February 16, 2017 SENATE DEBATES Thursday, 16th February, 2017

Sen. Omondi had a notice of Motion to issue. Although we have already passed that Order on the Order Paper, I am indulging her if she is ready.

Mr. Deputy Speaker, Sir, kindly give me time.

Sen. Omondi, I will go back to Notices of Motion and allow you to issue your Notice of Motion.

On a point of order, Mr. Deputy Speaker, Sir. I would like you to clarify because I thought that the Standing Order that has allowed you to accommodate Sen. Omondi, only allows you to vary the Order Paper and not to go back on an order that has already been read.

Order, Sen. (Dr.) Khalwale! There is nothing to stop me from doing that. The same way I can vary the Order Paper, I indulge a Senator. Your thought was wrong.

Mr. Deputy Speaker, Sir, you need to give a ruling on this issue. It is my concern.

Order, Sen. (Dr.) Khalwale! You are in the House a lot of times and you are aware that I vary the Order Paper. We sometimes drop an order on the Order Paper and sometimes we re-arrange the Order Paper so that it

the Notice of Motion just because she was a few minutes late.

I have used my discretion in allowing her to proceed. I hope, Sen. (Dr.) Khalwale, we are reading from the same script.

Proceed, Sen. Omondi.

Mr. Deputy Speaker, Sir, I beg togive notice of the following Motion:-

AWARE that about 15% of the Kenyan population are persons living with disabilities; APPRECIATING that the Government has taken several measures to avail certain privileges through the National Council for Persons with Disabilities to registered persons living with disabilities; NOTING that the National Hospital Insurance Fund (NHIF) is a contributory health insurance cover and the remittance of contributions for persons living with disabilities by government for the cover, is not among the privileges extended to persons living with disabilities; COGNISANT that most persons living with disabilities have difficulties engaging in gainful income generating activities that would enable them pay the contributions to NHIF, hence are without any medical cover; FURTHER CONCERNED that many persons with disabilities are unable to access medical services leading to high mortality rate; NOW THEREFORE, the Senate recommends to the National Government to put in place the following measures through the Ministries of Health and East African Community, Labour and Social Protection-

Mr. Deputy Speaker, Sir, I rise under Standing Order No.39 (2) to clarify the ruling which you have given in view of the provisions of 39 (20 which states that:-

“Business shall be disposed of in the sequence in which it appears in the Order Paper or insuch other sequence as the Speaker may, for the convenience of the Senate, direct.”

I would like you to give this clarification because to my reading, the sequence to which you are expected to direct is to allow for flow of business. I would like you to clarify whether this means that once you have disposed of an order, it would be revisited?

disposed?

Order No. 39 (1) gives the sequence of business of the House. However, Standing Order No.39 (2) says;

“Business shall be disposed of in the sequence in which it appears in the Order Paper or in such other sequence as the Speaker may, for the convenience of the Senate, direct.”

I have directed that the sequence be such that Sen. Omondi gives a notice of motion. The matter is spent because she has already done. Actually, I am also going to revisit some other orders. There were papers to be laid and Sen. Nabwala was not ready. If she is ready now, I will allow her to lay the papers. Sen. (Dr.) Zani also had a Statement to seek but did not do so as it was awaiting approval in the Clerk’s Office and has since been approved.

I personally feel that these rules are made for the convenience of the house. If it is not convenient for you or for any other Senator, I do not see why we cannot do it in such a way that it is convenient to all of us. It is therefore a question of convenience. It cannot be a stringent rule which inconveniences everybody just because an order has been dealt with. That is why Standing Order No.39 (2) talks about the convenience of the House, as the Speaker may deem fit. I am deeming it fit to do it that way for the convenience of the House.

I reckon that if I had disposed of the matter and said it is done away with and cannot be revisited, I cannot recall it. However, I had not disposed of any of those matters if I can recall clearly. I believe that clarifies the issue for you, Sen. (Dr.) Khalwale. Standing Orders are referred as such so that they can make work in the House flow in a manner that is convenient to everybody. Standing Orders cannot be made to inconvenience people.

Sen. Omondi is seated here and she took time to draw a Notice of Motion. Although she is a few minutes, I did not find it inconvenient to ask her to give the notice of Motion. I do not think that you have been inconvenienced.

Mr. Deputy Speaker, Sir, I thank you for that clarification. However, the tradition has been as follows; when the Speaker deems it necessary to vary the sequence as it appears on the Order Paper, the Speaker normally directs from that Chair for example “Order No.4 on the Order Paper shall be stayed until some other time.” In traditional practice of this House, you do not allow that Order to start then stop it in the middle to accommodate somebody.

Let me give you an example of a solemn moment like administration of oath. If there are three people to take oath, you cannot administer the oath to two people and then say that the other one will take oath later in the evening. You need to be clear.

I can do that but it would be inconvenient to the House if I made such an unreasonable ruling such as stopping an oath in the middle. However, in this case, we had already finished with Order No.8 and that is when I went back to the Order on Notice of Motion.

Traditionally when you do not give a notice of Motion when it is on the Order Paper, it is dropped. However, at my discretion, I can rule that it should not be dropped. It should be given because the person to give the Notice of Motion is in the House.

you do not look to me like you are inconvenienced at all by what I have done. It is convenient to Sen. Omondi and the House. I am going to go back to the Communication from the Chair because I choose to give it when there are more people in the House. That way, it would make much more sense to give the communication that I have. I hope that you shall not say that I am acting against the Standing Orders.

Let us proceed.

Mr. Deputy Speaker, Sir, I beg to lay the following paper on the table of the Senate today, Thursday 16thFebruary, 2017.

The Second Edition of the Handbook for Parliamentarians on International Humanitarian Law co-published by the Inter – Parliamentary Union (IPU) and the International Committee of the Red Cross (ICRC)

Mr. Deputy Speaker, Sir, I rise pursuant to Standing Order No.45 (2) (b) to seek a Statement from the Chairperson of the Standing Committee on Education regarding the ongoing strike of lecturers of public universities. In the Statement, the Chairperson should;

Chairperson of the Committee, Sen. Karaba.

Mr. Deputy Speaker, Sir, we will issue that statement in two weeks time.

Sen. (Dr.) Zani, is two weeks okay with you?

That is fine.

February 16, 2017 SENATE DEBATES DISPOSAL OF THE CONSTITUTION OF KENYA (AMENDMENT) BILL, SENATE BILL NO.16 OF 2015

Hon. Senators, I have a short communication to give on the disposal of the Constitution of Kenya (Amendment) Bill, Senate Bill No.16 of 2015. I believe that is the Bill by Sen. Sijeny. I hope she is listening because I do not want to come back to it.

Hon. Senators, you will recall that on 28th December, 2016, during the Special Sitting of the Senate, this House voted on the Constitution of Kenya (Amendment) Bill, Senate Bill No.16 of 2015 by Sen. Sijeny, popularly known as the two-thirds gender Bill.

Article 256 (1) (d) provides that a Bill to amend the Constitution shall be passed by Parliament when each House of Parliament has passed the Bill in both its second and third readings by not less than two-thirds of all Members of that House. This then means that for the Bill by Sen. Sijeny to pass at Second Reading, it must be supported by at least 45 Senators.

As you recall, the result of the division held on 28th December, 2016 was as follows: Ayes - 37, Noes - 6 and Abstentions - 3. From the result of the division, it was clear that the Bill did not attain the required threshold for it to pass Second Reading.

Hon. Senators, Standing Order No.63 provides as follows and I quote:- “ (1) In every instance where the Constitution lays down that a fixed number of Senators is necessary to support the moving of, or to decide any question on a Motion, any amendment Motion to such Motion shall not be passed unless supported by the fixed number of Senators required to pass the original Motion.

Mr. Deputy Speaker, Sir, this is a very important Bill for the women folk and in future the men folk. This means that in future, when a time will

represented.

What has separated this House between the “Ayes” and the “Noes” is a simple matter. Would it be within your power to allow the Mover, since she is the owner of the Bill, to address that little concern so as to attempt to move it in an amended form?

Sen. (Dr.) Khalwale, I do not understand where you are coming from. My communication was so clear and to the point. I do not know what else you want me to clarify on it. 22nd February, 2017 is the last day on which the matter can be voted upon. If you look at the Order Paper today, at No.10, it is coming for division. Today is the third day. So, there is nothing else to be done on this issue except to go to division and that is it.

Mr. Deputy Speaker, Sir, Sir, I was saying, considering the importance of this Bill---

Every Bill that comes to the House is important. It is listed for division. You know well that we have not opened division to mean debate. Division in normal parlance means vote.

Are you quoting a particular Standing Order, Sen. (Dr.) Khalwale?

