Tuesday, 25th January, 2022 Special Sitting

Hon. Senators, I once again, during this long recess period, take this opportunity to welcome you to the Special Sittings of the Senate running from today, Tuesday, 25th January, 2022 until Thursday, 27th January, 2022.

The Special Sittings are convened pursuant to Standing Order No. 30, on the request of the Senate Majority Leader and with the support of the requisite number of Senators, via letter Ref. No. SEN/SML/CORR, dated 18th January, 2022. Consequently, vide Gazette Notice No. 429 of 21st January, 2022, I appointed today, Tuesday, 25th January, 2022

(afternoon)

, Wednesday, 26th January, 2022

(afternoon)

and Thursday, 27th January, 2022

for the Special Sittings of the Senate.

In the Gazette Notice, I indicated that the business to be transacted at the Special Sittings shall be consideration of-

Mr. Speaker, Sir, I beg to lay the following Paper on the Table of the Senate today, 25th of January, 2022: -

Report of the Standing Committee on Justice, Legal Affairs and Human Rights on the Political Parties (Amendment) Bill (National Assembly Bills No.56 of 2021)

Thank you, Mr. Speaker, Sir.

What is your point of order, Sen. Murkomen?

Mr. Speaker, Sir, I have skimmed through the tabled Report and I have realized that at the end of the Report, the Committee is proposing no amendments to the Bill as submitted from the National Assembly.

In that regard, there were strong issues that were raised by the Registrar of Political Parties and the Independent and Electoral Boundaries Commission (IEBC) that are also captured in the report, and when they appeared before the Committee, that I would have wished and thought to persuade the Committee to come with amendments.

Now that the Committee did not consider amendments and a number of us have amendments to the Bill, I would like to request you to give us the period of time within which we should file the amendments with your office to enable us to prepare ourselves for the Third Reading.

The last thing if you may allow me with your permission, I tabled a Bill which has even more urgency than the Political Parties Amendment Bill, which is about qualifications of candidates to run for office. That Bill was removing requirements for academic qualifications for Members county assembly and Parliament for those who are seeking office. Particularly, we had a similar amendment with Sen. Olekina, which also captures Members of Parliament who do not have a degree at the moment and who are now being told after being in Parliament for 10 to 20 years; that they do not qualify to run for office by virtue of not having a degree.

Mr. Speaker, Sir, I do not know how long your office and the Office of the Speaker of the National Assembly is going to take for this Bill to be debated. It may pass

or not but the people of Kenya deserve a consideration of this House on this important issue before the nominations which are two months away.

Sen. Olekina is here.

Your fears are captured in a communication I will be making in a short while.

Sen. Wambua, proceed.

Mr. Speaker, Sir, I have heard my colleague, Sen. Murkomen, saying that he has gone through the report. I request you to give a direction that copies of that report be made available physically so that we can also appraise ourselves. If there are no amendments proposed by the Committee, those of us who have amendments to propose can be guided by you.

That is also captured in what I am about to communicate. Let me communicate.

consideration of this matter emphasised the fact that you cannot table the report and discuss it the same day. You will notice that we insisted that the report be tabled and members have a full day and overnight to read the report carefully so that we can have an informed debate. I appreciate the direction by the Speaker.

Secondly, you must also remove the notion from the mind of anybody that a Bill whether there are amendments by the Committee or not, can stop a Member from moving an amendment so long as they comply with the Standing Order that you have enumerated. I believe that we should have an informed debate on this matter. Let us debate it robustly but in an informed way so that we can show the difference between here and the ‘lower’ House.

Sen. Cheruiyot, you have the Floor.

Mr. Speaker, Sir, this is on a different note. Allow me to say something about what you have mentioned. I respect your communication but I found the latter part of it to be of concern to me. I know it is necessary to give caution because of what happened in the National Assembly, but this is the “upper” House. In my two terms in the Senate, I have never seen us disagree and dissent to the levels that you witnessed in the other House. Next time when such a communication is done, it is proper that it does not go to our records. I can assure you that Members of this House do not get to those levels.

We take insurance not because we are going to have an accident but just to protect. I am not saying we will get there but I am giving caution just in case somebody may want to get there,

Is it preemptive?

Yes.

I am properly guided. Can I now raise the substantive issue that made me rise and seek your attention? In the course of my duties, the other responsibilities that I have in this House, there is a matter that has caught my attention and I would wish to hear your comment about it and perhaps you give further direction.

On two or three occasions I have received news that Senators in the course of going about their duties; sometimes part of their duties involves travelling out of the country have been stopped at the various border points and told that there is a directive from the Executive that no Senator should travel outside the country until we finish consideration of this Bill that is before this House.

