Hon. Senators, I wish to report to the Senate that pursuant to Standing Order No.41 (3) and (4), I received the following Message from the Speaker of the National Assembly regarding the passage of the mediated version of the County Governments Additional Allocation Bill (Senate Bills No.35 of 2021). The Message, which is dated Wednesday 6th April 2022, was received on 8th April 2022 while the Senate was on recess. Pursuant to the said Standing Orders, I now report the Message: Pursuant to the provisions of Standing Order No.41 (1) of the National Assembly Standing Orders, I hereby convey the following Message from the National Assembly. “Whereas the mediated version of the County Government Additional Allocation Bill (Senate Bill No.35 of 2021) was passed by the Senate on Thursday 31st March 2022 and referred to the National Assembly for consideration and whereas National Assembly passed the said Bill on Thursday April, 7th 2022, now therefore, in accordance with the provisions of Article 113(3) of the Constitution, I will present the Bill to His Excellency the President for assent.” I thank you.
Hon, Senators, before we proceed to Order No. 9, I have a brief Communication that relates to that Order. It is as follows: As you are aware, the body of H.E. the late Mwai Kibaki is lying in State in Parliament Buildings for the third and final day. In this regard today’s sitting is scheduled to end at on or before 5.00 p.m. to allow certain steps attendant to the departure of the body of H.E. the late former President. Arrangements have been put in place to ensure that all Senators accord H.E. the late Mwai Kibaki a befitting parliamentary honour. In this regard the sequence of events will be as follows: (1) Debate in respect of the Motion under Order No.9 will end at or before 5.00 p.m. (2) Immediately after that, the Speaker’s procession will leave the Chamber in the usual manner. (3) Thereafter, all Senators will leave the Chamber and converge at the main Parliament gate facing KICC to await the body of the H.E. the late Mwai Kibaki as it exits Parliament Buildings. The Chief Serjeant-at-Arms will guide Members on the designated waiting place. The Speakers, the Leaders of Majority and Minority parties, Majority and Minority Whips and the Clerks-at-the-Table will converge at the National Assembly
Speaker’s walkway to accompany the procession of the body together with the leadership of the National Assembly. (4) On arrival of the casket of H.E the late Mwai Kibaki at the gate facing KICC, all Members are required to await the playing of the National Anthem and the East African Community Anthem before the casket is loaded into the carriage to exit Parliament Buildings. (5) The Parliamentary procession will symbolize Parliament paying its last respect and honouring H.E the third President of Kenya, the late Mwai Kibaki for his service to Parliament and the nation. I thank you. Next order.
Mr. Speaker, Sir, I would like to thank you for giving me the opportunity to join you and all Senators in mourning the death of our third President, H.E. Emilio Mwai Kibaki. On behalf of the people of Uasin Gishu County and my family and myself, let me take this opportunity to pass my most sincere condolences to the family of the departed former President. My prayers are with them that they be comforted of the living God at this very difficult time. I am one person who was honoured to work as a Minister under President Mwai Kibaki. Mr. Speaker, Sir, I would just say a few things that I learnt from this very committed Kenyan. Mwai Kibaki was a man of few words but very clear words. He had very clear instructions to us as his Cabinet and especially when he dealt with you as an individual discussing issues to do with your docket. One week after my appointment, I had a sitting with President Kibaki then and he gave me one instruction that shaped my being the Minister for Higher Education, Science and Technology. That one instruction was that he wanted to expand higher education and being the Minister for Higher Education, Science and Technology, he asked me--- It was amazing me that he was a very humble President. He would tell you that I have called you because I want to request you to ensure that we expand opportunities in universities in this country. At that time, we had only seven universities and a good number of university colleges. I went back to the Ministry being one week old and gathered information on how to do it. I was very delighted to have a team that was very active and ready to move. We moved because what it required was that we had to change the university law so that we can have one Charter for all the universities, which was a challenge that four former Ministers had faced. I was fortunate because I had just come from the university because the challenges were coming from there. I went back to the President and said I would have to change the law and he said that is exactly what I am expecting you to do; change the law first. We worked on the law and I thought it was going to take a very short time. In excitement, I was telling him that in six months we should be ready. It took me six months to get the laws to Parliament. We had to break down the laws into higher education separate from the science and technology. We came up with a law on higher education, another one on science and technology and a different one on technical training. I went back and asked for more time. The late President agreed to give us more time because he was patient.
Mr. Speaker, Sir, I will always remember him for his patience, guidance and a calm way of instructing you. He never came out loud but he was also extremely focused. Every time we went to see him, he was very clear on where we were meant to go and he would tell us to do it. The late President Mwai Kibaki was known for saying that once he gave you a job, he expected you to do it and you were only required to update him.
One amazing thing that the late President Kibaki did is that he refused to be a Chancellor of any university. He only took Masinde Muliro University of Science and Technology. As we prepared this, I would go back and ask him if we could give him more universities as their Chancellor but he would refuse saying there were many Kenyans who could be Chancellors. He said he only wanted to be a Chancellor of only one university where he could attend and preside over its graduation. This was a humbling comment from a Head of State. He remained a Chancellor of only that one university.
Mr. Speaker, Sir, I was amazed at the late President Kibaki’s reaction when we were preparing the Charters for naming universities. To get a Charter, there were two things that we had to do. We had to name the university and its Chancellor. One day, I went to see him and told him that we had named several universities. I did not show him the name of Karatina University because we wanted to change the name. The late President Mwai Kibaki asked me what name we wanted to give that University. I replied that we wanted to call it Mwai Kibaki University. He looked at me, burst into laughter and asked me why we wanted to name it that way.
