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Thursday, 3rd December, 2015

Hon. Senators, we have a Supplementary Order Paper which I did approve and there is little rearrangement on what had been written yesterday. My request is that we need to finish all the work that we have on this Order Paper this morning because they are all of important, especially the Motion by Sen. (Prof.) Anyang’- Nyong’o and others.

So, my request is that the House gives us the opportunity to move fast and try to finish what is on the Order Paper.

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Sen. Wetangula was seconding this Motion and he is not in the House this morning. Therefore, I assume that he concluded. I will now propose the Question.

On a point of order, Mr. Temporary Speaker, Sir. We seem not to have that Order Paper that you are referring to.

Can the Serjeant-At-Arms make

Mr. Temporary Speaker, Sir, this is a very important Bill, whose main thrust is to give rise to legislation that will provide for regulation, management, conservation, use and development of water and sewerage services. It is elaborate and clear, and it was adequately moved. I support it and hope that when it goes to the Committee of the Whole, we will do justice.

I support.

Since I see no other interest, could the Mover reply?

Mr. Temporary Speaker, Sir, I beg to reply.

Very well. I will defer Division to another time.

If you look at the Supplementary Order Paper, there is a problem with the numbering. The next Order, which is a Motion, is Order No.9. Subsequently, increase the numbers by one. Therefore, we have concluded Order No.8 and Order No.9 is the Motion by the Chairperson of the Select Committee Inquiring into the Affairs of Kenya Airways. What is indicating as Order No. 9 should be Order No. 10. Order No. 10 will be Order No.11 and so on.

Next Order!

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Mr. Temporary Speaker, Sir, I beg to move the following Motion:-

THAT, this House adopts the Report of the Select Committee on Inquiry into the Affairs of the Kenya Airways Limited and its Subsidiaries, tabled in the Senate on 1st December, 2015. First, I would like to thank this House for having given us the opportunity to serve in this Select Committee and produce this Report within the time which we were given, which was, first, three months and then extended for another two months. I am happy to say that we met the deadline on 30th November, 2015.

The Select Committee on the Inquiry into the Affairs of Kenya Airways Limited and its ssubsidiaries was established by this House on Thursday18th June, 2015. The mandate and life of the Committee was further extended on Wednesday 30th September,

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Are you serious with that comparison?

It is with a light touch, Mr. Temporary Speaker, Sir. Nonetheless, the three must work together very coherently. We discussed with the three and we think that it is still far from being realised. The infrastructure, including the Greenfield Initiative, should be realised as fast as possible, so that we compete effectively with Dubai, Addis Ababa and other international hubs.

Let me now move to the issue of flight disruptions and ticketing, which we need to enlighten this House on. You will realise that over the last couple of months – most of

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Sen. Omar, as is the tradition, if you are seconding, come and do so from the Dispatch Box.

Thank you, Mr. Temporary Speaker, Sir, for this opportunity. It gives me extra ordinary pride to second this Motion.

First, before I second the Motion, I want to acknowledge the extra ordinary leadership of Sen. (Prof.) Anyang-Nyong’o, the Senator for Kisumu County. This acknowledgement also goes to the Vice Chairperson, Sen. Kagwe, who also provided outstanding leadership. This is probably one of the most thorough investigations this Senate has undertaken. The Clerk too offered enormous support to this Committee. We also acknowledge the enormous task that was done by literally every department of this Senate; the budget, finance, human resource and legal departments. Everybody contributed heavily towards the finalization of this Report.

This report, in my view, has come up with findings that will help turn around the fortunes of Kenya Airways. “The Pride of Africa” must be restored to its pride. There is no doubt that “The Pride of Africa” still has a special place in the hearts of many Kenyans. It is upon this premise that we have in good faith presented this Report to the Senate. It has quite far reaching recommendations that as the Chairperson said, harsh as they might appear, these recommendations are intended to better the management of Kenya Airways and return it to its profitability.

Sen. (Prof.) Anyang’-Nyong’o asked me to second this Motion because I also sat in the Legal sub-committee together with my brothers Sen. Sang and Sen. Mutula Kilonzo Jnr. The Chairperson to that Sub-committee was none other than Senior Counsel Sen. James Orengo. We sieved through a wide array of documents – from contracts

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On a point of order, Mr. Temporary Speaker. I do not want to interrupt this important debate, but I have a very small Motion, which I have discussed with you about. Could you allow me to move it immediately?

You are allowed.

Mr. Temporary Speaker, Sir, I beg to move the following Motion:-

THAT, pursuant to Standing Order 18 and Article 107 (1) (c) of the Constitution, Sen. Sang be elected to preside over the Sittings of the Senate in the absence of the Speaker, Deputy Speaker and Members of the Chairperson’s Panel today, Thursday, 3rd December, 2015. The reason for this Motion is that our Member of the Chairperson’s Panel, Sen. Ongoro, is away on official duty. Sen. Mositet is out of the country, again, on official duty. I will also attend to another official function thereafter. Therefore, it will be impossible for you, as the Chair, to sit alone the whole morning and afternoon. As we know, the Speaker and Deputy Speaker are out of the country on official duty.

On a point of order, Mr. Temporary Speaker, Sir. The Senator for Eleyo-Marakwet has alleged that he will not be in a position to sit on that Chair because he will be attending another important function. Is he in order, given that parliamentary work takes precedence over any other business?

Mr. Temporary Speaker, Sir, I have your permission and many Senators are not here because they are out on official responsibilities.

Mr. Temporary Speaker, Sir, I think we should put more effort on the issue of Kenya Airways than on me.

I beg to move and request Sen. Lesuuda to second the Motion. Sen. Lesuuda seconded.

On a point of order, Mr. Temporary Speaker, Sir. My point of order is for the purposes of the HANSARD. When Sen. Murkomen asked Sen. Lesuuda to second, she did not need to bow. At least, for the purposes of the HANSARD she should have said: “I second.”

Order! Sen. Lesuuda was quite in order. I think you are now old enough in this House to know that.

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Very well.

