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A brief look on the present ICC situation by Alexander Eichener

The decision of the ICC’s pre-trial chamber III, predictably confirming the majority of the charges against 4 of the 6 suspects in the Kenyan situation through its two symmetrically constructed cases, has been expected in this way by most foreign jurists, many Kenyan wananchi, and a few Kenyan lawyers.

The immediate reactions to the ICC announcement are unsurprising. The unthinking reflex of the attorneys of the 4 remaining suspects “we shall appeal” was as predictable as the unwillingness of the Kenyan government to accept the ruling and to take – finally – the appropriate and needed measures. On the contrary, the GoK has openly confirmed, through its new old-style Attorney General Githu Muigai, its commitment to impunity and its intent to continue with its (repeatedly futile) attempts at hoodwinking and procedural sabotage, which the court has already sanctioned several times with clear words and sharp condemnations.

What is maybe just a bit more surprising, is that activists of high repute like Betty Murungi and Gitobu Imanyara are now declaring their apparent wilingness to join the bandwagon of the suspects and the steadfast defenders of impunity, in remarkable contrast to their previously held positions, and in blatant contrast to the continuing suffering of the PEV victims.

The Kenyan media so far have not properly rendered the legal situation and the legal issues of the complex ICC procedure. Indeed, the defence lawyers themselves have often shown not to understand them, in their submissions during the previous proceedings.

Therefore, a short explanatory note may be helpful for one or the other reader. It will be advisable to have the legal texts of the “Rome Statute” and the “Rules of Procedure and Evidence” before you when reading; they are all easily accessible on the ICC website itself.

Firstly: a non-confirmation decision (when the pre-trial chamber declines to confirm a charge) is not an acquittal. Because the court has not decided on the guilt. Rather, it is an “absolutio ab instantia” in sense of the Ius Commune. And as typical with absolutiones ab instantia, the charges can be taken up anew, with additional evidence. This is explicitly stipulated in article 61 par. 8 Rome Statute: “Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall not be precluded from subsequently requesting its confirmation if the request is supported by additional evidence.” There you also have the reason why the prosecution will _not_ seek to appeal (or rather to apply for leave to appeal) against the decision with respect to Ali and Kosgey. Rather than wasting their efforts in a predictably hopeless and wasteful appeal procedure, they will use the chance to add evidence and request a new decison on re-confirmation then, maybe even for the events in Kisumu and Kibera.

Secondly now, a short explanation why the press ballyhoo about “our lawyers shall appeal” is misplaced and misrepresents the legal situation: The court’s confirmation decision is not automatically appealable (no granted right of appeal) under article 81, because only final sentences are vested with an appeal “in ordinary” under this norm. Secondly, the possibility of an applied-for optional appeal under article 82 would require the prior assessment of the same pre-trial chamber (Art. 82 par. 1 d) granting such appealability. Unlike the appeal against a final sentence, which is automatically suspensive (art. 81 par. 4), the here-applying appeal against another decision would have no suspensive effect (art 82 par. 3; reason: there is no arrest warrant, nor any sequester of properties involved). So any stay of proceedings would have to be specifically requested and ordered, which order will not be given here. This norm alone (art. 82 par. 3) shows how blantantly flimsy and false Githu Muigai’s argument is.

Thirdly, let’s have just one brief closer look on the issue, where the Rules of Procedure and Evidence regulate the appeal procedure in more detail. Ad 1, they stipulate that only a limited handful of other issues are appealable de iure, without leave of the court (rule 154, par. 1 and 2), and that the [non-]confirmation decision is none of these. Ad 2, an appeal against a confirmation or non-confirmation decision of the pre-trial chamber would therefore need the same court grant leave of appeal firstly (rule 155 par. 1, referring to article 82 par. 1 d). And this decision (the granting or declining of the leave to appeal) is made by the pre-trial chamber, not by the appeals chamber.

Fourthly, we see a possible divergence of judicial opinions about the appealability, as appears already in the decision itself. Inhowfar? The minority judge Kaul, who dissented from the confirmation decision of the judges Trendafilova and Tarfusser, has already in his dissenting opinion expressed that he feels that the matter be directly appealable, without need to seek leave to appeal (ODM decision, page 163, no. 40, PNU decision page 183, no. 45). He however is wrong there.

a) The very reason why he feels that the decision should possibly be reviewed again, namely the dogmatic importance of the admissibility / jurisdiction requirements and the question of espousing a wider or narrow scoper of ICC jurisdiction, has already been subject to a binding decision by the norm-giver itself. The applicable procedural law sees this as a special question, and regulates it via leges speciales, which override the very generic and wide provision of article 82 par. 1 d, and excludes par. 1 a. Admissibility queries are only to be raised via a special procedure, within narrow limits.

b) The suspects and the government of Kenya may possibly tackle this again now in the trial stage, with an appropriate action if and when given. But this potential special action as such is not a sufficient cause for leave to appeal against the confirmation decision- both are separate things, and the question that the dissenting judge had in mind, can only be raised and reviewed *within* the commenced trial stage.

c) Insofar, judge Kaul has erred at least in this point (though he raises a number of other procedural questions too esp. with regard to the role and the duties of the prosecution, modestly calling them “further observations”), and the majority of the pre-trial chamber would (and should) probably not grant leave to appeal on this aforementioned ground.

Alexander Eichener, RA 26th January 2012

Reproduction and distribution of this draft only with acknowledgement both of the author and the version date.

Intro: The author is a jurist specialized in administrative and constitutional law, and with a penchant for international criminal law. Rather than about Kenyan law, he prefers to write about the unused potential of Kenyan teas and Kenyan sports (beyond athletics), and some of his – hopefully better – fiction can be found on the Kenyan PP(K) website project. His K?embu is weak, his shooting and wine tasting quite good, and his Ogiek comrades assess his hunting prowess as “hopefully improvable” when they are in a charitable mood.

Download the Summary of the decision here

Download the Muthaura, Kenyatta and Ali decision here

Press Statement

ICC Decision on confirmation of Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali on 5 counts of criminal charges of crimes against Humanity at the Hague

SITUATION IN THE REPUBLIC OF KENYA

CRIMES WITHIN THE JURISDICTION OF THE COURT WHICH MUTHAURA, KENYATTA AND ALI HAVE COMMITTED PURSUANT TO ARTICLE 58(2) OF THE ROME STATUTE

Count 1

Murder constituting a crime against humanity (Articles 7(1)(a) and 25(3)(a) or (d) of the Rome Statute)

From on or about 27 December 2007 to 29 February 2008, MUTHAURA, KENYATTA and ALI, as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity, namely the murder of civilian supporters of the Orange Democratic Movement political party in or around locations including Kisumu town (Kisumu District, Nyanza Province), Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(1)(a) and 25(3)(a) or (d) of the Rome Statute.

Decision On Count 1

Francis Kirimi Muthaura – Confirmed

Uhuru Muigai Kenyatta – Confirmed

Mohammed Hussein Ali – Dismissed

Count 2

Deportation or forcible transfer of population constituting a crime against humanity (Articles 7(1)(d) and 25(3)(a) or (d) of the Rome Statute

From on or about 27 December 2007 to 29 February 2008, MUTHAURA, KENYATTA and ALI, as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity, namely the deportation or forcible transfer of civilian population supporting the Orange Democratic Movement political party in or around locations including Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(1)(d) and 25(3)(a) or (d) of the Rome Statute.

Decision On Count 2

Francis Kirimi Muthaura – Confirmed

Uhuru Muigai Kenyatta – Confirmed

Mohammed Hussein Ali – Dismissed

Count 3

Rape and other forms of sexual violence constituting a crime against humanity (Articles 7(1)(g) and 25(3)(a) or (d) of the Rome Statute)

From on or about 27 December 2007 to 29 February 2008, MUTHAURA, KENYATTA and ALI, as co?perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity, namely rape and other forms of sexual violence against civilian supporters of the Orange Democratic Movement political party in or around locations including Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(1)(g) and 25(3)(a) or (d) of the Rome Statute.

