November 18, 2015 SENATEDEBATES

Wednesday, 18th November, 2015

Mr. Speaker, Sir, I rise pursuant to Standing Order No. (45) (2) (b) to seek a statement from the Chairperson of the Standing Committee on Labour and Social Welfare regarding the doping menace amongst Kenyan athletes. In the statement, the Chairperson should:-

Chairperson, Vice Chairperson, or any Member of the Standing Committee on Labour and Social Welfare.

Sen. Wangari, what is your position?

Mr. Speaker, Sir, I am sorry. I was consulting Sen. Melly. Please, give me two minutes to check the HASARD. I will respond in a few minutes.

Order! You can do that later. Could you respond in one week?

Two weeks, Mr. Speaker, Sir.

In one week’s time. You must learn to listen.

Most obliged, Mr. Speaker, Sir.

November 18, 2015 SENATEDEBATES CIRCUMSTANCES LEADING TO THE DEATH OF ALEX MADAGA

Mr. Speaker, Sir, I am not requesting for a new statement. Just like yesterday, I rise to make a follow up to a statement that I sought sometimes back. At first, the statement was directed to the Committee on Health. However, the Chair ruled that the Senate Deputy Majority Leader to answer the statement. He gave a commitment to answer it in a week’s time. It has now been three weeks and we have not received it.

This statement was with regard to the circumstances leading to the death of one, Alex Madaga of Vihiga County, who was buried about four weeks ago.

Thank you.

I remember the first time the matter came up, the Deputy Majority Leader said he had a statement.

Mr. Speaker, Sir, indeed, he came up with a statement, but it did not address all the issues that I had raised. I had a discussion with him and that is why he asked for a week.

Who is holding brief for the Deputy Majority Leader?

Sen. Billow, you might be the senior most on that side.

Mr. Speaker, Sir, my apologies on that. That is a very important matter and it has been raised several times in this House. It is a pity that it has not been addressed up to now. Therefore, I appeal that you seek the indulgence of the Senator for Vihiga to give us more time, so that I can get the message to the Deputy Majority Leader and demand that he addresses it with the urgency and importance that it deserves. We will appreciate if you give us until next week.

Today is Wednesday. We will give you up to Tuesday, next week. I direct that if for some reasons, they will not make an appearance as they have done today, you assume the responsibility of responding.

Mr. Speaker, Sir, pursuant to Standing Order No. 45 (2) (b) , I rise to request for a statement from the Chairperson of the Standing Committee on National Security and Foreign Relations with regards to the dissaperance of Mr. Alex Lelionga Sankale, a business management student at the Kenya Institute of Management (KIM) on 13th November, 2015 at 6.30 p.m, at Ngara in Nairobi, after he was picked up at his residence at Ngara Hostels by three persons claiming to be officers from the Anti- Terrorism Police Unit for questioning. Efforts to trace his whereabouts since then have proved futile and his phone has since been off.

In the statement, the Chairperson should explain the following:

November 18, 2015 SENATEDEBATES

Chairperson or the Vice Chairperson of the Committee on National Security and Foreign Relations?

Mr. Speaker, Sir, I request Sen. Mositet to give us two weeks because this matter might require some investigation.

Two weeks’ time it is.

Mr. Speaker, Sir, I rise on a point of order regarding appearance by public officers before the County

Public Accounts and Investments Committee (CPAIC) to respond to issues raised in audit reports of the Auditor-General. Could you clarify whether a Committee Chairperson or any other Senator can instruct the Committee not to invite a governor of a county allegedly because he is doing a good job on the ground? I seek this clarification because on Monday, 16th November, 2015, a Senator, who is the Chairperson of the Committee on Devolved Government, told a baraza where I was in attendance that the Governor of West Pokot County had done so a good job that he would instruct the Chairperson of the CPAIC not to require the said governor to appear before the Committee and ensure that all audit queries are shelved.

Order, Sen. (Prof.) Lonyangapuo! While I appreciate that you must be an aggrieved party, that is no excuse for breaking all rules of civility. Who approved that statement?

Mr. Speaker, Sir, it was a point of order.

November 18, 2015 SENATEDEBATES

Order, Members! I do not know what you are talking about. One Member makes an allegation in a public baraza and now you want to sanitize it and give it some credibility by raising the matter here. I will not entertain this. The Senate Minority Leader has given us what we all know; that such matters are better discussed in a Kamukunji. It is not for us to discuss other Members.

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

It better be different, Sen. (Dr.) Khalwale.

Mr. Speaker, Sir, I am not pursuing the fact that Sen. (Prof.) Lonyangapuo has referred to the Chairperson of my Committee, which I happen to Chair. It is only yesterday that Sen. Melly, in the presence of Sen. Wangari, reported to me that during a presidential function, the Governor of Uasin Gishu assured the President that Sen. (Dr.) Khalwale has cleared him off all the audit queries. It is this kind of thing that will eventually erode the credibility, not only of my Committee, but also of the Senate, to the extent that when I will face the public and say that we found nothing with somebody, the public will think I have been influenced.

Mr. Speaker, Sir, you will have to think of ways beyond what Sen. Wetangula has suggested to protect our Committee. Our Committee is right at the heart of this matter. The day one governor will succeed in influencing our Committee, that will be the end of accountability as far as I am concerned.

Order, Senators! The Chair has a responsibility to know when to entertain certain points of order. That is why I said that the Chair should not be ambushed. We are now dealing with statements yet you want to introduce points of order. Sen. (Prof.) Lonyangapuo came through the window although I am not sure of his capacity to go through one and the Senate Minority Leader has said that procedure notwithstanding.

I encourage hon. Senators that we will discuss this matter substantively in the normal way. However, there are procedures in which you can bring up the issue if you feel that it has not been addressed properly. However, let it rest for now. I am sure that Sen. (Prof.) Lonyangapuo has put his case because he not only raised the issue, but also described the context in which it happened.

Let us proceed to the next statement.

Mr. Speaker, Sir, I know that you have already directed the Chairperson of the Committee on National Security and Foreign Relations to respond to my statement in two weeks’ time. However, the family and the people of that area are really concerned. I would appreciate if the Chairperson took the initiative to assure the family that the people who arrested the boy were police officers so that they do not think that he was kidnapped.

November 18, 2015 SENATEDEBATES

I agree with you, Senator. I request the Vice Chairperson to conclude the issue within one week because Sen. Mositet has legitimate concerns.

Mr. Speaker, Sir, I rise to request for a statement from the Chairperson of the Standing Committee on Finance, Commerce and Budget regarding the allocation of Uwezo Youth Fund to Marsabit and the neighbouring counties of Samburu and Turkana. In the statement, the Chairperson should give:-

Please, proceed,

That question is directed to the Committee on Finance, Commerce and Budget.