Mr. Temporary Speaker, Sir, I support the sentiments that have been made by my brother, the Senate Minority Leader, that issues to do with business in this House should be consultative. That is what we have done all along. However, on this one I want to assure the Senate Minority Leader that I was also not consulted. The explanation which I have accepted was that, that consultation took place among Members of the Chairperson’s Panel. Since we have Members from both sides sitting or represented in the Chairperson’s Panel, I acquiesced to that consultation. It should not be a big issue unless somebody is opposed to the person being proposed, in which case, they can contribute to the Motion.

Order! For those who were in the House yesterday, you realized that I was on the Chair for three hours, as I am expected. However, you also realize that I am as human as you are. There is nothing so special with being a Chair or Speaker; you are still a human being with all the necessary issues to be attended to. In any case, I, as the Chair, must be in a position to make sure that the House runs smoothly. If there is a problem or issue where there might be nobody to assist the Chair on this long day, then it is my duty to make that decision. I took that duty to make the decision, within the powers bestowed to me as the Chair. That ends the matter.

I wish to put the Question. What is it, Sen. Godliver? I would not want this to be a long issue because we have very important business to transact.

On a point of order, Mr. Temporary Speaker, Sir. I have a concern. Is it in order for all Members of the Chairperson’s Panel to go out of the country and paralyze the business of the House? Also, must it be a male Senator to take over the Chair? Why is it that women are not given the opportunity to preside over this Senate?

That is quite a legitimate concern. Unfortunately, I may not be able to answer that in my capacity today and the way the hierarchy of the leadership of this Senate is. That point of order will reach the powers that be.

Yes, Sen. Elachi.

Mr. Temporary Speaker, Sir, I always like to remind the House of precedent. There was a time that we also elected Sen. Mutula Kilonzo Jnr. to preside over the House and we used the same procedure that we are using. Before Sen. Mositet

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I also got nominated in the same way and learnt a few of the tricks to be where I am. It is good to mentor a few of the Members of this House, including the female Senators. It is unfortunate that the proposal was for a man, but the point has been noted.

What is it, Sen. Wetangula? The Senate Minority Leader (Sen. Wetangula) : Mr. Temporary Speaker, Sir, nobody is questioning the procedure or the competence of Sen. Sang; we have tremendous respect for him. All we are saying is that in future, we must be consultative and my brother has said that it is true that we must consult. These are not issues of precedent. We need to consult and agree. If it is Sen. (Prof.) Lesan or Sen. Hassan, we need to agree on it. That is the simple point that we are raising.

The simple point is noted with all the nobility that it carries.

I, therefore, put the Question.

We will now continue with the Motion on the Kenya Airways. Sen. Wako.

Mr. Temporary Speaker, Sir, nobody is questioning the procedure or the competence of Sen. Sang; we have tremendous respect for him. All we are saying is that in future, we must be consultative and my brother has said that it is true that we must consult. These are not issues of precedent. We need to consult and agree. If it is Sen. (Prof.) Lesan or Sen. Hassan, we need to agree on it. That is the simple point that we are raising.

The simple point is noted with all the nobility that it carries.

I, therefore, put the Question.

We will now continue with the Motion on the Kenya Airways. Sen. Wako.

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On a point of order, Mr. Temporary Speaker, Sir. I want to request your direction on a procedural issue. I have noticed that we have three agenda which we must finish in the next two hours because we

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I will give directions on that in a few minutes.

Proceed Sen. Wako.

Thank you, Mr. Temporary Speaker, Sir. Whatever decision you make, I hope it will not act retroactively, that the present speaker will continue under the former rules. I hope the Senate Majority Leader accepts that because he is the Mover.

I will be very brief. If you look at page 30, I would like to question the purchase of the various planes of the KQ. The list is on page 30. We are not told in this Report how the decision to purchase the Embraers was arrived at and who went to negotiate. We are not told that.

Mr. Temporary Speaker, Sir, we are not told who are behind the Special Purpose Vehicles (SPV) which are mentioned on page 30. There are several of them; Simba, Nyati, Kifaru, Chui and others. Who are behind it? As a practicing lawyer, you will find that those who are behind it are very faceless people, lawyers from those countries and so on. However, we are required to pierce the veil and find out whose interests they were representing in this SPV although it is stated on the face of it that it was to ensure that money was paid and so on. We know that there was more to it than meets the eye. Whereas I agree that the Committee did not have time to go into that, to me, it appears that because this was the major cause of putting the airline to where it is today, we require a forensic audit on that Project Mawingu because we want to know the truth.

It has been said that it must have been tainted with a bit of corruption. There is nowhere in this report they have investigated that. It is not an issue of corruption, but management. They have left that hanging in the air. However, I do not blame them because they did not have time or the capacity to do so. That capacity can only come to the fore through a forensic audit or a judicial commission of inquiry into Project Mawingu.

As I support the Report, I urge that we do not stop there. There should be a forensic audit and judicial commission of inquiry into Project Mawingu, which was the major cause responsible for putting the airline where it is now. This will dispel any rumours and suspicions which surround the project. At the end of the day, we can say that it was just a bad management decision. However, I cannot accept that it was a bad management decision, because when they were making that decision, they knew it was bad. All the experts had agreed that it was not a proper decision to make. There are many technical legal issues involved. We should take into account the legal consequences to

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For your information, Senator for Busia, you have only saved 30 seconds. You had already exhausted the entire time allocated to you.

Based on the request by the Senate Majority Leader and bearing in mind that we have two important Motions that we have dispose of, I direct that the next speakers will speak for five minutes.

With those few words, I beg to support.

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With those few words, I beg to support.

Thank you, Mr. Temporary Speaker, Sir. I will make very few remarks. I congratulate Sen. (Prof.) Anyang-Nyong’o and the entire Committee for a job well done. KQ is dubbed the pride of Africa; it ought to be the pride of Kenya. It has through time degenerated to the shame of Kenya and the shame of the region. This is an airline that if you compare with the importance of airlines to economies like what Emirates is doing to UAE what it has done to Ethiopia. KQ had all systems go; a monopoly, government supported, carrying our national name and literally with limited bound of expansion.

