Thursday, 7th November, 2019

Hon. Senators, I will defer Petition No.1.

Mr. Speaker, Sir, I beg to lay the following Papers on the Table of the Senate today, Thursday, 7th November, 2019.

Order, Members! Let us consult in low tones.

Mr. Speaker. Sir, on the Petition regarding alleged unlawful deprivation of a parcel of land situated in Kaputiei North, Kajiado County, the Petitioner, Mr. David Muigai Ng'ang'a, prayed that the Senate, through the relevant Committee, investigates the matter with a view of ensuring that his alleged parcel of land, namely Plot No. KJD/KAJIADO/KAPUTIEI NORTH/28126 is properly identified and reinstated back to him.

The Committee met with Ministry of Lands and Physical Planning on 13th February, 2019, and a resolution was made that the Registrar should ensure the petitioner is assisted to identify his parcel of land.

In the foregoing, the Committee notes that the petitioner, Mr. David Muigai Ng‟ang‟a, wrote a letter to the Committee informing the Committee that the Ministry of Lands and Physical Planning worked on his request and prayer, and that a fresh survey was done and new beacons placed to identify his parcel of land.

The Committee further noted that in his letter, he requested that the Director of Survey ensures that a plan with the mathematical coordinates of the new extract plan indicating his parcel of land is filed at the Lands Registry for future reference.

Mr. Speaker Sir, on the Petition regarding ownership of Mgeno Land Reserve, the petitioner prayed that the Senate assists in the gazettement of Mgeno Grazers' Integrated Management Committee members for easy management of the parcel of land and direct that the national Government to carry out survey and registration of Mgeno Community Land and issue title deeds for the parcel of land as well as direct revocation of the title deeds issued to illegal settlers.

The Committee, therefore, recommended as follows-

On a point of order, Mr. Speaker, Sir.

Sen. M. Kajwang‟, what is your point of order?

On a point of order. Mr. Speaker, Sir. It is a common practice in parliamentary democracies that when a Member is making a maiden speech, that speech shall be heard without interruption and interference. Am I in order, that Sen. Prengei---

On a point of order, Mr. Murkomen.

Order, Sen. M. Kajwang‟! What is your point of order, Sen. Murkomen?

Mr. Speaker, Sir, is it in order for Sen. M. Kajwang‟ to insinuate that Sen. Victor Prengei has not talked in this House for the last two-and-a-half years while in reality, as late as yesterday, he even spoke on the same platform?

Sen. M. Kajwang‟ is out of order! Sen. Prengei was making his speech on behalf of the Chairman of Committee on Land, Environment and Natural Resources.

On a point order, Mr. Speaker, Sir.

What is your point of order, Sen. Wetangula?

Mr. Speaker, Sir, is the distinguished Senator for Homa Bay in order to cast aspersions on a courageous young man, Sen. Prengei, who stood with men and women of courage and signed against the escalation of loans in this country?

I had already ruled Sen. M. Kajwang‟ out of order. Sen. Prengei, please, conclude.

Thank you, Mr. Speaker, Sir. The last recommendation that we made as the Committee on that particular Petition is that the Ministry of Petroleum and Mining as the regulator and licensor, investigates Sambruddha Resources Kenya Limited‟s compliance with the Community Land Act and takes appropriate action where a breach has been committed.

I do not see any interest. So, next Order.

Mr. Speaker, Sir, I beg to lay the following Paper on the Table of the Senate, today, Thursday 7th November 2019.

Next Order.

Mr. Speaker, Sir, I beg to give a notice of the following Motion-

THAT, the Senate notes the Report of the Standing Committee on Labour and Social Welfare on the 12th Session of the Conference of Parties to the Convention on the Rights of Persons with Disabilities held at the United Nations Headquarters in New York, USA, from 11th to 13th June, 2019.

Thank you, Mr. Speaker, Sir.

Next Order.

On a point order, Mr. Speaker, Sir.

What is your point of order, Sen. Dullo?

Mr. Speaker, Sir, I gave you a copy of my notice of Motion. Kindly, if you could allow me to give it.

Okay, it is because you just brought it here. Proceed.

Mr. Speaker, Sir, it is a bit urgent that is why I ambushed you, but thank you very much for this opportunity.

I wish to give a notice of Motion for extension of time for the ad hoc Committee to investigating the Managed Equipment Scheme.

THAT, aware that the Senate resolved to establish a select Committee comprising nine Senators to investigate and establish the facts surrounding the leasing of the medical equipment in the now 119 beneficiary hospitals countrywide; APRECIATING THAT the mandate of the Select Committee is due to lapse on Friday, 8th November 2019, and regretting due to heavy workload and sheer magnitude of the assignment, the Committee is yet to table its Report in the House and requires more time to conduct a further and thorough inquiry into the subject matter of its mandate; NOW THEREFORE, the Senate resolves to renew the mandate of the Committee for a further period of 45 days to enable it conclude its work and table its report in the House. Thank you.

Next Order.

Thank you, Mr. Speaker, Sir. I rise pursuant to Standing Order No.51 (1) (a) to make a Statement on the issue of national concern on the financial autonomy and independence of the Judiciary in Kenya.

Mr. Speaker, Sir, access to justice for millions of Kenyans is at a risk. As you may be aware, the Judiciary is facing serious financial constraints from the recent statement by the Chief Justice, Hon. David Maraga. Operations of the Judiciary have been crippled by the alleged budget cuts. The Senate Standing Committee on Justice, Legal Affairs and Human Rights has noted this with great concern.

The Judiciary has been long considered an instrument of state power whose function is to control the constitutionality of the executive and the legislature. In the case

of Madbury vs. Madison 1808, the Supreme Court of the United States of America stated that the most important domain in the separation of State power is an independent Judiciary as the guarantor of the rule of law.

In Kenya‟s constitutional development, particularly in the 1990s and early 2000, the Judiciary and the Legislature were consistently emasculated and their powers to check the Executive significantly eroded. Of the three arms of Government, the Judiciary‟s role in checking the Executive was most compromised in effect leaving this institution as an appendage of the Attorney General‟s Office.

The Judiciary lacked both operational and financial independence. The Executive exercised fiscal control over it. The budget of the Judiciary was a vote under a Ministry that was traditionally exercised by the Attorney General and, subsequently, by the Minister of Justice and Constitutional Affairs during the NARC Administration. As a result, the terms of service of judicial officers, their budgetary provisions and related matters were decided by the Executive thus further diluting the independence of the Judiciary.

Mr. Speaker, Sir, Article 1 of the Constitution of Kenya states that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution. It further states that the people may exercise this power, either directly or indirectly, through their democratically elected representatives. Sovereign power is delegated to the three arms of Government; namely, the Judiciary, the Executive and the Legislature. However, the three arms of Government are supposed to be independent and to exhibit checks and balances as such.

During the constitutional review process, issues that impeded the work and independence of Judiciary were addressed. The Committee of Experts noted that there was need to reinvent the integrity in the system of administration of justice and to inject public confidence in the vetting and work of judges and magistrates.

Further, there was need to protect the appointment of judges from political pressures thus resulting in removal of the requirement of parliamentary approval for all judicial appointments other than the Chief Justice and Deputy Chief Justice.

Mr. Speaker, Sir, the Constitution of Kenya assures the independence of Judiciary in Article 161 of our Constitution which states that:-

“In the exercise of judicial authority, the Judiciary as constituted by Article 161 shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.” In addition to this, the Judiciary Fund is established pursuant to Article 173(1) of the Constitution of Kenya. The Fund was established to give the Judiciary financial autonomy and control over financial resources required to fund its operations and not to be under the mercy or control of the Executive or the Legislature.

It was thus determined that for the Judiciary to be independent, a proportion of the Government revenue ought to be dedicated to this Judiciary operations and should be payable outside the framework of periodic approvals in addition to Article 160(2)(3) and

Mr. Speaker, Sir, the best practice across the world on allocation of resources to the Judiciary as a shared national Budget is at 3.5 per cent. The trend over a five-year period, which I have given out, indicates that the budget allocation to the Judiciary as a share of national Budget have reduced over time.

Currently, the allocation to the Judiciary as a share of the national Budget is a mere 0.5 per cent in this financial year in comparison to the highest in Financial Year 2014/15 when it was 1.1 per cent yet, we know for a fact that judicial reforms require significant financial support and national budgets are invariably the key source of financing for the judicial system.

Mr. Speaker, Sir, the effect of 50 per cent budget reduction in the Judiciary would be catastrophic in the operation of the Judiciary and service delivery to the public. Some of the critical on-going projects by the Judiciary and service delivery to the public which we envisage are that each of the 47 counties should have a high court in their headquarters.

Some of the critical on-going projects by the Judiciary is recruitment of judges and magistrates to clear backlog of cases, harnessing technology through its working through and e-filing project, automation of proceedings of the anti-corruption courts to speed up the hearing of cases and even setting up a virtual courts to ensure that diaspora-- - Improving the infrastructure in prisons so that cells are not overcrowded and so that children are not held in custody together with adults. There is also recruitment of more judges to expedite the pending cases some of which are older than five years.

There is also establishment of mobile courts and construction of high court system stationed in each county as prescribed by the Constitution of Kenya in order to make justice accessible and affordable to take justice closer to the people. Currently, there are at least 20 tribunals to assist in the expeditious resolution of disputes. Any form of budget reduction means that tribunals and courts as a whole will not be able to execute their work hence creating a backlog of cases.

Mr. Speaker, Sir, judicial independence consists of two main elements; namely, decisional and institutional independence. The Judiciary should be independent of extraneous influences. This enables the Judiciary to render impartial and objective decisions in individual cases. The law and law alone must guide the court in determining the issues before it. In addition to this, the Judiciary is an independent organ of State and is an equal coordinator to other organs of Government.

The Judiciary cannot receive instructions or be controlled by any other arm or organ of Government. This has particular bearing on appointing and removal of judicial officers, their security of tenure, financial independence in terms of budgetary allocation and remunerations and the judicial discipline. If these two elements lack in assuring independence of our Judiciary, then we do not have a sound judicial system.

Mr. Speaker, Sir, an independent and accountable judiciary is an essential component of high quality, effective and efficient justice system and a prerequisite for a well-functioning governance system, including the security and economy of the nation. I urge all Senators to rise and support the principle of independence, separation of powers

and adequate financing of the Judiciary. Concerted efforts must be made to ensure that judicial system is adequately resourced and protected.

My Committee will do everything possible within the law and explore any possible legislative interventions to safeguard the financial autonomy and independence of the Judiciary.

As I conclude, I would like to say the following: “First, they came for the socialists, and I did not speak out because I was not a socialist. Then they came for the trade unionists, and I did not speak out because I was not a trade unionist. Then they came for the Jews, and I did not speak out because I was not a Jew. Then they came for me and there was no one left to speak for me.”

When they came for the Judiciary, I did not speak because I was not a member of the Judiciary. When they will come for me, as they did the other day, there will be no one else to speak for me.