Order! I am aware that the question is directed to the Committee on Finance, Commerce and Budget. I saw a request from Sen. Dullo, and I thought she wanted to ride on the statement.

Please, proceed, the Chairperson of the Committee on Finance, Commerce and Budget.

Mr. Speaker, Sir, hon. Senator for Marsabit County wants details regarding Uwezo Fund which are very specific. We will need a little bit of time to get all those details. I, therefore, request that you give us at least two weeks to get all the details. However, the basic information on the amount of money allocated can be accessed online on the website of Uwezo Fund.

Two weeks’ time is good. Sen. Hargura, do you have another request for a statement?

Mr. Speaker, Sir, I would like to raise a matter concerning my county, but I do not have your approval. I, therefore, do not know whether to proceed.

You may approach the Chair as we continue with the rest of the business.

Hon. Members, we have six more statements to be issued. However, before we proceed, I would like to allow Sen. (Dr.) Khalwale to lay a Paper on the Table that has a deadline.

November 18, 2015 SENATEDEBATES PAPER LAID REPORT OF THE MEDIATION COMMITTEE ON THE COUNTY GOVERNMENTS AMENDMENT BILL (SENATE BILL NO.1 OF 2014)

Mr. Speaker, Sir, I beg to lay the following Paper on the Table:-

Report of the Mediation Committee on the County Governments Amendment Bill

(Senate Bill No.1 of 2014)

Let us proceed with statements. Please, proceed, Sen. Dullo.

Mr. Speaker, Sir, I do not have the response to this statement, but we have discussed with Sen. Mositet. I will give the response next week.

Next week on Tuesday. Next statement.

Mr. Speaker, Sir, I need some clarification because the statement that was sought earlier on and I have a response to, was on the status of the construction of the Kakamega-Webuye Road and not as it appears on the Order Paper: “Status of the Construction of the Roads in Kakamega County.” The statement was on a specific road.

How does your statement read?

Mr. Speaker, Sir, my statement reads, “Status of the construction of Kakameg-Webuye Road.”

What is it, Sen. (Dr.) Khalwale?

Mr. Speaker, Sir, there is nothing absolutely wrong with what is on the Order Paper. It was a specific ward, but when Sen. Wetangula intervened to ride on the Statement, he then included a number of other roads. So, then it expanded to include not just that road, but the others that Sen. Wetangula had mentioned. We expect that answer.

In the same county?

Yes, Mr. Speaker, Sir.

November 18, 2015 SENATEDEBATES

Order, Sen. Wetangula! I did not notice.

Then say so. You asked me whether I noticed, I did not.

The Senate Minority Leader

(Sen. Wetangula)

: Is that in order?

\

If that is what she did, she is obviously out of order. Sen. Wangari, you know what needs to be done.

Order, Sen. Wangari! Are you demonstrating what you did?

Most obliged.

Most obliged.

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

Chair, you have two more minutes to go.

The funds for the construction are still available; it is a World Bank funded programme.

On the issue of the annuity programme, I wish to reply that the Government has given the commitment to increase the penetration of the paved road network through construction of an additional 10,000 kilometres within the five years during the Jubilee Government tenure. There is an ongoing process of covering 3,100 kilometres, which will be done targeting low volume roads predominantly in the rural areas. The Ministry, through the Kenya Rural Roads Development (KRRD) , has already initiated the 3,700 kilometres in batches and that shall be done. We, as a Committee, have advised that it be done and the criteria be chosen properly in all the regions. The payments of Kshs265 million is in consonance with the contract. The contractor was given some deposit so that he can perform as per the agreement.

Finally, let me say that the construction of the road was initially awarded to three contractors to do separate areas. The entire project runs from Kisumu to Kitale through Kakamega and Webuye and was split into three contracts: Kisumu-Kakamega, Kakamega-Webuye and Webuye -Kitale.

Mr. Speaker, Sir, the negotiations are ongoing and the other contractors have been approached. They will complete this road from their end if this contractor agrees to move out immediately. It will be done since there is money. The other burning issue about the Kshs5 million to deal with the diversion, which was blocking the road, is being done. I have brought some photos which were taken this morning. It is in the process. I assure the Senator for Kakamega County that his people will access the road.

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

Chair, you have two more minutes to go.

The funds for the construction are still available; it is a World Bank funded programme.

On the issue of the annuity programme, I wish to reply that the Government has given the commitment to increase the penetration of the paved road network through construction of an additional 10,000 kilometres within the five years during the Jubilee Government tenure. There is an ongoing process of covering 3,100 kilometres, which will be done targeting low volume roads predominantly in the rural areas. The Ministry, through the Kenya Rural Roads Development (KRRD) , has already initiated the 3,700 kilometres in batches and that shall be done. We, as a Committee, have advised that it be done and the criteria be chosen properly in all the regions. The payments of Kshs265 million is in consonance with the contract. The contractor was given some deposit so that he can perform as per the agreement.

Finally, let me say that the construction of the road was initially awarded to three contractors to do separate areas. The entire project runs from Kisumu to Kitale through Kakamega and Webuye and was split into three contracts: Kisumu-Kakamega, Kakamega-Webuye and Webuye -Kitale.

Mr. Speaker, Sir, the negotiations are ongoing and the other contractors have been approached. They will complete this road from their end if this contractor agrees to move out immediately. It will be done since there is money. The other burning issue about the Kshs5 million to deal with the diversion, which was blocking the road, is being done. I have brought some photos which were taken this morning. It is in the process. I assure the Senator for Kakamega County that his people will access the road.

Mr. Speaker, Sir, the issue of Kakamega-Webuye Road is thorny in our region. The contractors have over-stalled. This is the only project that is ongoing in that part of the country, and it was started by the Kibaki Administration. There is no one project that has been started by the Jubilee Government in our area. Can the Chairperson confirm that this is part of their wider scheme by the Jubilee Government to frustrate the people of western Kenya for the reason that they do not have support from that part of the country?

On a point of order, Mr. Speaker, Sir. You have heard the Senator complain that the Jubilee Government is frustrating western Kenya, whereas they came in large numbers last week when the President launched a myriad of projects in Kakamega, Bungoma and other western counties. Last week, many multibillion projects were launched. Is he in order to disparage the Jubilee Government because of some road in Vihiga?

Order, Sen. Khaniri!

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

Order, Members! You all know that some words are not helpful. Sen. (Dr.) Khalwale, this is your own statement. Do you really want it to get lost in all these?

What is it, Senate Minority Leader? The Senate Minority Leader (Sen. Wetangula) : Mr. Speaker, Sir, I see an attempt by the two distinguished Senators to divert the attention from the question. I was listening very carefully.

