Sakaja.

Thank you, Mr. Deputy Speaker, Sir. I just want to add on to what Sen.Mutula Kilonzo Jnr. has said, as he considered the question raised by Sen. Moi. First, Standing Order 92 has five parts, as follows- “(1) Subject to paragraph (5), no Senator shall referto any particular matter which is sub judice or which, bythe operation of any written law, is secret.” However, more importantly, Standing Order No. 92(2) is where the focus should be as you consider this. It states that:- “(2) A matter shall be considered to be sub judice when it refers to active criminal or civil proceedings and the discussion of such matter is likely to prejudice its fair determination. Mr. Deputy Speaker, Sir, even if and when Sen. Moi complies with Standing Order 92(4), by bringing evidence of the active criminal proceedings, he is supposed to convince you and the House that despite the fact that the proceedings might be active, any discussion is likely to prejudice the fair determination of this matter. Mr. Deputy Speaker, Sir, as the Chair has said, Mr. Mansukh and his lawyer were before this Committee. We raised this issue and they agreed that we will not go into the matters that are actively before the court; but we will discuss matters of policy, omission and commission that occurred in Solai. Therefore, that issue was left aside. Finally, Mr. Deputy Speaker, Sir, I do not want you to be lost on the question that Sen. Mutula Kilonzo Jnr. has asked, on Standing Order No.93, regarding declaration of interest. It is interesting that just a few minutes ago Sen. Outa called Sen. Moi a “stranger” because he has never seen him. It is interesting that the first time he appears, he goes straight to stop discussion of such a matter---

(Sen. (Prof.) Kindiki): Order, Sen. Sakaja! Sen. Moi is a Member of this House.

Yes, he is a Member of this House, but he is not fully in this House.

(Sen. (Prof.) Kindiki): You know that the meaning of the word ‘stranger’ in the context of the Standing Orders--- 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 was referring to what Sen. Outa said; I am not calling him a stranger. I know very well that Sen. Moi was validly elected by the people of Baringo.However, Standing Order 93 says that- “A Senator who wishes to speak on any matter in which the Senator has a pecuniary or proprietary interestshall first declare that interest.” We want Sen. Gideon Moi to be clearly on record that Mr. Mansukh or his lawyers are not known to him; that he has not had any discussions with them and that he has no interest in this matter.

(Sen. (Prof.) Kindiki): Sen. Sakaja, I thought that Sen. Moi has already said that he has no interest; unless your claim is that he does have an interest. In that case, I will ask you to substantiate.

Mr. Deputy Speaker, Sir, on top of just casually saying that he has no interest, it will be good for the record and the integrity of this House, for him to tell us that he has not had any discussions with the lawyer, Mr. Mansukh or anybody else related to this case.

(Sen. (Prof.) Kindiki): Sen. Sakaja, whoever alleges must prove!

Mr. Deputy Speaker, Sir, he is the one who has alleged---

(Sen. (Prof.) Kindiki): The allegation is that the Senator may or could have an interest. Therefore, unless you have proof, that is a route that you do not want to take.

Mr. Deputy Speaker, Sir, you have not heard me clearly. I have not alleged; I have asked him to satisfy the House---

(Sen. (Prof.) Kindiki): Which he has.

Not that he has any interest; he is to satisfy this House that he has not been in any communication or contact with Mr. Mansukh or his lawyers.

(Sen. (Prof.) Kindiki): Order, Senator! Order! Resume your seat.

Mr. Deputy Speaker, Sir, if he has not been in communication or contact, he we will not hesitate to give this House that assurance.

(Sen. (Prof.) Kindiki): Order, Senator! Order!

He will---

(Sen. (Prof.) Kindiki): Order, Senator! Order! Resume your seat. Proceed, Sen. Wetangula.

