Thursday, 11th February, 2016

This is Petition No.4 of 2016 relating to unlawful termination of employment for over 300 employees of Indu Farm (EPZ) Limited.

Hon. Members, pursuant to the provisions of Standing Order No. 225 (2) (b) , I hereby convey to the House that my office is in receipt of a petition from over 300 former employees of Indu Farm (EPZ) Limited, also referred to as Indu Farm Processing, located at the Sameer Industrial Park No.4, regarding unlawful termination of their employment.

The Petitioners allege that they were sent on compulsory leave on 13th July 2015, subsequent to which they were informed of a temporary closure of the company and immediate termination of their services. The Petitioners claim that this action contravenes Article 41 of the Constitution and the provisions of the Employment Act of 2007, Chapter 226 of the Laws of Kenya. The Petitioners therefore pray that the National Assembly:-

Hon. Speaker, this public Petition relates to challenges faced by braille technicians and transcribers. This is now technical.

I, the undersigned, on behalf of the citizens of Kenya and in particular the braille technicians and transcribers draw the attention of the House to the following:-

THAT, braille technicians and transcribers play a critical role in the education sector, in particular the educational materials, in order to facilitate pupils and students living with visual disability;

THAT, the Government, through the Ministry of Education, Science and Technology, has continuously disregarded their plight;

THAT, although the braille technicians are professionally trained, the Ministry of Education, Science and Technology has not established a scheme of service for the sake of the said professionals;

THAT, in execution of their duties, the said group is faced with numerous challenges, including inadequate remuneration, facilities and equipment; and,

THAT, efforts to resolve the stalemate have been futile. Noting further that the issues in respect of which this Petition is made are not pending before any court of law or any constitutional or legal body, your humble Petitioner prays that the National Assembly, through the Departmental Committee on Education, Research and Technology, recommends that the Teachers Service Commission engages the braille technicians and transcribers on permanent and pensionable terms and develops a scheme of service for braille technicians and transcribers.

Your Petitioners will ever pray. Thank you.

Is it the indication I get that some Members may wish to make comments on the two Petitions? Obviously, today Hon. Isaack Mwaura has overtaken Hon. Daniel Maanzo.

Thank you, Hon. Speaker. I rise to very highly support this Petition by my very good friend Hon. (Dr.) Makali Mulu. The braille transcribers are very critical in the education of learners with visual disabilities. I went through a special school – Thika School for the Blind. Those are the persons who were helping the totally blind students and the low vision learners to translate print into braille. They also go ahead and help in the marking of exams by transcribing from braille into print. They do a lot of work.

The issue of braille transcribers and other teacher aid relating to learners with disabilities is very critical in this country. In fact, after this, I will be bringing a Motion on the teacher rate scheme. There are several issues that need to be looked into even as we look at this Petition. Firstly, those workers are on casual basis. They have no proper terms of engagement and yet, they are the ones who do the bulk of the work. Secondly, there is the Marrakesh Treaty about how to have publishers turn print materials into braille for the use by learners with visual disabilities. This is a critical agenda because most of our visually impaired persons are not able to access materials that are very relevant to their own education.

The other issue is the need to ensure that we have what we call “unified braille”. That is because right now, we have Braille 1 and Braille 2. But there is need to ensure that we have a unified braille system for learners with visual disabilities. This will, of course, ensure that there

is a proper literacy, numeracy and functionality of those very important learners of our education system.

Hon. Speaker---

There is no debate. That should be enough. The comments are not supposed to be an excuse for debate, Hon. Mwaura. The entire House has a maximum of only 30 minutes. If you take five minutes, what are you trying to suggest?

Hon. Maanzo!

Thank you, Hon. Speaker. I would like to comment on the public Petition on massive termination of employment following the closure of an EPZ company. Many companies have turned into this practice, especially when they run bankrupt or for no proper reasons, the owners migrate to another country. It is time Parliament assisted members of the public to get their dues, especially when they are not able to file a case in court. The district labour offices are supposed to arbitrate those matters. It seems that for the matter to come to Parliament, those Petitioners have really suffered. I would like to urge the Departmental Committee on Labour to pursue the matter. I would like to attend the sittings of the Committee, together with other interested Members of Parliament, so that such practices may cease. Whatever happens, the contracts must be respected so that the particular persons can be paid their dues.

Thank you.

Hon. Pukose.

Thank you, Hon. Speaker. I want to thank Hon. Makali Mulu for presenting the issue of the braille. Those are issues that, at times, we take for granted. Those are people with special needs. Within our society, we find that there are people who are blind. They learn through braille system to translate and pass information. We also have those who are dumb and others with different kinds of special needs. This is the right time for the society to also consider them.

The issue of employees is also key and, therefore, needs to be addressed. It would not be prudent for people to be just dismissed like that in the 21st Century. When you consider 300 people being sacked at once, you realise that it is a big family.

The other issue pertains to this House. As we talk about employment, we should also think about our welfare. Yesterday morning, somebody delivered meat on a motorcycle. It is circulating within the social media and it is not good. It was chicken from suspicious grounds, meant for Members’ consumption. This is very bad. We need to sit down, maybe in a special kamukunji, and address such issues. I do not know whether you are listening, Hon. Speaker. I am raising a very serious issue that pertains to the health of hon. Members of this House. Meat wrapped in polythene bags and delivered to Parliament for hon. Members’ consumption should raise health concerns.

Hon. Pukose, surely, there are certain matters that belong to other fora. This is the plenary of the National Assembly. We cannot be here always talking about food.

Indeed, Hon. Pukose, I am informed that you are a Member of the House Catering Committee. You should discuss such issues at the Committee level. Let the plenary deal with other more serious issues, please.

Next Order!

Hon. Speaker, Hon. Pukose is trying to relate braille to a motorbike and some chicken.

Hon. Speaker, I beg to lay the following Papers on the Table of the House today, 11th February, 2016:-

The Special Audit Report on Kenya Bureau of Standards Tender No. KEBS/T057/2014- 2015 for the provision of pre-export inspection services for used motor vehicles;

The Special Audit Report on Kenya Bureau of Standards Tender for the Construction of Mombasa regional offices and laboratories;

The reports of the Auditor-General on the financial statements in respect of the following institutions for the year ended 30th June 2015 and the certificates therein:-

Hon. Speaker, I beg to give notices of the following four Motions:-

deaf is the most important source of knowledge, access to national participation and of great importance to their school work; cognizant of the fact that Kenyan sign language is the medium of communication for the deaf within the community, this House urges that the Government introduces the Kenyan sign language to be taught in schools as part of the primary school curriculum to enable Kenyans to acquire basic skills to communicate with people that have a hearing impairment.

This is the final one, Hon. Speaker. THAT, aware that there are many talented people amongst the youth in this country; having noted that those talents have been severally displayed through various inventions and innovations by the youth in platforms such as the Science Congress and the Annual Youth Innovation Week; concerned that most of those discoveries do not go beyond making sensational newspaper and electronic media stories; noting that most of those innovations are aimed at addressing the problems that afflict us as Kenyans on a daily basis; further concerned that there is inadequate enabling legislation and administrative measures to support those innovations; cognisant of the fact that the Kenya Vision 2030 seeks to make our country an industrialised middle-income economy in the next 14 years; aware of the immense potential for wealth creation and job opportunities that such innovations would generate if well-developed and commercialised; also recognising that our imports are well in excess of Kshs1.3 billion shillings, a gap that would be narrowed if we had our own local production, this House urges the Government to support youth innovation by creating an innovation fund and a national incubation system among other measures to support our talented youth.

Hon. ole Sakuda.

Hon. Speaker, I beg to lay six notices of motions on behalf of the Departmental Committee on Lands.

Are you laying six notices or you wanted to give six notices?

I want to give six notices.

I see. You give notice.

Hon. Speaker, I was a bit distracted by the motor cycle that I say today bringing some meat for Hon. Members.

Hon. Speaker, I beg to give notices of the following Motions:-

Very well, Hon. Kamama.

Hon. Speaker, I beg to give notice of the following Motion:-

Next Order!

Hon. Speaker, pursuant to Standing Order No.44 (2) (a) , and on behalf of the House Business Committee, I rise to give the following Statement regarding the business that will appear before the House the week beginning Tuesday, 16th February 2016. The House Business Committee met on Tuesday this week at the rise of the House to give priority to business.

On Tuesday next week, the House will deal with and debate the Second Readings of the following Bills, should they not have been concluded this week:-

Can those Members who are upstanding take their seats?

To start with, you will note that the Motion for the adoption of the Report of the Public Accounts Committee on the Judicial Service Commission and the Judiciary has received not less than eight proposed amendments.

For the convenience of the House and pursuant to Standing Order 54(6), the amendments will be considered in the following order:-

Thank you, Hon. Speaker, for the guidance. The proposed amendments by Hon. Wandayi, which he has now purportedly withdrawn, were on the Order Paper since October last year. I need your guidance on that. This Report can be debated on Tuesday so that any other Member of that Committee or any other Member of the House can bring back those amendments. Those amendments belong to a number of colleagues, and now Hon. Wandayi is not in the House to propose them. He has not told us whether he has “eaten” or been seen by the forces of sugar.

