December 16, 2015 SENATEDEBATES

Wednesday, 16th December, 2015 Special Sitting

Hon. Senators, I have a communication to make on the Special Sitting of the Senate to consider the Water Bill (National Assembly Bill No. 7 of 2014) , the President’s Memoranda on the Public Procurement and Asset Disposal Bill (National Assembly Bill No.40 of 2014) and the Public Audit Bill, (National Assembly Bill No.38 of 2014) .

Hon. Senators, I wish to welcome you from recess and thank you for finding time to attend this Special Sitting of the Senate. I am sure each of you has scheduled major county events and it is because of the value attached to the business of the Senate, especially the consideration of key pieces of legislation like the ones before us today that you have created this time to be here.

By letter dated 15th December, 2015 and pursuant to Standing Order No.29 (1) of the Senate Standing Orders, the Senate Majority Leader, supported by the requisite number of Senators requested the Speaker to appoint this day, Wednesday, 16th December, 2015 as a day for a Special Sitting of the Senate to consider the following:-

December 16, 2015 SENATEDEBATES

I thank you.

On a point of order, Mr. Speaker, Sir. I start by thanking you for that communication that has elicited facts that require our comments.

December 16, 2015 SENATEDEBATES

December 16, 2015 SENATEDEBATES

Proceed, Senator. The Senate Minority Leader (Sen. Wetangula) : Mr. Speaker, Sir, I thought you were being interfered by a non Member.

Mr. Speaker, Sir, I thought you were being interfered by a non Member.

December 16, 2015 SENATEDEBATES

On a point of order, Mr. Speaker, Sir. Since the Senate Minority Leader is on a point of order, could he just get to the point and indicate what is out of order and then we proceed with the business of the House?

Order! Conclude, Sen. Wetangula. You know that there is only one Speaker and nobody else has made that claim.

The Senate Minority Leader (Sen. Wetangula) : Well done, Mr. Speaker, Sir. I am sure that those who have been pretending to do your job have heard you loud and clear.

Let me conclude by urging you that fairness is not about numbers or who wins and who does not. Fairness is about giving every side a fair chance to contest an idea. In the words of a great scholar, “the race may belong to the strong, but everybody must be given a fair start.” You can notice – in the greatest respect to you – that I have used very constrained language in my objection.

I want to urge with this humility that I have displayed to you and the House, to find that this Sitting be adjourned. It is within your competence. If you are able to issue a gazette notice within two hours, you can issue one tomorrow for the next week, so that you give us an opportunity to bring our Members to argue the case.

December 16, 2015 SENATEDEBATES

Mr. Speaker, Sir, I will conclude. But I want to tell this House that we have only one Speaker. Even the de facto Majority Leader has no right to direct the Chair on what to do. I was addressing the Chair and my brother is patiently listening to me with the patience of a good lawyer. I am sure he will respond in the same vein, but the de facto leader is so impatient that he wants to do a job that is not---

Mr. Speaker, Sir, thank you very much but I ask you to add me just two minutes, because I had done some little preparation for this.

You have five minutes.

Well done, Mr. Speaker, Sir. I am sure that those who have been pretending to do your job have heard you loud and clear. Let me conclude by urging you that fairness is not about numbers or who wins and who does not. Fairness is about giving every side a fair chance to contest an idea. In the words of a great scholar, “the race may belong to the strong, but everybody must be given a fair start.” You can notice – in the greatest respect to you – that I have used very constrained language in my objection. I want to urge with this humility that I have displayed to you and the House, to find that this Sitting be adjourned. It is within your competence. If you are able to issue a gazette notice within two hours, you can issue one tomorrow for the next week, so that you give us an opportunity to bring our Members to argue the case.

December 16, 2015 SENATEDEBATES

Order, Members! I allowed the Senate Minority Leader a bit of leeway but, definitely, that cannot be for every person raising a point of order. Therefore, subsequent points of order should not exceed three minutes.

Sen. Orengo.

Mr. Speaker, Sir, thank you very much but I ask you to add me just two minutes, because I had done some little preparation for this.

You have five minutes.

Mr. Speaker, Sir, I rise to plead with the other side of the House that this is a matter in which having some kind of consensus would be good for the House, rather than taking a bipartisan position on a matter which is procedural.

You will indulge me to go to a little bit of history. However, before I go into that, the second President of the United States of America (USA) , Mr. Adams, said that there was never a democracy that did not commit suicide. In fact, he said this before the American Constitution. He said that the reason democracies fail is where majorities are used as a basis of tyranny, so that instead of approaching issues in a sensible and reasonable manner, there is also the application of the sense of immediacy; that we must do this now and not later.

Mr. Speaker, Sir, the other founding father of the American Constitution, Mr. Madison, said that democracies in general have been as short in their lives as they have been violent in their deaths. I am saying this because we had a democratic Constitution when Kenya got Independence in 1963. However, over time, because of the immediacy of the moments, we found ourselves enacting legislation that, indeed, turned Kenya into a despotic regime instead of becoming a democracy. Democracy that does not deal with matters in a manner that is dignified and with decorum and consultation ends up becoming a mobocracy. Kenya is slowly becoming a mobocracy; that because of numbers we are prepared to give up the gains of yesterday.

If you read the Constitution, a notice should normally be due notice; sufficient and adequate notice. The Constitution says that you do not count the day in which an

December 16, 2015 SENATEDEBATES

Your time is up. Sen. Murkomen.

