Wednesday, 4th December, 2019

Order, Senators. I would like to acknowledge the presence of a delegation from the Kilifi County Assembly, who are seated in the Speaker’s Gallery.

The delegation consists of Members of the Joint Sectoral Committee on Administration, Labour and Social Services, and the Committee on Culture, Public Entertainment and Amenities.

The delegation is undertaking an exposure visit on the mandate and operations of the Standing Committee on Labour and Social Welfare, and the general functions of parliamentary committees.

I request each Member of the delegation to stand when called out, so that you may be acknowledged in the Senate tradition.

They are -

Proceed, Sen. Olekina. Okay, he does not have a card.

Proceed, Sen. Madzayo.

Asante, Bw. Spika. Kwanza ninakushukuru sana kwa sababu ya makaribisho yako mema kwa ndugu zangu kutoka Kilifi, ambao wanaongozwa na Mhe. Kadenge, akiwemo Kamlesh na wale ndugu zangu wote walioko kule juu. Nakuunga mkono na kukushukuru sana kwa makaribisho haya.

Jambo la pili ni kwamba, niko na imani kwamba yale ambayo wamekuja kujifundisha hapa ndani ya Seneti – kujua kanuni na jinsi gani kazi inavyoendelea ndani ya Seneti – wakirudi nyumbani, watakuwa wamejifundisha. Wakiwa wamejifundisha na kuelewa, basi wakirudi kwao, pia wataweza kutekeleza wajibu wao ambao walichaguliwa na watu mashinani ili waweze kuwasaidia ndani ya County Assembly.

Vile vile, natumai kwamba wale wafanyikazi wataweza kupata nafasi kwenda katika ofisi mbalimbali ndani ya Seneti, na kuweza kujifundisha.

Bw. Spika, kitu muhimu ambacho nawaeleza ndugu zangu, wakiwa hapa ni kwamba, ile Ripoti ya Building Bridges Initiative (BBI) ikija kwao, inatakikana kila mtu apate nafasi aipitie, aisome na aielewe. Ikiwa kuna vipengele fulani ambavyo mngependelea pengine virekebishwe ama muweze kuweka kanuni zenu pale ndani, ili kanuni zenu ziweze kusiskika, tuko na “baba” yetu hapa, Mhe. Haji, ambaye ni Seneta na Mwenyekiti wa hiyo Tume ya BBI.

Bw. Spika, nakushukuru sana kwa makaribisho hayo. Natumai kwamba watu wa Kilifi wamefurahi sana. Kumalizia, tutakapochukua Seneti Mashinani mwaka ujao, watu wa Kilifi wameniambia ya kwamba nikuombe kwamba Seneti Mashinani mwaka ujao iwe ndani ya Kaunti ya Kilifi.

Asante, Bw. Spika.

Basi, naona kwamba Delegation ya Kilifi iko na marafiki wengi sana katika Maseneta, kwa sababu naona kwamba wengi wao wanataka kuwakaribisha. Kwa hivyo, mtazungumza kwa kifupi ili nyote muweze kupata nafasi.

Sen. Olekina.

Bw. Spika, nakushukuru kwa kunipa nafasi hii ili pia mimi niweze kukuunga mkono na rafiki yangu, Sen. Madzayo, katika kuwakaribisha Delegation kutoka Kilifi. Yangu yatakuwa ni machache.

Ningependa kuzingatia mambo mawili; kwanza, ni kuwahakikishia kwamba kweli, mko na shujaa hapa, ambaye anawatetea watu wa Kilifi. Yeye ni rafiki yangu ambaye tunaketi pamoja, Sen. Madzayo.

La pili ni kwamba, maneno ya mazingira ni maneno ya muhimu sana. Ningependa kuwasihi muyatilie maanani, kwanza ikiambatana na ule Mto wa Sabaki. Mara kwa mara, watu wanavamia ule mto na kutoa mchanga wa kujengea nyumba na kuharibu mazingira. Ninapajua pale kwa sababu niko na shamba ndogo kule. Kwa hivyo, lazima mtilie maanani na mpitishe sheria ambazo zitahifadhi mazingira yetu.

Ni vizuri kwamba mmekuja hapa ili muweze kuchambua Kanuni na maadili ya Seneti. Kwa hivyo, mkirudi Kilifi, mtawaelezea watu yale mmeona Kamati za Seneti zikifanya. Mambo ambayo inapitishwa na Kamati iko na nguvu katika Katiba ya Kenya.

Ninawasihi mchambue Ripoti ya Building Bridges Initiative (BBI) na mjiulize kama watu wa Kilifi, ni mambo gani ambayo yamewakera kwa muda mrefu na mko na suluhu gani. Tumeona ya kwamba, kuna shida ndio maaana tunasema hiyo Ripoti haikutufurahisha. Kwa hivyo, ni lazima tutatoa maoni yetu ikipeleke Kenya mbele.

Asante, Bw. Spika, kwa kunipa nafasi hii. Ninajiunga na wenzangu kuwakaribisha ndugu zangu kutoka Kilifi. Nimefanya kazi na kuishi na watu wa Kilifi vizuri. Mtoto wangu ambaye ni Director of Public Prosecution (DPP) alizaliwa Kilifi.

Asante sana Bw. Spika kwa kunipa fursa hii ili niweze kuwakaribisha Waheshimiwa kutoka Kaunti ya Kilifi. Ninawakaribisha ili waweze kuona vile Seneti inaendesha kazi yake katika Bunge letu.

Ninawasihii Waheshimiwa kwa sababu hao ndio jicho letu katika kaunti zote 47 ambazo zinawakilishwa na Seneta mmoja ndani ya jumba la Seneti. Kwa hivyo, ninawakaribisha ili muone tunavyoendesha shughuli za Bunge.

Mko na bahati kuwa na Seneta ambaye ni jaji mstaafu katika Serikali yetu ya Kenya, Sen. Madzayo. Mara nyingi, yeye husimama kidete kuwatetea watu wa Kilifi.

Thank you, Mr. Speaker, Sir. I join my colleagues in welcoming the County Assembly of Kilifi which is doing a good job especially in healthcare systems within the county. That is also through our colleague, the Senator for Kilifi. We have worked well with him in the last and current Senate and he is up to the task to steer the county government of Kilifi.

The Governor of Kilifi is also doing a good job. Recently, we have been to Kilifi on a mission to look at how the Managed Equipment Scheme (MES) is functioning. The county has done well to ensure that the equipment serves the people. However, we found a problem in Malindi. I am sure that the Chairperson of the Committee on Health will look into that and ensure that the power strength that is required for the equipment and a

radiographer for MRI is fixed. That is what is outstanding. Otherwise, the Kilifi team is doing a good job. I encourage them to do more.

We are praying for our brother, Sen. Madzayo. He is up to the task and will make sure that he steers the County of Kilifi come 2022 as a governor.

Thank you, Mr. Speaker, Sir. I join you in welcoming the delegation from Kilifi County. I thank them for being here this afternoon. This is the right place which has men and women of virtue who are respected in the Republic of Kenya.

It is my prayer that you spend your time in the Senate well so that you go back and empower the people of Kilifi County. We thank you for your wisdom of electing leaders, for example, my colleague, Sen. Madzayo and Gov. Kingi who are great men of this nation.

‘Baba’ might not be in this House but he is represented through our voices. Therefore, we want the people of Kilifi to know that ‘baba’ allows people to read and understand the BBI for themselves so that when the time comes, they can have their input and prosper this country.

We thank you for supporting ‘baba’ for years. We do not take it for granted.

Thank you, Mr. Speaker, Sir. I will not attempt to speak Kiswahili because mine is not advanced. I join you in welcoming the delegation from Kilifi.

The wage bill is high in most of the counties. It is supposed to be a maximum of 35 per cent but most counties have exceeded it. Therefore, I urge the County Assembly of Kilifi and other county assemblies to be vigilant about the wage bill.

We all know that devolution works and has brought services closer to the people. However, there is the element of corruption that makes our counties not to deliver. The county assembly understands where their funds go to and whether development has been delivered to the county. Therefore, your electorate will judge you based on that. We want to totally bring down this monster called corruption. So, we expect you to diligently follow up on issues of corruption.

The issue of pending bills is also coming up and is making small business men and women to lose their businesses. I went to school with one person from Kilifi and she told me that mechanics, who have a small amount of capital, have not been paid by the County of Kilifi. So, I urge you to look at these issues and make sure that businesses thrive. Without this, the county government will not have enough money to pay you. You should follow up on such things.

Thank you, Mr. Speaker, Sir, for giving me this chance to welcome the Members of the County Assembly (MCAs) of Kilifi who have come to benchmark in the Committee on Labour and Social Welfare. I thank them for choosing to benchmark with our Committee which is one of the most powerful Committees in the Senate and has done a lot of work.

I also thank them for choosing the powerful Sen. Madzayo together with Gov. Kingi. We recently visited Kilifi County as the Committee on Labour and Social Welfare and we managed to interact with the governor and the Senator who are doing a good job.

As Senators, we play an important role to oversight counties in terms of management of both finance and human resources. Therefore, we encourage you, as the

first point of contact to ensure that human resource is managed. This is because any county with the best human resource will deliver.

Mr. Speaker, Sir, in addition, we have discovered that most of the counties are grappling with the issues of corruption and unpaid bills. I encourage the MCAs throughout the country to perform their oversight role to ensure that citizens get value for money.

The Senate is working hard to increase allocation of resources to the counties. Part of the Senate’s proposal to the BBI Report is the increase of funds to counties. However, more resources to the counties will go to waste if they are not well managed. I urge the MCAs from Kilifi County to manage the resources of the county well so that the county develops.

Mr. Speaker, Sir, some of the Senators in this Chamber were MCAs before. I believe that the MCAs from Kilifi have the capacity to serve as Senators as well. I hope that some of the MCAs will be Members of this House or the National Assembly in the next Parliament.

I thank you.

Mr. Speaker, Sir, I thank you for giving me the opportunity to join you in welcoming the MCAs from Kilifi County. I would like to inform the MCAs that Sen. Madzayo is their defender in this House because he is very keen on issues that concern Kilifi County. Sen. Madzayo is a true representation of Kilifi County because he is keen on coming up with policies and legislation that benefit not only Kilifi County but the entire nation.

I encourage the MCAs of Kilifi County Assembly to take interest in oversight because they are well rooted on the ground. It is prudent for them to visit project sites to assess what is taking place. Absorption of funds in the counties should be equivalent to the development taking place in the counties.

Hon. Senators, kindly consult in low tones.

Mr. Speaker, Sir, the MCAs should also be engaged in public participation. Sometimes, the local ‘mwananchi’ is not aware of what is happening, but the MCAs can give them true information. I encourage the MCAs to come up with a development agenda for their counties which will help them in resource management and assessment of their goals.

I thank you.

Next order.

I cannot see the Chairperson of the Committee on Roads and Transportation, so the report on the consideration of the Petition to the Senate on delayed compensation by National Land Commission to land owners affected by the construction of Eldoret Town Bypass Road Project in Uasin Gishu County is deferred.

Next order. Hon. Senators, I cannot see the Chairperson of the Committee on Roads and Transportation, so we defer the laying of the Papers.

The Chairperson of the Committee on Roads and Transportation has just walked into the House. Therefore, for the convenience of the House, we shall go back to Papers.

Clerk-at-the-Table, kindly read out the Order.