Therefore, this Report, through your guidance, should be shelved so that it comes to the Floor of the House on Tuesday and then other Members can propose those amendments. The amendments are very important. You cannot just have amendments on the Order Paper since October last year and then you purport to withdraw them this afternoon. I am told the Members of the Departmental Committee on Agriculture, Livestock and Cooperatives were aware of that amendment. He was proposing it on behalf of the Committee. We should not play games. We represent the people of Kenya. This is similar to the Report on the Judicial Service Commission. When amendments are on the Order Paper on a very controversial report like the one on the sugar crisis, they should not be withdrawn.

With regard to the amendments on the Judiciary Service Commission Report, all the Members have not withdrawn their amendments.

Hon. Speaker, none of the hon. Members, including Hon. Chepkong’a, Hon. David Ochieng and Hon. Amina Abdalla, has withdrawn their amendments. Their amendments have been there since October last year. Those amendments by Hon. Wandayi were on the Order Paper. A number of the members of the Departmental Committee on Agriculture, Livestock and Cooperatives were part and parcel of those amendments. We do not want those tricks to be played in the House unless a reason is given as to why he is dropping his amendments. I am sure

that my colleagues will agree with me so that we postpone moving debate today in order for us to have time to bring the amendments.

Hon. Members, I saw Hon. Wandayi walk in during the course of the intervention by the Leader of the Majority Party. I would like to announce to the House that the Chairman of the Departmental Committee on Agriculture, Livestock and Cooperatives, Hon. Noor Mohammed, and a few Members of his Committee approached the Chair a while ago requesting that this debate be adjourned to Tuesday next week because the Committee has left the Chamber to undertake a site visit this afternoon. They made a request that the debate be put off to Tuesday next week.

Hon. Wandayi wrote to me, and it is his right to do so. He is at liberty to indicate otherwise. Hon. Wandayi, this is not occasion for debate. In any event, the Chairman of the Committee has requested that the debate on this Motion be adjourned to enable him and his Members to visit another site. That is a legitimate request. Hon. Wandayi can say what he wants to say, but let it not be a debate.

Hon. Speaker, those were my personal amendment proposals. I filed the proposals way back in April 2015. It is important to put this in context because what Hon. Duale is trying to do is very dangerous. I am a very active Member of the Departmental Committee on Agriculture, Livestock and Cooperatives. When we were writing this Report last year at the Windsor Hotel, I raised specific objections. I have not signed that Report, if you will be keen enough to note. I insisted that for the Report to be complete and to satisfy the interests of this House and the country as a whole, the Committee must adopt the Draft KPMG Forensic Audit Report on Mumias Sugar Company. I was overruled by majority Members because the draft report was not admissible. The recommendations in the KPMG Forensic Audit Report were so pertinent. I felt they needed to have been incorporated. I was overruled. Therefore, I proposed the amendments---

Hon. Wandayi, the House is not debating the Report or what you are referring to as the KPMG Forensic Audit Report. The KPMG could mean many things. The “K” could stand for “Kenya” or “Kisumu” or “Kapedo”.

Hon. Speaker, I insisted that we needed to have a complete report but because I was overruled, I insisted on filing amendments which drew heavily from the sections of that report. Because the final report of the KPMG has since come out, my view is that my amendments are unnecessary. The KPMG report should be adopted alongside many reports for it to have the effect of putting on the dock all those who are culpable of bringing down Mumias Sugar Company. I have absolutely no interest in the shenanigans that Hon. Duale is trying to entertain.

Hon. Wandayi, everybody has heard you. It is within your right to withdraw your amendments. Whoever alleges that you are acting on behalf of other members would be at liberty to propose amendments. There is nothing for us to debate.

Hon. Members, if you want to do a minority report, it is within your right to do so. Do not think that by standing to say it, you are making any point.

Next Order!

Hon. Members, the debate on this Motion was concluded yesterday. I will, therefore, proceed to put the Question.

Hon. Speaker, I beg to move the following Motion:- THAT, this House adopts the Report of the Public Accounts Committee on the Special Audit Report of the Judicial Service Commission (JSC) , and the Judiciary of May, 2014, laid on the Table of the House on Tuesday, 7th July 2015. Hon. Speaker, the PAC Report consists of eight parts. Part I comprises background information and the Auditor-General’s findings. Part II consists of the Executive Summary, while Part III focuses on issues for determination. Part IV summarizes witnesses’ and Committee sittings, while Part V is on evidence from witnesses. Part VI covers the Committee’s findings and observations, while Part VII is on culpability. Part VIII is on the Committees’ recommendations.

The PAC derives its mandate from Standing Order No. 205 (2) of the National Assembly, which provides that it shall be responsible for the examination of the accounts showing the appropriation of the sum voted by the House to meet the public expenditure and such other accounts laid before the House as the Committee may deem fit.

The primary mandate of PAC is, therefore, to oversee expenditure of public funds by Ministries, Government departments, constitutional commissions and independent offices to ensure value for money, optimal application of public resources and adherence to Government financial regulation and procedures. The Committee executes its mandate on the basis of annual and special audit reports, such as this one, which was prepared by the Office of the Auditor- General.

Hon. Speaker, in our guiding principles in execution of our duties, the Committee is guided by core constitutional and statutory principles on public finance management as well as established parliamentary customs, traditions, practices and usages. Those principals include the following:- Constitutional principles on Public Finance; Article 201 enacts the fundamental principles that shall guide all aspects of public finance in the Republic. The principles are:-

“If a Cabinet Secretary reasonably believes that an accounting officer is engaging in or has engaged in improper conduct within the meaning of subsection

The Committee recommends that the Director of Public Prosecutions (DPP) swiftly institutes investigations and proceedings against those directly linked to financial impropriety and mismanagement, as enumerated in the Culpability Chapter of this Report.

The Committee also recommends that those found guilty by a court of law make good the losses attributed to them in accordance with Article 226 (5) of the Constitution.

The Committee also strongly recommends that those found guilty by a court of law for loss of public funds and failure to perform duty bestowed upon them by law, be barred from holding public office for such a period as the a court will determine.

The Committee further recommends that the Judiciary moves with speed to implement the Judiciary Transformation Framework and ensures sound policies are in place to guide all operations of the Judiciary.

The Committee recommends that the Ethics and Anti-Corruption Commission (EACC) investigates the formation of JKUATES Limited and the manner in which it was identified and contracted by the Judiciary. Any company found to have been involved in malpractices and/or professional negligence should be blacklisted by the Government and individuals behind those companies prosecuted. They should be de-listed by their respective professional bodies.

The investigation by EACC should be further extended to all public universities and institutions of higher learning to identify amorphous bodies like JKUATES Limited, who operate under the guise of being public bodies with sole purpose of side-stepping the public procurement laws to confine financial benefits to private entities and individuals.

The Committee recommends full recovery of irregularly paid allowances advanced to the staff of the JSC and the Judiciary. Also to be recovered are monies owed to the Judiciary in form of advance rates paid for premises which ended up not being occupied by the staff of the Judiciary.

Hon. Speaker, I will quickly rush to the observations and findings, which I will just say in summary.

The observations and findings have identified weak leadership and governance structures within the Judiciary. They have also identified the structural inefficiencies of the Judiciary Transformation Framework. This is worth to go on record. The observations have also identified sudden increase in budget allocation. I beg your indulgence to read it because it is only two paragraphs. It reads:-

“There was a sudden upsurge in budgetary allocation to the Judiciary which created a recipe for an insatiable appetite for reckless expenditure. The budget for the Judiciary for the Financial Year 2010/2011 was Kshs3 billion. This tripled to Kshs9 billion in the 2011/2012 Financial Year, and jumped to Kshs16 billion in the subsequent financial year. In other words, in two short years, the Judiciary’s budget had increased five times. Even though the Committee notes that this rise in the Judiciary budget was essential for efficient administration of justice, it takes a great exception to the manner in which those charged with the management of its affairs and resources failed to develop structures in line with the Judiciary Transformation Framework (JTF) to effectively and efficiently absorb the funds.” The observations have also identified strained working relationship at the JSC. We have also identified irregular procurement procedures and processes, particularly the weaknesses with the tender committee and the procurement of Elgon Place, which the Committee has explained in

details in the observations.

We have also identified procurement lapses in the procurement of space at Rahimtulla Towers and also the procurement of JKUATES Enterprise Services limited. We have also identified procurement lapses with regard to the purchase of the residence of the CJ, leasing of space at Mayfair Court Center and the prefabricated court structures. We have also identified procurement lapses with regard to leases from the Agricultural Finance Corporation (AFC).

The observations have also identified poor human resource management, irregular payment of allowances and irregular salary advances payment in lieu of leave days. We have also identified lapses with regard to extremely poor record keeping, irregular imprest management and refunded expenditure on presidential inauguration. On irregularly operated bank accounts, it is good to go on record that the Committee observed that some accounts still have former employees as signatories, posing risk of loss through transaction by non-employees. An example is the Milimani Law Courts revenue account that still has the former Chief Registrar of the Judiciary (CRJ) as the signatory, even though she has left the Commission.

More disturbing to the Committee is the fact that some accounts had a single signatory, for example the Milimani Law Court Deposit Account Number 1116930854 at Kenya Commercial Bank (KCB) operated solely by the former CRJ and the Milimani Law Courts Recurrent Account Number 229777367 at KCB operated solely by Mr. Gilbert Mutembei.