Thank you, Mr. Deputy Speaker, Sir. I also noted, with tremendous interest, the distinguished Senator for Baringo raising the point; but he has every right to do so. Mr. Deputy Speaker, Sir, it is not enough to stand up in the Chamber and say that this matter is sub judice. In fact, it is not pronounced sub judice but “sub judike” 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, this matter has been well canvassed. It is not enough just to quote the Standing Order to stop us from debating it because it has generated a lot of public interest. Therefore, it is only in the interest of this House that we be given a chance to debate the report before us. This House is not in the business of determining court cases or providing evidence to the courts of law. Our work is to consider the best interest of the common mwananchi . 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 also want to add my voice to this debate. First, I want this House to note that if at all there was any breach of the sub judice rule, which I doubt, because we have already had proceedings and debate on this issue, the proceedings that took place at the Committee stage under our Standing Orders, are proceedings of this House. So, we have already had a discussion on the Solai issue. Secondly---

(Sen. (Prof.) Kindiki): Order! Sen. Omogeni, so that I get you clear, are you saying if we have started proceedings, it does not matter whether rightly or not, we should continue? Is that the argument?

Mr. Deputy Speaker, Sir, the point I want to make is that already we did task this Committee to look into this matter. They have prepared a report which is before the House. I want to tie that to the Constitution that we passed in 2010. Under Article 33 of the Constitution, Kenyans have freedom of expression, which includes freedom to seek, receive and impart information or ideas. The only limitation to that right in Article 33 is found in Article 24 of our Constitution. The only way you can allow limitation of that constitutional right is a situation that can be justifiable in an open and democratic society. In the situation at hand, where lives were lost, the people of this country have a right to know what conclusions the Committee that was appointed by this House arrived at and what decision we, as a House, will make. Secondly, the sub judice rule has a history. As lawyers know, its history is from the common law tradition. The rule was introduced to ensure that the jury is not influenced by debate that could take place outside the jury itself. In this country, we know that the cases that are pending before court will be determined by judicial officers who will arrive at their decisions based on the law and not on what will take place before this House. The magistrates or judges who will consider these cases will not be influenced by the debate that will take place before this House. Thirdly, Mr. Speaker, Sir, there was a High Court decision in the case of Okiya Omtatah versus the Attorney -General. The guiding principle is that the sub judice rule The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Thank you, Mr. Deputy Speaker, Sir. I will be extremely careful because earlier on when I came into the Chamber, I greeted Sen. Moi with a lot of happiness, and you ruled me out of order. The reason I greeted him with a lot of happiness is that I have learnt from experience that when you see Sen. Moi in the Senate, there is a matter that is extremely important to him.

Therefore, I sensed that this afternoon there must be a matter that is important to him. It is only that I did not know what the matter was. One of the things that we do in this House is review of our Standing Orders to align it to issues that keep on arising as we do our duties as Senators. This is a corner that we have been before, where we are debating issues and somebody raises the point as the one that has being raised by our colleague this afternoon. It is in light of that that our Standing Order 92 (5) states- “Notwithstanding this Standing Order, the Speaker may allow reference to any matter before Senate or a Committee.” Mr. Deputy Speaker, Sir, this is a curve that we have already been on because before we got to the point of drafting the report and there was a Motion that was presented before the Speaker. I am sure he was aware of the issues that were before the Directorate of Criminal Investigations (DCI) and the Director of Public Prosecutions (DPP). However, he satisfied himself as the Hon. Speaker of this House that it was important that we, as the representatives of the people, look into this matter. Therefore, you cannot at this particular point declare this process sub judice as Sen. Wetangula has reminded us this afternoon.

(Sen. (Prof.) Kindiki): Order, Sen. Cheruiyot!

Mr. Deputy Speaker, Sir, you know I am not a lawyer so when Sen. Wetangula speaks--- I do not want to lose my 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.

(Sen. (Prof.) Kindiki): Order, Sen. Cheruiyot. Is it your argument that if sub judice argument is not raised at the inception, it should not occur at any stage?

Mr. Deputy Speaker, Sir, yes, it should not occur at any particular stage after that.

(Sen. (Prof.) Kindiki): What is your authority for that?

Mr. Deputy Speaker, Sir, please, come again. I did not get you.

(Sen. (Prof.) Kindiki): What is your authority on that?