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Thank you, Mr. Temporary Speaker, Sir. I also support the wonderful and in-depth report by the Committee headed by my friend, Sen. (Prof.) Anyang’-Nyong’o. Very briefly, I want to say that national airlines are a source of national pride. It is, therefore, important for us to save our airline and make sure that we have a national carrier that is not only profitable, but it is also offering world class service.

Secondly, it is unfortunate that KQ has chosen to engage in endless litigation and disputes with its employees. There must be a legal audit and a legal risk assessment done about this airline to bring this litigation to an end.

Thirdly, I want to concur that time has come for the KQ to re-look at the composition of the Board of Directors, because if a company is not performing, those who are responsible for steering that company must have something to do with it. If they do not have something to do with it, it is only fair that other people be given an opportunity to try and bring that company into success.

Fourthly, I think the action that KQ took of hedging fuel for a protracted period of time may have contributed to this unsustainable business model. That is an area that the KQ needs to relook at as proposed by the Sen. (Prof.) Anyang’-Nyong’o’s Committee in this Report.

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Thank you, Mr. Speaker, Sir. I congratulate the Chair and his team for a good Report although I have not read through the whole of it. It is sad that in the year 2015 we are still talking about KQ issue. I remember Sen. (Dr.) Khalwale in the last Parliament - I was a Member of the Committee on Labour and Social Welfare - when the issue of KQ was initiated and we made a good report then. The management and the board of directors of KQ literally refused to appear before the Committee. They sent lawyers and arrogantly absconded the summons.

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Thank you, Mr. Temporary Speaker, Sir. I thank Sen. (Prof.) Anyang’-Nyong’o for leading us in this Committee, and especially giving me an opportunity to sit as an ex officio. It gave me a chance to see how poor and how weak the KQ management is. It is so weak that it is unable to make strategic decisions on fundamental issues that can make KQ profitable. What do I mean? This team is unable to make strategic decisions on planning of routes and networks across Africa where Kenya is obviously the lead airline.

Mr. Temporary Speaker, Sir, having gone into partnership, which is something nice, they have concentrated on it with European airlines, where competition is impossible, instead of making such strategic partnerships with local airlines in Africa, especially the eastern region of Africa. What is more is that the team is not in control even of the benefits that accrue out of the partnership. They even have no idea of how much they get as their rightful share from their partnership with KLM. The KQ is in partnership with KLM, but when you land in Amsterdam using the KQ to go to other European Union (EU) capitals, it is KLM that takes you there. However, when KLM lands in Nairobi – it is in partnership with the KQ – it goes ahead to fly to other capital

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You have a half a minute.

Thank you, Mr. Temporary Speaker, Sir, for that accommodation.

The KQ management deliberately starved this Committee of strategic documents that would have helped us to get to the bottom of the corruption that is currently ongoing. We were not given documents. In fact, we have no idea as a Committee, as we report back to you, about the operating costs, which are very high and pose liquidity problems to the company. The management refused to give us documents. The Ethics and Anti- Corruption Commission (EACC) and the Criminal Investigation Department (CID) should move in to make arrests because all these people, especially Mr. Titus Naikuni, are corrupt. Mr. Naikuni joined the KQ when he was an ordinary Kenyan. Today, he is a celebrity by way of wealth.

Your time is up!

Mr. Temporary Speaker, Sir, the issues have been raised extensively. However, I wish to start by thanking the Committee for doing a very sterling job, particularly, the manner in which the report is presented. It is for posterity, easy to read and has a very good flow. That means that a lot of time was invested by the Special Committee to do this work. I also thank my friend and mentor, Sen. (Prof.) Anyang'-

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Mr. Temporary Speaker, Sir, I also add my voice in supporting this report. We sat in this Committee under the able stewardship of the Chairperson, Sen. (Prof.) Anyang'-Nyong'o, who was very diligent and passionate and the Vice

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Who is temporary one? For your information, you have four minutes before the yellow light is turned on and then you have one minute to the end of your presentation. Just organise yourselves.

Mr. Temporary Speaker, Sir, I also thank the Committee and its Chairperson. First of all, it is unfortunate that the National Assembly approved money again to the same institution that we are trying to see how to remove from the darkness that they are in.

Let me also send a message to the Committee on Budget and Appropriation of the National Assembly. Some of the challenges that we are facing today in finances is because of some of the agreements and resolutions that they passed. It is time that they looked at the new Constitution and understood when they were given those powers, they were to ensure that the country is stable in how it is running its finances.

The attitude and character of workers of Kenya Airways does not show that they have in mind that we are using public funds to ensure that we sustain them. You enter into an aircraft for a trip of eight hours and the crew itself is already angry and anxious. You cannot even understand. Therefore, if you want to start reviving such an airline which is a brand and images your country, then you must start with the human resource that is there. For KQ, that one they lost. It is because they took advantage of the fact that nobody questions. Therefore, the same clients that you would want to give you resources are the same ones that will run away.

Mr. Temporary Speaker, Sir, another key issue that we need to ask ourselves is, when you are going down, you already have losses in your company, why should you create subsidiaries? All KQ did was start Jambo Jet and make more profit for the individuals who have just killed this airline. They will tell you it is Jambo Jet, but it is KQ by the same people. In this country, people do not care and they can decide that you are better off dying with your children as long as, I, as an individual moves on with my children. It is a man-eat-man society. It is wanting.

What was Mr. Titus Naikuni thinking when he was leaving? As much as we are blaming Mr. Mbuvi Ngunze, we need to ask ourselves where Mr. Naikuni is because he is the person we need to put into jail. It is time, if indeed, my Government is serious about corruption; we stopped these inquiries and took action. We know so-and-so led to the collapse of Uchumi chain of supermarkets or KQ. We should take stern action against them. We should not think of appointing them to other institutions to mess them up. These appointments do not make sense at all in Kenya any more. It is time we stopped inquiries and said enough is enough. If it is Beatrice Elachi or so-and-so who has “finished” this institution, let her be jailed. That is when we will stand up and say that we are fighting this corruption in this country.