The Committee notes that single custody of accounts leaves a loophole for a possible loss of funds for personal enrichment. It also takes great exception to how any bank of repute would permit single signatory account for public funds. It was also noted that the funds collected as being bonds and deposits were used to pay suppliers, contrary to regulations which requires that they are only held for purposes for which they were paid.

Hon. Speaker, Kshs67 million was misapplied from the Milimani Law Courts deposit account. The Committee also observes irregularities with regard to procurement of security consultancy.

On culpability, the Committee was guided by witness statements, evidence submitted and its observations in the many site visits it conducted to assign responsibility and culpability for errors of omission and commission. With this, the Committee is alive to Article 226(5) of the Constitution that states that:-

“If the holder of a public office, including a political office, directs or approves the use of public funds contrary to law or instructions, the person is liable for any loss arising from that use and shall make good the loss, whether the person remains the holder of the office or not.” Specifically, the Committee notes that the powers and functions of the Chief Justice as spelt out in Section (5) of the Judicial Service Act 2011 are as follows:-

Well spoken, Hon. Rop.

Thank you, Hon. Speaker for giving the opportunity to second this very important Motion on the Report of the Public Accounts Committee on the Special Audit Report of the JSC. The Chair has gone through the whole Report. I will just sum-up because I want other Members to contribute to it.

I want to thank the Committee for a job well done. The Committee conducted a lot of interrogations, got a lot of facts and as a result, we have made the 22 recommendations that have been read by the Chair.

The Judiciary is one of the three arms of the Government that initially was poorly funded. Right now, it is in public domain that there are issues that we raised as a Committee that are being acted upon out there. As a House, we should recommend that there is an urgent need to do a surgical and radical clean-up of the Judiciary to clear the mess that is happening in that arm of the Government.

There is lack of confidence from the public on the Judiciary because of the integrity that is in question. The public does not trust the judges and the commissioners because of a leadership that is wanting. Some structural changes ought to have been effected in the Judiciary.

The issues raised in the Report were as a result of a sudden increase in the budgetary allocation to the Commission. In the 2010/2011 Financial Year, the Judiciary had a budget of Kshs3 billion. In 2012/2013, the budget increased five-fold to Kshs16 billion. Parliament’s desire was good. We wanted to have an efficient and fair administration of justice by the Judiciary. As a result, the JSC and the CRJ went on a spending spree. We realized that there was financial mismanagement and irregular procurement procedures by the JSC and the CRJ.

The issues of irregular imprests, irregular allowances and advanced payments, as has been raised by the Chair, were rampant during that time. They went on a spending spree doing the leasing of premises, renting and making payments up-front. There were a lot of general weaknesses. Internal controls were not in place due to the failure by the Chief Justice to provide leadership, though he has contested this through the protest letter that he wrote to you. I am happy he also acknowledges that yes, he was paid those allowances, but he has refunded. That shows that the Committee did a thorough job.

There is the issue of Rahimtulla Tower, where there were no lease agreements. They were not duly executed and registered. The lease payments were made from deposit account as the Chair has stated, yet the amount that was in question was the voted provisions that were passed by this House. They went to the deposit account and made irregular payments. They have acknowledged those payments and said that they have refunded the money. That was an irregularity that the Committee noticed.

There was also the down payment of rent; six months down the line, yet the premises were not fully occupied. There was the lease of Elgon Place where Kshs70,147,605 was paid. That premise was meant to be occupied by the Court of Appeal, but it was not fully occupied. Those are issues that were raised by the Committee. We visited the AFC premises countrywide and found that most of the premises were not occupied with the exception of Kakamega and Meru, which were partially occupied and yet, payments had already been made.

The Mayfair Court Centre, which was meant to house the Commissioners, was also another irregularity where Kshs7.3 million was paid up-front two years down the line before even the occupation of the premise. Funny enough, the Commissioners were even allowed to design their own bathrooms in those premises. On the issue of the purchase of the official residence for the Chief Justice, initially, the house was supposed to be fully furnished. The initial figure was supposed to be around Kshs425 million which was renegotiated to Kshs310 million and upon acquisition, they decided not to furnish the house. An extra amount of money had to be looked for to furnish the house. This property was also not valued by the Government Valuer. The JSC sanctioned the purchase of the house from Mutuma Mutuma Holdings Limited, upon request by the Chief Justice. He wrote a letter to the then Head of the Public Service requesting that he and you, Hon. Speaker, ought to be housed.

We made several visits to these premises and found that the house was in a pathetic state and no works were going on. The premise had not been occupied and yet Kshs310 million had been paid for the house. This is a house we were told the Chief Justice himself invited Court Martial, that is a private security firm, to inspect the security of the surroundings. Those were American Court Martials who were invited. Up to now the same premise has not been occupied.

There is also the issue of construction of prefabricated houses where monies amounting to millions of shillings had been spent. The intentions were very good. They wanted to provide a quick solution to justice and improve service delivery. They wanted to incur the lowest cost possible. They also wanted to make it cheap because they thought constructing stone-walled

houses would have been very costly and so they ended up opting for prefabricated houses. But apparently, by the time we made the visit, all these structures had not been completed and they were not in use. That was the case and yet millions of shillings had been spent. In fact, the Auditor’s Report indicates that over Kshs626, 535, 974 has been paid. He questioned the cost because we made a comparison.

I visited the Runyenjes Court House personally which is just next to the district headquarters. While the district headquarters cost about Kshs29 or 30 million, the Runyenjes Court House cost Kshs99 million. This is a prefabricated house. I could detect a spending spree in that house because all of the prefabricated houses cost between Kshs81 million and Kshs99.9 million. Surely, we could see, as a Committee, that there was a spending spree by that Commission.

The Committee’s recommendation requires that the JKUATES that did the valuation even for the pre-fabricated houses--- They took 10 per cent of the initial value of Kshs951 million although this was later revised to Kshs626 million.

Hon. Rop, I will give you one extra minute to finish seconding.

I was winding up, Hon. Speaker. The JKUATES has really taken a lot of money from the Government, purporting to be a government to government body. When we did our investigation we found another company called “Align Architects” taking 95 per cent of the proceeds, while 5 per cent went to the Government body, which was the JKUATES. Therefore, we want this body to be investigated because it seems some lecturers are privately making money out of this in the name of the Government.

Our recommendations should be implemented although most Members have contested them. We will listen to their proposals to delete some of the recommendations we have made. We will invoke Article 226 (5) of the Constitution.

I beg to second.

Hon. Members, in order to proceed in a manner that is well-understood and structured, I gave guidance earlier on that we will, first of all, deal with the proposed amendments so that we know upfront, even as we continue to either support or oppose the Motion, whether we are moving with it as amended or in its original form as moved by the Chair of the Committee.

Therefore, I straight away call upon Hon. David Ochieng’ to move his proposed amendment.

Thank you very much, Hon. Speaker. Before I move the amendments, I want to congratulate the Mover of the Motion, Hon. Gumbo, the Chairman of the PAC for a very well-balanced report that gives us an in-depth analysis of what the happenings have been in the Judiciary and how his Committee and him thinks we can handle these problems.

Hon. Speaker, I do not know if you want me to contribute as I move my amendments or I move my amendments first.

At this point, Hon. Ochieng, move your amendments. As the procedure shows, that does not mean that you lose your right to contribute to the Motion as amended, if at all it will be amended. Just move your amendments.

Hon. Speaker, I beg to move that the Motion be amended as follows:- By inserting the following words immediately after the words “Tuesday, 7th July, 2015”- “Subject to the –

Yes. With the Chairman having spoken in the manner that he did, in that he jumped Recommendation No.2, then it means that his Motion is moved without Recommendation No.2. That is the way it is taken.

Thank you very much, Hon. Speaker. My second amendment is with regard to Recommendation No.4 that states:- “For his failure to provide leadership, the Chief Justice (CJ) must take personal responsibility for allowances paid to the Commissioners of the JSC for attending meetings that were not convened with his knowledge and approval.” My amendment is to question the wording. If you are conceding as a Committee that these meetings were done without knowledge and approval of the Chief Justice, why do you want to make him responsible? My amendment is that the Commissioners who participated in the meetings without the CJ’s approval are the ones to be surcharged. That is why I propose that the text currently be deleted and substituted with a new text saying:-

“The various Commissioners of the JSC must take responsibility for allowances paid to them for attending meetings that were convened without the knowledge and approval of the Chief Justice.” Also, an audit of all such meetings should be undertaken and the responsible Commissioners surcharged. The idea is to place the responsibility where it lies - on the people who attended the meetings without the knowledge of the CJ, and who should have known better. This is why I propose that amendment.

My third amendment is to delete Recommendation No.5 appearing on page 136. Currently, it states that for disregarding the Treasury’s written advisory on the management of public funds, the CJ must take personal responsibility for all payments irregularly made on his instructions. If you look at page 124, you will find that the Committee basically lays down the roles of the CJ as:-

“He shall be the Head of the Judiciary, the President of the Supreme Court and shall be the link between the Judiciary and the arms of Government.”

In addition to that sub-section, he must assign duties to the Deputy Chief Justice, the President of the Court of Appeal, the Principal Judge of the High Court and the Chief Registrar and give annual reports as may be necessary.