I thank you, Mr. Speaker, Sir.

Proceed, Senate Majority Leader.

Mr. Speaker, Sir, I congratulate the Senate Committee on Justice, Human Rights and Legal Affairs for thinking through this very important statement.

In Article 6 (2) of the Constitution says- “The governments at the national and county levels are distinct and inter- dependent and shall conduct their mutual relations on the basis of consultation and cooperation.” Subsection (3) says- “A national State organ shall ensure reasonable access to its services in all parts of the Republic, so far as is appropriate to do so having regard to the nature of the service.” Mr. Speaker, Sir, I watched the Chief Justice in shock when he, in public glare, enumerated a number of frustrations he and the Judiciary are going through. To me, this was not such a surprise because we have enumerated similar concerns about the way the Senate is being treated.

The responsibility to protect institutions is the primary duty of those entrusted to do so. We usually read a prayer in this House that we have a responsibility entrusted to us, as Senators. There is also a responsibility entrusted to the Chief Justice to protect the Judiciary. It was not by accident that the people of Kenya established the Judicial Service Commission (JSC) where the Chief Justice is the Chairperson. It was also not by accident that the Attorney-General is a member who is a nexus on matters of justice, law and order between the Judiciary and the Executive.

Separation of power, as is it, is not a doctrine of frustrating the various arms of Government. It is a doctrine of cooperation, consultation and interdependence. This begs a very important question. This Statement is good, but it is not enough for this Committee

to come and issue this Statement. However, we would like the Attorney-General, who sits in both the Executive and the JSC, to come and sit before the Committee on Justice, Legal Affairs and Human Rights and tell us where the problem is in terms of cooperation between the Executive and the Judiciary.

Mr. Speaker, Sir, there are people who have trivialized the concerns raised by the Chief Justice, but those things are not trivial. When the Chief Justice complains about access to the VIP pavilion in the airport, he is not asking it because it is about himself. We know Justice Maraga is a very humble person. If you have Chief Justices from other countries visiting, you have a diplomatic duty. The principle of international law of reciprocity requires that we treat other Chief Justices from other friendly countries, the way they treat us when we go to their countries.

and juniors. It may appear as though it is the President to blame, but we are talking about Cabinet Secretaries not releasing money to the Judiciary.

That blame should not be on the President because he has immunity. Deal with the junior officers who are frustrating you because their responsibility is to represent the President correctly in their jobs and to advise him on what needs to be done. We cannot use conjecture and blame the President. Deal with the Cabinet Secretaries and the Principal Secretaries. Make the orders that are supposed to be made. Let the Judiciary stand and become a beacon of hope and confidence.

In conclusion, when the Council of Governors (CoG) went to the Supreme Court and asked the Court to make a determination on the Appropriation Bill, which was preceded by the Division of Revenue Bill, to make counties lose resources - These are the same issues the Chief Justice is raising - the Supreme Court, presided over by the Chief Justice, said that the CoG is not a state organ and, therefore, they have no jurisdiction to be heard. The same Constitution says that you must not use procedure and technicalities to deny substantive justice.

The same complaints counties are having are similar to the ones of the Judiciary. At that point, the Judiciary knew that they had a budget and they had already been allocated a certain amount for money. They did not want to disturb the Appropriation Bill because they had their money. But look at what has happened. If the Judiciary will not be bold when other institutions of Government have problems--- the Former Chief Justice Mutunga‟s Court was bold enough and made a decision that preserved the integrity of devolution and the jurisdiction of this House.

The Judiciary must continue being bold, notwithstanding the criticism they face from the rest of us. This is because if you accede an inch, they will come for a mile. You thought that you were nice by not doing away with the Appropriation Act and a legislation that is in place, look at what is happening. When they were done with the Senate and the county governments, they are now coming for you. The Judiciary must become bold in performing its responsibility.

I have said it before that as a Majority Leader in this House, there might be certain trappings of power that are associated to my office. However, those are temporary allocations. Tomorrow, if I do not have that position--- You could be the most powerful CS reported in all the newspapers and the next day, you are not in office. When you are left on your own and the State comes for you, it is only the Judiciary that can come to your rescue. That is where you can get orders to protect your rights under Chapter Four of the Constitution.

My advice to my friends who might be in the Jubilee Administration as Principal Secretaries, CSs and any other positions they hold is that power is temporary. Let us protect the Office of the Judiciary. Respect the institution of the Judiciary because tomorrow when you are without the titles, the only place you will run for preservation and protection of your rights is in the Judiciary. Let us not be shortsighted in denying them money and in pushing them to make decisions that favour the State at the expense of the rights of Kenyans. Then you will be on the receiving end for more years than the time you spent in public office.

I thank you, Mr. Speaker, Sir.

Thank you, Mr. Speaker, Sir. I want to begin as a witness. There was one time when I was at the airport going to Kisumu. I found the Chief Justice of South Africa at the Kenya Airways Lounge. This is a man who is admired in South Africa for many reasons, and he is a born-again Christian. While he was there, there was no Government officer with him. He was accompanied by the former Chief of Staff of Chief Justice Mutunga. He was awaiting the arrival of Chief Justice Maraga. I went and engaged him in a conversation.

the Constitution when it comes to presidential assent. The President is making the law constantly. If he has any problems, what he can bring before the Parliament are reservations. He cannot amend the laws of the Republic of Kenya. That is the responsibility of Parliament. It is happening every day, that when any matter goes to the President, he writes out the amendments. It is for Parliament to amend.

Mr. Speaker, Sir, secondly---

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

Sen. Orengo, will you receive the information? The Senate Minority Leader (Sen. Orengo) : Yes, I can receive information.

Mr. Speaker, Sir, I would like to inform and remind Sen. Orengo that former Speaker, hon. Ethuro, made three rulings on the issue of presidential memorandum. It is not possible for a presidential memorandum when it comes to Parliament, to be said it has been passed in the reverse if you do not achieve two-thirds.

Under Article 115, a decision must be made which must be a positive decision, either to pass it by more than a half of the Members of Parliament in place or to defeat it by two-thirds. That ruling is available for circulation. I can circulate it in the social media platforms of the Senate but it is also available in my office and Senators can get a copy. That should be the future of the discussions on presidential memoranda.

The Senate Minority Leader (Sen. Orengo) : Mr. Speaker, Sir, I thank the Leader of Majority for that information.

On top of it, the Senate is a very important institution. We have been made to be a very weak and emasculated institution. The Supreme Court has given a decision on the powers of the Senate. Those powers are being abused by the fact that Bills are not being brought to the Senate on account of non-compliance with Article 110 (3) .

Who can ensure that there is compliance with that provision? You cannot keep on running to the court because the President has powers which no organ of the State has. For example, as head of State and the Government, he is the person who upon himself, not only respects and upholds the Constitution, but safeguards the Constitution. The word “safeguard” is not used in relation to any other institution, it is used in relation to the President and the sovereignty of the Republic. If a Bill goes to him, where an institution is supposed to have played a role, the Office of the President is supposed to determine whether Article 110 (3) has been complied with.

This complaint that is being made by the Judiciary is not a single complaint; it involves all institutions. For example, the police is supposed to be a service, and that is why they are subject to processing through the Senate and the National Assembly. The National Assembly in its enthusiasm passed a law where now the appointment does not have to come to the Senate. So, the police are now become a force instead of a service. This Constitution wanted the police force to become a service.

For those who have regular audience with the President, this thing about the Judiciary--- The Speaker, you have occasions when you sit close to the President. I rarely have those occasions.

Yes, I can receive information.

Thank, you Mr. Speaker Sir. Sen. Cherargei, a young lawyer, has made us very proud this afternoon. The Statement he has brought to this House carries commitment, courage and hope that, indeed, we have, among our leadership, people who can stand up and say things as they are. They have the courage to tell the king that he is naked and not tell him he has a wonderful suit when he is naked.

Mr. Speaker, Sir, I thank the Leader of Majority for that information. On top of it, the Senate is a very important institution. We have been made to be a very weak and emasculated institution. The Supreme Court has given a decision on the powers of the Senate. Those powers are being abused by the fact that Bills are not being brought to the Senate on account of non-compliance with Article 110 (3) . Who can ensure that there is compliance with that provision? You cannot keep on running to the court because the President has powers which no organ of the State has. For example, as head of State and the Government, he is the person who upon himself, not only respects and upholds the Constitution, but safeguards the Constitution. The word “safeguard” is not used in relation to any other institution, it is used in relation to the President and the sovereignty of the Republic. If a Bill goes to him, where an institution is supposed to have played a role, the Office of the President is supposed to determine whether Article 110 (3) has been complied with. This complaint that is being made by the Judiciary is not a single complaint; it involves all institutions. For example, the police is supposed to be a service, and that is why they are subject to processing through the Senate and the National Assembly. The National Assembly in its enthusiasm passed a law where now the appointment does not have to come to the Senate. So, the police are now become a force instead of a service. This Constitution wanted the police force to become a service. For those who have regular audience with the President, this thing about the Judiciary--- The Speaker, you have occasions when you sit close to the President. I rarely have those occasions.

Thank, you Mr. Speaker Sir. Sen. Cherargei, a young lawyer, has made us very proud this afternoon. The Statement he has brought to this House carries commitment, courage and hope that, indeed, we have, among our leadership, people who can stand up and say things as they are. They have the courage to tell the king that he is naked and not tell him he has a wonderful suit when he is naked.

Mr. Speaker Sir, is the senior counsel and the honourable Senator for Bungoma County right in misleading this House that former President Moi lived in courts? Which courts?

Mr. Speaker Sir, I know the young Senator is here courtesy of the Moi enterprise, so she has a responsibility to voice. Living in court does not mean that

Sen. Halake, what is your point of intervention?

Mr. Speaker Sir, I know the young Senator is here courtesy of the Moi enterprise, so she has a responsibility to voice. Living in court does not mean that

On a point of order Mr. Speaker, Sir.

Thank you, Mr. Speaker, Sir. I know that you may not be able to tell which side of persuasion every Senator who is seeking your eye is in but I pray that those of us who are strongly against the Statement also get an opportunity for our---

What is your point of order? You are actually out of order. I have the names of all those people who want to speak. Conclude, Sen. Wetangula.

Mr. Speaker, Sir, the Senator for Murang‟a has a very good habit of seeking the Floor to say nothing. Let me finish.

The Senate Minority Leader (Sen. Orengo) : On a point of order, Mr. Speaker, Sir.

What is your point of order, Sen. Orengo? The Senate Minority Leader (Sen. Orengo) : Mr. Speaker, Sir, the Senator for Murang‟a cannot get away with this. This is a Statement made for and on behalf of the Senate Standing Committee on Justice, Legal Affairs and Human Rights and he is a Member of that Committee. This Statement has been discussed in that Committee, including today---

What is your point of order? You are actually out of order. I have the names of all those people who want to speak. Conclude, Sen. Wetangula.