I do not know whether this matter has come to your attention and what is your comment about it. If it is true, then it is rather a grave matter. If we are descending to levels where Members are being stopped from going about their duties, some official or with family because of business that is before the House, then this country is descending to levels lower than has ever been since Independence. I would appreciate that you give a firm commitment to the Members of this House that they are as free as the Constitution

allows them to be and can move at anytime as they wish to, so long as we follow whatever other regulations are there. Nonetheless, what I find rather disturbing is that this instruction is actually from the Executive and not from your office.

Sen. Wetangula, proceed.

Mr. Speaker, Sir, I associate myself with what the distinguished Senator for Siaya said to the extent of amending whatever the content of the Bill is. It is not limited to the recommendations of the Committee. Allow me to pick up from where the distinguished Senator for Kericho has left. Over the weekend or last week, I received a frantic phone call from members of staff of the Senate who were on their way to South Africa with their colleagues from the National Assembly for training. Upon reaching the airport and checking in, when they reached the immigration as the last point to go and board their flights, they were told that Members of the Senate including members of staff have been injuncted from travelling out of the country because of a pending business in the House.

Mr. Speaker, Sir, assuming that there is a desire for Senators to be in this House to debate any matter, no law obligates every Senator to sit in the House. They may sit in the House and now that we even debate through different medium via Zoom and others. A Member sitting in a Committee in United Arabs Emirates (UAE) or the United States of America (USA) can participate in the proceedings of this House. We have had Members voting from Washington to Bills in this House. If the intention was to have quorum for the debate, why extend it to innocent staff of the House who are going on training with their colleagues? In this particular incident, the staff of the Senate offloaded their luggage from the plane which had been put in the cargo hold and they were turned away from the airport and did not travel. While their counterparts from the National Assembly travelled.

As the head of this House together with your Clerk, you need to look into this. The Senators can protect themselves, but the members of staff need your protection. If they are to enhance their skills through learning, then we should not allow anybody to subject them to this.

Lastly, the Houses of Parliament are independent of the Executive. So, on what basis would anybody in the Executive injunct a member of a different arm of Government from travelling out of the country? Probably they can do so for security or other matters.

Proceed, Sen. (Eng.) Mahamud.

Mr. Speaker, Sir, I got a call from a relative of mine who works at the airport and she told me that she saw a list with the names of all the 67 Senators and they were asked not to clear them to travel. In fact, I was warned not to try to travel because my name was on the list of those were not supposed to travel. I was shocked. That was last week.

The letter came from the Executive. I wonder why the Executive wants to control how this Senate manages its business. There is a pending issue in the Senate and I think the Executive is desperate and that is why it sent the list to the immigration department.

Mr. Speaker, Sir, that person told me that “two people have already been turned back so do not attempt to travel out of the country.” I asked for the names of the people who were in the list. I was told that all the 67 Senators were in the list, including my

name. What Sen. Wetangula and Sen. Cheruiyot have said is right. It is high time that we respected and maintained the dignity of this House.

Thank you, Mr. Speaker, Sir.

Proceed,

Mr. Speaker, Sir, we should not talk about this thing in the abstract. If there is a case, it should be properly brought before the House.

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

What is your point of information?

Mr. Speaker, Sir, I am happy that Sen. Orengo wants to put the matter in its proper perspective. It behoves upon you to investigate the matter and give this House a reasoned direction.

The Senator for Kwale County was travelling out of the country with his family, but he was stopped and sent back home. The other incident that I was talking about involved a senior member of staff called Mr. Adika and a group he was travelling with. They were stopped from travelling, their luggage was offloaded from the cargo hold of the plane and they were sent away as their counterparts from the National Assembly went to South Africa for training. This is not right.

Staff of the Assembly and the Senate work in an independent arm of Government and they only report to their employer - the Parliamentary Service Commission (PSC) . You can go further and find out whether there was communication from the PSC countermanding the permission and the clearance for those officers to go for training.

Worse still, we have the case of the distinguished Senator for Kwale County. He was embarrassed together with his family. This is something that you need to inquire into and protect your Members.

Order, Senators! The issue has been brought and I know what---

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

What is it, Sen. Murkomen?

Mr. Speaker, Sir, I am glad that Sen. Orengo and Sen. Wetangula have spoken to this matter in a bipartisan manner. This issue is bigger than our staff and the Members. It is about independence of institutions, freedoms and rights.