I told him that he was going to release 15 Universities and we must have at least one or two in his name. The late President Kibaki looked at me and replied that he was going to tell me what he had never told many people. Mr. Speaker, Sir, allow me to say this because we are talking about him at his exit point. He said that his family decided some time back that his name should not be put anywhere, including buildings or universities. I was so humbled. He told me not to be shocked because it was true. That was a family decision.
What lesson do we derive from that? Your achievements are not marked by your name being labelled on them but they should be seen. This is how I would describe the late President Mwai Kibaki. He had many achievements that he did not have to label them in his name yet we could see them. There were 15 universities in a row covering the whole country. Every time I went to brief him about the universities that had qualified, he would ask how many were being given to Kisii, Meru and the Coast region. We had to spread them out. This really excited him and he became happy after we achieved what he wanted. That was one of the things President Kibaki had wanted to do before he completed his term.
The late President Kibaki was a humble and quiet achiever. Most people imagined that Ministers were performing yet he was the one who was performing through them. This is by doing what he did through me; getting all those Universities, a law for higher education, science and technology and Technical and Vocational Education and Training (TVET). That was amazing as it was within one year and four months. However, at the end, we were unable to issue all the Charters to all the Universities and we had to do “mass marriage”. We had to give Charters to seven Universities from the Kenyatta International Convention Centre (KICC). At the end of it all, the late President Kibaki blessed us and told us to go and try our luck in our elections because we were at the end of the elections period.
Mr. Speaker, Sir, the late President Mwai Kibaki was a man of a clear vision and a roadmap. He had different roadmaps for each sector; roads, education, natural resources and afforestation. All of them would converge at one point. I was an Assistant Minister for Environment during the days of Hon. Michuki, before I became a Minister. It was very clear on what he thought about climate change. I remember before I became an Assistant Minister, we had a caucus in Parliament on climate change where we invited African Parliamentarians to the United Nations Environment Programme (UNEP). He made an off the cuff statement that unless we dealt with the climate change, it would destroy all of us irrespective of whether you come from a developed or a non-developed nation. Beyond the speeches that were being made, he chose to be personal about issues that he believed in. We thank God for him. Mr. Speaker, Sir, there are other Members who would like to make their contributions, so I will not go on. I pray that the family finds comfort from the good contributions from our experience with the man who loved his nation and country; a man who did not want to take credit for anything, a man who did not want to be labelled on buildings or anything but one who believed in performance. May the Lord God rest his soul in eternal peace. Thank you.
Sen. Khaniri, proceed.
Mr. Speaker, Sir, I thank you for giving me the opportunity to join my colleagues who spoke yesterday and Sen. (Prof.) Kamar who has just spoken now in conveying my condolences to the family of the late President Mwai Kibaki and the country at large. I begin by saying that on my own behalf, my family and the people of Vihiga County, I stand here in the Senate this afternoon with a very heavy heart to convey my condolences on the demise of our beloved third President of the Republic of Kenya, H.E. Emilio Mwai Kibaki. A giant has fallen. The country has lost a hero. As we live in this world, we should all endeavour or struggle to leave the world a better place than we found it. I can confidently stand on the Floor of his House and say that our fallen President achieved that. He left this world and this country a better place than he found it. Mr. Speaker, Sir, I had the chance to work with the late President. First, it was in the Seventh Parliament when I got elected in a by-election in 1996. I came in as the Member of Parliament (MP) for Hamisi Constituency. At that time, Hon. Kibaki was the leader of the Democratic Party (DP) and the MP for Othaya Constituency. In the Eighth Parliament, I was lucky to be re-elected and Hon. Kibaki was also re-elected as the MP for Othaya and was the runner-up to President Moi therefore making him the Leader of the Opposition. In the Ninth Parliament, we supported him for presidency and he won that election to become the third president of the Republic of Kenya. I am grateful to him that he appointed me as one of his Assistant Ministers, first of all, to serve in the Ministry of Agriculture, Livestock, Fisheries and Irrigation, where I served with my friend Mheshimiwa Kipruto Arap Kirwa as my Minister. I remember, at that time you were also there as a director or something like that.
He later transferred me from the Ministry of Agriculture, Livestock, Fisheries and Irrigation to the Ministry of Tourism and Wildlife, where I served with the late Emmanuel hon. Karisa Maitha as my Minister. When the Lord called him, hon. Tuju Raphael was appointed to replace the late hon. Maitha as my Minister.
Mr. Speaker, Sir, we went to the election of the Tenth Parliament where now he formed the Grand Coalition Government with the Rt. hon. Raila Amollo Odinga. At that time, they again appointed me to be the Assistant Minister in the Ministry of Information, Communication and Technology (ICT), where I served with the current Senate Majority Leader, Sen. Poghisio as my Minister. I am therefore grateful to H.E. the late President Kibaki for he gave me the opportunity to serve this country in a ministerial position.
The President has left a big footmark on the political landscape of our country. He will go down in the annals of history for so many things we may not be able to name this afternoon. That probably explains why for the last three days there have been long queues out here at Parliament of Kenyans thronging here to just pay their last respects to this great leader that has fallen.
Key to the things that he introduced – of course we all know – is the ambitious plan of giving education to all children in this country, when he came up with a free primary education policy. This was unprecedented and a huge land mark. We saw people even in their old age go back to school now that it had been made free. We all remember the late Mzee Maruge who went back to primary school at Standard One in his seventies. This enabled all our children who were willing to acquire primary education, which was never there before.