Mr. Temporary Speaker, Sir, we also need to look at our character and not hide in the skeletons of the things that we have done. That is why we find it very hard to point out that so-and-so is corrupt. You know that you have a skeleton locked somewhere

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Mr. Temporary Speaker, Sir, I congratulate my boss, Sen. (Prof.) Anyang'-Nyong'o. He took that leadership very seriously. I am glad to have been elected the Vice-Chair of the Committee. We had a very strong team that worked very well.

Mr. Temporary Speaker, Sir, US$700 million is a lot of money by any standards. Kenya Airways requires this amount as an injection of capital to be revived and thrive. When a country spends that kind of money on a company, then it must demand that at some point, at the end of the tunnel, there must be some light and a return on an investment like that.

Secondly, we must ask ourselves why it is necessary for us to inject that kind of money into the organisation. Various speakers have spoken on the matter and indeed, pointed out why this is necessary. I support them. It would be a big loss for Kenya if Kenya Airways were to sink. During the investigations that we carried out, there were people who recommended that we let Kenya Airways collapse. However, when you think about the benefit of the airline in terms of the hub nature, the general economy, infusion in tourism and other areas of our economy, then we have no choice but to revive the airline. But in order for us to put in the Ksh70 billion, we must ensure that the conditions that have been recommended by the Committee are kept to date.

Mr. Temporary Speaker, Sir, Sen. Keter has just said that there was another inquiry into Kenya Airways. It made certain recommendations that were never followed. The issue is whether this time round, we will follow the recommendations that the Committee has made.

It has been said that all that is necessary for the triumph of evil is that good men do nothing. All we need to do is give these recommendations and nothing is done. We can guarantee that unless something is done on the recommendations that we have made, including the complete restructuring of the board and management, it is then not of any use for us to put the money there.

Kenya Airways has made a litany of management mistakes that should make very good study for institutions such as universities on how not do business; how not to run airlines. This study must be made useful and given to other management institutions so that in future, nothing is repeated.

Sen. Wako spoke about the Special Purpose Vehicles (SPVs) . They are normal business management tools in many organisations. However, when there is a public institution such as this one, it is necessary for transparency and accountability to reign supreme. It is necessary for Kenyans to understand that out of the US$700 million that we need to infuse in this company, the Kenya Government is supposed to infuse 29 per

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You are the Vice Chairperson, so you have one more minute.

Mr. Temporary Speaker, Sir, there is a difference between code- sharing and shareholding. The code-sharing arrangement must be studied and revised by the new structure of Kenya Airways.

Finally, we recommended about the marketing director. The issue of how Kenya Airways is pricing its tickets is so serious and severe. However, one of the reasons is because in Kenya Airways, the marketing team that sells the tickets and the corporation’s team that sets the price of the tickets are completely different. In other words, the right hand does not know what the left hand is doing. We will not micromanage Kenya Airways. This House does not have the capacity to micromanage Kenya Airways but we have the capacity to advise the Government; that if you want to put in money; get the conditions correct.

Thank you, Mr. Temporary Speaker, Sir.

Hon. Senators, we have one hour and 10 minutes before we end this morning session. We have two very important Motions ahead of us. I propose that the next set of speakers; we have about five Members who will do three minutes each so that we can prosecute the two other equally important Motions.

Mr. Temporary Speaker, Sir, first, I take this opportunity to congratulate you on your election to chair the proceedings of this House. In the short while you have been there, you have demonstrated quality and authority.

Kabisa!

Kenya Airways as the national carrier is critical to the economy of Kenya considering the impact of its operations in terms of foreign exchange earnings. Furthermore, it plays a major role in promoting tourism in this country.

There is also need to make Jomo Kenyatta International Airport (JKIA) a regional hub, so that we can accrue the benefits that go with the achievement of such a status. We cannot achieve this status without a strong national carrier.

The situation at Kenya Airways today could have been caused and, in fact, is attributable to an inappropriate structure in the management of the board of directors, then a very poor quality management which has been in place; a board of directors in which management is overrepresented which dilutes the power of the board to give policy direction and carry out its oversight functions.

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Thank you, Mr. Temporary Speaker, Sir, for giving me a chance to add my voice to this Motion.

First, I take the opportunity to thank Sen. (Prof.) Anyang’ Nyong’o and Sen. Kagwe for a job well done. As much as we are trying to support this Airline, it is painful. I want to echo the sentiments brought about by Sen. Wetangula when he said that as much as this Airline was going down, we need to bring to book and punish or do something to people who brought this airline down.

Mr. Temporary Speaker, Sir, we look at the costing of tickets and it is also sad to hear Sen. Kagwe say that the right hand does not know what the left hand is doing, and then you pay expensively for this Airline and when you get into them, you are given groundnuts. You look at it and wonder if it is the cost of what you paid for. As much as we want to support this Airline, we also need to advise them on how they will manage their resources and how they will manage the money we pay when we pay for those tickets because it is expensive and we expect that when you get into KQ, you expect to be treated much better. When you get into Emirates, for example, the treatment is very good. If you look at it and compare with what you have paid, you feel satisfied. As a Senate, this is a job well done and we need to continue supporting and also recommending things that will help them and help Kenyans who use KQ to see value for their money.

Thank you. I beg to support.

Thank you, Mr. Temporary Speaker, Sir. I would also like to add my voice to the Report by the Select Committee on the Inquiry into the Affairs of Kenya Airways.

I have looked at the observations that the Committee made and I see that the most contributing factors to the mismanagement of the company touches on the top management and mismanagement of funds. The human resource issue is also one of them. When KQ partnered with KLM, I thought it was going to be for the better. If we have continued bailing out KQ, what has happened to that partnership? We need to look into the partnership and find out where it went wrong because I would not see how you can partner with someone to improve and yet you are doing poorly.

Mr. Temporary Speaker, Sir, on the part of mismanagement of the company, I think the top management and the board should be investigated and action taken. We want to see the thieves taken to court. If someone has stolen money, like the National

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Thank you, Mr. Temporary Speaker, Sir. I would like to thank the Chair of the Committee who was very patriotic and for having brought up the issue when KQ was still afloat. We have heard issues where institutions have gone down before we can have commissions to look at them. For example KenRen, Halaal, Macadamias and all those other projects which siphoned a lot of our money.