Exactly, Mr. Deputy Speaker, Sir. I was wondering; if you cannot move under Standing Order No.1 so that you allow this. We are under a lot of pressure from our women voters that we fight for them to get the two-thirds gender representation. It is just disturbing me. Could the Speaker go out of his way, use Standing Order No.1 so that you allow, just before that division---

Could you quote for me what Standing Order No.1 says?

Standing Order No.1, which is on page one says:- “In all cases where matters are not expressly provided for by these Standing Orders or by other Orders of the Senate, any procedural question shall be decided by the Speaker.”

What is not provided for?

What is not provided for is that for the first time, the Senator for Kakamega County is asking: That a Bill is at the division stage, it is not provided for that you can allow the Mover to make a small amendment.

Amendment to what?

To the Bill. You remember our contribution---

I am sure you aware that you cannot amend a constitutional Bill in the first instance. That is the simplest thing that one needs to know.

Sen. Mutula Kilonzo Jnr.

Mr. Deputy Speaker, Sir, owing to the threshold required by the Constitution for passing such a Bill and in view of what appears to be lack of quorum in the Senate, I thought that you would issue a further directive, like was done when we had a special sitting and the seats were full, so that this Bill does not become still born.

Similarly, at that particular time, I had requested the Speaker to list the constitutional amendment Bill on Article 204, the Equalization Fund. For some strange

happening in violation of the Constitution as we watch yet we debated that Bill.

Sen. Mutula Kilonzo Jnr. could you, please, address us to the communication I gave, not other matters?

But is an important issue.

Since you are standing on a point of order, I want us to deal with specifics.

Mr. Deputy Speaker, Sir, you could deal with the first proposal that I have made. You have made a Communication from the Chair. The question is whether that Communication is sufficient for purposes of what we want to do on Wednesday, next week.

Senator, you mean for people to come?

Yes, for the Senators to be present.

That is the main purpose of the Communication because the time ends on 22nd February, 2017. I am sure messages will go out from the Whips to request the Senators to be here because that is the last chance that, that Bill will be getting.

Mr. Deputy Speaker, Sir, I also wanted to speak along the same lines so that, if possible, we do some whipping.

I also wish to seek for the indulgence of this House that even that clause that is in contention; that we look at it in terms of our understanding because we debated it in a different way. In between, if we can find a way whether we can meet as Senators, at a Kamkunji, so that we have a consensus about this; then we come back here to vote, we do so in a united manner.

Secondly, to avoid a constitutional crisis in the 12th Parliament because the law states that for the House to be constitutional, one-third of the representation should be women---. If we do not do this, the arrangement will not have been put in place. This is what this Bill seeks to do. This is critical.

I have just come from another meeting where all eyes are on the Senate. The Senate can save this country from that constitutional crisis.

Sen. Nabwala, are you on a point of order?

Mr. Deputy Speaker, Sir, I want to contribute to your communication.

There is nothing to contribute. There is no debate.

Mr. Deputy Speaker, Sir, on your communication.

Then press the intervention button. Yes, Sen. (Dr.) Khalwale?

Mr. Speaker, Sir, thank you for accommodating me. I am just disturbed. When you made that important communication, you drew the attention of the whole House. What Sen. Mutula Kilonzo Jnr., is doing is drawing the attention of the Chair that this is not the only constitutional Bill that begs for attention, and is therefore

Equalization Bill, equally important is pending.

Mr. Deputy Speaker, Sir, it is very important because Jubilee is busy distributing that money and it is completely against the Constitution.

Order Sen. (Dr.) Khalwale.

On a point of order, Mr. Deputy Speaker, Sir. I also want to concur with your communication that this is a very important Bill as it touches on the Constitution. As we speak, Parliament is not properly constituted and the whole country is looking at the Senate to see what we are going to say about the two thirds gender parity.

At the IPU where Sen. Mutula Kilonzo and I sit, we know that the two thirds gender rule is closely followed and our President also attends those meetings in New York. It is high time we looked at this Bill critically so that the affirmative action for the two thirds gender principle is put in place.

Sen. Sijeny, do you want to raise a point of order?

Mr. Deputy Speaker, Sir, I want to make a contribution.

Like I said, there is no debate before the House.

Mr. Deputy Speaker, Sir, I want to make further information. I beg to be guided. It is the language of the Senate. I am used to the language of the court.

Mr. Deputy Speaker, Sir, I wish to thank you for the communication and wish to further inform my colleagues that as the sponsor of this Bill, I have tried, together with other stakeholders, to engage everybody and consult widely. Consultation is never closed and I thank the Speaker who has given me and the women of this country another chance to pass this Bill and correct the constitutional situation.

I wish to inform Sen. (Dr.) Khalwale and any other person who may have an issue that we will convene a meeting on Tuesday at 12.00 p.m. - the venue will be circulated later - so that we can go and discuss and agree on a way forward so that when we come back in the afternoon, we do not have any further pending issues. I urge all the Senators to attend so that we can move forward so that we stop going round the same issues.

We are aware that Sen. Sijeny understands how far this issue has come from to get to where it is now and that we are strictly following the Standing Orders. I would like Sen. (Dr.) Khalwale to examine that Standing Order properly because we are in the process of amending our Standing Orders before the end of the term. You remember there is a Motion to reduce the time and therefore, this would be the time to help us change the Standing Orders and not from the place you are sitting.

Sen. Okong’o, do you still want to talk on this issue?

Thank you Mr. Deputy Speaker, Sir, for your communication. Mine is to tell the political class in this country that they can cure this anomaly through a constitutional amendment if they truly believe in democracy. Political parties can comply with what we have not passed which is universally accepted. For example---

Sen. Okong’o, you are debating. You had a chance to debate when the matter came up for debate and now I have made a communication and I am not going to allow debate.

Thank you, Mr. Deputy Speaker, Sir.

Sen. Hassan, do you have a point of order?

Mr. Deputy Speaker, Sir, the issues of concern that I had were dispensed by you through Sen. (Dr.) Khalwale’s intervention. There was no clarity as to whether there could be amendments to the Bill or not because Sen. Orengo on that particular day said that we could amend whereas Sen. Wako said that we could not amend anything. However, you have ruled on the matter. It is not true to say what Sen. Sijeny is saying that you can cure anything that is before Parliament through an informal process as the way forward. It is either you come here and vote “yes” or “no”.

The cure would have been found at that point when certain input was being made and certain issues were said. I literally spoke to everybody who voted against this Bill and the whole idea was not the question of gender parity in Parliament but those concerns. Most of those who voted against it told me that they did it as a political consequence or discourse knowing very well that some of the issues we had raised even informally were not taken into consideration.

Most likely, the House is going to pass this Bill but I think in future as you amend the Standing Orders, we must allow some ventilation of constitutional Bills at whatever stage. They need to be cured so as to give us a perfect Constitution.

I have a short communication to make.

Hon. Senators, I would like to appreciate the presence in the Public Gallery this afternoon of visiting students from Nginda Girls’ Secondary School, Murang’a County.

In our usual way of receiving our visitors to Parliament, I extend a warm welcome to them and on behalf of the Senate, and on my own behalf as the Senator for Murang’a County, wish them a fruitful visit.

Hon. Senators, this is a school from Murang’a County . It is one of the oldest schools in the county and it is a school that is performing very well. I am proud to welcome them to the Public Gallery of our Senate.

Thank you.

Thank you very much Mr. Deputy Speaker, Sir, for allowing me to join you in recognizing Nginda Girls in the presence of this House. Nginda Girls is

in Murang’a or the former Central Province, but the entire country.

I join you in welcoming them to the Senate and hope that the same sentiments will be taken back to the other girls who are in school. Let them learn from what they will see and take it home.

I wish them good luck.

You did not tell the girls that you are the Chairman of the Committee on Education of the Senate.

I am the Chairman by virtue of the first preference given by the Speaker. I am the Chairman of the Committee on Education in the Senate.

Mr. Deputy Speaker, Sir, let me also join you in welcoming the girls from Nginda Girls High School. When I walked in and saw all those girls up there, I felt very happy. I just want to motivate you, even as you go on with your education; education is the key. The future is bright. You will get to where you need to be.

I also urge you to take up political and administrative leadership positions. This is what we are all fighting for so that the women of Kenya can be heard – that they can articulate the issues that the women of Kenya need to hear. You can be true to your world. I would like you to focus on your education. I wish you all the very best in all that you do. In the next few years you will be heading to the universities. Choose wisely what you want to do. Always make the right decisions for yourself and for this country.

Mr. Deputy Speaker, Sir, I join you in welcoming the visiting school. I am also proud to see girls whom we trust will be where we are in future and be good leaders. It reminds me of those days when I was in primary school. We used to have debates. I did not know where it would lead me to. I thank God that I now understand that whatever we do in school leads us somewhere. I want to urge girls not to shy away from debates in school. That is a learning process that will help them to be good debaters in future when they join politics.