The second thing that we will always remember him for during his first term also, is that he assented to our Bill to establish the Constituency Development Fund (CDF). This was the first form of devolution in this country. It had a big impact in development of our country’s rural areas. Those who have utilized it well, have seen the good fruits of it; building classrooms, laboratories, bridges and so forth. We give thanks to H.E. the late President Kibaki for assenting to that Bill. It is the CDF that gave birth to the devolution that we now enjoy. That was the first form of devolution.
We also remember him for stabilizing our economy and making it for once to start growing at a positive percentage after very many years. This went up to over 6 per cent economic growth per annum during his era. That had never been experienced in many years. He made lives of Kenyans much easier. Life was affordable unlike before and after.
We will also remember him for inaugurating the Constitution that we are enjoying now; the Kenya Constitution, 2010. The new Constitution came with so many benefits, liberties and freedoms to Kenyans. We have the Bill of Rights and devolution and so forth as some of the Chapters.
We will not forget the infrastructure development and the projects that he initiated. The bypasses in Nairobi, which have eased congestion in the City. I do not know what we would be doing now without those bypasses that were established by H.E the late President Kibaki.
We have the Thika Superhighway, the Isiolo-Moyale highway and so many others including the road from Nairobi to Western where I come from. It was just impossible to travel to Western by road. The road was rough all through from Nairobi to Western. However, now we enjoy a good road that was built by this fallen hero.
He championed for gender equality and we all remember that. For the first time, in Kibaki’s Cabinet, we had more than four female Cabinet Secretaries. It had never happened before. The first president, if I may recollect, never appointed any female minister, may be an assistant minister. H.E. the late President Moi only appointed one in the name of hon. Nyiva Mwendwa. However, H.E. the late President Kibaki appointed about five, including people like hon, Charity Ngilu, hon. Beth Mugo, hon. Linah Jebii Kilimo, hon. Sen. (Prof.) Kamar who has just left and so forth. Therefore, he played a big role in empowering the other gender.
I worked under him and one of his hallmark is that whenever he appointed you to a position, he allowed you to work. There was no micro management. He allowed his Ministers to work, put in their best and do whatever they knew. That was so refreshing, particularly, to those who served under the previous regime. We really want to thank this hero, the gentleman of the Kenyan politics who played a big part to bring this country to where we are.
On behalf of my family and on my own behalf, we want to pray that God rest his soul in peace and give his family the strength to bear this loss. It is not just to the family but to the entire nation that is in mourning.
Fare thee well my President. May you rest in peace until we meet again.
Sen. Farhiya, proceed.
Thank you, Mr. Speaker, Sir, for allowing me to join you and my colleagues in condoling with the family of His Excellency, the former President of this country, Hon. Mwai Kibaki.
The first time I engaged in politics was 2002, prior to President Kibakis’ election. As colleagues in an office, we had agreed to go to our neighbours. Each one of us was supposed to cover a certain number and talk to them, so that Hon. Kibaki could be elected as the President. The late President took office at a time when Kenyans had a lot of optimism and patriotism. I did not have an opportunity to work with him, but as a Kenyan, you cannot help but appreciate him as a person; a leader and the President of this country in terms of transformation, human rights, gender equality and devolution. Let us be honest; he worked with the Rt. Hon. Raila Amollo Odinga. If it were not for the two of them, the transformative Constitution that we have currently that enshrines gender equality and devolution, this country would never have been the same.
People from counties that some of us come from used to say that we are going to Kenya when coming to this side of the country because we never considered ourselves as part of Kenya. However, because of his contribution to this great country of ours, we can also feel part of this country. Truth be told, devolution should be managed better. He did not envisage that people would mismanage it because the intent of devolution was to empower Kenyans at the local level.
If the first term governors had the integrity that our former President believed in, I believe that the lives of Kenyans would have been transformed with the kind of monies going to counties. I urge Kenyans to ensure that they elect governors with integrity. There are so many Kenyans who still have some level of integrity, but we cannot say the same for others. Counties should be thriving. If that was the case, we should not have had cases of people killing each other and doing all sorts of things in the name of ensuring that people from their communities become leaders. If governors were to do what they are supposed to do, the fights would have been within the counties and not in the country. Resources would be reaching the poor persons and it would have made a difference in their lives and ensured that they enjoy the fruits of what the former President, Kibaki, envisioned for this country.
Mr. Speaker, Sir, I also want to commend our President for the level of patriotism he created in Kenyans. So far, that has not been achieved by any other President. Kenyans will remember how citizens arrested a police officer who tried to take a bribe from a matatu driver. That was a common phenomenon. It was during his tenure and because of his leadership that many Kenyans volunteered to pay taxes because they felt that their money was going to be put into good use. One of the canons of taxation is that when people feel that the taxes they pay will be distributed in a just manner, then citizens are encouraged to pay more taxes. Right now, even with a lot of penalties, there are Kenyans who do not want to pay taxes, yet they want development. Kenyans need to be more patriotic by paying taxes, so that this country can see a different level of development. I want to also commend our former President for spurring of the economy in this country. During his first term, we reached 7 per cent in a short time. Had it not been for the Post-Election Violence (PEV) and the disputed election results, it would have reached 10 per cent. I have no doubt in my mind that this country would have experienced economic growth by double digits. All is not lost; I think he set the bar. All we need in this country is other leaders to follow his example. You do not have to be the President of this country to spur economic growth; you can do it at your local level. For example, you can take your country to a different level by ensuring that taxes are collected and used prudently and whatever comes from the national Government is put to good use. I would like to end with a few quotes by our former President that really touched me. He said: “Leadership is a privilege to better the lives of others; it is not an opportunity to satisfy a personal greed.” For many leaders that we have currently, especially in the counties, that does not resonate with them. If it were, then we would be having a better country. The other quote is: “Only by addressing the root cause of conflicts and disputes can we find lasting peace in just and equitable world.” That is phenomenal and a game changer if it was made use of. He also said: “The era of roadside decisions declaration has gone. My Government’s decisions will be guided by teamwork and consultations.”