Mr. Speaker, Sir, I beg to lay the following Paper on the Table of the Senate today, Wednesday, 4th December, 2019.

Next order.

Mr. Speaker, Sir, I beg to give Notice of the following Motion:-

THAT, the Senate adopts the reports of the Standing Committee on Roads and Transportation on the visit to the Malaba International Border Point (OSBP) and the inspection visit and familiarization of the Kibwezi-Athi-Mutomo-Kitui Road Project in Kitui County laid on the Table of the Senate on Wednesday, 4th December, 2019.

Next order.

Mr. Speaker, Sir, I rise, pursuant to Standing Order No.48 (1) to seek a Statement from the Standing Committee on Roads and Transportation concerning stalled road projects in Nandi County.

In the Statement, the Committee should explain why:

Sen. Cherargei, you are confusing your Statement with a lot of things that are irrelevant.

No, I am just concluding.

Do not introduce BBI through the backdoor.

Mr. Speaker, Sir, I was just making final remarks. If you read the BBI Report, some of the complaints include stalled projects. I was just mentioning in passing that the goodness is that we have the Chair of---

Sen. Kabaka, what is your intervention?

Thank you, Mr. Speaker, Sir. Yesterday, Sen. Cherargei moved from prison to this Senate and he raised his hands and said:

“To all Kenyans, I am going to keep peace.” So, he is now taking advantage, yet he is also the Chairman of the Committee on Justice, Legal Affairs, and Human Rights. Sen. Cherargei is a converted man and it is good to give him latitude of time to encapsulate all those issues.

What is your point of order?

“To all Kenyans, I am going to keep peace.” So, he is now taking advantage, yet he is also the Chairman of the Committee on Justice, Legal Affairs, and Human Rights. Sen. Cherargei is a converted man and it is good to give him latitude of time to encapsulate all those issues.

Sen. Cherargei, can you conclude?

Sen. Cherargei, can you conclude?

Mr. Speaker, Sir, I would want to encourage colleagues to read the BBI Report. I was just mentioning what I have read; that we have a problem of stalled projects. The Government of course---

Mr. Speaker, Sir, I have been in this House for quite a few years now. The practice and convention is that when a Member is making a Statement request, the Member shall read out the Statement and the Member shall wait for the relevant Chair to commit on when the Statement shall be dealt with.

A Member cannot be on his feet reading a Statement, debating that Statement and introducing matters of jail, BBI and all sorts of peripheral matters.

Mr. Speaker, Sir, is the Senator for Nandi in order?

Order, Members. The Senator for Nandi is out of Order. You should have only read your Statement. I just gave you some latitude which you are now overstretching. You just need to read your Statement and let other people contribute.

Sen. Cherargei, are you through?

Order, Members. The Senator for Nandi is out of Order. You should have only read your Statement. I just gave you some latitude which you are now overstretching. You just need to read your Statement and let other people contribute.

Sen. Cherargei, are you through?

Mr. Speaker, Sir, I was just assisting my friend the Chairperson of the Committee on Roads and Transportation to look to other sources of information so that they can revive the stalled road projects across the country.

I assure the House that I am a peace-loving leader. Despite the fact that I am being politically persecuted, I know we shall overcome.

I thank you.

Mr. Speaker, Sir, I was just assisting my friend the Chairperson of the Committee on Roads and Transportation to look to other sources of information so that they can revive the stalled road projects across the country.

I assure the House that I am a peace-loving leader. Despite the fact that I am being politically persecuted, I know we shall overcome.

I thank you.

Mr. Speaker, Sir, the road from Misikhu-Ndalu-Brigadier which is in Bungoma where you and I come from is stalled. The road from Musikoma-Nambacha-Navakholo- Kakamega is also stalled. The road from Musikoma-Tumunga-Busia is stalled. The road from Kamukuywa-Kapsakwony-Namwela is stalled.

Could the Chairperson of the Committee bring a complete list to this House of all stalled road projects that were recklessly launched on the eve of election time, to dupe Kenyans to vote for Jubilee and after elections all the sites were abandoned? There is no road construction going on, to the chagrin of wananchi.

Mr. Speaker, Sir, the road from Misikhu-Ndalu-Brigadier which is in Bungoma where you and I come from is stalled. The road from Musikoma-Nambacha-Navakholo- Kakamega is also stalled. The road from Musikoma-Tumunga-Busia is stalled. The road from Kamukuywa-Kapsakwony-Namwela is stalled.

Could the Chairperson of the Committee bring a complete list to this House of all stalled road projects that were recklessly launched on the eve of election time, to dupe Kenyans to vote for Jubilee and after elections all the sites were abandoned? There is no road construction going on, to the chagrin of wananchi.

Proceed, Sen. Olekina.

Mr. Speaker, Sir, I rise to support the Statement raised by Sen. Cherargei. I would like to request the Chairperson of the Committee on Roads and Transportation that while he is getting responses to the Statement raised by Sen. Cherargei, to include the road from Mai Mahiu to Narok. The contractor who has been given that road has decided to reduce the width of the road.

When you are driving on that road, if you have a big truck, another truck is approaching and for some reason you lose control, you will end up causing a very bad accident. The contractor building that road has decided to reduce the road on the left side by five feet and on the right side by five feet. I would really request that the Chairperson takes that matter seriously.

I actually called the Cabinet Secretary (CS) who assured me that he was going to look into that issue because this is a very serious crime.

Corruption is finding its way in many ways. We used to hear of people who were given the contract to build the Thika Superhighway and the money which was spent in building that Thika Superhighway could have actually built two or three Thika Superhighways. Whatever is happening now by reducing the size is really not right.

I support and I hope that the Chairpesons have noted that.

Asante Bw. Spika. Pia mimi ninataka kumshukuru ndugu yetu Sen. Cherargei kwa kurudi na kuamka leo vizuri akitoka nyumbani kwake.

Jana alikuwa mahabusu. Karibu sana ndugu yangu. Vile vile, nilikuwa nataka kusema ya kwamba, katika hilo swala ambalo limeulizwa kuongezwe; ni lini ile barabara ya kutoka Mombasa hadi Malindi itamalizika. Kwanza ile sio barabara. Ni barabara ambayo inasafirisha watalii wengi, lakini utaona kwamba, ile barabara imeachwa ni kama pwani sio Kenya.

Kwa hivyo, mimi ninataka kujuwa ni lini; hasa kile kipande cha kuanzia pale Mtwapa mpaka kule mwisho wa weigh bridge; ni kipande cha mita 300. Utashangaa kwa sababu inachukuwa masaa mawili, mawili na nusu au matatu kuvuka pale katikati. Unaweza kutafakari kwamba, masaa matatu ama mawili na nusu kupita kiwango cha mita 300 pekee yake. Hiyo imeleta shida kubwa sana. Hata afadhali ingewachwa vile ilivyokuwa kuliko kuiharibu mkisema kwamba mtatengeneza halafu haitengenezwi. Hilo ni swala ambalo nilikuwa ninataka liwekwe kupaumbele.

Bw. Spika jambo la mwisho ni, ile barabara ya kutoka Kilifi hadi Bamba. Mheshimwa Rais alikuja akasema ya kwamba hii barabara ya kutoka Kilifi mpaka Bamba itafanywa na hata akaimba nyimbo kwamba safari ya bamba ni machero. Aliimba nyimbo ya kigiriama hata mimi nikashangaa. Lakini ninataka kuuliza; tangu Rais aseme hivyo, wale watu wanambwaga Rais ni wale watu ambaao wanamfanyia kazi; mawaziri wake.

Kwa hivyo, mimi ninataka mwenyekiti wa mambo ya barabara ndani ya Seneti aweze pia kunakili na kujuwa hii barabara ya kutoka Kilifi mpaka Bamba itaanzishwa lini na itamalizwa lini, kadri ya vile Rais wa Jamhuri ya Kenya alivyoamrisha.

Asante sana.

Thank you, Mr. Speaker, Sir, for giving me a chance to also contribute to the roads debacle in the entire country. I used to think that it was only Turkana that has these problems but now I realize that the entire country is having these unfinished projects.

In the case of Turkana, I would like to say that - I know places like Misikhu, Ndalu and all those places, but I do not know the condition of the roads – the roads are in a bad shape and yet there are contracts that have been given. Some of those companies are owned by Chinese who are working on the main road, going into Southern Sudan but there are other roads, like the road from Lodwar Town to Nadapal which has stagnated for the last three years. Even before I became a Senator, they were working on the little piece of that road just barely half a mile. It is still unfinished.

There is also a road that goes from Lodwar Town to Kalokol which is also not finished. In fact, they put materials that destroy tires of vehicles, motorbikes and people are unhappy about this. Therefore, it is not clear to me why those who were given contracts do not phase their roads. I am calling upon those concerned to start to give money to construct these roads so that people can travel without problems.

Thank you.

I raised this issue in this House when it comes to the Mombasa Highway, where a contractor is supposed to build flyovers on the main highway. We had a Principal Secretary and a Minister who promised that they were going to look at the Mombasa Highway but up to now, they have not done the flyovers that we requested, instead we have zebra crossings---.

Senators, let us consult in low tones. I can see the Chair and the co-Chair consulting, but they should do it in low tones.

Proceed, Sen. Shiyonga.

Order, Senators. Proceed.

Order, Senators. Proceed.

Thank you, Mr. Speaker, Sir. In conclusion, let the people who get involved in construction of the roads, especially the contactors, abide by what they put on paper versus the money they get and the service to the people in our country.

The Kisumu-Kakamega Road has stagnated for years. We have a small portion of the road that is supposed to be completed. I support Sen. Cherargei because when people are doing campaigns that it the time they bring construction equipment that we have never seen in this country, promising that they are going to do those roads, but they never do them.

I would like to urge the Committee that will deal with this Statement to make sure that those roads are completed. They should also reveal what they had how much money they had quoted to do the roads so that we do not get a raw deal. We deserve the services and we are there to receive the services that the national Government has promised through the leaders that are working with those contractors.

Thank you.

can all attest to the fact that stalled projects are also forming a major part of the unpaid bills that we are facing today.

I know the Building Bridges Initiative (BBI) report spoke to these issue as well. For those of us who have read, the fact that there are so many stalled projects that move from one resume of a governor to another, it is about time the Committee--- I should also commend the Committee because they are dealing with some of the issues I raised. The water projects, road projects and energy projects are all becoming a big dent on our budgets.

The Senators in this Committee should use this as an example of what is outstanding and they should also look at the other areas in the region to come up with the number of white elephants in our country. Those white elephants are a source of our debt. We have talked of unsustainable external debt and we might just end up with Kshs7 trillion if we are to add the local debts.

I support this Statement and I look forward to the Committee executing it in a professional way. I congratulate the Senator for Kiambu County, who is the Chairperson of the Committee, for taking these things seriously. I am happy with what he is doing with my issues.

can all attest to the fact that stalled projects are also forming a major part of the unpaid bills that we are facing today.

I know the Building Bridges Initiative (BBI) report spoke to these issue as well. For those of us who have read, the fact that there are so many stalled projects that move from one resume of a governor to another, it is about time the Committee--- I should also commend the Committee because they are dealing with some of the issues I raised. The water projects, road projects and energy projects are all becoming a big dent on our budgets.

The Senators in this Committee should use this as an example of what is outstanding and they should also look at the other areas in the region to come up with the number of white elephants in our country. Those white elephants are a source of our debt. We have talked of unsustainable external debt and we might just end up with Kshs7 trillion if we are to add the local debts.

