November 17, 2015 SENATEDEBATES

Tuesday, 17th November, 2015

Mr. Speaker, Sir, I regret that the Report of the Mediation Committee that I was chairing between this Senate and the National Assembly has a small technical problem. However, it is ready and we have signed it. It might come towards the end because today is the deadline.

Order, Senator! We said that you can canvass those quietly. I thought you were going to do your Statement.

Yes, Mr. Speaker, Sir.

Proceed.

Mr. Speaker, Sir, I rise under Standing Order No.45 (2) (b) to request for a Statement from the Chairperson of the Standing Committee on National Security and Foreign Relations relating to the presence of Kenya Military Security Forces in Somalia serving under the African Union Mission in Somalia (AMISOM) . In the Statement, the Chairperson should clarify the following:

November 17, 2015 SENATEDEBATES

What is it, Sen. Hassan?

On a point of order, Mr. Speaker, Sir. I can also just add to the same Statement. Sen. (Dr.) Khalwale has asked about the Government’s knowledge about trade in charcoal and sugar. In the same report, it is alleged that there has been massive human rights violation by the KDF, including torture and rape of those populations. Could the Government confirm whether they are aware of those transgressions by the KDF?

Mr. Speaker, Sir, I would have asked to be given a week. However, in view of the fact that even the Cabinet Secretary (CS) for Defence is currently out of the country, and we do not know when she will be coming back, maybe two weeks will be reasonable because if I say next week and they are not back, it will be a problem.

It is so ordered.

Mr. Speaker, Sir, I rise under Standing Order No.45 (2) (b) to request for a Statement from the Chairperson of the Standing Committee on National Security and Foreign Relations regarding the activities of the British troops who train in the country. The Chairperson should state:-

Mr. Speaker, Sir, with the consent of the gracious lady, Sen. Lesuuda, I want to answer this in two weeks’ time.

It is so ordered. Hon. Members, now we go to responses.

Mr. Speaker, Sir, pursuant to Standing Order No.45 (2) (b) , I rise to seek a Statement from the Chairperson of the Standing Committee on Health regarding the sale of fake and counterfeit pharmaceutical drugs and products in the country. This is based on a recently published report by a special working group of the National Council on Administration of Justice that indicated that approximately 40 percent of malaria

November 17, 2015 SENATEDEBATES

Yes, Vice Chair, Sen. Kittony.

Thank you Mr. Speaker, Sir. I will give the response on Thursday next week.

It is so ordered. The response will be on Thursday next week.

Mr. Speaker, Sir, I am not responding to any Statement, neither am I asking for a new Statement but I just want to make an inquiry of Statements that I had asked earlier. I do not know if this is the right time or after the delivery of Statements that are ready.

Proceed.

Thank you, Mr. Speaker, Sir. Four weeks ago, I requested for a Statement from the Chair of Education Committee who I can see is present in the House with regard to the payment of teachers’ salary and the court rulings. He promised to issue the Statement two weeks ago and up to now, the Statement has not been delivered to this House.

Thank you Mr. Speaker, Sir. I have not yet received the Statement from the Cabinet Secretary (CS) for Education. I am still pursuing it and hope by the end of the week, I will be able to give an answer to the House.

Thank you Mr. Speaker, Sir. Whereas the Chairman is justified to communicate, but listening to him, he has not given us any reason to indicate the difficulties he is facing. We run the risk as an institution to be seen not to be different from the Jubilee Government that does not seem to take the issue of teachers seriously. He should tell us the reason.

Mr. Speaker, Sir, I cannot tell you what is happening with the Ministry because mine is not to micro-manage the Ministry of Education. What we

November 17, 2015 SENATEDEBATES

Sen. Karaba, you have not yet responded to Sen. (Dr.) Khalwale’s question. Nobody asked you to micro-manage the Ministry.

Mr. Speaker, Sir, we have not as a Committee received the Statement from the Education CS.

Order, Senator. The issue is: Why?

Mr. Speaker, Sir, we might not tell the reason but by the end of this week, I will be able to give the reason it has not been received.

I thought that by the end of the week, you were to give a response.

Mr. Speaker, Sir, I will try to give both.

So, if I understand you, you will give reasons for the delay as you deliver the report.

Exactly, Mr. Speaker, Sir.

So, we will give you until Tuesday next week. Order, Members. Could we have a response from Statement (a) by the Committee on Legal Affairs and Human Rights as it appears on the Order Paper?

Could we go to Statement (b) ?

On a point of order Mr. Speaker, Sir. I want to draw your attention to the fact that this request for a Statement from the Independent Electoral and Boundaries Commission (IEBC) was made in May, six months ago. It is very disappointing that six months later, IEBC has been unable to give us a Statement. I would like the Chair to explain why he allows this state of affairs to persist.

Order, Sen. Obure. The Chair is not here.

Mr. Speaker, Sir, I meant the Chair of the Committee on Legal Affairs and Human Rights.

We wanted to move to the next Statement so that by the time we repeat, may be they would have come.

Sen. Haji, proceed to respond to Statement (b) .

Thank you, Mr. Speaker, Sir. On Wednesday, 11th November, 2015, Sen. Wetangula rose on the Floor of the House and requested for information regarding the arrest of a journalist,

November 17, 2015 SENATEDEBATES

On a point of order Mr. Speaker, Sir. I know the Chair to be a very soft spoken person but for the benefit of the whole House, he is not audible, and I would ask that he properly raises his voice so that we can follow.

Mr. Speaker, Sir, I will proceed.

November 17, 2015 SENATEDEBATES

November 17, 2015 SENATEDEBATES

Mr. Speaker, Sir, further to that clarification, I would like to know whether the Cabinet Secretary of the Ministry of Interior and Coordination of National Government is aware of the evolving and changing paradigms of security. We are moving from a world where we lived in a paradigm of scrutiny to the democratization of our security. That means that citizen participation in security is legitimate.

Secondly, is the Cabinet Secretary aware that the rights of Government to withhold information only extends to a point where the information held does not lead to committing a crime and herein possible abuse of resources? Is the Chairperson aware that there are various defence and security journals that elaborate the kinds of strengths different militaries in the world have, for instance, the United States of America (USA) , Russia and China? The culture of secrecy has been overtaken by events as countries share information on matters of equipment and security.

Mr. Speaker, Sir, could the Chairperson clarify to the House whether the Cabinet Secretary is aware of the provisions of Article 245 (4) that completely prohibits him or any other person from directing the Inspector-General (IG) to arrest or investigate anybody?

Could the Chairperson tell us what Maj. Nkaissery meant when he pointed a KANU like finger protruding and popping from the television screens of Kenyans warning all of us that we will be held responsible? Could he clarify what “being held responsible” means? Does it mean he will arrest, beat or kill? He was pointing a finger at us, but we will not stop talking about corruption in this country.

Mr. Speaker, Sir, as I said yesterday, Ms. Waiguru is presiding over thieves. She is, therefore, the head of thieves at the National Youth Service (NYS) . Is she the reason---

Order, Sen. (Dr.) Khalwale!