Order, Sen. Kang‟ata. I will give you an opportunity.

The Senate Minority Leader (Sen. Orengo) : Mr. Speaker, Sir, it is not in order for a Member of a Committee to oppose a Statement coming from his Committee. He should have raised these issues in the Committee. He is opposing it when it is too late. He will even be late to go to Heaven.

On a point of order, Mr. Speaker, Sir.

What is your point of order, Sen. Orengo? The Senate Minority Leader (

Thank you, Mr. Speaker, Sir. I wish to support this Statement. I thought that the new Constitution would give us new safeguards but I have seen a pattern where Parliament and the Judiciary are being bullied and the constitutional commissions have become toothless. Things are looking terrible. How did we find ourselves here? We found ourselves here because the Executive has mismanaged the budget. They went on a borrowing spree. We have now given them another opportunity to continue borrowing.

I wish people could go back to the Hansard records. I kept on opposing those borrowings. As a student of development economics, I knew that if one has to be comfortable, they have to borrow between 28 to 35 per cent.

Remain relevant, Senator. You seem to be discussing something that was disposed of.

I am coming to that, Mr. Speaker, Sir. The Judiciary is complaining about lack of resources and maltreatment because the Executive has mismanaged the economy, and that is the truth. We should not mince our words. We should say things as they are for posterity. After we are long gone and forgotten, nobody will remember how we came to this Parliament. People will remember what we stood for. In fact, I am being riled on social media right now. People are asking for my voice on the public debt issue. Chief Justice Maraga said that he does not have Wi-Fi or paper to print and that is all about money. Bill Clinton once asked if the economy is stupid. If the economy is managed well, the Judiciary and Parliament will have its money.

We depend on the Judiciary to arbitrate our cases. The last time I checked, there were about 11,000 cases that had not been concluded. Who will suffer when you have such a situation and the cases cannot be determined because the courts are not functioning? Our economy cannot grow if we have commercial disputes with regards to how business is supposed to be conducted.

(Sen. Kang‟ata consulted Sen. (Eng.) Mahamud

and Sen. Kihika)

The point is that our role, as Parliament, is to ensure that we clean up the system. This also speaks to the fact that we have really abrogated ourselves; in fact it is a derogation of the Constitution. The power of the purse vests with Parliament, but it has been taken away and it has been misused by the Executive. Under Articles 110 and 114 of the Constitution, the national Treasury is supposed to be independent of the national Government. It is not supposed to be an appendage of the national Government. That is where the problem is; the combination of the Ministry of Finance and the national Treasury. I am on record as having warned Henry Rotich that we were going down to the drain. Mr. Speaker, Sir, we need to get out of the fear that we have, even us, as Parliamentarians. This is because it has been proved that 7 out of 10 Members of Parliament (MPs) do not come to Parliament anyway. You cannot tell me that those people are bad guys; that they do not work for their people, and that they are not motivated to make change. It is elections, anyway. Maurice Mumbo says, “Politicians are for elections, but leaders are for generations.” Mr. Speaker, Sir, if we continue going the route we are going, we will be going into a hole very fast. We must rise to the occasion. We must be ready to pay the ultimate price, because how will we leave a country with a first world Constitution that does not speak to the real life of a people? How we will be judged by future generations? All of us are participating, because we would want to protect our safe zones. Right now, it is the Judiciary. If you look at the budget cuts, the Judiciary and Parliament account for only 2 per cent of the total budget, but the cuts are 9 per cent. Why is it disproportionate? When you look at that, what will be politicized is what seems to be favoring MPs and Judges. Right now the dream of the Judiciary is to ensure that we have High Courts in all the 47 counties. However, we have not seen an appointment of Judges that is concomitant to that endeavor. The Appellate Judges are yet to be appointed; so what is happening? What is this lacuna in law? What is this that we are fearing? We need to ensure that we rise up to the occasion. Mr. Speaker, Sir, the Leader of Minority is not here, but if we continue this way, I see Kenyans going back to the streets, because you can only push people for so long. You can only do so much. Those of us who are called to stand for justice, we will stand for that justice. We will speak truth to power, because that is the only way we will liberate our country. Mr. Speaker, Sir, I beg to support.

Hon. Senators, let me disrupt debate to make a Communication.

Remain relevant, Senator. You seem to be discussing something that was disposed of.

I am coming to that, Mr. Speaker, Sir. The Judiciary is complaining about lack of resources and maltreatment because the Executive has mismanaged the economy, and that is the truth. We should not mince our words. We should say things as they are for posterity. After we are long gone and forgotten, nobody will remember how we came to this Parliament. People will remember what we stood for. In fact, I am being riled on social media right now. People are asking for my voice on the public debt issue. Chief Justice Maraga said that he does not have Wi-Fi or paper to print and that is all about money. Bill Clinton once asked if the economy is stupid. If the economy is managed well, the Judiciary and Parliament will have its money.

We depend on the Judiciary to arbitrate our cases. The last time I checked, there were about 11,000 cases that had not been concluded. Who will suffer when you have such a situation and the cases cannot be determined because the courts are not functioning? Our economy cannot grow if we have commercial disputes with regards to how business is supposed to be conducted.

(Sen. Kang‟ata consulted Sen. (Eng.) Mahamud

Thank you, Mr. Speaker, Sir. I rise to support this timely Statement by the Chairperson of the Committee on Justice, Legal Affairs and Human Rights. I knew him in the past when he was a milk vendor, but I am very proud of him now, as the Senator for Nandi, for the good work that he has been doing. As I stand here today, I am a worried man, because we might as well just throw this Constitution in the dustbin. The role of the Judiciary is to defend that Constitution. It is very worrying when you see a notice from a Deputy Registrar of a court in Kenya that reads as follows:-

“Due to Judiciary budget cuts, we have been unable to facilitate the three Judge bench scheduled for the 28th October, 2019.” Someone once said, “Justice delayed, is justice denied.” Therefore, if legal redress is available for a party that has suffered an injury, but it is not forthcoming in a timely fashion, it is ineffective. Mr. Speaker, Sir, last week when I saw the CJ giving a Press conference, stating clearly that he is not respected; and that he is denied certain services, a lot of things just came to mind. I wondered if you do not like CJ Maraga as a person, why can you not respect that institution? The three arms of Government were brought about so that they can check each other. They are equal arms of Government; the Legislature, the Judiciary and the Executive. I hope that this time, this Parliament can take this opportunity to correct this. When I say Parliament, I am not only speaking of the Senate or the National Assembly; I am speaking about both Houses.

When people talk about constitutional amendments, the first thing we must do, is to ensure that when we have a Constitution which is supposed to be defended or protected by one arm of Government, we must ensure that when we are doing the Appropriation Act, for example, we have different Appropriations Acts. I have heard my

Order, Senator for Murang‟a!

The point is that our role, as Parliament, is to ensure that we clean up the system. This also speaks to the fact that we have really abrogated ourselves; in fact it is a derogation of the Constitution. The power of the purse vests with Parliament, but it has been taken away and it has been misused by the Executive. Under Articles 110 and 114 of the Constitution, the national Treasury is supposed to be independent of the national Government. It is not supposed to be an appendage of the national Government. That is where the problem is; the combination of the Ministry of Finance and the national Treasury. I am on record as having warned Henry Rotich that we were going down to the drain. Mr. Speaker, Sir, we need to get out of the fear that we have, even us, as Parliamentarians. This is because it has been proved that 7 out of 10 Members of Parliament (MPs) do not come to Parliament anyway. You cannot tell me that those people are bad guys; that they do not work for their people, and that they are not motivated to make change. It is elections, anyway. Maurice Mumbo says, “Politicians are for elections, but leaders are for generations.” Mr. Speaker, Sir, if we continue going the route we are going, we will be going into a hole very fast. We must rise to the occasion. We must be ready to pay the ultimate price, because how will we leave a country with a first world Constitution that does not speak to the real life of a people? How we will be judged by future generations? All of us are participating, because we would want to protect our safe zones. Right now, it is the Judiciary. If you look at the budget cuts, the Judiciary and Parliament account for only 2 per cent of the total budget, but the cuts are 9 per cent. Why is it disproportionate? When you look at that, what will be politicized is what seems to be favoring MPs and Judges. Right now the dream of the Judiciary is to ensure that we have High Courts in all the 47 counties. However, we have not seen an appointment of Judges that is concomitant to that endeavor. The Appellate Judges are yet to be appointed; so what is happening? What is this lacuna in law? What is this that we are fearing? We need to ensure that we rise up to the occasion. Mr. Speaker, Sir, the Leader of Minority is not here, but if we continue this way, I see Kenyans going back to the streets, because you can only push people for so long. You can only do so much. Those of us who are called to stand for justice, we will stand for that justice. We will speak truth to power, because that is the only way we will liberate our country. Mr. Speaker, Sir, I beg to support.

Hon. Senators, let me disrupt debate to make a Communication.

On a point of order, Mr. Speaker, Sir.

It is unfair; allow me to speak! Surely you are interrupting my thoughts!

colleague talking about the Executive controlling the other arms of Government, by ensuring that the national Treasury is part of the Executive. That is where we went wrong.

Mr. Speaker, Sir, the only way we can ensure that each arm of Government does its work effectively, is when we relook Article 219 of this Constitution. Currently, it only protects county governments. We are sitting here happy, because we know that this Constitution has protected the little money that we send to the county governments. It is about time that when we think about amending the Constitution, we think about coming up with different Appropriations Acts. We should define the shareable revenue differently, and share the revenue equally through the three different arms of Government.

Mr. Speaker, Sir, we are facing a very sad occasion in this country. On a daily basis, people are injured and they run to the courts. However, when they cannot get justice there, we might as well say that Kenya is a free country for someone to commit any crime. This is because you know that when you go to the Judiciary, they have no money to hear you. This is a worrisome trend. This House, all distinguished Senators and honorable MPs must rise up to the occasion. There is no way we will have a country called Kenya, if we violate this Constitution.

Mr. Speaker, Sir, when you talk about separation of power, a doctrine of constitutional law under which the three arms of Government are kept separate, we must respect that. If we do not respect that, then I think we are just living in a jungle.

I recently heard the media replaying the clips of when the President was saying, “We shall revisit;” calling the Judiciary, “hawa wakora.” I then wondered what the use of the “Handshake” is. I thought that the “Handshake” was supposed to come in so that it can heal all these problems. In fact, we are at a point where some people say that there is no longer an opposition in this country. It is really sad that sometimes some of us believe that the “Handshake” was only made to make certain people happy, yet it destroys others. As a young legislator, it is about time that we tell the Executive that what they are doing is wrong.

You better start concluding, because we have a lot of interest in this matter.

Mr. Speaker, Sir, it is in the public realm that the budget for the Judiciary was cut. Simultaneously, the budget for Parliament was also cut---

By who? Who has the powers?

By the Executive!