I support this Statement and I look forward to the Committee executing it in a professional way. I congratulate the Senator for Kiambu County, who is the Chairperson of the Committee, for taking these things seriously. I am happy with what he is doing with my issues.

Hon. Senators, for the convenience of the House, we will go to Order No. 23.

proposed to insert a new section on the establishment of the Directorate of Urban Development and Management.

The amendment on Clause 3A is an attempt to return what would have been the Urban Development Authority which has been objected to by Nairobi City County and other counties. That is a backdoor attempt to take over the work of the county governments in terms of urban planning.

On page 421, we have amendments to the Public Private Partnerships Act 2013 (No. 15 of 2013). Clause 64(1)(b) is an amendment on variation of agreements.

Part of this Clause states that:

proposed to insert a new section on the establishment of the Directorate of Urban Development and Management.

The amendment on Clause 3A is an attempt to return what would have been the Urban Development Authority which has been objected to by Nairobi City County and other counties. That is a backdoor attempt to take over the work of the county governments in terms of urban planning.

On page 421, we have amendments to the Public Private Partnerships Act 2013 (No. 15 of 2013). Clause 64(1)(b) is an amendment on variation of agreements.

Part of this Clause states that:

Order, hon. Members. It is now 3.30

contravening several provisions in the Constitution, which he cited with significant emphasis.

Sen. Cherargei’s view, that this Motion was inadmissible, generated further points of order from the Senate Majority Leader and Senator for Elgeyo-Marakwet County, the Hon. Kipchumba Murkomen, as well as Senators Moses Kajwang’ of Homa Bay County, and Kimani Wamatangi of Kiambu County.

Other than the Mover, none of the Senators who spoke on this point of order was categorical that the Motion was constitutionally sound and should, therefore, be admissible. This is an understandable situation, because the legal issues raised are somewhat weighty and the gaps in the applicable law aggravating.

I shall not regurgitate all the legal issues raised in challenging admissibility of the Motion, as the entire proceedings of the sitting of the Senate that afternoon of 12th November, 2019, are publicly available from the HANSARD. Suffice it to say, the Senators contesting the admissibility of this Motion argued, in so many words, that the Motion:-

contravening several provisions in the Constitution, which he cited with significant emphasis.

Sen. Cherargei’s view, that this Motion was inadmissible, generated further points of order from the Senate Majority Leader and Senator for Elgeyo-Marakwet County, the Hon. Kipchumba Murkomen, as well as Senators Moses Kajwang’ of Homa Bay County, and Kimani Wamatangi of Kiambu County.

Other than the Mover, none of the Senators who spoke on this point of order was categorical that the Motion was constitutionally sound and should, therefore, be admissible. This is an understandable situation, because the legal issues raised are somewhat weighty and the gaps in the applicable law aggravating.

I shall not regurgitate all the legal issues raised in challenging admissibility of the Motion, as the entire proceedings of the sitting of the Senate that afternoon of 12th November, 2019, are publicly available from the HANSARD. Suffice it to say, the Senators contesting the admissibility of this Motion argued, in so many words, that the Motion:-

(The Deputy Speaker paused to allow Sen.

governors to the office of the governor in event of death. In Nyeri on two occasions; that was in 2015 and in 2017; and in Bomet in 2019.

I suspect the process would be seamless and would not suffer any legal hitches in event of resignation, impeachment or other grounds listed in Articles 181 and 182 of the Constitution, as supplemented by Section 33 of the County Governments Act and the Standing Orders of the Senate; and further by Article 144 of the Constitution, which is on the removal of the President of Kenya from Office on grounds of mental or physical infirmity, and which Article applies to county governors mutatis mutandis, with necessary modifications.

Thus, there is no law that suggests that where a Governor is facing criminal charges, a vacancy has arisen. This is because it does not fall into any of those categories; there is no vacancy. There is no law to suggest that such governor ceases to hold office. Therefore in the respective matters of the Kiambu and Samburu counties, the governors are still in office. The only instances that give rise to a vacancy is the instances that I have already provided for.

In sharp contrast, however, the law is not very direct or clear on the powers and functions of a deputy county governor who is acting in the absence of the governor; neither is the concept of “absence” defined in any law. Article 179(5) of the Constitution simply states that “when the county governor is absent, the deputy county governor shall act as the county governor.” It does not say absent from office, absent from the territory of the county or absence from the country or the jurisdiction of Kenya. It does not say absent from where.

However, it is my view, and I will give my reasons at the tail end, that what was intended was to allow a deputy governor to act when the governor is at least outside the county. This is because you cannot imagine that anytime the governor is not in the office, then the deputy governor is acting, even if the governor is two kilometres away presiding over a function.

My view is that what was intended was to allow deputy governors to act when the governor is, at the minimum, out of the jurisdiction of his county or outside the territory of the Republic of Kenya for a significant period of time – I will explain that as well – to enable seamless flow of services to citizens. The whole idea of allowing the deputy to act is not to provide an avenue, as we have seen in some cases, for competition and trying to jostle for prominence. It is to allow seamless service provision.

Therefore, when the governor is away for some considerable time, the deputy governor is able to serve the citizens of that county.

The legal provisions in the foregoing paragraph are not elaborated any further. In other words under Section 179, other than saying, “In the absence of the county governor, the deputy shall act,” it has not elaborated any further, except for the limits placed on the deputy governor in section 32(4). Any other elaboration is Section 32(4) of the County Government Act which says that when the deputy governor is acting, he cannot touch the issues of appointment, dismissal or nomination of officials, neither can the governor decide to delegate. Even if the governor delegates, the deputy is prevented from acting.

What then is the meaning of the word “absence,” as used in Article 179(5) of the Constitution? How does that meaning apply to the situation of a governor against whom

there is an un-vacated court order barring him or her from setting foot in the office until his or her criminal trial is heard and determined? Does barring of the governor from accessing the county office render the governor absent, within the meaning and context of Article 179(5) of the Constitution?

Neither the Constitution nor the County Governments Act or any other national legislation I am aware of defines or otherwise elaborates what constitutes absence of a governor. The Black’s Law Dictionary defines the word absent as “being away from;” “at a distance from;” or “not in company with.” The Oxford English Dictionary, on its part, defines the word absent as an adjective to mean, “Not present in a place, at an occasion, or as part of something,” and as a verb to mean “go away” or “remain away.”

The word absence is used in Article 179(5) of the Constitution as an adjective, describing the noun county governor as being not in a certain place; the place is not defined at a given time, not present or missing from such a place. To my mind, although there has been no further clarification by the Constitution, the County Government Act or any other law that I am aware of, as regards to the time of absence, a contextual interpretation of the term as used in Article 179(5) of the Constitution supports a conclusion that the provision refers to physical absence of the governor, such as the governor being physically away from the county they serve for a considerable period of time.

According to these definitions above, there appears to be no basis for interpreting the adjective “absence” as used in Article 179(5) of the Constitution, to refer to a situation where a governor is unable to access the county office as a result of a Court order, as is currently the case with the respective Governors of Kiambu and Samburu counties, who are undergoing criminal prosecution.

If a governor facing criminal charges is barred by court to access the county office, it is because the office has become a scene of crime, which is made out of bounds for suspects and also to preserve evidence and to protect the scene of crime from interference from a suspect of the crime in question. The governor has not ceased to hold office and also is not absent, because such a governor is in the county, except that he cannot enter the office. As I will say later, in fact, he can enter that office daily so long as he has permission in the court order we are talking about. The Ethics and Anti-Corruption Commission (EACC) can allow the governor, on a daily basis, as many times as possible for a supervised access to the office.

By the courts prohibiting the respective governors from accessing the respective county government offices, the respective governors have been asked not to go to the physical locations of their respective offices in Kiambu and Maralal towns respectively. This is because Section 6A of the County Governments Act provides that for each of the 47 county governments, their headquarters will be located at certain places, if you remember the law we passed on county headquarters. For Kiambu, it is Kiambu Town; and for Samburu, it is Maralal Town. So long as the Governor does not go to the office in Kiambu and Samburu respectively, they can hang around the county and the town, but not access the office unless they have permission, concurrence and supervision.

They still hold office of the governor and they may be present anywhere in the county. They may perform the functions and exercise the powers of their office from

anywhere within the county, as long as they do not access the physical location of the county government office. A governor needs not be at the physical location of the county office to perform the functions or exercise the powers of that office. In other words, a governor does not need to be in the office to be governor. He or she can make a decision from anywhere. Otherwise, many of the decisions governors make would have to be given geographical limits.

Where, however, such governors face practical constraints in performing any of their official functions or exercising any of their powers, they may voluntarily delegate to the deputy governor the functions and powers that the law allows to be delegated to the deputy governor. However, no law compels a governor against whom there is a court order not to access the county office to delegate.

The Motion by Sen. Olekina erroneously assumes that a court order barring a governor from accessing a county office means that such a governor is technically absent and, therefore, the deputy governor automatically becomes the acting governor, pursuant to Article 179(5) of the Constitution. That kind of interpretation would imply that the governors in such situations are technically absent. It is my view that those governors are not absent, but they face certain difficulties. Towards the conclusion, I will tell you my view about Justice Mumbi Ngugi’s judgment, because it somewhat introduces a new term, which is suspending a governor from office.

Assumption by a deputy governor to the office of the governor or such deputy governor purportedly performing any of the functions, or exercising any of the powers of the governor simply because the substantive governor has been charged in Court and slapped with a court order not to access the county office, is unconstitutional, illegal, null, void and of no legal consequence, unless and until the substantive governor legitimizes such performance of functions or exercise of powers in writing by appointing the deputy governor to act as governor.

I have read the much relied on, but recent decision of Justice Ngugi M. in Criminal Revision No.25 of 2019, Moses Kasaine Lenolkulal vs Director of Public Prosecutions, 2019, relating to the Governor of Samburu County, whom the judge went on in her obiter dicta remarks to bar from accessing the county office during the pendency of the trial.

I observe that the judge did allow the governor to access the county office, but with permission and concurrence of the investigating agency, the Ethics and Anti- Corruption Commission (EACC) and its Chief Executive Officer (CEO) to be the focal point for that purpose. She upheld the order dated 15th May, 2019, given by the magistrate in the Anti-Corruption Court to the following effect. The order says:-

“The Governor of Samburu County is barred from accessing the Samburu County Government offices without the prior written authorization of the investigating agency, EACC, who shall put measures, if any, in place so as to ensure that there is no contact between the Governor and the prosecution witnesses and to preserve the evidence until further orders of this Court.” The learned judge appreciated that such permission would hypothetically have to be sought and given on a daily basis, presenting practical difficulties. That is why she said

that the deputy governor can then fill that gap and that is why there is a deputy in that county. However, nowhere has the learned judge said that the Governor of Samburu County should not henceforth perform his official functions.

In fact, she emphasizes that the Governor is not being removed from office, meaning that no vacancy in the office of the governor has been created by the judgment; neither does the learned judge expressly pronounce herself that failure by the Governor to access the office by operation of the conditions in the order would constitute absence from office. Therefore, by operation of Article 179(5) of the Constitution, enable the Deputy Governor to act automatically.

For those who have the view that such an order creates the absence of a governor, what the judge ought to have done was to declare the implications of the order to constitute absence within the meaning Article 179(5), which as I am going to see, will trigger the automatic acting of a status of the deputy governor.