Mr. Speaker, Sir, we have always marketed ourselves and told the nation that we are the House of reason. We obey the law and follow due process. Is it in order for Sen. (Dr.) Khalwale to become the prosecutor, complainant and the judge to give the final verdict on the streets on who a thief is? Is it not against the Constitution that scantily provides that presumption of innocence is a key principle? If we were to go that

November 17, 2015 SENATEDEBATES

Mr. Speaker, Sir, if by using the word “thief” is being taken to mean that I am being unreasonable, with all due respect to Sen. Murkomen, when a biro pen that costs Kshs20 is bought at Kshs8,700, the person pocketing the difference is a thief.

If Ms. Waiguru is not the thief, could the Jubilee Government tell us who the thief is? I speak on behalf of Mr. Mangiti and Mr. Nelson Githinji. They will not be referred to as thieves when the buck stops with their boss who is Ms. Waiguru. She should not be reduced to a State witness.

Order, Sen. (Dr.) Khalwale!

Mr. Speaker, Sir, we saw a public servant lie on record about the information that he was giving to a Committee of Parliament that includes some of the information that Sen. (Dr.) Khalwale is quoting. He lied on oath and the Committee that is led by CORD was silent then. Is it then in order for the Senator to repeat that it was given by the source of the information? Does he have another document that he is looking at?

Order, Members! You are all dealing with irrelevant issues. Can we focus on the issue of the Cabinet Secretary in charge of the Ministry of Interior and Coordination of National Government?

Mr. Speaker, Sir, is the Chairperson aware that according to the rules of this House or Parliament as a whole, all plenary proceedings in the House and the Committee are public hearings? They can only be in-camera with the permission of the Speaker. Did the Cabinet Secretary seek the Speaker’s permission to have the information that he was giving to the Committee privileged and, therefore, in-camera?

Mr. Speaker, Sir, I am one of the people who have been victimized by the orders of Maj. Nkaissery. For the Chairperson to say that Mr. Ngirachu was not arrested is false. The Cabinet Secretary wrote a letter while he was in the USA and ordered the Inspector-General and the Criminal Investigations Department (CID) to arrest me. Is it the work of the Cabinet Secretary to order for people to arrest others yet there are people who have been assigned that work? I would like the Chairperson to clarify that.

Order, Senators! Please, Mr. Chairperson, respond.

Mr. Speaker, Sir, I read the Statement from the Cabinet Secretary and I will defend it.

With regard to the question by Sen. Wetangula, on the right to information under Article 35 of the Constitution, there was no mention of coffee taking in the statement. Being a lawyer, I am sure that he understands better the right to information.

November 17, 2015 SENATEDEBATES

On a point of order Mr. Speaker Sir. I sought to know from the Chairman whether the Cabinet Secretary had permission from your office for in-

November 17, 2015 SENATEDEBATES

On a point of order Mr. Speaker, Sir. My clarification is on the issue of procedure. I want to pick from where Sen. (Dr.) Machage has stopped. We are a House of Rules and Procedure. In the Senate Standing Order No.202, it very clear states that all Committee proceedings will be in the open unless there is express permission from the Speaker.

We are actually discussing the proceedings of another House. Are we in order to actually presume? This meeting was not taken by a Committee of the Senate, it was a Committee of the National Assembly. We have got all this information from the media. Are we in order to discuss the proceedings of another Committee? I am asking this because we, as the Senate, have amended our Standing Orders.

How do we know that they have not amended theirs? Are we in order to discuss the proceedings?

Order, Senator

Point taken .Thank you.

Senators, there is a distinction between a respondent and the one asking for clarification.

Mr. Speaker, Sir, the things that the Cabinet Secretary Nkaissery said and did and which were reported in the country is a matter of public notoriety. Given that in his answer, the Chairman has returned a no answer to everything, are we satisfied that the Chairman has adequately responded to our concerns? Could the Chairman be directed to come with the correct answer?

Well said.

Mr. Speaker, Sir, I stand by what I said that the information is limited. Article 24 of the Constitution states that there is limitation as far as security measures are concerned. Just read it.

Order, Members, the Chair will be heard. Proceed, Chair.

Mr. Speaker, Sir, we are talking about information and I have referred to the Article of the Constitution which limits information. Whether it is security or what, it limits information. I have answered Sen. (Dr.) Machage, and I am not going to repeat.

Regarding Sen. (Dr.) Khalwale, I have answered every matter that has been raised unless you want me to answer what you want, which I cannot do.

Hon. Senators, we move to the next Order. These other Statements will be put on the Order Paper tomorrow.

Mr. Speaker, Sir, I had a Statement but you said it will be put on the Order Paper tomorrow.

November 17, 2015 SENATEDEBATES

That is what I said. All the pending Statements will be scheduled on tomorrow’s Order Paper.

November 17, 2015 SENATEDEBATES

Thank you, Mr. Speaker, Sir. In my capacity as the Chair of the Committee on Devolution and whose responsibility is to deal with intergovernmental relations, I thank your office for facilitating capacity building for the county staff. We have reiterated that those men and women in the Speaker’s Gallery are our primary clients and partners. It is important that we ensure that the counties are capacitated. I, Sen. Hassan, Sen. Mutula Kilonzo Jnr., among others, led a process of advocating for more resources to counties.

If we do not do that, we will not be able to check corruption that is rampant in the counties. The delegation includes those from my county led by my former student who is a lawyer and is doing a good job. I am proud of the team.

Thank you.

Mr. Speaker, Sir, after consulting with the Chair of the County Public Accounts Committee and the Vice Chair, we should encourage public accounts committees to come to the Senate County Public Accounts Committee for training so that they can develop the grid to interrogate wheelbarrows and other kinds of expenditures that do not make common sense.

Mr. Speaker, Sir, allow me to join you in welcoming the various delegations and particularly the delegation from Bungoma County. I also thank you profusely for the programme that you put in place to build capacity of our county assemblies. I remind them that they have an important role to play in ensuring that devolution works and benefits the people of Kenya. The role of oversight is important besides representation and legislation. I put emphasis on oversight.

The reports that are getting to us in the County Public Accounts and Investments Committee from the counties are disheartening. The reports we read in the Press about wheelbarrows costing millions of shillings, building of gates costing millions of shillings and buying of curtains are disheartening. This is not what devolution was meant for. It is the responsibility of our county assemblies to ensure that these malpractices do not continue.

We thank you and welcome you to the Senate.

November 17, 2015 SENATEDEBATES

On a point of order Mr. Speaker, Sir. So that our counterparts from the county assemblies monitor what is going on in the Senate, I request your office to inform the Clerk’s office that we have been having this problem for the last two to three weeks. They either repair them or put them off completely.

Thank you, Mr. Speaker, Sir. I join you in welcoming the delegation in the Chamber today. I thank the officers who have come to learn. Your office is doing the right thing. I also thank the delegation from Bungoma County for giving the President an arousing welcome when he visited their county and even made some Members to run away.

Thank you, Mr. Speaker, Sir. I join my colleagues in welcoming Members of the County Assembly of Bungoma and at the same time welcome staff from the various county assemblies. It has been a big challenge for many county assemblies to do good legislation. Training staff is an essential component that will boost capacity in our counties. I encourage more counties to send their staff for training or capacity building. I welcome the Mandera County delegation and the other delegations from various counties.

Asante Bw. Spika. Ninaungana na Waheshimiwa wenzangu kuwakaribisha wageni kutoka Bunge la Kaunti ya Bungoma. Waswahili husema kwamba mgeni hupokelewa mzigo lakini macho huachiwa mwenyewe. Wageni wetu kutoka Bunge la Kaunti ya Bungoma wana macho na kwa hivyo, waone vile tunavyofanya katika Seneti. Pia waone zile wheelbarrow za laki moja ama Ksh40,000.