Decision On Count 3

Francis Kirimi Muthaura – Confirmed

Uhuru Muigai Kenyatta – Confirmed

Mohammed Hussein Ali – Dismissed

Count 4

Other inhumane acts constituting a crime against humanity (Articles 7(1)(k) and 25(3)(a) or (d) of the Rome Statute)

From on or about 27 December 2007 to 29 February 2008, MUTHAURA, KENYATTA and ALI, as co?perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity, namely the inflicting of great suffering and serious injury to body or to mental or physical health by means of inhumane acts upon civilian supporters of the Orange Democratic Movement political party in or around locations including Kisumu town (Kisumu District, Nyanza Province), Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(1)(k) and 25(3)(a) or (d) of the Rome Statute.

Decision On Count 4

Francis Kirimi Muthaura – Confirmed

Uhuru Muigai Kenyatta – Confirmed

Mohammed Hussein Ali – Dismissed

Count 5

Persecution as a crime against humanity (Articles 7(1)(h) and 25(3)(a) or (d) of the Rome Statute)

From on or about 27 December 2007 to 29 February 2008, MUTHAURA, KENYATTA and ALI, as co?perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity, namely persecution, when co?perpetrators and/or persons belonging to their group intentionally and in a discriminatory manner targeted civilians based on their political affiliation, committing murder, rape and other forms of sexual violence, other inhumane acts and deportation or forcible transfer, in or around locations including Kisumu town (Kisumu District, Nyanza Province), Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(1)(h) and 25(3)(a) or (d) of the Rome Statute.

Decision On Count 5

Francis Kirimi Muthaura – Confirmed

Uhuru Muigai Kenyatta – Confirmed

Mohammed Hussein Ali – Dismissed

Download the summary of the decision here

Download the decision in the Ruto, Kosgey and Sang case here

ICC Decision on confirmation of William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang in the case of 4 counts of criminal Charges of crimes against Humanity at the Hague

SITUATION IN THE REPUBLIC OF KENYA

CRIMES WITHIN THE JURISDICTION OF THE COURT WHICH WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY AND JOSHUA ARAP SANG HAVE COMMITTED PURSUANT TO ARTICLE 58(2) OF THE ROME STATUTE

Count 1

Murder constituting a crime against humanity (Article 7(1)(a) and Article 25(3)(a) or (d) of the Rome Statute)


From 30 December 2007 to the end of January 2008, WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY, and JOSHUA ARAP SANG, as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity in the form of murder in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town in the Uasin Gishu and Nandi Districts, Republic of Kenya, in violation of Articles 7(1)(a) and 25(3)(a) or (d) of the Rome Statute.

Decision On Count 1

William Samoei Ruto  – Confirmed

Henry Kiprono Kosgey – Dismissed

Joshua Arap Sang – Confirmed

Count 2

Deportation or forcible transfer of population constituting a crime against humanity (Article 7(1)(d) and Article 25(3)(a) or (d) of the Rome Statute)

From 30 December 2007 to the end of January 2008, WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY and JOSHUA ARAP SANG as co?perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity in the form of deportation or forcible transfer of population in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town and Nandi Hills town in the Uasin Gishu and Nandi Districts, Republic of Kenya in violation of Articles 7(1)(d) and 25(3)(a) or (d) of the Rome Statute.

Decision On Count 2

William Samoei Ruto  – Confirmed

Henry Kiprono Kosgey – Dismissed

Joshua Arap Sang – Confirmed

Count 3

Torture constituting a crime against humanity (Article 7(1)(f) and Article 25(3)(a) or (d) of the Rome Statute)

From 30 December 2007 to the end of January 2008, WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY and JOSHUA ARAP SANG, as co?perpetrators, or in the alternative as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity in the form of torture by inflicting severe physical or mental pain or suffering upon civilians, in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, and Langas), Kapsabet town and Nandi Hills town in the Uasin Gishu and Nandi Districts, Republic of Kenya, in violation of Articles 7(1)(f) and 25(3)(a) or (d) of the Rome Statute.

Decision On Count 3

William Samoei Ruto  – Confirmed

Henry Kiprono Kosgey – Dismissed

Joshua Arap Sang – Confirmed

Count 4

Persecution as a crime against humanity (Article 7(1)(h) and Article 25(3)(a) or (d) of the Rome Statute)

From 30 December 2007 to the end of January 2008, WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY and JOSHUA ARAP SANG as co?perpetrators, or in the alternative as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity in the form of persecution, when co?perpetrators and/or persons belonging to their group intentionally and in a discriminatory manner targeted civilians based on their political affiliation, committing murder, torture, and deportation or forcible transfer of population, in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town and Nandi Hills town in the Uasin Gishu and Nandi Districts, Republic of Kenya, in violation of Articles 7(1)(h) and 25(3)(a) or (d) of the Rome Statute.

Decision On Count 4

William Samoei Ruto  – Confirmed

Henry Kiprono Kosgey – Dismissed

Joshua Arap Sang – Confirmed

On Monday 23rd January 2012 the Pre-Trial Chamber of the International Criminal Court will announce whether or not serious charges against 6 Kenyans have been confirmed. If the charges are confirmed then trials for crimes against humanity will ensue.  Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali face 5 counts of criminal charges of crimes against humanity at The Hague; while William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang face 4 counts of criminal charges of crimes against humanity at The Hague.

The International Criminal Court cases on Kenya’s post-election violence arose from the Waki Commission of Inquiry into Post Election Violence and the unwillingness and inability of the National Assembly to establish a Special Tribunal to try the perpetrators, masterminds and financiers of the Post Election Violence of 2007-2008.

On 16th December 2008, President Kibaki and Prime Minister Raila Odinga promised Kenyans in writing that any public officer who is charged for offences related to the post election violence of 2007-8 (which the Waki CIPEV Report found resulted in the killing of over 1,133 Kenyans and the forcible displacement of over 500,000 Kenyans) would be immediately suspended from public office. Kenyans want justice for this criminality and expect President Kibaki and Prime Minister Raila Odinga to keep their promises. The Agreement signed by the two Principals of the Government of Kenya, President Mwai Kibaki and Prime Minister Raila Odinga explicitly stated in Article 4 that:

“The Parties shall ensure that any person holding public office or any public servant charged with a criminal offence related to 2008 post-election violence shall be suspended from duty until the matter is fully adjudicated upon.  The parties shall ensure that any person convicted of a post-election violence offence is barred from holding any public office or contesting any electoral position.”

Kenyans have every expectation that should the charges against Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, Mohammed Hussein Ali, William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang be confirmed by the International Criminal Court then the two Principals will fulfill their pledge to Kenyans that any person holding public office or any public servant charged with a criminal offence related to 2008 post-election violence shall be suspended from duty until the matter is fully adjudicated upon. Kenyans also expect that in the event of conviction the particular individuals will be barred from holding any public office or contesting any electoral position.

Francis Muthaura is Secretary to the Cabinet and Kenya’s senior most civil servant. Uhuru Kenyatta is Kenya’s Deputy Prime Minister and Minister for Finance and a presidential candidate in the forthcoming elections.  Hussein Ali is Kenya’s Postmaster General.  William Ruto is a Member of Parliament and a presidential candidate.  Henry Kosgey is a Member of Parliament and Chairman of the ODM political party.  Joshua Sang is a popular radio presenter on KASS FM.

On 5th November 2009, President Kibaki and Prime Minister Raila Odinga signed a further agreement to cooperate with the International Criminal Court within the framework of the Rome Statute and the International Crimes Act.