She does not say that this order creates an absence within the meaning of Article 179(5). She simply states that the governor may go to the county office with the permission and supervision of EACC. Should there be any practical challenges at any time in seeking or obtaining the permission for supervised access to the office, the deputy governor should be able to fill the gap by performing the functions and exercising the powers of the governor in an acting capacity. That is what she said.

From the logic in the judgment, it is clear to me that the learned judge does not see the governor’s lack of access to the county office as constituting absence, as contemplated in Article 179(5) of the Constitution, to trigger the deputy governor’s right to be the acting governor automatically. If the judge’s intention was to apply and bring into effect Article 179(5), nothing would have been easier than to say so.

A governor slapped with such a court order not to access the county office is in full compliance, by simply avoiding unauthorized and unsupervised access to the county government office. However, such a governor may make decisions from elsewhere, other than the office; sign documents from anywhere and hold meetings with County Executive Committee (CEC) Members from anywhere, so long as it is not in the county government office. They can hold meetings with other officials of the county government, visitors and citizens anywhere within the county, but outside the county government office.

They can also inspect projects, co-ordinate, superintend or preside over events outside the office and so on, and so forth. He or she may make telephone calls, use social media accounts to communicate, correspond via electronic mails, ensure procurement, human resources and other critical departments are running well, on condition that he or she does not tamper with evidence touching on matters being investigated, or contact witnesses. Witnesses would have been disclosed anyway by the time of commencement of the governor’s criminal trial.

Therefore, the order according to the learned judge neither creates a vacancy by removing the governor from office, nor does it deem the governor’s bar from accessing the county office to constitute an absence, therefore triggering the acting status of the deputy governor. To do so would run afoul of the constitutional principle of presumption of innocence.

The order simply designates the county government office for Samburu County in Maralal Town, and for Kiambu County in Kiambu Town, a scene of crime and, therefore, out of bounds for the governor as a suspect. Only allowing him supervised access to the office to ensure the governor has no contact with any prosecution witnesses working there, and generally to prevent the governor from interfering with evidence at the office. Instead, the learned judge appears to technically suspend the governor from office without saying so. Why? It is because she finds Section 62(6) of the Anti-Corruption and Economic Crimes Act, which exempts governors, among certain other State officers, from suspension from office when they are charged in court. She finds this section unconstitutional. Therefore, technically, that suspends the governor from office, which is a new term not within the realm of Article 179(5) of the Constitution.

Particularly exempted from suspension – and for good reason – are Judges and Members of Independent Constitutional Commissions, who may be removed through tribunals established under the Constitution. This mechanism for removal using tribunals is not applied to so many state officers, including CSs. The tribunal route is one used on other state officers; and that does not create discrimination. Therefore, the distinction which is placed, whereby certain state or public officers cannot be suspended by being charged, is a distinction that is permissible. That is because it is reasonable, and it based on the functional environment under which the state or public officer works. Therefore, for a Judge or members of the Independent Commissions, if they are charged, that might even constitute a ground for their being removed through a tribunal.

Now, the civil servants, like the CSs, Principal Secretaries (PSs) and ambassadors do not suffer the tribunal route. Does that mean that there is unconstitutionality there? No! Does it mean that there is discrimination there? No!

Therefore, the reason, for example, Judges and members of Independent Commissions are exempted is because of the nature of functions they do. It is the same with elected leaders. Members of Parliament (MPs) and governors are elected leaders, and the way they can be removed from office is provided for. There are several ways for the removal of an MP. It can be through the operation of recall under Article 104; it can be through operation of Article 99(2)(h), where for example, they are removed under the disqualifications there. Thirdly, they can be removed by operation of Chapter Six. A state or public officer who contravenes Chapter Six, the consequence is removal from office.

Therefore, because of those alternative mechanisms, Subsection 6 says that these people against whom there is a way of removing them, an alternative way should now be suspended, unlike the other civil servants and public officers who do not face similar consequences.

Governors, for example, now that we are talking about them, are susceptible for removal under Article 181 through impeachment. If you look at the grounds of impeaching a governor, Article 181(1)(b), says:-

“Where there are serious grounds to believe that the county governor has committed a crime under national or international law;” Simply put, if you ask me, being charged is a serious reason to believe. Therefore, this mechanism is available, and it not available to other public servants.

My bigger problem, especially now that we are talking about governors, is because of our role as protectors and defenders of devolution. I consider allowing the suspension of elected leaders from office – in this case a governor – who are facing criminal charges susceptible to abuse. This is specially so whereby the criminal justice system may – I am not saying it has been misused, but there is potential for it being misused politically – have a political leader charged and removed from office.

For Governors, I find suspending them a frontal attack on the distinct nature of county governments and their independence from the whims of the national Government. This is because the national Government exclusively somewhat controls the appointments to, funding and even, to some extent, operations of State investigative and prosecutorial agencies, thereby emasculating and weakening devolved governments.

This threat, however hypothetical or remote, is the threat of a rogue, centralist leaning national Government administration misusing national criminal justice institutions within the Executive. This threat, however remote or hypothetical, must be warded off by ensuring that governors who are charged can only be removed from office, if need be, through the mechanism provided for in the Constitution, of impeachment.

The national values of good governance, integrity and non-discrimination relied on by Justice Mumbi Ngugi in her judgment above cannot be applied in isolation. They ought to be balanced with equally important national values of sharing and devolution of power; the latter being the basis of protecting, respecting county governments and keeping them independent from whimsical attack by a national Government administration, hypothetically.

Therefore, the emerging habit of deputy governors declaring themselves as the governors or acting governors when the respective substantive governor has been charged and barred from accessing the county office is prima facie unconstitutional, illegal, null and void. A governor who cannot access the county office due to a court order has the liberty and discretion to appoint the deputy governor as the acting governor, but such appointment cannot be forced on the governor.

As I close, I hasten to caution, however, that it appears to me from a reading of Article 179(5), that if “absence” of a governor is objectively established as opposed to subjective; if it can be objectively established that the governor is absent, as defined in the definitions that we---

(Sen. Linturi walked into the Chamber when The Deputy Speaker was on his feet) Order, Sen. Linturi! Order! You are out of order.

This threat, however hypothetical or remote, is the threat of a rogue, centralist leaning national Government administration misusing national criminal justice institutions within the Executive. This threat, however remote or hypothetical, must be warded off by ensuring that governors who are charged can only be removed from office, if need be, through the mechanism provided for in the Constitution, of impeachment.

The national values of good governance, integrity and non-discrimination relied on by Justice Mumbi Ngugi in her judgment above cannot be applied in isolation. They ought to be balanced with equally important national values of sharing and devolution of power; the latter being the basis of protecting, respecting county governments and keeping them independent from whimsical attack by a national Government administration, hypothetically.

Therefore, the emerging habit of deputy governors declaring themselves as the governors or acting governors when the respective substantive governor has been charged and barred from accessing the county office is prima facie unconstitutional, illegal, null and void. A governor who cannot access the county office due to a court order has the liberty and discretion to appoint the deputy governor as the acting governor, but such appointment cannot be forced on the governor.

As I close, I hasten to caution, however, that it appears to me from a reading of Article 179(5), that if “absence” of a governor is objectively established as opposed to subjective; if it can be objectively established that the governor is absent, as defined in the definitions that we---

(Sen. Linturi walked into the Chamber when The Deputy Speaker was on his feet) Order, Sen. Linturi! Order! You are out of order.

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The material part of the Motion by

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

Order, Members! We are making observations of the ruling that I have just made. I urge the Senators who are retreating to do so in dignity.

Order, Members! We are making observations of the ruling that I have just made. I urge the Senators who are retreating to do so in dignity.

I would like you to interpret what you meant in your ruling by saying that the ‘learned judge was wrong’. However, later on, you said that we must respect the separation of powers between the two arms of Government.

I would like you to interpret what you meant in your ruling by saying that the ‘learned judge was wrong’. However, later on, you said that we must respect the separation of powers between the two arms of Government.

Order, Sen. Olekina! Judges are wrong every day; that is why appealing is allowed. There is nothing disrespectful about having an opinion. In fact, in my former life as an academic, one of the roles of an academic is to critique judgements. I am actually very polite in my critique. Some critiques are extremely brutal but Judges take it in stride.

Mr. Deputy Speaker, Sir, I will be guided by you. However, it boils down--- The Deputy Speaker (

Mr. Deputy Speaker, Sir, your learned friend, Sen. Wetangula, should go back and read procedures of this House. I am on a point of order so I should be allowed to finish.

Absolutely. We have heard you. I do not impute that you were acting for someone or something.

Kindly proceed, Sen. Olekina.

Mr. Deputy Speaker, Sir, when certain things are brought to this House, we ask ourselves what informed the decisions of the drafters of the Constitution at the time. I am happy that you have elaborated Article 179 (5) by bringing up the issue of objectivity versus subjectivity. Looking at the Oxford Dictionary, the term absence is defined differently from your definition. I am at a loss because I no longer know what it means to be absent.

I really appreciate that you elaborated the Governors of Samburu and Kiambu counties can access their offices with permission from the EACC. Therefore, when we bring up matters before this House, it is not for our personal consumption but to help build continuity in this country. When services cannot be rendered to the people, it behoves us to ask ourselves serious questions to what we must do to ensure that the people of Kiambu and Samburu continue receiving services.

Mr. Deputy Speaker, Sir, I am completely against deputy governors imposing themselves as governors. As you have rightly stated, the governors are still members of the executive. However, there are roles that are clearly defined and delegated to the governors. We cannot re-delegate those duties to the deputy governors.

I appreciate your ruling. I would also like to assure you that my Motion was intended to ensure that the people of Kiambu and Samburu Counties continue to receive services. I hope that the two governors are watching these proceedings so that they can proceed to the EACC and seek permission to access their offices. If the governors were barred from accessing their offices in Samburu and Kiambu Counties, they can use the Council of Governors (CoG) offices in Nairobi’s Delta House where they pay a lot of money.

Mr. Deputy Speaker, Sir, your learned friend, Sen. Wetangula, should go back and read procedures of this House. I am on a point of order so I should be allowed to finish.

Absolutely. We have heard you. I do not impute that you were acting for someone or something.

Kindly proceed, Sen. Olekina.

Mr. Deputy Speaker, Sir, you were not just an undertaker. I have performed the funeral rites to this Motion. I would like to encourage Sen. Olekina not to be discouraged. Some of us who have practiced as advocates, will tell you that half the time when we go to court, we get our motions and pleadings dismissed. More importantly, we get a chance to tell Judges to their faces that they are wrong.

I am happy about the ruling that the Chair has made because as we were walking into the Chamber today, we met Sen. Wako and told him that we only got a small paragraph of the BBI report whilst your ruling has reinforced the jurisdiction of the Senate in terms of protection of the counties. I would have loved to see a better paragraph in the BBI report about what you have said.

Mr. Deputy Speaker, Sir, kindly give us signed copies of the ruling you have made so that we can share with some of the courts, especially where you stated that Justice Mumbi Ngugi issued her ruling per incuriam. That portion is important because you have elaborated their access to the offices. It should be understood that the office of the governor, for purposes of the person who has been charged is a crime scene and therefore, he cannot access it. However, that direction does not remove the governors from office.

For the avoidance of doubt, I would like to repeat that a ruling such as yours should find a way to come to the dispatch box where we can have a file on all the rulings

Thank you, Sen. Olekina for the kind remarks despite the fate of your Motion.

