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21st May 2021 Parliamentary Round Up

NATIONAL ASSEMBLY

PAPERS LAID

  • The Report of the Departmental Committee on Justice and Legal Affairs on the consideration of a Nominee for appointment as the Chief Justice of the Republic of Kenya was laid at the Table of the House.

COMMUNICATION FROM THE CHAIR

Special Sitting of the House

The House held a special sitting to deliberate on the following matters:

  1. Tabling of the Report of the Departmental Committee on Justice and Legal Affairs on the vetting of the nominee for appointment to the position of Chief Justice of the Republic of Kenya;
  2. Tabling of any other Papers with statutory timelines;
  3. Transaction of the following business—

Notice of Motion and consideration of Special Motion for the approval of appointment of a Chief Justice of the Republic of Kenya;

Consideration of the Reports of the Committee on Delegated Legislation on the following:

  1. The Exemption from Income Tax for Japanese Companies, Japanese Consultants and Japanese Employees (Legal Notice No. 15 of 2021 of 26th February, 2021);
  2. The Public Finance Management (National Drought Emergency Fund) Regulations, 2021, (Legal Notice No. 27 of 2021 of 5th March, 2021); and,
  3.  Exemption from Income Tax for Airlines with Government of Kenya Shareholding of at least 45% and its subsidiaries; (Legal Notice No. 27 of 2021 of 17th March, 2021);

Second Reading of the Public Private Partnerships Bill, 2021;

Committee of the whole House on the Kenya National Library Service Bill, 2020; and the Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) Bill, 2020.

MOTIONS

Appointment of Chief Justice

The House considered the findings of the Departmental Committee on Justice and Legal Affairs in its Report on the consideration of a Nominee for appointment as the Chief Justice of the Republic of Kenya, laid on the Table of the House on Wednesday, May 19, 2021, and approved the appointment of Hon. Lady Justice Martha Karambu Koome as the Chief Justice of the Republic of Kenya.

Exemption from Income Tax for Japanese Companies, Consultants and Employees

The House adopted the Report of the Committee on Delegated Legislation on its consideration of Legal Notice No. 15 of 2021 on the Exemption from Income Tax for Japanese Companies, Japanese Consultants and Japanese Employees, laid on the Table of the House on Thursday, May 13, 2021, and approved Legal Notice No. 15 of 2021.

The legal basis for granting the exemption is provided for under Section 13(2) of the Income Tax Act, Cap 470 that empowers the Cabinet Secretary, National Treasury to provide that any income or class of income which accrued or derived from Kenya be exempted from tax to the extent specified in such a Notice and that any such exemption shall cease to have effect either generally or to the extent specified in the Notice.

The Legal Notice that seeks to exempt Japanese companies, Japanese consultants and Japanese employees was published on 26th February 2021 and submitted to the Clerk of the National Assembly on 9th March, 2021. It was laid before the house on 23rd March, 2021 in accordance with Section 11 of the Statutory Instruments Act, 2013. The exemption is in respect of income accruing in or derived from Kenya by Japanese companies, consultants and employees involved in the projects under the Financing Agreements signed between the Government of Kenya and Government of Japan.

The policy and requirement of the Government of Japan is to have Japanese companies, consultants and employees involved in the implementation of any project financed by the Government of Japan exempted from tax. This is not limited to Kenya but is the requirement by the Government of Japan and any other Government. The financing Agreements signed between the Government of Kenya and the Government of Japan include:

  • The project for the Improvement of Power Distribution System in Nakuru City and around Mombasa City signed on 18/9/20.
  • The project for the Infrastructure Development in Mombasa Special Economic Zone at Dongo Kundu Area signed on 27/2/2020.
  • The Project for Enhancing Trade Facilitation and Border Control Capacity in East Africa. 6/11/2019.
  • The Project for Human Resource Development Scholarship signed on 18/9/20.

The Public Finance Management (National Drought Emergency Fund) Regulations, 2021

The House adopted the Report of the Committee on Delegated Legislation on its consideration of the Public Finance Management (National Drought Emergency Fund) Regulations, 2021, laid on the Table of the House on Thursday, May 13, 2021 and approved the Regulations.