We now know who started the idea of public participation that we talked about. That was a great leader and a son of this country; a son who has made a difference and Kenya will never be the same again. The other quote is: “The Government will no longer be run on the whims of individuals.” He also said: “I promise not to let you down. I will be your servant with all humility and gratitude.” Governors in this country feel like small gods. They were given responsibilities by the people from the counties, but they feel like they own them instead of becoming their servants. Mr. Speaker, Sir, I do not want to repeat how a great leader he was as others have said. I never worked with him, but I can tell you that he was a great leader. If just 50 per cent of the leaders emulated him, I believe Kenya would be in the list of the developed world within the next 15 years. May he rest in peace. I wish his family well, so that they can bear this great loss. I assure them that as Kenyans, we share in their grief.
Sen. Omogeni, you may proceed.
Thank you, Mr. Speaker, Sir, for also giving me an opportunity to condole with the family of His Excellency the late President, Emilio Mwai Kibaki. First, on my own behalf, my family’s behalf and on behalf of the people of Nyamira County, I wish to pass my condolences to the family of the late President Mwai Kibaki and his family and the entire people of Nyeri County and Kenya in general. I do not belong to the class of the people like my friend, Sen. Wako, and the Senate Majority Leader, who were privileged to serve in the Cabinet with the late President. However, I was among millions of Kenyans who received his presidency, in December, 2002, with a lot of excitement and expectation. William Shakespeare once said that some people are just born great, some achieve greatness and some have greatness thrust upon them. From what I have read about the history of the late President Kibaki, it seems he was born into a very humble background. He was not born into greatness. However, he seems to have had a great and brilliant mind. Mr. Speaker, Sir, if you follow his history in Mang’u High School, his academic excellence in Makerere University and in the London School of Economics and Political Science (LSE), you will appreciate that he was born with a very brilliant mind. Some of us who went to the Advanced (A) Level School, only knew one Kenyan who had scored six points in Ordinary (O) Level. I do not know whether that was very true, but that is what we used to hear in school. We also used to hear the stories of a Kenyan, who in his A Levels, scored three straight A’s and had his name inscripted on the board of Mang’u High School. Those of us who were trying to be ambitious wanted to emulate the late President Kibaki. We wanted to achieve that academic excellence and leave a mark in the schools we attended. That is why if you go to our schools, you will find that we worked so hard to have our names put as the top student for a particular year. For my case, in 1989, in Kibianga High School, my name is on the board, thanks to this man lying in State, the late President Kibaki. He was an inspiration to many of us.
When you have a great mind, some people can pick you from very far. For the late President Kibaki, the late Jaramogi Oginga Odinga saw his brilliance from far. I am told – and that is what we hear from the history – that he crossed the border to fetch him from Makerere University to come back to Kenya to lead the Kenya African National Union (KANU) as its Chief Executive Officer (CEO). At a very young age, from there on, he proceeded to be elected as Member of Parliament (MP). The history of KANU will tell you that the fuel and DNA that ran KANU’s affairs in those early Independence days, was none other Mwai Kibaki. Mr. Speaker, Sir, as I speak today, the history of the late President Mwai Kibaki should encourage our young Kenyans to dream without limits. From there on, he proceeded to serve this country uninterrupted for 50 years. Today, I salute, thank and give credit to the people of Othaya Constituency. From 1974 all the way to 2002, this man won each and every successive election. I wish I could enjoy such credit also from the people of Nyamira County, so that I serve for many years uninterrupted.
That is what the people we represent should do when they pick out a brilliant mind. From then, in 2002, to cap it all, they donated this man to national service to serve us our President. In the former Constitution, when you are President, you do not have a lot of time to attend to your constituency, but the people of Nyeri County donated the late Kibaki to serve us at the national stage. It is in the national stage, in my opinion, that Kibaki achieved his greatness. When Kibaki took over the reigns of presidency in 2002, many Kenyans did not see the pride in paying the taxes and were not paying taxes. It is he who came up with what I see on the letterheads of the Kenya Revenue Authority (KRA), ‘Kulipa Ushuru niKujitegemea.’ He would have chosen to go round in international fora begging for resources. However, he chose to encourage Kenyans to pay taxes, and in return, he gave them services. He was a great and brilliant mind. As we lay to rest the late President towards the end of this week, let us also appreciate him as a man who gave Parliament space and freedom to have lively debates without any repercussions. I remember in 2011, my colleague, Mr. Mumo Matemu, other Kenyans and I applied to be appointed Chairperson of the Ethics and Anti-Corruption Commission (EACC).
Mr. Speaker, Sir, after the interviews were done, I was the top ranked candidate. However, the President chose to pick Mr. Mumo Matemu as the Chairperson. What stands out for me is the kind of lively debate that was witnessed in Parliament when those names were tabled. It is something that cannot happen in our current Parliament. In the HANSARD of 20th December, 2011, you will read that the Leader of Government Business tabled names on the Floor of the National Assembly. The names were then debated for approval. Three sitting Cabinet Secretaries (CSs) voted against the choice of Mr. Mumo Matemu, who had been picked by the President to be the Chairperson of EACC. Sen. Wako was in that Parliament and he will bear me witness that 13 Assistant Cabinet Secretaries voted to veto the names that had been forwarded by the President.