Mr. Deputy Speaker, Sir, you were not just an undertaker. I have performed the funeral rites to this Motion. I would like to encourage Sen. Olekina not to be discouraged. Some of us who have practiced as advocates, will tell you that half the time when we go to court, we get our motions and pleadings dismissed. More importantly, we get a chance to tell Judges to their faces that they are wrong.

I am happy about the ruling that the Chair has made because as we were walking into the Chamber today, we met Sen. Wako and told him that we only got a small paragraph of the BBI report whilst your ruling has reinforced the jurisdiction of the Senate in terms of protection of the counties. I would have loved to see a better paragraph in the BBI report about what you have said.

Mr. Deputy Speaker, Sir, kindly give us signed copies of the ruling you have made so that we can share with some of the courts, especially where you stated that Justice Mumbi Ngugi issued her ruling per incuriam. That portion is important because you have elaborated their access to the offices. It should be understood that the office of the governor, for purposes of the person who has been charged is a crime scene and therefore, he cannot access it. However, that direction does not remove the governors from office.

For the avoidance of doubt, I would like to repeat that a ruling such as yours should find a way to come to the dispatch box where we can have a file on all the rulings

of the Speaker. I have been in this House for a long time but I have never heard a ruling that long and well-researched. I thank you for that ruling and wish you well in your endeavours.

Mr. Deputy Speaker, Sir, I thank you.

Thank you , Sen. Mutula Kilonzo Jnr.

Kindly proceed, Sen. Wamatangi.

Thank you, Mr. Deputy Speaker, Sir. I also want to take the opportunity, first to congratulate you for the well-reasoned and well-researched ruling. On the same breath, I also wish to congratulate my colleague Sen. Olekina for having thought about the problem that is being encountered in some counties which are facing this scenario, Kiambu County being one of them.

I am also glad that you have availed an avenue through which the same Motion can be revived though amended to conform to your ruling but it can still find its way to the Floor of this House for discussion. Hopefully, Sen. Olekina through the Deputy Speaker, will eventually achieve the objective that he had when he brought the Motion to the House.

Kiambu is one of the affected counties in such a way that as we speak, we have two impeachment Motions which are in the County Assembly of Kiambu. One Motion has been filed to impeach the Governor who is already facing court charges and another has been tabled by a section of the MCAs to impeach the deputy governor. In the next one week or so, it is envisaged that the same House will be voting, deliberating and determining the fate of the two officials; the governor and his deputy on whether the two should be impeached.

Your ruling has been a long time coming. It is very necessary that these matters be clarified such that county governments can stop having a space of leadership that is so confused. I want to, not only congratulate you but also request, as Sen. Mutula Kilonzo Jnr. has said, that you give us signed copies of that ruling so that we can be able to pore through it, see that reasoning and hopefully be able to have a detailed and proper engagement with the leadership of our counties. This will ensure that there is clarity on what should be done.

The best medicine that can be prescribed for the Judiciary is for them to be expeditious in determining the matters brought before them. It should not become a bridge - today we are speaking about building bridges - or it should not become a special purpose vehicle that a delayed determination of a matter then can find a gray area whereby other orders will be given that will be assumed to stay in place of a determination. I believe when that is done, we will have order.

How I wish that - especially like in the case of Kiambu - the court can sit and determine that matter tomorrow, such that the county can have a clear leadership and people are able to know that this is the person that they will be calling their governor. The kind of confusion we have right now in Kiambu has brought the county to a gridlock. The situation has promoted infighting and divisions amongst the MCAs, some who are deemed to be loyal to the governor and others loyal to the deputy governor. Indeed, this

situation is not only promoting confusion but unfair and unnecessary competition. Work cannot be done.

I want to laud you for giving the ruling so that we are able to move forward. Mr. Deputy Speaker, Sir, I support.

Thank you. Proceed, Sen. Wetangula.

Sen. Nyamunga, please approach the Chair.

Mr. Deputy Speaker, Sir, I want to congratulate you and also salute Sen. Cherargei for raising the point.

When Justice Mumbi Ngugi delivered her judgement, I remember telling Sen. Mutula Kilonzo Jnr. that that is a judgement per incuriam and you have come to restate the same.

On Wednesday, the week when the BBI report was tabled in Bomas, the Chairperson of the CoG called out for the governors to stand up. I was amused to see Governor Waititu standing up and his deputy standing up as well. That is the level of confusion we have been having.

When Sen. Olekina moved his Motion - I am always very keen to speak on every Motion - but I was hesitant because I saw traits of un-constitutionalism and unconstitutionality in it and you have come to state as such. I do not want to say too much. You have just acquitted yourself as you always do, that your professorship was not given in River Road. You have shown this House and the country that you really merit to be what you are. I feel proud that I played a role in your formative years by being your boss in my practice.

Thank you very much, Sen. Wetangula, my former boss.

As requested, I will, immediately I rise from the Chair and sign the ruling and return it to the House for production and it can be distributed to all the Senators if they like.

I will direct that the ruling be produced and availed to the Senators by tomorrow because we are proceeding on recess.

We are continuing, I was just trying to dispose of that issue. That leads me to the next speaker who is none other than Sen. Orengo, the Senate Minority Leader and Senator for Siaya County, Senior Counsel.

The Senate Minority Leader (Sen. Orengo) : Thank you, Mr. Deputy Speaker, Sir. I want to thank you for this very well-considered ruling.

Sometimes I wonder why in the very many years of this Parliament, we have not published a compendium of the rulings of the Speakers. There was a time when an issue arose in the “Lower House” and we were able to get published rulings of the Speaker of the Parliament in New Zealand. I cannot say that they are doing any better because our Houses of Parliament have come out with very good rulings. I think this is one of the very best.

First, thank you for demystifying the fact that it is only the courts that interpret the Constitution or the law. In fact, if you go by Article 10 of the Constitution, it talks about State organs or any person applying or interpreting the Constitution.

This is something that we do on a daily basis. As the Speaker sits on the Chair, all the time he is thinking, applying and interpreting Statutes and Regulations so that some order can prevail in our debates and nothing goes out of the parameters of the law.

More importantly, the ruling that you have made in respect of, or your comments on the obiter comment in Judge Ngugi’s ruling are very fundamental and very important, particularly when we have elected in our system of Government, the centrality of human rights. Article 19 says that the Bill of Rights is an integral part of Kenya’s democratic system. Although, sometimes when we make a lot of noise about what has happened or somebody has been given bail, they forget that this Bill of Rights, more than any other one has elevated the Bill of Rights to a level that we had never heard before compared to other jurisdictions.

It says that the rights and fundamental freedoms contained in the Constitution are not the full amplitude or limit of rights and fundamentals of freedoms. The ones that are in the Constitution are not the only ones because these rights are in here; they are not given by Government. Therefore, the first point is that you have made the point that it is not in the premise of the courts exclusively to interpret the Constitution.

Secondly, the doctrine of judicial precedent does not apply in cases where it can be proven that a judgement was made in error or in ignorance of the law. They have gone through the reasons why some of the comments obiter in Judge Ngugi’s ruling are plainly wrong and unconstitutional.

In fact, she may have forgotten about the debate that took place because in order to protect some of these independent offices and commissions that independence can be interfered with by a trumped up charge being brought to court and by the time it is brought, you lose office and your case can be in court for five years.

In fact, your term can expire before the case is over. I was having a discussion with some of my colleagues; I was telling them that if what Judge Ngugi is saying is right, then, Members of Parliament, you are in for a very rough time. In fact, Sen. Cherargei will also---

Thank you very much, Sen. Wetangula, my former boss. As requested, I will, immediately I rise from the Chair and sign the ruling and return it to the House for production and it can be distributed to all the Senators if they like. I will direct that the ruling be produced and availed to the Senators by tomorrow because we are proceeding on recess. (An hon. Senator spoke off record) We are continuing, I was just trying to dispose of that issue. That leads me to the next speaker who is none other than Sen. Orengo, the Senate Minority Leader and Senator for Siaya County, Senior Counsel. The Senate Minority Leader (

Sometimes I wonder why in the very many years of this Parliament, we have not published a compendium of the rulings of the Speakers. There was a time when an issue arose in the “Lower House” and we were able to get published rulings of the Speaker of the Parliament in New Zealand. I cannot say that they are doing any better because our Houses of Parliament have come out with very good rulings. I think this is one of the very best.

First, thank you for demystifying the fact that it is only the courts that interpret the Constitution or the law. In fact, if you go by Article 10 of the Constitution, it talks about State organs or any person applying or interpreting the Constitution.

This is something that we do on a daily basis. As the Speaker sits on the Chair, all the time he is thinking, applying and interpreting Statutes and Regulations so that some order can prevail in our debates and nothing goes out of the parameters of the law.

More importantly, the ruling that you have made in respect of, or your comments on the obiter comment in Judge Ngugi’s ruling are very fundamental and very important, particularly when we have elected in our system of Government, the centrality of human rights. Article 19 says that the Bill of Rights is an integral part of Kenya’s democratic system. Although, sometimes when we make a lot of noise about what has happened or somebody has been given bail, they forget that this Bill of Rights, more than any other one has elevated the Bill of Rights to a level that we had never heard before compared to other jurisdictions.

It says that the rights and fundamental freedoms contained in the Constitution are not the full amplitude or limit of rights and fundamentals of freedoms. The ones that are in the Constitution are not the only ones because these rights are in here; they are not given by Government. Therefore, the first point is that you have made the point that it is not in the premise of the courts exclusively to interpret the Constitution.

Secondly, the doctrine of judicial precedent does not apply in cases where it can be proven that a judgement was made in error or in ignorance of the law. They have gone through the reasons why some of the comments obiter in Judge Ngugi’s ruling are plainly wrong and unconstitutional.

In fact, she may have forgotten about the debate that took place because in order to protect some of these independent offices and commissions that independence can be interfered with by a trumped up charge being brought to court and by the time it is brought, you lose office and your case can be in court for five years.

In fact, your term can expire before the case is over. I was having a discussion with some of my colleagues; I was telling them that if what Judge Ngugi is saying is right, then, Members of Parliament, you are in for a very rough time. In fact, Sen. Cherargei will also---

Thank you, Mr. Deputy Speaker, Sir. This is a sagacious and well-thought out ruling. It is measured in every aspect of your findings and it is extremely deep. I have listened to my colleagues raise very valid points.

It is said that to whom much is given, much more is expected. Kenyans insulated the Judiciary from any outside influence and you have alluded to that. It is, therefore, expected that as they go about their duty, they will protect the rights of the citizens above and beyond any other influence.This is one such instance and you have given good examples as to why you think that the good Judge may not have given her best thoughts to some of her rulings.

I know that you do not do carry your phone when you are on the Chair but how I wish that you were online. You would have seen the interest that this debate has generated amongst the deep thinkers of our society who have requested for a copy of the ruling that you have made. This is not your ordinary Kenyan news stuff. Kenyan media prefers the story of a Senator who has abused the other. This is a challenge to our Clerks- at-the-Table. It is good that Carolyne Kinyua is here because she does a good job of feeding us with that kind of information. That ruling will be good for circulation. Kenyans should read that ruling and they should be alive to some of these issues. If we

You have ended up saying what you have not said.

