(Sen. (Prof.) Kamar): Take your seats, Hon. Senators. Hon. Senators, I have a Communication to make on the resumption of the sittings of the House for the third and last part of the 6th Session. Hon. Members, I welcome you back from the short two weeks’ recess, which was full of political activities in preparation for the next general elections. Sittings for the Third and last part of the 6th Session commence from today, Tuesday 7th, June until the rise of the Senate on Thursday 16th June, 2022. It is worth pointing out to the House that apart from today, the Senate has only five sitting days from the sine die adjournment of the 12th Parliament. Hon. Senators, as we start this part of the Session, our agenda is heavy. This is witnessed in the Order Paper and the programme of Senate Business. Of importance is business relating to financing of county governments and several other items of business that were at an advanced stage of consideration and what is primarily left for us is the Division. I urge the Senate Majority and Minority Whips to ensure that the requisite numbers of Senators is present in the House, for us to conclude consideration of these matters.

Hon. Senators, on a sad note, on Sunday 29th May, 2022 when the Senate was still on recess, we lost a Member of the National Assembly for Rabai Constituency, the late Hon. William Kamoti Mwamkale, MP. It was through a tragic road accident at Mnarani, in Kilifi County along the Mombasa-Malindi Highway. The late Hon. Kamoti was born on 21st July, 1962 in Kiliang’ombe Village, in the present day Rabai Constituency. He attended Kiliang’ombe Primary School where he sat for his Certificate of Primary Education (CPE). Thereafter, he proceeded to Dr. Kraft Memorial Secondary School for his ‘O’ Level education. The late Hon. Kamoti joined St. Mary’s Yala School where he sat and exceled in the Kenya Advanced Certificate of Education. His excellent performance hand him a place at the University of Nairobi where he pursued a Bachelor of Law and graduated in 1987. Thereafter he pursued and deservedly earned a diploma in Law from Kenya School of Law in 1990 following which he was admitted to the role of advocates as an advocate of the High Court of Kenya. Hon. Senators, after completing his studies, that late Hon. Kamoti began his legal practice in earnest by starting Kamoti and Company Advocates in 1996. He is celebrated as having been a friendly, humble, fearless and sharp lawyer. In addition to his private legal practice, the late Kamoti served the nation as registrar of titles in the Ministry of Lands and Settlement at Ardhi House and as a district land registrar of lands in the then Mombasa and Kwale District. The late Hon. Kamoti joined politics in 2013 following his election as the Member of Parliament for Rabai Constituency. He was re-elected to the National Assembly in the August 2017 elections. At the time of his untimely death, he was returning home after successfully submitting nomination papers to the Independent Electoral and Boundaries Coalition (IEBC) for re-election to a third term in the forthcoming august 9th 2022 general elections. The Parliament of Kenya, residents of Rabai Constituency and the people of Kilifi County and the nation at large have lost a dependable and dedicated leader who served his constituency and the nation with utmost dedication. In him was an amiable legislator who epitomized the true meaning of a non-confrontational politics. A stand that he exhibited both in and outside the House. In accordance with Islamic tradition, the remains of our departed colleague were interred on Monday 30th May, 2022 at his ancestral home in Kiliang’ombe village in Rabai Constituency. On behalf of all Senators and on my own behalf, I wish to convey our heartfelt condolences to the family of the late Hon. William Kamoti Mwamkale and the great people of Rabai Constituency.

Hon. Senators, in honor of our departed colleague, I request that we all stand and observe a moment of silence.

Thank you Senators. May God rest his soul in eternal peace. I will allow a few Members to condole with the family. Proceed, Sen. Khaniri.

Thank you, Madam Deputy Speaker, for the opportunity. I take this opportunity to join you on behalf of my family and the people of Vihiga County, who I represent in this august House, to convey my heartfelt condolences to the family of our departed colleague, Mr. William Kamoti, the people of Rabai who elected him to the National Assembly and the people of Kilifi, the county where he came from. I knew Hon. Kamoti when he was elected to the National Assembly in 2013. I fully agree with you that this was a very humble, quiet, non-controversial gentleman who was a very active member of parliament. It is very sad that he met his death on the day that he had been cleared by the IEBC to defend his seat for the third time. Hon. Kamoti was a Member of my political coalition Azimio and a Member of the Orange Democratic Movement (ODM) party. He is one of the Members that we were almost sure we were getting the seat. It is very sad that we have lost a good leader; a patriot. On my own behalf and that of the people of Vihiga County, we say; pole to the people of Rabai and pray that the Almighty God rest his soul in peace and we pray that they will be able to get a good replacement; a gentleman or lady who will fit into those big shoes of this good lawyer who left us at a very critical time. May Almighty God rest his soul in eternal peace.

(Sen. (Prof.) Kamar): Thank you, Senator. I see a Senator 029, card ID 74. I do not see the name. Sen. Madzayo you are number three. I will give you a chance. Sen. Kajwang, is that your card?

Madam Deputy Speaker, yes, it is.

(Sen. (Prof.) Kamar): Your card is not showing your name but you may proceed.

Madam Deputy Speaker, I join you, the House and the entire nation in relaying our condolences to the Kamoti family and the people of Kilifi for the tragic loss of their legislator. The late Kamoti was personally known to me. We never met in the usual places that politicians meet. We did not meet in Television (TV) talk shows; we did not meet in political rallies; we did not even meet in demos. I never came across Kamoti throwing harsh words at the opposition. I never came across him shouting, canvassing and picketing the way politicians typically do. I met Kamoti under interesting circumstances. The Parliament has a gym and Kamoti was an avid user of the parliamentary gym. In fact, he was fairly introverted in his physical exercise. When he went to the gym he would rarely talk to anybody. He would go on with his business for an hour or two. Madam Deputy Speaker, Hon. Kamoti was in a small league of extraordinary gentlemen in this Parliament. He could bench press his weight. He was among the few people who could sit on the bench press and do a weight of 75Kgs. Very few Members of Parliament are capable of doing that. The only other person who can do that is Hon. Dan Wanyama. In the last Parliament, it was Hon. Paul Otwoma. In this Parliament it was yours truly and the late Kamoti who had the record of the heaviest bench press in that gym. Therefore, I knew him at a very personal level. He was extremely humble. He was a very amiable person. If you scratched beneath that veneer of introversion, you would