Mr. Deputy Speaker, Sir, from past practice in this House, I remember on many afternoons we have had similar issues. The former occupant of that seat; the Rt. Hon. Ekwee Ethuro, made a similar ruling before this House. He advised that once that determination has been made, you cannot in the middle of the process subject it to another point of debate.

(Sen. (Prof.) Kindiki): Which ruling was that in particular, and on what matter?

Mr. Deputy Speaker, Sir, are you asking for matters that were before us?

(Sen. (Prof.) Kindiki): Yes.

Mr. Deputy Speaker, Sir, on one particular occasion we were debating a report of the County Public Accounts and Investment Committee and one of the governors had gone to court and protested that his issues should not be considered in this House. The Rt. Hon. Speaker made that ruling that afternoon, that the point of determining whether we should have debated the conduct of that governor or not had passed. I am a good history student.

(Sen. (Prof.) Kindiki): Okay, wind up.

Mr. Deputy Speaker, Sir, in conclusion, the point that I was making is that, while Sen. Moi maybe having a point, the horse has already bolted. Therefore, he cannot close the door to the stable at this point. As a revered jokey, he should know that it is impossible to do that. Thank you.

(Sen. (Prof.) Kindiki): Very well. I will listen to a maximum of four other interventions and then we close it. The first one is Sen. (Dr.) Kabaka for Machakos County.

Thank you, Mr. Deputy Speaker, Sir. I am so happy and I hope Sen. Moi is listening.

(Sen. (Prof.) Kindiki): Order, Sen. (Dr.) Kabaka. Just resume your seat for a minute.

Okay, Mr. Deputy Speaker, Sir. 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): I would like to acknowledge the presence, in the Public Gallery this afternoon, of visiting students and teachers from Marula Primary School, Nakuru County. In our usual tradition of receiving and welcoming visitors to Parliament, I extend a warm welcome to them. On behalf of the Senate and on my own behalf, wish them a fruitful visit. Thank you.

(Sen. (Prof.) Kindiki): Similarly, Hon. Senators, I would like to acknowledge the presence, in the Public Gallery this afternoon, of visiting students and teachers from Jamaa Primary School, Kisumu County. In our usual tradition of receiving and welcoming visitors to Parliament, I extend a warm welcome to them. On behalf of the Senate and on my own behalf, wish them a fruitful visit. Thank you.

(Sen. (Prof.) Kindiki): Quickly proceed, Sen. (Dr.) Kabaka. 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, for giving me this opportunity to contribute to this issue with regard to jurisprudence on these very broad and disturbing principles of law. From the onset, I need to state that Article 51 cited by the distinguished Senator for Baringo County is the wrong Article; he ought to have quoted Article 50. Secondly, under the principle of separation of powers, there is nothing on earth and under the sun which distinctively prevents Parliament from debating any issue so long as it does not in any way prejudice an individual’s right. What does it mean? I do know that when it comes to procurement of evidence pursuant to the Evidence Act, Cap 8 of the Laws of Kenya, there are provisions to the effect that documents or records like HANSARD do not necessarily bind the courts of law. Mr. Deputy Speaker, Sir, I duly appreciate in certain areas in criminal law where the subjects cause a court to determine on retracted or illegally obtained evidence. There is an area where Lord Denning said that even though the courts are not bound by the HANSARD reports in their determination of the findings in their judgment, he himself at certain times would go and peruse the HANSARD reports to look at the intention of Parliament. That is why I am saying that it would be very dangerous if we are going to apply the rules of sub judice with that regard. This is because matters are pending in court which are criminal or homicide in nature. What if a crazy judge - with due respect - behaves like Lord Denning in that regard and comes and sees the outcome of the HANSARD which was killed at the preliminary level? Mr. Deputy Speaker Sir, before I sit down, I urge you, Chair, to dismiss in limine the interruption by the distinguished Senator for Baringo County. More so, if you look at the public good, the interpretation of the Constitution – the Article 50 that he has mentioned – cannot be applied anyhow. The courts are called upon - when it comes to interpretation of the Constitution or even Statutes - to interpret it purposively in favour of the public as opposed to individual private right. I sit and support that the point raised by the distinguished Senator for Baringo County be dismissed and we be allowed to proceed with this debate on the report by Sen. Mutula Kilonzo Jnr.