Section 24 (4) of the Public Finance Management Act, 2012 provides for the establishment of the Public Finance Management (National Drought Emergency Fund) Regulations, 2021 with the approval of the National Assembly for matters relating to drought. The objective and purpose for the establishment of the National Drought Emergency Fund are:

  1. To improve the effectiveness and efficiency of the drought risk management symptoms in the country;
  2. To facilitate resilience building, preparedness and timely response to drought during its different stages in order to reduce and minimise the negative effects of drought;
  3. To receive financial resources from different partners who support government on drought risk management interventions; and
  4. To provide for a common basket emergency fund in order to facilitate faster, transparent, predictable and accountable release of funds for drought risk management. The Fund will be utilised for capacity and technical expertise development to improve on drought risk management systems and also provide for the establishment, management and coordination of programmes, projects or activities to further the forgoing objects and purposes.

The Regulations further provide for the sources of the Fund, including initial capital of the Fund appropriated by Parliament of Kshs. 2 billion.

Exemption from Income Tax for Airlines with Government of Kenya

The House adopted the Report of the Committee on Delegated Legislation on its consideration of Legal Notice No. 27 of 2021 on the Exemption from Income Tax for Airlines with Government of Kenya Shareholding of at least 45% and its subsidiaries, laid on the Table of the House on Thursday, May 13, 2021, and approved the Legal Notice No. 27 of 2021.  

The Legal Notice seeks to exempt an airline in which the Government of Kenya owns at least 45% of its shares in particular the Kenya Airways Ltd and its subsidiaries, Kenya Airfreight Handling Limited, Jambojet Limited, African cargo Handling Limited, Kencargo Airlines International Limited and Fahari Aviation Limited (Pride Oil Limited).

The request for exemption from paying minimum tax is premised on the following grounds: –

  1. The Covid-19 pandemic affected the operation of airlines worldwide and thus worsened the financial position of the already ailing company which has been making losses in the recent past;
  2. Considering its financial operations, the minimum tax will render the Company’s operations unsustainable;
  3. The Airline continued to pay lease expenses even during suspension of all international operations occasioned by the Covid-19 Pandemic, this in addition to other costs such as regular inspection of aircrafts in compliance with international regulations thus increasing the likelihood of making losses; and
  4. Kenya Airways Limited as the national carrier plays a pivotal role in the economy through marketing Kenya as a tourism destination, trade facilitation, job creation among others.

It was therefore considered prudent to grant the exemption from minimum tax to support the company continue its operations until it returns profitability.

BILLS

The Public Private Partnerships Bill (National Assembly Bill No. 6 of 2021)

By the Leader of the Majority Party

The Bill was coming up for Second Reading.

The main objective of the Bill is to provide for the participation of the private sector in the financing, construction, development, operation or maintenance of infrastructure or development projects through public private partnerships; to streamline the regulatory framework for the public private partnerships; to repeal the Public Private Partnerships, 2013. The Bill proposes to enhance efficiency in the regulatory process of engagement of private parties and the manner in which public private partnerships are conducted so as to ensure the provision of high quality facilities and services. It provides a comprehensive framework for the implementation of public private partnerships and addresses the gaps in the existing legal framework.

The Bill was accordingly read the second time and passed.

The Kenya National Library Service Bill (National Assembly Bill No. 5 of 2020)

By the Leader of the Majority Party

The Bill was coming up for consideration under the Committee of the Whole House. It was noted that the Clerk’s office received various proposed amendments to the Bill from several members. The amendments were referred to the Departmental Committee on Sports, Culture and Tourism for harmonization before the bill is considered by the Committee of the Whole House. The Bill was thus not considered in the Committee of the Whole House.

The Bill seeks to give effect to the Constitution in order to promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage

The Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) Bill (National Assembly Bill No. 27 of 2020)

By the Chairperson, Departmental Committee on Administration and National Security

The Bill was coming up for consideration under the Committee of the Whole House.