Mars Group Kenya 20.01.2012

We reproduce the Agreement in full below:

AGREEMENT FOR THE IMPLEMENTATION OF THE RECOMMENDATIONS OF THE COMMISSION OF INQUIRY INTO POST ELECTION VIOLENCE

Recalling the Agreement on the Principles of Partnership of the Coalition Government made on February 28, 2008 and the Agreement for the Establishment of a Commission of Inquiry on Post-Election Violence dated March 4, 2008;
Convinced that the fundamental reforms must be instituted to create a better, more secure, more prosperous Kenya for all;

Desirous to establish a framework for the implementation of the recommendations of the Commission of Inquiry into Post Election Violence as contained in the Report dated October 16, 2008 (“ the CIPEV Report”); and

Pursuant to the National Accord and Reconciliation Act as entrenched in the Constitution of Kenya,

NOW THE PARTIES HERETO HEREBY AGREE AS FOLLOWS:

Article 1: Establishment of the Special Tribunal for Kenya
The Parties shall prepare and submit to the National Assembly for enactment a Bill to be known as “The Statute for the Special Tribunal” to give effect to the establishment of the Special Tribunal to seek accountability against persons bearing the greatest responsibility for crimes, particularly crimes against humanity, relating to the 2007 General Elections in Kenya. The Bill shall provide for the matters recommended by the CIPEV Report in relation to the Special Tribunal for Kenya.

Article 2: Legislative Agenda
The Parties shall mobilize Parliamentary support for the enactment of the Freedom of Information Bill, 2008 and take such administrative measures as may be necessary to fully operationalise the Witness Protection Act, 2008 and the International Crimes Act, 2008.

Article 3: Comprehensive Reform of the Kenya Police and Administration Police
The Parties shall initiate urgent and comprehensive reform of the Kenya Police and the Administration Police. Such reforms shall be undertaken by the panel of policing experts and will include but not limited to a review of all tactics, weapons and the use of force, establishment of an independent Police Service Commission to oversee both the Kenya Police and the Administration Police, an Independent Police Conduct Authority for both the Kenya Police and the Administration Police, creation of a modern code of conduct for the Kenya Police and the Administration Police and achieving ethnic and tribal balance in the Force.

Article 4: Public Officers and Offices
The Parties shall ensure that any person holding public office or any public servant charged with a criminal offence related to 2008 post-election violence shall be suspended from duty until the matter is fully adjudicated upon.
The parties shall ensure that any person convicted of a post-election violence offence is barred from holding any public office or contesting any electoral position.

Article 5: Conflict and Disaster Early Warning and Response System
The Parties shall ensure that the Conflict and Disaster Early Warning and Response Systems as articulated in the First Medium Term Plan (2008-2012) are developed and implemented as a matter of priority.

Article 6: Framework for Implementation
The Parties hereby designate the Cabinet Sub-Committee on National Accord comprising H.E. Mwai Kibaki, President and Commander–in-Chief of the Armed Forces of the Republic of Kenya, Rt. Hon. Raila Amolo Odinga, Prime Minister of the Republic of Kenya and the Eight Ministers who represent the Parties to the Kenya National Dialogue and Reconciliation as the body to oversee the day-to-day management and implementation of this Agreement.

Done at Nairobi this 16th Day of December 2008

H. E. Mwai Kibaki, President and Commander-in-Chief   Party of National Unity Coalition

Rt Hon. Raila Amolo Odinga, Prime Minister   Orange Democratic Movement

———–00———–

NAIROBI, Kenya, Nov 5, 2009

Statement by H.E. the President and the Right Honorable Prime Minister.

We have had a constructive meeting with Mr. Louis Moreno- Ocampo, Prosecutor of the International Criminal Court (ICC).

The discussions were candid and frank. Mr. Moreno-Ocampo has explained to us his mandate and how he intends to execute that mandate.

The Government remains fully committed to discharge its primary responsibility in accordance with the Rome Statute to establish a local judicial mechanism to deal with the perpetrators of the post election violence.

In addition, the Government remains committed to cooperate with ICC within the framework of the Rome Statute and the International Crimes Act.

DATE: November 5, 2009

H. E. Mwai Kibaki, President, Republic of Kenya

Rt Hon. Raila Amolo Odinga, Prime Minister, Republic of Kenya

On 30th June 2011, Jayne Mati of Mars Group Kenya and Davis Adieno of the National Taxpayers Association filed Constitutional Petition No. 108 of 2011 before the Constitutional Division of the High Court of Kenya seeking declarations that it is unconstitutional for the Government to withdraw money from the Consolidated Fund without a statutory basis; and asking the court make further orders to cure the breach of the Constitution.  On 23rd December 2011, High Court Judge Majanja delivered his judgment in the presence of the Attorney General’s State Counsel and the Petitioners’ Counsel.  The Attorney General defended the Treasury’s actions and sought a dismissal of the petition arguing it lacked merit, was frivolous and incompetent and that it was a transition period and no law was broken.

The Facts of the Petition:

1.     On the 16th June 2011 the National Assembly passed a motion (Vote on Account) authorizing the withdrawal of Kshs 368,316,172,339 from the Consolidated Fund in contravention of articles 114, 206, 221 and 222 of the Constitution of the Republic of Kenya.

2.     The Vote on Account Motion was expressed to be brought under the provisions of Article 222 of the Constitution.

3.     Article 222 of the Constitution of the Republic of Kenya provides that the National Assembly may authorize the withdrawal of public funds from the consolidated fund only “if the Appropriation Act for a financial year has not been assented to, or is not likely to be assented to, by the beginning of that financial year.”

4.    At the time the petition was lodged no Appropriation bill for the financial year 2011/2012 had been introduced to the National Assembly or been enacted by Parliament as an Appropriation Act

Prior to the judgment, on 8th September 2011 Hon. John Mbadi independently pursued the matter of the constitutionality of the Vote of Account through a request for a Parliamentary Ministerial Statement from the Attorney General.  By 22nd December 2011 (the day Parliament went into recess), the Attorney General had yet to deliver a final statement on the matter.

Nonetheless, Justice Majanja’s judgment of 23rd December 2011definitively determines the matter in favour of the Petitioners.  Justice Majanja stated “I therefore hold that for there to be compliance with Article 222, there must be an Appropriation Act or Bill in place and it was in breach of the Constitution to proceed to withdraw money from the Consolidated Fund without the existence of an Appropriation Act or Bill.”  In other words, the withdrawal of Ksh 368 billion in June 2011 was unconstitutional, and the Attorney General’s State Counsel’s arguments were not upheld.  Indeed to this day, the Attorney General has been unable to categorically state in the National Assembly that the appropriation under the vote on account was constitutional.  Hopefully the Attorney General will be willing to inform the National Assembly of the true position once the House resumes; so that such actions never take place again.

Justice Majanja  however refused to annul the withdrawal; exercising discretion.  In his view “the effect of failure to pass the appropriation would have substantial negative effects and indeed undermine the very purpose for which we collectively pool our resources to meet the common good.  If I grant the declaration sought in the petition and as a consequence annul the effect of the proceedings of the National Assembly on 14th June 2011, I would set into action a chain reaction whose effects would be grave and more harmful to the implementation of the Constitution.”

Even as he accepted that the Executive was in breach of the Constitution the Judge worried that taking the proposed action to annul and order rectification was too dangerous – especially as 6 months had passed since the breach (through no fault of the petitioners as they couldn’t get the matter heard any earlier even though it was filed on July 1st 2011).  The money had already been withdrawn and spent and returning it was now impossible without hurting Government and the people.  It is unfortunate that the message the Judge seems to be sending is that no consequences followed the Executive’s violation of the Constitution.  The Judge suggested that it was the petition which constituted danger to the implementation of the Constitution, whereas the facts and the law (and even his own decision) demonstrate that it was the acts of the Executive and the National Assembly which violated the Constitution.

Regardless we are pleased that Justice Majanja’s warning parting shot to the Government states that “my declining to issue the declarations sought in the petition should not be seen as a license to openly disregard the provisions of the Constitution.  Each officer of state and public officer is sworn to protect the Constitution and each officer is expected to uphold it in letter and spirit and anything less would attract court sanction.”