find a perfect gentleman. I did not even know that Kamoti is a St. Mary’s Yala alumni and that he was an advocate of the High Court. He never shouted about it. The lesson we learn is that humility and patience are virtues that can propel politicians to great height. I have no doubt that the people he represented were going to re-elect him for a third term under the ODM ticket. Hon. Kamoti was a man who demonstrated a lot of religious and ethnic tolerance. I hope those who will replace in the next term of this Parliament will learn from the humility, patience and tolerance that the late Kamoti demonstrated. We pray that his family finds peace and that the Almighty shall wipe their tears. Madam Deputy Speaker, just to finalise on the first part of your communication on pending business, it is unfortunate that the term of this House is ending when we have got many Bills on the Order Paper that we have not processed. I have been a victim of perennial lack of quorum in this House. We had the Intergovernmental Relations (Amendment) Bill. Sen. Omogeni and I had agreed on some amendments that were going to strength the Council of Governors (CoG) and the Intergovernmental Relations Technical Committee (IGRTC) and ensure that devolution space is well governed and properly regulated. That particular Bill has been on the Order Paper for the past three or four months. It is sad that our partners on the other side, the CoG, have looked upon us as a Senate to ensure that we streamline legislation that will give them the space to operate. Nonetheless, the term of this Senate is ending without that. Another piece of legislation that we have not processed is the County Governments (Amendment) Bill. The Bill sought to reintroduce the Counties Leaders Forum. In the past 10 years, Senators had no say on the operations of the counties. When Governor Sang, then Sen. Sang, brought the “Sang Bill”, we expected that Senators would sit with the governors and other elected members in their counties to discuss issues of common interest. We had made a proposal that we cure those things that had been identified by the courts. That cure had been brought to this House. We were hopeful that after the next election, within 14 days of the swearing in of a governor, the Senator, governor and the leadership of the county would be compelled to have a meeting through statute for them to discuss broad plans for the county. Unfortunately, we are breaking without that and it might take another five years for Senators to get that opportunity. I encourage the office of the Speaker to crack down on the Whips. The Whips write letters to us to come to the House while they are not here. Some of them are interested parties in some of the--- I did not know that Sen. Wamatangi is still the Senate Majority Whip. I am not sure whether it is majority or minority. They are interested parties because they are running for the office of Governor. Everyone who wants to run for governor should be in this House to make sure that the County Allocation of Revenue Bill, disbursement schedules and other legislations are passed. If we do not pass them, they will suffer since they will not deliver their 100 days in office promises. Madam Deputy Speaker, I support your communication. As the Senator for Homa Bay, I will commit myself to the business of this House. I am not running for governor

but Senator for Homa Bay. Whoever will be the governor of Homa Bay must have access to resources. It should not be said that the Senate failed in the noble duty. I thank you.

(Sen. (Prof.) Kamar): I want to believe that Members will be logging in shortly for voting for the County Allocation of Revenue Bill. If they are online, I urge them to stay on because in the next half an hour, we will do that. We must execute that today. Sen. Farhiya, proceed.

Thank you, Madam Deputy Speaker, for giving me an opportunity to condole with the people of Rabai and the family of the late Member of Parliament for the loss of their son. As you mentioned, he was worth being called an honourable legislator. Personally, I did not know him but from what you said about him, I feel we have lost such an honourable Member and a gentleman. He was a legislator with a lot of knowledge and humility. I wish that the party and the constituency will get a good legislator like the one they lost. We all pray that God gives them fortitude to bear the loss. In terms of the business of the House, I agree with Sen. M. Kajwang’. We only have one week to pass serious business. It is not even a whole week. Practically it is today and tomorrow. I do not know whether the other House will be able to pass any legislation from this House, given that they have two days to sit. I urge my colleagues to either log in online or come to the House, so that we clear some of the business. We passed the Division of Revenue Bill a month and a half ago. The other House has passed the national Government Budget. We have not passed the County Allocation of Revenue Bill, which is their equivalent, since it is about disbursement of money to the counties. It will be sad to go on recess without passing the County Allocation of Revenue Bill, which among others, is one of the main business of this House. I request my colleagues that we transact that business today. I am sure most Members have handed in their nomination papers. I ask them to try today or tomorrow, so that we are able to pass all the Bills. I thank you.

(Sen. (Prof.) Kamar): Sen. Madzayo, proceed.

Asante, Bi. Naibu Spika. Naungana nawe kwa kupeana rambirambi zangu kwa familia, jamii na marafiki wa William Mwamkale Kamoti. Ni huzuni sana kusimama hapa na kuongea juu ya William Kamoti. Alikuwa Mbunge wangu katika Eneo Bunge la Rabai ambalo liko katika Kaunti ya Kilifi. Kamoti alikuwa mwandani wangu. Tulikuwa kama ndugu. Hili ni pigo kubwa sana kwa familia. Kwa niaba yangu, familia yangu ambayo ni moja, jamii yangu na watu wote wa Kilifi, sisi sote tunaomboleza kifo cha Kamoti. Bi. Naibu Spika, kama kila mtu alivyosema, Kamoti alikuwa mtu mungwana. Alikuwa wakili. Wakati mwingine tukipiga kelele na kufanya fujo, alikuwa anatukosoa na kuturekebisha. Alikuwa wakili mwenye maono na alijulikana na kila mtu. Alipenda kufanya urafiki na kuepukana na watu wa fujo.

Mheshimiwa Kamoti ameacha familia changa inayohitaji msaada. Familia yake inahitaji kila mmoja wetu kusaidia katika maombi na msaada wa aina yoyote. Alikuwa mmoja wetu katika chama cha ODM ambacho sasa kiko katika Muungano wa Azimio la Kenya. Alikuwa ni sure bet katika kura za tarehe tisa mwezi wa nane ambapo tutampigia ‘Baba’. Alikuwa mmoja wa wagombeaji katika Kaunti ya Kilifi ambapo angepigiwa kura kama Mbunge wa Rabai. Kwa hivi sasa watu wa Eneo Bunge la Rabai ni kama wameshikwa na butwaa na huzuni; hawajui sasa washike mti gani. Lakini tuko na imani ya kwamba yule ambaye ameteuliwa na chama cha Orange Democratic Movement (ODM) ni mdogo wake anayeitwa Mwamkale Kamoti. Tuna imani ya kwamba huyo mdogo wake ana uwezo wa kuingia katika viatu vya ndugu yake japo kuwa ni vikubwa. Sisi tuko na imani kuwa marehemu Kamoti alivyofanya na kuna kwengine alikuwa hajamaliza. Mipangilio kama hiyo inaweza vyema ikiwa ni mtu wa familia anaweza ingia kwenye hivyo viatu an amalize kazi ya ndugu yake aliokuwa akifanya. Mwisho ni kwamba, tunaangalia madereva. Ajali hii ilifanyika kwa sababu dereva wa lori alikuwa anaendesha gari kwa njia ambayo si sawa barabarani. Sasa haitajulikana kwa sababu yeye alienda zake. Hatimaye vile akamuacha Mheshimiwa alipokuwa akikimbia kuingia katika maeneo ya mashimo na dereva kukosa kuweza kuimiliki ile gari. Bi. Naibu Spika, dereva akiwa anaendesha gari usiku ama mchana, ni jambo la muhimu kuzingatia sheria za barabara. Sisi watu wa Kaunti ya Kilifi tumepoteza mshupavu wetu mmoja kama mbunge. Tuna imani ya kwamba katika siku zijazo, ikifika Tarehe Tisa, Mwamkale ataingia katika viatu vya ndugu yake. Tuna imani ya kwamba watu wa Eneo Bunge la Rabai watakuwa na imani na yeye na atafanya kazi pale ndugu yake aliachia na ataweza kuibuka mshindi. Asante Bi. Naibu Spika. Sote tunaomba Mwenyezi Mungu aiweke roho ya marehemu mahali palipo wema.

(Sen. (Prof.) Kamar): Thank you, Senator. We have Sen. Kavindu Muthama online. You may condole with the family of our departed.

Thank you, Madam, Deputy Speaker, for giving me this opportunity to condole with the family of the late hon. Kamoti from Rabai Constituency in Kilifi County. I did not know him at a personal level. According to the condolence that you and the rest of Senators have given, I join them and condole with the family and the people of Kilifi County in this hard and difficult period of mourning their son and honourable Member of Parliament (MP). It is not easy for them. I know they are in a state of confusion, not even knowing what to do for those who really wanted to reelect them to the House to come and continue defending them. We pray for the people of Kilifi County that they will consider the brother and vote for him in order to stand with the family of late hon. Kamoti. I am sure they loved him and we all loved him, but God loved him more. The other road users should drive carefully, especially during this time of elections. Even those people who have lorries, like the one that hit his car, should also be

mindful of the other road users, with small cars. Most of the time, we see some lorry drivers being reckless and not being mindful of small cars on the road. May God rest his soul in eternal peace, give his family peace and raise another one from his family, who will stand with his family and the people of Kilifi County. Thank you, Madam Deputy Speaker.