This thing started with the Deputy President when he was told that he cannot travel to Uganda. He was held at the airport for three hours. It has now come to Members of Parliament, especially the Senators. They are now dictating whether they can travel or not. It has even moved to the staff. Those of us who are here at this point in time are trustees on behalf of the people of Kenya. We have to protect and defend the Constitution and the rights of those who are serving right now and those who will come.

Mr. Speaker, Sir, you should take this matter seriously. The Powers and Privileges Committee can be asked to investigate this matter if it is the right Committee to do so. If not, the Committee on National Security, Defence and Foreign Relations can deal with this issue and report to the House. This matter must be dealt with formally.

I spoke to a few colleagues who attended a meeting at State House the other day and I was told that a senior executive officer berated a Member of this House for being part of a delegation that was to go out of the country yet this Bill is supposed to be debated. There are witnesses here. You and I were not there. However, colleagues who were there told us that the President was hard on a Member of this House because of travelling. If we continue like this, the Executive and the Presidency will be dictating how we operate as a Parliament and that is terrible.

Order, Senators! This is a very important---

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

Yes, Sen. Dullo. I want to give direction and read the document that we have. Let us first hear from the Senate Majority Leader.

Mr. Speaker, Sir, I want to pick up from what my colleagues have talked about. There is a clear definition on what our privileges are. Hon. Members are not supposed to face unnecessary hindrances as they travel from one point to another when on duty or from duty. We all know that.

There is only one thing that I would like to say and it is particularly directed to Sen. Murkomen. Why does he have to keep on bringing up the President’s name in everything even in situations where he was not present? He referred to the President as an executive officer.

Order, Senators! That is why I wanted to give direction.

The Sen. Majority Leader (Sen. Poghisio) : Mr. Speaker, Sir, this is how people lose their control over nothing. I am requesting us to have some respect. If someone wants to refer to His Excellency the President, then they should call him by his title. The business of losing respect for him just because one differs with him should not be brought to the House.

Mr. Speaker Sir, the issues raised are important. Secondly, what we are being told here is just hearsay. Therefore, it is important that the evidence is brought before this House to enable you to investigate the matter.

Finally, there is no problem for any political party to stop their Members from travelling if they have an interest in the matter on the Floor of the House. So, whoever wants to go, can go and whoever does not want to go can stay. The Executive does not obstruct any Member from traveling anywhere.

Let the Members who are claiming that the Executive is stopping people from traveling produce evidence here. We do not want to listen to hearsay.

I thank you.

Order Senators! I am the Speaker and the issue was directed to me. There is only one Speaker here. The matters raised are very serious and they affect us as an independent institution. I am seized of the matter. Therefore, I want you to give me two weeks to get all the information and bring a report here regarding what happened.

The Temporary Chairperson (Sen. Nyamunga): Hon. Senators, kindly take your seats. We want to commence the Business of the House. Can you take your seats please?

Thank you, Madam Temporary Chairperson. I beg to move- THAT the Bill be amended by deleting Clause 4.

The Temporary Chairperson

(Sen. Nyamunga)

: Division will be at the end. Clause 5

The Temporary Chairperson (Sen. Nyamunga): Sen. Mwaruma, move the amendment on behalf of the Chairperson, Standing Committee on Labour and Social Welfare.

Madam Temporary Chairperson, I beg to move- THAT Clause 5 of the Bill be amended by —

Madam Temporary Chairperson, I beg to move- THAT Clause 7 of the Bill be amended by inserting the following new paragraph immediately after paragraph (b) –

Madam Temporary Chairperson, I beg to move- THAT Clause 8 of the Bill be amended—

Thank you, Madam Temporary Chairperson. I beg to move- THAT the Bill be amended by deleting Clause 34. THAT the Bill be amended by deleting Clause 35. THAT the Bill be amended by deleting Clause 36. THAT the Bill be amended by deleting Clause 37. THAT the Bill be amended by deleting Clause 38. THAT the Bill be amended by deleting Clause 39.

The Temporary Chairperson

(Sen. Nyamunga)

: Division will be at the end. Clauses 40-60

Question, that Clauses 40, ,41,42,43,44,45,46,47,48,49,50,51, 52, 53, 54, 55, 56, 57, 58, 59 and 60 be part of the Bill, proposed) The Temporary Chairperson (Sen. Nyamunga) : Division will be at the end. Clauses 61-80

The Temporary Chairperson

(Sen. Nyamunga)

: Division will be at the end. Clauses 81-100

The Temporary Chairperson

(Sen. Nyamunga)

: Division will be at the end. First, Second and Third Schedules

(Question, that First, Second and Third Schedules

be part of the Bill, proposed) The Temporary Chairperson (Sen. Nyamunga): Division will be at the end. New Clause 2A