Ultimately, the Petitioners have done their bit.  It is for Kenyans to see this constitutional decision as a call to vigilance and action where public funds are concerned.  The Budget process has started afresh and Kenyans are challenged to watch your own money.  It is true these are common funds pooled for our common development.  Let citizenship move to the next level.  Watch public money – it is your money.  It is your budget.  Take your part.  The new budget cycle has already begun and it is governed by Chapter 12 of the Constitution and the Fiscal Management Act of 2009.  Transparency and public particpation are now secured by the highest law of the land.

In the meantime we draw public attention to an ongoing  violation of the Constitution.  The Finance Bill 2011, which authorises taxation, has not been brought to Parliament for debate and approval, as the Ministry for Finance speculatively fears amendments to it.  Legal opinion holds that this too is unconstitutional and inevitably a fresh challenge against the Executive will be brought before the courts.

Download the Judgement in Petition 108 of 2011 here:

Download the Petition filed 30th June 2011

Read extracts from Hansard and the Attorney General’s Statement

Video: Attorney General’s Statement on the Consolidated Fund

Video: Mars Group Presentation to the Budget Committee on unconstitutional withdrawals from the Consolidated Fund

Media:

Uhuru broke the Law – Standard newspaper – 16th January 2012

Finance Bill Hitch – Business Daily newspaper – 30th December 2011

KISS TV – BIZ- COURT UNCONSTITUTIONAL SPENDING

NATIONAL ASSEMBLY

OFFICIAL REPORT

Wednesday, 7th December, 2011

The House met at 9.00 a.m.

(Mr. Deputy Speaker in the Chair)

NOTICE OF MOTION

DEPLOYMENT OF KENYA DEFENCE FORCES TO AMISOM

The Minister of State for Defence (Mr. Haji): Mr. Deputy Speaker, Sir, I beg to give notice of the following Motion:-

THAT, aware that the Intergovernmental Authority on Development (IGAD) and African Union (AU) extra-ordinary session attended by the Heads of State called upon Kenya to consider the integration of its forces in Somalia into the African Union Mission in Somalia (AMISOM), a regional peace-keeping mission operated by the African Union with the approval of the United Nations and which is mandated to conduct Peace Support Operations in Somalia; noting that the African Union plans to engage the United Nations Security Council on this matter on or about 19th December, 2011; this House approves the deployment of the National Security Forces in Somalia to serve under the auspices of AMISOM pursuant to provisions of Article 240 (8), (a)(i) and (ii) of the Constitution.

Mr. K. Kilonzo: On a point of order, Mr. Deputy Speaker, Sir. While I rise to support the Motion by—

Mr. Deputy Speaker: Order! It is a notice of Motion. You cannot debate or discuss the content of the Motion. You can only rise on a point of order on procedural matters. What is the procedural matter?

Mr. K. Kilonzo: Thank you, Mr. Deputy Speaker, Sir, for that correction. Actually, I am rising on a procedural matter. Given that the country is at war and the sensitivity of this matter— This is not the first time we are discussing the matter. I am seeking your direction that while I support the Motion, we should discuss it in camera when you approve it, given that the matter is very sensitive.

Mr. Deputy Speaker: You will rise on the same at the time when the Motion is being moved. The Motion is slated for this afternoon.

NATIONAL ASSEMBLY

OFFICIAL REPORT

Wednesday, 7th December, 2011

The House met at 2.30 p.m.

[Mr. Speaker in the Chair]

Page 19 Wednesday, 7th December, 2011(P)

MOTION

INTEGRATION OF KDF TO AMISOM

The Minister of State for Defence (Mr. Haji): Mr. Speaker, Sir, this august House will recall that there have been numerous cases of Al Shabaab impunity and cross border incursions that have been propagated by the militants such as the attack on Dajabula Police Post in 2009, General Service Unit (GSU) camp in Liboi in 2010, laying of mines and improvised explosive devices in Mandera Town targeting the police and military—

Mr. C. Kilonzo: On a point of order, Mr. Speaker, Sir. We are at a loss. We are on Order No.9. Is the Minister moving the Motion or debating it?

The Minister of State for Defence (Mr. Haji): Mr. Speaker, Sir, I thought that I moved the Motion in the morning but I will move it again.

Mr. Speaker: Order! Hon. Haji, you are moving this Motion. It is coming for the first time this afternoon. So, you should move it because you gave a notice this morning. Notice is not the same as moving.

The Minister of State for Defence (Mr. Haji): I am sorry, Mr. Speaker, Sir. Mr. Speaker, Sir, I beg to move the following Motion:-

THAT, aware that the Intergovernmental Authority on Development (IGAD) and African Union (AU) Extraordinary Session attended by the Heads of State, called upon Kenya to consider the integration of its forces in Somalia into the African Union Mission in Somalia (AMISOM), a regional peacekeeping mission operated by the African Union with the approval of the United Nations and which is mandated to conduct Peace Support Operations in Somalia; noting that the African Union plans to engage the United Nations Security Council on this matter on or about 19th December, 2011; this House approves the deployment of the National Security Forces in Somalia to serve under the auspices of AMISOM, pursuant to provisions of Article 240 (8) (a)(i) and (ii) of the Constitution.

Mr. K. Kilonzo: On a point of order, Mr. Speaker, Sir. I rise under Standing Order No.33 which says:-

“The Speaker may direct any matter which, in the Speaker’s opinion, is secret or purely personal to be excluded from the Journals of the House and from the verbatim report of proceedings of the House, and to be the subject of a separate verbatim report, which shall be kept in the custody of the Clerk and made available only to Members.”

Mr. Speaker, Sir, the matter which we are about to discuss touches on our national security and Armed Forces, aware that our country is at war. Therefore, I would request that you invoke this Standing Order so that the matter can be heard in camera.

Mr. Imanyara: On a point of order, Mr. Speaker, Sir. The Constitution requires that all proceedings of the House and Committees of the House be in public. In order to go into a private session, a basis needs to be really made. No such basis has been made. The Kenyan people are entitled to know. It is not a secret that our forces are in Somalia.

Mr. Speaker, Sir, thirdly, they are not in Somalia as a result of a declaration of war. We sought that earlier on and we were informed by the Government that the Kenya Government was not at war. So, there is no basis at all to go into secret to discuss matters that Kenyans want to hear about and know what is happening.

The Assistant Minister for Foreign Affairs (Mr. Wetangula): On a point of order, Mr. Speaker, Sir. I totally agree with the position that hon. Imanyara has taken. It is the Government side which would request that we are provided the exclusivity of these discussions taking place in camera. However, the Government does not intend to have that being discussed in camera for the simple reason that we are just informing the Kenyan public that it is a request which has been tabled even at the United Nations (UN) so that we can make a request and move on with it.

Mr. Mungatana: Mr. Speaker, Sir, I could not agree more with the Assistant Minister for Foreign Affairs and hon. Imanyara. One thing that the new Constitution has given to this country is freedom of information. Unless someone can come and tell us here that this Motion will now expose all the military secrets, we can go into camera, but the reasons advanced by hon. K. Kilonzo are not convincing and there is no justification to hide what is happening. After all, it is common knowledge that the Cabinet has already dealt with this matter. Indeed, this is a matter of public knowledge now. Why can the Kenyan people not be given this information?

Mr. Speaker: Order! Let me hear the Minister and I will give directions.

The Minister of State for Defence (Mr. Haji): Mr. Speaker, Sir, in view of the expressions of the majority, I do not have any objections to discussing this Motion openly.

Mr. Speaker: Order! Hon. Members, the Member for Mutito has stood on a point of order pursuant to Standing Order No.33 asking the Speaker to exercise his discretion and order that the proceedings in this Sitting be held in secret because they pertain to matters that are sensitive. But given that the Minister in charge of Defence has no objection to these proceedings being heard in public, I exercise my discretion as vested upon me by Standing Order No.33 and direct that the converse be the case. So, we will proceed in public.