(Sen. (Prof.) Kamar): Thank you, Senator. Next Order. Hon. Senators, I have three Messages.

Madam Deputy Speaker, I am a very sad man concerning The Community Health Workers Bill that has just been guillotined due to lack of adherence to Article 110. Yesterday, I was in Homa Bay County, in a meeting where there were Members of the National Assembly and the sponsor of the Bill that has just come to the Senate, but

did not meet the requirements of Article110--- Hon. Martin Peters Owino is a Member of Parliament from my County. He is a Member of Parliament for Ndhiwa and served as a Chief Officer for Health in Homa Bay County Government. We have had a conversation with him and he has been very passionate about the issues of Community Health Workers. Whenever we go to our counties, there are two cadres of employees; the Early Childhood Education employees and the Community Health Workers. Their matters keep coming up and for those who are running for governor, I know they have made a lot of pledges that when they get into office, they will provide permanent contracts for community health workers and ensure adherence to the Early Childhood Education Act. Even though, we have referred to Article 110 as the reason this matter cannot proceed in this House, which really is the truth, we cannot compromise on that. We went to court and sought the intervention of the court on that. I do not know how we can message it so that it does not look like the Senate just killed it because of competition between the two Houses; although, that is what it will sound like. Yesterday we made public commitments. Hon. Martin Peters Owino made a public commitment that the National Assembly has already processed the Bill and the Senate would follow suit. At the risk of Senators looking like they guillotined this Bill because of the rivalry between the two Houses and yet we know it is Article 110 that should be complied with, we must have a strategy for messaging why this House has not progressed with that Bill Finally, I also take note that Sen. (Dr.) Zani has made similar legislative proposals. I pray that in the next Parliament, for those of us who will be fortunate to come back, we will get Speakers who will be faithful to Article 110 of the Constitution because that has been the origin of our problems and the reason many of our legislative proposals have not succeeded. We normally start them, the matter goes to court and they are dropped. It then becomes a problem for them to see the light of day. I would like to assure the community health workers in Homa Bay and all other counties that the Senate is not proceeding with this matter, not because we are insensitive to them, but because of the fidelity to the Constitution. I think that should be the strong message that goes out. We have got a very able secretariat and when we come back, I do pray that the Clerk will guide the new Members who will come in that this should be the first Bill that should be sponsored either by the Leader of Government or by the Leader of Majority in the House, or by any other private Member. It should not take six months for the new Senate to ensure that this Bill sees the light of day because a lot of public participation has already been done. We have already benefited from a lot of input from professionals and what we need is to make sure that

within six months--- In fact, the Senate can make this is its 100-day pledge; that The Community Health Workers Bill shall be processed by the Senate.

(Sen. (Prof.) Kamar): Thank Senator. I think you have raised valid fears, but you have also answered them. I am glad the National Assembly has heard us and the concerns that we have when there is non-compliance. Next Order.

(Sen. (Prof.) Kamar): Sen. M. Kajwang’, proceed.

Madam Deputy Speaker, I am not Sen. M. Kajwang’. My name is Sen. Madzayo.

(Sen. (Prof.) Kamar): Yes, I have noticed the Petition is by Sen. Stewart Madzayo. Please, go ahead.

Thank you, Madam Deputy Speaker. I beg to lay the following Petition Report on the Table of the Senate today, 7th June, 2022. With your kind permission, if you will allow me, I will make a few comments. This Petition concerns appropriate leave rights for women who miscarry and suffer stillbirths. The Petition was reported to the Senate on Tuesday, 15th February, 2022, by the Speaker of the Senate. One of the salient issues raised in the Petition is that Section 29 of the Employment Act provides for maternity and paternity leave. It does not provide for a definition of “maternity leave”. This has led to the practice that maternity leave is entitled to a woman who has given birth, including those who suffer from miscarriage and still births. Taking into consideration the phycological and physiological trauma that usually accompanies miscarriages and stillbirths, the Petitioner humbly prays that the Senate intervenes in the matter, with the view of introducing an amendment to the Employment Act; to make a provision for appropriate leave for women who miscarry or experience stillbirths. Pursuant to Standing Order No.232 (1) of the Second Schedule to the Standing Orders of the Senate, the Petition was committed to the Standing Committee on Labour and Social Welfare. During the Committee’s enquiry on the Petition, the Committee was not able to reach the petitioner to prosecute her Petition, as she had failed to provide her contacts. The matter was considered at a sitting held on Friday, 13th May, 2022.

Despite the setback mentioned above, the Committee noted a grave concern raised by the Petitioner and did a comparative analysis on how other jurisdictions dealt with the issues. The Committee noted that in Philippines, the law provides for 60 days of paid leave for miscarriages or emergency termination of pregnancy. India allows six weeks of payed leave. The United Kingdom (UK) provides for two weeks for bereavement of a child from pregnancy of after 24 weeks to a child of 18 years. In the United States of America (USA), the federal laws are silent on the matter. The Committee appreciated the efforts made by the women and contributions of mothers to the economy and the country in general. The Committee has also taken note that Kenya is a developing economy and any laws touching on its labour market, have to be well researched and well thought through. The Committee also observes that maternity leave for mothers who carry their pregnancies to full term and give birth to live babies have been legislated upon. On the other hand, leave for women who suffer miscarriages and still births is currently being handled administratively and on case by case basis, depending on the medical status of the specific woman diagnosed by a medical doctor and her employer. Having taken into consideration the remaining duration of the term of this Parliament, the Committee recommends that for now, the matter continues being handled administratively by the Ministry of Labour and Social Protection, for policy consideration of the Petition. After that, the Ministry should present a progress report within six months of the commencement of the next Parliament, after stakeholders’ engagement. The Committee wishes to acknowledge the time and considerable effort made by all parties who submitted the information. I also wish to express my gratitude to my colleagues for their thoughtful input and engaged contribution to the matter. Further, the Committee is indebted to the Office of the Speaker and the Clerk of the Senate, for facilitating all actions that led to the production of this Report. Madam Deputy Speaker, it is now my pleasure and duty, Pursuant to Standing Order No.232, to table the Report of the Committee on Labour and Social Welfare, in relations to the Petition concerning appropriate leave rights for women who miscarry and who suffer stillbirths.

(Sen. (Prof.) Kamar): Thank you, Senator. Sen. Cherargei, proceed.