Mr. Speaker, Sir, firstly, I would like to congratulate Members of the Coalition for Reforms and Democracy (CORD) for a stunning turnout today for this Sitting and also the other side of the political divide. There are arguments that have been made by the Senate Minority Leader, but all of them are not anchored in law.

First of all, we must tell the truth because we do not want to lie to the nation. The only business remaining on Order Nos.2 and 3 is voting. It is important to also agree with the nation that, that voting had been attempted almost twice. So, we are here to vote. Let us not lie to the country that we are voting machines. We are here to vote and each one of us will vote for his or her own county, and we have done that before.

The Senate Minority Leader should not say that he knows where we were and what we were told. Instead, he should have spent that time to mobilise his side of the political divide. To use too much energy to try to know what we were doing, instead of trying to do something for his side of the political divide, is misleading the House. Therefore, the first important point is that we are here to vote. Whether we were to do it today, next week or two months ago, we came here to vote on the business in Order Nos.2 and 3, which we have attempted before. In any case, we tried to reach the requisite number of 24.

December 16, 2015 SENATEDEBATES

Sen. Murkomen, the request should have come at the beginning and not at the end.

Sen. Hassan Abdirahman.

Mr. Speaker, Sir, I want to add my voice on the feelings of the Senate Minority Leader about the convening of this House this afternoon. Instead of colleagues on the other side constantly referring to an individual, it would be wise for them to honestly address the issue under discussion.

We know that the business before this House this afternoon is very important for all of us. It is of great interest to all counties and the nation. But as much as we agree that the House may be properly constituted and you have gazetted it, as a result of the request by the Senate Majority Leader, it would have been wise and courtesy demands that the colleague on the other side is even told to take note of what is being planned.

I was personally called by the Senate Minority Leader in the evening while at home and I had to fly in this morning. The manner in which this House has operated for the last three years was that of consultation in terms of approving Bills and of what is of interest to Kenyans in general. I have a feeling that the manner in which the other side wants this House to operate may lead to the manner in which the National Assembly passed the infamous Security Laws (Amendment) Bill 2014 Bill early this year. It is going to be unfortunate. You are not a man who is driven that easily probably by the individual thoughts that may not be of great interest to all of us. With your wisdom, I have a feeling that you may be able to agree with us this afternoon and say that we give more time for discussion.

Let me conclude by saying that convening this House must not be shrouded in secrecy like this case. You cannot give people less than 24 hours notice when they are traveling from far places like Wajir, Mandera and Marsabit as clearly said by my colleague. So, I implore you this afternoon to use your usual wisdom –which I have a feeling that you will do – to give us more time for consultation because it is will not augur well in terms of our future in this House.

December 16, 2015 SENATEDEBATES

Mr. Speaker, Sir, some of us are better off they even received text messages last evening. I received none. In fact, I learnt of this special meeting through a text message from our own Chief Whip, asking for a totally different course of action. If you also look at the way the numbers have been constituted today, it demonstrates bad faith. One side is totally prepared. Contrary to what Sen. Murkomen has said; one side is literally totally disenfranchised. For your information, Sen. Murkomen,Sen. Mbuvi and Sen. Bule actually seat on that side. I think it is just that, that side is so full today that they had to find extra sitting on this other side. I think that demonstrates the preparedness in terms of ambush.

Article 10 of the Constitution on national values and principles talks about good governance, integrity, transparency and accountability as principles and values of national leadership. Once you try to ambush one side on the basis that there is a certain need for the Jubilee Coalition to demonstrate victory after a choreography of meetings for whatever reason or sake and then using this Senate is what Sen. Orengo said is about lowering the state of this House. This is what is called a presidential system – a total disconnect. It totally radicalises and changes the architecture of our new Constitution, that this House must play oversight rather than a rubberstamp to the Executive.

While here today, we know that all these matters that we want to prosecute have obvious constitutional issues that we have raised, demonstrates even that lack of national values to protect this Constitution and to usher Kenyans in a December holiday that the Office of the Auditor-General (AG) which I think was the whistle blower at both national and county government levels in terms of the corruption and wastage to weaken and transfer some of its functions to other agencies so that you can have manipulative control over those agencies.

Mr. Speaker, Sir, unfortunately, even some of these things that we are doing might meet the same fate. They might not even meet the scrutiny of the courts. Kenyans these days rush to the courts to stop everything. I can tell you, meet today, try to prosecute this matter and it will be stopped at its heels. So, let us work on this matter thoroughly in a bipartisan manner and arrive at a consensus. After all, some of the areas of contention for the Coalition for Reforms and Democracy (CORD) are one or two fundamentals that protect and preserve this Constitution and we will be home and dry. This Senate has always operated in that manner.

I think our Jubilee colleagues must acknowledge that they were sufficiently mobilised and prepared for this event. For the kind of speed and efficiency that your office demonstrated in this matter, it is definitely a saddening ambush on your own Members. You might want to find it in you that we go home after this ---

Your time is up. Sen. Mutula Kilonzo Jnr., you are the last one from that side. I will allow two more from this side and conclude.

Mr. Speaker, Sir, allow me to say that what we have been called for is not urgent. Let me tell you what is urgent. You were reported in the news yesterday that three Bills from this Senate have been rejected by the National Assembly and you have threatened to go to court. A Bill concerning the Constituencies Development Fund (CDF) has been signed without the Senate. That is urgent. What we have been called here for is not urgent.