Nawakaribisha wafanyikazi wote kutoka Kwale eneo ambalo ninawakilisha na zile kaunti zingine ambazo wamefika hapa. Hii ndio Seneti na Bunge ambalo linaonyesha kwa hali, mali na vitendo.

Asante.

Mr. Speaker, Sir, I would like to join you and other colleagues in welcoming the delegations from the counties. It has always been the concern of this House that whatever is going on in the counties is as a result of lack of capacity by the county assemblies to provide the necessary oversight. This is a good programme which ensures that both the staff and Members of the County Assemblies (MCAs) come to learn, so that they can provide effective oversight in the running of the county governments.

Thank you.

Mr. Speaker, Sir, I wish to join my colleagues in welcoming the counties that are visiting us, especially the staff from Isiolo County. I wish to encourage them to start working on what we have lost. We had a lot of issues as a county for quite some time. It is, therefore, encouraging that they have put themselves together to work on their capacity building, so that they can go back and deliver on their mandate. I wish them good well during their attachment. Isiolo County should move forward and execute its mandate.

Thank you.

Mr. Speaker, Sir, I want to join you and other colleagues in welcoming all the delegations. In particular, I would like to welcome the staff from Mandera and Isiolo counties which are in northern Kenya. This is the first time that staff or delegations

November 17, 2015 SENATEDEBATES

Next Order!

An

We did everything! The Temporary Chairperson (Sen. (Dr.) Machage): Order! You can rise on a point of order.

On a point of order, Mr. Temporary Chairperson, Sir. I remember very well the last time we considered this Presidential Memorandum. The only thing that was remaining was the putting of the question on whether or not to approve it. We went through all the amendments.

The Temporary Chairperson (Sen. (Dr.) Machage) : Order, Senator! Did you listen carefully to what I said? I said exactly that.

consulted with the Clerk-at-the-Table) I will combine the two clauses; Clause 51 (3) and Clause 124. I, therefore, put the Question, that the President’s recommendations on Clause 51 (3) and Clause 124 of the Public Procurement and Asset Disposal Bill (National Assembly Bill No.40 of 2014) be approved.

Can you draw the Bar?

November 17, 2015 SENATEDEBATES

On a point of order, Mr. Temporary Chairperson, Sir. I remember very well the last time we considered this Presidential Memorandum. The only thing that was remaining was the putting of the question on whether or not to approve it. We went through all the amendments. The Temporary Chairperson (

We have voted. The Temporary Chairperson (Sen. (Dr.) Machage) : Are you okay? Assisted voters can come forward to the Clerk’s Desk.

AYES: Sen. Adan, Isiolo County; Sen. Chelule, Nakuru County; Sen. Haji, Garissa County; Sen. Karaba, Kirinyaga County; Sen. Kembi-Gitura, Murang’a County; Sen. Keter, Kericho County; Sen. (Prof.) Kindiki, Tharaka-Nithi County; Sen. Lesuuda, Samburu County; Sen. Melly, Uasin Gishu County; Sen. (Eng.) Muriuki, Nyandarua County; Sen. Murkomen, Elgeyo-Marakwet County; Sen. Sang, Nandi County; and, Sen. Wangari, Nairobi County.

November 17, 2015 SENATEDEBATES

On a point of order, Mr. Temporary Chairman, Sir. First and foremost---

Mr. Temporary Chairman, Sir, we made it very clear in this House that votes by any delegation must be through a written letter by the leader of that delegation. I find it very unfortunate that one delegation can vote twice.

The Temporary Chairperson (Sen. (Dr.) Machage) : How did you know that?

That is quite in order. Ring the Division Bell for one minute. (The Division Bell was rung)

We have voted. The Temporary Chairperson (

November 17, 2015 SENATEDEBATES

November 17, 2015 SENATEDEBATES

On a point of order, Mr. Temporary Chairman, Sir. First and foremost---

November 17, 2015 SENATEDEBATES

Mr. Temporary Chairperson, Sir, let us try and help this House with the system of voting where Sen. Wangari and Sen. Chelule are said to have voted for the same county. We want a clarification because every delegate is registered from the county he or she comes from. We want to know where Sen. Wangari is registered because from the information that I have as a Whip, she votes for the delegation from Nairobi County. Is that the position Chair? That is what we want clarified because we do not want rigging and stealing of the votes here like the money which is being stolen in the Ministry.

The Temporary Chairperson (Sen. (Dr.) Machage) : Sen. Wetangula, make your comments very brief.

The Senate Minority Leader (Sen. Wetangula) : On a point of order, Mr. Temporary Chairperson, Sir. I will make it very short. This is on the point raised by the distinguished Senator for Siaya County. The ruling by the Chairperson is very clear and you have made reference to it. My understanding and expectation from the Chairperson of the Committee is that after the vote, there must be a result announced. In this case, the Chairperson declared the result as 17 “Ayes” and 13 “Noes”. We would expect the record to reflect as follows:-

How did you know that?

Sen. Chelule and Sen. Wangari voted and they are from the same delegation.

Order. I have been re-looking at these figures and the secretariat ---

November 17, 2015 SENATEDEBATES

November 17, 2015 SENATEDEBATES

An

Give us the right figure. The Temporary Chairperson (Sen. (Dr.) Machage): Now, let me give you the right figures.

Order! Order! The Chair is on his feet. What is it, Sen. Orengo?

On a point of order, Mr. Temporary Chairman, Sir. This is a matter that we cannot leave unresolved, because the Constitution is very clear. When we handle a vote which is basically a memorandum and a reservation from the President, the Constitution gives Parliament certain powers. Those powers are in Article 115 (2) . We should ask ourselves what to do with the Presidential Memorandum. That is what we are trying to do in these proceedings. If I may read in extenso, the entire Article 115 (2) states that:-

“If the President refers a Bill back for reconsideration, Parliament may, following the appropriate procedures under this Part—

An.

November 17, 2015 SENATEDEBATES

Mr. Temporary Chairperson, Sir, let us try and help this House with the system of voting where Sen. Wangari and Sen. Chelule are said to have voted for the same county. We want a clarification because every delegate is registered from the county he or she comes from. We want to know where Sen. Wangari is registered because from the information that I have as a Whip, she votes for the delegation from Nairobi County. Is that the position Chair? That is what we want clarified because we do not want rigging and stealing of the votes here like the money which is being stolen in the Ministry. The Temporary Chairperson (

Yeaaaah!

An. hon. Member: Tuendelee.

Sen. Murkomen, what do you want?

That is how you are going to lose in 2017! The Noes have refused.

November 17, 2015 SENATEDEBATES

Order. I have been re-looking at these figures and the secretariat ---

-

November 17, 2015 SENATEDEBATES

An

An hon. Senator: Purgatory!

Yes!

Now, let me give you the right figures.

Yes! Hapo! The Temporary Chairperson (

November 17, 2015 SENATEDEBATES

An.