The Minister of State for Defence (Mr. Haji): Thank you very much, Mr. Speaker, Sir. As I said earlier, this august House will remember that there have been numerous cases of Al Shabaab impunity and cross border incursions that have been propagated by the militants such as the attack on Dadajabula Police Post in 2009, the General Service Unit (GSU) camp in Liboi in 2010, laying of mines and improvised explosive devices in Mandera Town targeting the police and the military in July, 2011 and the increase in bandit attacks along the border in September, 2011. Other border violations have also been documented during initial operations in Bula Hawa in March 2011, Bula Haji operation in September, 2011 and the recent operation in Doble also in September, 2011.

Mr. Speaker, Sir, the Al Shabaab has also been responsible for several kidnappings and hijackings within the country. Some of the documented cases include abduction of two Catholic nuns in Elwak and Non-Governmental Organization (NGO) workers in Mandera in 2009 and the capture of two soldiers at Diff in July, 2011.

Mr. Speaker, Sir, on 16th October, 2011, the Kenya Defence Forces (KDF) in exercise of the right to self determination under Article 51 of the Charter to the UN, engaged the Al Shabaab. This was done in defense of the sovereignty and the territorial integrity of the Republic. Consequently, the Kenya Defence Forces (KDF) launched the Operation Linda Nchi and in hot pursuit of Al Shabaab, crossed into Somalia. The ongoing operation is now being carried out jointly with the Transitional Federal Government (TFG) forces of Somalia. So far, the operation has been successful to the extent that over 50 per cent of southern Somalia has been liberated. This has brought the process of change to the lives of the people of southern Somalia.

Mr. Speaker, Sir, I thank this august House and all Members of Parliament, the people of Kenya and the international community for their understanding and support. So far, the operation has been conducted without any financial support from any country. To sustain this operation will be very costly. It is with this background that I beg to move the Motion.

Mr. Speaker, Sir, the Commission of the African Union (AU) has requested the Government of the Republic of Kenya to consider the integration of KDF into AMISOM, currently engaged in Somalia.

(Applause)

The Ministers of Defence of the AU nations in Somalia, AMISOM, two contributing countries and other interested countries like Burundi, Djibouti, Ethiopia, Kenya, Uganda and Somalia met in Addis Ababa at the African Union on 14th November, 2011 to discuss the option for consolidation, co-ordination and expansion of AMISOM operations in Somalia. The meeting noted that the Kenyan military operation in Somalia was a gamechanger and provided a unique opportunity to accelerate the stabilization of Somalia. As a follow up, a meeting of experts was convened in Addis Ababa on 24th to 26th of November, 2011, to develop a strategy concept for the way forward. In the meantime, the 19th Extraordinary Session of IGAD Assembly of Heads of State and Governments which was held in Addis Ababa on 25th November, 2011, called upon Kenya to consider the prospect of integrating its forces to AMISOM. The IGAD Summit also requested the IGAD Chiefs of Defence Staff to consider the way forward.

Mr. Speaker, Sir, the Chiefs of Defence of Burundi, Djibouti, Ethiopia, Kenya and Uganda met on 2nd December, 2011, to consider the draft strategy concept paper which took into account the decision of the IGAD Summit. Following the meeting of the Chiefs of Defence Staff, the AU Peace and Security Council met in Addis Ababa on 2nd December, 2011, and endorsed the outcome of the 19th Extraordinary Session of the IGAD Assembly of Heads of State and Governments, welcomed the joint security operations by the KDF and called upon Kenya to favourably consider the integration of its forces to AMISOM.

Mr. Speaker, Sir, the AU has been consulting with the United Nations (UN) system and plans to engage the UN Security Council on the matter on or about 19th December in view of the fact that the Christmas holidays are approaching, hence the urgency of the matter. Arising from the given urgent information, I am requesting Parliament to approve the request by the Commission of the AU to integrate the KDF currently operating in Somalia to AMISOM. This request is made pursuant to Article 240 (8)(a)(i) and (ii) of the Constitution of Kenya, which requires parliamentary approval for any regional or international deployment.

Thank you very much, Mr. Speaker, Sir.

I will ask Mheshimiwa Kalonzo to second the Motion.

Hon. Members: Kalonzo!

(Laughter)

Mr. K. Kilonzo: Mr. Speaker, Sir, I stand to second this Motion. From the outset, I want to join the rest of Kenyans, first, to congratulate our armed forces for the good work they have been able to do and stand firm for this country. I remember that sometime back, they were being referred to as a career army, but now they have proved that they are actually an operational army and the best we have in the region.

The Assistant Minister, Ministry of State for Defence (Mr. Musila): In Africa!

Mr. K. Kilonzo: In the region.

Mr. Speaker, Sir, having said that, I want also to commend our diplomats for the way they have also managed to handle this war by bringing in the IGAD and the neighbouring countries. The issue of Somalia and the Al Shabaab is not a Kenyan problem. It is more of an African problem and a world problem. So, when Kenya is going through hard times economically and also in other fields, it is only fair and proper that other governments come in to shoulder the costs of this war. Therefore, the Motion put forward by the Minister that, as Parliament, we approve the request for our forces to join the AMISOM is something I support. I think that, as a House, we should support it, so that it can stop to be a war perceived to be between us and Al Shabaab and be known as a global problem.

Mr. Speaker, Sir, the other issue I would want the Minister to come and tell Kenyans clearly is what the exit strategy is. The issue of how, as a country, we are going to get out of this war is important because we do not want to be caught in a perennial war as other countries have done and their economies have been negatively affected. We would want the Minister and Government to show us a systematic process by which Kenya is going to exit from the war in which it is in. I believe that this is a step forward, because it means that our responsibility is becoming lesser and lesser. Now, under the auspices of the AU, this war is going to be managed; we are going to have other soldiers from other countries coming in. Therefore, it will no longer be a Kenyan problem.

With those few remarks, Mr. Speaker, Sir, I beg to second.

(Question proposed)

The hon. Member for Lagdera!

Mr. Farah: Mr. Speaker, Sir, I want to support this Motion with a very powerful rider. The operation is timely. This operation was initially Operation Linda Nchi. We went in to protect both our strategic economic interests—

The Assistant Minister for East African Community (Mr. Munya): On a point of order, Mr. Speaker, Sir. I am just curious. The Deputy Speaker is wearing some torn piece of paper on his coat. I do not know whether it is part of the new dress for this House. Can he explain what this torn piece of cloth on his suit is for?

Mr. Speaker: Member for Lagdera, perhaps you want to respond to that one.

Mr. Farah: Yes, Mr. Speaker, Sir. I know that hon. Munya can get insensitive at times, but I did not think that he would get insensitive to the extent of failing to notice the solidarity I have today with the striking doctors of this country, who treat him and his family. For those of you who do not know, this ribbon is the symbol for being in solidarity with the protesting doctors. We want them to be engaged and engaged properly, because they save lives. They are there to protect Kenyans but they have not been adequately rewarded. Nonetheless, it is only a ribbon. In any case, it is not a shirt or a coat. So, when you say that it is linen that is torn—

The Assistant Minister for East African Community (Mr. Munya): On a point of order, Mr. Speaker, Sir. The Deputy Speaker seems to be in a combative mood for nothing. I never accused him of anything. I just wanted a clarification. I am very sensitive to the needs of the doctors and any other Kenyans who may be having a problem, and who may need addressing by the Government. He needs to withdraw the remark that I am insensitive. I am not insensitive at all. I just wanted to know what that piece of cloth is for. Now that I understand—

Mr. Farah: Mr. Speaker, Sir, he should have had one. There are so many of them right at the entry. Nonetheless—

Mr. Speaker: Order! Order! Member for Lagdera, it is not such a big deal.

Mr. Farah: Mr. Speaker, Sir, I now accept that hon. Munya is fairly sensitive to the doctors’ plight. He will have one ribbon by the time he leaves this House and carry it for the next one week or until the doctors’ issue is sorted out.