Thank you, Madam Deputy Speaker. I thank the Committee led by Sen. Madzayo for that Report. I know there are many petitions pending before Committees. Unfortunately, the term of this Parliament may lapse before they are tabled back. I appreciate the industry of the Committee. Article 26 of Constitution says that life begins at conception. Any woman who miscarries or experiences a stillbirth, should be treated the same way as the women who experience live births. I would have expected the Committee to give us either a policy or legislative intervention, on women who unfortunately miscarry or have a stillbirth. In the Mental

Health Bill, I have seen that most women suffer silently from postpartum depression. The women who suffer more are the ones who miscarry or have stillbirths. I am happy they quoted how other countries treat a woman who miscarries or has stillbirth. In those countries, such a woman is given the same rights as the woman who has a live birth because it is more of mental health. It is also because of the health of that woman. In as much as the Committee has given us an elaborate Report, I would have expected them to give us a proposal on legislative and policy intervention. I know this can be done in the next Senate but this would have become part of our legacy and exit reports. Madam Deputy Speaker, if you ask the Executive in the Ministry of Health what they are doing about women who miscarry or have stillbirths, they will tell you that they are waiting for Parliament to give direction on the proposal. I agree that the Executive can also give us a policy that needs to be legislated upon. However, they can also come up and say they need a proposal from Parliament. The report is elaborate and well captured although there are one or two things that are missing. Looking at the time that we have as Senate and Parliament it might not happen now but in future. Finally, Article 26 is very clear that life begins at conception. It means when that has happened; the fact that a woman has gotten pregnant either it is still birth, miscarriage or given birth to a live baby they should be treated and given the same treatment. In my own opinion it is just like women who carry the pregnancy to full term and deliver live babies be it bouncing baby boys or girls. Let us use this Constitution as a guide. The drafters of the Constitution saw it wise to say that life begins at conception. This has been an argument from many people both in precedents that have been in court and many others. I thank the Senate Deputy Minority Leader and the future and current Senator of Kilifi County. My brother, Sen. Madzayo, in future your Committee should give us a policy and a legislative direction based on Article 26. I thank the Committee for that elaborate report and the comparisons that they have brought. I thank you.

(Sen. (Prof.) Kamar): Thank you Senator. Proceed, Sen. Farhiya.

Madam Deputy Speaker, I join Sen. Cherargei in congratulating the Committee for doing a lot of research in terms of comparability to other countries. I know of institutions whereby if you carry a baby for 22 weeks’ term then you are entitled for half of the maternity leave of that organization which was six months, hence you are entitled to three months. The only person who can explain how much, in terms of body healing and somebody feeling the pain and the psychological trauma, it is much higher when you have a still birth compared to a normal birth especially for women who have had several miscarriages. Most times, when a woman experiences a stillbirth, she may have subsequent stillbirths which tend to follow each other for some strange reasons. I do not know whether it is because of climate change or other reasons; stillbirths are much higher nowadays than before. I have a personal experience of losing four babies one of them was almost 12 weeks. In most organizations, unless your manager is

considerate, you are expected to report back to work the following day even though you have not recovered. Mentally and physically you are not ready to go back to work because of all the pain you went through. Depending on how far one was into pregnancy, mostly mothers who experience still births go through normal labor which has a lot of impact on your body, yet that is not being recognized. I agree with Sen. Cherargei that those of us who will have the opportunity to come back to this House, there is need to have an amendment to the law to cater for mothers who undergo such loss depending on the level of pregnancy and frequency there has to be certain provisions whereby time is given for rest. Besides, when somebody goes such trauma staying in the office is not beneficial to anybody. That person will just look like a zombie and will not concentrate anyway because of both the physiological and psychological trauma that they have gone through. They will still not do the work anyway. We might as well give people some time to rest and ensure that when they come back they are in a mental and physical state where they can perform and deliver. I thank you and the Committee for doing a good job.

(Sen. (Prof.) Kamar): Thank you Senator. Next Order.

Madam Deputy Speaker, I beg to lay the following Papers on the Table of the Senate today the 7th, June 2022. The Parliamentary Service Commission Annual Report for Financial Year 2017/2018. The Parliamentary Service Commission Annual Report for Financial Year 2018/2019. The Parliamentary Service Commission Annual Report for Financial Year 2019/2020. I thank you.

(Sen. (Prof.) Kamar): Thank you Commissioner. The next Papers will be laid by the Senate Majority Leader.

On a point of Order.

(Sen. (Prof.) Kamar): Proceed, Sen. Kajwang’.

On a point of Order, Madam Deputy Speaker. The good Senator and Commissioner has laid report for three financial years which then means that in the life of this Parliament probably no reports have been laid before the House. Can he clarify that? Beyond that clarification, what happens to these reports because they are extremely important and they relate to the running of Parliament? We are talking of budgets of Kshs30 billion plus every year and we have got reports for three financial years. Just for the benefit of the House, can the Commissioner

help us understand whether these reports have been before the House and where they have been committed, the action take and the action expected when they are laid before the House. Going on record could also guide the next Parliament in processing the reports.

(Sen. (Prof.) Kamar): Okay. There is another point of order from Sen. Cherargei. The Commissioner can handle both. Proceed, Sen. Cherargei.

On a point of order, Madam Deputy Speaker. Traditionally, any report that is brought to the House, Statements or Petition is normally committed to the House. I do not know whether the Parliamentary Service Commission (PSC) should be appearing before the Public Accounts Committee (PAC). Sen Kajwang’ is smiling because he is one of the best in considering and assessing reports on public Investments. I hope he retains that sit when we come back as a Minority of course because he is good at that. We need to know where these reports go. I have seen on these other reports that will be tabled by the Senate Majority Leader; he will also table other audit reports and they will be referred to the Committee on Public Accounts and Investments (CPAIC). Should it go Senate Business Committee (SBC) or PAC? We want to be neat. I know our colleague Senator and Commissioner and the future Governor of Vihiga County, is man that has stayed longer than us in this House wants to achieve that neatness so that we do not table a report from PSC and we do not go where it goes. We should be given a way where the report will be committed to a Committee. What happens after that? These reports are being tabled alongside other county reports. I remember county assemblies never used to appear before the CPAIC but after the legacy that Sen. Kajwang’ has left in that Committee; it has ensured that the County Assemblies appears before them. That has created some neatness in terms of accountability on resources given to the counties. I thank you.

(Sen. (Prof.) Kamar): There is another intervention from Sen. Kajwang.

Madam Deputy Speaker, is it also deliberate that these reports for three financial years are coming to the House, when we have only four other sittings before we adjourn sine die ? The timing is rather interesting. Remember, it is this House that processed the Motion that nominated the Commissioners who represent us. What is the mischief for bringing reports for three financial years, when they know that this Parliament has only four days left?

(Sen. (Prof.) Kamar): Sen. Khaniri, can you respond?

Madam Deputy Speaker, let me begin by assuring the Senator for Homa Bay that this is not deliberate and there is absolutely no mischief. Let me answer the questions raised. The first one was the committee that the report will be committed to. Once a report is tabled in the Senate, it becomes

the property of this House. I want to believe that this particular report will go to the Committee on Justice, Legal Affairs and Human Rights. Madam Deputy Speaker, in terms the Parliamentary Service Commission (PSC) budget, I want to assure Sen. M. Kajwang’ and the Senator for Nandi that our budget is audited annually by the Public Accounts Committee (PAC) of the National Assembly. We also present it at the beginning of every financial year to the Budget and Appropriations Committee of the National Assembly. So, there is no mischief whatsoever. The delay is understandable. Sen. M. Kajwang', I questioned why three financial years and the first explanation was because of COVID-19 pandemic. The second one is that we have three vote accounts in the PSC. That is, the National Assembly, the Senate and the Parliamentary Joint Services and you cannot present a report for one vote. It has to be all the three. One of the votes could be ready and the others are not, or two could be ready and one is not. Therefore, it will not be a complete report. Madam Deputy Speaker, in future, our secretariat should ensure that reports are presented at the end of every financial year. I thank you.