The Senator for Kakamega, Sen. (Dr.) Khalwale, made reference to a purported opening of an international border at Lwakhakha in Bungoma by the President on Saturday. This is a border post that was already developed and opened during the Kibaki Regime. President Kibaki sent the late Sen. Otieno Kajwang when he was Minister of State for Immigration and Registration of Persons to open it officially. That is the issue that he referred to as “bure kabisa.”

The words “bure kabisa” are not unparliamentary. That is how I understood it. It is unlikely that Sen. (Dr.) Khalwale would have referred to Sen. Sijeny as “bure kabisa.” It is not possible.

Order, Members! I followed the contribution and want to make it very clear. I may not know whom Sen. (Dr.) Khalwale was addressing when he uttered the words “bure kabisa”, but whoever he was addressing would feel offended. Whether it was Sen. Sijeny or people outside this House, it is not dignified of Sen. (Dr.) Khalwale who in normal circumstances is a very dignified man.

Secondly, even our own Standing Orders do not allow us to mix languages. His assertions were in English and then he summarized in Kiswahili Language. The Senate Minority Leader cannot purport to explain everything for other Senators. I am not sure whether he was listening attentively.

Sen. (Dr.) Khalwale, withdraw those words and proceed.

Mr. Speaker, Sir, it is important that the House understands what carried me. That was the echo of the words of President Kibaki, who launched that project in Lwakhakha. He could have seen us in Lwakhakha opening a project that he launched and said in his mind: “Bure kabisa.” That echoed in my mind.

Mr. Speaker, Sir, I withdraw. I never meant Sen. Sijeny, but the Jubilee Government. Wameshindwa. Wanafanya vitu ambavyo watu wengine walifanya. I withdraw and apologize.

November 18, 2015 SENATEDEBATES

Mr. Speaker, Sir, it is the dignity of this House that is important. We are elected representatives. The language used ‘bure kabisa’ is not a dignified language to use in this House to a Chair of a Committee who belongs to a party as his. He must withdraw and apologise.

Order, Members! You all know that some words are not helpful. Sen. (Dr.) Khalwale, this is your own statement. Do you really want it to get lost in all these? What is it, Senate Minority Leader? The Senate Minority Leader (

Order, Members! We must also appreciate when the Vice Chairperson handles supplementary questions in the most satisfactory manner.

Statement “c” by Sen. Mutula Kilonzo Jnr.

Order, Members! I followed the contribution and want to make it very clear. I may not know whom Sen. (Dr.) Khalwale was addressing when he uttered the words “bure kabisa”, but whoever he was addressing would feel offended. Whether it was Sen. Sijeny or people outside this House, it is not dignified of Sen. (Dr.) Khalwale who in normal circumstances is a very dignified man.

Secondly, even our own Standing Orders do not allow us to mix languages. His assertions were in English and then he summarized in Kiswahili Language. The Senate Minority Leader cannot purport to explain everything for other Senators. I am not sure whether he was listening attentively.

Sen. (Dr.) Khalwale, withdraw those words and proceed.

Mr. Speaker, Sir, it is important that the House understands what carried me. That was the echo of the words of President Kibaki, who launched that project in Lwakhakha. He could have seen us in Lwakhakha opening a project that he launched and said in his mind: “Bure kabisa.” That echoed in my mind.

Mr. Speaker, Sir, I withdraw. I never meant Sen. Sijeny, but the Jubilee Government. Wameshindwa. Wanafanya vitu ambavyo watu wengine walifanya. I withdraw and apologize.

That is why I sought your leave. May I proceed?

November 18, 2015 SENATEDEBATES

Thank you, Mr. Speaker, Sir. This is a request by Sen. Obure on the status of IEBC preparations for the next general elections, including the issue of voter registration. The response is as follows.

The IEBC has a long-term perspective that goes beyond looking at the election as an event, but considers the cyclical nature of the process. The IEBC has already

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

On a point of order, Mr. Speaker, Sir. Whereas I thank the Vice Chairperson of the Committee for the answer he has given, I would like to know the status of preparedness of the IEBC as regards to Bomet County. As far as I am concerned, the register of voters in Bomet has been closed since June, 2013 as a result of an ongoing petition, which up to date---

Order, Senator!

Mr. Speaker, Sir, it is a related question.

That is correct, but you should not have stood on a point of order. This is the time for those related questions. The tradition of the House is that we give the Member who sought the statement the first opportunity.

I am sorry, Mr. Speaker, Sir. I will ask for an opportunity to ask again.

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

On a point of order, Mr. Speaker, Sir. Whereas I thank the Vice Chairperson of the Committee for the answer he has given, I would like to know the status of preparedness of the IEBC as regards to Bomet County. As far as I am concerned, the register of voters in Bomet has been closed since June, 2013 as a result of an ongoing petition, which up to date---

Order, Senator!

Mr. Speaker, Sir, it is a related question.

November 18, 2015 SENATEDEBATES

Order, Sen. Kagwe. I thought you protested just a few minutes ago?

Indeed, I was, Mr. Speaker, Sir.

Proceed.

Mr. Speaker, Sir, Sen. Mutula Kilonzo Jnr. has done very well and I was just praising him.

Mr. Speaker, Sir, I want to seek clarification and disagree with the statement that Sen. Mutula Kilonzo Jnr. has made concerning the preparedness of the IEBC. In Nyeri County, for example, virtually no registration is taking place because the IEBC officials do not even have petrol for the vehicles that they use. In fact, for the past two years, the entire team in Nyeri County that is supposed to be carrying out voter registration has never had any support of any kind. They are basically loitering around doing absolutely nothing. It would be wrong for us to sit in this House and assume that voter registration is going on when there is actually nothing happening.

Mr. Speaker, Sir, I am aware---

Order, Senator! Please, conclude.

November 18, 2015 SENATEDEBATES

Mr. Speaker, Sir, I have heard the IEBC officials talk about being underfunded in the process of voter registration. In their report, they say that the critical processes functions are budgetary and resource allocation. Could the Vice Chairperson

November 18, 2015 SENATEDEBATES

Mr. Speaker, Sir, I would like the Vice Chairperson to clarify the preparedness of the IEBC, basing the facts on the 2013 Elections. This is because the IEBC officials said that some of the constituencies would be digitized in terms of the gadgets to be used, such as the Biometric Voter Registration (BVR) kits and so on.

Could he tell us what has been done since the last elections? In all the by- elections that have taken place, manual systems have been used. We need to be guided so that we avoid new systems being introduced at the eleventh hour when elections are near. What have the IEBC officials done so far? We should experiment systems which they claimed to be in place, to ensure that we have free and fair elections across the country, because that is very vital.