The Bill’s main object includes amending the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994 in order to enhance penalties related to the offences in possession and trafficking in narcotics and psychotropic substance and define precursors and chemicals substances which may be used in manufacture of narcotics among others.

The Committee of the Whole House considered the Bill and approved the same with amendments. The Bill was accordingly read a third time and passed.

SENATE

PAPERS

The following papers were laid at the Table of the House:

  • Report of the Special Committee on the proposed removal from office, by impeachment, of H.E Gov. Mohammed Abdi Mohamud the Governor of Wajir County.
  • Report of the Auditor-General on Financial Statements of the County Assembly of Narok for the year ended 30th June 2019.
  • Report of the Auditor-General on the Financial Statements of Narok County Executive for the year ended 30th June 2019.

COMMUNICATION FROM THE CHAIR

Special Sitting

The House held a special sitting on Monday, 17th May, 2021 to consider the report of the Special Committee established to investigate the proposed removal from office, by impeachment, of the Hon. Mohammed Abdi Mohamud, the Governor of Wajir County.

The Senate established a Special Committee comprising eleven (11) of its Members to investigate the proposed removal from office, by impeachment, of the Governor of Wajir County on Thursday, 6th May, 2021. The Committee was to report to the Senate within ten (10) days of its appointment, on whether it finds the particulars of the allegations to have been substantiated.

The Declaration of Vacancy of the Seat Held by Hon. (Dr.) Isaac Mwaura

On Tuesday 11th May, 2021, during the Sitting of the Senate, the Speaker issued a Communication on the declaration of a vacancy of a seat of Hon. Isaac Mwaura a member of the Senate after expulsion from the party.

On 10th May, 2021, vide a letter dated 10th May, 2021, Ref: JP/RA-S/21, the Secretary-General of the Jubilee Party wrote to the Speaker of the Senate forwarding the judgment of the Political Parties Disputes Tribunal in Complaint No. E002 of 2021, Hon. Isaac Mwaura Maigua vs Jubilee Party and Another. The tribunal upheld that the expulsion of Hon. Isaac Mwaura Maigua was conducted in accordance with the law and dismissing the complaint by Hon. Isaac Mwaura Maigua against the same.

In the said letter, the Secretary-General also requested the Speaker of the Senate to among other things, issue a declaration of vacancy of the seat being held by Hon. Isaac Mwaura Maigua for purposes of implementing the decision. The Secretary-General of Jubilee Party made reference to two previous communications made with regard to the question of the expulsion of Hon. Isaac Mwaura Maigua from the Jubilee Party. On the same date, the Speaker also received a letter dated 10th May, 2021 from the Registrar of Political Parties and addressed to Secretary-General of the Jubilee Party, confirming the removal of the name of Hon. Isaac Mwaura Maigua from the Jubilee Party membership list effective 29th March, 2021.

Based on the confirmation vide letter dated 10th May, 2021, the Speaker proceeded to issue a Gazette Notice No. 4797 dated 10th May, 2021 declaring a vacancy in the Senate for a seat of a member elected under Article 98(1) (d) of the Constitution and held by Hon. Isaac Mwaura Maigua effective 7th May, 2021. He further proceeded and communicated to the Senate the occurrence of a vacancy at its sitting held on Tuesday, 11th May, 2021 at 2:30 p.m. The events leading to the issuance of the declaration dates back to March, 2021.

Thus, on 29th March, 2021, the Office of the Clerk of the Senate received a letter dated 26th March, 2021, from the Secretary-General of the Jubilee Party requesting for the declaration of a vacancy of the seat held by Hon. Isaac Mwaura Maigua and called the attention of the House to the ruling of the Political Parties Disputes Tribunal dismissing the application for stay of the decision for expulsion. The order of the Political Parties Disputes Tribunal regards an application for conservatory orders based on a Notice of Motion dated 9th February, 2021 filed by Hon. Isaac Mwaura Maigua.