Mr. Temporary Speaker, Sir, I want to mention only one thing which I experienced as I sat in this Committee. The very non-strategic decisions that were made by the management are so stirring. For example, the management of KQ after entering into agreement with other airlines to transport passengers and goods to Nairobi went out of their way and made a decision to buy Embraer planes. These are the planes that are known all over that they do not have capacity to carry cargo. In fact, they have a difficulty carrying hand luggage.

This has been the big problem where airlines have deposited passengers and goods at the hub of Jomo Kenyatta International Airport, and KQ with its Embraers cannot carry luggage. This is the biggest complaint that passengers who have had to make connections in Nairobi have had to leave their luggage in Nairobi because there is no capacity in the Embraer airlines that the management decided to buy even after entering into agreement with other airlines. These are the very non-strategic decisions that cause some of these problems.

Mr. Temporary Speaker, Sir, secondly, the decision on the promotion of KQ is not selling. For example, you have something called “flying blue” where you accumulate your miles so that you can be able to use later to travel, I do not think there is any Senator in this House that has been able to use this even if they have thousands of miles. This is very bad in terms of promotion because it does not help KQ. These are some of the things that derail KQ. They have engaged a consultant to help to manage and I can see a short fall because there is no mechanism which you can use to evaluate what the consultant is going to recommend. There must be a mechanism which we can monitor even the opinions of the consultant as they try to resuscitate KQ.

I want to support this Report and hope that some implementation can be carried out on the recommendations that have been made.

Thank you.

Thank you, Mr. Temporary Speaker, Sir, for recognizing that I have to say something as a Member of the same Committee. First, I want to congratulate you for taking the Chair. It is a wonderful seat and I wish everybody else can have a test of it. It is important to know that the composition of that Committee is and will be

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Sen. Karaba, are you suggesting that in this House there are other Members who, if they sat in that Committee they would not be serious?

No, Mr. Temporary Speaker, Sir. If that is what you have understood, I am saying that we are all serious but they were taking the business very seriously including you, the Chair, because I know you are also a Member of that Committee. What has been recommended, therefore, should not be altered. It is as a result of sitting for long hours. It took the Committee time to visit the KQ hub. What is recommended, therefore, should be implemented.

Mr. Temporary Speaker, Sir, it is important to know that in Africa, KQ used to be the Pride of Africa and it is no longer because it has been overtaken by even other small airlines. We need to find out why it has gone down and it is explained in that document. So, if it is true that Ethiopian Airways is doing better than Kenya Airways, then we need to go the Ethiopian way. If they are strict with their management, that is what we should do because our KQ is in jeopardy and it is declining. Kenya itself – because without KQ operating in Kenya – would not be known to be a country because the national airline carrier is the country at large.

Mr. Temporary Speaker, Sir, we should embark on the Committee’s Report and recommend that everything which is contained there should be implemented to the letter and those who were involved to be taken to the gallows. That is my recommendation.

Thank you.

Mr. Temporary Speaker, Sir, thank you for allowing me to contribute in support of this Report. Many Kenyans are suffering due to the looting of taxpayers’ money by some people. We then establish commissions of inquiry which spend more money. We are impoverishing this country because money is being lost everyday. The way the issue of corruption is being handled is not promising at all.

I remember Sen. Elachi saying that since some people who were in leadership used to loot, if they are given an opportunity to serve in a commission of inquiry, they will not disclose what happened. The way things are run in this country is questionable. It appears like we are selling our own country together with our people.

On a lighter note, why can we not sell the whole country and everybody be given a share and we forget about Kenya, because where we are heading is not promising? Is it fair for us to go on with the current trend in addressing issues of corruption? When somebody loots from one company, he is transferred to another company to continue looting, instead of charging and sentencing them. If we did that, Kenyans will be accountable for their actions.

I support.

Mr. Temporary Speaker, Sir, first, I would like to thank the Committee and particularly the Chairperson, who was my Chairman in the Public Investments Committee in 1993 and 1994, when we were young legislators. We were the first to recommend that such characters who have committed economic crimes must not

December 3, 2015 SENATEDEBATES

Thank you, Mr. Temporary Speaker, Sir, for this opportunity. I want to thank the Chairperson of this Committee, Sen. (Prof.) Anyang’-Nyong’o. I have never seen the level of dedication and commitment that I have seen from many who chair committees. He was always there on time.

This Committee did a lot of investigations and went out of its way to call a number of people from the various sectors and went through the paperwork. Therefore, this Report is very comprehensive and a good effort that we have put together as Members of that Committee. We are addressing an issue that is very important because we are talking about “the Pride of Africa,” no longer being the pride of Africa and the circumstances where others did not sink. For example, why were the market forces against Kenya Airways and not other airlines that were able to thrive? This means that there were certain specific wrong decisions that were made at specific times and the Report outlines this well.

The redundancy issue of 2011 and the way it was done has been outlined. It was de-motivating for the workers who remained. We heard stories of workers who were informed that they had been retrenched when they were in the air and in other countries and were expected to fly back. This even became a security issue for those who were left behind, because they were not sure whether they would maintain their jobs.

Therefore, this created a situation where the human resource became a critical issue and took the airline even further down. There were cases of hiring of foreign workers for certain routes in Thailand, Ghana and Cameroon, when there are locals who can be hired. This was against the clear law that says that you cannot hire from outside when you have labour from within. This created a huge wage bill and problems with the union because most people who were offered employment externally were not members of the union. This created the problem.

December 3, 2015 SENATEDEBATES

There being no other interest on this matter, I now call upon the Mover to reply. In the same spirit, I hope you can take the shortest time, so that we can proceed.

Thank you very much, Mr. Temporary Speaker, Sir. I would really want to thank my colleagues who have contributed to this Motion and the proposals that they have made. . Thank you for your accolades. Each and every one of us who has spoken here this morning has made very useful suggestions which will go a long way in the implementation of this Report. There is consensus in the House that a forensic audit should be undertaken of Kenya Airways. I want to propose that the final recommendation in this report: Recommendation No.14 should read;-

“The Committee further recommends that a forensic audit be carried out into the operations of the airline, so as to establish any misappropriations and those culpable should then be dealt with in accordance with law.”