I congratulate them for visiting us and learning what happens in this House. With those remarks, I welcome them.

Mr. Deputy Speaker, Sir, I also join you in welcoming the school from your county. We are very proud to see girls who are focused. In last year’s examination results, girls took top positions. Out of 20 top students, 16 were girls. We are very proud that the equation is being changed. As we talk about the two thirds gender principle, in another five years, it will be the men who will be crying to have that two thirds gender principle in place.

So, I encourage you to work hard, stay focused and know that the sky is the limit. I thank you. You are most welcome.

Mr. Deputy Speaker, Sir, first and foremost, I would like to tell them that we have an extraordinary Senator the Murang’a people have brought to this House. So, take that information back home. Tell them that we have a very good Senator; firm but very reasonable when called to be. He has added a lot of flavour to this Senate.

Secondly, I would like to tell you something as young women because as male leaders, we must speak to it. You must fight cultural stereotypes even at the very core of how you are brought up.

our homesteads. You do not tell the boy child to go out and play when the girl child is cooking and washing dishes. If they have to wash dishes, they all have to wash them together. Therefore, equality must be promoted. We are not training or giving you an education to become anybody’s cook or to wash anybody’s clothes. If a man wants to cook and he is looking for a cook, he should get himself a microwave, not a wife.

Therefore, as you continue, equality would be best exercised by you fighting cultural stereotypes and societal norms so that you become equal to everybody because you are equal to the task.

Thank you very much Sen. Omar for your kind words.

Sen. (Dr.) Khalwale, what point of order do you have?

On a point of order, Mr. Deputy Speaker, Sir. Is the Senator for Mombasa; 001, in order to misadvise our daughters that when they get married, they are getting married to cook and that they should avoid marriage, if her husband wants somebody to cook for him, he should buy a microwave?

Mr. Deputy Speaker, Sir, in traditional African culture, wives are also referred to as cooks!

Order! Sen. (Dr.) Khalwale, that is a matter of argument. You are out of order.

Mr. Deputy Speaker, I also wish to join you and my colleagues in congratulating Nginda Girls High School. They have performed very well. I urge that this school which has been doing very well be part of the continuing process of reform in education where we are concerned with matters of integrity, especially handling of examinations in this country. This is a leading school. I encourage that it continues to work hard and within the new reformed way of handling examinations. That is being open, transparent and maintaining the quality of certificates in this country.

So, I encourage them to work as well as they have been doing. I am sure they can excel when they perform and progress within the conditions that are provided, particularly regarding to the examinations in this country.

Otherwise, I wish them well and welcome them to the Senate.

Sen. Mutula Kilonzo Jnr., did you want the Floor? Okay, be the last one.

Mr. Deputy Speaker, Sir, I requested for the Floor because while we thank the students for coming to the Senate and encourage them to do well, we all forget the teachers who are working very hard. The teachers of this country are not appreciated. I am standing up to appreciate the teachers who are teaching these children on the best way to live and continue to demand that teachers must be treated well just like doctors.

Thank you. That brings us to the end of that Communication.

Senate. Thank you.

Next order!

We do not have the numbers and I cannot see the whips here. So, we have to stand it down.

Next order!

Sen. Murkomen who was supposed to move the Bill is not here. So, we will stand it down. Next Order!

Section 8(1) of the Public Appointments (Parliamentary Approval) Act, 2011 and Senate Standing Order 65, the Senate adopts the Report of the Joint Sitting of the Senate Standing Committee on Land and Natural Resources and the National Assembly Departmental Committee on Environment and Natural Resources on the vetting of nominees for appointment to the National Climate Change Council, laid on the Table of the Senate on Wednesday, December 28, 2016 and approves the recommendations of the Committees as follows:-

We will also stand down Order No.12

- THAT, the National Assembly Amendments to the County Assembly Services Bill (Senate Bill No.27 of 2014) be now considered. Mr. Deputy Speaker, Sir, this Motion seeks to allow this House to consider the proposed amendments to the County Assembly Services Bill (Senate Bill No.27 of 2014) . This House considered a Bill by the Committee on Legal Affairs and Human Rights on County Assembly Services. This House approved that Bill and it was forwarded to the National Assembly which considered the Bill and made one particular proposed amendment. As a House, we have no objection to the amendment by the National Assembly. The intention of the amendment is to preserve the status quo of County Assembly Services Boards (CASB) as they are currently constituted and ensure that the proposed Bill when it comes to law is only operational with the next county assemblies. This is important because we do not want to create a crisis within county assemblies as at now.

Mr. Deputy Speaker, Sir, we know that we have very few months to the end of the terms of the various 47 county assemblies. Therefore, we should ensure that we preserve

applicable to county assemblies in the next term.

Therefore, as a procedural Motion, this Motion seeks to allow the House to go to the Committee of the Whole on this particular County Assembly Services Bill so that we effect and approve those changes that were proposed by the National Assembly.

Mr. Deputy Speaker, Sir, I do not intent to take much more time than that, save to appreciate the National Assembly. It is only that this very cordial working relationship with the National Assembly is coming a bit too late in the day. This is what we should have been doing every other time. This is how a bicameral Parliament should work where when a House agrees with a proposal from the other House, we should look at merit.

We have had several situations where we have had Motions and Bills forwarded to the National Assembly and the only point of rejection of those Bills has been on the basis that they originated from the Senate. It is important that Members of both Houses appreciate the role of each of the Houses and ensure that each and every deliberation that they engage is based on the merit and the contents of the Bill.

That is why I will urge the Senate to approve this Motion so that we get back to the Committee of the Whole on this particular Bill, so that we approve this amendment by the National Assembly, which makes sense. We should have no objection so that we conclude on this particular Bill and have it assented to by the President, way ahead of the end of the term of the current assemblies, so that when the new county assemblies come into place, already there will be a proper legal framework to constitute the CASBs.

Mr. Deputy Speaker, Sir, with those few remarks, I wish to request Sen. Hassan to second this Motion. I thank you.

Mr. Deputy Speaker, Sir, I second.

Hon. Senators, since there is nobody interested in debate, I will now put the question.

Next Order!

February 16, 2017 SENATE DEBATES (SENATE BILL NO.27 OF 2014)

On a point of order, Mr. Temporary Chairman, Sir. Did you notice that when all Members stood up, the Serjeant-at-Arms have failed to train the visitors in the Gallery to stand up. They remained seated when the entire House was standing up. What action by way of sanctions will the House take against the Serjeant-at- Arms for not preparing visitors properly when they are in the Chamber?

The Temporary Chairperson (Sen. Mositet) : Sen. (Dr.) Khalwale, I did not notice that. If that happened, then the Serjeant-at-Arms need to explain why they did not make the visitors or those in the Gallery be aware that they were meant to stand. That will be looked upon and the necessary action taken.

Hon. Senators, we are considering the County Assembly Services Bill (Senate Bill No.27 of 2014) . The amendments are in the Order Paper and we will go straight to Clause 48. Clause 48

- THAT, Clause 48 is amended in sub – clause (2) by deleting the expression “12 (3) (d) ” wherever it appears and substituting therefor the expression “12 (3) (b) , (c) and

Mr. Temporary Chairman, Sir, pursuant to Standing Order No.139, I beg to move that the Committee reports progress on its consideration of the National

- THAT, Clause 48 is amended in sub – clause (2) by deleting the expression “12 (3) (d) ” wherever it appears and substituting therefor the expression “12 (3) (b) , (c) and

Mr. Temporary Chairman, Sir, pursuant to Standing Order No.139, I beg to move that the Committee reports progress on its consideration of the National

No.27 of 2014) and seek leave to sit again tomorrow.The Temporary Chairperson (

Mr. Temporary Speaker, Sir, I beg to report that the Committee of the Whole has considered the National Assembly amendment to Clause 48 of the County Assembly Services Bill (Senate Bill No.27 of 2014) and seeks leave to sit again tomorrow.

Let us move on to the next Order.

Mr. Temporary Speaker, Sir, I beg to report that the Committee of the Whole has considered the National Assembly amendment to Clause 48 of the County Assembly Services Bill (Senate Bill No.27 of 2014) and seeks leave to sit again tomorrow.

Mr. Temporary Speaker, Sir, I beg to move that the House do agree with the Committee in the said Report.

Sen. (Dr.) Khalwale seconded.

Let us move on to the next Order.

Let us move on to the next Order.