What stands out for me is that after that vote was taken, none of the Cabinet Secretaries lost their jobs. One of them is our Senate Minority Leader here, Sen. James Orengo. Others were drawn from all parts of the country. I remember people like hon. Katoo ole Metito, who was an Assistant Minister; hon. Manyala Keya from western Kenya and Hon. (Dr.) Kilemi Mwiria from Mt. Kenya. That was Mwai Kibaki for you; he gave institutions space and the freedom to operate. Mr. Speaker, Sir, we should do some self-examination as Members of Parliament to ensure that we allow Parliament to thrive, operate with freedom, have lively debate and vote where necessary to defend the Constitution, the rule of law and defend at times our own conscience. For me, that is the legacy that President Mwai Kibaki leaves behind. Mr. Speaker, Sir, in terms of accountability, I was privileged to serve as the Chairperson of the Kenya Anti-Corruption Commission at that time. In those days, you could never fear carrying out investigations against a Cabinet Minister because you would be reprimanded by the President. I will give you a case of our colleague, Sen. Wetangula here, who faced some corruption allegations while he was in office, regarding the purchase of some buildings in Japan. Gladly for me, he was cleared. I am not saying that he is corrupt because he was cleared of those allegations. However, what President Mwai Kibaki did is that, when that issue came into public domain and he received word that his Cabinet Minister was under investigation, he asked him to step aside. That is how much President Mwai Kibaki pushed the accountability card. He asked his Cabinet Ministers to step aside, be investigated and once recommendations were made for them to either be taken to court, then they would go to court and defend themselves. You heard Sen. Mutula Kilonzo Jnr. tell us yesterday that the then head of the Central Bank of Kenya, Mr. Mulei, had criminal charges preferred against him. He went to complain before President Kibaki, who told him to go and defend himself in court. Mr. Speaker, Sir, how sad it is that nowadays, like the allegation that I saw against a Cabinet Secretary involving Kimwarer and Arror dams, it is actually a very senior member of the Executive, occupying the number two position, who came out to defend that particular Cabinet Secretary. That is not the legacy that the late Mwai Kibaki left for us. He left for us a legacy of ensuring that we push forward the accountability card. Mr. Speaker, Sir, as I draw towards conclusion, I want to say something about the clean-up that we witnessed on the institution of the Judiciary, when President Mwai Kibaki assumed the mantle of leadership in 2003. I doubt that any President who would have had the courage to do the kind of surgery that we saw on the Judiciary, like the one that took place during the reign of President Mwai Kibaki. It reminded people in the Civil Service that you must always watch your back. What you do today may come out to haunt you tomorrow.
It was the allegations leveled against Hon. Bernard Chunga, on how he conducted his prosecutions when he was the Director of Public Prosecutions, that cost him his job as the Chief Justice. In the history of this country, I do not know whether there will be a Deputy Chief Justice, who will be removed from office for pinching the nose of a watchman, but it happened during the reign of President Mwai Kibaki. As I mourn this man, he was a great a leader. He has left a very rich legacy for this country. He was a Statesman. He was magnanimous. He cleaned up that institution called the Judiciary and transformed it. Sen. Amos Wako here will tell you that we had a long debate on the Chapter on the Judiciary. As the Chairman of the Law Society of Kenya, I was one of those who were pushing forward the idea that anybody seeking to be a Chief Justice, Judge of the Supreme Court, Judge of the Court of Appeal and Judge of the High Court in this country should be subjected to an open interview process, where all qualified Kenyans are given an opportunity to be interviewed and the best candidates should be recommended for appointment. There are people in Cabinet who would not hear any of that, but at the end of the day, because President Mwai Kibaki was a man who was magnanimous and progressive, he allowed that to be. Nowadays, any Kenyan who is qualified in the legal profession can apply, be interviewed and appointed to be a Judge of the High Court. Mr. Speaker, Sir, I say pole to the family of the late Mwai Kibaki, the people of Nyeri and to Kenyans. Fare thee well Mzee Mwai Kibaki. May your soul rest in eternal peace. Thank you, Mr. Speaker, Sir.