I think that will capture the misappropriation and corruption.

On point of order. Mr. Temporary Speaker, Sir. I rise on a point of order on purely a matter of procedure. I support what Sen. (Prof.) Anyang’- Nyong’o is doing but that is not the way to do it. He would require to move an amendment and he does not require to give notice because he is the Mover of the Motion. He has to move an amendment in the normal manner so that then it becomes part of the report for it to be tidy because these are matters that have got legal implications. I request the Chair to direct that he does it in the normal way.

Mr. Temporary Speaker, Sir, I thank my friend, Sen. (Dr.) Khalwale, and therefore, I would like to move an amendment to the Report to the extent that we add Recommendation No.14 which should read:-

“The Committee further recommends that a forensic audit be carried out into the operations of the Airline, so as to establish any misappropriations or corruption and those culpable, who should then be dealt with in accordance with law.”

Sen. (Prof.) Anyang’- Nyong’o, according to the Standing Orders, you cannot make an amendment when you are replying but in any case the HANSARD has captured what you are saying. Just conclude making your reply.

Mr. Temporary Speaker, Sir, in my reply, that will be recorded and I am sure that the Committee on Implementation when they are forwarding the report to the implementers will include that summary of the expression in the House during the debate.

December 3, 2015 SENATEDEBATES

I really do not want us to stretch that far.

Mr. Temporary Speaker, Sir, what will go to the Committee on Implementation and indeed any other agencies like Ethics and Anti- Corruption Commission (EACC) or CID will use the report and not the HANSARD. At this stage, the Chair needs to guide the House on what we can do so that it is part of the report. These are very serious issues.

We are saying that we should have had that amendment at an earlier time, you cannot move it when you are replying to the Motion. Since the Committee on Implementation is a Committee of this House, they will be properly seized of the Report but also of the HANSARD. We hope that then the Committee can proceed on that line.

Sen. (Prof.) Anyang’-Nyong’o, conclude.

Mr. Temporary Speaker Sir, I get your point and I fully support it .Just two more points. In implementation, I would like to support and underscore Sen. Keter’s observations that the Airline adopted the issue of outsourcing labour as a way of avoiding labour unions which is unconstitutional. In the Report, we have pointed that fact that you cannot outsource simply to avoid labour law unions. All workers under this Republic have the constitutional right to join a union. Even if it is painful to their employers, it is their right and no step should be taken by an employer to punish that or try to circumvent that fact.

The second thing I want to observe before concluding is the observation made by Sen. Lesuuda, that indeed the Airline tried to use excuses like Ebola, terrorism and so on .We do not deny that these things were risks in the environment but what is more important is that the Airline should have done sensitivity test and risk analysis to know what could provide risk in the implementation of Mawingu plan. In as much as we asked, we did not receive any kind of mathematical analysis of these risks before Mawingu was started so that when they did occur, they would know the magnitude or the reason and how to avoid them. All these just leads to what Sen (Dr.) Khalwale said; management weakness which should have been avoided and which has led the Airline into the current calamity.

Having said all that, Mr. Temporary Speaker, Sir, it is the opinion of this House and we are happy in this regard that this House solidly feels and recommends that the Airline be revived and recapitalized on condition that the recommendation to restructure management and now the recommendation to ensure that those culpable face the wrath of the law are taken to account.

I beg to move.

December 3, 2015 SENATEDEBATES STAFF TO RECORD STATEMENTS REGARDING THE FAILURE BY THE GOVERNOR FOR KAKAMEGA TO APPEAR BEFORE CPAIC

December 3, 2015 SENATEDEBATES STAFF TO RECORD STATEMENTS REGARDING THE FAILURE BY THE GOVERNOR FOR KAKAMEGA TO APPEAR BEFORE CPAIC

December 3, 2015 SENATEDEBATES

Mr. Temporary Speaker, Sir, as I second this Motion, Article 125 of the Constitution empowers both Houses of Parliament to summon any person to appear before its Committees. The words used in Article 125 are ‘any person.’ If the drafters intended to exempt governors from Article 125 and its operations, they would have stated so.

Secondly, this matter has been given judicial interpretation. The Council of Governors undertook a misguided route by litigating against the appearance of governors before the Committees of the Senate. They believed that they are big; that they cannot be summoned by this House. The courts, which I thank in my remarks here, came out emphatically clear that the governors must submit themselves to the authority and jurisdiction of the Senate and its Committees.

Having run out of options, two things happened: First, we have seen a number of governors who have voluntarily offered themselves for scrutiny and questioning and appearing before the Committees. For purposes of record, I commend them. Some of them have been voluntarily appearing before the Senate Committee even when the matter was pending in court while others think that the governorship is the most important thing that ever happened in the history of our country. Little do they know that governors are servants of the people in the counties and that there is nothing more dignifying than a governor committed to the rule of law.

Mr. Temporary Speaker, Sir, thirdly, some other governors have resorted to a game of hide and seek. In the morning, they allege they are unwell and in the afternoon, they claim they have taken their children to school and the following day they claim other manner of things to try and escape from the scrutiny of this House and its Committees.

Time has come for this Senate to stamp its authority. I thank Sen. (Dr.) Khalwale and his Committee for being steadfast, committed and focused and for refusing to be intimidated. Similarly, I thank the Director of Public Prosecutions (DPP) who in my view as a citizen of Kenya, and as the Leader of Government Business in this House, is in the

December 3, 2015 SENATEDEBATES

Mr. Temporary Speaker, Sir, as I second this Motion, Article 125 of the Constitution empowers both Houses of Parliament to summon any person to appear before its Committees. The words used in Article 125 are ‘any person.’ If the drafters intended to exempt governors from Article 125 and its operations, they would have stated so.