February 16, 2017 SENATE DEBATES IN THE COMMITTEE

Mr. Temporary Speaker, Sir, my Bill; The Preservation of Human Dignity had already gone through the Committee of the Whole and was now at the Division and Third Reading. In fact, all the time it appeared for Division up to this point. The Temporary Chairperson (

Sen. Hassan, we are in the Committee of the Whole and you can only raise that when the Speaker will be in the Chair. We are now on Order No.19, the County Statutory Instruments Bill (Senate Bill No.10 of 2015) Clauses 3 and 4 (Question that Clause 3 and 4 be part of the Bill proposed) The Temporary Chairperson (

The Division will be at the end. Clause 5

Mr. Chairperson, Sir, pursuant to Standing Order No.139 I beg to move that the Committee do report to the Senate its consideration of the County Statutory Instruments Bill (Senate Bill No.10 of 2015) and seek leave to sit again tomorrow.

Mr. Temporary Speaker, Sir, I beg to report progress that the Committee of the Whole has considered the County Statutory Instruments Bill (Senate Bill No.10 of 2015) and seeks leave to sit again tomorrow.

Mr. Temporary Speaker, Sir, I beg to move that the House do agree with the Committee on the said report.

I request Sen. Leshore to second. Sen. Leshore seconded

THAT, the Bill be amended by deleting Clause 15 and substituting thereof the following new clause- Notice to the Regulation Making authority

Next order. What is your point of order, Sen. Sang?

Mr. Chairperson, Sir, pursuant to Standing Order No.139 I beg to move that the Committee do report to the Senate its consideration of the County Statutory Instruments Bill (Senate Bill No.10 of 2015) and seek leave to sit again tomorrow.

On a point of order, Mr. Temporary Speaker, Sir. I join Sen. Sang to register my disappointment. We have a lot to do. The days that are remaining to the end of the 11th Parliament make me feel uncomfortable. I request the leadership under your Chair to give us guidance. As Sen. Sang has said, we must take responsibility. This

Mr. Temporary Speaker, Sir, I beg to move that the House do agree with the Committee on the said report.

I request Sen. Leshore to second. Sen. Leshore seconded

On a point of order, Mr. Temporary Speaker, Sir. What the distinguished Senator for Nandi supported by nominated Senator from Kakamega has raised is very critical.

Mr. Temporary Speaker, Sir, allow me on behalf of the Chairman of the CPAIC to report that we have made a lot of progress to the extent that we have concluded receiving evidence for all the counties for the Financial Year 2013/2014, except the Embu and Kakamega counties. As far as this Senate is concerned, there is no governor in Embu County. It is a matter that has required interpretation. That is why we could not receive evidence from Gov. Wambora who had been removed by this Senate.

In the case of Kakamega County, it is because the governor for Kakamega, Gov. Ambetsa Oparanya is still seeking refuge in the High Court with injunction upon injunction. In fact, we are retreating with effect from this evening to adopt the reports which we finished writing two weeks ago. We hope that next week, we will start tabling the reports for debate.

Mr. Temporary Speaker, Sir, I rise to support Sen. Sang. Before I do that, I have to raise a violation of the rules of this House. Today is Thursday, the last day of the week. One of the things that are supposed to be done before we adjourn, which we are about to, is a statement to be issued by the Senate Majority Leader on business of the Senate. So, the majority side of this House has abdicated as they have done since 2013. They are not in the House and that means we have no

On a point of order, Mr. Temporary Speaker, Sir. I join Sen. Sang to register my disappointment. We have a lot to do. The days that are remaining to the end of the 11th Parliament make me feel uncomfortable. I request the leadership under your Chair to give us guidance. As Sen. Sang has said, we must take responsibility. This

On a point of order, Mr. Temporary Speaker, Sir. With your permission, I am rising to reiterate the issue of our Bills lying on the shelves in the National Assembly. There is something wrong with the leadership of this House right from the Speaker up to the least endowed position in the leadership of this House.

Let me give you an example of one annoying Bill. The distinguished for Meru, Sen. Murungi, brought here an amendment Bill to amend the Parliamentary Service Commission Act so that it could give force of law to the Oversight Fund of this Senate. The Bill went to the National Assembly and it is sitting on the shelves. When the leadership of this House found that that Bill was being sat on, they approached Sen. Murungi who looked for another route through the Rules and Regulations. What was easier was for Speaker Ethuro to sit with the leadership of the National Assembly and demand that that business be dispensed with or accept defeat and have a new process of Rules and Regulations started.

We are literally begging for that fund when we could have amended the Parliamentary Service Commission Act to give it substantive force instead of hiding in some little things called Rules and Regulations.

Mr. Temporary Speaker, Sir, there is something wrong with this House and my regret is that Sen. Sang who has distinguished himself in four short years to be a major legislator will be going to serve as the governor of Nandi. Otherwise, I would have preferred him to be here as Senator when I am serving as governor in Kakamega so that he oversights me.

Mr. Temporary Speaker, Sir, the issue about Bills being approved here and lying on the shelves in the National Assembly is very serious. In the Committee on Legal Affairs and Human Rights, Sen. Mutula Kilonzo Jnr. and I worked on a Bill on the County Attorney. Right now, there are messes in the counties. Very serious legal blunders by governors would have been avoided if we had qualified county attorneys to advise them.

Our counties are making serious financial commitments in blatant disregard to the Public Finance Management (PFM) Act. We are witnessing County Executive Committee (CEC) members or governors sponsoring candidates for various positions using county funds. There are very obvious messes in the counties that would have been

Mr. Temporary Speaker, I also rise to support what my colleagues Sen. Sang and Sen. (Dr.) Khalwale have raised regarding the business of the House. I hope the Senate Business Committee (SBC) that directs business of this House is noting what is happening this afternoon in the House. That, at 4.00 p.m. we have no further business on the Order Paper. I am not saying that Senators have no role to play in this business because you can see the numbers in the House as well. It requires all of us, led by the SBC that schedules the business of the House to be serious about the business of the House.

Mr. Temporary Speaker, Sir, whereas I commend the Chair of the County Public Accounts and Investments Committee (CPAIC) for having looked at the accounts of 2013/2014, I must say that is not good enough. These are issues to do with finances in the counties and this is one of the committees that must be ahead of time and should be concluding 2014/2015 accounts, so that we can hold accountable governors who have been exploiting and misusing funds for counties in good time. Currently, they must be all smiling with the loot that they have taken.

They are now financing their campaigns and misleading the public using those funds yet they have not been called to account. The CPAIC needs to speed up reports and present them to this House so that we make our input.

Mr. Temporary Speaker, Sir, I thank you.

been lying in the National Assembly for almost one and a half years.

Mr. Temporary Speaker, Sir, we know for a fact and this is provided by the law that once our terms comes to an end, all the 21 Bills and the man and woman hours that went into creating them will be wasted because those Bills will be dead. It is really unfortunate that this House took its time to generate, debate, improve and ensure that we approve those Bills and right now they are lying in the National Assembly.

That is a tragedy upon the Senate. Our colleagues who are looking forward to come back to this House should ask themselves where they will get the motivation to generate more Bills if they have all those Bills lying on the shelves of the National Assembly. These are difficult issues.

have business for the following week.

Secondly, last week, Members of the National Assembly retreated to discuss how they will cover the work that is pending before the House. Why has the SBC of this Senate not thought it wise to have a similar session to discuss what is pending and how fast we can dispose it? What is even worse is that it is now apparent from the timelines that the 21 Bills pending in the National Assembly will not come to the Senate.

Mr. Temporary Speaker, Sir, it is a tragedy because we cannot justify why we have been here for four years and the country is watching us. Where is the leadership of the Senate? For how long are we going to violate our own rules? For how long are we going to sabotage ourselves? This is the only institution in this country that does not protect itself, sabotages itself, votes against itself, calls for a special sitting and votes against its own jurisdiction, votes for Bills that will assist it and does not have business for the following week. It is a shame!

business. The Rules and Business Committee should have met earlier so that when we come here we continue with the business.

Mr. Temporary Speaker, Sir, what has been said is true; we just have about three months to transact serious business. By 13th April, 2017 when most of our major parties will nominate officials in various positions, in this House there might be no one. Very few Senators will be coming here to discuss any issue. If we have 21 Bills, including mine on ECDs, which has been discussed for the last two or three years and it has not been assented to by the President, we are wasting time. Why should we be here, discuss Bills, take them to the National Assembly and they are never brought here? Does that mean all that is wasted time? That is not proper. Let there be a ruling that some time will be taken up by Bills so that they are allowed to take the maximum time that there is for them to be discussed by both Houses.

Secondly, we have governors who are aware that by April or May they might not be nominated by various parties. What do you think they are doing now? They are spending all the money for development purposes such that they entrench themselves and are seen like the prime movers in the counties. In absence of anything else we have done here for us to reprimand or prosecute against the evidence given by the Auditor-General, we will be seen like we are not doing anything. We are just shadow boxing. Why can we not be seen like we have teeth to bite?

Let me direct the chairpersons of the committees and the respective committees to take their work seriously. This is so that anytime we have business and the chairpersons are not there, the vice chairpersons should be present. If they are not, the committee members can equally execute the business.