(Sen. (Prof.) Kamar): For avoidance of further clarification, are you saying that this is the only unique time, when you have three reports for each service? You said that we have had audits every year. Did the National Assembly also look at this three?

Yes, of course, Madam Deputy Speaker, they looked at all the three. As I said, the ideal situation is that, a report is presented at the end of every financial year but that did not happen. Going forward, this should be the norm. We will talk to our secretariat to ensure that this is done annually.

(Sen. (Prof.) Kamar): Thank you very much. The next Papers will be tabled by Sen. Farhiya on behalf of the Senate Majority Leader.

Madam Deputy Speaker, I beg to lay the following Papers on the Table of the Senate, today 7th June, 2022-

(Sen. (Prof.) Kamar): Thank you, Sen. Farhiya. That is the end of the Order on Papers. Hon. Senators, I have another communication to make.

(Sen. (Prof.) Kamar): Hon. Senators, I have another Communication to make on a request by the Cabinet Secretary, National Treasury and Planning seeking the approval of the Senate on the national Government guarantee for Laikipia County Government to borrow Kshs1,160,000,000 through the issuance of a domestic infrastructure bond. Hon. Senators, the Senate Majority Leader has just tabled Papers. Among them is a request by the Cabinet Secretary (CS) National Treasury and Planning seeking the approval of the Senate on the national Government guarantee for Laikipia County Government to borrow Kshs1,160,000,000 through issuance of a domestic infrastructure bond. This request was conveyed to the Senate vide a letter referenced DMD4/259 dated 2nd June, 2022, to the Clerk of the Senate. Hon. Senators, Article 212 of the Constitution of Kenya states as follows- “A county government may borrow only- (a) if the National Government guarantees the loan; and (b) with the approval of the county government’s assembly.”

Further, Article 213(1) of the Constitution of Kenya states as follows- “An Act of Parliament shall prescribe terms and conditions under which the National Government may guarantee loans.” Hon. Senators, Section 58(1) of the Public Finance Management (PFM) Act gives power to the Cabinet Secretary (CS) responsible for finance to guarantee a loan of a county government or any other borrower on behalf of the national Government and further, that such a loan shall be approved by Parliament.

Section 58 (1) of the Public Finance Management Act, gives power to the Cabinet Secretary responsible for finance to guarantee a loan of a county Government or any other borrower on behalf of the national Government and further, that such a loan shall be approved by Parliament. Section 58 (2) of the Public Finance Management Act, spells out the conditions to be met before the Cabinet Secretary guarantees such a loan. The key conditions include that: - (a) the loan be for a capital project;

(b) the borrower be capable of repaying the loan and paying any interest or other amount payable in respect of it; (c) the financial position of the borrower over the medium term be satisfactory; and (d) the terms of the guarantee comply with the fiscal responsibility principles and financial objectives of the national government; The request indicates that the National Treasury has complied with all the necessary provisions of the law regarding the Laikipia county Government borrowing including getting an approval of the Intergovernmental Budget and Economic Council and the Cabinet. This request has, therefore, been submitted to the Senate for approval pursuant to Article 212 of the Constitution and Section 58 (1) of the Public Finance Management Act. Matters relating to public debt are complex and have occupied national discourse lately. It should also be noted that Laikipia county government is the first one seeking a guarantee of the national Government to borrow. In view of the magnitude of the matter at hand, I therefore direct the Standing Committee on Finance and Budget to thoroughly scrutinize and interrogate this request and table a report for consideration by the Senate. I thank you. Sen. Kajwang, you may proceed.

Madam Deputy Speaker, I rise to make a very brief comment on the message you have issued. First of all, to thank the county government of Laikipia. This the first time a county government is coming to the Senate for such an approval. It has been the tradition of the most county governments that when they need money, they rush to the Senate. However, when it comes to accountability, they are hesitant to come to the Senate. I hope that even if it got to the point where the Senate was to approve this guarantee by the national Government there will be very robust oversight mechanisms. There will be very clear accountability provisions that will compel the county Government of Laikipia to report to Parliament on the utilization of the Kshs1.6 billion that they are seeking. I hope that other counties and those Senators who are planning to be governors, are going to study something from the Laikipia template. I have personally visited the Laikipia County. This is one county where you find the governor having the County Statistical Abstract on his desk. You find the governor understanding how much money the county generates on a daily basis. They run the County like you would run a business. In fact, they have been working on performance management systems that gives them a real time picture of revenue and expenditure in that county. Laikipia is one county that we can emulate. For those governors who would want to take this route and come to this Senate, this Senate should be very firm on making sure that own-source revenue from those counties is properly collected and accounted for.

Sometimes you might find that a county is able to finance itself without going to the debt market like Laikipia has proposed. If we optimize our own source-revenue collection; If we incentivized our people so that they can be more productive, then our counties would be able to collect more and they will be using those collections to do infrastructure rather than going to the markets for instruments similar to this. We should also cut down on corruption in counties. I hope that the Committee on Finance and Budget will look on some of these issues. These include, the own source potential, the implication of corruption on county resources and also the reports of the Auditor General on how these counties have utilized the resources the Senate has to them in the past. Finally, Madam Deputy Speaker, considering that will be going sine die in the next four or five sittings, it will be useful for us to understand what happens if the Finance Committee is not able to report back to the House in good time. Does it mean that the request then dies a natural death, which then will need to start from square one once the House is convened? Maybe that will be useful so that we know those who will be coming back to this House whether this one will be one of the first issues to prioritize when the House resumes. I thank you, Madam Deputy Speaker.

Sen. (Prof.) Kamar): Thank you Senator. It stands committed to the Committee on Finance and Budget. I guess the Committee will have to give us a progress report as and when they are ready. Next Order. We have two statements and I invite Sen. Falhada to make her Statement.

Thank you Madam Deputy Speaker. I rise, pursuant to Standing Order No.47 (1), to make a Statement on an issue of general topical concern namely; the toll fees charged by the management of the recently opened Nairobi Expressway to emergency services such as ambulances and firefighters. As you are aware, the Nairobi Expressway opened to traffic and is expected to increase local employment, ease traffic jams, and bring a raft of economic benefits to the notoriously congested city of Nairobi. While the city will reap greatly from the expressway without a doubt, what is of most concern is the toll fees levied upon emergency services such as ambulances and firefighters.

In Norway, an electronic toll system similar to the system in use currently was established in conjunction with private companies under contract with the Norwegian Public Roads Administration. The toll cordon with 19 toll plazas is facilitated by the city's topography, with the Fjords on the south and large greenbelt areas to the north and to the east.

It charges motorists for use of the road, but handicapped drivers, public transport, and ambulances motorists are exempted. Outbound traffic is not tolled. The operating costs are about 10 percent of the toll revenues. The toll collection uses automatic vehicle identification, therefore there is no need for speed reduction. If Kenya can borrow this pricing model from Norway, I believe emergency services especially the emergency medical service providers will greatly benefit. It is my honest plea to the management of the expressway to reconsider charging toll fees to these emergency service providers. This is because the primary reason for the construction of the expressway was to ease traffic congestion within the city so that services can be rendered in good time. I thank you.

(Sen. (Prof.) Kamar): Thank you, Sen. That is well- articulated. I will allow a few comments. Sen. Cherargei please proceed.