What about Sen. Sijeny? The Temporary Chairperson (

Mr. Temporary Chairman, Sir, it is good to be clear on what we are doing. The point that Sen. Orengo has made needs a statement from you so that we know where we are going. As far as I know, what we have done was just to consider the recommendation of the President on a particular clause. Article 115 (4) of the Constitution on the Presidential Assent and Referral says:-

“Parliament, after considering the President’s reservations, may pass the Bill a second time, without amendment, or with amendments that do not fully accommodate the President’s reservations, by a vote supported—

November 17, 2015 SENATEDEBATES

Mr. Temporary Chairman, Sir, look at the memorandum from the President on page 879 of the Order Paper, for example, on Clause 40 (a) , the President says “a new clause be inserted.” A new clause cannot amount to a reservation.

The Temporary Chairperson (Sen. (Dr.) Machage) : Order! You are already on Order No.9.

Mr. Temporary Chairman, Sir, I was just clarifying. The Temporary Chairperson (Sen. (Dr.) Machage) : That clarification is not accepted. Just wait. You have a point, but you are doing it at the wrong time. Unless you have something else, hold your horses. Do you have something else other than what you are talking about?

Yes, Mr. Temporary Chairman, Sir. The Temporary Chairperson (Sen. (Dr.) Machage) : Okay. Proceed.

Mr. Temporary Chairman, Sir, the contention at this stage is as raised by Sen. Orengo between a recommendation and a reservation. If the Chair is satisfied that there is material difference between recommendation and reservation, then the Chair should guide this House. The President has acted contrary to the Constitution, which in Article 115 (4) gives him the right only to make a reservation and not a recommendation.

It is, therefore, unconstitutional if you leave it hanging saying that there are three other possible outcomes. We have said “no”, but they have said “yes”. The ‘Ayes’ have been unable to defeat us. When you are unable to defeat your opponent, it means your opponent has defeated you. So, it is done, lost and negatived.

An. hon. Member: Tuendelee.

Sen. Murkomen, what do you want?

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November 17, 2015 SENATEDEBATES

On a point of order, Mr. Temporary Chairperson, Sir. Mine is based on the direction that you have just given vis- à-vis the very detailed ruling that the Speaker of this House made on this matter.

If I recall, the ruling of the Speaker was as follows:-

The Temporary Chairperson (

November 17, 2015 SENATEDEBATES

November 17, 2015 SENATEDEBATES

An hon. Senator: Purgatory!

Yes!

November 17, 2015 SENATEDEBATES

On a point of order, Mr. Temporary Chairperson, Sir. I have decided to make this point because we are all in a learning process. I plead with the Senate Majority Leader that this constitutional question must be resolved in the manner in which the Presidential Memorandum comes to Parliament. We are using the language of the old Constitution, introducing and casting it into the new Constitution. That is where the problem is.

Mr. Temporary Chairperson, Sir, if you look at Article 115---

Consulted the Clerks-at-the-Table) I wish the Clerks-at-the-Table could allow you to listen to me. Article 115 talks about the President making reservations. What we should be dealing with in the Senate are the reservations by the President and not his recommendations. In fact, the word recommendation is found in the old Constitution. If you read the old Constitution, it is quite clear what Parliament was required to do. However, this current Constitution talks only about reservation.

The problem that we have is that, if you look at the order that we have been dealing with which is Order No.8; its substance is found on the appendix, which is the notices of amendments. That is what is before the House. It has been brought by the Senate Majority Leader. It is a simple question. There is no question about reservation; it is just talking about recommendation, which states:-

November 17, 2015 SENATEDEBATES

An

Order Nos.8 and 9.

Mr. Temporary Chairman, Sir, I do not understand when the Chairperson wants to report progress. We have to deal with both orders, finish and then you will report to the Speaker. I have seen Sen. Mositet around. Sen. Murkomen is here who shares the responsibility of the Temporary Speaker.

November 17, 2015 SENATEDEBATES

Mr. Temporary Chairman, Sir, look at the memorandum from the President on page 879 of the Order Paper, for example, on Clause 40 (a) , the President says “a new clause be inserted.” A new clause cannot amount to a reservation. The Temporary Chairperson (

Mr. Temporary Speaker, Sir, could you hear me out? My chairing of the Committee of the Whole was not intended to raise any controversy. If Members of this House are not happy and have raised points of order to that effect; that the vote be repeated, I will not give the report to the House. As the Temporary Chairperson of the session, I agree with them and withdraw.

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Order, Senators! Sen. (Dr.) Khalwale has the Floor.

That clarification is not accepted. Just wait. You have a point, but you are doing it at the wrong time. Unless you have something else, hold your horses. Do you have something else other than what you are talking about?

Yes, Mr. Temporary Chairman, Sir. The Temporary Chairperson (

Clerk, you are the one who is messing up this House! What is he doing? This is serious.

Continue, Sen. (Dr.) Khalwale.

On a point of order, Mr. Temporary Chairman, Sir. A word contained in the Constitution of Kenya cannot be semantics. It cannot. The moment we begin to think of this document in terms of semantics--- The Temporary Chairperson (

Mr. Temporary Speaker, Sir, if you had given me the chance to speak earlier, this problem would have been solved. To err is human. When the Chair was speaking, having noted that the amendments or reservations that the President had proposed had been rejected in this House by a vote of 17 to 13, it is a fact that any vote taken while those same Members were in this House could not be negated. It was not possible to negate it.

When the Chair heard the “Nays” in a voice vote higher than the “Ayes”, he assumed that the “Nays” were confirming what had been there and mistakenly said that the “Ayes” have it. If you ask the Chair why he stood up and made a statement that is not accommodated in the Standing Orders is precisely because what he did when he was chairing was also not accommodated in the Standing Orders. The “Nays” had a bigger voice vote than the “Ayes” yet he said something contrary to that. To err is human.

Order! You are reading me wrongly, Sen. Orengo.

No, Mr. Temporary Chairman, Sir. What you have said has gone on record. You said the difference between reservation and recommendation is semantics. That is a grave travesty coming from the Senate. I hope you will clarify that point for the sake of future generations looking at the proceedings.

November 17, 2015 SENATEDEBATES

On a point of order, Mr. Temporary Chairman, Sir. Arising from the point of order raised by Sen. Orengo in the entire Article 115 (3) and (4) of the Constitution, there is no doubt about what he is talking about. That is the language of expressing the reservation or recommendation. The point is that the Constitution envisages and allows the President to express his reservations. Therefore, the question that Sen. Orengo would need to clarify to the House is, in his thinking, how is the President supposed to express his reservations to this House? The Temporary Chairperson (

Mr. Temporary Speaker, Sir, we are challenging what the Chair did. However, there is a provision in the Standing Orders that if you disagree with what the

Order! That is not what Sen. Orengo was talking about. What is before us is a Presidential Reservation that was brought to us through a Memorandum, the Memorandum that we have looked at here. That is where the point of contention is. In the voting, the Committee of the Whole has said ‘no’ to the Memorandum. Therefore, the question that is being raised is: By saying “no” to the memorandum, have we said “no” to the Reservation? That is the point you have to look at.