Thank you, Mr. Speaker, Sir, for giving me this opportunity to eulogize a great Statesman, great son of Kenya and a brilliant mind. I think that if he had taken sciences, he would have been called a genius. He was very eloquent and yet very humble; a man of humility. Mr. Speaker, Sir, I came to hear of President Mwai Kibaki when I heard that he was the first African to get a First Class Honors Degree in Economics. At that time, he was lecturing at Makerere University. I said that this is the type of man that I would like to know very closely. Fortunately, during the holidays, when I was in Alliance High School, I took one of my holidays here in Nairobi and that was the time of the elections in Kenya. I think it was around 1962 or 1963. In Nairobi, the key people who were campaigning for KANU were Tom Mboya, the Secretary-General and Mwai Kibaki, the Executive Officer. My classmates and I, who were in Nairobi, made it a point to attend all the campaign meetings, which were being addressed by these two brilliant sons of Kenya. You can imagine how much we were impressed and followed them. At least, we
managed to catch their eyes. I can say that we caught the eye of Tom Mboya and Mwai Kibaki. At that time, we were in Form Three at Alliance High School. We engaged in discussions and I was very impressed that they took in some of our ideas. They thought that they were ideas worth following within KANU. The idea that although you have a KANU youth wing, which is supposed to maintain order and so on, we should also have an aspect of youth who are educated up to Form Four level at that time, which was quite something and those who are in university, who would not only be mentored by KANU, but also give ideas. In other words, there would be a channel through which they can give ideas on how this country should be ruled soon after Independence. Therefore, I was quite happy from that time to get to know Mwai Kibaki. Mr. Speaker, Sir, later on, I came across him when I was the Chairman of the Law Society of Kenya and the Chairman of the Professional Association of East Africa. At that time, the establishment was not very keen on indigenous African Kenyans in the professions. The person who led that idea against Africans, I must say, was the late Sir Charles Njonjo. The only place we could get solace; people who could understand us, was to go to the late President Mwai Kibaki. I am proud to say that I invited him to a few occasions of the Law Society of Kenya to address us. I also invited him a few times to the Professional Association of East Africa to address us and he did not let us down. In other words, he was a friend in Government. That speaks a lot about his contribution, not just as a brilliant Economist, but as a professional. I must say that I admired the late President Mwai Kibaki as an Economist. What people may not know is that I also pursued a degree in Economics at the University of London. I did not get a First Class, but at least, I got Honors. However, I am more known as a lawyer than an economist. Mr. Speaker, Sir, I came to appreciate the late President Mwai Kibaki even more when he became the President. Just before he became the President, for those who were not alive at that time, you will remember seeing the newspapers headlines such as ‘Wako must go with Moi.’ I know one of the scribes of the newspapers is here, and he can attest to that. Wako was to be the first to go. They would name me and other senior Cabinet Ministers who were close to the late President Daniel arap Moi. They would name other senior civil servants, particularly the Commissioner of Police and the Head of Public Service. I was permanent on that list. When he became the President, all of them went save for Amos Wako. I stayed on and served him for close to nine years as the Attorney General. I must say that the late President Mwai Kibaki was a man of his word. You could rely, depend and have faith on his word. Much as the noises were being made at that time, I can disclose today that even before the late President Mwai Kibaki was inaugurated as the President, he was very sick in bed, as you know after the accident. He had just come back from London. I used to meet him and he assured me that we had known each other for many years and he had confidence in my ability. He told me that he knew what I had been doing in Government; I had been a reformer within Government.
He knew that even though I had not been making noise outside, within Government I was one of the reformers. He assured me in the presence of his wife, Mr. Kereri and Mr. Stanley Murage, when he was on his bed, that when he takes over as President, he would keep me as the Attorney General. However, you always doubt the word of a politician, particularly around that time that ‘ hii ni kusema tu,’ but when time comes, they would let you go. I began to make preparations to leave government. I was elected by the General Assembly to the United Nations by the International Law Commission, just in preparation of my retirement when the NARC Government took over. I now realize that there was no need to make those preparations. As soon as the late President Kibaki took over Government, I could see that even his followers really wanted me out, but he kept his word. He made me stay with him and appreciated my advice. When you have such a person who is giving you more than one chance; who has confidence in you; and you see, his was a reformist government. I had been an Attorney General in the late President Moi’s Government, which people said was not reformist and, therefore, my detractors said that I was a non-reformist. However, he kept me and had confidence in me. The late President Mwai Kibaki had confidence that even if he had sweeping reforms that were coming, as the Attorney General, I would shepherd through those reforms. A man who appreciates you that way is hard to come by. I do not know what I can say. I thank the late His Excellency Emilio Kibaki for giving me a chance to serve him; having confidence in me as a reformist, as the Attorney General and allowing me to serve him almost the entire period he was President, minus one year. I did not serve him in the last year because the new Constitution had said that the then Chief Justice should stay in power for six months, while the then Attorney General should stay in power for one year before they quit. Mr. Speaker, Sir, I really appreciate this man as we say goodbye. The late President Kibaki was a man who was committed in the sense of word to the rule of law and because of brevity of time, I may not go much into that, but I will give you one example of his commitment to the rule of law. Some of you who are old enough in Parliament, like Sen. Poghisio, may remember that just after the Constitution was promulgated, a new Attorney General, Chief Justice and DPP were appointed by the late President Kibaki. I was out of the country at that time and when I came back, I said that, that act by the President was unconstitutional. Mr. Gicheru who was then the Chief Justice, on behalf of the Judicial Service Commission, also said that, that act was unconstitutional as relates to the Director of Public Prosecutions (DPP). In relation to the appointment of the DPP, the Constitution provided that there must be a transparent process of advertising for the job, shortlisting and interviewing publicly before somebody is appointed. The whole thing was unconstitutional. Mr. Speaker, Sir, another President would have said that he has appointed and that is final. However, due to Mwai Kibaki’s commitment to the rule of law and constitutionalism, he revoked all those appointments. I went on to serve one more year, while Mr. Gicheru served six months. The post of the DPP was duly advertised and it
went through the process as constitutionally required. Another President would not have done that; he would have said that is final. However, when the late President Mwai Kibaki realized that what he had done was unconstitutional, he revoked the appointments and allowed due constitutional process to take place. That is President Kibaki’s commitment to the rule of law and governance. Mr. Speaker, Sir, the late President Mwai Kibaki’s commitment to the Constitution, constitutionalism and a new Constitution is well founded. In ordinary times, Kenya would have had a new Constitution. In fact, this is what I had been fighting for during the time of the late President Moi, but that was never to be. Therefore, when the new President came in, I reminded him that it could be his legacy then to have a new Constitution. We all know that a new Constitution was promulgated under Kibaki as the President. I remember when just the two of us had a meeting with him soon thereafter. He asked me: “What more can you give a country? What more can a President or the Chief Legal Adviser to the Government give a country than a new Constitution?” He was very proud of it. He will forever be remembered as a person under whose watch a new Constitution was promulgated.