Thank you, Madam Deputy Speaker, for this opportunity. I would like to congratulate Sen. Iman for this timely Statement. There was a joke that was going around that there is one of the presidential candidates that says if he becomes the President, he will plant something along the highway to make it high; not the Highway Express. Madam Deputy Speaker, there was a Statement that I brought last week on the repair of the original road. I remember that they were seeking an additional Kshs9 billion. We are aware the cost of the Expressway rose up to Kshs81 billion. In as much as we celebrate these mega projects like the Expressway, in terms of order and decongestion of the city, and in terms of economic value, we must also look at the effects. Madam Deputy Speaker, all of us will pay for this Expressway whether we like it or not. We shall pay the people who brought the money through the toll fees that we pay. Kenyans who might never use the express way like those from my village where I come from in Mosorio, Kakamega or somewhere in Butere will have to pay. The least that the Government can do is to allow emergency services to use that Expressway. For instance, when somebody is being rushed in an ambulance to get medical attention, maybe there is a fire and you know there are so many fire incidents in this city. There are so many emergencies that I think they should access the expressway toll free. They should not be levied any charge. The Expressway should be used free of charge when there is an emergency and somebody is being rushed for instance, from Machakos to Kenyatta National Hospital. These are ordinary people; the holloi polloi of this country. My major concern is that I do not know why the designers decided that there should not be an exit within the city. There should be an exit within the city. If somebody is brought from Machakos or Mlolongo is being taken to Kenyatta Hospital, there should be an exit within Uhuru Highway so that the ambulance can exit either to Nairobi Hospital or Kenyatta National Hospital. If there is a fire incident within Gikomba Market or within the city, staff of the additional fire station that was built along Mlolongo should be able to access the city through the Expressway. So, even the designers failed in looking at those aspects. I do not know what they wanted to achieve. Was it because the money was not enough or they needed additional funds to ensure there is an exit within the city?

Madam Deputy Speaker, if you use the Expressway, for instance, you are supposed to preside over this House at 2.30 p.m; it means that you might end up going to Westlands then come back through the same jam that you were avoiding. So, these designs that were done should be able to allow access during emergency. The designs should even have security features. I have seen there also cameras but we are worried that the way it has been designed--- I hope Parliament will build a high or bullet proof up there so that you do not---

(Sen. (Prof.) Kamar): There is a Point of Order from Sen. Farhiya.

Thank you, Madam Deputy Speaker. It is just a point of information. There is an exit in Museum Hill, you do not have to go all the way to Westlands. I just wanted to inform my brother that.

Madam Deputy Speaker, Museum Hill is still very far. We wanted an exit that is within the city centre. For instance, if you are to rush somebody from Mlolongo all the way to Kenyatta National Hospital, by the time you are exiting through Museum Hill and come again, you might experience traffic jam that will make it hard for you to access Kenyatta National Hospital. I know there were designs that were done, but I do not know why they did not create a entry into the Central Business District (CBD) of Nairobi so that it becomes easy to access because you can imagine if you have to go to Museum Hill and come all the way back. I hope those are issues that contractors can be told to sort out at no expense to the tax payer. Madam Deputy Speaker, we did not need to bring this issue of emergency to this House. I expected the designers, the policy makers and the supervisor who is Kenya National Highways Authority (KeNHA) to look into the issue. KeNHA is sleeping on the job. These are some of the issues that KeNHA should have handled at the lowest level through the Ministry of Transport and say let ambulances and fire engines also the security men like police use the Expressway for free. You can imagine if the police are driving all the way from Mombasa Road and they want to attend to a security threat within the CBD or within Westlands, they have to pay. It is dangerous. By the time they are paying the toll fees the security threat has occured. Finally, you realize that the Expressway is high. We need to be assured of the security of Parliament Buildings. It is not only about us, it is about the seat of Parliament, the seat of authority. If anything happens, if a snipper or any security threat goes up there - because they are above Parliament - it can become a threat to Parliament. It is not about us, it is about the authority that Parliament is envisaged across the world. Those are some of the issues that were forgotten by the designers of the Expressway. Although the Expressway went up beyond what was envisaged during Kibaki regime of around Ksh37 billion and thank God you were the Minister then, within that Cabinet. Now it has risen to Kshs81 billion. These are some of the issues that maybe somebody somewhere was busy doing something until he forgot some of these infrastructural rectifications. I thank you.

Thank you, Madam Deputy Speaker, for allowing me to add my voice to this important Statement by Sen. Iman. I would like to congratulate her for coming up with that statement which is very timely. Madam Deputy Speaker, I would like to say that the Nairobi Expressway is one of the major developments that have taken place in recent years and any development is expected to improve the lifestyle of the citizens. It is our expectation that the designers will be able to look at it and see how they can improve so that it can fit the needs of our people. Nairobi is well known for traffic jam, especially during the rush hour and unless the designers or the planners seriously plan then we might not be able to help our people. The other thing is about the charges. As you know, we are facing a lot of economic challenges both in the city and the urban areas. The Expressway charges should be reviewed so that many Kenyans can afford to use it. Regarding allowing the free usage of the Expressway for emergency cases, I think that is a valid recommendation or request. The designers should see how best that can be handled because during the rush hour, we know that the roads are normally congested and people really suffer. I, therefore, want to say that I support the Statement and pray that the Nairobi Expressway will serve the purpose for which it was intended. I thank you.

Thank you, Madam Deputy Speaker. I stand to support this Statement by Sen. Iman on the Nairobi Expressway. Indeed, it is very true that the fee that is being charged on the Expressway is extremely high for a normal Kenyan who wants to use it. Any development that comes in the country should be able to facilitate or benefit those who are going to use it. If you look at the fee of Kshs5,000 per month and even the processing of the card itself, it is very cumbersome. Madam Deputy Speaker, if you have five vehicles, you must pay for all of them and have five cards for each of them. Imagine all those procedures and bureaucracies. If you are calling it an expressway and bringing all those bureaucracies and strategies, it is never going to ease the traffic jam that we experience. I thank God that the Highway helps our people. However, the design of the Expressway, as my colleagues have said, does not allow us to exit directly into the Central Business District (CBD) and Parliament. If at all we should go up to Museum Hill, what is the need of us accessing the City? We should have got another route that can come directly to the CBD to serve us. We are calling it an expressway and, therefore, everything should be express and faster. As for the fees that is being charged to use the Expressway, most people do not have money in their pockets. In Kenya, we are suffering and struggling. Many are living below the poverty line or below a Dollar per day. If you tell someone who has just afforded a vehicle to start paying to use the Expressway, at the end of the month, it becomes expensive. However much we look at it from a point where we have to pay debt, I would have advised the Government to allow Kenyans to use this road for free for two or three months. We would then have seen how best to tap into the new system and services.

Starting with charges right away is denying Kenyans a chance to enjoy their own services from the tax that they pay. Madam Deputy Speaker, this Statement is timely. The concerned authorities, especially the Kenya National Highway Authority (KeNHA) needs to look at the design and create exits for us. Most Government institutions are still based within the CBD and its environs. Many medical emergency cases are taken to the Kenyatta National Hospital and Nairobi Hospital and yet, there is no exit. Educational facilities like the University of Nairobi also need easy access from the Expressway. If we congest these facilities, then the Expressway has not sorted out our problem. Instead, we are still creating some challenges within the transport network in the City. Otherwise, I applaud the Government for coming up with it. To touch on what Sen. Cherargei said, as I sit here in Parliament, I see the Expressway passing on top of our building. Anything can happen. I am not saying that we expect anything, but we have seen these things happen. We cannot take it for granted. The designer should have done better. It is a bit challenging to have a road next to Parliament, which houses very important people. To me, it poses a security threat. I support the Statement and congratulate Sen. Iman for coming up with it.