Mr. Temporary Speaker, Sir, the Standing Orders are not cast on stone. Unfortunately, for us, there is something called precedence which is where you disagree or form a new precedence on a matter that has never been decided before. The Chairperson of the Committee of the Whole made a mistake. In fact, I would like the Kenya Broadcasting Corporation (KBC) to give us a video clip for us to demonstrate that the Chair made a mistake. In a case where you do not have a provision, the Chair can withdraw the vote. I urge you to look at the Standing Order No1. (2) . It says:-

“The decisions made in paragraph (1) shall be based on the Constitution of Kenya, statute law and the usages, forms, precedents, customs, procedures and traditions of the Parliament of Kenya and other jurisdictions to the extent that these are applicable to Kenya.” Mr. Temporary Speaker, Sir, where the noisy vote by this side was more than that side, we do not need to look for any other provision. Sen. (Dr.) Machage, the Chair of the Committee of the Whole must stand by his withdrawal of the vote because it was fraudulent in any respect.

The Senate Minority Leader (Sen. Wetangula) : Mr. Temporary Speaker, Sir, the House finds itself in a very difficult situation. As you sit in the Chair, you did not walk in after the events that happened. You were sitting in the House; you saw and heard. The distinguished Senator for Migori, after putting the matter to vote either made an honest mistake or a fraudulent one.

November 17, 2015 SENATEDEBATES

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Mr. Temporary Speaker, Sir, is he in order?

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

Sen. (Dr.) Khalwale, please, use the right language.

The Senate Minority Leader, I am giving you one minute after which, I will make a ruling.

The Senate Minority Leader (Sen. Wetangula) : Mr. Temporary Speaker, Sir, I urge you to bring back the proceedings to the rails and let us go to the business of the House as it ought to be. Standing Order No.8 is done with. What is left is whether the Chair was right in purporting to report progress when there was no progress to report the outcome. That is what you should direct.

November 17, 2015 SENATEDEBATES

November 17, 2015 SENATEDEBATES

Mr. Temporary Speaker, Sir, the reason I am saying this is because I have been having a discussion with the Senate Majority Leader, one point that I emphasise is that the authority of the President to give presidential assent or deny, otherwise a veto, is an important constitutional contravention which we cannot do away with in our modern Constitution.

I emphasise that this is an authority that the President has in every democracy. That is why partly we are a Republic. If you want to know what a republic is, go back to the days of Julius Caesar.

Mr. Temporary Speaker, Sir, looking at the powers and the functions of Parliament, it requires the Members of Parliament to protect the Constitution. However, among the powers of the President, there are two important things that we must think about. The President is not only the head of Government, but also the Head of State. When we are dealing with a Presidential veto in the House, let us have decorum. When there is Presidential reservation or recommendation on the Floor, we are dealing with the President as the Head of State and not Head of Government.

I want to hear the Senate Majority Leader when we are considering this matter to give the President that important constitutional function as Head of State and not Head of Government. That is why when these reservations are before the Senate, we must have a bipartisan way of approach.

Mr. Temporary Speaker, Sir, we are required to protect the Constitution. Equally, the President is expected to respect, uphold and safeguard the Constitution. They are three important words. In our functioning, if the President finds that Parliament erred through the exercise of Presidential Assent, he can express those reservations. I heard the Senator for Kiambu County trying to make issue with what I had said before. Just as much as the Constitution is important, Sen. (Dr.) Machage must abide by the Standing

November 17, 2015 SENATEDEBATES

November 17, 2015 SENATEDEBATES

Mr. Temporary Speaker, Sir, for the record, Sen. (Dr.) Machage has made the situation clearer. Based on the explanation he has given, I agree with the position he has taken. However, having said so,

Mr. Temporary Speaker, Sir, with utmost respect, whoever has drawn your attention to the fact that I have uttered those words will live with his conscience. I am a modest man and I would never call any of these colleagues “stupid.” Therefore, you are asking me in the full glare of camera to own something that I did not say. Take time and scientifically assign that statement to me. What I said, and for which if I am asked to apologize I will make a decision, is that some people have stolen our land and now they want to steal the Constitution. That is the only thing I said. How do you make me apologize for something which I did not say?

consulted with the Clerk-at-the-Table)

Sen. (Dr.) Khalwale, the issue has been clarified to me. There is a Senator who uttered the word “stupid,” but it is not Sen. (Dr.) Khalwale. You are let loose.

Hon. Senators, I ask the Temporary Chairperson of the Committee of the Whole to report progress to the House.

Mr. Temporary Speaker, Sir, could I inform my dear in the legal profession that in the old days, Theology and Law were fused together? One of the most leading theologians, who is also a lawyer, Bishop Augustine of Hippo, said that in the court of conscience, there is no obligation to obey an unjust law. It is not just a right, but an obligation as well.

November 17, 2015 SENATEDEBATES

Order, Senators! Sen. (Dr.) Khalwale has the Floor.

On a point of order, Mr. Temporary Speaker, Sir. The distinguished Senator for Migori has honourably and gracefully disowned the vote which he pronounced. In English—

consulted with the Clerk-at-the-Table)

Clerk, let the Temporary Speaker listen.

Clerk, you are the one who is messing up this House! What is he doing? This is serious.

Continue, Sen. (Dr.) Khalwale.

November 17, 2015 SENATEDEBATES

On a point of order, Mr. Temporary Speaker, Sir. Am I be in order to ask the Clerk and your legal team to consider making a clarification to the Senate regarding Article 115 of the Constitution which speaks on the reservations of the President whereas what has been put before us has been recommendations from the President; two terms which have caused a problem in the Senate today?

Secondly, while looking at the practice in Parliament, I would recommend that you compare the Presidential Memoranda that were submitted to Parliament by President Kibaki in terms of reservations as compared to what is emerging as a legislative role in the presidency and not just expressing reservation on the legislative role of Parliament?

Sen. Wetangula, be brief. The Senate Minority Leader (Sen. Wetangula) : On a point of order, Mr. Temporary Speaker, Sir. In that consideration, I also urge the Chair, after looking at the words “reservations” and the term being used “recommendations”, we also want the Chair to guide the House as to whether the President has the liberty under the Constitution to send new clauses when he is only entitled to exercise his right of veto by sending his reservation to Parliament about what is on the Bill. When the President goes beyond reservations, recommends and then drafts new clauses, that is not envisaged under any Article of the Constitution, more particularly Article 151.

Lastly, we are done with Order No.8. There is no legitimate reason for us to step down Order No.9. Order No.8 was on its own. In fact, I painstakingly argued that we needed to remain in the Committee of the Whole to deal with Orders No.8 and 9 so that we finish and have a singular report back to the House. Those arguments were not upheld. I respect the ruling of the Chair even when I do not agree with it. We need to go to Order No.9. As long as we have quorum, deal with it and vote on it. If it gets 32 votes, it is rejected. If it gets less than 24, it is not passed and then we get a report.

On a point of order, Mr. Temporary Speaker, Sir. As said by the Senate Minority Leader, I urge the Chair to look at the old Constitution where the issue of Presidential Assent and the exercise of veto power were done under very different circumstances. This is because then the President was part of Parliament. The Parliament of Kenya consisted of the President and the National Assembly. The current Parliament does not have the President as a component of Parliament.

The second more important issue particularly on this issue of coming up with new clauses under the new Constitution is that there is the element of public participation. That, a Bill that has been published, during the period that it is published and in between the First and Second Readings, there is an engagement by the public and other stakeholders. Bills commence by publication.

It would undermine the architecture of this Constitution if an amendment brought by the President, which introduces new clauses, it has not been published, tabled, read the First Time, has not been subjected to public participation, has not gone through the Second Reading and those new clauses appear suddenly or abruptly during the Committee Stage. That would undermine the procedure under which the Constitution requires that we enact legislation.