In the notice of Motion, Hon. Isaac Mwaura sought orders that- “Pending hearing and determination of the complaint herein, the 1st and 2nd Respondents be and are hereby restrained from implementing the impugned decision of the 1st Respondent, expelling the applicant from the Jubilee Party (the 1st Respondent)”. In considering the application for conservatory orders, the Tribunal noted that- “Both the complainant and the 1st Respondent had maintained a justiciable claim against each other for breach of various laws. Both parties have raised contentions, which require consideration on merit and are not liable to be rejected summarily. The case could go either way subject to evidentiary material that can only be analysed conclusively after a substantive hearing.”

The Tribunal further noted that- “The claimant’s primary concern at this stage would be the preservation of the subject matter of the complaint. The court further noted that the 2nd Respondent at paragraph 10 of its Replying Affidavit and further during the hearing of the application, submitted to the authority of the Tribunal and the value of the rule of law, and stated that they would await the outcome of these proceedings before any further action. There is thus no demonstrated threat of conclusive implementation of the 1st Respondent’s decision during the pendency of these proceedings”. On the basis of the foregoing, the Tribunal dismissed the notice of Motion and directed the parties to take directions on priority hearing of the substantive complaint on merit.

Hon. Isaac Mwaura Maigua being dissatisfied with the ruling and orders of the Tribunal, appealed to the High Court. In this respect, therefore, the Speaker of the Senate was in receipt of an order of the High Court in Civil Appeal No. E167 of 2021 (Hon. Isaac Mwaura Maigua vs Jubilee Party and Another), in which the court, inter alia, ordered a stay of execution of the impugned orders of the Tribunal and further that- “Pending the hearing and determination of the application inter parties, the 1st Respondent, 2nd Respondent, the Independent Electoral and Boundaries Commission (IEBC), and the Speaker of the Senate, be barred from further implementing the decision of the 1st and 2nd  Respondent.”

Further, by a letter dated 29th March, 2021, the Registrar of Political Parties indicated to the Clerk of the Senate that “on the basis of the decision of the Jubilee Party as contained in the documents and correspondence submitted to this office, and in line with Section 14 (5A) of the Political Parties Act, 2011, together with all other relevant laws, this office has removed the name of Hon. Isaac Mwaura Maigua from the Jubilee Party membership register pending the adoption and ratification of the same by the National Executive Committee (NEC) in accordance with Article 13.1.12 as read together with Article 13.4 of the Jubilee Party Constitution”.

The question that arose was whether the Speaker acted within the law by issuing the gazette notice declaring a vacancy upon the expulsion of a member of the Senate, in this case declaration of a seat held by Hon. Isaac Mwaura Maigua. Considering the sequence of the events and on the basis of the order of the High Court in Civil Appeal No. E167 of 2021, the Speaker of the House made a decision not to take any action with respect to the request to declare a vacancy in the seat held by Hon. Isaac Mwaura pending the determination of the Court Case being the substantive hearing of the appeal of the ruling of the Tribunal on the conservatory orders sought by Hon. Isaac Mwaura Maigua pending the hearing and determination of the substantive suit before the Tribunal.

On 10th May, 2021, the Speaker received the judgment of the Political Parties Disputes Tribunal in Complaint No. E002 of 2021, Hon. Isaac Mwaura Maigua vs Jubilee Party and Another upholding that the expulsion was conducted in accordance with the law and dismissing the complaint by Hon. Isaac Mwaura against the same. Consequently, in view of all the documentation and based on the law, the Speaker declared a vacancy in the Senate for a seat of a member elected under Article 98 (1) (d) of the Constitution and held by Hon. Isaac Mwaura Maigua.

Article 103 (1) (e) (i) of the Constitution provides that- “the office of a member of Parliament becomes vacant if, having been elected to Parliament as a member of a political party, the member resigns from that party or is deemed to have resigned from the party as determined in accordance with the legislation contemplated in Clause (2)”. Further, Regulation 56A of the Elections (General) Regulations, 2012 provides for the re-allocation of special seats from the Party list in the following terms-

Where a political party expels a member elected through a party list during the term of Parliament or County Assembly as the case may be, the party shall be required to submit-

  1. a resolution or decision of the party;
  2. a notification by the Registrar of Political Parties affecting the expulsion;
  3. a declaration of vacancy from the relevant Speaker; and
  4. a court order sanctioning the expulsion where applicable, to the Commission for re-allocation.