It is a big shame, just like many of you have said that we have some business to transact but we do not have the committee members present. In fact, there was a lot of business to transact today. However, Members of the committees were not present.

Having said that let me allow Sen. Muthama to comment.

Mr. Temporary Speaker, Sir, let me use my privileges as the Minority Chief Whip to speak from the Dispatch Box.

Mr. Temporary Speaker, Sir, having said that, I take this opportunity to use my privilege as the Minority Whip to speak from the Dispatch Box.

On a point of order, Mr. Temporary Speaker, Sir. I am still not comfortable with the answer you have given me. With the health crisis we have been having, the Committee on Health could not meet simply because there was a directive

The health crisis was not seen as urgent. Is this in order?

Sen. Godliver, I will give a ruling on Tuesday, next week.

Proceed, Sen. Muthama.

Mr. Temporary Speaker, Sir, I sat here pensively and listened to Sen. Sang, Sen. (Prof.) Lesan, Sen. Mutula Kilonzo Jnr. and Sen. (Dr.) Khalwale on the subject matter that was brought up by Sen. Sang.

I just want to share the experience I have from the Tenth Parliament to the Eleventh Parliament. Experience is the best teacher. When I was the Chief Whip in the Tenth Parliament, Sen. (Prof.) Anyang’-Nyong’o was a Minister. Sen. (Dr.) Khalwale was a Member of Parliament and also in charge of one of the most serious committees. The failure of transacting business in this House starts with the leadership, which I am part of. While I admit that I am part of it, it is up to the Government side to make sure that the leadership of this House meets with the top leadership of the country.

Mr. Temporary Speaker, Sir, I cannot count the number of times I sat with former President Kibaki and former Deputy President Kalonzo Musyoko when there were crucial issues in the House. I presented to the leadership what was needed to be done starting with Members of Parliament to the Cabinet Ministers. That was one of the most difficult governments to manage.

Sen. (Prof.) Anyang’-Nyong’o can tell you there were times--- Forget about having the Bills passed or discussed, but we managed the situation. We all know the Executive in this country is fighting the leadership of this House and the Senate. None of those who are in top leadership want the Senate to continue transacting business to do with this country.

How many Bills have passed here and they have gone nowhere? We have been shortchanged by the National Assembly severally. This being the “Upper House” of this country has been made to be the “Lower House”.

Mr. Temporary Speaker, Sir, the Speaker of the Senate and the leadership of the Majority side should face the President and ask him whether we have business being here or not. We cannot recall the leadership of this House sitting down with the President deliberating on issues to do with this House. Who is supporting the business of this House? It starts with the President, the Deputy President and the Cabinet Secretaries. Those are the people who will capture the need and business of this House.

I confess that, if today either Raila Odinga or Kalonzo Musyoka was the President of this country and Sen. Muthama was seated there, you would see things moving in this House like you have never seen. You people should bring the leadership here and stop complaining about it. We pass Bills yet nothing happens to those Bills. Is it up to the Members of the Senate to assent to those Bills? It is not the work of the Senate to dictate and instruct the leadership of the country that what has been passed and approved here has to be attended to. We should be faithful with our work.

I challenge the leadership of Jubilee, not next month but in the coming week, to hold a meeting with the President and tell him that they carry the people’s vote and that they were elected by the people . They should come here and do Business. They should not bring the Opposition into this. This idea is to undo what you are trying to do. For the

On a point of order, Mr. Temporary Speaker, Sir. Was the leadership of this House in order to cancel all committee meetings? The meetings of committees were closed up to 31st January, 2017. No business was being transacted. All this mess is because the committees were limited, their hands were tied. Are we serious with our work?

Hon. Senator, I believe during that time, Senators had time to visit their counties. It was in this spirit that they were allowed to have a break to be with their constituents.

Continue, Sen. Muthama.

issues as a team. However, it is up to you to move it forward. That is the experience of one of the senior Whips in this country.

Sen. Muthama, I gave you a lot of time. However, all said, the Majority Leader has been bringing a lot of business. We have quite a number of Bills from the Government side which we have passed through this House and you have passed them yourself. Therefore, we cannot say we have not been having business. For those that I am going to give the Floor, kindly restrict yourselves to two minutes.

Sen. (Prof.) Anyang’-Nyong’o!

Mr. Temporary Speaker, Sir, I came in late. However I am a quick learner; I have caught up with what is going on. I plead with you to give me a little more than two minutes because this is my 25th year in Parliament and I have a little bit some experience to share with the House on this matter. We should not be too hard on the Senate. The Senate, over the last almost five years has done some appreciable work. The Senate has acquitted itself honorably in terms of its productivity notwithstanding the intransigent and the indifference of the Jubilee Executive to the Senate, even fighting the Senate. However we have fought a noble and good fight. We should congratulate ourselves in that regard.

Secondly, I have in this Senate, colleagues who have served with me in several committees; Sen. Mutula Kilonzo Jnr. and Sen. (Dr.) Khalwale in the famous Kenya Airways Committee which have bore results. The changes you see in the Kenya Airways are actually an implementation of our recommendations. We stand to be congratulated as hon. Members of this Senate who served decently in this committee for very little gain, except rewarding our country with our services.

However, more than that we must also understand that the voter registration has been going on. Today is the last day. Members of the other side are extremely on tenterhooks because it is either they get the numbers; true numbers, not imaginable like last time or they join us on this side in the coming elections which is becoming a fast reality. I do not blame them being here. They should be up and running trying to ensure that they do not all come to this side. However, most of them are on the way.

Having said that let me say the following; This Session is going to be a difficult one. We better prepare for it. We are going to the elections. Let us not be sentimental about it. The reality is that when people are going to elections, Parliament becomes a difficult place to be in, all the time. We need the leadership of this House to be more committed in Whipping Members to come to the House. When we are in this House, we should undertake business quickly and productively. We should not spend too much time on Statements; we should go to the Business of the House and complete it.

Finally, on my part as the Chairperson of the County Public Accounts and Investments Committee (CPAIC) , we have met this morning as a committee. We are going on a retreat from today at the Windsor Golf Hotel to complete our reports. Indeed we have already completed eight reports it is just a question of adopting them. They will be laid in the House next week. I plead with the House Business Committee to accord us the opportunity for these reports to be discussed expeditiously because we must not let county governments get away with murder in terms of misuse of public resources. This is

the counties.

The CPAIC, in which Sen. (Dr.) Khalwale and Sen. Ndiema sit, will present perhaps 14 reports to be tabled and discussed. I therefore, hope time will be accorded by the House to pay particular attention to those reports so that by the time we leave this House we will have done our work productively. I know that the Auditor-General was constrained and we have not even started discussing the 2014/15 audit accounts. That is because we were stopped from doing our work for 10 months and the Auditor-General was starved of resources and staff. However, I hope the next Senate will overcome the obstacles we have gone through.

Yes.

Mr. Temporary Speaker, Sir, the Speaker’s Gallery is empty. The Public Gallery is empty.

Point noted, Sen. (Dr.) Khalwale.

the counties.

The CPAIC, in which Sen. (Dr.) Khalwale and Sen. Ndiema sit, will present perhaps 14 reports to be tabled and discussed. I therefore, hope time will be accorded by the House to pay particular attention to those reports so that by the time we leave this House we will have done our work productively. I know that the Auditor-General was constrained and we have not even started discussing the 2014/15 audit accounts. That is because we were stopped from doing our work for 10 months and the Auditor-General was starved of resources and staff. However, I hope the next Senate will overcome the obstacles we have gone through.

Mr. Temporary Speaker, Sir, did you say that the visitors are seated in the Speaker’s Gallery in your communiqué?

Yes.

Mr. Temporary Speaker, Sir, the Speaker’s Gallery is empty. The Public Gallery is empty.

Point noted, Sen. (Dr.) Khalwale.

What is your point of order, Sen. (Prof.) Anyang'-Nyong'o?

Mr. Temporary Speaker, Sir, probably, my good neighbour, professor, did not get the thrust of my argument. Part of the reasons we finished early this afternoon is that while we had business that was to be transacted, we did not have the numbers. Numbers are drawn from both sides. I think he agrees with me.

Sen. Cheruiyot, have you finished?

Mr. Temporary Speaker, Sir, I was about to finish but I was interrupted by Sen. Sang and Sen. Mutula Kilonzo Jnr.

Proceed.

On a point of order, Mr. Temporary Speaker, Sir. It is important that whereas Sen. Muthama and Sen. (Prof.) Anyang'-Nyong'o have alluded to the previous Parliaments where you largely had the Government and Opposition sides, but in this new dispensation, the real importance of an Executive in parliamentary business is not as important as it was then. If you realised the issues that Sen. Mutula Kilonzo Jnr. and I raised, they have very little to do with the national Executive but everything to do with the relationship between the National Assembly and the Senate. We need to crack the relationship between this House and the other House so that if we get ourselves into blaming the Government side or the Executive – we have Bills - Three of them are private Members Bills. Sen. (Dr.) Khalwale has sponsored Bills. We are talking about Private Members Bills that have not been processed in the National Assembly.