December 16, 2015 SENATEDEBATES

Mr. Speaker, Sir, I have two points. The first is procedural according to our Standing Orders because they are clear that no Senator shall impute improper motive on any other Senator. Is it in order for the Senate Minority Leader to impute improper motives on the Senate Majority Leader, in the first place, in the reasons why he moved the Office of the Speaker to summon this House? The transactional nature of this House is to propose business via debate. If you look at the Order Paper and before you sat down, you communicated that this House is on a Special Sitting today. In this Order Paper, which every Senator here has, Order No. 2 is clearly indicated down there that it is resumption of debate interrupted on that date. Order No. 3 is also resumption of debate interrupted on Thursday, 29th October, 2015. The third one is also resumption of debate. This is a House of debate. How would the Senate Minority Leader stand at the Dispatch Box to claim that he has been disadvantaged by being asked to come to this House to debate, the role for which he and all the Senators were elected? Lastly, a request has been made to you by the Senate Minority Leader that you make a ruling that this House be adjourned. Mr. Speaker, Sir, we are here today for a Special Sitting. A Special Sitting of this House clearly expresses why we, as a House, have met. When the business as contained in the communication and gazetted has been transacted, maybe in your good consideration, you could then give a date when you will give a ruling but the business of the day as constituted must be transacted. This is not a litigious House where, maybe because

December 16, 2015 SENATEDEBATES

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

December 16, 2015 SENATEDEBATES

Mr. Speaker, Sir, with tremendous respect to my learned friend, Sen. Wetangula, you have made a ruling. If you allow this matter to be re-opened

December 16, 2015 SENATEDEBATES

Please, take one minute. The Senate Minority Leader (Sen. Wetangula) : Yes, Mr. Speaker, Sir. You will have your way and we must have our say.

Mr. Speaker, Sir, fairness is not what is in print; it is conduct. In your heart, as I finish, you will go to bed knowing that you presided over an unjust proceeding because as a quasi judge as you sit here, you must be fair to them, you must be fair to us. You have been fair to them and unfair to us. I rest my case.

December 16, 2015 SENATEDEBATES

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

Hon. Members, before we proceed on this matter, let me clarify a few issues related to it.

As you are aware, on 23rd June, 2015, I read a Message from the National Assembly forwarding the Presidential Memorandum on the Public Audit Bill, 2014 and the Public Procurement and Asset Disposal Bill, 2014 for consideration by the Senate. The two Bills are subject to constitutional timelines of 27th May, 2015, having been extended by nine months by the National Assembly. Indeed, Parliament passed the Bills within the timelines, but the President declined to assent to the two Bills are referred them back to Parliament.

On 23rd June, 2015, this House debated and approved the Senators to the Joint Committee to consider the President’s recommendations on the two Bills. However, the timeline for the Joint Committee lapsed on 20th August, 2015 without the Committee tabling a Report as contemplated under Standing Order No.158 (2) .

Hon. Members, the Joint Committee having failed to table a Report within the stipulated timeline, on 1st October, 2015, I issued a communication detailing the procedure to be followed on the disposal of the Consideration of the Presidential

December 16, 2015 SENATEDEBATES

December 16, 2015 SENATEDEBATES

December 16, 2015 SENATEDEBATES

Please, take one minute. The Senate Minority Leader (

Thank you, Mr. Speaker, Sir. I beg to report progress that the Committee of the Whole has considered the Presidential Memorandum on the Public Procurement and Asset Disposal Bill (National Assembly Bill No. 40 of 2014) and seeks leave to sit again.

Thank you.

Yes, Mr. Speaker, Sir. You will have your way and we must have our say. Mr. Speaker, Sir, fairness is not what is in print; it is conduct. In your heart, as I finish, you will go to bed knowing that you presided over an unjust proceeding because as a quasi judge as you sit here, you must be fair to them, you must be fair to us. You have been fair to them and unfair to us. I rest my case.

Order, Senator! That is a bit too harsh on me, Sen. Wetangula. I do not know what other fairness you need from me. I gave you five contributions and I gave that side you considered three interventions. I have allowed you to come back repeatedly after I made my communication. I think that is enough, let me proceed. First, the notice I gave was in the Kenya Gazette, that is the way we communicate. The SMS was just to enhance the communication.

Next Order.

Hon. Members, before we proceed on this matter, let me clarify a few issues related to it.

As you are aware, on 23rd June, 2015, I read a Message from the National Assembly forwarding the Presidential Memorandum on the Public Audit Bill, 2014 and the Public Procurement and Asset Disposal Bill, 2014 for consideration by the Senate. The two Bills are subject to constitutional timelines of 27th May, 2015, having been extended by nine months by the National Assembly. Indeed, Parliament passed the Bills within the timelines, but the President declined to assent to the two Bills are referred them back to Parliament.

On 23rd June, 2015, this House debated and approved the Senators to the Joint Committee to consider the President’s recommendations on the two Bills. However, the timeline for the Joint Committee lapsed on 20th August, 2015 without the Committee tabling a Report as contemplated under Standing Order No.158 (2) .

Hon. Members, the Joint Committee having failed to table a Report within the stipulated timeline, on 1st October, 2015, I issued a communication detailing the procedure to be followed on the disposal of the Consideration of the Presidential

December 16, 2015 SENATEDEBATES

December 16, 2015 SENATEDEBATES

December 16, 2015 SENATEDEBATES

Thank you, Mr. Speaker, Sir. I beg to report progress that the Committee of the Whole has considered the Presidential Memorandum on the Public Procurement and Asset Disposal Bill (National Assembly Bill No. 40 of 2014) and seeks leave to sit again.