It is unfair; allow me to speak! Surely you are interrupting my thoughts!

Order, Sen. Kang‟ata. Read the Standing Orders.

On a point of order, Mr. Speaker, Sir. Is it in order for Sen. Kang‟ata to mislead the House that the budget for Parliament has been cut, when qualified Senators like Sen. Khaniri, Sen. Cheruiyot and

Mr. Speaker, Sir, surely, allow me to finish! Everyone has spoken!

Sen. Kang‟ata, you also do that most of the times.

By who? Who has the powers?

By the Executive!

Mr. Speaker, Sir, I agree that there is one mistake that the Executive appears to have made; the idea of trying to abrogate itself the power to undertake budgetary cuts. On that one, I agree. They ought to have brought a supplementary budget before the National Assembly---

Correct!

However, notwithstanding that, I strongly believe that we need to support austerity measures to enable the Government to balance its budget. We need to do that. Austerity measures entail those of us who are in Parliament to cut our budget. The Judiciary also cuts its budget, and the Executive cuts its budget. On that account, I

Mr. Speaker, Sir, surely, allow me to finish! Everyone has spoken!

Sen. Kang‟ata, you also do that most of the times.

What is your point of order Sen. Wambua?

Mr. Speaker, Sir, they do not believe in freedom of expression.

Mr. Speaker, Sir, I agree that there is one mistake that the Executive appears to have made; the idea of trying to abrogate itself the power to undertake budgetary cuts. On that one, I agree. They ought to have brought a supplementary budget before the National Assembly---

Mr. Speaker, Sir, is the Senator for Murang‟a County in order to portend to lecture this House on the procedure that should be followed to cut down on budgets for all the arms of Government? If that is the line he is taking, he is then off the line in terms of the Statement that was issued by the Senator for Nandi County. The Senator for Nandi County is saying that the Executive should not cut the budget of the Judiciary. What are you, therefore, talking about?

Sen. Kang‟ata, just be careful with what you are saying. These are your colleagues, and points of orders are allowed. If you pursue a line that will attract many points of order, the Speaker cannot assist you.

Thank you, Mr. Speaker, Sir. I respect your decision. The Senate Minority Leader (Sen. Orengo) : On a point of order, Mr. Speaker, Sir.

What is your point of order, Sen. Orengo?

Take your seat, Sen. Kang‟ata.

The Senate Minority Leader (Sen. Orengo) : Mr. Speaker, Sir, there is a Standing Order about relevance. What we are discussing is the Statement by the Chairperson of the Committee on Justice, Legal Affairs and Human Rights. What is there in the Statement that he disagrees with? Do not talk about austerity measures, because the Government has not declared any austerity measures. Just tell us where you stand.

Thank you, Mr. Speaker, Sir. I am agreeing with this Statement to the extent that it is saying that the Executive did not use the correct procedure.

Sen. Cherargei, I am not sure whether you are sitting or standing---

Mr. Speaker, Sir, is the Senator for Murang‟a County in order to portend to lecture this House on the procedure that should be followed to cut down on budgets for all the arms of Government? If that is the line he is taking, he is then off the line in terms of the Statement that was issued by the Senator for Nandi County. The Senator for Nandi County is saying that the Executive should not cut the budget of the Judiciary. What are you, therefore, talking about?

Mr. Speaker, Sir, I agree with this Statement to the extent that the Executive did not follow the correct procedure in undertaking the cuts. However, I am supporting the spirit of what we call austerity measures. The Government should reduce its expenditure, whether it is the Executive---

Thank you, Mr. Speaker, Sir. I respect your decision. The Senate Minority Leader (

What is your point of order, Sen. Murkomen?

No. Allow me to speak!

Mr. Speaker, Sir, ordinarily, we should not have been discussing that Statement. It was a Statement that was made, and you have been generous to give us the opportunity to ventilate.

If Sen. Kang‟ata is not going to stick to the issue of relevance---

Sen. Kang‟ata, take your seat.

Mr. Speaker, Sir, there is a Standing Order about relevance. What we are discussing is the Statement by the Chairperson of the Committee on Justice, Legal Affairs and Human Rights. What is there in the Statement that he disagrees with? Do not talk about austerity measures, because the Government has not declared any austerity measures. Just tell us where you stand.

Thank you, Mr. Speaker, Sir. I am agreeing with this Statement to the extent that it is saying that the Executive did not use the correct procedure.

Judiciary is perfectly in order to declare legislation that comes from a House unconstitutional, and the legislation we pass here is not personal. It is a public process and document. Once it gets out of here, we have no business defending or protecting it. It is about the Judiciary to protect the people of Kenya.

What is your point of order, Sen. Cherargei?

On a point of order, Mr. Speaker, Sir.

What is your point of order, Sen. Murkomen?

No. Allow me to speak!

Mr. Speaker, Sir, I have heard one of my learned Senators arguing that the President must, as a matter of course, appoint Judges who have been proposed by the Judicial Service Commission (JSC) . With all due respect, I strongly believe that, that Statement was sub judice. We all know that there is pending litigation in court on that point.

Mr. Speaker, Sir, the most important thing we are discussing here is not amending the Constitution to create a provision whereby Judges will be elected by the people. We are not amending the Constitution to bring Judges to be vetted in this House. We are discussing the Constitution of Kenya, as it is. The point under discussion is the independence of the Judiciary, as enunciated in the Constitution; and the protection of the independence of the budget of the Judiciary.

Therefore, Mr. Speaker, Sir, if he cannot address himself to that question, we have four other pending Statements and legislation that we would rather attend to. The

Judiciary is perfectly in order to declare legislation that comes from a House unconstitutional, and the legislation we pass here is not personal. It is a public process and document. Once it gets out of here, we have no business defending or protecting it. It is about the Judiciary to protect the people of Kenya.

On a point of order, Mr. Speaker, Sir.

What is your point of order, Sen. Cherargei?

On the point of relevance, Sen. Kang‟ata is one of my Committee Members. However, he has been conspicuously absent for many meetings.

Mr. Speaker, Sir, I wish to plead with the Chair that we find Sen. Kang‟ata grossly out of order. He has been reminded so many times about being relevant. This Statement has got nothing to do with the appointment of judges by the President. Stick to the Statement, Sen. Kang‟ata.

Sen. Kang‟ata, I give you two minutes to conclude, because we must make progress.

Mr. Speaker, Sir, it is my honest belief that we need to allow the President to do his work. The President has a mandate to deliver, and he has set out certain elements that he has to do. I hold the view that the Judiciary has been fettering the President in delivering his vision. Therefore, I strongly believe that we need to do something to ensure that the Judiciary does not vitiate the vision of the President.

Mr. Speaker, Sir, put yourself in the shoes of the President; in fact, any other Senator should do so. Imagine that you are making every appointment, and then it is being stalled in court. Similarly, when you prosecute people, it is also stalled by court orders.

Order, hon. Members!

On a point of order, Mr. Speaker, Sir. Sen. Kang‟ata has to declare his interest. I am leading him in a case where we have gone to the courts. He had to run all the way to Mombasa to challenge the actions of the Executive in the campaign against corruption. He is now saying that the Judiciary is interfering, and he was running to the courts when people were being locked up. He cannot blow hot and cold; he should declare his interest, because when he is in court he is saying something else.

What Sen. Kang‟ata is trying to say to the public is that the reason the Judiciary is being denied a budget, is because the President is unhappy with the decisions of the Judiciary regarding his mandate. I will not accept that, as a member of Jubilee. That cannot continue flying. It is not the position of President Uhuru Kenyatta, the Jubilee Government and the Senate. It is not one of the things that we should be propagating on the floor of this House. Therefore, the lesser this man speaks, the higher the likelihood that you will protect him from himself!

Sen. Kang‟ata, you have used all the time just circumlocuting and saying things that are not valid.

On a point of order, Mr. Speaker, Sir.

What is your point of order, Sen. Wambua?

Mr. Speaker, Sir, I wish to plead with the Chair that we find Sen. Kang‟ata grossly out of order. He has been reminded so many times about being relevant. This Statement has got nothing to do with the appointment of judges by the President. Stick to the Statement, Sen. Kang‟ata.

Sen. Kang‟ata, I give you two minutes to conclude, because we must make progress.

Mr. Speaker, Sir, it is my honest belief that we need to allow the President to do his work. The President has a mandate to deliver, and he has set out certain elements that he has to do. I hold the view that the Judiciary has been fettering the President in delivering his vision. Therefore, I strongly believe that we need to do something to ensure that the Judiciary does not vitiate the vision of the President.

Mr. Speaker, Sir, put yourself in the shoes of the President; in fact, any other Senator should do so. Imagine that you are making every appointment, and then it is being stalled in court. Similarly, when you prosecute people, it is also stalled by court orders.

What is your point of order Sen. Orengo?

Order, hon. Members!

On a point of order, Mr. Speaker, Sir. Sen. Kang‟ata has to declare his interest. I am leading him in a case where we have gone to the courts. He had to run all the way to Mombasa to challenge the actions of the Executive in the campaign against corruption. He is now saying that the Judiciary is interfering, and he was running to the courts when people were being locked up. He cannot blow hot and cold; he should declare his interest, because when he is in court he is saying something else.

Mr. Speaker, Sir, I want to inform the House that I know that Sen. Kang‟ata is a very intelligent young man. I suppose it is the person who is watching in the gallery, who is confusing him. Otherwise he has a very brilliant mind!

Sen. Kang‟ata, you have used all the time just circumlocuting and saying things that are not valid.

Mr. Speaker, Sir, I will be bringing legislative proposals very soon to address some of the salient points that I am raising. I appreciate that we need to support the independence of the Judiciary. However, I also strongly believe that the President must be allowed to achieve his vision. I strongly believe that the Judiciary, in some instances, is doing a good job. However, I also believe that in several instances, it is doing a very bad job. I have seen a Court of Appeal decision saying that men should marry each other. Surely, I was so ashamed, as an African. I was very shocked to see a Judiciary that is not elected by any person saying that men should have relationships amongst each other. That is not the judiciary I envisioned.

On a point of order, Mr. Speaker, Sir. We are here, as an arm of Government. Our role is to oversight and ensure that there is parity in whatever decisions that are made for the benefit of Kenyans. The moment I am listening to my good brother and friend, Sen. Kang‟ata, invoking the name of the President in this dispute. Is he really in order to attribute the budget cuts to the person of the President, as to occasion the thinking that the President has a personal vendetta on the Judiciary?

Mr. Speaker, Sir, when you hear Sen. Kang‟ata arguing that the budget cuts can be done based on judgments, does it say that there should be no rule of law? I would want to advise and caution him that he should address the Executive in totality, rather than the person and the Office of the President.

Sen. Kang‟ata, you have got one minute. You can see that you are alone; just conclude.