The problem of the Executive is at a different tier. The major problem that we have in terms of transacting business in this House is the relationship between the National Assembly and the Senate. If we decide to convolute the problem and bring in the national Executive, we will lose sight of the real problem.

On a point of order, Mr. Temporary Speaker, Sir. Is the distinguished Senator, who is my neighbour, in order to imply that the business transacted in this House is the responsibility of both sides when we know that by parliamentary practice, it is the Government side which bids in generating business in the House?

What is your point of order, Sen. (Prof.) Anyang'-Nyong'o?

On a point of order, Mr. Temporary Speaker, Sir. The junior Senator from Nandi ---

Sen. (Prof.) Anyang'-Nyong'o, you are completely out of order. Order, Senators! We do not have junior Senators here; we have Senators in the House.

My apologies, Mr. Temporary Speaker, Sir. I beg to withdraw that statement. My colleague and neighbour from Nandi must be conscious. Is he in order not to be conscious of the fact that the Executive is the one which is pushing the National Assembly to frustrate the Senate? His Majority is on the HANSARD having said so before we broke our session.

Sen. (Prof.) Anyang'-Nyong'o, you are completely out of order. You do not have any reference to show that the Executive has influenced the National Assembly into not making sure that those Bills are acted on.

Mr. Temporary Speaker, Sir, if you read the newspapers today, and I dare I would bring them here, the Majority Leader is quoted verbatim. I think it was in the Daily Nation. The Majority Leader should check that.

Sen. (Prof.) Anyang'-Nyong'o, from a distance, you can see the Majority Leader shaking his head. So, do not take those newspapers as the truth.

Proceed, Sen. Mutula Kilonzo Jnr.

On a point of order, Mr. Temporary Speaker, Sir. I appreciate the initial intervention by Sen. Sang but to baptize it in a different way is, in my view, to what we call in law to approbate and reprobate. In simple terms, it means to blow hot and cold.

Mr. Temporary Speaker, Sir, we were here over Christmas holiday on a Bill generated from the National Assembly, accepted by the Majority Leader here, we voted here, and then, for some strange reason, we are giving an excuse. The fact is; the leadership of this House has failed. You cannot baptize it in any other way. The same person, who gave out the Bill from the National Assembly to the leadership here, fast- tracked it, the Majority Leader got 15 Senators, brought us here over Christmas holiday and messed up our new year. It is the same person. Has this person changed?

I will not allow the many points of order you people are raising.

Hon. Senators, because we have the Senate Majority Leader in the House, we will allow him some time before he reads the statement of business for next week. Before he does that, maybe he can explain to us whether there is something which has not been adding up.

Sen. Muthama.

What is your point of order, Sen. (Prof.) Anyang'-Nyong'o?

gifted minds, there is nowhere Sen. (Prof.) Kindiki can be quoted to have stood next to the President to assent any Bill from this House. There is a big distinction and I must defend him. We have only seen one Speaker standing next to the President while assenting to Bills and that is the Speaker of the National Assembly. Where do we venture in the leadership of this country?

Therefore, to state that the Executive is involved in downplaying the business of this House is a joke. It is obvious and we do not need to mince a word on this. We should not baptize anything.

Let me clarify on the issue of the pupils and teachers from Meru County who were in the Gallery. By the time a Communication was brought they were there and you Senators were very busy ventilating on a very important issue. Because of that, I think they walked out before I read the Communication. So, I may not necessary say that I was misled by the Clerk.

Having said that, let me allow the Senate Majority Leader to tell us more on business of the House and read his statement.

Mr. Temporary Speaker, Sir, first and foremost, I apologise to the House through you with a lot of humility and remorse because I was late in coming to the Chamber. I got constrained and I truly apologise.

Mr. Temporary Speaker, Sir, I want to address myself quickly to some of the issues that have been raised by hon. Senators with regard to the business of this House. First and foremost, let me start by admitting that we have had challenges with regard to our legislative work since 2013 until now.

It is not true that this Senate has not done its work. I want to applaud Sen. (Prof.) Anyang'-Nyong'o and I am glad he comes from the Minority side. He has demonstrated that we have done quite a bit of work in this House. We have had numerous Government- sponsored Bills and numerous Private Members Bills. The challenge could arise from the fact that some of the Bills have been stuck in the National Assembly. That is a challenge we must accept and continue to engage to see how to improve that relationship.

Secondly, the relationships between Houses or Chambers of a bicameral Parliament are difficult everywhere in the world. Last year I spoke to a colleague Senator from Australia. He told me that the challenges that this Senate is facing around fighting for more money to the devolved units and the relationship with the “Lower House” are the same challenges the Senate of the Republic of Australia is facing nearly 175 years after the creation of that Parliament. So, you cannot expect that the relationship of a bicameral system in the context of Kenya which has been a highly centralized nation will be easy because there are centralists at all corners.

On a point of information, Mr. Temporary Speaker, Sir.

Sen. (Prof.) Kindiki, do you wish to be informed by Sen. Mutula Kilonzo Jnr.?

I rarely get informed by Sen. Mutula Kilonzo Jnr. but for today, I will allow him to do so.

Mr. Temporary Speaker, Sir, it is obvious that when you look at the business of the National Assembly you will find that it is not the Executive. The

Mr. Temporary Speaker, Sir, I thank Sen. Mutula Kilonzo Jnr. for that valuable information. However, in his usual enthusiasm, he has completely failed to appreciate what my point was. My point was simple, that in Australia with many decades of bicameral Parliament, they still have the push and pull. How that push and pull between the two Houses is resolved is a different topic but the push and pull exists until today. However, I appreciate that information but I do not know where Sen. Mutula Kilonzo Jnr. gets time to read all these things because he appears to be a fairly relaxed human being.

Mr. Temporary Speaker, Sir, for the record, it is not true to argue that the national Executive has not generated Bills which have been considered by this House. I want to link that point with the point that was raised by Sen. Muthama, the Senate Minority Whip. He said something about who has been besides the President signing Bills and that kind of thing. Of course his observation is not true but be that as it may, we are always there whether standing, seated or around the compound.

I need to explain something very important for us to appreciate. The Constitution says that when a Bill originates from one House and is considered by the second House, it is returned to the originating House for concurrence. The Constitution also says that when such a Bill which originated from House “A” is returned to that House, it is the Speaker of the originating House to forward that Bill to the President. By the nature of the design of the Constitution, an overwhelming majority of the Bills, perhaps except the County Allocation of Revenue Bill, originates in the “Lower House”. So, the problem has nothing to do with the Executive or the Senate Majority Leader.

The Constitution says that when a Bill goes to the second House, it is returned to the originating House whose Speaker shall forward it to the President for assent. So, the problem is constitutional. For once, I am beginning to believe that maybe we need a referendum to correct some of the constitutional challenges.

I know the “Okoa Kenya” brigade is here and they are very annoyed with the differences we had sometimes back. Going forward, we should agree on how to amend some of the offensive Clauses in our Constitution after the general election.

I am discouraged by my brothers and sisters in the Minority side. I have owned up to the challenges from the Majority side. However, it is not right for our colleagues to pontificate here. My understanding of the Minority side, sometimes in other jurisdictions it is called the Official Opposition, whose role is to generate alternative legislative and policy agenda. Whether that agenda passes or not is a different thing. This is so that Kenyans can interact, compare and contrast. I have not seen a single Bill in this House during the four years sponsored by the CORD Coalition. Let us be honest with ourselves. Instead of using their brilliant minds to generate Bills, they have used those brains to cause demonstrations in the streets, disruptions of public order and mayhem in our country.

Mr. Temporary Speaker, Sir, first and foremost, I apologise to the House through you with a lot of humility and remorse because I was late in coming to the Chamber. I got constrained and I truly apologise.

Mr. Temporary Speaker, Sir, I want to address myself quickly to some of the issues that have been raised by hon. Senators with regard to the business of this House. First and foremost, let me start by admitting that we have had challenges with regard to our legislative work since 2013 until now.

It is not true that this Senate has not done its work. I want to applaud Sen. (Prof.) Anyang'-Nyong'o and I am glad he comes from the Minority side. He has demonstrated that we have done quite a bit of work in this House. We have had numerous Government- sponsored Bills and numerous Private Members Bills. The challenge could arise from the fact that some of the Bills have been stuck in the National Assembly. That is a challenge we must accept and continue to engage to see how to improve that relationship.