Hon. Speaker, having gone through this Report, it is clear to me, based on what is available, that there has been a tug of war among the Office of the Chief Justice, the JSC and the Registrar of the Judiciary. The question almost asked at every point is, who should or should not approve? We even saw correspondence between the Chief Registrar and the CJ, with the Registrar telling the CJ that if he wanted to have a say on how public funds are managed, he should apply to the National Treasury to be made the accounting officer. If you are telling the CJ that he does not have a role play in that regard, why should he take responsibility for monies paid on instructions he did not have the capacity to give? How do you take responsibility for things you did not have the capacity to do? That is why I want that part deleted. The CJ did not have a role to play in payment in the Judiciary.

With those remarks, I beg to move and ask Hon. Chepkong’a to second.

Hon. Chepkong’a, as you rise to second, his proposal to amend recommendation number two is dropped because it was skipped by the Mover for some reasons which he explained. You are seconding recommendation numbers four and five. We will put the Question with respect to each of the two.

Thank you, Hon. Speaker. I rise to second but I am not sure whether I want to second the third part of the amendment. I am only seconding part (ii) but not part (iii) for very good reasons.

I rise to second the fact as enunciated in the Report, which is that the various commissioners of the JSC must take personal responsibility with respect to allowances they received when they never attended meetings. In terms of culpability, it should be to the person who committed the crime and not the person who never committed it. We are agreeing on that one.

Hon. Speaker, with respect to part (ii) , the position is very clear. On matters of accountability and transparency, no one should run away from them.

As you know, the former President of the USA, Franklin Delano Roosevelt, ruled for four terms. Thereafter, he came up with a law that no one should rule for more than two eight-year terms. He said: “The buck stops with me as the President of the USA”. When I was the Chief Executive Officer, as the Director-General of Communications Commission of Kenya (CCK) , the buck stopped with me. It never went anywhere. I took personal responsibility for every action and decisions made in that institution. If you go to the CCK today, you will see the sort of regulations and rules that we had put in place. It did not matter who the Director-General who took over thereafter was. He was bound by those rules. Whenever there is a mess, we must take responsibility.

With regard to part (iii) of the amendment, I oppose it with all my heart. Although I am seconding part (ii) of the amendment, the Mover has to look for a seconder for part (iii) of the amendment. It is not a wholesome secondment. As you have said, on this one, we will vote individually. Hon. Ochieng is my good friend but on matters of accountability, they are non- negotiable. I heard an Hon. Member not shouting but mouthing that if we go in the direction proposed by Hon. David Ochieng, we will be promoting impunity in this country. Therefore,

when you are appointed chair of a particular institution, you will not take responsibility for anything, and when bad things happen you blame your juniors. We appoint you because you are better than your juniors but if the juniors are better than you, then you have no business sitting in that position. You should have left office long time ago. We pick people on the basis of their competence, technical skills and people relationship. It is about management. If you are not technically competent, then you have no business being in that office. You are supposed to provide leadership to institutions. These are the basic things we are taught in leadership classes. Nobody should sit in a position of leadership and thereafter, scapegoat and say that it is the juniors who failed. Passing the buck must never be accepted.

The former Chief Registrar must take responsibility. As the head of the administration wing, she ought to take responsibility. Equally, everybody, including me at my constituency level, must take responsibility. When things go wrong with the Constituencies Development Fund (CDF), the Member of Parliament is blamed. I know of a former Member from my county who cannot be re-elected to this House. When he was the Member of Parliament and was asked why he stole CDF money, he replied that the CDF did not belong to anyone’s mother. He is reminded everyday that the seat does not belong to his mother either, and is thus not elected. We must be clear on some of these things so that you are not appointed to a position only for you to abuse others. We will not accept such a thing.

With those remarks, I support part (ii) of the amendment but Hon. Ochieng should shop for a seconder for part (iii) of his amendment.

Hon. Speaker, what has just happened this afternoon is an interesting thing that you would probably want to rule on for future reference. It is not a small matter. I can see Hon. Chepkong’a laughing at it. The rules about seconding are clear. If you agree to second a Motion but you stand and oppose it, you have not seconded. It is not a small matter.

Hon. Ochieng, please get somebody else to second the third part.

Hon. Speaker, I will request Hon. Mulu to second.

Hon. Speaker, do I second the entire amendment?

No, just second part (iii) of the amendment. The issues being proposed are straightforward. I do not think we should spend too much time on them. As we have agreed, we want to dispose of the amendments so that we know that as we contribute, we are contributing on the Motion as amended or in its original form.

Hon. Speaker, with all due respect to Hon. Chepkong’a, we are all aware of what capital finance management in this country demands.

Hon. Makali, just second the relevant part.

Hon. Speaker, the recommendations are clear that the CJ takes responsibility for financial payments. The person who appoints sccounting officers is the---

There is a point of order from Hon. Nyamweya.

Hon. Speaker, is the Member in order because what happens is that the Chief Justice recommends who is going to be the accounting officer? The National Treasury then appoints---

That is not true.

That is what it is. The National Treasury appoints. Let us get it clear here. Is the Hon. Member in order?

Hon. Members, I am surprised that some of you are Members of that Committee and I am sure you have read--- The Chairman, in moving, read the functions of the Chief Registrar and the functions of the Chief Justice. In one of them, a person is specifically designated as the accounting officer so that the other former appointment is merely what comes with the provisions of the Acts.

Proceed, Hon. Makali.

Hon. Speaker, that is why I am saying that this is an area I have a bit of authority. I do not know why people are not reading. We have the Public Finance Management Act (PFMA) which is very clear.

Recommendation No.5 says that for disregarding the Treasury written advisory on the management of public funds, the Chief Justice must take personal responsibility for all payments irregularly. If you have been appointed as an accounting authority normally what would happen is that you have the mandate to pay or not to pay. For me, this recommendation does not make sense from a public financial management perspective.

On a point of order, Hon. Speaker.

What is your point of order?

Hon. Speaker, I rise under Standing Order No.107 with respect to the accuracy of the reporting by Hon. Makali Mulu. Item five is very clear. He is reading in a manner that fits into the way he wishes to second this part. He should second it in the format it is clearly stated: “The Chief Justice must take personal responsibility for all payments irregularly made on his instructions”. It is on his instructions and not any payment that was irregularly made by someone else. If he never made any irregular payment, then he is not culpable. That is the point being made in this Report.

The issue is “on his instructions”.

Hon. Speaker, I am not a Member of that Committee but I am asking: “Are we saying that if you are an accounting officer and you are given wrong instructions, you go and act on those wrong instructions, when you know the Constitution is very clear that that should not be done?” Is that what we are saying? We have a very clear Act of Parliament which we call the PFMA. This Act stipulates very clearly how public funds should be managed. The person who implements those wrong instructions is the one to takes responsibility. Why is the Chief Registrar not in this recommendation?

I second this amendment by saying that the recommendation should be deleted for the reasons I have explained. It is very clear that the Chief Registrar is the accounting officer of the Judiciary.

Next to you there is Hon. John Mbadi who I believe is a Member of the Committee. I am Sorry. I will propose the Question before you speak, Hon. Mbadi.

Thank you, Hon. Speaker. I want to support these amendments. Being a Member of the Committee, I know it could cause some concerns why I am doing so. I am going to explain shortly and briefly. It should be observed that the PAC was reconstituted. I appreciate the work that has been done by the Committee, especially the leadership of the Committee. The Chair and the Vice-Chair who were not present when a lot of debate on this matter went on have done a commendable job in moving and seconding the Report.

The reason I want to support these amendments is as follows: I had some difficulties with sections of the Report. I agree that members of the JSC under part (ii) should take personal responsibility for allowances paid to them. Actually, they can only share that with the accounting officer. For example, if today, I decide to attend a meeting that is not procedurally convened, we will not come to the Speaker to ask you to take personal responsibility. It is the member who has benefited from the irregular payments who is supposed to pay and/or the accounting officer. The accounting officer, who is the Clerk of the National Assembly now has that responsibility. You cannot put it on the door step of the Speaker; the same as the Chief Justice.

I want to read this recommendation which I am very uncomfortable with. Part (iii) says:- “For disregarding the Treasury’s written advisory on the management of public funds, the Chief Justice must take personal responsibility for all payment irregularly made on his instructions”. When you are making a recommendation for personal responsibility on payment, you mention those payments. That is not here. In fact, the impression it gives is that the Chief Justice made instructions for payment. I sat in almost all meetings of interrogating this matter. There is not even a single case where the Chief Justice instructed for payments to be made. Not any that I am aware of. What happened is that a sub-committee, the finance committee, was formed. It looked at payments that were above a certain amount. This came about because of the problems-- - Actually, that never used to happen previously. I wish all Members of Parliament would have witnessed the witnesses who came before us. What happened is that the JSC had initially left the entire management of the Judiciary fund to the Chief Registrar of the Judiciary. By the way, when the Chief Registrar of the Judiciary appeared before us, initially, she was bragging and saying that she was only answerable to Parliament, the National Treasury and the Public Procurement Oversight Authority (PPOA) . She said that at no time would she allow anyone to instruct her to pay. That is one of the problems she had with the Judiciary.