Madam Temporary Chairperson, I beg to move- THAT the Bill be amended by inserting the following new clauses immediately after Clause 2- General Principles

(Question, that the New Clause 2A be part of the Bill proposed) New Clause 2B

Madam Temporary Chairperson, I beg to move -

THAT, the Bill be amended by inserting the following new clause immediately after New Clause 2A- Heritage assessment criteria and grading. 2B. The National Museums of Kenya shall, in consultation with the Cabinet Secretary and the county executive committee member in each county prescribe a system of grading of places and objects which form part of the national heritage and shall distinguish between-

Madam Temporary Chairperson, I beg to move - THAT, the Bill be amended by inserting the following new clause immediately after Clause 7- 7A. (1) A county executive committee member may establish a county museum for the management of the heritage resources within the respective county;

Madam Temporary Chairperson, I beg to move- THAT, the Bill be amended by inserting the following new clause immediately after Clause 33-

Petition for declaration of National and county heritage sites 33A. (1) A person may petition-

Madam Temporary Chairperson, I beg to move- THAT, the Bill be amended by inserting the following new clause immediately after New Clause 33A-

Inventory of national heritage 33B. (1) The National Museums of Kenya shall keep and maintain an inventory of national heritage.

be read a Second Time, proposed) (Question, that the New Clause 33B be part of the Bill proposed) New Clause 33C

Madam Temporary Chairperson, I beg to move- THAT, the Bill be amended by inserting the following new clause immediately after Clause 33- Heritage registers

33C. (1) A county museum shall compile and maintain heritage register specifying the heritage resources in the respective county in accordance with this Act.

Madam Temporary Chairperson, I beg to move-

THAT the Bill be amended by inserting the following New Clause immediately after New Clause 33C- National

heritage resources

assistance programme.

33D. (1) The National Museums of Kenya may provide financial assistance in the form of a grant or a loan to an approved body or an individual for a project in line with the provisions and the principles prescribed under this Act.

Madam Temporary Chairperson, I beg to move- THAT the Bill be amended by inserting the following New Clause immediately after New Clause 33D- Heritage agreements. 33E (1) The National Museums of Kenya or a county museum may enter

into an agreement with a conservation body, a person, or a community for the conservation or improvement of a heritage resource.

A

Madam Temporary Chairperson, I beg to move- THAT the Bill be amended by inserting the following New Clause immediately after New Clause 33E- Compulsory repair order.

The National Museums of Kenya or a county museum may, where it appears that any place or object is in imminent danger of serious damage or destruction and requires to be protected by a declaration under this Act, make an order protecting the said place or object in the prescribed manner.

The Temporary Chairperson

(Sen. Nyamunga)

: Division will be at the end. New Clause 33G

Madam Temporary Chairperson, I beg to move- THAT the Bill be amended by inserting the following New Clause immediately after New Clause 33F-

Heritage areas.

A 33G

Madam Temporary Chairperson, I beg to move- THAT the Bill be amended by inserting the following New Clause immediately after New Clause 33G-

Burial grounds and graves.

33H. (1) Where it is not the responsibility of any other body, the National Museums of Kenya shall conserve and generally care for burial grounds and graves protected under this Act.

Madam Temporary Chairperson, I beg to move- THAT the Bill be amended by inserting the following New Clause immediately after New Clause 33H-

Establishment of research institutions No. 28 of

Madam Temporary Chairperson, I beg to move- THAT, Clause 2 of the Bill be amended by inserting the following new definition immediately after the definition of the word “heritage”- “living heritage” means the intangible aspects of inherited culture, and may include—

Madam Temporary Chairperson, pursuant to Standing Order No.148 I beg to move that the Committee of the Whole do report progress on the consideration of The Heritage and Museums Bill (Senate Bills No.22 of 2021) and seek leave to sit again tomorrow

Hon. Senators, this is reporting progress and I would like to call upon the Chairperson.

Madam Deputy Speaker, I beg to report progress that the Committee of the Whole has considered The Heritage and Museums Bill (Senate Bills No.22 of 2021) and seeks leave to sit again tomorrow.

Hon. Speaker, I beg to move that the House do agree with the Committee on the said Report, and I ask Sen. Seneta to second.

Madam Deputy Speaker, I second.

Hon. Senators, as you are aware, we do not have quorum, we therefore cannot proceed to the Division. Therefore, I formally defer Order Nos. 9, 10 and 11, all of which are supposed to be subjected to Division.

Hon. Senators, there being no other business, the Senate, therefore, now stands adjourned until Tomorrow, Wednesday 26th January, 2022, at 2.30 p.m.

The Senate rose at 3.42 p.m.