(Sen. (Prof.) Kindiki): Very well. We will have two other Speakers. Sen. Cherargei.

Thank you Mr. Deputy Speaker, Sir. From the outset, I want to say that the lives and properties that were lost in Solai are very sacred. We would not like Kenyans to lose their lives at any given point again. Articles 34 and 35 of the Constitution provide for media freedom and right of access to information. I have heard my colleagues talk of the rule of sub judice and that debate should be stopped. This is very unfortunate. With all due respect to Sen. Moi, I believe that there should be a legal redress for the lives and property that were lost. The Committee that is chaired by one of the Members of the Committee on Justice, Legal Affairs and Human Rights, Sen. Mutula Kilonzo Jnr., has done good work 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): Order, Sen. Cherargei. Proceed and wind up.

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

(Sen. (Prof.) Kindiki): What is it, Sen. Halake?

Mr. Deputy Speaker, Sir, I rise to ask if it is in order for Senator after Senator to impute ill motive, when the question that was asked was just for your guidance with regards to reference to sub judice. As one of the people who have always asked about different things, I am wondering if this means that we should never ask questions where there is no clarity, perhaps, by virtue of having been away or whatever reason. Is it that when you ask, it is definitely because you are not standing for the public interest? Is that in order?

(Sen. (Prof.) Kindiki):Sen. Halake, I will give you and Sen. Pareno a chance to close. I have already dealt with the issue that you are raising. I have called the Senator to order. Please, conclude. Senators, we have taken a bit of time on this issue because we need to make a very considered decision. Therefore, we need the benefit of the collective wisdom of the House.

Thank you, Mr. Deputy Speaker, Sir, for protecting me.

(Sen. (Prof.) Kindiki): I have not protected you; I called you to order.

Actually, I protected you from yourself.

I stand guided, Mr. Deputy Speaker, Sir. Finally, we should be very careful because the decisions that we make today, when we stand in the way of justice for Kenyans, will come with a heavy price. I want to advise my good friend, the Senator for Baringo, Sen. Moi, to be careful not to become an impediment or stumbling block to the justice and legal redress of Kenyans. This is because we never know what the future has. 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): Very well. Thank you, Sen. Cherargei. Sen. Abshiro Halake.

Thank you, Mr. Deputy Speaker, Sir. I pressed the wrong button, but I just wanted to intervene with regards to the point of order, where the Senators had imputed ill motive at every juncture. Is asking about a provision within our Standing Orders automatically confirm that Sen. Moi is not standing for public interest? I do not think that is the case, even though I am not speaking for him.

You are!

(Sen. (Prof.) Kindiki): Order! There is a chorus from one side of the House. That chorus is led by the Senator for Bungoma County. Can you proceed, Sen. Halake.

Thank you, Mr. Deputy Speaker, Sir. For the information of the Senator for Bungoma County, even though I am not a lawyer, I speak French. The right word is sub judice .

Mr. Deputy Speaker, Sir, can I proceed?

(Sen. (Prof.) Kindiki): Proceed, Sen. Halake.

Mr. Deputy Speaker, Sir, I digressed but that said, we have seen a lot of excitement in this House this afternoon, thanks to Sen. Moi.

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

(Sen. (Prof.) Kindiki): What is it, Sen. Wetangula?

Mr. Deputy Speaker, Sir, this is a clear case of being clever by half. Is the distinguished Senator in order to say that sub judice is French, when it is, in fact, Latin?

Mr. Deputy Speaker, Sir, we should look at the roots of Latin. The roots of French is Latin. Therefore, I can say it without fear or favour je parle bienfrançais très bien merci.

(Sen. (Prof.) Kindiki): Sen. Abshiro, the issue is not whether you can speak French. You have been challenged as to whether ‘ sub judice’ is a Latin word or a French word as you allege.