Thank you, Sen. Orengo. We might have to reflect further. I have alluded to this but not deep enough. The instruments, apparatus and institutions of criminal prosecution reside with the national Government. Governments all over the world compete and struggle for jurisdiction. A country can have bad administration and we have even had one in this country. One way of emasculating devolution is through the use of the apparatus of criminal justice system and power of devolution. We do have the mechanism for removal of a governor or a deputy governor from office if he is not doing well in the Constitution. However, as noted by the Senior Counsel, the threshold is so low. It is actually enough to meet the threshold in Article 181 of the Constitution if one suspects a governor of doing something.

Finally, I think the learned Judge Ngugi made her judgement in haste. I have read it several times; and I believe she could have been busy. She was dealing with an application at that given time and from the language, she was trying to say that she is not sure but was just reflecting on this issue. She was more or less just posing questions. I am saying this because one of the decisions that she refused to admit which had been submitted was the decision about the Deputy Chief Justice. I know that this is not relevant to this but for the same reasons, I believe that it is unconstitutional and against the independence of the Judiciary to submit a sitting Judge whose mechanism for removal is provided for through the process, like what the Deputy Chief Justice is going through. This is because it actually violates the entire architecture of the Constitution and the independence of Judiciary.

My argument is that the information regarding a Judge who has committed a crime should be taken to the Judiciary Service Commission which is the proper mechanism for removal. After that, the Judge can be prosecuted when they have vacated office. To bring a Deputy Chief Justice of the Republic to appear before a magistrate, is like violating the entire judicial structure and making it look like a mockery. What do you expect that magistrate to say or do?

Thank you, Mr. Deputy Speaker, Sir. This is a sagacious and well-thought out ruling. It is measured in every aspect of your findings and it is extremely deep. I have listened to my colleagues raise very valid points.

It is said that to whom much is given, much more is expected. Kenyans insulated the Judiciary from any outside influence and you have alluded to that. It is, therefore, expected that as they go about their duty, they will protect the rights of the citizens above and beyond any other influence.This is one such instance and you have given good examples as to why you think that the good Judge may not have given her best thoughts to some of her rulings.

I know that you do not do carry your phone when you are on the Chair but how I wish that you were online. You would have seen the interest that this debate has generated amongst the deep thinkers of our society who have requested for a copy of the ruling that you have made. This is not your ordinary Kenyan news stuff. Kenyan media prefers the story of a Senator who has abused the other. This is a challenge to our Clerks- at-the-Table. It is good that Carolyne Kinyua is here because she does a good job of feeding us with that kind of information. That ruling will be good for circulation. Kenyans should read that ruling and they should be alive to some of these issues. If we

Thank you, Mr. Deputy Speaker Sir. I congratulate you for the well-researched and concrete ruling that you have given today afternoon. You have reasserted the intention, spirit and the letter of the Constitution.

Article 181 of the Constitution has espoused the grounds in which a county governor can be removed from office. I am happy that you have stated that the people of Kenya still have the power to elect or not elect their leaders. Many people would have thought they can use courts of law to elect or select leaders to their offices, especially the governor.

I agree with my colleagues that since devolution is facing a lot of challenges because of lethargy, ineffectiveness, moribund issues, corruption and graft that is affecting most counties many people thought that the only way to remove governors was by using the courts. This is one of the ways of disrupting the implementation of devolution. I agree that many Kenyans were not happy, but that is not a justification to try to disrupt the implementation of devolution in this country.

Mr. Deputy Speaker Sir, your ruling is welcome. I hope that the agents that are necessary are--- The Director of Criminal Investigations (DCI) and the Director of Public Prosecution (DPP) should conduct investigations. I am one of the victims of such, less than 24 hours ago. The DCI and DPP must conclude investigations of the case before charging anybody before a court of law.

When this ruling was made, it is important that the people be made to understand that there are constitutional ways of electing and removing a leader. According to Article 181 on the removal of governors, one of them is not though the courts of law. In as much

as we anticipate the challenges that are in Samburu and Kiambu counties, that does not give justification or license for anybody to disrupt the implementation of devolution.

Mr. Deputy Speaker, if you allow the courts and such individuals to push the agenda through any way, I can tell you that we will be removing the power of the people that has been given in Article 2 of the Constitution, where the sovereignty of the people can be practiced only through elected representatives.

Secondly, it is important that you have reassured and instilled confidence in the future of devolution. This is because as the “Upper House” and the protector of the interests of the counties as provided in Article 96, we need to reassure Kenyans and instill confidence in them that devolution will work for our people.

As I have said, when my colleagues were doing the supplementary budget the other day, some of them said that the Judiciary should not appear before the Senate. It means that we have a shortage or disability of reasoning and understanding. I hope that this illustrious ruling – I can equate it to the Solomonic ruling – should be supplied for academic, political discourse and people who are trying to build bridges, so that they can understand the dynamics of running an “Upper House”.

Mr. Deputy Speaker Sir, I thank Sen. Olekina, because his intention was to ensure an efficient running of our country governments. It is good that you have given him an option of redrafting that Motion, so that we can ensure that our county governments run smoothly. I understand his frustrations.

Today, we were sitting with the governors in regards to pending bills. I have had occasions where I sat in the County Public Accounts and Investment Committee (CPAIC) when governors appeared before them. It is high time that we protect devolution by all means as a country. As you have said before, there is a way they can try and kill some of these institutions.

Thirdly, as a celebrated academician and a leader, I always tell you that your future is bright and luminous. When history will be written, you will have a special chapter in the history of Kenya, because you are steering the legislative arm of Government in the right direction. I want to tell Kenyans that as a Senate, we are interested in protecting the independence of all arms of Government. We are interested in ensuring that the interests of counties are protected. We are looking into the future even in terms of allocation resources. We are aiming for one man, one vote, one shilling, so that everybody can be allocated based on their issues.

We ask the courts to be very careful when making decisions especially, those that have a far-reaching effect on the issue of this---

Mr. Deputy Speaker, Sir, we saw the Building Bridges Initiative (BBI) Report, which has 156 pages of proposals. One of them is that Kenyans are happy about devolution. In fact, Kenyans propose that we need to move from allocations of 15 per cent to even 50 per cent.

Mr. Deputy Speaker Sir, I thank you graciously because you gave the BBI the baby that I raised. Unfortunately they threw the baby and the birth water away, but we still have that drafted Bill. Our main issue was on how to strengthen devolution in order to ensure that more resources go to Narok, Kisumu or any other county. That has always been the agenda of this House. I am happy that Kenyans came out in large numbers to

1:59:40, Mr. Deputy Speaker, Sir. I do not want to leave out the 40 seconds. I may shape it because I think that it is better because it will stay for longer.

Mr. Deputy Speaker Sir, allow me to respond to something that Sen. Orengo has said. Apart from being a Senator in this House, I am also a Commissioner. One of the things that we are trying to do in this current Financial Year is to go digital with all our records. Sen. Orengo reflected – you can imagine with almost 40 years of being this House. Unfortunately, when people try to retrieve such rulings like the one you have given today, it is sometimes difficult. It is said that there are very few rulings such as the one you have given.

I want to comfort you. Be assured that when we finally achieve that process, this will be among the very first to go there. This is not just because you and I are friends or because you spent three nights away from your House trying to bring me into this House in 2015, but because of the content of what you have given this House.

Sen. Cheruiyot, if anything, they were seven nights!

Very well. Thank you so much colleagues. Finally, Sen. Cherargei.

Thank you, Mr. Deputy Speaker Sir. I congratulate you for the well-researched and concrete ruling that you have given today afternoon. You have reasserted the intention, spirit and the letter of the Constitution.

Article 181 of the Constitution has espoused the grounds in which a county governor can be removed from office. I am happy that you have stated that the people of Kenya still have the power to elect or not elect their leaders. Many people would have thought they can use courts of law to elect or select leaders to their offices, especially the governor.

I agree with my colleagues that since devolution is facing a lot of challenges because of lethargy, ineffectiveness, moribund issues, corruption and graft that is affecting most counties many people thought that the only way to remove governors was by using the courts. This is one of the ways of disrupting the implementation of devolution. I agree that many Kenyans were not happy, but that is not a justification to try to disrupt the implementation of devolution in this country.

Mr. Deputy Speaker Sir, your ruling is welcome. I hope that the agents that are necessary are--- The Director of Criminal Investigations (DCI) and the Director of Public Prosecution (DPP) should conduct investigations. I am one of the victims of such, less than 24 hours ago. The DCI and DPP must conclude investigations of the case before charging anybody before a court of law.

When this ruling was made, it is important that the people be made to understand that there are constitutional ways of electing and removing a leader. According to Article 181 on the removal of governors, one of them is not though the courts of law. In as much

Because you are on a point of order, you can own it severally.

give their views to the BBI Taskforce. They fully support devolution, and they want it to work. However, the agencies that fight corruption in these countries should be careful as they investigate and prosecute. Let them not rush to the dailies to publish stories and put it in the media before having a concrete case.

We agree that our counties have a problem with issues of corruption. However, that is not a justification to use it as blackmail or with the aim of using it for political gain or the weaponisiation of corruption. I agree that those are some of the challenges. Even when the Constituencies Development Fund (CDF) started in 2003, it faced a lot of challenges. However, as we speak, it is one of the celebrated successes today. Why do we not give devolution the benefit of the doubt? In future, we would want 50 per cent of the latest audited accounts channeled to mashinani. This is where we need roads, bursaries and medicine for our people. The youth should also ask and be given employment opportunities, and all other things.

Mr. Deputy Speaker, Sir, I thank you for that ruling. I also hope to drink from that fountain of legal wisdom that you have espoused today in the afternoon. I hope that it will assist us in making future decisions and reenergize us, as protectors of devolution. This will ensure that even as we preside over the second generation of devolution, by the time it comes to an end, everybody will be happy. That way, we will ensure that the country moves forward for the benefit of all of us.

I hope that the “Lower House” will be reading some parts of this ruling so that they can be assisted on how they also make their decisions and on how they reason. Even the Speaker of the “Lower House” and the leadership should be given opportunity so that they do not just say that the Senate is not needed, or what-have-you. However, they have seen that we have a resounding support from devolution.

Mr. Deputy Speaker, Sir, I thank you and I appreciate that when I raised that point of order on a constitutional aspect, you have given it life. We now have a different perspective, so that in future when we are developing Bills, amendments, Motions, statements or any matter that comes to the House, we will have a compass that will lead us to the right direction; to the full steps of Jesus Christ.

Thank you, Mr. Deputy Speaker, Sir, for giving me this opportunity.

Thank you, Sen. Cherargei for those beautiful remarks.

What is your point of order, Sen. Olekina?

Mr. Deputy Speaker, Sir, thank you for allowing me to speak twice on a question, but this is something which is very---

accessing their offices. When you look at the County Governments Act that you alluded to, the county headquarters are designated. Therefore, does it mean that when you now sit, for instance, in Kiambu and you then decide to sit in Ruiru, are you not going to be violating that County Governments Act? This is just for purposes of clarity, because this is an issue that is intended to ensure that it advises jurisdictions. It helps us to show continuity in terms of service delivery to the people. If you could clarify further, because you referred to Section 6(A) of the County Governments Act in terms of where each has its headquarters.

I remember that earlier on, when I was reacting to the ruling, I had suggested that these county governments or rather these county governors can be able to set offices in Delta House in Nairobi. Since this is a House of record, I want to see whether that goes hand in hand with your ruling. However, now that you have said that they have been barred from entering their offices, that absence does not necessarily mean that the deputy governor can take over the positon. It is a very good ruling, but I am a bit skeptical because it is also very dangerous in terms of Article Six of the Constitution. We really have to find a balance.