The operation mounted by our national defence forces is Operation Linda Nchi. The purpose of the operation was to defend the security of our people, the security of the refugees who live amongst us, and who have been a target of the Al Shabaab; our economy was going to be badly affected given the rate at which Al Shabaab were carrying out their incursions into Kenya. I will also join other hon. Members in lauding our national defence forces. It is universally accepted that if you face a threat, you have the right of pursuit of the enemy. You can follow your enemy to another country that is sovereign.

Mr. Speaker, Sir, we have gone beyond that now and I think the name of the operation should now be changed to “Operation Okoa Somalia” because our defence forces right now are liberating the Somalis, who are under the york and the problems of the Al Shabaab. This is a fatalistic organisation that is clearly a criminal gang. We need to learn from history, so that we do not make the mistakes that were made in history by people who went into other people’s countries. Whether it was the Americans going into Vietnam to save democracy and the Vietnamese people; whether it was the Americans going into Somalia under Operation Restore Hope to try and save the hundreds of thousands of starving Somalis who had been held hostage by Somalia warlords at that time; whether it was any other incursion, including the AMISOM project that is going on in Somalia, we want to learn from history and make sure that we do not make the mistakes that were made by those who were there before us, and who got the best out of their operations.

Mr. Speaker, Sir, we want to support our National Defence Forces. We want to do everything possible to get the right materials, the right resources and the support of the international community through AMISOM and the United Nations. However, we have to have three things very fast. We have to have an entry strategy, which I believe we already have, a scope strategy, limiting our forces as to how far they can go into Somalia, and an exit strategy. If we do not have those three strategies, we will be in trouble. It is my prayer that our forces do not go beyond a certain place because the moment this combat gets into big places like Kismayu and other major cities there, it is going to become a hand-to-hand battle, and there are buildings. Kismayu has 300,000 residents. This is likely to become an urban warfare. Any guerrilla outfit is very comfortable in an urban warfare, because if you try to flush them out, you do not escape causing collateral damage, and collateral damage will give the Al Shabaab more adherents. More people will be recruited by the Al Shabaab and the war will be seen in a different light.

Mr. Speaker, Sir, the other thing I want to say is that we have been doing very well. We did much better than when Ethiopia went into Somali the last time. The reason as to why we are doing better is that the Somalis have nothing to fear from Kenya. They trust Kenya’s intentions. They know that Kenya does not have an empire-building kind of strategy. They know that Kenyans are their brothers, who have given them refuge for the last 20 years. Hundreds and thousands of them live amongst us.

However, the concurrent entry of the Ethiopian military forces into Somalia on the other side is a problem we will have to begin living with, because we know that we have had, since Independence, what is called the “Mutual Defence Pact” between the two countries. That mutual defence pact was basically designed for use in the event of Somalia attacking anyone of them. This now can be interpreted by the Somalis to mean that this is a joint effort by people from different faiths to take their country and share it between themselves. We have to discourage any further movement, other than just within the proximity, for the Ethiopian military forces because that will not help us.

Mr. Speaker, Sir, I want to very much applaud the Minister for Foreign Affairs and his defence counterpart for having gone out to cities in the Muslim world to explain and sell this operation, and say that we are also looking for military forces from the Muslim countries to come and participate in this operation. I want to tell you that there are countries in West Africa and North Africa which must be brought into this operation in order for it to have the kind of legitimacy that we need, and for it not to be abused by the Al Shabaab.

We must be careful when it comes to collateral damage. There was an attack on a contingent of policemen in Dadaab, during which an officer was killed and a number of officers injured. That was as a result of bomb that was planted on the roadside. Following that attack, the police went to the refugee camp and beat up the refugees, leaving so many of them injured. If we go on that way, we will change the situation. This is a society which is able to take decisions very fast. We have to endear ourselves to the civilian population. We have to win the Somali people to come to our side and show them this project or programme for what it is.

Mr. Speaker, Sir, there must be a civilian component. Every time we liberate an area, we must have a strategy for that area to be handed over to civilian administration in order for us to put in place the services that need to be provided, including health, education, water and sanitation. All these services need to be put in place, so that we are seen as true liberators.

(Mr. Onyonka consulted loudly)

Mr. Speaker, Sir, hon. Onyonka is making it difficult for hon. Members to hear my voice.

Mr. Speaker: Order! Order! Member for Lagdera, we are hearing you. We are following you.

Mr. Farah: Mr. Speaker, Sir, we need to have a civilian component. We also need to engage the civilian administration of both the Transitional Federal Government and the local administration in the regions that are next to us, so that we can have elders and politicians on our side. We need to win the Members of Parliament in that area. The Members of Parliament from the region that is closest to Kenya have no business being in Mogadishu today. They must be there with us. They must be moving inside the liberated areas to mitigate between the military force, which is achieving a military objective, and the fact that the civilians need to be won over.

Mr. Speaker, Sir, I was told that the Israeli Prime Minister is coming on a visit of this area. Any move to try and bring Israel into this conflict will defeat our own purpose of going into Somalia. The Al Shabaab and the other groups will instantly get what they need. I must say that any effort to try and reach out to Israel on this matter was, in my opinion, wrong.

Mr. Speaker, Sir, I want to applaud the work of the AMISON forces in Mogadishu, particularly the Burundian forces. They have lost many lives, they have gone out there and they have liberated the bulk of Mogadishu from Al Shabaab. I wish I could say the same for the Ugandan forces. They move in, they get out. Right now, the Somalis are saying Ugandans have gone there as business people. They have not gone there to liberate them. It is time we told the Ugandan forces to change. That is the situation on the ground.

Mr. George Nyamweya: On a point of order, Mr. Speaker, Sir. Is it really in order when we want to engage our neighbours, IGAD, AU and others, to also at the same time appear to be rebuking and belittling them? Perhaps, we should moderate our own language.

Mr. Farah: Mr. Speaker, Sir, that point of order would have been raised by the Minister for Foreign Affairs or the Minister of State for Defence. They know what I am talking about. But nonetheless, I know what goes on there. For many of our people here this is the story. I want us to engage the Somali people because, at the end of the day, if we do not train their own forces, it is only they themselves who will liberate their cities from Al Shabaab. We must train the forces of the Somali—

Mr. Speaker: Order, Member for Lagdera.

Mr. Farah: Mr. Speaker, Sir, I thought because the Deputy Speaker, does not always contribute I would get a small leeway. I only contribute when you are there. I plead with you to give me three more minutes because I do not always get this opportunity.

Mr. Speaker: Order, hon. Members! I will exercise my discretion and allow the Member for Lagdera another three minutes.

Mr. Farah: Mr. Speaker, Sir, I want to thank you very much.

I also want to really congratulate the professionalism of our forces and the Ministry of State for Defence even in dealing with the forces that they have trained in offering them leadership in terms of command. We now need to train the Somali army, so that they are able to perform; they are able to be the force before us. That is the only way that they will own the process themselves. They will not see this thing as an invasion and they will see us as brothers who have gone there to liberate them.

Mr. Speaker, Sir, we have close to 600,000 refugees in our country. At this rate, if we do not do something about Somalia, in another five years, we will have 5 million Somalis in here. It is imperative that we go into Somalia the way we did it.

My constituency now hosts 560,000 Somali refugees. They are using the vegetation there for energy. Just imagine 560,000 people going every day out there to cut trees from that arid and semi arid area for their own energy. The place will turn into a desert. There is no sufficient education for their children there. They cannot access universities outside. The children who were born in the refugee camps have married in the same camps.

Mr. Speaker, Sir, we need to do something for the sake of the African fraternity and brotherhood. We are not an imperial country that intends to build. We have to come straight on the issue of the continental shelf. There has never been a dispute between us and Somalia in the past. I think the Ministry of Foreign Affairs needs to come out into the open to say that there is no way Kenya—

(Members stood in their places)

Mr. Farah: Order, hon. Members!