Thank you, Mr. Speaker, Sir. I am very educated by the representation by my colleagues. I am quite happy that they have been able to give very cogent arguments in support of the so-called interference of judicial independence. However, on my own opinion, I still stand that we have a situation of what we call judicial overreach. In several jurisdictions like Canada, you cannot go there and do judicial review. In the United Kingdom (UK) , there is nothing called judicial review---

Proceed, Leader of Majority.

Mr. Speaker, Sir, I want to inform the House that I know that Sen. Kang‟ata is a very intelligent young man. I suppose it is the person who is watching in the gallery, who is confusing him. Otherwise he has a very brilliant mind!

I beg to move and request

Mr. Speaker, Sir, I second. However, I hope that the new Speaker will deal with the Senator for Murang‟a firmly.

Proceed, Sen. Kasanga.

Thank you, Madam Temporary Speaker and congratulations for being in the Chair today. It is wonderful to see you up there. I congratulate my friend, Sen. Cherargei, for this Statement. Sen. Cherargei, you have a great future ahead of you. We are also very proud of the work that you did yesterday. It is voices such as yours that we want. Keep going, Senator.

Madam Temporary Speaker, since we do not have much time, I lend my voice to the number the Senator has given in the Statement. It is very disheartening. I remember seeing the CJ giving a press statement, and I believe it was out of frustration because he had nowhere else to go.

As I wind up to give other Senators an opportunity, there is a provision, under Article 145, for testing the rule of law, by looking at the impeachment laws. Under Article 145(1), when the President or the Head of Executive commits grave misconduct, Parliament is called upon, especially the Senate, to impeach the Head of the Executive. Therefore, I need to say that His Excellency the President needs to be given proper guidance in law by the Attorney General, so that he will not be caught by this provision of gross violation, because that could be the direction we are heading to.

I support the Statement by Sen. Cherargei.

Hon. Senators, we still have a lot of interest; this is a topical matter and I want everybody to, at least, say something. However, since we are way beyond our time, I will allow those who are coming next three minutes to at least also say something.

Proceed, Sen. Halake.

Thank you, Mr. Speaker, Sir. As the incoming temporary Speaker, I will not speak much, because Speakers are supposed to listen. I congratulate my colleague, Sen. Cherargei, for this Statement.

Mr. Speaker, Sir, allow me to mention that an independent Judiciary is critical to promoting a peaceful and inclusive society. One of the pillars of the rule of law in a modern State is the division of powers between the Legislature, the Judiciary and the Executive.

I will speak to the role of Parliament in letting down the Judiciary. Listening to the CJ a few days ago on Monday, I was very saddened that he has been subjected to that level of incivility in addition to the lack of funds. However, the level of incivility and disrespect for an office, such as that of the Chief Justice, is unacceptable. Parliament has let the Judiciary down.

We should look at our role, as Parliament, even as we shout on top of our voices about the Executive. Let us look at our role, as Parliament, and how we have played a role in letting the Judiciary down. The relationship and interactions between Parliament and the Judiciary is central to good governance, and is key in ensuring the culture of rule of law and justice.

Mr. Speaker, Sir, we make laws which are validated and applied by the Judiciary. If we think that we are safe from the disrespect and incivility that the CJ is experiencing right now, we need to know that we are not safe. We are the ones who make these laws, and they are to be validated and applied by the Judiciary. If the Judiciary is not independent and it does not have anything to apply these laws, then where on earth are we expected to contribute to the rule of law in this country?

What we do not realise, as legislators, is that an independent Judiciary is essential to safeguarding other arms of Government. What the Executive should realise is that if the Judiciary does not have the powers to do its job, we are all in trouble. This is because who are we legislating for? Who is going to apply these laws? These laws, which we spend the whole day making here, where are they going to go if the CJ and his team cannot apply them?

No, Madam Temporary Speaker; I did not raise that issue, if you can check the HANSARD. Is it in order for the Chairperson to bring a Statement purporting to belong to the Committee, when there is no evidence that those of us who supported---

Sen. Kang‟ata, you have made your point. Please sit down.

sababu ndipo mahali pekee ambapo raia wanaweza kukimbilia wakati wamepata matatizo.

Bi. Spika wa Muda, suala la uhuru wa mahakama ni muhimu sana katika demokrasia. Hii ni kwa sababu mtu yeyote atakapopatikana na matatizo, lazima aende mahakamani ili kuhakikisha kwamba haki zake zitalindwa. Hivi sasa, Serikali imeingia katika vita dhidi ya ufisadi. Vita vile haviwezi kupigwa wakati mahakama hazina fedha na majaji wa kutosha kusimamia kesi zile. Vita dhidi ya ufisadi haviwezi kufaulu iwapo mahakama zitakuwa hazina nyumba za mahakama, na vilevile wafanya kazi kuhakikisha kwamba kazi zile zinafanyika.

Kwa hivyo, Bi. Spika wa Muda, lazima tukemee vitisho vya Serikali kupunguza ruzuku kwa mahakama, na mawazo ya Serikali kwamba wanaweza kuendelea kujaribu kukwamisha utendakazi wa mahakama. Ni lazima tukemee upokonyaji wa uhuru wa mahakama, kwa sababu Uhuru huu utakapopokonywa, wananchi ndio watakuwa wanalalamika na kupoteza haki zao.

Asante Bi. Spika wa Muda kwa kunipa fursa hii.

On a point of order, Madam Temporary Speaker.

What is your point of order, Sen. Mutula Kilonzo Jnr.?

Madam Temporary Speaker, other than Standing Order 51, is it in order for a Member who does not attend Committee meetings to insist that his signature should be appended on anything that is arising out of a Committee? Sen. Kang‟ata has no record of attending the Senate Committee on Justice, Human Rights and Legal Affairs Committee!

Madam Temporary Speaker, I apologise for interrupting Sen. Kasanga. However, is it in order for the Chairperson of the Senate Committee on Justice, Human Rights and Legal Affairs to bring a Statement that does not have annexed signatures for those of us who are Members of the Committee, so that we know which Members of the Committee support it and those who do not?

Sen. Kang‟ata, you contributed to that-- -

No, Madam Temporary Speaker; I did not raise that issue, if you can check the HANSARD. Is it in order for the Chairperson to bring a Statement purporting to belong to the Committee, when there is no evidence that those of us who supported---

“Each financial year, the Chief Registrar shall prepare estimates of expenditure for the following year, and submit them to the National Assembly for approval.” I hate to have to quote a Member of Parliament who was in the media the other day, saying that the National Assembly has failed Kenyans. He said that they have failed in their role to manage the budget, and put the Executive in check when it comes to spending and borrowing. As I was trying to listen to Sen. Kang‟ata trying to say that we should support austerity measures, yes, we are where we are, having overspent on loans that we have taken. Now we have to look for loans to retire the current expensive ones. It is a question of turning around a business.

Madam Temporary Speaker, how do you turn around a business? Is the Judiciary where you will get your savings from? This is where it becomes sad, because we are wondering where they have checked to see where to cut money from. From the figures presented in this Statement by Sen. Cherargei, the world over, judiciaries are given 3.5 per cent of the national budgets. Currently from this Statement, one can see that it is at

You contributed to this Statement, and at no point have you raised the issue. So we will move on.

Proceed,

On a point of order, Madam Temporary Speaker.

their budget, and they come and do the same to the Legislature, tomorrow we will not have a country to talk about.

I beg to support.

Thank you, Madam Temporary Speaker. The Chairman of the Committee on Justice, Legal Affairs and Human Rights is living up to the word “vibrant politician,” by raising this very important matter.

Madam Temporary Speaker, congratulations on your election. I hope and pray that you will sit on that seat on merit election by Senators to become the Speaker, at one time when I am still around.

Madam Temporary Speaker, I have just read in the news that the Judiciary fund has been restored, as we were having this discussion. It is a good thing, but at the same time, it suggests strong-arm tactics that are being used by the national Treasury to intimidate. The idea of a Judiciary fund and the complete separation of powers was to ensure that the Judiciary does not suffer, as it has.

Madam Temporary Speaker, this morning, for the first time since I started practicing law, Judges have been accused in the newspapers without a tribunal. The Standard reports four while the Daily Nation reports nine. In the Standard, they have put pictures of those Judges. That is defamation. Justice Mumbi Ngugi, Justice Muchelule and Justice Tuiyott have been defamed. We cannot allow this, because there is Kenyan somewhere appearing before Justice Mumbi Ngugi today, and they expect that Justice Mumbi Ngugi, like Caesar‟s wife, will be above reproach. It is a sad day, and I do not know who is going to save this country, because the Judiciary is under threat.

Going by the newspaper reports, the Legislature has also been swallowed by the Executive. Who is going to save this country, if the Judiciary and the Legislature – which is supposed to defend the Judiciary, and vice-versa – ends up in the chaos that it has?

Madam Temporary Speaker, I have very sad statistics about the standoff between the President and the JSC. The advisor of Government, Justice Kihara Kariuki, sits in the JSC. The President of the Republic has disagreed with the JSC, where his advisor is sitting. What does that say about the conduct and character of Justice Kihara Kariuki, a man we respect?

Madam Temporary Speaker, I have it on record that up to seven judges are retiring by 2019 in the Court of Appeal. We have a shortage. They have estimated that in the current state of affairs in the Environment and Land Court, assuming anybody files a case in the land and environment jurisdiction of the High Court, it will take four years to complete it. That is already a violation of the fundamental rights of the citizens of this Republic.

I would request the good Chairman, the firebrand Senator from Nandi, to bring these good gentlemen to the Senate. The National Assembly has not done it. Please call them here so that we can deliberate on this issue. The Bible in Isaiah 1:18 says, “Come now, and let us reason together.” We want to know the problem with these two arms of Government.

Madam Temporary Speaker, this is a tragedy. I hope we do not get to a situation, like in 2007, where people took the law into their own hands because they do not trust the

Judiciary. An impeachment of somebody is something that is already cooking somewhere because of violating the Constitution continuously.

Thank you, Madam Temporary Speaker.

Thank you, Madam Temporary Speaker, for giving me an opportunity to add my voice to this Statement. I would like to begin by congratulating Sen. Cherargei for coming up with this Statement. When I was growing up, I remember during the English lesson, we used to have similes such as, “As sober as a judge.” From a very young age, I knew well that judges were able to do whatever they did in a very sober manner, without any form of interference.

Madam Temporary Speaker, it is paradoxical. I did not know how to behave when I heard the statement from the CJ Maraga stating that he will choose the State functions he will be attending. This statement is heavily loaded. It connotes a lot, in the fraternity of law. When a judge makes such a statement, being sober and in his right mind, it tells you that he is not able to hold his emotions anymore. He is not able to keep it anymore, but he has decided to let go because he wants to be free in his heart and mind.

Madam Temporary Speaker, as a nation, there is need for everyone to realize that this Constitution cannot work without the Judiciary. The Judiciary interprets and protects the Constitution. There are instances when people come up with statements that do not seem to hold water. People are even arrested, as a result of the statements they made at some point. When the statements are taken to the judicial system, critically and impartially analyzed, people go scot free.