Thank you.

December 16, 2015 SENATEDEBATES

Thank you, Mr. Speaker, Sir, I also support. However, pursuant to Standing Order No.141 (3) , I beg to move:-

THAT, the Motion be amended by inserting the following words at the end therefore:-

December 16, 2015 SENATEDEBATES

Yes, Mr. Temporary Chairman, Sir. The amendments are in the Order Paper. So, it is self-explanatory. We are trying to maximize on time.

December 16, 2015 SENATEDEBATES

December 16, 2015 SENATEDEBATES

On a point of order, Mr. Temporary Chairman, Sir. I appreciate the Opposition and their views. However, their views are not new, but we respect them. This matter is actually just supposed to come for Division and not for debate. Therefore, is it in order for us to debate a matter that is coming for Division?

The Senate Minority Leader (Sen. Wetangula) : Mr. Temporary Chairman, Sir, a Motion was moved to recommit these clauses. They have appeared here as if they have never been debated before. We have a duty to point that out. Otherwise, there is no point for you to have asked him to move. You could have just put the question.

Mr. Temporary Chairman, Sir, you are a lawyer. You have to have fidelity to the law and the Constitution. When we bring issues here, we are not just being a destructive Opposition. We are patriotic Kenyans. Perhaps, I am more patriotic than some people. We are not opening debate. We have a duty at this stage to point out what we think.

December 16, 2015 SENATEDEBATES

December 16, 2015 SENATEDEBATES

ABSTENTION: Sen. (Dr.) Machage.

Yes, Mr. Temporary Chairman, Sir. The amendments are in the Order Paper. So, it is self-explanatory. We are trying to maximize on time.

December 16, 2015 SENATEDEBATES DIVISION ELECTRONIC VOTING

ABSTENTIONS: Sen. (Dr.) Machage.

Hon. Senators, I will put the question at the end. Now, I want us to move and consider the Presidential Memorandum on the Public Audit Bill (National Assembly Bill No.38 of 2014) .

December 16, 2015 SENATEDEBATES

Mr. Deputy Speaker, Sir, I beg to report that the Committee of the Whole has considered the Presidential Memorandum on the Public Procurement and Asset Disposal Bill (National Assembly Bill No. 40 of 2014) and its approval thereof without amendments.

Mr. Deputy Speaker, Sir, I beg to move that the House agrees with the Committee of the Whole in the said report.

I request Sen. Kivuti to second.

I second.

Mr. Temporary Chairman, Sir, a Motion was moved to recommit these clauses. They have appeared here as if they have never been debated before. We have a duty to point that out. Otherwise, there is no point for you to have asked him to move. You could have just put the question. Mr. Temporary Chairman, Sir, you are a lawyer. You have to have fidelity to the law and the Constitution. When we bring issues here, we are not just being a destructive Opposition. We are patriotic Kenyans. Perhaps, I am more patriotic than some people. We are not opening debate. We have a duty at this stage to point out what we think.

December 16, 2015 SENATEDEBATES

December 16, 2015 SENATEDEBATES

ABSTENTION: Sen. (Dr.) Machage.

December 16, 2015 SENATEDEBATES DIVISION ELECTRONIC VOTING

ABSTENTIONS: Sen. (Dr.) Machage.

December 16, 2015 SENATEDEBATES

Hon. Senators, let us continue with business. We have to finish the business.

Mr. Deputy Speaker, Sir, I also thank the House. When the drafters of the Constitution thought of the Senate, it meant that there is a delegation. Within the wordings, it never said that the delegation will be coerced by either of the political parties that brought them here. Even the Constitution gives Members freedom that you can walk out of your party without being de-whipped from the House, but continue being an independent Member.

It is time that in a democratic manner, we must appreciate those women who vote in delegations should also not be intimidated and told that they are not part of those delegations.

We are in a debate towards a vote. So, I will not allow too much time on this.

On a point of order, Mr. Deputy Speaker, Sir. My request for the Floor is not necessarily in the manner in which one votes. Sen. Elachi said that the Constitution allows you to walk out of your party. If you walk out of your party, it means that you go and seek fresh mandate. It is as simple as that. The Political Parties Act ---

Order, Senators! The trouble with this debate the way I see it is that, first of all, even when Sen. (Dr.) Machage raised it, if I remember correctly, he talked about intimidation. He did not mention any names or incidences.

So, I sit here as you speak, I do not understand exactly what or who you are discussing. Unless you are talking in the abstract, I propose that we end that matter. Unless you go to the substance of it which none of you has done and then we vote and move on. Party issues are not issues that I would like to encourage here.

Order, Senators! Sen. Wetangula, you have not sought the Floor.

December 16, 2015 SENATEDEBATES

Mr. Deputy Speaker, Sir, I am sorry.

Order, Sen. Wetangula! As the Senate Minority Leader, you know that I would normally not deny you the Floor.

The Senate Minority Leader (Sen. Wetangula) : Mr. Deputy Speaker, Sir, you gave me two minutes and I have spent one.

Order! The problem I have with these interventions, right from the one made by Sen. (Dr.) Machage, is that I do not understand what is going on.