Just to show that he was a man who had a strict adherence to the rule of law, sometimes a decision would be made when I was out of the country and my people that I left behind would be asked to give an opinion by officials of the Government. Whenever they went to Mwai Kibaki and said they had a legal opinion from the office of the Attorney-General. He would always ask whether the Attorney-General Amos Wako was there when that opinion was given. Was he party to this opinion? If they said no, he was out of the country, he would say “ basi tungoje mpaka arudi". Mr. Speaker, Sir, I was around most of the time because of legal matters nothing would happen until President Mwai Kibaki heard from the Principal Legal Adviser to the Government who was me then. That made me very happy and proud. In fact, I had a President who had confidence in me. Mr. Speaker, Sir, I think I came in when the Chairperson of the Legal Committee was talking about Kibaki’s zero tolerance towards corruption. Once more I can give you many examples on this, but let me just give you one example which was World Duty Free Case Versus the Republic of Kenya. In this case, the person from Dubai that is an Arab Emirate, Mr. Ibrahim, was claiming against Kenyan Government billions of dollars. Actually, it was US$500 million as special damages, general damages plus cost. However, somewhere within the case which he had filed before the arbitration, he had mentioned that he had obtained that contract by bribing the leadership of the country at time. He mentioned it that at one time he had to give about US$1 million. Afterwards, he explained that he had been told that money was not a bribe as such, but it was to help in the various harambees . So, the contract was tainted with corruption. I took the primary point that an International Tribunal could not enforce a contract which was tainted with illegality and corruption. We had the affidavit of the person himself, the claimant, saying that he bribed the leadership of the country to obtain the contract. Mr. Speaker, Sir, what happened next was that the claimant got hold of some very senior people in Government and somehow convinced them that the case should be
settled out of court and that means a bit of payment out of court. I was a bit stubborn there, but somehow they managed to get their way to the President. One day I was summoned to go to the State House. The President called me and said please come to the State House immediately if you can. There I met all these people with senior people in Government who said that claim must be settled. Therefore, I told the President that it should be settled, but I would like Kenya to be given an opportunity to argue before an International Tribunal that a case which was tainted with corruption and illegality should not be enforced by an International Tribunal. That was all I wanted. If the Tribunal said it could be enforced, then we could come, sit down and negotiate. Although, the people on the other side were heavy weights and I could see they would have benefited from a settlement out of court, the President agreed with me. He said; “Let the International Tribunal decide on this point of the Attorney-General first. After that, we can decide to go ahead with the rest.” I was very impressed. This showed very clearly that he could not stand corruption in Government. President Mwai Kibaki was a man who was very much in support of regional, economic, social and political integration. He fully supported the East Africa Community. It so happened that President Kibaki who was a Kenyan was educated in Uganda Makerere University. The President of Tanzania Benjamin Mkapa was a Tanzanian who was also educated in Makerere University. President Yoweri Kaguta Museveni is a Ugandan who was educated in Tanzania. Therefore, these Presidents had seen the values of closer economic integration within East Africa. They had enjoyed those benefits and because of their common ideology on that issue, they decided to form a Committee under the East Africa Community to suggest ways in which the road towards the political Federation of East Africa could be expedited. Article 5 of the East Africa Treaty says that the ultimate aim of this treaty is political federation. So, this Committee was supposed to find ways in which this can be fast tracked. As fortune would have it, they appointed me to be the Chairman of that Committee. Therefore, I had to talk to all the three Presidents. When I came in that capacity and had an interview with our President, I was just amazed beyond words. This was because he had written many articles appearing in various journals that went under his name on the advantages and benefits of closer regional economic integration. So, it made my work very easy as far as that was concerned. He was very much committed. In East Africa, Mwai Kibaki’s name was really revered as a person who was not just a Kenyan, but a true East African. When I went to Arusha Golf Club for a dinner, members of the club came and said, “Go and thank your President. Without him, Arusha Golf Club would not have been there.” In fact, during the nationalisation of land in Tanzania, the Arusha Golf Course was going to be nationalized. There would have been no club. Mr. Speaker, Sir, in any case, golf is a game for the bourgeoisie to pass time. However, it took Mwai Kibaki who was at that time the Minister for Finance to talk to President Julius Nyerere. That is how Arusha Golf Club was preserved. That speaks volumes. Whenever you went there, you could find some type of action by our departed President, which fostered unity in East Africa.
I have talked about regional integrity and corruption. Mwai Kibaki was a humble person whom you could easily mistake for not hearing what you said sometimes. You could also assume he did not know what was going on around him. At the time when he and Raila signed the agreement, which resulted to the Grand Coalition Government, I noticed that he was very much aware. To show that he could make decisions and be firm, I can tell you for sure that most members of his Cabinet had sworn that that agreement should not be underpinned by a constitutional amendment. The issue was that the President could even appoint Prime Minister, Deputy Prime Minister or Ministers and there was to be trust. The other side was to trust that the President could not dismiss Ministers appointed by the other side, or dismiss the Prime Minister using the immense powers he had under the old Constitution. Of course, the other side could not trust that and it became necessary to have a constitutional amendment. However, one side completely refused and that was the deadlock. Everything else was in agreement, but that one thing required a constitutional amendment. I believe Sen. Orengo mentioned yesterday that during the meeting with Kofi Annan, Benjamin Mkapa, Graça Machel, Raila Odinga and Mwai Kibaki, I was the only other person there and Raila asked that Orengo be called to advise on that issue. Kofi Annan was my friend. He had called me the previous day and I told him what my legal view was. He wanted to know whether I could say my view in front of my President because he knew the President’s people were against that view. I told him that my job was to state the law as it is. That morning, Hon. Orengo and I were invited. Other Ministers wanted to be there, but they were locked out completely. We discussed and President Kibaki agreed with me that we must have a constitutional amendment. The previous day I had told him that everybody was against that. I told him the legal position and asked him to deal with his Ministers. He told me that we had to do what was right, particularly at a time like that when the country was on the brink of collapsing. He added that we had to do what was right politically, but more importantly constitutionally. He asked me to be brave and say it as it was. I said it as it was and it was agreed. Then Hon. Orengo and I were asked to go somewhere and draft the entire agreement as far as those aspects were concerned. We did that and signed every page. When we went back, it was signed. I am just saying this to show that the former President was a man who could do what was right even if those around him advised him to the contrary. Many a time, we have seen presidents and some people in high offices being manoeuvred by the people around them. However, in that one instance, I discovered that President Mwai Kibaki was not a man to be maneuvered by the opinions of those around him. He could only do what was right in the circumstances. Mr. Speaker, Sir, President Mwai Kibaki valued the downtrodden and people generally. I remember him telling me and others that the worth of a country is measured by how it treats the lonely in the---
Your time is up.