Madam Temporary Speaker, the Judiciary serves wananchi as the watch dog of the ills that happen in the society. Without the Judiciary, many ills will take place in the society, and the common man will be helpless and defenseless. There are instances where even when people have been put in prison and accused wrongly, after ten years, it comes out clearly that these people were on the right.

The Judicial system should not be given the teeth, it has the teeth. These teeth must be enhanced. In enhancing the teeth of the judicial system, they need to be remunerated well with a handsome package. They need to be encouraged in whatever they are doing. They need to be completely separate from the Executive and the Legislature. If they are autonomous, they will have the strength and the teeth to defend mwananchi. Right now in the Senate, we can defend each other. However, a time will come when we will have to stand alone, and it is the Judicial system that will come in to ensure that justice prevails.

Madam Temporary Speaker, Sen. Cherargei has come up with a Statement that stands the test of time. It is a Statement that needs to be interrogated to ensure that every mwananchi in this country gets justice. Apart from justice, the Statement will also ensure that we defend the Constitution. In the Constitution, there are many Articles that seek to defend mwananchi. However, remember that if the Judiciary is a toothless bulldog, there is no way the Constitution will be defended. We must defend the Constitution in order to serve mwananchi, because we must be committed to serving the wananchi who have elected us to be where we are.

Thank you, Madam Temporary Speaker. I beg to support this Statement.

Thank you, Madam Temporary Speaker, for giving me this opportunity to support the Statement and congratulate Sen. Cherargei, the Senator for Nandi County, for coming up with it. I also congratulate you for acquiring the new status of the Temporary Speaker.

Madam Temporary Speaker, the interference of the Judiciary by the Executive is uncalled for, unworthy and in violation of the Constitution. Many have spoken, but we get to understand that the three arms of Government are independent of each other. These three arms of the Government draw their budget from taxpayer‟s money. Therefore, no arm of the Government is more important or above any other. If we look at the way the Judiciary is being interfered with by the Executive, especially when it comes to budget cuts, this is the highest violation we have ever experienced since independence.

Madam Temporary Speaker, when I was watching the Chief Justice on the television trying to address the press on the challenges, suffering and the oppression that he or the Judiciary is going through, it leaves a lot to be desired. It is the high time that the Executive respects the other two arms of Government.

Madam Temporary Speaker, corruption is rampant in the country today. Who will save Kenyans, if we allow the Judiciary, which is mandated to take charge of the corruption that we are experiencing? Many have blamed the Judiciary of its inability to perform its duties. They have been trying the much they can to utilize the few resources they have. However, hearing CJ, he is oppressed. He is under distress, and he can no longer perform. Being the head of the Judiciary, it tells the country that if that particular arm is suppressed, then all of us are suppressed. That is where any other common mwananchi gets justice from.

We are talking about poverty. A few individuals that we elect and vet here in Parliament are the ones who sit in the Executive. They are the ones roaming around with bodyguards and talking at the highest volume of their voices. They are now controlling the Judiciary when it comes to funds. Who said that they are more important than others? Who said that they are more important than the Chief Justice? The Chief Justice needs to be left alone with his arm of the Government to execute his mandate so that he can save Kenyans.

We need infrastructure in the courts. We need justice in the courts. We need everything that we want, because the courts are the last determination of our lives. If they are interfered with, we are all gone. I repeat that it is high time that the Executive respected the other two arms of Government for us to respect them.

Thank you.

Thank you, very much. Sen. Cherargei, there is no provision for you to respond. Could you allow us to move to the next Order? Well done for the great job, but we will not allow you to respond.

House; the other arms of Government do not get to come to the House. We must, therefore, play our role, as the Chair here has decided to do.

Madam Temporary Speaker, there are certain parts of the country where we need to have much more done by the Judiciary. There are a number of people who have never been to a courtroom, and they do not know anything about our laws. There are people in this country who, when they go to court, they do not know what to do. I can quote from my own county of West Pokot. Until recently, when the Judiciary decided to have a Judiciary Day, a majority of the people did not even know that we have Judges and Magistrates. Therefore, a lot has to be done to make our people aware of the law.

It is not just the functions that we know here; it is important to also create awareness among the people. If you survey this country, the literacy rate in certain parts of the country requires that we have to simplify the law, for them to understand. Therefore, we have a lot of work to do, and I agree that the money needs to go to the Judiciary. We need to support that. I do not want to condemn anybody, at this moment.

With those few remarks, I beg to support.

A point of information, Sir.

Madam Temporary Speaker, you should be happy because I wanted to congratulate you for being given the Chair. As your friend, I am very proud of you, and you know that. On a quick succession, I want to thank my colleagues for their support to this Statement on the Status of the Judiciary.

Secondly, I want to confirm to my colleagues that our Committee on Justice, Legal Affairs and Human rights, will from next week engage various stakeholders on this issue; the Attorney-General, the Cabinet Secretary, National Treasury and the Chief Registrar of the Judiciary, so that we can have a conversation.

I want to welcome my colleague Senators during that time when we will have the CS, National Treasury, the Attorney-General and the Chief Registrar of the Judiciary to come, so that we can have a conversation. I have listened keenly to all your concerns on legal intervention and everything that you have said. As a Committee, we will follow up so that we can have a more powerful and independent Judiciary.

Thank you.

Thank you. Hon. Members, we have spent so much time on this particular Statement, and rightfully so. We will, therefore, defer all the rest and go to the Statement by the Senate Majority Leader on the Business of the Senate for the following week.

Judiciary. An impeachment of somebody is something that is already cooking somewhere because of violating the Constitution continuously.

Thank you, Madam Temporary Speaker.

Thank you, Madam Temporary Speaker, for giving me an opportunity to add my voice to this Statement. I would like to begin by congratulating Sen. Cherargei for coming up with this Statement. When I was growing up, I remember during the English lesson, we used to have similes such as, “As sober as a judge.” From a very young age, I knew well that judges were able to do whatever they did in a very sober manner, without any form of interference.

Madam Temporary Speaker, it is paradoxical. I did not know how to behave when I heard the statement from the CJ Maraga stating that he will choose the State functions he will be attending. This statement is heavily loaded. It connotes a lot, in the fraternity of law. When a judge makes such a statement, being sober and in his right mind, it tells you that he is not able to hold his emotions anymore. He is not able to keep it anymore, but he has decided to let go because he wants to be free in his heart and mind.

Madam Temporary Speaker, as a nation, there is need for everyone to realize that this Constitution cannot work without the Judiciary. The Judiciary interprets and protects the Constitution. There are instances when people come up with statements that do not seem to hold water. People are even arrested, as a result of the statements they made at some point. When the statements are taken to the judicial system, critically and impartially analyzed, people go scot free.

Madam Temporary Speaker, the Judiciary serves wananchi as the watch dog of the ills that happen in the society. Without the Judiciary, many ills will take place in the society, and the common man will be helpless and defenseless. There are instances where even when people have been put in prison and accused wrongly, after ten years, it comes out clearly that these people were on the right.

The Judicial system should not be given the teeth, it has the teeth. These teeth must be enhanced. In enhancing the teeth of the judicial system, they need to be remunerated well with a handsome package. They need to be encouraged in whatever they are doing. They need to be completely separate from the Executive and the Legislature. If they are autonomous, they will have the strength and the teeth to defend mwananchi. Right now in the Senate, we can defend each other. However, a time will come when we will have to stand alone, and it is the Judicial system that will come in to ensure that justice prevails.

Madam Temporary Speaker, Sen. Cherargei has come up with a Statement that stands the test of time. It is a Statement that needs to be interrogated to ensure that every mwananchi in this country gets justice. Apart from justice, the Statement will also ensure that we defend the Constitution. In the Constitution, there are many Articles that seek to defend mwananchi. However, remember that if the Judiciary is a toothless bulldog, there is no way the Constitution will be defended. We must defend the Constitution in order to serve mwananchi, because we must be committed to serving the wananchi who have elected us to be where we are.

Thank you, Madam Temporary Speaker. I beg to support this Statement.

Thank you, Madam Temporary Speaker, for giving me this opportunity to support the Statement and congratulate Sen. Cherargei, the Senator for Nandi County, for coming up with it. I also congratulate you for acquiring the new status of the Temporary Speaker.

Madam Temporary Speaker, the interference of the Judiciary by the Executive is uncalled for, unworthy and in violation of the Constitution. Many have spoken, but we get to understand that the three arms of Government are independent of each other. These three arms of the Government draw their budget from taxpayer‟s money. Therefore, no arm of the Government is more important or above any other. If we look at the way the Judiciary is being interfered with by the Executive, especially when it comes to budget cuts, this is the highest violation we have ever experienced since independence.

Madam Temporary Speaker, when I was watching the Chief Justice on the television trying to address the press on the challenges, suffering and the oppression that he or the Judiciary is going through, it leaves a lot to be desired. It is the high time that the Executive respects the other two arms of Government.

Madam Temporary Speaker, corruption is rampant in the country today. Who will save Kenyans, if we allow the Judiciary, which is mandated to take charge of the corruption that we are experiencing? Many have blamed the Judiciary of its inability to perform its duties. They have been trying the much they can to utilize the few resources they have. However, hearing CJ, he is oppressed. He is under distress, and he can no longer perform. Being the head of the Judiciary, it tells the country that if that particular arm is suppressed, then all of us are suppressed. That is where any other common mwananchi gets justice from.

We are talking about poverty. A few individuals that we elect and vet here in Parliament are the ones who sit in the Executive. They are the ones roaming around with bodyguards and talking at the highest volume of their voices. They are now controlling the Judiciary when it comes to funds. Who said that they are more important than others? Who said that they are more important than the Chief Justice? The Chief Justice needs to be left alone with his arm of the Government to execute his mandate so that he can save Kenyans.

We need infrastructure in the courts. We need justice in the courts. We need everything that we want, because the courts are the last determination of our lives. If they are interfered with, we are all gone. I repeat that it is high time that the Executive respected the other two arms of Government for us to respect them.

Thank you.

Thank you, very much. Sen. Cherargei, there is no provision for you to respond. Could you allow us to move to the next Order? Well done for the great job, but we will not allow you to respond.

Madam Temporary Speaker---

Next Order. First Reading

A point of information, Sir.

Madam Temporary Speaker, you should be happy because I wanted to congratulate you for being given the Chair. As your friend, I am very proud of you, and you know that. On a quick succession, I want to thank my colleagues for their support to this Statement on the Status of the Judiciary.

Secondly, I want to confirm to my colleagues that our Committee on Justice, Legal Affairs and Human rights, will from next week engage various stakeholders on this issue; the Attorney-General, the Cabinet Secretary, National Treasury and the Chief Registrar of the Judiciary, so that we can have a conversation.