On a point of order, Mr. Speaker, Sir. It would be important for you to clarify our constitutional architecture regarding whether the Executive can control Parliament when it comes to the presidential system. The architecture of the old Constitution allowed you to say “he is a Member of the Government” in the Senate and National Assembly. However, the new architecture makes Parliament, in its totality, an oversight over the Executive. For somebody to say that the CORD is really defending the Government, in my assessment, that person does not understand the architecture of the new Constitution.

Sen. Billow, when I called out your name, you did not rise to speak.

Mr. Speaker, Sir, you then called him and then I lost the chance.

Mr. Speaker, Sir, I have heard the IEBC officials talk about being underfunded in the process of voter registration. In their report, they say that the critical processes functions are budgetary and resource allocation. Could the Vice Chairperson

November 18, 2015 SENATEDEBATES

Mr. Speaker, Sir, I would like the Vice Chairperson to clarify the preparedness of the IEBC, basing the facts on the 2013 Elections. This is because the IEBC officials said that some of the constituencies would be digitized in terms of the gadgets to be used, such as the Biometric Voter Registration (BVR) kits and so on.

Could he tell us what has been done since the last elections? In all the by- elections that have taken place, manual systems have been used. We need to be guided so that we avoid new systems being introduced at the eleventh hour when elections are near. What have the IEBC officials done so far? We should experiment systems which they claimed to be in place, to ensure that we have free and fair elections across the country, because that is very vital.

Vice Chairperson, while I allow you, I would like you to respond to the point of order raised by Sen. Hassan. It is true the responses that we receive are provided by the Committees of this House. It is also true that most of the sources of the responses, of course, are from Government for obvious reasons because they are dealing with the issue. It is, therefore, unfair to characterize one section of the House as this or the other when it comes to dealing with Committees. Do not forget that committees are passed by this House. Committee elections are conducted and the membership of the committees which includes both sides will always agree on who should be the Chairperson and the Vice Chairperson.

I am also encouraged by the fact that literally, in most cases, we have always appointed both the Chairperson and the Vice Chairperson in a most consensus and amicable manner. So, there should not be a basis of doubting their competence when it comes to discharging that mandate that you gave them so willingly and readily.

Proceed, Vice Chairperson.

Mr. Speaker, Sir, I will try my level best to answer the questions. Sen. (Dr.) Machage has asked why new kits are being purchased while the rest are still there. I actually never said that they were going to be purchased. The statement was clear that in the planning process, they were going to redistribute the voter registration kits. That is what they have said. They have not included purchasing other kits. They have also stated that, in fact, this is the process that they intend to undertake in order to audit the status of Information Communication Technology (ICT) and support of the process. I, therefore, assume that after the contemplated registration in November or December 2015, then, they will make a decision as to whether new kits need to be purchased.

Regarding Sen. (Prof.) Lesan’s question, I am actually surprised that in his petition, they ordered the close of the register. I am also aware that his petition was completed, but I am not sure why his petition is related to close of the register and why no order was issued by the Supreme Court to lift the said closure. However, I undertake

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

Mr. Speaker, Sir, my apologies. I am seeking a clarification from the Vice Chairperson on whether it is agreeable to the IEBC to amend the law to allow other documents other than identity cards for registration of voters. This is essential, especially for those of us who come from areas where the Government literally does not issue ID cards any more. Is the IEBC agreeable to other alternative documents to be used, so that we are like Tanzania which registered 22 million voters and they do not have the kind of money that we have in this country?

On a point of order, Mr. Speaker, Sir. This is very involving and delicate matter. The source of a good election and its results starts from registration and ends with the IEBC. Is there any way that we can bring the IEBC Chairperson before the entire House and ask him whether he is capable of doing what is not being done? We heard that some chickens were eaten somewhere!

November 18, 2015 SENATEDEBATES

Order, Members. Although the Vice Chairperson had made an undertaking that he can always come back; but he has put a compelling case why he should not come back next week because there are many other issues that will make his response more comprehensive. He has raised the issue of finance. I would encourage him that, belonging to both parties, a Committee on its own motion can always pursue the matter.

There is also the issue of registration of persons which is related to Statement (f) , you need to reconcile all those. I will invite you to indicate to the Chair when you will be ready as a Committee to furnish the House with the required information.

I have allowed more interventions and a bit of time because I believe this is a very important matter. Interventions made by hon. Members are extremely illuminating. I would also encourage the acting Chairperson and his Committee to continue pursuing the matter. The matter should not end by the time you make a statement to the House; you should pursue the issue. I was wondering when Sen. Musila was trying to understand the word “massive” whether he was putting it also in the same context of the El Nino.

Hon. Members, we are ready to vote; we have quite good number. We are just missing one or two Members. The whipping is going on. As soon as that is achieved, we will move on to the rest of the orders because we will have the numbers to dispose of them.

Let us proceed with Statement (d) . We must also do this one because that is the statement of the Vice Chairperson; he has done a good job for the House and we owe it to him.

Proceed, Sen. Mutula Kilonzo Jnr.

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES RISING INTEREST RATES AND STABILITY OF SMALL BANKS IN THE COUNTRY

Mr. Speaker, Sir, I am ready to issue the statement. I am sure that the hon. Senator is ready to listen because he is a good listener.

The statement that was sought by the Senator for Nyeri, Sen. Kagwe, is on the stability of small banks and the alarming interest rates.

First, he wanted to know specifically the reason for placing Imperial and Dubai Banks under receivership. He also wanted to know what is causing the alarming rising interest rates and what mitigation action the National Treasury is taking to avoid a financial run in the two banks and the action the Ministry is taking to confirm that small banks in the country are stable.

Mr. Speaker, Sir, I have a very brief statement, it is two pages. I would like to very quickly highlight the key areas because the hon. Senator has a copy of the response. We had invited the Governor of the Central Bank of Kenya (CBK) to discuss this matter. There is a very compressive statement that any Member, who is interested, can get.

However, very briefly, on 14th August, 2015, the CBK appointed Kenya Deposit Insurance Corporation (KDIC) as the receiver of Dubai Bank because of capital and liquidity deficiencies of the Bank.

Mr. Speaker, Sir, the recommendation of the KDIC, with regard to Dubai Bank, is that they recommended liquidation as the most viable option given the magnitude of weaknesses at the Bank. On 13th October, 2015, again, the CBK appointed the KDIC as receivers of Imperial Bank Limited following a submission by the board of the Bank regarding fraudulent activities at the Bank that had come to light after the sudden death of the immediate former Chief Executive Officer (CEO) .

Mr. Speaker, Sir, the decision by the CBK to appoint the KDIC as receiver of Imperial Bank was taken to protect the interests of depositors, creditors and members of the public. Before receivership, that bank was medium sized. In fact, it was placed at number 16 out of 41 banks. It had a market share of 1.8 per cent. Therefore, the CBK is working with the corporation towards a quick resolution of the bank and the preference or recommendation is to, if possible, revive the bank.