Regulation 56A (1) (c) provides that upon expulsion of a member elected through a party list, the party should submit among others a declaration of vacancy from the relevant Speaker. The Speaker indicated that this provision places a mandatory legal requirement for a Speaker to issue a declaration of vacancy once it is established that a member has been expelled from the party. Thus, having considered the decision of the Political Parties Tribunal and the letter dated 10th May, 2021 from the Registrar of Political Parties, he was persuaded that the requirement of declaring a vacancy had been met and therefore proceeded to declare the said vacancy vide Gazette Notice No. 4597 dated 10th May 2021. He thus reiterated that by issuing the gazette notice, he followed the law and there was no court order barring him from declaring the vacancy.

MESSAGES

The Constitution of Kenya (Amendment) Bill, 2020

The House received a message from the National Assembly regarding the passage of the Constitution of Kenya (Amendment) Bill, 2020. The Message notes that the Constitution of Kenya (Amendment) Bill, 2020 promoted by the Building Bridges Initiative, proposing to amend the Constitution of Kenya was introduced in Parliament pursuant to the provisions of Article 257(7) of the Constitution in the form forwarded to the National Assembly by the Independent Electoral and Boundaries Commission (IEBC). The Bill was Read a First Time on Thursday, 4th March, 2021, considered and passed in Second Reading and Third Reading on Thursday, 6th May, 2021 by votes supported by a majority of all Members of the National Assembly in accordance with the requirements of Article 257(8) of the Constitution.

The Crops Amendment Bill (National Assembly) Bills No. 25 of 2019.

The House received a message from the National Assembly regarding the passage of the Crops Amendment Bill (National Assembly) Bills No. 25 of 2019. The Message notes that following the High Court ruling on 29th October, 2020 on constitutional Petition No.284 of 2019, implementation of the judgement by the Senate to commence.

Notably, the court ordered that the Bills for which the concurrence processes contemplated under Article 103 of the Constitution could not be demonstrated be ceased and that the said concurrence processes be adhered to before introduction of such Bills in either House of Parliament. The Bill was one such Bill for which the concurrence process pursuant to Article 110 (3) of the Constitution had not been demonstrated by the time the High Court gave its judgment. As such, the Bill ought to be aligned with Article 110 (3) of the Constitution, following which the Bill will be read a First Time in the Senate. In view of the forgoing, the Bill as received from the National Assembly will not be proceeded with in the Senate.

PETITIONS

Access to Justice During the Covid-19 Pandemic and the Appointment of Court Reporters

The House was in receipt of a Petition, submitted through the Clerk, by Kevin Ndoho Macharia, a citizen of the Republic of Kenya. The salient issues raised in the said Petition are:

  1. There has allegedly been great difficulty in mention/hearing dates before courts during the prevailing COVID-19 pandemic among others.
  2. Many matters with mention/hearing dates fail to be listed in the cause list to the great injury of advocates’ reputation as a profession when clients who rely on court diaries find out that their matters were postponed yet in some instances the said clients have travelled from far off places and their matters have lasted over many years without completion;
  3. Many certificates of urgency applications to the courts are allegedly delayed and take three to four dates to get any feedback on the outcome;
  4. Obtaining certified and scanned copies of typed court proceedings is allegedly difficult;
  5. Owing to the requirement of fidelity to the reduction of oral evidence into typed text and for court reporters to take oath to uphold the rule of law, there is a need for court reporters to have trained and certified court reporters.
  6. There is need to thus set aside resources to train court reporters and to re-engineer the mission of the national council for law reporting to provide the greatly needed trained and certified personnel; and
  7. There is a need for more resources to be allocated to the function of administration and access to justice to resolve the issues currently being faced.