So what happened to the JSC is that when they realised there was public outcry and that there was mismanagement of resources, they formed a sub-committee which looked at payments beyond, I think, Kshs50 million. By asking the Chief Justice to take responsibility for payments irregularly made on his instructions, I want to say that there is no evidence that he instructed the Chief Registrar of the Judiciary to make any payment. For that reason, those who will read this recommendation in future may think that the Chief Justice ,Willy Mutunga sat somewhere and issued instructions to the Chief Registrar of Judiciary to pay Kshs1million or Kshs10 million. There is no evidence to that effect and, therefore, I urge this House that this recommendation is misplaced in this Report.

Thank you, Hon. Speaker. I support.

Hon. Members, before we dispose of this matter because I intend to put the Question on both proposals--- If I could benefit from one or two Members of the Committee because there is a very interesting point that Hon. John Mbadi has raised and I think it is fair that

those of you who have sat in that Committee since September--- I can see two Members namely Hon. Bunyasi and Hon. Manje. That recommendation talks about “on instructions”. If you could just address that point, you could enlighten the House, so that as you vote happily, you have the information. You know I do not have a vote.

We can start with Hon. Manje and then Hon. Sakwa Bunyasi.

Thank you, Hon. Speaker. We know very well the Chief Registrar of the Judiciary was the accounting officer. She was the one who was supposed to authorise any payment. However, there were also structural problems at the Judiciary and at times the Chief Justice would give orders and instructions. There was a problem in managing finances in the Judiciary and since there was a lot of money, the Chief Justice created a committee for finance which also gave instructions.

I remember that Committee was headed by lawyer Ahmednassir and he was giving instructions. The instructions would be given by a committee, vouchers could be processed and payments made. Therefore, in the wisdom of the Committee, if instructions came from the Chief Justice who was not an accounting officer, then he should be held responsible. This is because by virtue of being the Chairman of the Judiciary, he gave some instructions that the Chief Executive Officer (CEO) obeyed.

On bullet five under the second recommendation, I think he should be held responsible if he gave instructions. If he did not give instructions and there is no voucher he signed, then he is free. He will not be held responsible. So, let it be open the way it is. If it is found that there is a voucher he instructed to be prepared, he signed and it went through and yet he was not the accounting officer, he should be held responsible.

I am surprised. You are the Members of the Committee. The Auditor- General obviously must have given you indications that this one was done on so and so’s instructions. It is unfair for you, as Members of the Committee, to talk about “If”. It is unfair to the House if you are telling us about “If” and you are the people that we are supposed to rely on.

Unfortunately, Hon. Mbadi put the matter in proper context that the Chairman and the Vice-Chair, who were not at that time involved in the Committee, have done their bit quite well.

Let us hear from Hon. Sakwa Bunyasi.

Thank you, Hon. Speaker. I want to contribute to these amendments without prejudice to the possibility of contributing to several other things that are going to come up.

No please. This is just to the amendments.

Hon. Speaker, part of the contestation within the Judiciary was a strong position of the Chief Registrar of the Judiciary being in charge of the resources of the Judiciary and other aspects as outlined in this Report. From the evidence adduced to us, it was more of the absence of instruction from the Chief Justice that was a problem.

This clause, as it stands here, would have a blanket cover for an occurrence that was not adduced before the Committee. I agree with Hon. Mbadi that there was no case of the CJ instructing the Chief Registrar of the Judiciary to pay. If the Chief Registrar of the Judiciary got instructions from the sub-committee on finance, if it existed within Judiciary, then they are the ones who were giving instructions. I do not recall that there was any evidence adduced by the Chief Justice. So, I think the amendment by the Chairman, in my view, stands in respect to paragraph two.

Hon. Members, we have listened to the people who have served in the Committee. So that we move with clarity, Hon. David Ochieng, I take it that your proposal to amend Recommendation No.2 by way of deletion should also be put to Question. This is because the Chairperson indicated that it should not have been there.

So, in fairness, we should put the Question also with regard to that proposal to delete recommendation number two and Hon. Ochieng’s proposal to amend recommendation number four and five. I will put the Questions with respect to each of the three.

Hon. Members, again for guidance, the Motion proceeds with the amendments proposed by Hon. David Ochieng having been carried. So, we move to the amendments proposed by Hon. Benjamin Washiali.

The Member is not present. Hon. Washiali came to see me here alongside the Chairman of the Departmental Committee for Agriculture, Livestock and Cooperatives. He did not indicate to me that he is appointing somebody to move his amendments on his behalf. This is a House and there must be something in writing.

Sorry, Hon. Members. I think there is confusion even though Hon. Chepkong’a says we must take responsibility. What I have been given is wrong. Let me go by what is in the Order Paper.

The next amendment is by the Deputy Leader of the Majority Party, Hon. Naomi Shabaan.

Thank you, Hon. Speaker. I wish to start by congratulating the Committee for the job it has done despite the fact that it has left out some very salient issues that were mentioned in the report.

Hon. Speaker, I beg to move that the Motion be amended as follows:- By inserting the following words “immediately after the words “Tuesday, 7th July, 2015”- “Subject to the insertion of the following:-

On a point of order, Hon. Speaker.

What is your point of order Hon. (Eng.) Gumbo?

Hon. Speaker, with greatest respect to my good friend, Hon. (Dr.) Naomi Shaban, I think this matter was actually canvassed. I am surprised that the Hon. (Dr.) Shaban, while reading those parts has opted not to read page 130 of the Report which says that

the Committee takes great exception to the former Chief Registrar for deliberately misleading it on the matter of acquisition of Mayfair Court Centre and strongly reprimands her. The irrefutable evidence is available as Annex 7. Irrefutable evidence shows that she personally accepted the offer by signing the letter of offer from the landlord’s agency and executed the lease on 16th September, 2011. Those premises went unoccupied for two years after payments were made. Merely identifying a property for people to consider does not constitute procurement. With all humility, I submit that it is not correct. The person who signs the letter of acceptance takes the responsibility.

Hon. Speaker, I wish Hon. Shaban could take her argument in that direction. I thank you.

Proceed, Dr. Shaban.

Hon. Speaker, I thought as they were going through this, proper investigation should have been done where Ms. Lydia Achode was concerned. This is the case and yet we chose to be silent on it because everybody, including the Commissioners mentioned how the process of procurement was done. At this point, we want to sort of say---

Hon. Shaban is trying to respond to the point of order that has been raised by Hon. Gumbo but, even before she has said anything worth considering as having been a response, you are rising on point of order. Let us allow her to make her response.

Hon. Speaker, the least I had expected was for them to ask for proper investigation to be done by investigative bodies. In this particular case, the Committee chose to be silent. The identification and all the processes were done except at the point when Gladys Shollei came over and a few weeks later, she was told that they had already made a decision, which she was supposed to have taken charge of.

On a point of order, Hon. Speaker. With all due respect to a highly respected Member of this House, is Hon. Shaban in order to raise the threshold in terms of who should bear maximum responsibility when it comes to procurement process? The person who signs any legal document takes maximum responsibility. Junior officers or any other individual who may have participated in the process is literally inconsequential. The highest threshold falls directly on the person who signs the document. The person who signed the document is Mrs. Shollei. It does not require us to seek a High Court interpretation to know who exactly holds maximum responsibility on the matter.

On a point of order, Hon. Speaker.

Hon. John Mbadi, Hon. Onyonka was on a point of order. I thought those of you who have a few more years than others know this. Now it appears like Hon. John Mbadi has forgotten this and yet he was an expert a while ago. Three years ago, he was an expert in these matters.

Yes, Hon. Naomi Shaban.

Hon. Speaker, on the second issue, I beg to move that the Motion be further amended as follows:-

I will give guidance on how voting will be done on these two amendments because you move from six to 23. In between, if there are other proposed amendments, then it may cause some confusion.

Yes, Hon. Beatrice Nyaga.

Thank you, Hon. Speaker. I rise to support the amendments by the Deputy Leader of the Majority Party, Hon. Shaban.

If you read the Report, it clearly indicates that Madam Lydia Achode was responsible for procuring the offices. Without going deep, because Hon. Shaban has already indicated exactly why she is amending the Report, Ms. Achode did not particularly consult the company leasing Mayfair Centre. It was her responsibility to do exactly that. In procurement procedures, you are supposed to consult and bring everyone on board so that you can know exactly what you are procuring.

Madam Lydia Achode did not even visit the building to verify what the Commission was interested in occupying. She was given the responsibility to check the three buildings namely the National Hospital Insurance Fund Building, Mayfair Centre and Reinsurance Plaza. She did not check the buildings, and yet she recommended that Mayfair Centre was the building that the Commission was supposed to rent.

It is indicated on page 70 that she was given the responsibility of finalising the process. That means that she was supposed to do everything after other officers had done their part. So, she has a responsibility to bear. She is supposed to be part of the process.

I also support the second amendment. The Commission is supposed to desist from interfering with the financial and administrative operations and functions of the Judiciary together with the National Assembly through the Departmental Committee on Justice and Legal Affairs.

I support the amendment.

Hon. Members, these matters are straight forward. Let me just put the Question. I will make sure that we put a Question on each of the two.

(Question, that the words to be added be added,

put and negatived) Hon. Members, I put the second Question relating to the second amendment. (Question, that the words to be added be added, put and agreed to)

I hope the Clerks are taking note of the amendments that are carried and the ones that are rejected so that finally, when we are putting the Question with regard to the Motion we will include the amendments.