Mr. Deputy Speaker, Sir, it is a Latin word, but some French words have roots in Latin and both are supposed to be pronounced sub judice. 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): Order, Senator. Let me save you further agony---

Mr. Deputy Speaker, Sir, I am actually enjoying it.

(Sen. (Prof.) Kindiki): Resume your seat. Let me save you further agony. Sub judice is actually Latin. Lawyers like Sen. Wetangula and others will tell you that you pronounce Latin as it is written and write it as it is pronounced. So, I would advise that you abandon that direction and wind up your remarks about sub judice and its application to the Solai investigation matter that is before us. You have two more minutes.

Thank you, Mr. Deputy Speaker, Sir. A few days ago, you passed a message that I should inform the Chairperson of my Committee about the Local Content Bill and that he should be here to defend that Bill. Just before I got here I told him: “Sen. Moi, your Bill is here and I was given a message. Again, while I do not speak for him, I actually passed the message. Besides that point, as colleagues in this House, if anybody asks a question with regards to any Standing Order, which I do a lot as you know, they do not do that because of ill motive or lack of support to the public. We all know that Sen. Moi was there a few days ago and he has been supporting this process. Where is the goodwill from colleagues? Therefore, I am, once again, asking where the goodwill for colleagues is. For instance, as a newcomer who is not very familiar with some of the issues within the Standing Orders, I find it very intimidating to ask without being judged so harshly, as has been done this afternoon. I thank you, Mr. Deputy Speaker, Sir.

(Sen. (Prof.) Kindiki): Very well. Finally, I can see so many requests, but time will not allow us to continue. Proceed, Sen. Pareno.

Thank you, Mr. Deputy Speaker, Sir. I rise to contribute to this very interesting aspect of our Report. The words to note in our rules are“active proceedings.”Were there active proceedingsat the time this Senate was seized of this matter? No. When we started on this matter, as the Committee on National Security, Defence and Foreign Relations, we visited the scene. We brought a preliminary report to this House and Sen. Kihika made a Statement on that aspect before anybody was ever brought before a court of law. Actually, the arrests and proceedings which they now want to use to stop us, were initiated after this Senate spoke and called for the arrests. It will not be fair for us to call for arrests and prosecution while this House was already seized of this matter, only for them to use the sub judice rule against us. Mr. Deputy Speaker, Sir, the Senate has expended a lot on this matter. An Ad hoc Committee was brought before this House and Members approved it before the proceedings started. After the approval, Members proceeded to expend their time, labour and resources to investigate the Solai Dam Tragedy. Look at the Report that is before us now; it is so voluminous. So much work and investigation have gone into it, and then someone comes to tell us about sub judice, after all that has been done? I say no. 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): Order, Senator! You should not anticipate debate.

Yes, Mr. Deputy Speaker, Sir. I wish to be corrected on that. However, they have reported that they have received threats. This subjudice rule that is being invoked now is just another threat. I ask that we commend this Committee for coming out strongly; for resisting the advances, threats and for appending their signatures for the sake of the people of Solai.

Mr. Deputy Speaker, Sir, I submit and say that we should walk with our heads high, as the Senate and as a Committee that---

(Sen. (Prof.) Kindiki): Is your submission that the point of order by Sen. Moi should not be entertained?

Mr. Deputy Speaker, Sir, it should be disregarded with the contempt that it deserves. Thank you. Mr. Deputy Speaker, Sir.

(Sen. (Prof.) Kindiki): Order, Senators! We have to bring this to a close. I can see that my screen is full, but Sen. Wambua has pleaded for two minutes. I hope there is value addition in your contribution. Do not repeat what your colleagues have already said. Sen. Wambua, you have strictly two minutes before we close it.

Thank you, Mr. Deputy Speaker, Sir. I also hope that there will be value addition in this contribution.The value addition is very simple and straightforward. We have spent well over 30 minutes canvassing the matter of sub judice even before the Chairperson of the Committee begins reading the first paragraph of the Report. If there was any doubt as to the amount of public interest on this matter, then the debate on the intervention by Sen. Moi settles that matter. This is a matter of serious and immense public interest that cannot be curtailed by a consideration on the sub judice rule. Mr. Deputy Speaker, Sir, I submit---.