The two banks were placed under receivership due to factors that were unique to each of the two institutions. It is not a problem; that is systemic within the financial sector. Therefore, there is no risk of affecting all the banks.

Mr. Speaker, Sir, secondly, I should answer the next item which is related to the banks. What mitigation action is the National Treasury taking to avoid a financial run on those banks? Following the announcement of the receivership of Imperial Bank, small and medium sized banks reported panic by their customers who were rushing to withdraw their deposits.

This panic was accelerated by social media rumours and circulation of lists targeting mainly small and medium sized banks. The Central Bank of Kenya (CBK) scaled up communication efforts in the following week and they gave announcements to stem this panic and assure the public that the receivership is due to unique factors at Imperial Bank and they are not systemic across the sector.

November 18, 2015 SENATEDEBATES

Hon. Members, I want to plead with the Chair and Sen. Kagwe that we have gone past 4.00 p.m., and we suspect we can get the numbers for voting if we can defer your interrogation to tomorrow. I direct that statement be the first one to be responded to tomorrow so that the Members can interrogate it further. We will now go to the next Order.

The Senate Minority Leader (Sen. Wetangula) : On a point of order, Mr. Speaker, Sir. I want to seek clarification on the content of the Order Paper. Yesterday, we were dealing with the Presidential Memorandum on two Bills; the Audit Bill and the Procurement Bill. We disposed off the Audit Bill, and Wednesday is a day for voting and we expected that the Memorandum of the President would be given priority to appear on the Order Paper today so that we continue dealing with it.

Mr. Speaker, Sir, yesterday, there were several Division Bills that have been reproduced on the Order Paper. We dealt with Order Nos. 8 and 9 and they ought to be the first in terms of prioritization even from Rules and Business Committee (RBC) where you Chair. I wonder why it is not there today.

Mr. Speaker, Sir, I thank your office and that of the Clerk. They have allowed the Committee on Energy to fly to Makueni tomorrow and interrogate this matter in detail. Therefore, we possibly should allow them to, first of all, do the investigation and then we will have a comprehensive report.

Let us proceed, with Statement (e) . Proceed, Sen. Billow, Chairperson of the Committee on Finance, Commerce and Budget.

November 18, 2015 SENATEDEBATES RISING INTEREST RATES AND STABILITY OF SMALL BANKS IN THE COUNTRY

Mr. Speaker, Sir, I am ready to issue the statement. I am sure that the hon. Senator is ready to listen because he is a good listener.

The statement that was sought by the Senator for Nyeri, Sen. Kagwe, is on the stability of small banks and the alarming interest rates.

First, he wanted to know specifically the reason for placing Imperial and Dubai Banks under receivership. He also wanted to know what is causing the alarming rising interest rates and what mitigation action the National Treasury is taking to avoid a financial run in the two banks and the action the Ministry is taking to confirm that small banks in the country are stable.

Mr. Speaker, Sir, I have a very brief statement, it is two pages. I would like to very quickly highlight the key areas because the hon. Senator has a copy of the response. We had invited the Governor of the Central Bank of Kenya (CBK) to discuss this matter. There is a very compressive statement that any Member, who is interested, can get.

However, very briefly, on 14th August, 2015, the CBK appointed Kenya Deposit Insurance Corporation (KDIC) as the receiver of Dubai Bank because of capital and liquidity deficiencies of the Bank.

Mr. Speaker, Sir, the recommendation of the KDIC, with regard to Dubai Bank, is that they recommended liquidation as the most viable option given the magnitude of weaknesses at the Bank. On 13th October, 2015, again, the CBK appointed the KDIC as receivers of Imperial Bank Limited following a submission by the board of the Bank regarding fraudulent activities at the Bank that had come to light after the sudden death of the immediate former Chief Executive Officer (CEO) .

Mr. Speaker, Sir, the decision by the CBK to appoint the KDIC as receiver of Imperial Bank was taken to protect the interests of depositors, creditors and members of the public. Before receivership, that bank was medium sized. In fact, it was placed at number 16 out of 41 banks. It had a market share of 1.8 per cent. Therefore, the CBK is working with the corporation towards a quick resolution of the bank and the preference or recommendation is to, if possible, revive the bank.

The two banks were placed under receivership due to factors that were unique to each of the two institutions. It is not a problem; that is systemic within the financial sector. Therefore, there is no risk of affecting all the banks.

Mr. Speaker, Sir, secondly, I should answer the next item which is related to the banks. What mitigation action is the National Treasury taking to avoid a financial run on those banks? Following the announcement of the receivership of Imperial Bank, small and medium sized banks reported panic by their customers who were rushing to withdraw their deposits.

This panic was accelerated by social media rumours and circulation of lists targeting mainly small and medium sized banks. The Central Bank of Kenya (CBK) scaled up communication efforts in the following week and they gave announcements to stem this panic and assure the public that the receivership is due to unique factors at Imperial Bank and they are not systemic across the sector.

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

On a point of order, Mr. Speaker, Sir. It is almost a tradition we have created in this Senate that whenever we have not dispensed of any Order the previous day, we literally pull them almost similarly, because if we are trying to put off this Order, particularly on the Presidential Memorandum, it might look like the RBC, - which Senator Wetangula sits in – might be trying to organize business here by giving certain sides of this House the ability to go and regroup and reorganize.

November 18, 2015 SENATEDEBATES

On a point of order, Mr. Speaker, Sir. I thought we were ready yesterday to complete the Presidential Memorandum. However, arising from the issues whereby it needed guidance and directions from the Chair, that is why they are not on the Order Paper because we are waiting for the ruling before we can embark on it.

How do you expect us to continue with Order Nos.8 and 9 of yesterday yet you are the ones who said the Chair deferred it until a ruling is made by the Speaker? So, nobody is being favoured. We were ready to go to the end and I want to assure this House that we are set for those Orders.

- THAT, Clause 5 of the Bill be amended in subclause (2) by inserting the following new paragraph after introductory clause-

November 18, 2015 SENATEDEBATES

-

November 18, 2015 SENATEDEBATES

- THAT, Clause 17 of the Bill be amended in subclause

(1)

by deleting the word “give” appearing immediately after the words “with instructions” in paragraph

(b)

and substituting therefor the word “prescribed.” This is to align it with Clause 16, which provides for the prescription by the Cabinet Secretary of the regulations governing the manner in which the private entities are to report their performance in the implementation of their climate change obligations. This is a small change to enable Clause 17 to concur with Clause 16.