(Sen. (Prof.) Kamar): Thank you, Senators. Due to the issues raised around this Statement, I want to use my discretion to refer the Statement to the Committee on Roads and Transportation, so that they deal with all the issues that have been raised. I encourage the Committee to look at what has been documented in the HANSARD. I also request Sen. Iman to go ahead and give the Committee any additional information that she might have. The next Statement under Standing Order No.47 (1) is by Sen. (Dr.) Musuruve. Is she online? As we wait to see whether she is online, we can go to Statements under Standing Order No.51 (1) by Sen. Omogeni.

Thank you, Madam Deputy Speaker. I rise to give a Statement on the consideration by the National Assembly of the Statute Law (Miscellaneous Amendments) Bill (National Assembly Bills No.26 of 2022). I am issuing this Statement pursuant to Standing Order No.51 (1) (a) of the Senate Standing Orders. Madam Deputy Speaker, the Statute Law (Miscellaneous Amendments) Bill (National Assembly Bills No.26 of 2022), was published on 10th May, 2022. It was introduced in the National Assembly by way of First Reading on 26th May, 2022. The Bill was committed to various Committees to undertake public participation thereon, with that window closing on Monday, 6th June, 2022. I am reliably informed that the National Assembly intends to fast-track, in consideration and passage of this Bill, before it proceeds to adjourn S ine Die later this week. Noting that in the memorandum of the Bill, it is stated that the Bill does not concern county governments, it is likely that the Bill will then be submitted to His

Excellency the President for assent without the Bill being referred to the Senate for consideration. Surprisingly, the Bill was not subjected to the concurrence process under Articles 110(3) of the Constitution. Madam Deputy Speaker, while the Bill is coached as proposing minor amendments, which do not merit the publication of separate Bills, the Statute Law (Miscellaneous Amendments) Bill contains far-reaching proposals. If passed, they would greatly undermine the mandate and functions of the Senate and those of county governments. For example, the Bill seeks to vary the reporting mandate of commissions and independent offices from inter alia, Parliament and in some instances, the Senate. This then makes reporting obligation to be to the National Assembly only. These amendments include amending the reporting obligations of the Independent Electoral and Boundaries Commission (IEBC). I have a copy of the Statute Law (Miscellaneous Amendments) Bill; the Judicial Service Commission (JSC); the Salaries and Renumeration Commission (SRC); the National Gender and Equality Commission (NGEC); Kenya National Commission on Human Rights (KNCHR); the Commission on Revenue Allocation (CRA); the National Land Commission (NLC); the Ethics and Anti- Corruption Commission (EACC); the National Police Service Commission (NPSC); the Controller of Budget (CoB); the Teachers Service Commission (TSC); and, the Public Service Commission (PSC). Madam Deputy Speaker, for example, looking at one of the proposals which is at page 796 of this Bill, it is proposed that the word “Senate” be deleted, so that the only obligation for these Commission will be to report to the National Assembly. That sounds very mischievous. The law as it stands now, if you go to the Judicial Service Commission Act No.11that was passed in 2011; Section 38 states that the Commission and the Judiciary shall cause the annual report to be published in the Gazette, and shall send a copy of the report to each of the Clerks of the two Houses of Parliament, for it to be placed before the respective Houses for debate and adoption. The Statute Law (Miscellaneous Amendments) Bill proposes to amend that particular section to delete the obligation of that annual report being filed with the Clerks of the Senate and not to be considered by the Senate. Another one is the National Gender and Equality Commission. The current Section 53 states that the President, the National Assembly and the Senate may at any time require the Commission to submit a report on a particular issue. The Statute Law (Miscellaneous Amendments) Bill proposes to delete the word “Senate” from consideration and many others. In essence, if this is done, it will be unconstitutional. Article 249(3) of the Constitution states that- “Parliament shall allocate adequate funds to enable each commission and independent office to perform its functions and the budget of each commission and independent office shall be a separate vote.”

That particular Article obligates the Senate to receive a report and ascertain whether independent commissions received budget that could effectively enable them to discharge the function of their offices. Article 254 (1) of our Constitutions provides that- “As soon as possible after the end of each financial year, each commission and each holder of an independent office shall submit a report to the President and Parliament.” Further, Article 254(2) states that: “At Any time, the President, the National Assembly or the Senate may require a commission or a holder of any independent office to submit a report on a particular issue.” On the face of it, the Statute Law (Miscellaneous Amendments) Bill offends the Constitution and has provisions that are clearly in contravention of Article 249(3) and Article 254 of our Constitution. The proposed amendments on these reporting obligations of the commission and independent offices, therefore, raise issues of them being manifestly unconstitutional. More so, what is of concern is that the National Assembly seeks to sneak this Statutes Law (Miscellaneous Amendments) Bill at the tail-end of the current term of Parliament, whereas on the face of it, it can be discerned that the provisions have far-reaching consequences. Members will recall that in the previous term of Parliament, the National Assembly passed amendments to the Treaty Making Ratification Act to vary the ratifications of treaties from being brought to Parliament to being taken only to the National Assembly. Attempts by the Senate to reverse these amendments have not succeeded as what the Senators pass, the said amendments on two occasions, the National Assembly has declined to consider and pass the same. The Bill currently before the National Assembly seeks to continue this practice of gradually chipping away through legislative and other means the mandate and functions conferred on the Senate under the Bi-cameral Parliament as provided for in the Constitution. It is a fact that both in the Executive and the National Assembly, there are elements who still believe that the Senate is unnecessary operation and they will stop at nothing in the quest to undermine and diminish the place and mandate of the Senate. I make an appeal to all Senators that this is a matter that we must resist. I, therefore, issue this Statement to bring this very important matter to the attention of the House and the Senators.

We must speak with one voice to reject the attempt by the National Assembly to consider and pass these amendments at this time and without reference to the Senate. I call upon our Majority Leader and Minority leader to immediately get in touch with their counterparts in the National Assembly to ensure that this Bill is not proceeded with. The amendments contained in the said Bill are not urgent and can be considered substantively by the two Houses once Parliament is convened. You will notice that one of the proposed amendments at Page 821 is a proposal to amend the Anti-Corruption and Economic Crimes Act to bar MCAs Members of Parliament and Senators, who are under investigations and not who have been convicted, not to access Parliament and even exercise powers of their offices. Those are far-reaching amendments, which should not be effected through a Miscellaneous Amendment Bill. At Page 826 of The Statute Law (Miscellaneous Amendments) Bill, the Leader of Majority of the National Assembly states that this is a bill that does not concern county governments, but if you recall, this House has had benefit of debating the Law of reference to this House from the National Assembly; the Roads (Amendment) Bill. If you peruse this Statute Law (Miscellaneous Amendments) Bill, among the laws that are proposed to be amended is the Roads Act. This Bill is mischievous; it is an attempt by the National Assembly to pass a Bill at the tail-end of their tenure, which is manifestly on the face of it, unconstitutional. I have risen to bring this matter to House and seek your directions. Madam Deputy Speaker, if you allow me, I would also want to update this House that if the House recalls, we had filed a High Court Civil Suit No.E84, where we had gotten some orders from the High Court compelling the two Speakers to seek concurrence, in line with Article 110 of the Constitution before any Bill is processed. That particular order of the High Court was set aside by the Court of Appeal and we subsequently proceeded and filed an application in the Supreme Court seeking stay. On the 19th May, 2022, we got orders from the Supreme Court that stayed the orders of the Court of Appeal. In essence, the status quo was that the two Speakers must have concurrence before any Bill is processed. However, in a sequence of events, which I am not able to discern and understand as a lawyer who has practised for over 25years, an application for review of our order of stay was issued to us on 19th May, 2022. We also have an application to set aside those orders, which was filed by the National Assembly on 25th May, 2022. In a supersonic speed, the Supreme Court ordered parties to file responses and submissions. Our advocates appeared before the Supreme Court in the morning of 3rd June and by afternoon, our orders were vacated. That means we have gone back to the situation that was prevailing before we went to the High Court, where the Speaker of the

National Assembly can unilaterally make a determination on which Bill concerns the counties. Madam Deputy Speaker, this is a situation that puts the constitutional mandate of this House at risk. If the trend continues, the mandate of this House will be watered down to the level that we may be rendered irrelevant. It is a matter that should catch the attention of all us, and we must speak on how to address this matter with one voice. I thank you.