(Sen. (Prof.) Kindiki): Is the matter sub judice ? 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 submit that it is not. We should continue---.

(Sen. (Prof.) Kindiki): Why is it not sub judice?

If you asked me, and I am not a lawyer, the lawyers in the House have already ventilated on thismatter. However, if you weigh the public interest against the argument of sub judice on this matter, it has been canvassed, not only in this House, but also in the public domain. It has been debated and witnesses have appeared before the Committee of this Senate. My submission is, therefore, that you allow the Committee Chairman to table the Report and for Senators to debate this matter objectively and without prejudice. Thank you, Mr. Deputy Speaker, Sir.

(Sen. (Prof.) Kindiki): Very well. Thank you, Senators. Sen. Wambua, the Report was tabled yesterday. What is before us this afternoon is whether the Chairperson of the Committee can move the Motion to adopt the Report of the Committee and, of course, that will be followed by debate so that the adoption can take place. Firstly, I have deliberately allowed all those interventions so that we can make an informed decision. This is not the first time that the issue of sub judice has been raised before this House. I, therefore, find nothing unusual for Sen. Moi or any other Senator raising it. I do not think it is trivial and that is why our Standing Orders provide the rule of sub judice . Therefore, that should be the starting point as we look at this matter. Secondly, I have also listened to the discussions, contributions and interventions by hon. Senators, trying to argue their understanding on this rule, its limitations and application. Thirdly, a Speaker of this House has previously had to make a detailed ruling on this matter. Similarly, the Speaker of the National Assembly, throughout various Parliaments, has ruled on this matter. Therefore, this being avery weighty decision because it touches on the independence of Parliament and how it should exercise that independence in relation to the other arms of government; in the circumstances, I direct as follows. One, that this Motion be deferred to tomorrow at 2.30p.m. Two, that this Motion be given high priority tomorrow at 2.30 p.m. In which case, Order No.7 – which is normally Statements and which normally takes a bit of time – will be transacted after this Motion has been debated. This means that within the first five minutes of tomorrow’s Sitting, this Motion should be transacted, depending on the ruling of that Speaker, which should precede any further debate on this Motion. Therefore, in short, Senators, the Speaker will make a detailed ruling on the matter raised by Sen. Sen. Moi tomorrow at 2.30p.m. Depending on that ruling, a debate may ensue depending on the finding, because I need a bit of time to reflect and balance all the authorities and look at history. We are also guided by precedents and previous decisions of Parliament. We can also break new ground. However, we have to support that new ground with authority, so that our decision can stand the test of time.

On a point of intervention, Mr. Speaker, Sir. 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): What is your intervention, Sen. (Dr.) Kabaka?

Thank you, Mr. Speaker, Sir. Before you finalise your ruling, I am standing on a point of intervention with regard to the seriousness of the matter which you are making a ruling on and for the security of the Committee Members who have been threatened. The Mover of this Report, Sen. Mutula Kilonzo Jnr. should be given proper security before then.

This is not a laughing matter; it is a matter of life and death.

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

(Sen. (Prof.) Kindiki): Order! Sen. Mwaura, what is your point of order?

Thank you, Mr. Speaker, Sir. Martin Luther King Jr. said that- “All labour that uplifts humanity has dignity and importance and should be undertaken with painstaking excellence” You have given yourself time to give a considered judgment on this matter. Is it in order for, Sen. (Dr.) Kabaka to challenge your ruling? That is unparliamentary and unprocedural.

(Sen. (Prof.) Kindiki): Order, Sen. Mwaura! I do not think, Sen. (Dr.) Kabaka has challenged my ruling. He was seeking further clarification with my permission, Sen. (Dr.) Kabaka, unless you are speaking for yourself, Sen. Mutula Kilonzo Jnr. is here and he has not indicated that he is in danger and requires a specific direction on security. So, let us not over dramatize this matter; it has been out in the public domain for a long time. We are now at the tail end of it. However, should, Sen. Mutula Kilonzo Jnr. or any other Senator require the support of Parliament to exercise their duties, that opportunity is there, though not necessarily on the Floor of this House. That facility is there for all Members who must feel safe and protected as they exercise their duties. So, I direct that Order No.8 be deferred to tomorrow. It should be on tomorrow’s Order Paper at the same position as Order No.8. As I have already said, it will be transacted before Order No. 7 which is Statements. It is so ordered.