Therefore, we should be true to the promises and requirements of this Constitution that all these requirements must be met. In fact, if the President had any

November 17, 2015 SENATEDEBATES

On a point of order, Mr. Temporary Speaker, Sir. Thank you for finally recognizing me. I have been trying to speak the whole afternoon and so allow me to also say what I wanted to say earlier.

First, the issues being brought back had been aired and discussed fully before and then the Speaker made a ruling. Now, the Senate Minority Leader and hon. Senators are trying to go behind the Speaker’s ruling. I believe that they are all very experienced Members of Parliament. Most of them have been here for a long time. The Speaker’s ruling is normally not challenged with. If you want to challenge the Speaker’s ruling, at least, have enough decorum to wait and do it with the substantive Speaker who made the ruling.

It is true it was dealt with. The Speaker made a ruling and he allowed the President’s observations to come to this stage and be discussed. This Stage was only to vote and report ---

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

I am on a point of order. You have been speaking the whole afternoon---

The Senate Minority Leader (Sen. Wetangula) :

Mr. Temporary Speaker, Sir, we are challenging what the Chair did. However, there is a provision in the Standing Orders that if you disagree with what the

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November 17, 2015 SENATEDEBATES

Order, Senator! Let us have Sen. Mutula and then we continue.

November 17, 2015 SENATEDEBATES

On a point of order, Mr. Temporary Speaker, Sir. We are here this afternoon on a very important matter. I have said I fully understand what the opposition is trying to do and it is within their right. I wish them luck. I have also expressed myself that they will not succeed.

Having said that, is it in order for the Senate Minority Leader to impute improper motive on the Chair of the Committee of the Whole of the Republic of Kenya, by saying blatantly and openly that the Chair has rigged the outcome of the vote? If that is the assertion, he should bring a substantive Motion to discuss the conduct of Sen. (Dr.) Machage for which notice will be given so that we prepare and defend the Chair - those of us who think that the Chair has been fair.

The Senate Minority Leader has consistently got away with snide remarks against colleagues. Time has come for us to tell him off.

November 17, 2015 SENATEDEBATES

Mr. Temporary Speaker, Sir, is he in order?

Mr. Temporary Speaker, Sir, I was on the Floor, let me finish. The loss of temper by the Senate Majority Leader and the use of excessive and extravagant language that I did not use, is not keeping and inconsistent with his character. He did not listen to me. When I made my submission, he was busy talking to

“What did he say?” He was not even listening to me.

November 17, 2015 SENATEDEBATES

On a point of information, Mr. Temporary Speaker, Sir. The Senate Minority Leader (Sen. Wetangula) : Please, inform me.

Mr. Temporary Speaker, Sir, I urge you to bring back the proceedings to the rails and let us go to the business of the House as it ought to be. Standing Order No.8 is done with. What is left is whether the Chair was right in purporting to report progress when there was no progress to report the outcome. That is what you should direct.

November 17, 2015 SENATEDEBATES

Thank you, Mr. Temporary Speaker, Sir. Today, it may turn out to be an important day because a number of fundamental issues have been raised. Sen. Orengo started by questioning whether the President should bring an amendment instead of a reservation. That is already a fundamental issue. I and other Members were of the view that the President’s reservations could be in the form of suggestions or in the form of an amendment.

That being the case, in order for Parliament to reject the President’s suggestions or amendments or whatever it is, we need two-thirds, which we did not raise. The fact that there may have been an argument whether the vote was taken, a decision should be made to make us move forward.

If I recall correctly, the Chair who was presiding over the Committee has not officially told you that he has withdrawn. He just stopped there. In my view, we should give a chance to the Chair so that we can know which way to go. Since we have legal minds in the House, we can find a way of continuing with Standing Order No.9 and proceed. In the meantime, the Chair can give the report.

Mr. Temporary Speaker, Sir, the reason I am saying this is because I have been having a discussion with the Senate Majority Leader, one point that I emphasise is that the authority of the President to give presidential assent or deny, otherwise a veto, is an important constitutional contravention which we cannot do away with in our modern Constitution.

I emphasise that this is an authority that the President has in every democracy. That is why partly we are a Republic. If you want to know what a republic is, go back to the days of Julius Caesar.

Mr. Temporary Speaker, Sir, looking at the powers and the functions of Parliament, it requires the Members of Parliament to protect the Constitution. However, among the powers of the President, there are two important things that we must think about. The President is not only the head of Government, but also the Head of State. When we are dealing with a Presidential veto in the House, let us have decorum. When there is Presidential reservation or recommendation on the Floor, we are dealing with the President as the Head of State and not Head of Government.

I want to hear the Senate Majority Leader when we are considering this matter to give the President that important constitutional function as Head of State and not Head of Government. That is why when these reservations are before the Senate, we must have a bipartisan way of approach.

Mr. Temporary Speaker, Sir, we are required to protect the Constitution. Equally, the President is expected to respect, uphold and safeguard the Constitution. They are three important words. In our functioning, if the President finds that Parliament erred through the exercise of Presidential Assent, he can express those reservations. I heard the Senator for Kiambu County trying to make issue with what I had said before. Just as much as the Constitution is important, Sen. (Dr.) Machage must abide by the Standing

November 17, 2015 SENATEDEBATES

November 17, 2015 SENATEDEBATES

November 17, 2015 SENATEDEBATES

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

Mr. Temporary Speaker, Sir, this Motion that was moved by Sen. Ongoro is extremely important. I would like to draw the attention of the House to the Motion because few have been debating on many things and I am sure that by now, the House must have lost the substance of the Motion. Let me just read it for the sake of refreshing our memory.

THAT, AWARE that the Parliament of Kenya is an active member of the Inter- Parliamentary Union (IPU) which is the international organisation of national Parliaments;

FURTHER AWARE that the IPU provides support to Parliaments in areas such as law and policy-making, as well as representation;

NOTING WITH APPRECIATION that, upon a request by the Speaker of the Senate, the IPU sent an expert delegation to Kenya from 12th to 16th July, 2015 to offer advice on the way forward in implementing the constitutional requirement on the two thirds gender rule;

NOW THEREFORE, the Senate notes the Report of the Inter-Parliamentary Union Expert Mission to Kenya on the framework to implement the constitutional provision of the two-thirds gender rule laid on the Table of the Senate on Thursday, 8th October, 2015 and extends its appreciation to the IPU for support on the matter.

Mr. Temporary Speaker, Sir, I would like to draw the attention of the House to this report so that we may discuss its substance. The issue of the two-thirds gender rule

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Your time is up!

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

I now call upon the Mover or any Senator who can reply on her behalf to do so.

Mr. Temporary Speaker, Sir, on behalf of Sen. Ongoro, I beg to reply. I thank all the Senators who contributed to this Motion. They made very useful contributions which we have noted. The ideas that have been spoken about should be put into the Bill that is being worked on in the National Assembly.

Mr. Temporary Speaker, Sir, the one-third gender principle is an issue that is enshrined in the Kenyan Constitution. It is an issue we cannot wish away and leave it hanging. We have no choice, but must put it into practice. It is the only way that we can bring equality among the minority in our society, particularly women who have been neglected for a very long time. Therefore, this is very important particularly at this time when we need to enshrine a law that will protect the gains that we have made in the Constitution of Kenya, 2010.