(Laughter)

There is no way that we are interested in either the sea land or mainland of the Somali people because we do not want to create another problem for ourselves while we are trying to solve problems in this country.

Mr. Speaker, Sir, with those few remarks, I want to thank you and I support the Motion.

The Assistant Minister, Ministry of State for Defence (Mr. Musila): Thank you, Mr. Speaker, Sir. I want to support this Motion and also congratulate the Deputy Speaker. I just stood in my place because I thought he was abusing the privilege the Chair had given him. He thought he was in the Chair when he was actually contributing.

Mr. Speaker, Sir, in supporting this Motion, we must thank God because, so far, this operation has gone very well. I want to take this opportunity to echo my Minister’s sentiments and thank Kenyans from all walks of life who have given the defence forces of this country the morale that they badly require. The Members of this House have continued to support our defence forces and that is why they have been able to perform as they have.

Thirdly, may I take this opportunity to congratulate the civil defence forces and its men and women in uniform for the manner in which they have so far conducted themselves.

[Mr. Speaker left the Chair]

[Mr. Deputy Speaker took the Chair]

They have conducted themselves with a lot of courage and professionalism. There is no doubt that ours is a very disciplined force.

Mr. Deputy Speaker, Sir, our forces have in the course of their duties given humanitarian support and assistance to the people of Somalia in areas that they have liberated and even the injured members of the bandit group that is called Al Shabaab. Therefore, these members of the defence forces of Kenya have done us proud. We must, therefore, continue to support them.

I have just said that they have conducted themselves in a professional manner. It is only yesterday that in a very professional manner, our defence forces disarmed some Al Shabaab bandits who surrendered. In other countries, probably, that would not have been the case. But they conducted themselves in a very professional manner.

This Motion before the House seeks to allow the House to give approval for the Kenya defence forces to be deployed in Somalia in accordance with the Constitution as peace keepers, but not fighters. Therefore, I think it is a very straightforward Motion and I believe the hon. Members of this House will do what is necessary and accord the defence forces of Kenya the approval that the Minister is seeking.

This is not something new for our forces. Our defence forces are very experienced in matters of keeping peace. They have kept peace in Bosnia, Sierra Leone, DRC, Namibia and many countries. Wherever they have gone on this mission, we have received nothing, but praise for the work that they have been able to do.

I want to add a point that even as we prepare to deploy or to seek permission for our defence forces to be deployed in Somalia as peace keeping forces, we must not lose sight of the fact that the Operation Linda Nchi is in progress. It is the desire of Kenyans that this operation must be continued and concluded, so that the boundaries of Kenya and Somalia remain safe. The sovereignty of this nation is clearly honoured by everyone, including Al Shabaab. It will be a grave mistake for the defence forces to leave the operation halfway and then expose our country into danger.

Therefore, that matter is very clear in our minds that the border between Kenya and Somalia must be secured. The sovereignty of this nation must be clearly understood by everyone even before we move to the next phase of peace-keeping.

Let me also say something about the Daadab Refugee Camp. The fact that there are hostile elements in Daadab Refugee Camp is not a secret. The Spanish doctors were taken out of this country from that refugee camp. We have had many explosions within the camp. So, it is clear that we have some elements within that refugee camp who are actually Al Shaabab or their sympathizers. Therefore, for the interest of this nation, I believe when some parts of Somalia are secured, we will have to remove and relocate those refugees within Somalia, to a place that is secure. I say this because only yesterday, we lost an Administration Police (AP) officer from within the camp. Therefore, that is not a camp that is solely for people who are seeking refuge. It must be viewed as a camp that also—

(Several hon. Members stood up in their places)

Mr. Deputy Speaker, Sir, I still have time. I do not know what hon. Members have. I still have five minutes. Can you protect me?

Mr. Deputy Speaker: The Chair will protect you, although you stood up when the Chair had seen that light.

Please, proceed!

The Assistant Minister, Ministry of State for Defence (Mr. Musila): Mr. Deputy Speaker, Sir, I do appreciate that Members want to contribute and, therefore, I will not take a lot of time. I just want to say one point finally.

I want to appeal to this House to continue supporting the KDF as they have already started doing. I say this because it is now very clear to everyone that a defence force that is properly trained; a defence force that is properly equipped is a deterrent to any aggression. A force that is properly trained and equipped is an insurance for any external aggression. Therefore, I do hope that from now on, this House will look at their defence force with pride and will be able to support them in their training and equipping.

I support.

Mr. Imanyara: Mr. Deputy Speaker, Sir, I too do rise to support the Motion, even though I am not quite happy with the manner in which it is framed. That is because the forces are already in Somalia. They are not there as peace keepers. The military spokespersons who have been giving reports on the Operation Linda Nchi have been talking about liberated areas. Therefore, those forces are not really there as peace keepers. This ought to have come to this House as a report under Article 241 (3) (b) which requires that the Kenya Defence Forces shall assist and co-operate with other authorities in situations of emergency or disaster and report to the National Assembly. Because those forces are already there, what the Minister should have done is make a report to the National Assembly as required under the Constitution. That is because the provisions under which the Minister relies on now really relate to peace keeping. Nevertheless, the principle of approval of the National Assembly is important because those are our KDF. To that extent, I do support this Motion.

Mr. Deputy Speaker, Sir, I would have expected the Minister, in moving the Motion – because they are there now as part of AMISOM – to tell us a little bit more about AMISOM. He should have told us how it is constituted, under what law, the financing, the duration and who will be working with the Kenyan Defence Forces, the levels of command and under whose command our forces in Somalia will be. Those are details that we are entitled to know because we are no longer there as a country, but as part of the AU Mission. I hope that the Minister, in responding, will attend to those matters. For example, we know the call from the UN has been that AMISOM forces are not enough. They need to raise the levels from the current 8,000 to a particular number. Therefore, our forces are going to enter the agreement under AMISON under what terms?

How many of our soldiers are going there? What are the cost implications? What is the Minister doing in terms of the health of the soldiers in Somalia today? These are issues which the Government is required, under the Constitution, to report to the House, at least, once every year. In responding to this Motion, I do hope the Minister will be able to respond to these specific issues.

Even as we send our forces to Somalia, we need to maintain the integrity and sovereignty of our own borders. For too long, we have been ridiculed by some of our neighbours with regard to certain islands on Lake Victoria and certain areas in northern Kenya. This has given our forces the opportunity to prove their worth.

Mr. Deputy Speaker, Sir, as a son of a soldier, I am very proud of our forces out there because they have proved our detractors wrong. They have shown they can defend our country.

I, therefore, do support this Motion and I hope that those who will speak after me will, likewise, support it.

The Assistant Minister for Forestry and Wildlife (Mr. Nanok): Mr. Deputy Speaker, Sir, I also stand here to support this Motion. I want to say a few things. Indeed, our KDF are heroes of this country. They have done us proud by working tirelessly to eliminate one of the militia groups that has given this country and its people a lot of problems. However, I want my colleagues who are here today; the Minister of State for Defence, the Minister of State for Provincial Administration and Internal Security and the Minister for Foreign Affairs, to realize that the same solutions we have applied to the militia group in Somalia and to the militia group that was building up in Mt. Elgon, should be the same solution that should be applied to all other militia groups.

Mr. Deputy Speaker, Sir, within our borders, we have militia groups that have become so chronic in the form of cattle rustlers. I want both the Minister of State for Defence and the Minister of State for Provincial Administration and Internal Security to listen to this. The same vigor that the Cabinet, which unfortunately I do not sit in, has taken to enter into Somalia and take a decision to use taxpayers’ funds to eliminate that militia and stabilize the neighbour so that Kenya can remain in peace, let them put that same effort to those militia groups; particularly the cattle rustlers in the north. That is because they have been a major pain to all of us. I know the Minister of State for Provincial Administration and Internal Security will tell you that they, themselves alone, have been unable to tackle that problem.