Secondly, this matter has been given judicial interpretation. The Council of Governors undertook a misguided route by litigating against the appearance of governors before the Committees of the Senate. They believed that they are big; that they cannot be summoned by this House. The courts, which I thank in my remarks here, came out emphatically clear that the governors must submit themselves to the authority and jurisdiction of the Senate and its Committees.

Having run out of options, two things happened: First, we have seen a number of governors who have voluntarily offered themselves for scrutiny and questioning and appearing before the Committees. For purposes of record, I commend them. Some of them have been voluntarily appearing before the Senate Committee even when the matter was pending in court while others think that the governorship is the most important thing that ever happened in the history of our country. Little do they know that governors are servants of the people in the counties and that there is nothing more dignifying than a governor committed to the rule of law.

Mr. Temporary Speaker, Sir, thirdly, some other governors have resorted to a game of hide and seek. In the morning, they allege they are unwell and in the afternoon, they claim they have taken their children to school and the following day they claim other manner of things to try and escape from the scrutiny of this House and its Committees.

Time has come for this Senate to stamp its authority. I thank Sen. (Dr.) Khalwale and his Committee for being steadfast, committed and focused and for refusing to be intimidated. Similarly, I thank the Director of Public Prosecutions (DPP) who in my view as a citizen of Kenya, and as the Leader of Government Business in this House, is in the

December 3, 2015 SENATEDEBATES

Mr. Temporary Speaker, Sir, I beg to move the following Motion:- THAT, this House adopts the Report of the Standing Committee on Legal Affairs and Human Rights on the extension of the mandate of the Commission for the Implementation of the Constitution (CIC) . The mandate of the Commission is clearly set out under our Constitution.

Mr. Temporary Speaker, Sir, I beg to move the following Motion:- THAT, this House adopts the Report of the Standing Committee on Legal Affairs and Human Rights on the extension of the mandate of the Commission for the Implementation of the Constitution (CIC) . The mandate of the Commission is clearly set out under our Constitution.

Sen. Wako, for information’s sake, we have 25 minutes only for the entire process.

Mr. Temporary Speaker, Sir, I will make sure that I summarise. The mandate of the CIC is to coordinate with the Attorney-General and the Kenya Law Reform Commission (KLRC) in preparing for tabling in Parliament, the legislation required to implement the Constitution. The timelines have been set out in the Fifth Schedule. They are like a watchdog over that legislation. That being the work of the Commission, Section 5 (7) of the Sixth Schedule of the Constitution sets the term of the CIC as five years, and this will come to an end on 27th December, 2015. It provides that the National Assembly can extend its life. However, it also provides that we have to concur that the work has been done by the Commission.

In the exercise of that function, we called members of the CIC to appear before us and give us a report on what they have achieved so far and what remains to be done

December 3, 2015 SENATEDEBATES

Mr. Temporary Speaker, Sir, I thank my Chairman for moving the Motion and I am here to second it. Just to highlight, according to the Sixth Schedule of the Constitution – Commission for Implementation of the Constitution -

Section 5 (7) says very clearly that:-

“The Commission for the Implementation of the Constitution shall stand dissolved five years after it is established or at the full implementation of this Constitution as determined by Parliament, whichever is sooner, but the National Assembly may, by resolution, extend its life.” Mr. Temporary Speaker, Sir, it envisages that the CIC shall stand dissolved at the full implementation of the Constitution. Whichever is sooner; which means either we implement it in five years or if they will have finished the implementation after five years, then we have the prerogative to extend it. Therefore, in the circumstances, it is evident that we have not realised the full implementation of the Constitution. This Parliament is duty-bound to ensure that this Commission serves the full life of the implementation of the Constitution for reasons stated by my Chairperson; the outstanding work.This discretion must be exercised with respect to reality.

When the National Assembly, in its own resolution, says that it does not need the extension, it is burying its head in the sand. We need to give them the mandate to fully implement the Constitution.

Quite a number of Bills have not been processed to Parliament and some are outstanding including the one year extension this year which we granted for the implementation of the Constitution. So, it is a contradiction on one side to extend your own term with respect to enacting laws that are provided within the implementation time frame and at the same time disband the Commission that is supposed to deal with the matters of implementation. The Senate must speak to this matter so that that defect is cured. We have not implemented the Constitution so therefore, we cannot disband the CIC.

December 3, 2015 SENATEDEBATES

Mr. Temporary Speaker, Sir, from the outset, I oppose this Motion. I do not feel convinced on why we need to extend the term of this Commission. For one, we must, as a country, get to a point where when you are a given some work to do, you do it diligently within the time given. I say that because we have had a habit as a country and especially the Commissions and the different taskforces that are established in this country, where you ensure that you do not finish what you are supposed to so that when your term ends, you ask for an extension for obvious reasons.

On a point of order, Mr. Temporary Speaker, Sir. It is in public record that the CIC itself has not sought an extension of their term. Is the Senator in order to insinuate that this Commission deliberately decided not to finish its work so that it can ask for an extension?

Mr. Temporary Speaker, Sir, I only alluded to the habit of Kenyans. I did not say this specific Commission has done that but I have said that, as a people, we have seen such habits of seeking extensions. I did not say that the CIC is seeking extension through the Committee.

Whatever the case, I think, as a country, we must come to a point where if you are given three years, it is something that you knew that you will need to finish within three years. The balance of the implementation of these laws can be done though the established organs in Government; that is Parliament – we are here for that purpose – and whichever existing organ that needs to do its work for that work to be finished.

In any case, the Chairperson of the Commission has alluded in public that he is not even interested. Whether it is playing reverse so that you feel pity and extend, I do not know why he did that. It is on record and in the public domain. For me, what is underlining is that we must develop a culture of finishing our job within the stipulated time. As a Commission, if you are given a mandate of five years, make sure you execute it within those five years. Let us deal with the balance after your term has come to an end but do not hope for an extension.

I oppose.

Members, because of the constraints of time, let us limit our contributions to three minutes.

Mr. Temporary Speaker, Sir, the Constitution is an extremely important document. We should not be in a hurry to implement it in a shoddy manner. The CIC does not set the agenda; Parliament does. The Committee is there to referee what Parliament does and make sure that it is in line with the Constitution. So, if 18 laws have not been passed, it is not a mistake of the CIC.It is a shortcoming in Parliament. Therefore, what is being asked for is more time for the CIC to exist while Parliament is doing its work and presenting the law so made to the CIC to do its work and responsibility.