I want to welcome my colleague Senators during that time when we will have the CS, National Treasury, the Attorney-General and the Chief Registrar of the Judiciary to come, so that we can have a conversation. I have listened keenly to all your concerns on legal intervention and everything that you have said. As a Committee, we will follow up so that we can have a more powerful and independent Judiciary.

Thank you.

Thank you. Hon. Members, we have spent so much time on this particular Statement, and rightfully so. We will, therefore, defer all the rest and go to the Statement by the Senate Majority Leader on the Business of the Senate for the following week.

ridicule and inadequate or denial of medical attention. The intersex persons face these challenges right from birth to adulthood.

Whereas the Constitution provides for protection of fundamental rights and freedoms of all Kenyans, including the intersex persons, Kenya has not put in place policies or adequate legal framework on intersex persons. There is, therefore, an urgent need to address their plight. This observation was made by the High Court in the case of Baby „A‟ suing through Mother „EA‟ and another vs the Attorney-General and six others; the Petition No. 266 of the year 2013.

Madam Temporary Speaker, in the case, Baby „A‟ was born with both male and female genitalia and the hospital records indicated the baby‟s sex by using a question mark. As a result, the child could not be issued with a birth certificate. The court directed the Government to consider developing an appropriate legal framework governing issues related to intersex children. Additionally, the Government was urged to consider the issue of collecting data relating to intersex persons with a view to designing policies to protect them as a marginalized group in society.

On the findings of the court in the case of Baby „A‟ on 26th May, 2017, the Attorney-General through Gazette Notice No.4904, appointed a task force on policy, legal, institutional and administrative reforms regarding intersex persons in Kenya. The task force finalized its work and prepared a Report with various recommendations. The task force made recommendations such as the amendment to various laws including the Registration of Persons Act, the Births and Deaths Registration Act and the Kenya Citizenship and Immigration Act.

There are concerted efforts all over the world to promote the fundamental rights and freedoms of intersex persons. Countries such as Uganda, Malta, United Kingdoms, Netherlands, Germany and the City of New York have put in place legal mechanisms for registration of intersex persons. In Uganda, Section 38 of the Registration of Persons Act gives the executive director of the authority responsible for registration of person‟s, powers to change particulars of a child who is born as intersex upon application by the parent, guardian or the child notwithstanding the use of the word intersex which many people do not understand. This is actually a positive way of addressing the problem.

To achieve the objective of the Bill, Clause 2 of the Bill proposes to amend the Registration of Persons Act by inserting the definition of the words „intersex‟ and „sex‟ so as to take into account the third sex marker, „intersex‟ in addition to the two traditionally recognized sexes of male and female.

Clause 3 on the other hand proposes to insert a new Section 9(b) to the Registration of Persons Act to provide for change or particulars of an intersex person. It is proposed that intersex persons who undergo medical procedure and become male or female, shall within six months of procedure inform the registrar of persons in order for the change of the particulars to be effected by the registrar. Once a change of particular has been noted, the old identity card will be surrendered to the registrar of persons and a temporary waiting card issued pending issuance of a new identity card.

Additionally, Clause 4 of the proposed Bill seeks to amend Section 2 of the Births and Deaths Registration Act by inserting the definition of the word „sex‟. The definition

of the word „sex‟ will be that proposed under the Registration of Persons Act under this Clause to include intersex people.

This Bill, therefore, proposes to put in place a legal framework, registration of persons and issuance of births and certificates and identity cards and it will go a long way in alleviating some of challenges that persons who are intersex experience in their day to day activities as citizens of this Republic. Without a birth certificate or an identity card, it is nearly impossible to be enrolled in formal education system in this country. One cannot get a Sim card and they cannot even open a bank account.

The issue of intersex people is very interesting and many people do not seem to understand what we are talking about when we talk about intersex persons. I was also oblivious of this matter or did not consider it until somebody contacted me on Twitter. That individual had referred to themselves as „outcast accepted‟. The person went ahead and told me that I represent them in Parliament, hence, I should take up their matter.

I interrogated the issue and asked the person to come and see me the following week. True to it, he came to visit me at my National Assembly office accompanied by a human rights defender called Patrick. That is how we started this journey.

The young person was Mary Waithera but the person who came to me was a man. It was not a lady as the name suggested. James Karanja had been brought up as a girl and he even went to a girls‟ secondary school and was the head girl. He was very uncomfortable there because the other teenage girls started getting attracted to him. His identity card read Mary Waithera and in as much as he had scored grade B-, he could not proceed to university. The mother developed mental health conditions because of the stigma associated with intersex children. I am glad to have Sen. Kasanga here because she is a champion of this. Therefore, it was impossible for him to continue with his studies. The mother was living in a deplorable condition and people were raping her. You can imagine that kind of stigma.

We started a campaign in the media to ensure that there is recognition and we also wanted to tell the story as it were. People started to listen and it was the first for them to hear such a conversation in the public domain. We then drew up a Petition to the National Assembly to have intersex people recognized in law and we actually struggled with terminology. We were not sure whether we should refer to it as gender identity disorder or intersex. It was difficult because it was a new phenomenon. You can imagine how difficult it was talking about it in Kiswahili but thank God we got the term „jinsia tata‟.

We were also coming from a situation where people were afraid of Lesbian, Gay, Bisexual and Transgender (LGBT) issues and they did not want to be seen to be allowing LGBT issues to come through the back door.

When I finally presented the Petition in the National Assembly, there was uproar and furore. I remember none other than the Leader of Majority asking whether these people exist. I had to demonstrate by saying it is just like the way you may have some form of disorder on your arm or any other organ of the body, but this affects your reproductive system.

Eventually, the Petition was committed to the Committee on Administration and National Security lead by then Chairman, Hon. Asman Kamama. We then retreated in

Next Order.

Next Order. First Reading

Next Order. Second Reading

Mover.

should continue to be what it is; as House of revision. Why am I saying so? Even just two days ago, we had a Petition that I sponsored about scrapping fees for youth so that we do not tax unemployment. The Governor of Central Bank has actually committed to do away with Credit Reference Bureaus (CRB) fees.

Also, today in the morning, we were able to have the Committee on Health speak to the issue of connective tissue disorder. Those are some of the things that we are supposed to be bringing to the Senate and to Parliament so that we transform our people.

I believe that we are in the cusp of history and history will judge us fairly. As Nelson Mandela said:

“The transformation of a nation is not about one individual, the transformation of a nation is a collective endeavor.” Nobody can do this alone. So, with those many remarks, I beg to move and ask the Senate Minority Leader, Sen. James Aggrey Bob Orengo to come and second.

ridicule and inadequate or denial of medical attention. The intersex persons face these challenges right from birth to adulthood.

Whereas the Constitution provides for protection of fundamental rights and freedoms of all Kenyans, including the intersex persons, Kenya has not put in place policies or adequate legal framework on intersex persons. There is, therefore, an urgent need to address their plight. This observation was made by the High Court in the case of Baby „A‟ suing through Mother „EA‟ and another vs the Attorney-General and six others; the Petition No. 266 of the year 2013.

Madam Temporary Speaker, in the case, Baby „A‟ was born with both male and female genitalia and the hospital records indicated the baby‟s sex by using a question mark. As a result, the child could not be issued with a birth certificate. The court directed the Government to consider developing an appropriate legal framework governing issues related to intersex children. Additionally, the Government was urged to consider the issue of collecting data relating to intersex persons with a view to designing policies to protect them as a marginalized group in society.

On the findings of the court in the case of Baby „A‟ on 26th May, 2017, the Attorney-General through Gazette Notice No.4904, appointed a task force on policy, legal, institutional and administrative reforms regarding intersex persons in Kenya. The task force finalized its work and prepared a Report with various recommendations. The task force made recommendations such as the amendment to various laws including the Registration of Persons Act, the Births and Deaths Registration Act and the Kenya Citizenship and Immigration Act.

There are concerted efforts all over the world to promote the fundamental rights and freedoms of intersex persons. Countries such as Uganda, Malta, United Kingdoms, Netherlands, Germany and the City of New York have put in place legal mechanisms for registration of intersex persons. In Uganda, Section 38 of the Registration of Persons Act gives the executive director of the authority responsible for registration of person‟s, powers to change particulars of a child who is born as intersex upon application by the parent, guardian or the child notwithstanding the use of the word intersex which many people do not understand. This is actually a positive way of addressing the problem.

To achieve the objective of the Bill, Clause 2 of the Bill proposes to amend the Registration of Persons Act by inserting the definition of the words „intersex‟ and „sex‟ so as to take into account the third sex marker, „intersex‟ in addition to the two traditionally recognized sexes of male and female.

Clause 3 on the other hand proposes to insert a new Section 9(b) to the Registration of Persons Act to provide for change or particulars of an intersex person. It is proposed that intersex persons who undergo medical procedure and become male or female, shall within six months of procedure inform the registrar of persons in order for the change of the particulars to be effected by the registrar. Once a change of particular has been noted, the old identity card will be surrendered to the registrar of persons and a temporary waiting card issued pending issuance of a new identity card.

Additionally, Clause 4 of the proposed Bill seeks to amend Section 2 of the Births and Deaths Registration Act by inserting the definition of the word „sex‟. The definition

Thank you, Madam Temporary Speaker, for giving me this opportunity to support this Bill by Sen. Mwaura.

Nelson Mandela said- "What counts in life is not the mere fact that we have lived; it is what difference we have made to the lives of others that will determine the significance of the life we lead." Sen. Mwaura, the journey you have described, walking through with persons who are intersex, right from the last Parliament to this Parliament, and the strides that you have achieved for them is, indeed, of great significance. For that, God bless you.

Madam Temporary Speaker, I have now interacted with stigma when working on the issues of mental health. There is nothing more difficult or more painful for a human being than to live in the shadow of stigma because of something that is not within your control. Like the intersex, nobody chooses where they are born, how they are born, what they look like, whether they have a big eye or a short leg, you name it. This falls in the same category. We are all human beings as Sen. Orengo has said. We have a beautiful Constitution in this country that recognizes the Bill of Rights and the fundamental freedoms of every human being.

As I said, one time, we tend to live in a bubble. As long as I am okay, my children and parents are okay, then the world is okay. We lack the empathy and refuse to see beyond the bubble.What Sen. Mwaura has done here today by bringing this Bill, is bring the information and the knowledge that we need so that we can look beyond our bubble; that bubble, which we wish every human being could look beyond and make this world a better place.

I did not know much about intersex persons. It has taken a breakfast meeting with Sen. Mwaura, the Intersex Community, the Kenya National Commission on Human Rights (KNCHR) amongst others, for me to understand what these persons go through.

Also just to understand the stigma around them that they are not normal. I realised that I have been interacting with them every day and I just did not realize it. It also made me understand the challenges they go through as intersex, that they cannot get the registration that they so deserve. This is actually heartbreaking.

I want to thank you, Sen. Mwaura, for bringing this Bill today, for teaching us what intersex is and for making us understand the challenges they go through. I also want to agree with you, Sen. Mwaura. You have said that this platform, Parliament, in as much as we can be castigated for all the wrong things, some of the best things also happen here because when would have these people gained a voice?