I now call upon Hon. Amina Abdalla to move her amendment.

Thank you, Hon. Speaker. I beg to move that the Motion be further amended as follows:- By inserting the following words immediately after the words “Tuesday, 7th July, 2015”- “Subject to the deletion of recommendation number 19 on page 139 of the report, and substitution thereof with the following:- “The security upgrades implemented by Mr. Simiyu Werunga, a security consultant and contractor, should be subjected to detailed audit by an independent Security Consultant, working jointly with relevant departments of the Government, and any sums paid over and above fair market value be claimed from the consultant/contractor.” Essentially, this is deleting a recommendation by the Committee that asks the Chief Registrar of the Judiciary to charge the beneficiaries of this project to pay for the cost of those security upgrades. It is the JSC’s decision to give the Supreme Court judges extra security. So, if the procurement is wrong, the fault is upon the JSC and not the beneficiaries.

Secondly, the Committee says these security upgrades are in private residences and yet the Judiciary does not provide residences for the judges. So, where does the Committee expect those security instruments to be put rather than in the private residences of the judges? This is tantamount to, for example, if the procurement department of Parliament procures irregularly the water that we drink here then we are told that although you are entitled to drinking water while you are in the Chambers, you are going to be surcharged for the same if it was procured wrongly.

Based on those reasons, I beg to move the amendment. I ask Hon. David Ochieng to second.

Hon. Speaker, I second. Thank you.

Put the Question!

Obviously, I need to propose the Question but, if the mood of the House is that I propose and put the Question at the same time, then I will accordingly do so. I will obediently do that.

Question of the first part of the amendment, that the words to be left out be left out, put and agreed to)

(Question of the second part of the amendment, that the words to be inserted in place thereof be inserted, proposed) (Question of the second part of the amendment, that the words to be inserted in place thereof be inserted, put and agreed to)

I now call upon Hon. Samuel Chepkong’a to move his amendment.

Thank you, Hon. Speaker. I beg to move that the Motion be further amended as follows:- By inserting the following words immediately after the words “Tuesday, 7th July 2015”- “Subject to the insertion of the following words immediately after the words “Administration Committee of the JSC” appearing in the recommendation number 20 on page 139 of the Report: “Commissioners Smokin Wanjala, Mohammed Warsame, Ahmednassir Abdullahi, Rev. Samuel Kobia, Christine Mango and Emily Ominde”. This is to make it clear because members of the Finance and Administration Committee of the JSC have been changing from time to time. I am saying this out of the information I have as the Chairperson of the Departmental Committee on Justice and Legal Affairs. It will be unfair to subject the new entrants to the committee to investigations on matters that they never participated in.

Secondly, this Report is time-specific. We are talking about events that happened when certain individuals were in office during the time the investigation was being undertaken by the PAC.

I move the amendment as the Member for Ainabkoi Constituency, but aware that I am the Chairperson of the Departmental Committee on Justice and Legal Affairs. We want members of the JSC to take responsibility for monies which we appropriate to their care. This country gives the Judiciary Kshs18 billion. This is not little money. I am looking for about Kshs2.4 billion to tarmac a road in my constituency which is about 53 kilometres. This will completely change the face of that constituency and the life of the people wallowing in poverty in my constituency. When you are appointed to a position of responsibility, you should be able to take responsibility for matters that take place.

Thirdly, culpability is not on the basis of a committee but on an individual basis. Responsibility is per person. That is what the law recognises. It recognises individual responsibility as opposed to corporate responsibility. I would like to request Hon. Ochieng to second.

I thank you.

Hon. Speaker, I do not know whether to second or not. This contradiction tells you - I hope Hon. Chepkong’a learns from what we were talking about earlier on - that all these things that we do in Parliament, especially when we talk about corruption, we talk about individuals and not corporates or generalities. That is why I second this amendment. We need to

look at who we are talking about here. We are talking about persons that we know but above all the recommendation does not say these people are culpable. It says that they should be investigated to see if they had any role to play. I hope the bodies concerned will take the action being proposed by the Committee. The Ethics and Anti-Corruption Commission (EACC) should investigate if, in their role, the persons have had any dealings that would lead to loss of money.

Hon. Speaker, I second.

I am just allowing Hon. Mbadi an opportunity to take his seat.

The Member for Seme has not spoken this afternoon and I can see he is agitated. Let me give him an opportunity.

Hon. Speaker, I have really been trying to catch your eye. Even in other amendments that have passed, there are areas that I did not agree with. For example, if somebody---

Are you contributing to this amendment?

I am supporting this amendment, Hon. Speaker. However, since you have given me---

Hon. Nyikal, the reason we are trying to dispose of these amendments quickly is so that we can allow Members to debate the Motion as amended.

Hon. Speaker, please assure me that I will get an opportunity to debate the Motion as amended. I do not support the amendment as it is because I would like to move a further amendment, if the Mover agrees. I have seen throughout the debate that there was confusion within the Judiciary and the establishment of this committee threw further problems and marred the distinct functions between the CJ and the Chief Registrar of the Judiciary. This committee was working and the members were commissioners. If we remove this as suggested by the amendment then they go scot-free.

I agree with Hon. Chepkong’a’s statement that the investigation should be limited to the period covered by this Report, but we should investigate what happened with this committee. In my view, it caused more problems than any other issue that has been raised in this Report. It blurred the distinction of roles. Many instructions would have come from this committee that the Chief Registrar of the Judiciary acted on. If they go scot-free then nobody takes responsibility. The members of the committee will not take responsibility, the CJ will not take responsibility and the Chief Registrar of the Judiciary will not take responsibility. So, if the House agrees, we should retain it but further amend it as it is under Recommendation No.20 to be limited to the period covered by the Report. That way, those who have worked outside that period are safe.

Before I give you a chance, Hon. John Mbadi, do you have the Report with you? I know you are a Member of the Committee. Kindly, for clarity and benefit of every Member, read for us Recommendation No.20 before you contribute.

Thank you, Hon. Speaker. Recommendation No.20 reads as follows:- “Members of the Finance and Administration Committee of the Judicial Service Commission should be individually investigated by the Ethics and Anti- Corruption Commission for their roles in some of the financial improprieties and irregularities at the Judicial Service Commission.”

The point I wanted to understand is:

Is Hon. Chepkong’a’s proposal

Yes, Hon. Speaker.

So, rather than just saying individually, the amendment names them specifically?

Yes, Hon. Speaker.

I see. Hon. John Mbadi, you can make your contribution.

Hon. Speaker, consider this amendment critically. By the way, you have gone ahead even to lead us the way I wanted to argue my point. There is no variation apart from attaching the names. Therefore, it makes no difference. I only have one problem. Allow me to say it and then I sit down. I started by saying that I had problems with some specific recommendations because this is a committee decision. When you make recommendations of investigations to an institution like the EACC, you need to be specific. You need to say exactly which areas you want the EACC to investigate with regard to the functions of this sub- committee. It was not illegal because the JSC formed it.

So, the members of the committee did not just cause themselves to be in that committee. They were given specific tasks of approving payments beyond Kshs50 million because of what had transpired. If you are going to hold them responsible individually for doing that notwithstanding the fact that they did that which they had been tasked to do by the JSC, you are being unfair to them. This is especially if you leave the rest of the membership of the JSC without taking responsibility. This is unless, in the process of doing what they were tasked to do, they made a mistake. That now calls for personal culpability. I can tell you for a fact that although I sat in that committee, I have no evidence that was adduced that they went beyond what they were told to do unless I lie, which is unparliamentary.

What is your point of order, Hon. Gumbo?

Hon. Speaker, with all due respect to my good friend, Hon. Mbadi, I want to state that I fully support Hon. Chepkong’a’s proposed amendment. A committee sitting involves calling witnesses who speak on the HANSARD. Some of the witnesses we called, including Mrs. Shollei told us that some of the decisions they took were on account of the work of the Finance Committee. We are simply saying that they have been mentioned. As Parliament, we do not have the capacity to investigate them individually. We are not saying that they are culpable but members of the finance committee should be individually investigated. We are only recommending investigation. Their names were mentioned as having interfered with some processes. If you read even in the observation section of this report, you will find that members of this committee were mentioned many times by the witnesses we called. Because Parliament does not have the capacity to go deep into the individual actions, we said that we would give the body charged with that mandate to do it. So, I persuade my good friend, Hon. Mbadi, to allow this proposed amendment to go through.

Let me wind up, Hon. Speaker. I do not want to argue with the Chairman of my Committee. When you talk of investigations and calling of the EACC, I started by saying that you need to mention those instances. I know that there were very many allegations made by Mrs. Shollei when she appeared before us. That was not supported by any other witness. So, if you just go by the presentation of Mrs. Shollei, you will lose it.

Finally, we are contradicting ourselves in this Report. Why do I say that?

What is your point of order, Hon. Chepkong’a?

Hon. Speaker, Hon. Mbadi is my very good friend but he must be careful when he makes certain assumptions. I would have expected him, as a member of the PAC, to state very clearly the documentation that we were provided with. As you know, our Committee investigated this matter. I feel very pained because documents were presented to us on instances that the members of Finance Committee approved the leasing of Elgon Court and the purchase of the Chief Justice’s house. We have documentation and minutes to prove that. I speak as the Chairman of the Departmental Committee on Justice and Legal Affairs. We should not mislead the House because we have documentation. I can provide that. I do not want us to misstate facts that have already been presented to a Committee. I am making this proposal with a lot of courage, as Hon. Amina knows. She asked me: “Are you sure that you are going to be safe?” I told her that I was going to be very safe because this is money that belongs to Kenyans. It does not belong to those fellows who were given to administer. So, you must be responsible when you administer that money. Let me say this as the Chairman of the Departmental Committee on Justice and Legal Affairs.