(Question, that Clauses 18, 19, 20, 21, 22, 23, 24, 25, 26, 27,

28, 29, 30 and 31 be part of the Bill, proposed) Clause 32

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

- THAT, Clause 35 of the Bill be amended in subclause

(1)

by deleting the word “may” appearing immediately after the words “Cabinet Secretary” and substituting therefor the word “shall”. Allowing the word “will” or “may” does not give the strength of the law; that this must happen. As currently worded, the provision makes it optional for the Cabinet Secretary to make regulations and hence, there is a possibility that the Cabinet Secretary may take time or fail to make these regulations. By deleting the word “may” and substituting therefor the word “shall,” it makes it mandatory for the Cabinet Secretary to make the regulations.

Mr. Temporary Chairman, Sir, I am concerned. Where there were clauses suggesting that the Cabinet Secretary would draw regulations, our practice has been that there is a timeline for those regulations and they will not come into effect until they are approved by Parliament, which includes the Senate. For clarity, could the Chairperson confirm that Clause 35 includes a deadline and approval of the Parliament before they are published?

November 18, 2015 SENATEDEBATES

- THAT, Clause 17 of the Bill be amended in subclause

(1)

by deleting the word “give” appearing immediately after the words “with instructions” in paragraph

(b)

and substituting therefor the word “prescribed.” This is to align it with Clause 16, which provides for the prescription by the Cabinet Secretary of the regulations governing the manner in which the private entities are to report their performance in the implementation of their climate change obligations. This is a small change to enable Clause 17 to concur with Clause 16.

(Question, that Clauses 18, 19, 20, 21, 22, 23, 24, 25, 26, 27,

28, 29, 30 and 31 be part of the Bill, proposed) Clause 32

Mr. Temporary Chairman, Sir, I have nothing to add.

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

- THAT, Clause 35 of the Bill be amended in subclause

(1)

by deleting the word “may” appearing immediately after the words “Cabinet Secretary” and substituting therefor the word “shall”. Allowing the word “will” or “may” does not give the strength of the law; that this must happen. As currently worded, the provision makes it optional for the Cabinet Secretary to make regulations and hence, there is a possibility that the Cabinet Secretary may take time or fail to make these regulations. By deleting the word “may” and substituting therefor the word “shall,” it makes it mandatory for the Cabinet Secretary to make the regulations.

Mr. Temporary Chairman, Sir, I am concerned. Where there were clauses suggesting that the Cabinet Secretary would draw regulations, our practice has been that there is a timeline for those regulations and they will not come into effect until they are approved by Parliament, which includes the Senate. For clarity, could the Chairperson confirm that Clause 35 includes a deadline and approval of the Parliament before they are published?

Mr. Temporary Chairman, Sir, I do not know if my brother, the Senator for Makueni, would like to make an amendment to this amendment. In practice, we have done this kind of thing in almost all the other laws where clauses suggested that the Cabinet Secretary shall make regulations. Since I had not anticipated this question – and we have been debating about timelines in our Committee - I need to interrogate this document further with regard the timelines for making regulations and coming to effect of the law. This is something we can interrogate together with my learned Senator, Kanyanya. The Temporary Chairperson (

- THAT, Clause 2 of the Bill be amended in the definition of the word “Cabinet Secretary” by deleting the words “Cabinet affairs” appearing immediately after the words “responsible for” and substituting therefor the words “matters relating to climate change”. During the drafting of this Bill, I think that they erroneously put “Cabinet Secretary” in charge of “Cabinet affairs” which, of course, does not apply in this Bill. We corrected that to “Cabinet Secretary in charge of matters relating to Climate Change” because we do not know how the Ministries will be referred to in the future.

Temporary Chairperson

(Sen. (Dr.) Machage)

: I propose that the Title and

Clause 1 be part of the Bill.

I order that the Division Bell be rung for five minutes

Hon. Senators, do we have the numbers?

I can get more Senators. Temporary Chairperson (Sen. (Dr.) Machage) : Please, go and call more Senators.

Ring the Division Bell for another minute.

November 18, 2015 SENATEDEBATES

Hon. Chairman, Sir, I beg to move that the Committee do report progress to the Senate on its consideration of the Climate Change Bill, (National Assembly Bill No.1of 2014) and seek leave to sit again tomorrow.

Mr. Temporary Chairman, Sir, I have nothing to add.

Mr. Temporary Chairman, Sir, I am a little concerned on a procedural issue. In terms of format, ideally, New Clause 25 (a) should have come before Clause 32. Temporary Chairperson (

You are now being disorderly. Shall we proceed?

November 18, 2015 SENATEDEBATES

Mr. Speaker, Sir, I beg to report progress that the Committee of the Whole has considered The Climate Change Bill, (National Assembly Bill No.1 of 2014) and seeks leave to sit again another time.

Mr. Deputy Speaker, Sir, I beg to move that the House do agree with the Committee on the said reports.

Sen. Obure seconded.

The Senate Minority Leader (Sen. Wetangula) : This is a very important Bill which was moved by the Senate Majority Leader. At the time we went to the Committee, the House had enough delegations. Now, as we report progress, it is a clear indication of our lack of collective commitment to what we should be doing in this House.

I want to put it on record that we have lobbied even up to the Members lobby. The Majority Leader was also there. We requested him to make sure we have enough delegations. He is not even here. These are Bills that are so critical to move our country forward that we should not be procrastinating on this.

I want to urge the Deputy Majority Leader to try and style up his side of the House. You can see our side is adequately constituted for the business of the day. You look across the Floor, there are three heads of delegations and one proxy Member, which is not right at all.

On a point of order, Mr. Deputy Speaker, Sir. I stand on a point of order to seek some clarification from you as the Chair. I do not know who Sen. Wetangula refers to when he says “proxy.”Every time he is on his feet, he speaks about having Members who are proxy. Please, I need some clarification from you.

Order. Sen. Chelule, which word did you use? Proxy? Sen. Wetangula, what do you have to say?

The Senate Minority Leader (Sen. Wetangula) : Mr. Deputy Speaker, Sir, what I said, and if it offends my distinguished colleague, it is unfortunate, “proxy” in English means a representative of another. Under the Constitution, the head of delegation of Nakuru is Sen. Mungai. When he is here, he votes, and when he is not here, you vote on behalf of the delegation and, therefore, you become a proxy vote.

A proxy is a representative; it is not an offensive term at all. The distinguished Senator for Kajiado is a head of delegation, so is Kirinyaga, Embu and Kericho. You walk in the shadow of the head of delegation.

Order! Sen. Wetangula. You know you are the Leader of the Minority, you hold a very senior position in this House.

I have said this in the past that the Chair is not asking too much in asking you to respect your colleagues. If you refer to Article 123 of the Constitution and the Standing Orders, it talks about the nominee designated by the head of delegation. If a Member takes offence by being called a proxy, why is it difficult to use the correct term which is nominee? The Constitution talks of the nominee. That settles the issue.