The Senate Minority Leader (Sen. Wetangula) : Mr. Deputy Speaker, Sir, I told you that you were wrong in allowing it. Now that you allowed it, let us go on with it.

Order, Sen. Wetangula. I did not know what Sen. (Dr.) Machage was going to say until he said it. We are now doing it in the abstract.

Order, Senators! There being no other Senator seeking the Floor, I will put the question.

Order, Sen. Wetangula! We have finished on the procurement issue. Now we are on the Presidential Memorandum on the Public Audit Bill (National Assembly Bill No. 38 of 2014) . Chairperson, please make your report.

No, Mr. Deputy Speaker, Sir.

With respect to what you have said, it will be expunged because it was on the wrong Order. You will get a chance when we get to the correct one.

Mr. Deputy Speaker, Sir, as we conclude the end product of this Bill, it is important to note a few things. One, I noticed in this House a level of intimidation on some Members. It will not be good at my age and status not to raise this. Hon. Members of this House have their own minds. When a Member makes his or her mind, it is not good for another Member to intimidate him to the point of near fight. It is not acceptable. The democratic situation should have been acceptable. We know and we have been told by the Senate Minority Leader what it means to vote the way the voting has been done. The conscience of the voting should be left to individual Members to decide.

Mr. Deputy Speaker, Sir, I also thank the House. When the drafters of the Constitution thought of the Senate, it meant that there is a delegation. Within the wordings, it never said that the delegation will be coerced by either of the political parties that brought them here. Even the Constitution gives Members freedom that you can walk out of your party without being de-whipped from the House, but continue being an independent Member.

It is time that in a democratic manner, we must appreciate those women who vote in delegations should also not be intimidated and told that they are not part of those delegations.

We are in a debate towards a vote. So, I will not allow too much time on this.

On a point of order, Mr. Deputy Speaker, Sir. My request for the Floor is not necessarily in the manner in which one votes. Sen. Elachi said that the Constitution allows you to walk out of your party. If you walk out of your party, it means that you go and seek fresh mandate. It is as simple as that. The Political Parties Act ---

Order, Senators! The trouble with this debate the way I see it is that, first of all, even when Sen. (Dr.) Machage raised it, if I remember correctly, he talked about intimidation. He did not mention any names or incidences.

So, I sit here as you speak, I do not understand exactly what or who you are discussing. Unless you are talking in the abstract, I propose that we end that matter. Unless you go to the substance of it which none of you has done and then we vote and move on. Party issues are not issues that I would like to encourage here.

Order, Senators! Sen. Wetangula, you have not sought the Floor.

December 16, 2015 SENATEDEBATES

Order Senators. Let us have some order and deal with this business in an orderly fashion.

Mr. Deputy Speaker, Sir, you gave me two minutes and I have spent one.

Order! The problem I have with these interventions, right from the one made by Sen. (Dr.) Machage, is that I do not understand what is going on. The Senate Minority Leader (

Order Senators. Sen. Wamatangi, I have heard you and I will not shy away from my duties when I seat on the Chair. I think everyone in this House knows that. What I said after Sen. Murkomen had made his statement was that I want to bring this debate to a close. This is because I did not, in honesty---

Order, Sen. Wetangula. I did not know what Sen. (Dr.) Machage was going to say until he said it. We are now doing it in the abstract.

Order, Senators! There being no other Senator seeking the Floor, I will put the question.

Order, Sen. Wetangula! We have finished on the procurement issue. Now we are on the Presidential Memorandum on the Public Audit Bill (National Assembly Bill No. 38 of 2014) . Chairperson, please make your report.

December 16, 2015 SENATEDEBATES

December 16, 2015 SENATEDEBATES

Order Senators. Sen. Murkomen has the right to raise the point of order and I have the right to make a decision. Let us listen to a few more Senators who have sought the Floor.

Thank you, Mr. Deputy Speaker, Sir. I also wish to agree with the Speaker’s ruling that these matters that are secondary to the matters that are on the table be deferred and we deal with the issue of voting which is a matter that we have come for.

Thank you.

Thank you, Mr. Deputy Speaker, Sir. I want to congratulate the House and the team for having voted today. I want to urge our colleagues to embrace the spirit of unity, thinking and of forward looking. We have a new Constitution and we should not spell doom to this country. This is a positive Bill and we should take control of the work that we are doing and not predicting that there will be doom in this country.

Mr. Deputy Speaker, Sir, this is a sad day for this country and the Constitution. Fortunately, no Government is in power forever and neither are bad manners.

There are six clauses that we have made. All of them are unconstitutional. However, that is not my point. We, as a Senate, have allowed ourselves to be used. We have allowed ourselves to be used to rubberstamp decisions that are not constitutional. Our Bills have been rejected at the National Assembly. The CDF law has been passed without our input. We have been forwarded documents from the National Assembly and we have not bothered to interrogate them. Nobody in the Jubilee side thinks they should question a comma in a memorandum of the President.

Hon. Moses Kuria appears to be right. Maybe we do not need this Senate. The National Assembly can do this. What is the purpose of sitting here and just voting? What we have done is not any different from what the National Assembly has done. The only wise person here is Sen. Keter who will join the Cabinet. All of us do not need to be here. We actually need to go back to our professions and do something else.

There is no reason to sit here and just press buttons when we have a document that tells us that one cannot interfere with an independent office. What is so difficult about seeing something so simple? Some people have told us that they came with a conscience today to vote. What happened to that conscience before? However, the beauty about doing legislation and what we studied in law school about interpretation is, it does not end here. One day somebody will go into the record and ask why we amended Clause 234 or 229, so that the officers of an independent office are subject to another office. They will look at the record and will find that we did not serve as Senators as we should have.