I hope that Article 179(5) of the Constitution can be further elaborated, because you also used the word “shall.” When you use the word “shall,” it is mandatory. It is not a “maybe;” rather, it is something which is mandated by the Constitution. I wish you can clarify that aspect of it so that even if it comes to redrafting that Motion, it can make sense.

Thank you, Sen. Olekina. There are a number of things; first of all, Section 6 (A) of the County Governments Act, one of the amendments – I think this year or last year – you will remember that when we passed the law on where the headquarters of each county governments is--- Well, this amendment is very recent, the Dr. Khalwale Act made the headquarters. What this Bill does it to say that; “the county government shall be located at the headquarters.” The Dr. Khalwale Act said, “The headquarters is at place “X.” This amendment of 2019 says, “At that designated headquarters, that is where the county government will be located. The implication is that the county government cannot be established elsewhere.

You can sit down, Sen. (Eng.) Maina; I am not on my feet. I am seated. Now, you cannot establish a county government office outside the location of the county government office, which is at its headquarters. However, the Constitution and the County Governments Act says, “County governments can have decentralized units” meaning that they can have other smaller offices, but the main headquarters shall be in the town that has been gazetted.

Secondly, what that means is simply the location of the county government. It does not say that the governor must function from there; it does not say so. The governor can function from anywhere. They make decisions, inspect projects, have meetings and do public participation from anywhere, but the office is that gazetted one. Therefore, you cannot establish another county government office outside the headquarters. However,

Proceed, Sen. Olekina.

I just wanted you to clarify this, because you said that we have to be objective. In your ruling, you alluded to the fact the court barred these governors from

Thank you, very much. That brings us to the end of that matter.

Thank you, Sen. Olekina. There are a number of things; first of all, Section 6 (A) of the County Governments Act, one of the amendments – I think this year or last year – you will remember that when we passed the law on where the headquarters of each county governments is--- Well, this amendment is very recent, the Dr. Khalwale Act made the headquarters. What this Bill does it to say that; “the county government shall be located at the headquarters.” The Dr. Khalwale Act said, “The headquarters is at place “X.” This amendment of 2019 says, “At that designated headquarters, that is where the county government will be located. The implication is that the county government cannot be established elsewhere.

You can sit down, Sen. (Eng.) Maina; I am not on my feet. I am seated. Now, you cannot establish a county government office outside the location of the county government office, which is at its headquarters. However, the Constitution and the County Governments Act says, “County governments can have decentralized units” meaning that they can have other smaller offices, but the main headquarters shall be in the town that has been gazetted.

Secondly, what that means is simply the location of the county government. It does not say that the governor must function from there; it does not say so. The governor can function from anywhere. They make decisions, inspect projects, have meetings and do public participation from anywhere, but the office is that gazetted one. Therefore, you cannot establish another county government office outside the headquarters. However,

Mr. Deputy Speaker, Sir, I listened to your wise words as you went through this. What I would like to touch on very briefly is that there is authority of the Speaker, the President, the governor and the Chief Justice.

When the republics were being formed during the Roman Empire from which we borrowed from, it was found that authority has to do with the seat of office. The seat that the Speaker sits on and the robes that he wears signify his authority. The impression that wananchi have about the office of the governor is that they can operate from anywhere. For example, I am the Governor of Meru, but since right now I am inMathare,I can carry out my roles there because documents can be brought to me to sign.That is an instance which I would have wished it was made clear that authority has to do with office.

We have disbursed Kshs1.8 trillion to counties, but looking at the counties in this whole Republic one wonders why we are not seeing how that money has been utilized. We want to see big hospitals and good schoolsput up everywhere we go.

Mr. Deputy Speaker, Sir, when I listened to Judge Mumbi Ngugi make her ruling, I must say I was inclined to agree with her. She talked of hygiene of the Constitution. I understood her to be saying that if your behavior is polluting the hygiene of the Constitution, then that behaviour cannot be constitutionally right even if you could defend it somewhere.

The rulings that we make in this House should not just be geared towardsprotecting counties; we must protect the counties and the hygiene of the Constitution. The hygiene of the Constitution has to do with devolving services to Wanjiku; services down there where medicine is brought to the dispensaries. The situation as it is today desires to be looked into seriously.

I am sorry, Mr. Deputy Speaker, Sir. I believe that is all.

It is okay, Sen. (Eng.) Maina. Those are important views. They are alternative views and you know nobody has finality in terms of wisdom and knowledge. Wisdom and knowledge is infinite.

You have raised two issues. The first one about authority is partly true, but also given the example you have used of the Speaker of the Senate,there are some powers and functions that the Speaker of the Senate cannot exercise unless they are seated officially in the Senate Chamber. There are other powers which the Speaker of the Senate exercises daily either from his office or elsewhere like approving Motions. The Speaker does not need to come here and approve Motions. You will not say that since that Motion was approved by the Speaker from somewhere else, it is not an approval.

However, the Speaker also cannot conduct the sitting of the Senate from town. He has to be here or another gazetted place. In fact, when we move out of here, we have to gazette in the Kenya Gazette where that sitting of the Senate will be.

Therefore, I agree with you that authority is geographic and locational and has to do with the office. Therefore, borrowing the argument to the issue of governors, I agree that there could be some functions that the governors in question may not be in a position to discharge. That is why I said Justice Mumbi was saying, “A good governor who minds about the people and respects the Constitution should not punish his people because of

Thank you, very much. That brings us to the end of that matter.

Sen. (Eng.) Maina, are you on the same issue of deputy governors?

Mr. Deputy Speaker, Sir, I rise to make my contribution, not to support, but oppose the National Assembly Bill, the Statues Law Miscellaneous (Amendment) Bill.

Last year, there was an omnibus amendment Bill from the National Assembly that introduced Section 9 (a) on the Registration of Persons Act which ended up introducing the famous Huduma Namba that has never proven to be anything.

I have gone through the National Assembly Bill and I think this is a very bad way of trying to develop legislation in this country. What I have come to learn is that in all

It is okay, Sen. (Eng.) Maina. Those are important views. They are alternative views and you know nobody has finality in terms of wisdom and knowledge. Wisdom and knowledge is infinite.

You have raised two issues. The first one about authority is partly true, but also given the example you have used of the Speaker of the Senate,there are some powers and functions that the Speaker of the Senate cannot exercise unless they are seated officially in the Senate Chamber. There are other powers which the Speaker of the Senate exercises daily either from his office or elsewhere like approving Motions. The Speaker does not need to come here and approve Motions. You will not say that since that Motion was approved by the Speaker from somewhere else, it is not an approval.

However, the Speaker also cannot conduct the sitting of the Senate from town. He has to be here or another gazetted place. In fact, when we move out of here, we have to gazette in the Kenya Gazette where that sitting of the Senate will be.

Therefore, I agree with you that authority is geographic and locational and has to do with the office. Therefore, borrowing the argument to the issue of governors, I agree that there could be some functions that the governors in question may not be in a position to discharge. That is why I said Justice Mumbi was saying, “A good governor who minds about the people and respects the Constitution should not punish his people because of

his personal circumstances. They should be able to tell their deputies to fill those gaps so that people do not suffer”.

On the second issue of hygiene, I totally disagree. Hygiene is a political term; it is not a legal term. There are things Sen. Orengo keeps on repeating here and I do not think we have understood them well. I think Sen. Orengo is one of the longest serving politicians and lawyers. He has represented all manner of people.

There is a reason an accused person is presumed innocent. In fact, there are many cases where innocent people are dragged to court. You cannot, therefore, imagine that as soon as somebody is charged, they are dirty and are not hygienic. They are presumed innocent; in fact, they are clean.As a good Judge will tell you, it is better to give the benefit of the doubt to a guilty man than to convict and punish an innocent man.

In fact, I have even misquoted it. It is a judgement which said: “It is better to set free a thousand guilty people than to convict and punish one innocent person.” Therefore, there is a reason why there is a presumption of innocence. The fact that you are dragged to court could be due to politics; it could be erroneous or malicious things. You would rather have guilty people benefiting from that than an innocent person suffering the consequences of the so-called “doctrine of hygiene” which I do not find anywhere in the Constitution, anyway.

Order, Senators, having said that, we have come to the end of that. I think we were on Order No. 23. I do not see any other request. Let us go to Sen. Olekina. Before Sen. Olekina takes the Floor, I want to give the following direction: Once we finish debate on this matter, we will go to Order No. 25, time permitting, which is the item by Sen. (Eng.) Maina.

Sen. (Eng.) Maina, I hope you have a seconder. Very well. Proceed, Sen. Olekina. (Resumption of debate on Bill)

Mr. Deputy Speaker, Sir, I rise to make my contribution, not to support, but oppose the National Assembly Bill, the Statues Law Miscellaneous (Amendment) Bill.

Last year, there was an omnibus amendment Bill from the National Assembly that introduced Section 9 (a) on the Registration of Persons Act which ended up introducing the famous Huduma Namba that has never proven to be anything.

I have gone through the National Assembly Bill and I think this is a very bad way of trying to develop legislation in this country. What I have come to learn is that in all

You beg to move.

farmers selling milk, but it is wrong when people decide to adulterate to preserve the milk for a longer period. When we have an Act of Parliament, there is nothing that protects the consumers.

Mr. Deputy Speaker, Sir, I oppose this punitive law in this Bill and I hope that we can be able to bring more sound amendments to the Act; some which are meant to encourage young farmers to be able to create young business, but not to decide that it is only a few people who can start the dairy industry.

There are other Bills which the Miscellaneous Amendment Bill tends to amend that I will comment on. They are Bills that deal with the issue of public finance management. I saw an amendment which is sought. When you read it carefully, this one on the Public Procurement and Disposal Act (PPDA), I do not suppose that this is an amendment that should be brought in through an omnibus Bill.

I agree with Sen. Mutula Kilonzo Jnr., that there are three Bills which should be looked at carefully. One is the one that deals with procurement. The second one is the one that deals with the public finance management. Any amendments that come in, I can bet you it could be somebody trying to sneak in something. I keep on saying that sometimes we go out there and start complaining that the Government is not doing this or that, or it is punishing its citizens, but you will find that in most cases, we the elected legislators are not usually here to scrutinize such amendments, and then we come and complain later when they become Acts of Parliament.

I know all of us are busy, but it is about time that we took our jobs seriously to look at these amendments that are coming up. Somebody is trying to sneak in an amendment through this omnibus Bill to ensure that any job that they do, they are paid directly. There is a place I read here that money is paid directly to the contractors.

Mr. Deputy Speaker, Sir, I oppose this Bill and I hope that subject to your ruling on the status of this Bill, we can be able to really sit down and send the Bill back to National Assembly and demand that any amendment that has to do with dairy the industry, has to do with the issue of quality control and protecting farmers, but not to create jobs for certain individuals.

On the issue of public finance management, we should never entertain in this House an omnibus Bill that brings in free Acts of Parliament and amends different provisions that you would find, if they are well scrutinized, they are not good for this country.

I oppose.

Very well, I see no other request. Mover, please reply.

Very well.

Mr. Deputy Speaker, Sir, I have taken notice of all the comments that have been made by Senators. From the ones that are in favour of the Bill as well as those who are not. This includes all the concerns, objections and the critical issues of being alive to the fact that 11 laws are being amended. So, we must be very careful as we go this direction so that we make sure nothing is sneaked in there.