If the Report will be taken to the EACC, we must take it with names. We do not want Mr. Halakhe to go and look for other names. We want to be very clear with names which will be taken to the EACC. These are the issues that we blame the EACC for, which is looking for everybody all over the place. We must be clear, as Parliament, so that the EACC is not being blamed every time. I feel pained here when we do not want to be clear.

The CEO, together with the new commissioners need to be very clear on what Parliament wants to be achieved.

Hon. Speaker, the point of order by Hon. Chepkong’a is reinforcing what I am saying. On the issue of Mayfair Court or the Chief Justice’s house, he should mention it. He claims to have evidence, but I am also saying that on the Chief Justice’s house, it is Mrs. Shollei who decided on her own to pay Kshs310 million. There is no evidence to the effect that the JSC approved the amount.

On a point of order, Hon. Speaker.

Hon. Manson Nyamweya what is your point of order?

Hon. Speaker, if you allow me, because I know he is going to say what I want to say---

No! No! He is also a Member of that Committee.

On a point of order, Hon. Speaker. It is not fair for a Member of this Committee to mislead the House. It was the JSC which sanctioned the payment. They held a special meeting. It is in the Report. Therefore, it is not fair for a Member to mislead the House. For one reason or the other, he has either forgotten or he did not attend the meeting. He is coming up with his own ideas. It was very clear that initially they rejected, but finally they approved and called the entire Commission to approve the payment.

Thank you, Hon. Speaker.

Hon. Mbadi, just conclude your submission.

Hon. Speaker, you know when Hon. Nyamweya speaks, you think he is telling the truth in all aspects.

Let me leave it that way. The point is that when you come to the CJ, the JSC---

Hon. Mbadi!

Let me withdraw that.

Hon. Mbadi, you know we are dealing with the issue of these names and not the CJ.

The Chief Justice’s house has come up and I want to avoid it.

Why do you not express your opinion by being explicit?

Hon. Speaker, if you look at Recommendation No.20 and our earlier recommendation, you will find that we are contradicting ourselves. We are blaming the CJ.

So you oppose?

Yes, the CJ together---

No! No! So that we can conclude and Members debate the Motion---

Hon. Speaker, please just allow me to finish. We are the ones who have said that the CJ and the JSC allowed the Chief Registrar to do things the way she wanted. At the same time, when they intervene now through a committee, we again say that they should not have done anything.

Thank you, Hon. Speaker.

Hon. Members, including the Member for Changamwe, you must freeze. Hon. Omar Mwinyi, you cannot just walk as though you are in Changamwe. I know you are the king in Changamwe, but surely, we also have our own rules here.

Hon. Members, everybody is now clear about the proposed amendments. I am sure you can now vote.

Having disposed of the amendment by Hon. Chepkong’a, the proposed amendment by Hon. Irungu Kang’ata becomes superfluous, is it not? This is because it is in the same tenor.

Resolved accordingly:

That this House adopts the Report of the Public Accounts Committee on the Special Audit Report of the Judicial Service Commission and the Judiciary of May 2014, laid on the Table of the on Tuesday, 7th July, 2015, subject to-

Hon. Members, now we can go back to the amended Motion. This now means that the Member for Seme is at liberty to make his contribution. I hope he is ready. Is he ready?

Let me recognise the Member for Seme.

Thank you, Hon. Speaker. Let me start by appreciating the work done by the Chair and his Committee on this. The Report has revealed a severe dysfunction in the department. There is a severe weakness of management and lack of good records. I do not see how you can run an organisation if records are not kept. That is a fiasco. There is poor adherence to procurement procedures and this is done haphazardly. There is also poor human resource management. In summary, you cannot have an organisation if all that is not done.

Having made the recommendations which are fairly broad, there is need to further look into the functioning of the whole judicial system in the country.

Hon. Speaker, the Report further indicates how nearly all the senior officers from the CJ, the Chief Registrar, the Director of Procurement to the Director of Finance showed severe dereliction of duty. I do not know whether it was deliberate. If the procurement and finance departments are not properly run, there will be severe loss of money. There is wastage; that has come out from this Report. We seem to appreciate having the committee in place, although I

doubt whether it is provided for in law. But administratively, a head of an institution can put in place structures that help him in management.

In the case of the Finance Committee, there was confusion because it brought the whole responsibility of the Chief Registrar to all the commissioners sitting in that committee. As Hon. Mbadi said, you cannot blame the committee without blaming the institution that put it in place.

She is not in! The Temporary Deputy Speaker (Hon. Kajwang’) : Yes, the Member for Luanda.

Thank you, Hon. Temporary Deputy Speaker, for giving me the opportunity to speak on this well done Report. It is my desire to congratulate this Committee for a job well done. This is a well-put together Report. It is a sad manifestation of the state of our nation today. This Report is a litany of lamentations of corruption carried out on a large scale in our country although in this case it happened in the amphitheatre of the Judiciary. If you look at this Report, you will wonder whether the Judiciary, being the arbitrator in matters where people are at cross purposes, looks at the law that it uses in this process. The law that is supposed to be followed by the Judiciary in the cases reported here is well stated. If an epic institution such as the JSC in this country cannot obey simple regulations of procurement, then we are in trouble.

Hon. Temporary Deputy Speaker, I have looked at this and we all know what is happening in that amphitheatre of the Judiciary specifically, in the JSC. We know today for a fact that one of the judges who sits in one of the highest courts in this country - the Supreme Court - will go on trial when the President constitutes a tribunal on allegations of corruption. If

you look at the way the JSC is constituted today taking into consideration what the Chairman of the PAC, Hon. (Eng.) Gumbo has stated here today, you will find that the JSC is on trial.

You will be worried if you look at the composition of the JSC. If you also look at the members of the JSC, you will find that some members who appeared in the case and are imbued in these allegations of corruption have been sitting in that Commission. This is the case and yet they stand there today to arbitrate and make decisions regarding their employees. These judges are employees of the JSC. If one of the members of this Commission also appears before this tribunal, courts and the Supreme Court and represents a client and then crosses to sit in the JSC to arbitrate where allegations of corruption have been made with regard to one of the judges, I submit that that is manifestation of conflict of interest. I am surprised that when these matters were being arbitrated before that JSC nobody really told themselves “by my position, the way I have acted in the past, by my appearances for some of the people who may be adversely mentioned as witnesses even before the JSC and the tribunal that might be put in place, then it is proper for me to step aside.” They did not. They appeared on television and pretended to have a saintly mien, that they are good arbitrators of matters in our country. I am worried.

If you are keen, you will find that practising advocates before these courts also purport to act for institutions in which some people who have been mentioned adversely in matters that are appearing before that JSC, an institution they head, are alleged to be key players in this game of corruption. You will also find that they are acting for these institutions.

For a fact, I am not afraid of mentioning that some people who sit in the JSC act for the Nairobi City County. They have acted in such mundane or simple matters but today I am not afraid to report in this House that they have bills in the Judiciary to be arbitrated upon by registrars and magistrates who have been employed by the JSC. These members sit in the JSC and they are employers of these registrars, magistrates and judges whom they appear before. They appear before these magistrates today and pretend saying “your honour I am here and I bow my head”. These magistrates then appear before them the following day and ask them: “Please, can you promote us? Can you look at my case favourably?” Is this not an incestuous situation we are facing? We are faced with monumental problems. We must be very angry as a country at this situation. This is a terrible situation and this Report vindicates my position.

We must act as one nation. We must say no! There must be a point where we must say “Let us stop here. Corruption is going to destroy this country.” The Pope was here and he told us that corruption is a cancer that is going to destroy this country. We sit here, look at this Report and the letters and say that because a certain name looks like it is from my place, it should not be there. That should not be the case in this situation. We must start with this Report by registering our indignation against corruption in this country.

I thank my brother, Hon. Gumbo and his Committee for a superb job. They have clearly set the ball rolling for this House and set the record straight this year. We must put the blame exactly where it belongs. The blame must go where it belongs. The people, who orchestrated and performed this corruption in the highest institution that arbitrates between Kenyans when they disagree, must be held responsible. We must clean the JSC. This is an indictment of the JSC.

I stand here to support this Report in its entirety. One must come out clean, if he is to sit on the JSC. If you are an advocate in this country, then do not practise before those courts. It is not correct and you cannot pretend to appear before somebody over whose head you hold the proverbial Damocles Sword. You can cut this person any time, and yet you pretend and call him

“My Lordship”. Please, if you find that I am improperly before you, you may arbitrate my matter. It is not right.

With those few remarks, I support this Report. The Temporary Deputy Speaker (Hon. Kajwang’): Well spoken from the people of Luanda. You deserved every minute that you got. Let us have the Hon. Member for Kitui Central.