December 16, 2015 SENATEDEBATES

Mr. Deputy Speaker, Sir, like those who have said, it is a sad day. Indeed, it is a sad day for this country. When Sen. Dullo and I were in the Kenya National Commission on Human Rights, we said there are four ingredients of commissions to make them independent;

Order, Senator! You cannot talk to me when you are sitting down.

Order Senators. Let us have some order and deal with this business in an orderly fashion.

December 16, 2015 SENATEDEBATES

Mr. Deputy Speaker, Sir, I am bit delighted that Sen. Bule regarded us as his former friends. We are still friends. That said and done, I am urging my colleagues that this is not the end of it. The Senate Majority Leader should find his conscience to bring this amendment back so that we remedy this defect to this

Thank you, Mr. Deputy Speaker, Sir. I would still urge our colleagues that even at this late hour, we should reconsider this matter and refuse to agree with the report of the Committee. This House should have some kind of role in quality control in terms of the legislation that we are passing. We cannot on the face of it pass legislation which if you look at it, is contrary to the Constitution and contrary to what it says.

If you look at Article 234 (5) , the delegation by the Commission is not a delegation of members of staff or officers to another Commission or independent office. What that section is saying is that the Commission can delegate any of its members or any of its officers to any other body to perform its functions. That is the function of the PSC and not the functions of the office of the Auditor-General.

Mr. Deputy Speaker, Sir, I agree with the Leader of the Majority that this is very tragic. There used to be this gentleman called D.G Njoroge. I do not think there will be a member of the public service like him. He stood firm and for many years, when similar legislation was brought against his office, he stood firm and ensured that the Office of the Controller and Auditor-General maintained its responsibility to Parliament.

This being the case, it looks like the Jubilee Government is out to undermine the authority of the Constitution, and I can tell you that in another one or two years, the

December 16, 2015 SENATEDEBATES

On a point of order, Mr. Deputy Speaker, Sir. I rise under Standing Order 98 (2) that the question be now put.

Order Senators. Sen. Murkomen has the right to raise the point of order and I have the right to make a decision. Let us listen to a few more Senators who have sought the Floor.

Thank you, Mr. Deputy Speaker, Sir. I also wish to agree with the Speaker’s ruling that these matters that are secondary to the matters that are on the table be deferred and we deal with the issue of voting which is a matter that we have come for.

Thank you.

Thank you, Mr. Deputy Speaker, Sir. I want to congratulate the House and the team for having voted today. I want to urge our colleagues to embrace the spirit of unity, thinking and of forward looking. We have a new Constitution and we should not spell doom to this country. This is a positive Bill and we should take control of the work that we are doing and not predicting that there will be doom in this country.

On a point of order, Mr. Deputy Speaker, Sir. We have consulted as the Jubilee Coalition and agreed that we should be given more time to consult on the Water Bill (National Assembly Bill No.7 of 2014) . One of the reasons that I gave is good faith is that this Bill has taken an overly long time. Water is a shared function and there was need for legal clarity. We have also considered that even if we pass it, it would still have to go to concurrence. Therefore, the urgency is mitigated by the fact that it would still have to the National Assembly for concurrence. On that note, I request that with your permission, we defer the debate on this Bill to the next Sitting.

December 16, 2015 SENATEDEBATES

On a point of order, Mr. Deputy Speaker, Sir. I wish to make a personal statement under the Standing Orders No.46---

On a point of order, Mr. Deputy Speaker, Sir. I have said before that unless we insist that we stick to the rules of this House, five years down the lane, there might be no rules in this House. The rules are very clear that if the House is invited from recess, usually, the business to be transacted is specified. In our invitation, there was no indication we would receive a personal statement from any Senator. It would be completely contrary to the provisions of the Standing Orders and the law for you to allow – as much as he is my very good friend – Sen. Keter, to address the House. That agenda was not one of the reasons why we were called. That is provided by Standing Order No.29 (5) .

December 16, 2015 SENATEDEBATES

On a point of order, Mr. Deputy Speaker, Sir. I am aware that rules must be stuck too. However, I believe that rules have room for discretion. I say this with a heavy heart to my Chairman. This is the last opportunity for us with Sen. Keter. He is our friend and we have lived with him dearly. I would really like him to put his statement on record and for some of us to also say one or two things on record. We have had our own running as Members of different coalitions, but he has been our dear colleague. It is, therefore, important that we listen to him. Although we differed with the Jubilee Coalition on the Order No.1, I would like us to agree on this order and give our colleague a send off.

Order, Sen. Bule! If you are on a point of order, you make a point of order. If you want to contribute, you press the button to contribute. If you want to talk about what I have heard you talk about, we have moved on.

Mr. Deputy Speaker, Sir, I am bit delighted that Sen. Bule regarded us as his former friends. We are still friends. That said and done, I am urging my colleagues that this is not the end of it. The Senate Majority Leader should find his conscience to bring this amendment back so that we remedy this defect to this

December 16, 2015 SENATEDEBATES

Mr. Deputy Speaker, Sir, I rise to contribute to this particular limit. In the changes suggested by the Executive, we are talking about an office becoming vacant because of various reasons. The PSC is supposed to appoint someone to run it for 90 days. If the Opposition is not comfortable with this, they should have suggested a reduction of the number of days. This is not a permanent replacement. It would have been right for them to apparently come with credible changes that we would have listened to.