Next Order.

Order, Senators! Those who are retreating should do so in silence. 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): Order, Senators, we do not have the numbers to carry out a division in Order No.9. I, therefore, direct that Order No.9 be deferred.

Hon. Senators, I also direct that the items appearing as Order Nos.10, 11and 12 be deferred to tomorrow. The Movers and sponsors of those items are not around. So, we will proceed from Order No.13 downwards. We will not sit in the Committee of the Whole.

(Sen. (Prof.) Kindiki): This Bill has been moved. Sen. Mary Seneta, the last time the debate on this Motion was interrupted you were on 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. Speaker, Sir, for giving me the chance to complete my contribution on this Bill. From the outset, I want to congratulate, Sen. Aaron Cheruiyot for having thought about the human resource element in our counties. Mr. Deputy Speaker, Sir, building the human capital is a very important aspect in our devolved units. If we want to develop our counties, we must have competent, effective and capable staff and a human resource management which can perform. When we look at our counties today, many of our sectors need human resource that can sit down, plan, manage and deliver effective services to our counties. Therefore, to have a County Public Service Board (CPSB) chairperson who is a professional, it will determine and go a long way in making sure that whoever they recruit as the staff of the counties are very competent. I agree that it is not only the chairperson that should be a human resource management professional, but also the whole CPSB membership who should equally be competent and qualified to recruit the staff of the counties who can deliver services at the right time.

Madam Temporary Speaker, today, when we look around in many of our sectors in the counties, many of the staffers lack the capacity. We should not only look at the CPSB as being competent, but also offer service training or refresher courses to the staffers who are recruited in the counties. This will ensure that we have people who can deliver quality and timely services to our citizens. We also need a competent workforce that can reason and come up with policies that affect different sectors in the counties so that we can give quality services to our people. Looking at the Bill, it is equally important that we agree that whenever a process of recruitment is required in our counties, the CPSB must also adhere to merits when they are employing staff. They should look into the qualifications and experiences of the people they recruit, so that when we get the workforce in our counties, we get people who can work and deliver services to the citizens at the right time. I support this Bill.

Proceed, Sen. Mutula Kilonzo Jnr.

Thank you, Madam Temporary Speaker. I rise to support the amendment. It is actually a very simple amendment, but it speaks volumes on the question of ensuring that the chairperson of the CPSB be a person who is qualified in the human resource management profession. In all sectors, both in the public and private, and particularly in the private sector, the people who recruit workers are experts in human resource management. 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, Madam Temporary Speaker. I support the amendment Bill by Sen. Cheruiyot. Indeed, he has come up with good amendments, for example to Section 32 with regard to the deputy governor. The procedures and timelines with regard to the appointment of a deputy governor are indicated very well in the Bill. I would urge the Senator to add another amendment on how to appoint another deputy governor after the previous one resigns. He should also give timelines for it. I am talking about the situation that we currently have in Nairobi City County. There is no clause in this Bill that says how long a governor should take to appoint his or her deputy. Under Section 58 of the principal Act, on the composition of the CPSB, the Member has come up with amendments. Whenever a vacancy arises in the CPSB, the governor shall constitute a selection panel for the purpose of selecting suitable candidates for appointment as members of the CPSB. The amendment has added more members. For The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate.

Very good. Sen. Kinyua, proceed.