Thank you, Hon. Temporary Deputy Speaker. I must start by appreciating the work of the PAC of this House. If you read this Report and have heard the way it has been presented by the Chairman of the Committee, this House has a responsibility to thank that Committee for the work well done. Hon. Gumbo’s presentation was excellent. He gave us a lot of details and, therefore, I will not focus on the details.

This Report is dated May, 2014. To some extent that worries me because we are in 2016. This was a Special Audit Report initiated by this House. It will be important in future that we slot this as a House Business matter so that such reports are discussed immediately and if there are recommendations, action is taken immediately.

From the Report, it is clear that at that time, the Judiciary did not have any system in place. There was a lot of confusion in the way things were done. With such confusion, any intelligent person who has an intention of engaging in corruption will take advantage of such a scenario.

As representatives of the people, one of the lessons we must learn is that from today onwards, before we allocate any resources to any Government institution, it is important we demand a proper assessment of the systems. This Report clearly states that we allocated the Judiciary Kshs16 billion up from Kshs3 billion. This is almost five times more than we had allocated to them the previous year. It is normal for us as human beings to engage in funny deals when we get a lot of money which we have not worked or planned for. What was happening this time was that the people in charge of the Judiciary were trying to create reasons why they had to spend this money and as a result pocket some. As a way forward, time has come that, as a House, we must demand proper monitoring and evaluation of all Government programmes before we give more money so that at the end of the day we are sure that we are giving money to institutions which have the capacity to implement and utilize all those funds.

The reports by the Controller of Budget - we have said this many times - instead of telling us the financial aspect of it could actually go an extra mile and tell us the outputs of the expenditure. This will enable us compare the outputs and financial expenditure to see whether there is correlation between the two.

In my opinion, we are not going to help Kenyans if we do not do that. It is time the Budget and Appropriation Committee took the area of monitoring and evaluation seriously. I propose that this House should carry the responsibility of ensuring that the directorate that is in charge of monitoring and evaluation in the Executive is properly resourced so that it can give us information that can enable us make the right decisions. This will also ensure that when other Members--- I sit in the budget making Committee, we have data which supports what we are discussing.

The other area that I think is important, and we must take seriously is looking at this Report and the entire procurement process. It worries me, and I must say that the people who sit in the PAC have great hearts. If it were me, I would have collapsed out of stress. If you look at what has happened and the way people are “eating” money left, right and centre, it is like we are

beating a dead donkey, it is very disappointing. Kenyans must be very disappointed when they hear that this House is discussing reports like this.

As we move forward, this Report has captured the issue of irregular payment of allowances. You are paid an allowance, and yet you are not entitled to that allowance. That is why I like the recommendation that states that in such a case, people must take individual responsibility. If it is written that it is Hon. Makali Mulu who was paid that irregular allowance, the Government has no choice but to make sure that the money is refunded. All the three arms of Government must recover that money so that people get value for their money.

Hon. Speaker, any report by the PAC that I have read talks about irregular imprest every year. This is the case and yet there are clear regulations on how imprest should be taken and surrendered. I always wonder, in a situation where people get irregular imprest, what stops the accounting authority from recovering it. People earn salaries and other allowances that can be used to recover that. This is an area, as a House, we need to tighten even if it means changing some regulations. There are loose ends and we need to tighten them so that public money can be safeguarded in future. This means that you can withdraw money from this account, the money is transferred to another account and you withdraw money from another account. This is one of the easiest ways of making sure that money is taken from Government system through corrupt means. It is also not very clear how the Controller and Auditor-General could not pick some of these things that this Report has picked. We are aware that the Controller and Auditor-General had backlog in terms of preparing audit reports in the past. I am happy that we are now discussing this Report and these are timely reports. If they are in arrears, it may be in a year or two. The idea of making sure that audits are done at the end of the financial year and within six or seven months is to help this country. We should stop looking into issues that took place five years ago. We will not achieve much in cases where people retired fives years ago and yet their names are appearing in these reports. Even if we recommend that the money be recovered, you will find that the officers have already been paid their terminal benefits in lump sum and are on pension.

I saw an officer who had misappropriated about Kshs106 million. If the report recommends that we recover the money and the officer has retired, that person will die within the next one year and a dead person cannot repay debts. This country will keep on losing money. It is important that immediately it is found that these officers have misappropriated funds, they are kicked out of public offices and we can recover the money from their assets or whatever money they have in banks. That way, we will be helping this country.

Just to emphasise my point, we need to give special reports first priority so that they are discussed and the country benefits from the recommendations.

With those remarks, thank you very much for giving me the chance. The Temporary Deputy Speaker (Hon. Kajwang'): The Member for Nambale, it seems like you will be the last one on this.

Thank you, Hon. Temporary Deputy Speaker. I rise to contribute and support this Special Report on the Judicial Service Commission (JSC) . I am a Member of the PAC and so, I speak from the fact that I sat through most of the sessions.

The depth and vigour of the Report shows how one arm of the Government that is given the responsibility of oversight can do its work. I am sure that there are very many cases of this nature that do not normally see the light of day or do not get the openness that is implicit in the Report we have before us. This should hold true, whether we are looking at the Parliamentary

Service Commission (PSC) or the Executive. If we do that, Kenyans will progressively gain confidence in the governance system that is before them.

In respect of the Judiciary, it was right and proper for resources for the JSC to be increased. It turned out to be a factor of 500 per cent with the net increase of 400 per cent. That was the right thing to do. That is what the Constitution required. It is the best thing that Kenya ever saw at the time. However, as it turns out, and now this is with the wisdom of hindsight, there was tremendous spending exuberance. There is sort of happiness around spending this money in ways that are touched on, but did not look at the procurement law, for instance.

It may well have been okay had it not been for the fact that in some cases you get the sense that there was personal gain in the decisions that were being made. It was simply a question of getting these structures quickly and perhaps forgetting a step here and a step there. We may still have condemned it, but not with the same weight as we have done in this case. It seems that in the spending decisions, there was an element of potential gain. That is what must be fought vigorously in the Judiciary and in all the three arms of the Government.

It would have been wonderful if this debate was being held in August, 2014, one or two months after the Report was prepared. It is now more than a year-and-a-half. We commented earlier this week about the need for the House Business Committee (HBC) to prioritise urgent reports that have been brought before the House. That is before they are outdated. We make recommendations here that are two or three years old because these things had happened before the Special Report. As much as it is less of history, I know it can still be an input in any follow- up action that might arise in any other institution. It is one year-and-a-half since the Report was presented to the House, and two to three years since the acts were committed.

There are interesting findings in this Report on the Judiciary. JKUATES Ltd. would be one worth mentioning. I mention it for two reasons. One, the JKUATES Ltd. produced a valuer for the Judiciary that looked at the house that was meant for the CJ. Although it was JKUATES Ltd. sending, it was sending somebody affiliated to it and who was not certified to do the valuation. It took the Architectural Association of Kenya (AAK) to say the person sent was not a member in good standing as she did not have the right qualifications. The JKUATES Ltd. had the embarrassing situation of backtracking and saying: “Actually, she was not doing evaluation; we simply asked her to give us an indication of the neighbourhood of price.” That was a very lame excuse. Negotiations then proceeded around the indication she gave in the neighbourhood of price, which is what valuers do. They give you a neighbourhood of price that you can either accept or reject. That was a major mistake on the part of JKUATES Ltd.

Two, the same JKUATES Ltd. acted as if they had a firm that could bid. Actually, it is simply lecturers who have organised themselves and are using the university name. However, it is not being taken up by line architects who are all members of staff of the JKUATES Ltd. Again, JKUATES Ltd. was fronting itself to help the lecturers, under a line architect, to avoid competition in bidding so that it is considered a government to government transaction when it is just a bunch of perhaps well qualified people who do not want to go through the procurement procedure specified in law.

These occurrences have shaken the very foundation of the Judiciary in many ways. You do not get a sense of responsible action. However, my prayer is this: It must not be a situation where sharks see the blood in water. This must also be an occasion when we want to involve everybody we may have wanted but we had no way of doing it. In all fairness, everybody must get his or her share of consideration; that is from the top to the bottom. There may have been

other areas that we have reason to disagree with one of the officers in the Judiciary, but this cannot be the occasion. It is time for us to deal with the issues that have been raised. The issues are many and heavy. However, it must only be within the issues that have been raised. We have other occasions in which we shall pick up other aspects that are related to the Judiciary. We have an opportunity to do these things.

I hope that the anger that has been expressed by various speakers is not just about the issues that have been exposed. They should spare some anger for the future. In the event no action is taken, they should be very angry. Otherwise, they will only be angry about what has passed and time is a healer. After some time, naturally you heal and you are no longer angry. I am talking about anger for the future so that actions like these are not taken to help fix the Judiciary and alert others that, that is not the way to go because it can fundamentally affect their position and life.

I am glad with the amendments that have been proposed. They are all decent. I could see the bipartisan spirit in the House, the spirit of give and take. Members have considered the amendments that hit one side or the other. That is depending on the support systems in the House, but they have gallantly gone through them and cleaned them.

The Report speaks a lot for itself and it can stand on its own. It is a job well done by the people who spent all the time putting it together. I strongly support the Report.

Thank you,

The Member for Kajiado North and the Member for Kimilili, it has been a very live and vibrant debate this afternoon, but I think you will have an opportunity on Tuesday when we resume. That is when you will be fresh and your points will be heard in a more sober manner.