November 18, 2015 SENATEDEBATES

Mr. Deputy Speaker, Sir, I support what the Senate Minority Leader talked about. The manner in which we conduct the proceedings of this House is disappointing. Bills which have been initiated by the Senate Majority Leader have stalled because he is not here to ensure completion of the passage of those Bills. We are setting a bad precedence for the Senate.

I urge my colleagues that we should take the business of the Senate seriously. It is frustrating when we have a list of Bills which have been on the Order Paper for long awaiting voting. It is shameful to us. Each of us has a duty to examine his or her conscience about the business of this House.

Thank you.

- THAT, Clause 2 of the Bill be amended in the definition of the word “Cabinet Secretary” by deleting the words “Cabinet affairs” appearing immediately after the words “responsible for” and substituting therefor the words “matters relating to climate change”. During the drafting of this Bill, I think that they erroneously put “Cabinet Secretary” in charge of “Cabinet affairs” which, of course, does not apply in this Bill. We corrected that to “Cabinet Secretary in charge of matters relating to Climate Change” because we do not know how the Ministries will be referred to in the future. (Question of the amendment proposed) Temporary Chairperson (

This is not an issue I wish to protract. The point has been made and I do not think by entertaining more points of order, we will help the situation. The Senate Minority Leader, the Senate Deputy Majority Leader and Sen. Obure have all put it clearly the need to take the business of the House seriously. By the time we went to the Committee of the Whole, there were enough delegations but when we came back, we had inadequate numbers.

We would have finished with this issue but it appears that progress has been reported and that will have to remain at that. You are here and I cannot tell you how badly you have done because it will be castigating the wrong persons.

We must take the business of the House seriously. Otherwise, as you noticed, the next four or five orders on the Order Paper will have to be deferred because they are divisions and it will be futile to vote when there is no threshold to vote. The point is well taken.

Mr. Deputy Speaker, Sir, I hear you well on the issue and I appreciate what you have said but that is the situation we have found ourselves in and there is nothing the Chair can do. It is an issue of whipping. I saw Sen. Keter doing everything he could to get the numbers in the House. He did well and I must commend that. I saw other Members from the minority side making every effort to whip. When it is done, we appreciate but unfortunately, we have not reached the threshold and we have to leave it at that for now.

I propose that the Title and Clause 1 be part of the Bill. (Question, that the Title and Clause 1 be part of the Bill, proposed) I order that the Division Bell be rung for five minutes (The Division Bell was rung) Hon. Senators, do we have the numbers?

I can get more Senators. Temporary Chairperson (

I have stressed like you have stressed, the importance of taking the Business of the House seriously. I cannot say anything more than that because I cannot possibly tell where the other Members are. It will be pursuing a futile route.

Please, go and call more Senators. Ring the Division Bell for another minute. (The Division Bell was rung)

November 18, 2015 SENATEDEBATES

Hon. Chairman, Sir, I beg to move that the Committee do report progress to the Senate on its consideration of the Climate Change Bill, (National Assembly Bill No.1of 2014) and seek leave to sit again tomorrow.

Well, I could not make that announcement myself, could I? The Senate Minority Leader (

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

Is it on something else, Sen. Wetangula?

The Senate Minority Leader (Sen. Wetangula) : Mr. Deputy Speaker, Sir, so that we make our tomorrow’s load lighter and vote on all the Bills that are ready, could we deal with Order No. 13, since the Chairman of the Committee is here? We could go through the Committee of the Whole process and postpone voting to tomorrow, so that when we vote on the rest, as proposed by Sen. Wako, Order No. 13 will be part of those.

Otherwise, tomorrow, we may vote on the rest---

Sen. Wetangula, I have done consultations on the issue. Therefore, I made the ruling with my eyes open. Therefore, we shall move to Order No. 14.

The Senate Minority Leader (Sen. Wetangula) : But the Chairman is here.

Mr. Speaker, Sir, when you go to House of Commons, a hooded person comes and says: “Mr. Speaker, hats off Strangers”. Then they give way for Mr. Speaker.

You are now being disorderly. Shall we proceed?

November 18, 2015 SENATEDEBATES REPORT

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

This is a very important Bill which was moved by the Senate Majority Leader. At the time we went to the Committee, the House had enough delegations. Now, as we report progress, it is a clear indication of our lack of collective commitment to what we should be doing in this House. I want to put it on record that we have lobbied even up to the Members lobby. The Majority Leader was also there. We requested him to make sure we have enough delegations. He is not even here. These are Bills that are so critical to move our country forward that we should not be procrastinating on this. I want to urge the Deputy Majority Leader to try and style up his side of the House. You can see our side is adequately constituted for the business of the day. You look across the Floor, there are three heads of delegations and one proxy Member, which is not right at all.

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

Thank you Mr. Temporary Speaker, Sir. I rise to second this Bill.

At the first instance, I would like to thank Sen. Hassan for this monumental Bill that seeks to implement and enforce Article 43 of the Constitution. For the avoidance of doubt, I want to read Article 43 and highlight why this Bill is extremely important for this Republic.

Before I do so, under Article 2 (6) of the Constitution, the Constitution has incorporated into law all those treaties that we have signed internationally and made them part of the law. In the little research we have done, it has emerged that Kenya signed the Treaty on Economic Organization and International Covenant on Social and Cultural Rights in 1972. It has taken us all those years since 1972 to incorporate the rights that are contemplated in this Treaty in which we are a signatory, into Article 43.

Mr. Temporary Speaker, Sir, why is it that although this article falls under the Bill of Rights and can be enforced under Articles 22 and 23, the question that begs is: Why then do we need an Act of Parliament? Although these rights are granted expressly in the Constitution and these rights under the Bill of Rights are what we call in law “inherent rights”, it means the minute a Kenyan is born, that child has a right to education. It is not

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

Mr. Temporary Speaker, Sir, thank you for giving me this opportunity to comment on this Bill. I wish to commend and thank Sen. Hassan for

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

Mr. Deputy Speaker, Sir, since we record everything we say here, you heard Sen. Keter mislead the House that there can be other important business. Is he in order because flying to The Hague cannot be more important than the business of the House?

I have stressed like you have stressed, the importance of taking the Business of the House seriously. I cannot say anything more than that because I cannot possibly tell where the other Members are. It will be pursuing a futile route.