Mr. Deputy Speaker, Sir, the memorandum before the House on which a decision is being made has been brought by the President who has told the country that he is committed to fight against corruption. I appeal to the President, the Senate Majority Leader and the entire membership of the House from the Jubilee side, because looking at them, they are younger Members of this House, by allowing the death of the Office of the Auditor-General, they are, therefore, saying they support corruption. Kenyans have fought for this long before they left primary school. Kenyans will not stop. At the end of the next few months, some of us shall be replaced, others shall come back and the country hopes that the fight against corruption shall be won.

There is no way the Standing Committee on Finance, Commerce and Budget or the County Public Accounts and Investments Committee can speak with finality unless guided by the reports of the Auditor-General. So, if we make it a weak office, we will never have answers. Not in this House, not in the lower House. Answers on the scandals of Eurobond, Galana Irrigation project, NYS or procurement of specialized medical equipment.

We must fight corruption. Mr. Deputy Speaker, Sir, the President is wrong. All of you who want to vote for this Bill will also be wrong. Kindly change your minds. Let us disagree with the Committee by leaving the Bill as it was.

Mr. Deputy Speaker, Sir, you exhorted us to reflect on our role as a Senate. Until today, I believe that our role will be the House that offers a sober second thought on matters of national importance. That underpins our aspirations to be considered the “upper” House in this nation. What we have demonstrated today is that just like the other House that we are so critical about; we are just another House that votes under the influence of ugali. There is nothing that differentiates us from the other people.

We rely on the Auditor-General to give us reports from the county governments. If we emasculate that office and fail to give it the powers that can allow it to effectively operate, who are we going to rely on to get audit reports? Today, as the Opposition, we did not bring about some of the arguments that have been going around about the legality of Presidential Memorandum. There have been arguments that the President has got no business legislating through the backdoor. This is an example of legislation through the back door.

Mr. Deputy Speaker, Sir, we are calling on colleagues to look at the substance of these amendments. If we say that the Auditor-General shall get employees from

December 16, 2015 SENATEDEBATES

Sen. (Dr.) Machage, I will not give you a chance because I had made a ruling that, that would be the last person to contribute. Therefore, let me put the Question.

On a point of order, Mr. Deputy Speaker, Sir. I find this situation very tricky because we came here for a Special Sitting. If you want to put the business of the work we have done in jeopardy, then allow Sen. Keter to make the Personal Statement because it can be argued that we used a special sitting to transact a business which was not published or notice given in the Kenya Gazette.

Secondly, the question of a Personal Statement is provided for under the Standing Orders. Standing Order No.1 will only help you if it is a matter which is not provided for. I am saying this because we are lucky that you are on the Chair. However, on another occasion in a different circumstance, somebody else could come with something even

December 16, 2015 SENATEDEBATES

On a point of order, Mr. Deputy Speaker, Sir. I do not wish to say more because we are waiting for your ruling. However, I did not have anything great, but just to thank my colleagues for the three years that we have been together and nothing much.

Another issue is that I do not fear courts. I have been to courts and I will continue going there because they are there for me. I know my conscience is very right. We have worked together as a team and I thought I should take this advantage to thank each one of us, my people of Belgut, the President and everybody. These are colleagues that we have worked together since 2002 when I joined Parliament with hon. Sen. (Dr.) Khalwale. You remember the last time we said that we should wait for the vetting process to continue. Now that vetting was done and Parliament has approved the candidates, I will resign officially in a few minutes. I am being awaited to do so, so that it can be published in the Kenya Gazette. I thought I should take this advantage to thank my colleagues.

Thank you very much.

On a point of order, Mr. Deputy Speaker, Sir. I have said before that unless we insist that we stick to the rules of this House, five years down the lane, there might be no rules in this House. The rules are very clear that if the House is invited from recess, usually, the business to be transacted is specified. In our invitation, there was no indication we would receive a personal statement from any Senator. It would be completely contrary to the provisions of the Standing Orders and the law for you to allow – as much as he is my very good friend – Sen. Keter, to address the House. That agenda was not one of the reasons why we were called. That is provided by Standing Order No.29 (5) .

December 16, 2015 SENATEDEBATES

December 16, 2015 SENATEDEBATES

On a point of order, Mr. Deputy Speaker, Sir. Most of the issues that I wanted to raise have been clearly elevated by my friend and colleague, Sen. Hassan.

I have a short communication to make on the suspension of sittings of the Committees of the Senate.

Hon. Senators, as you are aware on Thursday, 3rd December, 2015, the Senate proceeded on recess until Tuesday, 9th February, 2016, as per the Senate calendar. It has been a long and hectic year for us. I am sure that every one of us is looking forward to take a well-deserved break to relax during the festive season.

The recess at the end of the Session provides an opportunity for us to reflect on the achievements and challenges through the year. We can only do this when our minds are relaxed and devoid of the hustle and bustle of our busy schedule.

Hon. Senators, I believe we are looking forward to the December festivities with our families, friends and constituents. I, therefore, direct all Senate Committees to suspend their sittings as from 18th December, 2015 to 15th January, 2016. This will enable Senators to take a break from the heavy business of the Senate and be with their families and voters.