The Petitioner thus requested the Senate to investigates into the issues and provide solutions with set timelines; review the Civil Procedure Act and the National Council for Law Reporting Act, with a view to delivering access to justice and remediating the delays and frustrations citizens are facing; and, enacts a Court Reporters Act.

The Petition was committed to the Committee on Justice, Legal Affairs and Human Rights for its consideration.

BILLS

The Mental Health (Amendment) Bill (Senate Bills No.32 of 2018)

By Sen. (Arch.) Sylvia Kasanga

The Bill was coming up for Second Reading.

It proposes to impose obligations on each level of government to address the issue of accessibility to mental health services including care, treatment and rehabilitation of persons with mental illness. The Bill also proposes to incorporate within the membership of Kenya Mental Health Board representation of the county governments.

MOTIONS

Proposed Removal from Office by Impeachment of Hon. Mohammed Abdi Mohamud

The House considered the Motion on the Proposed Removal from Office by Impeachment of Hon. Mohammed Abdi Mohamud, the Governor of Wajir County. The Senate, by resolution on Thursday, 6th May, 2021 appointed a special committee comprising eleven of its Members to investigate the matter on the proposed removal from office. The Special Committee investigated the matter and tabled its Report today, Monday, 17th May, 2021. It found that the particulars of the charge namely, Abuse of Office and Gross Misconduct against the Governor of Wajir County was not substantiated. However, the Charge on, Gross Violation of the Constitution of Kenya, 2010; the County Governments Act, 2012; the Public Procurement and Asset Disposal Act, 2015 and the Public Finance Management Act, 2012, against the Governor of Wajir County was substantiated.

Pursuant to Section 33(6) (b) of the County Governments Act and Standing Order No.75 (4) (b), the Senate, after according the Governor of Wajir County, an opportunity to be heard, resolved to impeach the Governor on the ground of gross violation of the Constitution of Kenya 2010, the County Governments Act 2012, the Public Procurement and Asset Disposal (PPAD) Act 2015 and the Public Finance Management PFM Act 2012.

Address by Her Excellency Samia Suluhu Hassan

The House considered a motion on Thanks of the Senate be recorded for the Address to Parliament, by Her Excellency Samia Suluhu Hassan, President of the United Republic of Tanzania, delivered on Wednesday, 5th May, 2021.

STATEMENTS

The following Statements came up on the Floor of the House among others:

  1. Increase in Fuel Prices –  Sen Khaniri made a Statement on the consistent sharp increase of fuel prices in the past few months. The Statement was referred to the Committee on Energy which was ordered to report to the House in the next two weeks.
  2. Conflict Between Palestine and Israel – Sen. Faki made a Statement on the ongoing conflict between Palestine and Israel.
  3. OGP as a Tool for Legislative Oversight and to Promote Accountable Governance – Sen. Cherargei made a Statement on Open Governance Partnerships (OGP) as a tool for legislative oversight and to promote accountable governance. The Open Governance Partnerships (OGP) is a global multilateral initiative that brings together 17 Member countries and 78 local governments to promote transparency, participatory, inclusive and accountable governance. Member states participate in the partnership by a way of submitting two-year action plans with country commitments to achieve within the action plan period. Kenya became a member of OGP in 2011 and has so far implemented three national action plans (NAPs) and is currently implementing its fourth NAP for the period 2020-2022. Kenya is also a member of the Global Steering Committee for the period of 2020-2023.
  4. Illegal Hunting of Bush Meat in Tsavo National Park – Sen. Shiyonga sought a Statement from the Standing Committee of Land, Environment and Natural Resources on the rise of illegal hunting of bushmeat, which poses a threat to Dik-dik and giraffes among other animals in the Tsavo National Park.
  5. State of Preparedness of Nairobi City County Fire Brigade – Sen. Shiyonga sought a Statement from the Standing Committee on National Security, Defence, and Foreign Relations on the state of preparedness of Nairobi City County Fire Brigade in suppressing fire disasters in the City. 
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