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES THE COUNTY GOVERNMENTS DISASTER MANAGEMENT BILL (SENATE BILL N O.40 OF 2014) THE KENYA NATIONAL EXAMINATIONS COUNCIL (AMENDMENT) BILL (SENATE BILL NO.7 OF 2015)

(Bills deferred)

November 18, 2015 SENATEDEBATES

Is it on something else, Sen. Wetangula? The Senate Minority Leader (

Mr. Deputy Speaker, Sir, so that we make our tomorrow’s load lighter and vote on all the Bills that are ready, could we deal with Order No. 13, since the Chairman of the Committee is here? We could go through the Committee of the Whole process and postpone voting to tomorrow, so that when we vote on the rest, as proposed by Sen. Wako, Order No. 13 will be part of those. Otherwise, tomorrow, we may vote on the rest---

Sen. Wetangula, I have done consultations on the issue. Therefore, I made the ruling with my eyes open. Therefore, we shall move to Order No. 14. The Senate Minority Leader (

But the Chairman is here.

He is here but we shall move to Order No.14. I have already ruled on that.

Second Reading

Mr. Deputy Speaker, Sir, I beg to move that The Prevention of Human Dignity and Enforcement of Economic and Social Rights Bill (Senate Bill No.8 of 2015) be now read a Second Time.

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

Thank you Mr. Temporary Speaker, Sir. I rise to second this Bill.

At the first instance, I would like to thank Sen. Hassan for this monumental Bill that seeks to implement and enforce Article 43 of the Constitution. For the avoidance of doubt, I want to read Article 43 and highlight why this Bill is extremely important for this Republic.

Before I do so, under Article 2 (6) of the Constitution, the Constitution has incorporated into law all those treaties that we have signed internationally and made them part of the law. In the little research we have done, it has emerged that Kenya signed the Treaty on Economic Organization and International Covenant on Social and Cultural Rights in 1972. It has taken us all those years since 1972 to incorporate the rights that are contemplated in this Treaty in which we are a signatory, into Article 43.

Mr. Temporary Speaker, Sir, why is it that although this article falls under the Bill of Rights and can be enforced under Articles 22 and 23, the question that begs is: Why then do we need an Act of Parliament? Although these rights are granted expressly in the Constitution and these rights under the Bill of Rights are what we call in law “inherent rights”, it means the minute a Kenyan is born, that child has a right to education. It is not

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

Mr. Temporary Speaker, Sir, thank you for giving me this opportunity to comment on this Bill. I wish to commend and thank Sen. Hassan for

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

Mr. Temporary Speaker, Sir, I rise to support this Bill proposed by my dear friend, Sen. Hassan. Sen. Hassan has made us proud. I have always said that the Constitution of the Republic of Kenya lays down broad principles of governance and provides in certain instances specific provisions for institutions that should be established for realising the principles in the Constitution, the goals and objectives on democratic governance and the developmental outcomes from this democratic governance as enshrined in our Constitution.

In many articles in the Constitution, there is usually a refrain that Parliament shall make legislation to implement these provisions.

Mr. Temporary Speaker, Sir, the Bill of Rights is specific with no doubt whatsoever under economic rights in Article 43. What is intended is not to make this article look good in the Constitution so that we say that we have a Constitution in which the Bill of Rights; social and economic rights are enshrined, but it gives the State an obligation to do certain things.

For example, it tells the State that every Kenyan citizen or person has the right to the highest attainable standard of health. This includes the right to healthcare services, including reproductive healthcare.

Mr. Temporary Speaker, Sir, a Kenyan citizen – like it happened recently where a Kenyan was denied healthcare – can go to court and say that the Constitution gives him or her the right and they have not been granted. Therefore, they can hold the State responsible for not making it possible for them to access the right. The State can turn around and say that it provided for the right in the Constitution, but legislation has not been established to ensure that, that right is fulfilled.

Rather than wait for the State to have that excuse, Sen. Hassan wants to ensure that there is a law not only establishing an institution for making sure that these rights are implemented, but also giving that institution the responsibility to monitor and oversight the two levels of Government which are responsible for implementing these rights in Article 43.

Mr. Temporary Speaker, Sir, what is very impressive about Sen. Hassan’s Bill is that it proposes how to arrive at evidence-based policy making and planning at both levels of Government. That will give the Government the opportunity to make choices based on proper planning, but not on mere imagination. As a planner, it is important to understand that when you plan, you plan to make it possible for certain critical choices to be made. The choices cannot be made without evidence on how they have to be made.

Let me give an example of what I mean. Clause 11 of this Bill states that a county government shall, for the purpose of preparing its county strategic plan---. By the way, the Bill has already said that the county strategic plan will incorporate how these rights shall be taken into account by the county. In other words, no plan which does not contain the economic and social rights that every Kenyan is entitled to according to the Constitution will be brought to this House for approval.

Clause 11 states that:- “A county government shall, for the purpose of preparing its county strategic plan, carry out a baseline survey in order to determine the following:

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES

Order, Senator. Your time is up. Sen. Orengo!

Mr. Temporary Speaker, Sir, I congratulate my brother, Sen. Hassan, for moving this Bill. It is unique in many ways because soon after Independence, those who fought for it, including the likes of the late Mzee Kenyatta in Kenya and the late Nyerere in Tanzania and even the late President Nkurumah in Ghana said that on attainment of Independence, our principal role was not now the normal business of politics or fighting on the platform of freedom or human rights.

For that matter, there are many African nations which stated that this new beginning was so demanding and there was no time to achieve many of the desires of other people or stakeholders who were fighting simply for democratic space and human rights. But for them, the subject of the day was the struggle against poverty, illiteracy or ignorance and provides health to the ordinary people. In fact, I can say that there were some countries which I would not want to mention that totally ignored the Bill of Rights and cared not to have the Bill of Rights in their written constitutions.

Mr. Temporary Speaker, Sir, therefore, if I go back to the beginning, it looks like this Bill is a restatement of what some of our founding fathers were saying that we need a fairer society, a more friendly and caring society in which education, health and shelter was available to the common citizenry even before talking about what I normally refer to as the fundamental human rights that include the freedom of expression, assembly and others. That argument was used to roll back the major achievements that we had gallantly fought for including the multi-party system which was fought on this basis.

Principally, it had very little time to deal with common politics that the business of the day was providing health and getting rid of illiteracy to our people. What happened subsequently was that neither was freedom nurtured but even the provisions of these services were never given by the nations that emerged after the struggle for Independence.

Mr. Temporary Speaker, Sir, there was a famous writer who wrote about the false start in Africa. In all directions, Africa was getting everything wrong. This Bill reminds me of the struggles that were going on in the 19th century. There was a famous Prime Minister in England known as Benjamin Disraeli

. He was not only a politician but also a writer who wrote so many novels including the “Sybil”. Its other subtitle was called “The Two Nations”. His concern was that at the time when England was enjoying

November 18, 2015 SENATEDEBATES

November 18, 2015 SENATEDEBATES