Mr. Temporary Speaker, Sir, I also want to note that many Senators spoke about the constitutional gains that we have made and this should not be wished away. The issues raised in this Motion should be addressed and implemented in a legislative manner, as I have already highlighted.

As you are aware, the IPU is a very strong union which ensures that women rights are enshrined in many national parliaments. Therefore, we continually support the IPU and its programmes to ensure that women are well represented in all national parliaments.

With these few remarks, I beg to reply.

November 17, 2015 SENATEDEBATES

On a point of order, Mr. Temporary Speaker, Sir. Am I be in order to ask the Clerk and your legal team to consider making a clarification to the Senate regarding Article 115 of the Constitution which speaks on the reservations of the President whereas what has been put before us has been recommendations from the President; two terms which have caused a problem in the Senate today?

Secondly, while looking at the practice in Parliament, I would recommend that you compare the Presidential Memoranda that were submitted to Parliament by President Kibaki in terms of reservations as compared to what is emerging as a legislative role in the presidency and not just expressing reservation on the legislative role of Parliament?

Sen. Wetangula, be brief. The Senate Minority Leader (

On a point of order, Mr. Temporary Speaker, Sir. In that consideration, I also urge the Chair, after looking at the words “reservations” and the term being used “recommendations”, we also want the Chair to guide the House as to whether the President has the liberty under the Constitution to send new clauses when he is only entitled to exercise his right of veto by sending his reservation to Parliament about what is on the Bill. When the President goes beyond reservations, recommends and then drafts new clauses, that is not envisaged under any Article of the Constitution, more particularly Article 151. Lastly, we are done with Order No.8. There is no legitimate reason for us to step down Order No.9. Order No.8 was on its own. In fact, I painstakingly argued that we needed to remain in the Committee of the Whole to deal with Orders No.8 and 9 so that we finish and have a singular report back to the House. Those arguments were not upheld. I respect the ruling of the Chair even when I do not agree with it. We need to go to Order No.9. As long as we have quorum, deal with it and vote on it. If it gets 32 votes, it is rejected. If it gets less than 24, it is not passed and then we get a report.

On a point of order, Mr. Temporary Speaker, Sir. As said by the Senate Minority Leader, I urge the Chair to look at the old Constitution where the issue of Presidential Assent and the exercise of veto power were done under very different circumstances. This is because then the President was part of Parliament. The Parliament of Kenya consisted of the President and the National Assembly. The current Parliament does not have the President as a component of Parliament.

The second more important issue particularly on this issue of coming up with new clauses under the new Constitution is that there is the element of public participation. That, a Bill that has been published, during the period that it is published and in between the First and Second Readings, there is an engagement by the public and other stakeholders. Bills commence by publication.

It would undermine the architecture of this Constitution if an amendment brought by the President, which introduces new clauses, it has not been published, tabled, read the First Time, has not been subjected to public participation, has not gone through the Second Reading and those new clauses appear suddenly or abruptly during the Committee Stage. That would undermine the procedure under which the Constitution requires that we enact legislation.

Therefore, we should be true to the promises and requirements of this Constitution that all these requirements must be met. In fact, if the President had any

November 17, 2015 SENATEDEBATES

On a point of order, Mr. Temporary Speaker, Sir. Thank you for finally recognizing me. I have been trying to speak the whole afternoon and so allow me to also say what I wanted to say earlier. First, the issues being brought back had been aired and discussed fully before and then the Speaker made a ruling. Now, the Senate Minority Leader and hon. Senators are trying to go behind the Speaker’s ruling. I believe that they are all very experienced Members of Parliament. Most of them have been here for a long time. The Speaker’s ruling is normally not challenged with. If you want to challenge the Speaker’s ruling, at least, have enough decorum to wait and do it with the substantive Speaker who made the ruling. (Sen. Wetangula consulted loudly) It is true it was dealt with. The Speaker made a ruling and he allowed the President’s observations to come to this stage and be discussed. This Stage was only to vote and report --- The Senate Minority Leader (

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

I am on a point of order. You have been speaking the whole afternoon--- The Senate Minority Leader (

I do not need your information.

November 17, 2015 SENATEDEBATES

Order, Senator! Let us have Sen. Mutula and then we continue.

Mr. Temporary Speaker, Sir, we want to help the Chair---

Order, Sen. Orengo!

Mr. Temporary Speaker, Sir, I was just going to----

Order! Proceed, Sen. Mutula Kilonzo Jnr.

Mr. Temporary Speaker, Sir, we must remember our mandate under Article 96 of the Constitution; it is not to defend the President. We have to uphold the law. My concern, which I must mention on record, is that the precedent we are setting here will be reflected in your county of Kajiado or my county of Makueni and many other counties. So, while there is celebration from the majority side, that they think they can defend the Office of the President in violating the law and the Constitution, this idea of passing laws through memoranda will be repeated in our counties.

Mr. Temporary Speaker, Sir, Kiambu County, for example, through Sen. Wamatangi has a Petition in this Senate where the County of Kiambu, through the Governor, passed a memorandum. Now, we are violating the same things that we are doing. We will set a dangerous precedent. Seated where you are, you will be seen not to complain when your governor passes a law through a memorandum where the assembly has rejected a law which they do not agree with.

Therefore, in terms of our mandate under Article 96, I just want to correct Sen. Mugo, that, our mandate is not to defend the President because President Kenyatta is an individual while the Presidency is an institution. That is why we need to repeat on record what Sen. Orengo said; “Head of State and not Head of Government.”

I will allow Sen. Keter to speak then after that we---

Mr. Temporary Speaker, Sir, you had made a ruling that you deferred Orders Nos.8 and 9 until the Speaker makes a ruling.

However, if I am not wrong, I remember the issues being raised now were raised before. When this memorandum was tabled, the Speaker deferred it in a ruling in which he said that whether the President was within the law in terms of admissibility or

November 17, 2015 SENATEDEBATES

Mr. Temporary Speaker, Sir, I appreciate the points raised by the Senate Deputy Majority Leader. Being conscious of time is good, but this is a very weighty issue which involves a very important aspect of the Constitution as captured in Article 115. If we got that article correct, even in the order of the day, we would put the wording correctly by saying “President’s Recommendation” is constitutionally wrong. We should say “Presidential Reservations.” That is what should be there to be in line with the present Constitution. That is one of the reasons we should look at what we are doing now in context of the previous Parliament which was under an old Constitution. I am glad Sen. Orengo made that clear; that comparison should take into account that we are operating under a different constitutional order that we seem to have carried on the practices of it into the present dispensation, which is wrong. Secondly, even if these were to be recommendations, they should have been handled by the majority leaders in the National Assembly and the Senate. They are the legislative arm of the current Government in Parliament. The President, as Sen. Orengo said, is not here and the only people who can speak for him, for legislative purposes, are the Majority Leader here and in the National Assembly. Therefore, if you really read strictly constitutionally, what the President is now trying to do is usurp the role of his majority leaders in both Houses who should be making these amendments to the Bill. Then, if he has reservations, they should not come in terms of framing the law, but in terms of why do I have reservations about this particular clause. He gives a reason. It is the reasons that the President gives that will then persuade either the National Assembly or the Senate to amend the Bill. However, the President cannot sit and frame the Bill which should have been done by his majority leaders in either House. Mr. Temporary Speaker, Sir, we are making these points not because we are going back to amend the ruling by the Speaker, but to make sure that when you look at what has gone on today, we will have a better procedure in this House and the President or the Majority Leader will understand what the role of the Legislature and the Executive is. They are quite distinct in the present Constitution. The Senate Minority Leader (

Mr. Temporary Speaker, the reason this matter keeps popping up on the Floor is not because there was no ruling, but because it is so weighty and important to the country. In our considered opinion, we

November 17, 2015 SENATEDEBATES

On a point of information, Mr. Temporary Speaker, Sir. The Senate Minority Leader (

Please, inform me.