Having said that, while supporting the extension of time for the CIC so that it can superintend the passing of these laws by Parliament, I would like the Committee on Legal

December 3, 2015 SENATEDEBATES

Mr. Temporary Speaker, Sir, I stand to oppose. This is because even when the time came for the Chairperson of the Committee on Legal Affairs and Human Rights to retire, he did so. He is here to tell us. He did not seek for an extension of his time.

The watchdogs are in this House and the National Assembly. Whatever the limits, we are here to oversee that the Constitution will be implemented within the set time limits.

I stand to oppose and I tell the Chairperson of that Committee, please, do not recommend to us something you do not believe in.

Mr. Temporary Speaker, Sir, I rise to support this Motion on two points. The first one is that it is our tradition in this House for a technical issue like this, we, normally, leave it to the Committee to be the resource. So, the Committee having tabled it, I am sure they have sufficiently been informed to ask us to support them and this, I do.

My second reason is that implementation of this Constitution is not a simple matter. Therefore, there are certain institutional strategies, procedures and tactics that have been tabled by Mr. Charles Nyachae and his colleagues that would benefit the country, if we allowed that institutional memory to carry on for a further two years or so. We should not look at CIC as Mr. Charles Nyachae. I am not saying that Mr. Charles Nyachae has failed. However, if anybody has any preferences other than Mr. Nyachae or any of his colleagues, that should not be the reason why we should kill this Motion.

I support.

December 3, 2015 SENATEDEBATES

Mr. Temporary Speaker, Sir, I rise to support the extension of the term of the Commission. I do so because at this time, when we have teething problems on the implementation of the Constitution, those who are providing services to Kenyans do not understand what they are supposed to do. We all go to the Committee for the Implementation of the Constitution (CIC) for interpretation. As a Senator representing persons with disabilities (PWDs) ; they are beneficiaries of the Commission. We always consult and have meetings with them as far as the implementation of the Constitution is concerned.

I support the extension to allow them assist Kenyans get quality service delivery and give us a way forward that we can deliver to Kenyans what is contained in the Constitution the way is supposed to be done.

For us not to extend the term of this Commission is like killing the Constitution. We will all lose direction simply because nobody will be there to interpret and give us direction on how to implement the Constitution in a way it is supposed to serve Kenyans.

Mr. Temporary Speaker, Sir, with those remarks, I beg to support.

Mr. Temporary Speaker, Sir, I rise to support this proposal. I am a Member of the Committee on Legal Affairs and Human Rights. We had a lengthy discussion with this Commission. The Commission is not Mr. Nyachae. Let me confirm to this House that he personally confirmed to the Committee that he is not interested in serving this Commission even if it is given an extension. This clearly indicates that the Commission is not Mr. Nyachae.

Secondly, there is a lacuna within the provision of the legislation that is currently governing CIC in terms of handing over the work of the Commission. In that case, it is important for us to see how this Commission’s work can be taken over. The Constitution is a legal instrument. It is the Bible for this country. We need to read between the lines and ensure that it is implemented to that last spirit within those provisions.

Mr. Temporary Speaker, Sir, we have looked at the counties. As a Committee on Legal Affairs and Human Rights, we have also looked at the legislations that are coming up at the county level. Most of them are inconsistent with the Constitution. It is important for the CIC to remain so that they can oversee that whatever they are doing is within the provision of the Constitution and we do not have any legislations that are developed by the county governments that are inconsistent with the Constitution.

It is important for us to retain the CIC so that it continues to build the capacity of the county structure that we have within our counties.

Mr. Temporary Speaker, Sir, with those few remarks, I beg to support.

Mr. Temporary Speaker, Sir, on this Motion, I would like to say following:-

First, I believe that the success of the CIC has been mixed in the last five years. I also hold a personal view, which I shared with the Chairman, Mr. Nyachae. At some point, I held the view that some of the advisories and statements that the CIC was making were biased against the Senate. I confronted the Chairman and I told him I hoped that it

December 3, 2015 SENATEDEBATES

Mr. Temporary Speaker, Sir, time is up but I would like to add my voice in support of this Motion and probably say what has not been said. I also agree that institutions are greater than individuals. We might not like the current Chairperson for various reasons but the institution is very important as we continue to implement our Constitution.

In addition, we hope that during the extension period, we will not find ourselves in the same situation after that period. I hope the Committee on Legal Affairs and Human Rights will look into these issues once it is agreed that the term be extended.

Finally, CIC also added its voice then that governors must be accountable and come before this House or any Committee that summons them. The Judiciary also supported this. Governors and all other leaders must respect the law and institutions that are there.

Mr. Temporary Speaker, with those remarks, I beg to support.

Mover, you have one minute to reply.

Mr. Temporary Speaker, Sir, I thank all those who have spoken in support of this Motion led by none other than the Senate Majority Leader. I appreciate. Just like you, I have had my quarrels with Mr. Nyachae; actually, professional ones because some of the opinions which he has stated off the cuff have not been consistent with the Constitution of the land. He has been a bit too loose.

However, a Commission is put there by the framers of this Constitution to be a watchdog on a legislative process. So, they have been forced into this situation because Parliament has not finalised what it is supposed to do under the Fifth Schedule of the Constitution, to enact all that legislation. Parliament admits that 18 legislations are yet to be passed by the National Assembly. Therefore, to that extent, it is necessary that the watchdog continues to be in existence until those 18 legislations are passed.

Time is up.

Mr. Temporary Speaker, I beg to reply.

Hon. Senators, I now put the question. This matter does not affect counties and, therefore, it will be a voice vote.

December 3, 2015 SENATEDEBATES

Hon. Senators, it is now 1.00 p.m. It is time to interrupt the proceedings of the Senate. The Senate stands adjourned until today, Thursday, 3rd December, 2015, at 2.30 p.m.

The Senate rose at 1.00 p.m.