Mr. Deputy Speaker, Sir, I beg to move.

Thank you. You can have your seat. Sen. Kihika, I just want to offer some guidance. When you are called upon to reply, you start by saying; “Mr. Deputy Speaker, Sir, I beg to reply.” Then you talk and when you finish, you say: “I beg to move.”

Further to my direction yesterday, there shall be no Division on this Bill on the Second Reading until I give a ruling on the point of order raised by Sen. Sakaja of Nairobi City County yesterday. It raised a substantive constitutional issue.

I also want to clarify again, in my view, concerning this particular Bill. It is not the number of Bills being amended that would perhaps raise issues, it is the substance of those amendments. In fact, the more the Acts of Parliament being amended, the better because that then qualifies to be a miscellaneous amendment Bill which amends various laws instead of bringing one by one. However, the amendments should not be so substantive as to defeat the object of a miscellaneous amendment Bill.

We will wait. I have promised to give a ruling on the first day of the Fourth Session which is sometime in February, 2020 considering that we rise tomorrow for recess.

Hon. Senators, just to repeat the earlier direction which is that today’s ruling be reproduced in hard copy and put in the pigeon holes of every Senator by noon tomorrow. This is on the understating that we will be proceeding for recess.

We now proceed to Order No.25.

Mr. Deputy Speaker, Sir, I beg to move.

Very well.

you with. It may be a name or character out of their making, but that is the name that is in their mind.

As Senators and lawyers in this House may know, when you want to use that name, it is an extremely tedious exercise. It is actually something that also touches on other constitutional matters of the freedom of the candidate. I am trying to say that for example, the people of Meru County could easily adopt the name “Mr. Speaker” or they may call you “Order” because they hear you saying; “Order”. It is just the way we were calling Hon. Kaparo in the “Lower” House. If hon. Kaparo, was to vie, he may wish to be referred to as “Order”. I have a personal experience on this. The world today requires that you go through the rigorous process of changing your name in your Identity (ID) card and all documents. This invades your constitutional freedom.

Mr. Deputy Speaker, Sir, for example, you might have married as a young man and that name will not appear on the marriage certificate. If you are not there tomorrow, your family could be taken through rigorous motions of proving that you are a relative because the ID shows something different. All these becomes necessary because you want to serve the people and people have come up with a name that they feel they want you to use.

This scenario is in other countries in the world. In the United States of America (USA) in the states of Nevada, Texas and California, they actually allow people to include their nicknames or names they are referred to during elections. One can even have it in the ballot. In Canada, they have a system where they allow you to use your name.

Therefore, Mr. Deputy Speaker, Sir, mine is to try and bring the necessary amendment in the Elections Act, to allow the candidates choose whichever name they may wish to be identified with. One can go through the normal legal framework of affidavit and after that, the Independent Electoral and Boundaries Commission (IEBC) should be able to adopt that name. It should truly be the name that should be used to identify you.

As the case is now, some people are forced to use the name on the ID and they lose many votes.This again infringes on the will of the people. A person will go and say that he wants to elect Ephraim Mwangi Maina, as I am known. Somebody will then look through the list of candidates and pretend they do not know what you are saying. Somebody else will come and say they want Eng. Kirinyaga which does not appear anywhere on the ballot. They could be led to mark for another candidate. This mischief can and has occurred.

Mr. Deputy Speaker, Sir that is what this Bill is trying to prevent. It wants to give the candidates their freedom of identity and also give the public an easy way of identifying them. When the matter went to the IEBC and all other bodies including the public, they had no objection. Therefore, I feel that this is a matter that is timely as we advance and nourish democracy in this country.

With those remarks, I beg to move and invite Sen. Olekina to second the Bill.

Thank you, Sen. (Eng.) Maina. That is very straight forward.

Kindly proceed, Sen. Olekina.

Thank you, Mr. Deputy Speaker, Sir. I rise to move that The Election (Amendment) Bill (Senate Bills No.18 of 2019) be now read a Second Time.

In brief terms, let me explain the purpose of this Bill. During elections, as most Senators may be aware, the electorate may give you a name that they generally identify

you with. It may be a name or character out of their making, but that is the name that is in their mind.

As Senators and lawyers in this House may know, when you want to use that name, it is an extremely tedious exercise. It is actually something that also touches on other constitutional matters of the freedom of the candidate. I am trying to say that for example, the people of Meru County could easily adopt the name “Mr. Speaker” or they may call you “Order” because they hear you saying; “Order”. It is just the way we were calling Hon. Kaparo in the “Lower” House. If hon. Kaparo, was to vie, he may wish to be referred to as “Order”. I have a personal experience on this. The world today requires that you go through the rigorous process of changing your name in your Identity (ID) card and all documents. This invades your constitutional freedom.

Mr. Deputy Speaker, Sir, for example, you might have married as a young man and that name will not appear on the marriage certificate. If you are not there tomorrow, your family could be taken through rigorous motions of proving that you are a relative because the ID shows something different. All these becomes necessary because you want to serve the people and people have come up with a name that they feel they want you to use.

This scenario is in other countries in the world. In the United States of America (USA) in the states of Nevada, Texas and California, they actually allow people to include their nicknames or names they are referred to during elections. One can even have it in the ballot. In Canada, they have a system where they allow you to use your name.

Therefore, Mr. Deputy Speaker, Sir, mine is to try and bring the necessary amendment in the Elections Act, to allow the candidates choose whichever name they may wish to be identified with. One can go through the normal legal framework of affidavit and after that, the Independent Electoral and Boundaries Commission (IEBC) should be able to adopt that name. It should truly be the name that should be used to identify you.

As the case is now, some people are forced to use the name on the ID and they lose many votes.This again infringes on the will of the people. A person will go and say that he wants to elect Ephraim Mwangi Maina, as I am known. Somebody will then look through the list of candidates and pretend they do not know what you are saying. Somebody else will come and say they want Eng. Kirinyaga which does not appear anywhere on the ballot. They could be led to mark for another candidate. This mischief can and has occurred.

Mr. Deputy Speaker, Sir that is what this Bill is trying to prevent. It wants to give the candidates their freedom of identity and also give the public an easy way of identifying them. When the matter went to the IEBC and all other bodies including the public, they had no objection. Therefore, I feel that this is a matter that is timely as we advance and nourish democracy in this country.

With those remarks, I beg to move and invite Sen. Olekina to second the Bill.

Thank you, Sen. (Eng.) Maina. That is very straight forward.

Kindly proceed, Sen. Olekina.

Thank you, Mr. Deputy Speaker, Sir. I congratulate the Chairperson of the Committee on Energy who is the Senator for Nyeri. This Bill is a clear indication of innovative thinking. I am lucky because my legal name is also my nickname and it worked to my advantage. Nicknames are unique unlike the legal names. We should give people the option of knowing who their leaders are just as they have the option of choosing their leaders.

Most Members of Parliament have nicknames that can easily be associated with them. Therefore, even the leadership at the national and county level, Members of County Assemblies (MCAs) and everybody has a unique name.

Mr. Deputy Speaker, Sir, the Committee on Justice, Legal Affairs and Human Rights deliberated on this issue, which is our purview. We thought that it was a very innovative idea; like Sen. Olekina said, his Maasai name is ole Cheput. I do not know how you pronounce that Maasai name, but it can be includedso that people know that Sen. Olekina is now Sen. ole Cheput. It even becomes easy as he runs for any seat in the future. Legally, of course, it has been tedious to change a name, especially after marriage. When you change to another name, sometimes it must be gazetted and it becomes very tedious. However, I think when we bring this amendment, as the key players in the political arena, we will see---

I do not know, Mr. Deputy Speaker, Sir, because as Sen. Kihika has said, I wish that the owner of the Bill,Sen. (Eng.) Maina,could be very careful. This is because I can have three or four names that are known. I could be having a Swahili name because I

There are two other Senators who want to speak; I request them to be brief. Administratively, they do have their time, but I would like us to dispose of this item. It has been here for a very long time because the Senator was absent with permission. I am noting the terms and context of Article 179 (5) of the Constitution. We can have the Mover reply then we dispose of this Bill. It is also a

Thank you. Let us have the Mover. You can just say you beg to move, and if you want to request---

Order, Sen. Olekina! You have no power to do what you are doing. You have no power to talk across the aisle.

Thank you very much, Mr. Deputy Speaker, Sir. I have listened to the few ideas posed here and there. On the issue of putting names in brackets, I leave that to the drafting and the Commission to see how best that should be done.

On the choice of name, if you have many nicknames, it is upon you to choose one name. You cannot have your freedom throughout, because it will inconvenience the world. Pick one name, and whichever name you pick, that is your fate.

Thank you, Mr. Deputy Speaker, Sir. I congratulate the Chairperson of the Committee on Energy who is the Senator for Nyeri. This Bill is a clear indication of innovative thinking. I am lucky because my legal name is also my nickname and it worked to my advantage. Nicknames are unique unlike the legal names. We should give people the option of knowing who their leaders are just as they have the option of choosing their leaders.

Most Members of Parliament have nicknames that can easily be associated with them. Therefore, even the leadership at the national and county level, Members of County Assemblies (MCAs) and everybody has a unique name.

Mr. Deputy Speaker, Sir, the Committee on Justice, Legal Affairs and Human Rights deliberated on this issue, which is our purview. We thought that it was a very innovative idea; like Sen. Olekina said, his Maasai name is ole Cheput. I do not know how you pronounce that Maasai name, but it can be includedso that people know that Sen. Olekina is now Sen. ole Cheput. It even becomes easy as he runs for any seat in the future. Legally, of course, it has been tedious to change a name, especially after marriage. When you change to another name, sometimes it must be gazetted and it becomes very tedious. However, I think when we bring this amendment, as the key players in the political arena, we will see---

I do not know, Mr. Deputy Speaker, Sir, because as Sen. Kihika has said, I wish that the owner of the Bill,Sen. (Eng.) Maina,could be very careful. This is because I can have three or four names that are known. I could be having a Swahili name because I

It is Sen. Olekina!

Yes, Mr. Deputy Speaker, Sir; but I am used to Lenana. I wish---

Thank you very much, Mr. Deputy Speaker, Sir. I have listened to the few ideas posed here and there. On the issue of putting names in brackets, I leave that to the drafting and the Commission to see how best that should be done.

On the choice of name, if you have many nicknames, it is upon you to choose one name. You cannot have your freedom throughout, because it will inconvenience the world. Pick one name, and whichever name you pick, that is your fate.

Thank you, Sen. (Eng.) Maina. You have done a good job. If you have many names, like Baba, Jakom or Karumaindo, you should choose one.

Yes, Mr. Deputy Speaker, Sir; but I am used to Lenana. I wish---

Order! That one is for out there, not here. Is it a nickname?

No, Mr. Deputy Speaker, Sir. He was a paramount chief in Maasai land, and it is also the name of the top most point of Mt. Kenya.

I also thank you, Mr. Deputy Speaker, Sir, the Whip and the Clerks-at-the-Table.

Thank you, Sen. (Eng.) Maina. You have done a good job. If you have many names, like Baba, Jakom or Karumaindo, you should choose one.

Hon. Senators, it is now 6.26 p.m., time to interrupt the business of the Senate. The Senate, therefore, stands adjourned until tomorrow, Thursday, 5th December, 2019 at 2.30p.m.

The Senate rose at 6.26 p.m.