Thank you for speaking for them; the disabled and the minorities. I agree with you that it is in this House that we make a difference. I am sure this Bill will definitely pass this House and the next. Already what you have achieved for the intersex persons by having them counted in the census is most commendable.

The very essence of our being is what we are discussing here. You have been born in a certain way and you should be recognized that way. True enough, many of them do not need to go through an expensive surgery to determine whether they are male or female. They can live normal lives as they are.

At birth, that they can be recognized as intersex is a beautiful thing. Thank you for changing the definition of sex to include the intersex. Later in life, they can decide

whether they want to do a surgery, if they can afford it. As we know, many Kenyans cannot afford this expensive surgeries.

I appreciate that provision that you have added there and the fact that they then can make a decision upon puberty. Those who can afford can choose whichever of the dominant sex they are. They can chose through either an elective surgery and then get their identity changed without a challenge.

I have had challenges with my ID card. I cannot imagine what intersex persons go through. When we were at the breakfast meeting, I heard a story of the challenges that intersex persons go through from an intersex person who talked to us. I really appreciate that this will now be tackled.

I do not have much more to say other than to support this Bill and thank everyone who has walked with Sen. Mwaura. I now appreciate the journey of working towards a Bill. It is really tough, and this is something that many Kenyans do not understand. Without the support of people and organizations like the Kenya National Commission on Human Rights (KNCHR) and other civil society organizations who have been out there working, it is really difficult to get some of these agendas out, even by the time they get a voice at Parliament.

Therefore, I thank everyone who has walked with Sen. Mwaura to reach where we are today because it is a really tough journey. I thank Sen. Mwaura and congratulate him for this Bill. I hope that every Senator will support it so that it can see the light of day.

I support.

people have been arrested and confused for what they are not; they have been said to be personifying themselves. They have even been given wrong titles.

Let me give you an example. One day I received a call from Ryan Muiruri. He had been detained for four hours at a bank in Limuru because they thought he was using the wrong kind of ID. I had to call Achieng, the police lady, who was convinced to release Ryan. Ryan the other day had to almost undress at the immigration so that he could get a passport to travel. There is also a story about a young lady named Simon and the kind of humiliation she underwent in Siaya County.

We were with you when we recently had the breakfast organized jointly by the Intersex Persons Implementation Committee. These are very compelling stories. When you hear of a parent like Peter Maingi having to sell all his property so that they can get money to fund this corrective surgery and there is no end in sight.

We hear doctors telling parents to go to their clinics for five years continuously, milking money from them and yet they do not have a solution. People losing their livelihoods and time; the agony and stigma. This is the time that we need to rise as a House to ensure that this cannot happen again. Why do we say so? This is because all of us here are parents, grandparents, future parents and future grandparents and it could happen that you get a child who is intersex.

In fact, I was sharing with one of the Senators who told me that he has been brought an intersex person and he does not know what to do with that child. So, it is a matter that we need to take up seriously and I believe that we can amend this Registration of Persons Act and provide for procedures so that even at birth, children are not forced to undergo surgery because of the expectation of the society that, which child did you give birth to, was it a boy or a girl? Parents have been doing that. When they force surgery on a child, it means that this child, upon attainment of puberty, when the body expresses itself towards a certain sex orientation, then it is a misnomer.

We have had situations where parents have got a child and they named the child to be a boy but then upon puberty, the body expresses to be a girl. However they had already interfered with the reproductive organs of a female. So, then, what do you tell that boy?

We have also had cases where a child was seen to be a girl and then they did away with the male reproductive sex organs; the child now expresses himself as a boy but he no longer has the vital organs of a boy. You can imagine that kind of a thing. It is extremely fundamental and definitive. This is the essence of being. Just pause for a moment and imagine yourself, if you did not know whether you are a male or female; but you are tossed this way and that way. You cannot quite figure it out. I have sat for hours, I have walked the journey with these fellow Kenyans and I think that there is urgency to ensure that we confer to them the citizenship and recognition that is due to them.

There have been contestations about; is this the introduction of lesbian, gay, bisexual, and transgender (LGBT) issues in the background? No! There is a difference about this because when we talk about intersex people, we are talking about children born that way. That is something that I want to re-emphasize because it is always thrown at us; who are you talking about? Are you talking about people who are transgender? No,

Sen. (Dr.) Milgo, you have ten minutes left and you can contribute in the next sitting.

Hon. Senators, it is now 6.30 p.m., time to adjourn the House. The Senate, therefore, stands adjourned until Tuesday, 12th November, 2019 at 2.30 p.m.

The Senate rose at 6.30 p.m.

India, I think most Muslims in the world are found in India. Then we have the Hindus and, of course, the other religions.

It is a fairly conservative country in terms of matters of this nature. When I saw that number of people, I thought we are so unkind to God‟s creation. We are so selfish. We think about ourselves the way we look and anybody who does not look like us is an abnormal person. In fact, this is the very basis of racism; that if you are not black, then you are not part of my space. If you are a white man and a white Caucasian, then you are alien or foreign. The way we relate to those who look different from us demonstrates the kind of personality that we have. If you cannot recognise humanity in its various forms, then we are not human ourselves.

Madam Temporary Speaker, I particularly liked a meeting which was held in Asia. Sen. (Dr.) Mwaura is right that what we are doing is kind of historic, but there have been many conferences bringing together intersex people or of international organisations. If I am correct, I think there was a significant one which was held in Malta in 2013.

Recently, just last year in February, 2018, there was a conference in Bangkok, Thailand. It was the first Asian intersex forum. I like the resolutions they came up with. They said the following in the preamble to those resolutions.”

“We affirm that intersex people are real.” They are real in the form in which they are. That is why I agree with Sen. (Dr.) Mwaura, that we should accept them in the form in which they are and recognise that as part of humanity, without exception and distinction.

Madam Temporary Speaker, when you go to antiquity, the incidents in old Greece and old Rome of antiquity, not the times of Julius Caesar, I am talking about 5,000 or 6,000 years ago, there were some divinities who were intersex. They were regarded as very powerful. It is just like the image of God; we do not really think of God as either male or female. I mean, God created us in His own image. The Church, as opposed to the Scripture, has behaved as if God having been said to have created man in his own image, then that meant that God or divinity has some kind of sexual distinction.

That is not the case. Therefore, any human being who is a product of a relationship between man and woman, that person is a real being whatever his or her biological condition. However much, that person will look different.

To that extent, the conference that was in Bangkok, Thailand discussed a great deal the problems that are being confronted by intersex people. That conference was followed by another one in Seoul this year, one and a half months ago, on the 19th August

Thank you, Madam Temporary Speaker, for giving me this opportunity to support this Bill by Sen. Mwaura.

Nelson Mandela said- "What counts in life is not the mere fact that we have lived; it is what difference we have made to the lives of others that will determine the significance of the life we lead." Sen. Mwaura, the journey you have described, walking through with persons who are intersex, right from the last Parliament to this Parliament, and the strides that you have achieved for them is, indeed, of great significance. For that, God bless you.

Madam Temporary Speaker, I have now interacted with stigma when working on the issues of mental health. There is nothing more difficult or more painful for a human being than to live in the shadow of stigma because of something that is not within your control. Like the intersex, nobody chooses where they are born, how they are born, what they look like, whether they have a big eye or a short leg, you name it. This falls in the same category. We are all human beings as Sen. Orengo has said. We have a beautiful Constitution in this country that recognizes the Bill of Rights and the fundamental freedoms of every human being.

As I said, one time, we tend to live in a bubble. As long as I am okay, my children and parents are okay, then the world is okay. We lack the empathy and refuse to see beyond the bubble.What Sen. Mwaura has done here today by bringing this Bill, is bring the information and the knowledge that we need so that we can look beyond our bubble; that bubble, which we wish every human being could look beyond and make this world a better place.

I did not know much about intersex persons. It has taken a breakfast meeting with Sen. Mwaura, the Intersex Community, the Kenya National Commission on Human Rights (KNCHR) amongst others, for me to understand what these persons go through.

Also just to understand the stigma around them that they are not normal. I realised that I have been interacting with them every day and I just did not realize it. It also made me understand the challenges they go through as intersex, that they cannot get the registration that they so deserve. This is actually heartbreaking.

I want to thank you, Sen. Mwaura, for bringing this Bill today, for teaching us what intersex is and for making us understand the challenges they go through. I also want to agree with you, Sen. Mwaura. You have said that this platform, Parliament, in as much as we can be castigated for all the wrong things, some of the best things also happen here because when would have these people gained a voice?

Thank you for speaking for them; the disabled and the minorities. I agree with you that it is in this House that we make a difference. I am sure this Bill will definitely pass this House and the next. Already what you have achieved for the intersex persons by having them counted in the census is most commendable.

The very essence of our being is what we are discussing here. You have been born in a certain way and you should be recognized that way. True enough, many of them do not need to go through an expensive surgery to determine whether they are male or female. They can live normal lives as they are.

At birth, that they can be recognized as intersex is a beautiful thing. Thank you for changing the definition of sex to include the intersex. Later in life, they can decide

whether they want to do a surgery, if they can afford it. As we know, many Kenyans cannot afford this expensive surgeries.

I appreciate that provision that you have added there and the fact that they then can make a decision upon puberty. Those who can afford can choose whichever of the dominant sex they are. They can chose through either an elective surgery and then get their identity changed without a challenge.

I have had challenges with my ID card. I cannot imagine what intersex persons go through. When we were at the breakfast meeting, I heard a story of the challenges that intersex persons go through from an intersex person who talked to us. I really appreciate that this will now be tackled.

I do not have much more to say other than to support this Bill and thank everyone who has walked with Sen. Mwaura. I now appreciate the journey of working towards a Bill. It is really tough, and this is something that many Kenyans do not understand. Without the support of people and organizations like the Kenya National Commission on Human Rights (KNCHR) and other civil society organizations who have been out there working, it is really difficult to get some of these agendas out, even by the time they get a voice at Parliament.

Therefore, I thank everyone who has walked with Sen. Mwaura to reach where we are today because it is a really tough journey. I thank Sen. Mwaura and congratulate him for this Bill. I hope that every Senator will support it so that it can see the light of day.

I support.

Sen. (Dr.) Milgo.

Thank you, Madam Temporary Speaker, for this chance to also support this Bill. I wish to begin by thanking Sen. Mwaura for bringing to light the plight of very many Kenyans who would otherwise be languishing in stigma.

I wish to support this Bill which seeks to amend the Registration of Persons Act

Sen. (Dr.) Milgo, you have ten minutes left and you can contribute in the next sitting.

Hon. Senators, it is now 6.30 p.m., time to adjourn the House. The Senate, therefore, stands adjourned until Tuesday, 12th November, 2019 at 2.30 p.m.

The Senate rose at 6.30 p.m.