Secondly, the relationships between Houses or Chambers of a bicameral Parliament are difficult everywhere in the world. Last year I spoke to a colleague Senator from Australia. He told me that the challenges that this Senate is facing around fighting for more money to the devolved units and the relationship with the “Lower House” are the same challenges the Senate of the Republic of Australia is facing nearly 175 years after the creation of that Parliament. So, you cannot expect that the relationship of a bicameral system in the context of Kenya which has been a highly centralized nation will be easy because there are centralists at all corners.

On a point of order, Mr. Temporary Speaker, Sir. I do not like interrupting the Majority Leader when he is speaking. However, when he talks of the Minority side, is it in order for him to point to the side we sit, where there are ten Senators whereas the side he sits there is zero Senator behind him? Which is the Minority side?

On a point of order, Mr. Temporary Speaker, Sir. Is it in order for the Majority Leader, who has the data before him, to underplay the contribution of this side in terms of Bills? He knows well that in terms of Private Members’ Bills this side has contributed qualitatively much better Bills than the other side. This is not withstanding the enormous resources they have which they waste in all kinds of deals which they specialized in ruining this country including the latest, the NYS, the Euro Bond and so on. The Ministry of Health has been ruined by deals from that side. Can the Majority Leader apologise to this nation and withdraw all those horrible remarks?

Sen. (Dr.) Khalwale, I see you are on your feet. You have a minute or two.

Mr. Temporary Speaker, Sir, maybe he knows but I want to tell him this: The Australian Constitution provides for a formula when both Houses do not agree. It provides a default clause which was invoked last year that in the event of both Houses not agreeing, the Parliament is prorogued . For that reason alone, they have gone out of their way to ensure that Bills coming from either House are passed. Therefore, we are not the same in that respect.

Mr. Temporary Speaker, Sir, I thank Sen. Mutula Kilonzo Jnr. for that valuable information. However, in his usual enthusiasm, he has completely failed to appreciate what my point was. My point was simple, that in Australia with many decades of bicameral Parliament, they still have the push and pull. How that push and pull between the two Houses is resolved is a different topic but the push and pull exists until today. However, I appreciate that information but I do not know where Sen. Mutula Kilonzo Jnr. gets time to read all these things because he appears to be a fairly relaxed human being.

Mr. Temporary Speaker, Sir, for the record, it is not true to argue that the national Executive has not generated Bills which have been considered by this House. I want to link that point with the point that was raised by Sen. Muthama, the Senate Minority Whip. He said something about who has been besides the President signing Bills and that kind of thing. Of course his observation is not true but be that as it may, we are always there whether standing, seated or around the compound.

I need to explain something very important for us to appreciate. The Constitution says that when a Bill originates from one House and is considered by the second House, it is returned to the originating House for concurrence. The Constitution also says that when such a Bill which originated from House “A” is returned to that House, it is the Speaker of the originating House to forward that Bill to the President. By the nature of the design of the Constitution, an overwhelming majority of the Bills, perhaps except the County Allocation of Revenue Bill, originates in the “Lower House”. So, the problem has nothing to do with the Executive or the Senate Majority Leader.

The Constitution says that when a Bill goes to the second House, it is returned to the originating House whose Speaker shall forward it to the President for assent. So, the problem is constitutional. For once, I am beginning to believe that maybe we need a referendum to correct some of the constitutional challenges.

I know the “Okoa Kenya” brigade is here and they are very annoyed with the differences we had sometimes back. Going forward, we should agree on how to amend some of the offensive Clauses in our Constitution after the general election.

I am discouraged by my brothers and sisters in the Minority side. I have owned up to the challenges from the Majority side. However, it is not right for our colleagues to pontificate here. My understanding of the Minority side, sometimes in other jurisdictions it is called the Official Opposition, whose role is to generate alternative legislative and policy agenda. Whether that agenda passes or not is a different thing. This is so that Kenyans can interact, compare and contrast. I have not seen a single Bill in this House during the four years sponsored by the CORD Coalition. Let us be honest with ourselves. Instead of using their brilliant minds to generate Bills, they have used those brains to cause demonstrations in the streets, disruptions of public order and mayhem in our country.

On a point of order, Mr. Temporary Speaker, Sir. I do not like interrupting the Majority Leader when he is speaking. However, when he talks of the Minority side, is it in order for him to point to the side we sit, where there are ten Senators whereas the side he sits there is zero Senator behind him? Which is the Minority side?

On a point of order, Mr. Temporary Speaker, Sir. Is it in order for the Majority Leader, who has the data before him, to underplay the contribution of this side in terms of Bills? He knows well that in terms of Private Members’ Bills this side has contributed qualitatively much better Bills than the other side. This is not withstanding the enormous resources they have which they waste in all kinds of deals which they specialized in ruining this country including the latest, the NYS, the Euro Bond and so on. The Ministry of Health has been ruined by deals from that side. Can the Majority Leader apologise to this nation and withdraw all those horrible remarks?

Sen. (Dr.) Khalwale, I see you are on your feet. You have a minute or two.

Mr. Temporary Speaker, Sir, I did not name anybody. I just said a Senator on that side. If the Majority Leader is here and is aware of that Senator--- All we saw in public domain is a company---

On a point of order, Mr. Temporary Speaker. I have a lot of respect for Sen. (Dr.) Khalwale, but he has a tendency of getting away with nearly criminal behaviour. Is he in order to impute improper motives on a Senator whom he says stole Kshs40 million? He is saying the Majority Leader maybe knows who that Senator is. The basic principle of the law of evidence is that whoever alleges must prove. The burden is on Sen. (Dr.) Khalwale to do either of two things; tell us which Senator stole Kshs40 million and substantiate or withdraw and apologise to the Majority side where the so-called Senator comes from. He should also apologise to the people of the Republic of Kenya. Is he in order?

On a point of order, Mr. Temporary Speaker, Sir. Is the Majority Leader in order to point to his side when he knows that his last point of resort, the Senator he could have summoned to this House, at a pay, is one Senator on

in order not to have paid that Senator to come and help him?

Mr. Temporary Speaker, Sir, just one last point with your indulgence. Before I read my Statement, I request colleagues to cooperate for the remaining few months. We have done a good job. We are the first House under this dispensation. We need to lay a good foundation. We have done our best. The time left is short. However I think we can still improve on what has been happening.

Having said that, it is now my pleasure to issue the Statement on the Business of the next week which starts on 21st February, 2017.

On a point of order, Mr. Temporary Speaker, Sir. We are a House of records. You will remember, just before we went on recess, Sen. Onchwangi – I think that is his name – came from nowhere and suddenly appeared in this House panting with a letter in his hands. When he was asked why he was brining the letter he said he had been sent and that on accomplishment of his duties he will be handsomely paid. Can the Majority Leader deny the fact that Sen. Onchwangi came here panting and sat there? After he had done the deed he disappeared again, never to be seen in this House. He has a price on his head. The responsibility is with Sen. Onchwangi to come and acquit himself, not me.

What is your point of order, Sen. Sang?

On a point of order, Mr. Temporary Speaker, Sir. Is Sen. (Prof.) Anyang’-Nyong’o in order to disparage a colleague? Sen. Onchwangi was in this House yesterday, he contributed to the business and we had consultations with him on various issues. I am a Chairperson of a Committee in which Sen. Onchwangi is a Member. He is a regular there and gives valuable contributions to that Committee. More importantly, is the other side of the House in order to try and paint Senators from this side--- They mentioned the issue of the NYS, we know that scandals of serious magnitude have been perpetrated by Members on the other side, including the one on Mumias Company, where we were told of Kshs12 million was banked in somebody’s account. Even on the mess in the Ministry of Health, when Sen. (Prof.) Anyang’-Nyong’o was there, there were several scandals.

It is only in the history of this country that---

On a point of order, Mr. Temporary Speaker, Sir. I will tell the young Senator that he is absolutely out of order to imply or even imagine that there was a scandal in the Ministry of Health for which the hon. Sen. (Prof.) Anyang’-Nyong’o of Kisumu County was held responsible. If, indeed, he has any facts whatsoever, I challenge him to put them on the Table or be thrown out of this House.

Order, Senators! Hon. Senators, I need to remind you of our Standing Orders.

Standing Orders No. 90 (3) :

whether in respect of Senators or other persons.” Maybe whatever has been going on, you wanted to generate a good debate. However, it is now completely out of order. All of you should stop that and go back to the subject.

Senate Majority Leader continue, and kindly read your Statement.

Mr. Temporary Speaker, Sir, just one last point with your indulgence. Before I read my Statement, I request colleagues to cooperate for the remaining few months. We have done a good job. We are the first House under this dispensation. We need to lay a good foundation. We have done our best. The time left is short. However I think we can still improve on what has been happening.

Having said that, it is now my pleasure to issue the Statement on the Business of the next week which starts on 21st February, 2017.