Mr. Temporary Speaker, Sir, I would like to inform my senior and Senate Minority Leader that there is a number of Senators here who served in the Kibaki Government, including my sister, Beth Mugo.

An hon. Senator: It is Sen. Mugo.

I am sorry, Sen. Beth Mugo. I said my leader, Sen. Wetangula, Sen. Obure and quite a number of others served in Kibaki Government. He was the first President to deal with Presidential veto under the new Constitution. He dealt with a Speaker who was very particular about any reservations that would be made. As President Kibaki sat in State House, he was confronted by the Speaker who would look at everything that came from the President to make a determination whether he had a point or not. So, we are not talking about some new animal coming from mars. We are talking about a Constitution which came into force in the year 2010 when Kibaki was the President of the Republic of Kenya. There is sufficient precedent before the National Assembly to show us how Kibaki was dealing with similar issues so that the leadership of the House – particularly on the Government side – should go to the archives in order to deal with this point, which will keep on recurring. The problem with it is that this issue is now in the courts in several petitions which have been filed. We may find that we will go on and on and, finally, a judgment comes that all we have done is not in accordance with the Constitution. Mr. Temporary Speaker, Sir, the Senate Minority Leader can have a session with the leadership on the other side, including Sen. Keter, whom I really respected because him and I were trying to build the independence and autonomy of the Constitution. However, these days when I see him, I see him as an agent of the Executive. So, I do not know whether he speaks for Parliament or he speaks for the Executive. Thank you. The Senate Minority Leader (

Mr. Temporary Speaker, Sir, I was on a point of order which I had not finished. I only stepped down to seek information. I also want to say this to the distinguished Senator for Kericho, who is my good friend; that what we are seeing unfold here today is not the mistake of the President, it is the advisors who are leading the President down the garden path to nowhere. Even those who are ready to jump at every twist and turn to defend the President at all costs and at any rate, like the distinguished Sen. Mugo, will do much better for the President by giving him better advice than standing to defend him where it is not defensible. This is because if the arrays of legal advisors that we know are available to the President were to read the Constitution first, because the President is not expected to spend all his time

November 17, 2015 SENATEDEBATES

On a point of order, Mr. Temporary Speaker, Sir. If at least the Opposition are less abusive and more gentlemen and ladies, I do not think anyone would need to defend the President because he is also very capable than most of you and he has proven it. So, have some respect.

I do now want to answer Sen. Wetangula because what he has said is not worth answering. What I wanted to say is that, I have all the respect for the Speaker and he is very capable. However, we all know that there are Temporary Speakers and there is a substantive Speaker. Whereas we respect the ruling, the substantive Speaker, the Deputy Speaker or a Temporary Speaker cannot change a ruling of another Chair. Should we be pushing the Temporary Speaker to change a ruling that was made, to try to prove that this Bill is wrongly in the House?

The Speaker ruled that it is rightfully in the House and if you did not accept, you should have argued at that time. We should not go round and round. President Uhuru has many good advisors. Please, stop being abusive.

Mr. Temporary Speaker, Sir, thank you for allowing me to say something. I came here late, but I was listening to this debate. While I was sitting here, I confirmed that you made a ruling. Immediately after that, it was followed by debate in the name of Standing Orders. We have been here long enough. There is no amount of persuasion that we will expect from the Opposition side. They can speak any language, but we have decided to support this amendment as the Government. Everybody wants to talk about things in the past or their knowledge about many things, but we are not in kindergarten. We are all here because we were elected by the people and nobody---

November 17, 2015 SENATEDEBATES

Hon. Senators, I had already ruled that the issue of the reporting from the Committee of the Whole will be deferred, so that we can have time to go through the HANSARD and the voice recording. Sen. (Prof.) Anyang'-Nyong'o then intervened first and said that the legal team could assist in determining whether or not the memorandum came to the Senate properly, but the Speaker had already ruled on that. What we are deferring is the reporting.

Let us dispose of Order No.18, because Sen. Hassan said that he is not ready to prosecute his Bill.

Hon. Senators, you can now contribute to the Motion by Sen. Ongoro.

Mr. Temporary Speaker, Sir, this Motion that was moved by Sen. Ongoro is extremely important. I would like to draw the attention of the House to the Motion because few have been debating on many things and I am sure that by now, the House must have lost the substance of the Motion. Let me just read it for the sake of refreshing our memory.

THAT, AWARE that the Parliament of Kenya is an active member of the Inter- Parliamentary Union (IPU) which is the international organisation of national Parliaments;

FURTHER AWARE that the IPU provides support to Parliaments in areas such as law and policy-making, as well as representation;

NOTING WITH APPRECIATION that, upon a request by the Speaker of the Senate, the IPU sent an expert delegation to Kenya from 12th to 16th July, 2015 to offer advice on the way forward in implementing the constitutional requirement on the two thirds gender rule;

NOW THEREFORE, the Senate notes the Report of the Inter-Parliamentary Union Expert Mission to Kenya on the framework to implement the constitutional provision of the two-thirds gender rule laid on the Table of the Senate on Thursday, 8th October, 2015 and extends its appreciation to the IPU for support on the matter.

Mr. Temporary Speaker, Sir, I would like to draw the attention of the House to this report so that we may discuss its substance. The issue of the two-thirds gender rule

November 17, 2015 SENATEDEBATES

November 17, 2015 SENATEDEBATES

November 17, 2015 SENATEDEBATES

Your time is up!

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

I now call upon the Mover or any Senator who can reply on her behalf to do so.

Mr. Temporary Speaker, Sir, on behalf of Sen. Ongoro, I beg to reply. I thank all the Senators who contributed to this Motion. They made very useful contributions which we have noted. The ideas that have been spoken about should be put into the Bill that is being worked on in the National Assembly.

Mr. Temporary Speaker, Sir, the one-third gender principle is an issue that is enshrined in the Kenyan Constitution. It is an issue we cannot wish away and leave it hanging. We have no choice, but must put it into practice. It is the only way that we can bring equality among the minority in our society, particularly women who have been neglected for a very long time. Therefore, this is very important particularly at this time when we need to enshrine a law that will protect the gains that we have made in the Constitution of Kenya, 2010.

Mr. Temporary Speaker, Sir, I also want to note that many Senators spoke about the constitutional gains that we have made and this should not be wished away. The issues raised in this Motion should be addressed and implemented in a legislative manner, as I have already highlighted.

As you are aware, the IPU is a very strong union which ensures that women rights are enshrined in many national parliaments. Therefore, we continually support the IPU and its programmes to ensure that women are well represented in all national parliaments.

With these few remarks, I beg to reply.

Hon. Senators, this Motion does not affect counties.

November 17, 2015 SENATEDEBATES