In the same breath, it is an opportunity for the officers to take their annual leave and join their families and friends during the Christmas season, as well as invigorate and recharge in readiness for the next Session in 2016.

Hon. Senators, it is with great pleasure now that I wish to extend to you a Merry Christmas and a prosperous year, 2016

I thank you.

Hon. Senators, there being no other business, the Senate stands adjourned until Tuesday 9th February, 2016, at 2.30 p.m. as per our calendar.

The Senate rose at 6.20 p.m.

“ (1) In all cases where matters are not expressly provided for by these Standing Orders or by other Orders of the Senate, any procedural question shall be decided by the Speaker.”

Mr. Deputy Speaker, Sir, I think the Chair has a leeway because Standing Order No. 46 provides for Personal Statements. It makes it clear that:-

December 16, 2015 SENATEDEBATES

Order, Senators. We are discussing another serious issue to do with our own Standing Orders. Let us deal with it the way we deal with a serious situation.

Mr. Deputy Speaker, Sir, I was looking for the definition of Statement Hour and I did not get it. Any Member may lead me to that. However, I propose that the definition of Statement Hour is based on Standing Order No. 1. The Speaker can use the Chair’s discretion to allow two or three minutes to become the Statement Hour for the purpose of creating a vehicle for our colleague to make his Personal Statement.

Although the same section provides that:- “Although there is no question before the Senate”

Mr. Deputy Speaker, Sir, earlier, there were concerns by Members regarding the status of the Senator for Kericho County following the announcement in the Press that he has been cleared for appointment as a Cabinet Secretary. Is it in order to request the Senator to clarify to this House that he intends to resign as a Senator or whether he wants to continue? It is in public interest that he takes his time.

What I expect from you Senators, because I have given you an indication of what my inclinations are, if we have a Standing Order or a constitutional provision that allows me to do what Sen. Keter is seeking, being his last day here, show it to me and I will allow it. My inclination would have been to allow Sen. Keter to make a Personal Statement because he is here with us for the last day. However, we are a House of rules and we are here under a Gazette Notice for a Special Sitting under Standing Order No.29 (5) . Therefore, it is not an issue that I am protracting. You are the same Members who will come here next time and tell me I breached the rules. My view is, with great respect, Standing Order No. 29 (5) is prima facie clear.

On a point of order, Mr. Deputy Speaker, Sir. Whereas there is Standing Order No.29, we came for a Special Sitting. However, we are also confronted by a very special circumstance that the drafters of the Standing Orders and the House could not have envisaged. Therefore, with due respect, the dust falls under Standing Order No.1. You can direct the House to vote so that we allow the Personal Statement under this very special circumstance. I move that the House agrees on that.

On a point of order, Mr. Deputy Speaker, Sir. I find this situation very tricky because we came here for a Special Sitting. If you want to put the business of the work we have done in jeopardy, then allow Sen. Keter to make the Personal Statement because it can be argued that we used a special sitting to transact a business which was not published or notice given in the Kenya Gazette.

Secondly, the question of a Personal Statement is provided for under the Standing Orders. Standing Order No.1 will only help you if it is a matter which is not provided for. I am saying this because we are lucky that you are on the Chair. However, on another occasion in a different circumstance, somebody else could come with something even

December 16, 2015 SENATEDEBATES

On a point of order, Mr. Deputy Speaker, Sir. I do not wish to say more because we are waiting for your ruling. However, I did not have anything great, but just to thank my colleagues for the three years that we have been together and nothing much.

Another issue is that I do not fear courts. I have been to courts and I will continue going there because they are there for me. I know my conscience is very right. We have worked together as a team and I thought I should take this advantage to thank each one of us, my people of Belgut, the President and everybody. These are colleagues that we have worked together since 2002 when I joined Parliament with hon. Sen. (Dr.) Khalwale. You remember the last time we said that we should wait for the vetting process to continue. Now that vetting was done and Parliament has approved the candidates, I will resign officially in a few minutes. I am being awaited to do so, so that it can be published in the Kenya Gazette. I thought I should take this advantage to thank my colleagues.

Thank you very much.

Order, Senators! That will be the last point of order. My ruling is as I had indicated that if you ---

December 16, 2015 SENATEDEBATES

I have a short communication to make on the suspension of sittings of the Committees of the Senate.

Hon. Senators, as you are aware on Thursday, 3rd December, 2015, the Senate proceeded on recess until Tuesday, 9th February, 2016, as per the Senate calendar. It has been a long and hectic year for us. I am sure that every one of us is looking forward to take a well-deserved break to relax during the festive season.

The recess at the end of the Session provides an opportunity for us to reflect on the achievements and challenges through the year. We can only do this when our minds are relaxed and devoid of the hustle and bustle of our busy schedule.

Hon. Senators, I believe we are looking forward to the December festivities with our families, friends and constituents. I, therefore, direct all Senate Committees to suspend their sittings as from 18th December, 2015 to 15th January, 2016. This will enable Senators to take a break from the heavy business of the Senate and be with their families and voters.

In the same breath, it is an opportunity for the officers to take their annual leave and join their families and friends during the Christmas season, as well as invigorate and recharge in readiness for the next Session in 2016.

Hon. Senators, it is with great pleasure now that I wish to extend to you a Merry Christmas and a prosperous year, 2016

I thank you.

Hon. Senators, there being no other business, the Senate stands adjourned until Tuesday 9th February, 2016, at 2.30 p.m. as per our calendar.

The Senate rose at 6.20 p.m.