(Sen. (Prof.) Kamar): I can see some intervention from Sen. M. Kajwang’.

Madam Deputy Speaker, if you allow me, this matter is very important. Even though we are coming to an end of the term of this House and going to elections, this is so important because those aspiring to come to this Senate are going to find themselves in a shell of a House. They will not find the House that is envisaged in the Constitution. Articles 93 and 94 talk about establishment of Parliament and its role. It goes ahead to talk about Parliament being the guarantor of the will of the people. Parliament comprises the Senate and the National Assembly. It is unfortunate that I am using the word “mischief” twice today. Even though it has to do with what Sen. Omogeni has cited, these omnibus amendments are mischievous. When you look at the timing and the content, you can clearly conclude that some people somewhere have come up with a scheme to whittle down the powers of the Senate, amend the Constitution through the backdoor, kill bicameralism and abrogate duties that were the preserve of Parliament collectively to the National Assemblies. We should not sound helpless. Previously, this Senate has taken a firm decision, despite opposition from the Executive and some of those decisions and actions being politically incorrect. It is that political incorrectness that has enabled the Senate to be what it is today. Madam Deputy Speaker, the Senate I joined in 2015 is definitely not the Senate that I will leave briefly in 2022. If the Senate that we are going to come to post-9th August, 2022 is going to be the sole discretion of the Speaker of the National Assembly to determine at what point to comply with Article 110, then there will be no need to waste taxpayers’ money on Senate. There will be no need for us to walk around calling ourselves the “Upper House”. We cannot appear to be helpless. These issues are alive. Even as we focus on our campaigns and the political season, it is important that we provide direction to our Legal Directorates to take the necessary action to ensure that the duties of the Senate are not reduced through these omnibus amendments. I thank Sen. Omogeni for his vigilance. Even though everyone is talking of campaigns, he has been vigilant enough to scrutinise these omnibus amendments and see the mischief. I also thank the lawyers in this House who have sacrificed their professional time and service. That is why I was a bit unhappy earlier when the Senator for Vihiga County tabled three financial years’ reports of the Parliamentary Service Commission before this

House. We know that it is the Parliamentary Service Commission that has disabled the Senate from engaging legal aid and legal assistance and getting legal services. The same Parliamentary Service Commission allows the National Assembly to get premium legal representation and the Senate is starved of resources and approvals. Therefore, we have to use our in-House staff. If it were not for most advocates in this House, who have volunteered pro bono, probably we would have lost all the matters that we have taken to court. Even when we go on recess Sine Die and everyone goes home to campaign, the Senate is not just the Members of the Senate. We have a very able secretariat and legal team. We must put up a fight because if we are helpless, then I do not know what we will be telling our people when we are campaigning. What are we going to do for them when all our powers of oversight are being taken away and the definition of Parliament is being changed through the backdoor using some of these omnibus Bills? When even the tenure of a Member of Parliament is being affected, the presumption of innocence until guilt is proven. If an amendment talks of a Senator, a Member of the National Assembly, and a Member of the County Assembly (MCA) not being able to represent the people because they are under investigation--- We have seen how some of these bodies have been used. Even though the issue of weaponization of some of these agencies has come from a certain political corner, it is not far-fetched that, that weaponisation can affect all players in the political field. We should not allow some of those things to go through. Madam Deputy Speaker, I encourage Sen. Omogeni that in the diagnosis of the problem, he should once again rise up, using his legal experience, knowledge and intellect, to help our legal team in the Senate to ensure that we put up a strong fight, not just on these omnibus Bills, but also on the issues before the superior courts on compliance with Article 110. Finally, I am glad that today, a State Officer who was impeached is barred from running again for public office. However, if we stretched that a little bit further, this Senate has declared various State Officers to be unfit to hold public office. Unfortunately, recommendations of this House have never been taken seriously. What should be the impact and the finality of a declaration by Parliament that a State Officer is unfit to hold public office? It should count for something. It should bar them from further appointments. It should bar them from getting engaged in further services to the nation. If that was then the effect of being declared unfit to hold public office, then some of the people behind the violation of the Constitution and Article 110 should be declared unfit to hold public office and they should not be allowed to sit anywhere, be it in the PSC or serve as Speakers. The problem we have is not just a problem of the law, but a problem of people thinking that they are smart and the Senate is inferior and it does not have intellectual leadership that is able to discern some of these things. I hope that in the next Parliament, we are going to cure unhealthy and unhelpful competition between the Senate and the National Assembly. We can co-exist. The Constitution has given us joint functions and some functions are unique. Therefore, we can co-exist.

If we do not want to co-exist, let us not use the backdoor of omnibus amendments. Let us face the people directly through a referendum. Let us put the question to the people and ask them whether we need a Senate or not or whether we need a bicameral system or not. Let the matter be settled by the people rather than some people who just want to hide behind legislative drafting to amend the Constitution suspiciously. Senator and the Chairperson for the Senate Standing Committee on Justice, Legal Affairs and Human Rights, we are fully and solidly behind you. If you need us to match as we have matched in the past, we shall be there. If we have to take politically incorrect decisions to defend the Constitution and the Senate, we shall join you. The institution of the Senate is provided in the Constitution. As the Senator for Homa Bay and one having been elected by the people of Homa Bay to represent in the Senate, I will not preside over the mutilation and dismemberment of the Senate. Over my dead body! Thank you, Senator of Nyamira.

(Sen. (Prof.) Kamar: Thank you, hon. Senator. Hon. Omogeni, I thank you for bringing this very important matter to the House. I can see from recommendations that we also have very little opportunities. However, there is still an opportunity because we cannot run away from taking this responsibility. I would, therefore, like to support the Statement by giving the following order- That this Statement be communicated to the Majority and Minority leaders by end of today. Tomorrow, let us cause a consultation between the Majority Leader and Minority Leader, the Chairperson of the Standing Committee on Justice, Legal and Affairs and Human Rights and the Speaker, so that we agree on a way forward. As much as we have a short time, if we leave it out, it is going to have a lot of implications and we might all regret later. Therefore, communicate the same Statement as it is to Majority Leader and Minority Leader. Then, I will cause a meeting to take place between the Speaker and the three Members, so that we have a better way forward. Thank you very much for that Statement. Next Order.

(Sen. (Prof.) Kamar: Hon. Senators, there being no other business on the Order Paper, the Senate, therefore, stands adjourned until tomorrow, Wednesday, 8th June, 2022, at 2.30 p.m.

The Senate rose at 4.45 p.m.