Mr. Temporary Speaker, Sir, apologies to Professor but I have a point of order. Under the old Constitution, the date of adjourning Sine Die used to be the President’s secret weapon. The Senate Majority Leader said sometime in early June.

secret the fact that the Constitution contemplates that this Houses will be adjourned Sine Die, 60 days to the date of the general elections which will be 8th June, 2017? Why is he refusing to tell this House and the public or does he wish to create another secret weapon for the Jubilee Administration?

Sen. (Dr.) Khalwale, it was very clear from the Majority side. He said the leadership of the House will sit and deliberate.

Senate Majority Leader, go ahead and clarify.

sister Bill which is the County Allocation of Revenue Bill. Again, that is a very critical Bill that must be dispensed with in the shortest time possible.

So, we have no alternative. We have to raise the numbers, work hard, devise new ways of getting quorum and perhaps, shortening debate without altering its quality. We have those kinds of Bills. Even with regard to Bills that give effect to devolution, I can highlight, for example, The Kenya Roads Bill (National Assembly Bill No.26 of 2015) which went through the Second Reading yesterday. That Bill will be committed to a Committee. It is an important Bill which will help us deal with the issue of the sharing of functions between the national and county governments in road construction. Some counties went to court last year and got judgement against the Kenya Rural Roads Authority (KeRRA). Some roads are not being maintained or constructed in those counties simply because of that court order. It is a High Court order of last year involving not less than 29 out of the 47 counties. So, this Bill is important.

Mr. Temporary Speaker, Sir, we also have The Physical Planning Bill (National Assembly Bill No. 46 of 2015) which, again is important for devolution. Allow me also to mention the following other Bills that I think are critical for the information and attention of the honourable colleagues:-

Mr. Temporary Speaker, Sir, that coming from Sen. (Prof.) Anyang'-Nyong'o is loaded with a lot of ---

Order, Sen. (Prof.) Kindiki! What is it that came from Sen. (Prof.) Anyang'-Nyong'o? He was not on record.

Sorry, Mr. Temporary Speaker, Sir. I was challenging our colleague from the Minority side to support one of the Bills that is coming soon, the Judith Sijeny Bill, and I said the opposition against that Bill to empower women is being led by the Minority Leader and his deputy in FORD Kenya, Sen. (Dr.) Khalwale. I challenged Sen. (Dr.) Khalwale to lead from the front on the issue of the agenda for women, and then, it is at that point that Sen. (Prof.) Anyang'-Nyong'o, carefully and scientifically said, he always does that.

Order, Senator!

Mr. Temporary Speaker, Sir, that coming from Sen. (Prof.) Anyang'-Nyong'o is loaded with a lot of ---

Order, Sen. (Prof.) Kindiki! What is it that came from Sen. (Prof.) Anyang'-Nyong'o? He was not on record.

Sorry, Mr. Temporary Speaker, Sir. I was challenging our colleague from the Minority side to support one of the Bills that is coming soon, the Judith Sijeny Bill, and I said the opposition against that Bill to empower women is being led by the Minority Leader and his deputy in FORD Kenya, Sen. (Dr.) Khalwale. I challenged Sen. (Dr.) Khalwale to lead from the front on the issue of the agenda for women, and then, it is at that point that Sen. (Prof.) Anyang'-Nyong'o, carefully and scientifically said, he always does that.

Sen. (Prof.) Anyang'-Nyong'o, Sen. (Prof.) Kindiki has not concluded and there is no contribution to the statement.

On a point of order, Mr. Temporary Speaker, Sir. Is the Leader of the Majority in order to mislead the Republic that the Leader of the Minority and national party leader of FORD Kenya, who I deputize, voted against the two-thirds gender when it is on record of the HANSARD that both Sen. Wetangula and I, not only spoke on the Bill but we also voted for it and went further by guiding the young Senator who is still discovering her waters on how to swim in the world of making Bills.

It was wrong to attempt to pass a law that was being used to legislate for ourselves rather than legislating for members of the public where---

I urge Sen. (Prof.) Kindiki to allow me to give some information because I think it is important to the statement he was making.

Sen. (Prof.) Kindiki, do you want to be informed?

Yes. Mr. Temporary Speaker, Sir, the only provision in the Constitution regarding the end of the term of the Senate is in Article 102. Article 102 (1) states that the term of each House of Parliament expires on the date of the next general election. That is the only definitive statement.

The other statements have to do with when Parliament can adjourn because of war and so on but the only definitive statement is in Article 102 (1) . There is no mention anywhere of any other way. So, I presume that if we adjourn, that will be subject to when our term officially ends and there is no other provision in the Constitution.

Secondly, I would like to appeal to the Senate Majority Leader. In certain jurisdictions, when a House like the Senate adjourns at the end of its term, in this case the 11th Parliament, the House accords Members who will not be coming back the opportunity to make their sine die statements so that it can go on record. That will help in establishing a good tradition in the Senate that once the SBC knows that we will adjourn sine die, Members should be accorded 10 minutes each for one hour in the last three days or so to make their sine die statements. Their last statements should be in the HANSARD so that when our epitaphs are finally written, it will be said that this was the appreciation of Boni Khalwale, Senator for Kakamega, to the House as a gallant citizen of this nation and an accomplished and distinguished legislator.

Sen. (Prof.) Kindiki you may conclude.

Mr. Temporary Speaker, Sir, I thank Sen. (Prof.) Anyang'-Nyong'o for his intervention and clarification. It is actually because of the Article he has read to us that we are talking about a sine die adjournment. That means we will be on recess until 8th August, 2017 which is the date of the next general election. So, the fact that we will break in June will not affect our term in office according to our Constitution.

Secondly, I thank Sen. (Prof.) Anyang'-Nyong'o for that very informative input. I promise him and the rest of the House that I will introduce Sen. (Prof.) Anyang'- Nyong'o’s proposal to the SBC so that as we do our weekly business, towards the end, that allowance is accommodated for those of us who do not intend to return to this House to be given an opportunity to make their benedictory remarks although the way he presented it was a bit somber. It made him look like they are going to die thereabout.

Mr. Temporary Speaker, Sir, I understand. If somebody is not running for a seat in the Senate, it is unlikely that, that would be their last statement. However, I foresee a situation where going forward we are going to have retired governors coming back to the Senate because there is nowhere else that retired governors can go. Unless you become president, which is one seat, you cannot become a county assembler or go to the National Assembly. Most likely, the retired governors like the future governor of Kakamega who is looking at me is likely to return to this House. So, be careful with the kind of benediction you will give. Otherwise, you might spoil your own chances of coming back in future after your duty.

February, 2017, we will have the SBC as usual at 12.30 p.m. to schedule the business of the week.

The business for Wednesday will be determined by the Tuesday meeting. On Thursday, our concentration will be on the Bills, Motions and other business that the SBC will schedule.

Hon. Senators, once more, welcome back from the long recess. I wish you all the best and God’s blessings to you and your families as we approach the oncoming general election.

Thank you. God bless the Senate, God bless Kenya.

Mr. Temporary Speaker, Sir, allow me to thank the Senate Majority Leader for that very elaborate statement of the business for the coming week. However, with your permission, allow me to make three comments. The first one is that the Senate Majority Leader has misled the country that the CORD Coalition has not made an effort to produce a Bill or Bills. This is not true.

Order, Sen. (Dr.) Khalwale. There is no debate on a statement presented by the Senate Majority Leader.

May I thank him.

There is even no provision to thank him. The Statement has been presented and tabled and that is it. You are a believer in parliamentary practice and precedent. Therefore, I hope you have no intentions of creating one in your sunset days in this House.

Sen. (Dr.) Khalwale, you are completely out of order!

Mr. Temporary Speaker, Sir, allow me to thank the Senate Majority Leader for that very elaborate statement of the business for the coming week. However, with your permission, allow me to make three comments. The first one is that the Senate Majority Leader has misled the country that the CORD Coalition has not made an effort to produce a Bill or Bills. This is not true.

Order, Sen. (Dr.) Khalwale. There is no debate on a statement presented by the Senate Majority Leader.

May I thank him.

There is even no provision to thank him. The Statement has been presented and tabled and that is it. You are a believer in parliamentary practice and precedent. Therefore, I hope you have no intentions of creating one in your sunset days in this House.

Mr. Temporary Speaker, Sir, just to request you to allow me on a point of order. As it is required by rules of debate, when a statement is made, we have a right to challenge it on a point of order. The only challenge I wanted to make is that it is true that we made a constitutional amendment Bill called Okoa Kenya as the CORD Coalition which was killed by Jubilee defunct IEBC commissioners.

Sen. (Dr.) Khalwale, you are completely out of order!

Hon. Senators, we have come to the end of our business today. There being no other business, the Senate stands adjourned until Tuesday, 21st February, 2017, at 2.30 p.m.

The Senate rose at 5.30 p.m.