Thank you, Madam Temporary Speaker. From the outset, I congratulate Sen. Cheruiyot for bringing this amendment. If you look at Clause 58(3)(d)(ii), he has brought in the issue of professionalism. Previously there was nothing like that. A governor could pick his friends or any other person that he or she deemed fit. With this amendment, there will be professionalism in the CPSB. He has also considered the youth because previously there was a requirement that you needed to have 10 years’ experience. That has been reduced to five years which takes care of the youth of this country because even the youth have the capacity and ability to lead in this country. I strongly support him for that. Having listened to him, the CPSBs are crucial in running of activities in the counties by the virtue that they are the ones that employ people to work in the counties. If we have boards that are not professional, the counties will have--- They normally say that if you give peanuts, you get monkeys. With this one, we will get professionals who will be doing the work diligently in the counties. He has also put the time limit that is non-renewable such that other people will also have a chance to serve once a term of other people expires after six years. This is a good amendment and I support.

Sen. Cheruiyot, it is your time to reply.

Madam Temporary Speaker, I take this opportunity to thank my colleagues who have contributed to this Bill. While listening to them, the line that we share is that there is genuine concern amongst Senators in this House that we need to professionalize how our counties are being run. We should infuse into the CPSBs that the true sense of duty can only be gotten by ensuring that professional human resource minds are trained to understand that human resource is an extremely important resource for any county that wants to thrive and achieve its full potential. I have taken time to note down all the concerns that have been raised by colleagues, proposed amendments, ideas and thoughts. There are those who are in support of the Bill in its entirety and feel that there is need for additional amendments to the County Governments Act. I have listened to the contribution from my distinguished colleague Sen. Kwamboka about the timelines that a county government can stay without a deputy governor, something which should be included in this Bill. Sen. Mutula Kilonzo Jnr. 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.

We will defer putting of the question to tomorrow.

Let us go to the next Order.

Order No.14 is deferred because Sen. Moi has requested that it be deferred.

Next Order.

Madam Temporary Speaker, in reply to the Motion, I am grateful for Members who contributed to the Motion yesterday. I am happy that most of the issues came out. I just want to state that in the case of the northern parts of Kenya with all the problems, the Ministry of Education should look into the issues of not only university education but also primary and secondary education. We need the quota system because sometimes back, there used to be quota systems. Many Members mentioned about the issues of discipline that teachers face, which is true. However, there are some issues that teachers mentioned such as rape and sexual harassment which are not possible because of our cultures and religious aspects. It is not possible in those areas even if they happen in other areas. Members spoke widely on this Motion and in an appropriate manner. I hope the Committee will look into the issues properly. I have been informed that the Committee will tour the northern parts of this country soon. I hope they will get hold of the stakeholders and involve the leadership when they visit those areas, so that we work together and do what is required so that the children of northern Kenya get proper education. I thank you.

I will now put the question.

Next Order! ADOPTION OF CPAIC REPORT ON FINANCIAL OPERATIONS OF NAKURU COUNTY EXECUTIVE FOR FY 2013/2014 THAT, this House adopts the Report of the Sessional Committee on the County Public Accounts and Investments on the inquiry into the financial operations of Nakuru County Executive for the Financial Year 2013/2014 (1st July 2013 - 30th June, 2014) laid on the Table of the House on Tuesday, 19th June, 2018.

ADOPTION OF CPAIC REPORT ON FINANCIAL OPERATIONS OF KILIFI COUNTY EXECUTIVE FOR FY 2013/2014 THAT, this House adopts the Report of the Sessional Committee on the County Public Accounts and Investments on the inquiry into the financial operations of Kilifi County Executive for the Financial Year 2013/2014 (1st July 2013 - 30th June, 2014) laid on the Table of the House on Tuesday, 19th June, 2018.

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, Order No. 21 is open for debate. Any Senator who has interest in this debate is free to contribute. Hon. Senators, it seems that there is no interest on the Motion and Sen. Kasanga is not present to reply. Maybe, she has forfeited that opportunity. I will not put the Question.

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.

The mover of this Motion is not present; we, therefore, defer it. Under the circumstances, we now adjourn.

Hon. Senators, having concluded the business of the day, it is now time to adjourn the House. The Senate, therefore, stands adjourned until tomorrow, Thursday 2nd August, 2018, at 2.30 p.m. The Senate rose at 5.40 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.