Give me one minute.
Thank you, Mr. Speaker, Sir. I remember him telling me and others that the worth of a country is measured by how it treats the lonely people in the community. That is why he asked his Vice President to find out how the prisoners were being treated. He also had his views on privatization of corporations, particularly Mumias Sugar Company Limited and others. He argued that the people to buy those shares should not be people from outside a certain region. It should be people or farmers from those areas who should buy shares in the corporations and not people from outside. Mr. Speaker, Sir, we are mourning somebody whom I valued because he was very close to my heart. I take this opportunity to express my sincere condolences to the family, particularly Jimmy, Judy and the other children whom he is survived by. I know he did a lot for the people of Othaya. I went there when he was the Minister for Finance and the roads were enviable. We also have the people of Kenya and the people of East Africa who regarded Mwai Kibaki as their leader.
I now call upon the Mover to reply.
Mr. Speaker, Sir, I beg to reply. I want to thank all the Senators who have spoken in high regard of the departed Third President of the Republic of Kenya. The history of Mwai Kibaki is long. One of the things that stood out is that he was brilliant, kind and a reformer. He tried to reform parties and the economy and he succeeded. We have spoken about his history and I liked what I heard from Sen. Wako who worked with him closely. Sen. Wako can have a whole day to talk without lacking anything to say about President Kibaki. My stint with President Kibaki was not that long, but I can still say a lot about him. I went to Makerere University and the record is there. He was the Chairman of the Kenya Students Association in Makerere University. Despite being one of the leaders in the students’ guild, he still excelled academically. When he graduated in 1955, he thought of how he would be of use to his country. He proceeded to go and study in London and graduated in 1955. Things worked for him because of his brilliance and leadership skills. As we know, he was immediately called to come and join the team at KANU. Finally, Mr Speaker, Sir, you know the history of the Constitution making of this country. As you have heard from Members, he was involved in the Independence Constitution. He was also involved as the crowning jewel of his leadership, which we now know as the 2010 Constitution. This is a Constitution to reform and make Kenya a great country. We mourn a leader who stands out among the presidents of this country. In my view, being the Third President, he outshone many other people in this country. He stood out and tall in humility. He dealt with everybody with concern. The last part of Sen. Wako’s speech was very important. The one of dealing with prison reforms, the down trodden, the people who are less privileged in society and the people who did not have opportunities like the rest of us. He dealt with that.
To afford free primary and secondary education was not easy, particularly free primary education. That was a big move and a big budget issue, but he stood with the people. Mr Speaker, Sir, we want to conclude this matter. The body of the Third President leaves Parliament today. If you have observed in the last three days, you have seen the number of Kenyans who are milling around and lining up to see the body of the departed President. You can tell that the people loved him. I particularly listened to some street children who went to line up as well. Some of them were speaking about the things that changed during that time. I would like to raise the issue of the Houses of Parliament. President Kibaki respected Parliament. In those days, you were a President and also an MP. As such, you interacted with Members. When you interacted with Members, you understood the system. Remember he was the Leader of Government Business for a long time and then Leader of Opposition. So, he understood the workings of Parliament. He understood Parliament and that is why he liked Parliament. Mr. Speaker, Sir, during his tenure Parliament attained independence of sorts. At that time, Parliament would manage their own budget. He respected the fact that we can have a strong Parliament, a Parliament that would then pass laws and where he was advised he would listen to Parliament. He lies in State in Parliament partly because he is along serving parliamentarian. Apart from being the President of the country, he served for 50 years. That is a long time. For more than half of his life, he served as MP. That is to tell wananchi that sometimes it is very important to be consistent. The people of Othaya Constituency must have benefitted from that consistency. Today, the turnover in this House is very high. People come for one term and go, but this man served for 50 years. That is how we could come to trust him to be the President of the country. Mr Speaker, Sir, during this eulogising, we have an opportunity to say thank you to the family of President Kibaki for lending the country the service of this great person whom we mourn. We thank the people of Othaya Constituency, Nyeri County and the Central region who gave us this man. Finally, we believe that Mwai Kibaki’s soul will rest in eternal peace. We pray that God will rest his soul in eternal peace. A great man has passed on. We know that his greatness will rub onto other people and spread around the world and that we will get great people like President Emilio Mwai Kibaki. With those few remarks, I beg to reply.
Hon. Senators, there being no other Business on the Order Paper, the Senate stands adjourned until Thursday, 28th April, 2022 at 2.30 p.m.
The Senate rose at 4.18 p.m.