About 15 years ago, when our Armed Forces got involved and engaged the cattle rustlers, the northern parts of Kenya rested for almost 17 years to 18 years without any incidents. However, after they quit and let the police take over, that problem has remained with us. I would really encourage the Minister of State for Provincial Administration and Internal Security to take up this matter in the Cabinet so that, after Somalia, let us deal with the local cattle rustlers who are militia groups and have become a power onto themselves. That should be the next phase.

Secondly, I will really urge that the famous Suguta Valley, where we have lost so many senior officers of this Government and is notorious for cattle rustling— We have told the KDF, through the Minister of State for Defence, to open up a training school inside there. Let us harden our boys and girls in the forces so that, in future, they will be hardened to tackle all kinds of problems that will come up.

Mr. Deputy Speaker, Sir, I also want to notify the same Ministries of the following: We had a problem of incursions from Ethiopia the other day in Todonyang. We have a problem that might come up again in the Ilemi Triangle. Of course, we have the famous problem of Migingo, I want the same Ministries, together with the Ministry of Foreign Affairs, to tackle these issues before they become a much bigger problem. Let these matters be resolved diplomatically. If they are issues to do with the borders, let them be resolved much earlier. Let us not leave them to deteriorate to a point where we will be forced to engage our young men and women in something that we should have resolved much earlier.

Lastly, I am also learning that the deployments in Somalia; majority of our men and women who are in Somalia are mostly the ones they recruited from northern Kenya. Can we balance this because when we were doing recruitment in the country, we did it in every county?

The Assistant Minister, Ministry of State for Defence (Mr. Nkaissery): On a point of order, Mr. Deputy Speaker, Sir. Is the hon. Assistant Minister—

Mr. Deputy Speaker: He is not an Assistant Minister. For purposes of Parliament, he is a Minister.

The Assistant Minister, Ministry of State for Defence (Mr. Nkaissery): Is the hon. Minister in order to impute improper motive on the security and the establishment of Defence Forces? Can he substantiate or withdraw his remarks and apologise to the House?

Mr. C. Kilonzo: On a point of order, Mr. Deputy Speaker, Sir. Is the hon. Assistant Minister in order to purport that it is only particular members of this country, from northern Kenya, who have been taken to fight in Somalia while it is only the other day we buried one of the first casualties of the war who crushed in a military helicopter from Kitui? When the father heard about the death of that First Officer, who was basically a pilot and was his son, he collapsed and died. So, is the Assistant Minister in order to purport that there is discrimination on who goes to fight?

The Assistant Minister for East African Community (Mr. Munya): On a point of order, Mr. Deputy Speaker, Sir. A soldier from my constituency also died in that plane. My constituency is not located in northern Kenya. It is very unfair for people to come to this august House to peddle untruths especially on very serious matters like the ones we are dealing with.

Mr. Konchella: On a point of order, Mr. Deputy Speaker, Sir. Would I be in order to ask the hon. Assistant Minister to withdraw because that is a very serious allegation? All the deployment of our forces in the barracks whether in the Air Force or the Navy are posted regardless of where one comes from. It is all based on making sure the integrity of our forces is clear. That is a very serious allegation that must be withdrawn.

The Assistant Minister for Forestry and Wildlife (Mr. Nanok): Mr. Deputy Speaker, Sir, although I said it, I am convinced that I should withdraw and apologise. I will only ask my colleague, the Minister of State for Defence to look at balancing when they are redeploying.

With those few remarks, I support the Motion.

The Minister for State for Provincial Administration and Internal Security (Prof. Saitoti): Thank you very much, Mr. Deputy Speaker, Sir, for giving me this opportunity to contribute to this very important Motion. From the outset, I want to make an appeal to Members of Parliament that at this moment, it is important for us to support more the Kenyan troops who are in Somalia today.

As a matter of fact, just very briefly, touching on a historical account, it may be recalled that since President Siad Barre left Somalia in 1991, that country, which is a neighbouring country has never had a functioning Government. The institutions of the state have not existed because of the warring factions and activities. We have a country that needs the sympathy not only from us, Kenyans, but also from the international community. A whole generation has been lost. Young people have been born during this time; more than 20 years ago, and have not had the benefit of education despite the United Nation’s Charter that says every child has a right to education. The people of Somalia have not had the benefit of access to health, clean water and employment. They have suffered tremendously.

We have always considered the neighbouring countries as our brothers although they lack functional institutions. I think we have to be very clear. They are our brothers because they live next to us. When they live in a situation of instability, it invariably affects our own security, economy and stability. We should begin from that.

Kenya has fulfilled its international obligations. We have played host to the people of Somalia and others who have found it impossible and intolerable to live under difficult circumstances of insecurity and, of course, poverty and hunger. In 1991, we took over half a million refugees from Somalia. We all complained but we felt, as a country, we must fulfill our international obligations. These are people who are living in a neighbouring country and a problem in Somalia translates itself immediately, into a problem in this country. True, this has happened.

The Americans immediately withdrew their troops from Somalia in 1992. Until recently, Somalia has been abandoned by the international community. The only country that has made an attempt to assist Somalia is this country. Our country has done that at a high cost. Of course, others will argue and say that those are the problems of Somalia. The Americans left, why should we be there? It would have been the biggest selfish mistake to abandon them. We have embarked on a very strong international advocacy that Somalia needs to be assisted. Why did the international community, for example, the European Union and America contribute troops that cost billions of dollars to go to Iraq and Afghanistan? Why not Somalia?

(Applause)

That has been a clarion cry. Is it because it is in Africa?

I begin to understand that this thing, however painful it has been, is because we felt that Africa must also address its own problems. Days are gone when Africa had to depend on an outsider to solve our problems. For this reason, I would like to applaud the African Union. Through its Peace and Security Council, it has done a first class job.

Our troops went to Somalia to safeguard the territorial integrity of that country. We have no any territorial ambition for Somalia. Our people live there. It is important that the troops come under the umbrella of the AMISOM. That way, we will broaden the international preoccupation in that country. This is because the problem of Somalia is not the not the problem of Kenya or Africa alone. It is a problem of the international community.

With those few remarks, I beg to support.

The Assistant Minister, Ministry of State for Defence (Maj-Gen. Nkaisserry): Thank you very much, Mr. Deputy Speaker, Sir.

I will be very brief in support of this very important Motion. First of all, let me take this opportunity to commend and congratulate the Kenya Defence Forces for a work well done. Our defence forces, as you know, are unmatched in this region. This is both in terms of discipline and professionalism. We have shown the world that training pays. The request by the Ministry through the Cabinet that we convert the defence forces to be part of AMISOM is very important. How can we convert our troops to be part of AMISOM to keep peace in Somalia?

Mr. Deputy Speaker, Sir, the Member for Lagdera when he was contributing said we will convert “Linda Nchi” to “Okoa Somalia”. That is really the message of peace.

Mr. Deputy Speaker, Sir, for Kenya to convert its armed forces to be part of AMISOM, we will take professionalism there. We are now in Somalia because of national security interest. That is why we are there. That is why the Cabinet approved the Kenya Defence Forces to operate there. They have not let us down. They have shown bravery.

Mr. Deputy Speaker, Sir, the strategy, and I happen to be one of the developers of that strategy, is to prevent, deter and defeat. This is what we are doing. The Al shabaab has been playing around with the Kenyan people. We moved in and now we are defeating them. Now we will convert, if this Parliament approves, to be part of the peace support operation in Somalia under the umbrella of AMISOM. We moved into Somalia under the UN Article 51 in self-defence. That is why we are there. That is why we have done a good job.

Mr. Deputy Speaker, Sir, I just want to bring very fundamental issues here. One, as we convert to be part of AMISOM, we want to know command and control aspect. Will our soldiers be under the command of AMISOM, or are we going to operate as a sector, so that we maintain respect and professionalism? That is one thing which will be decided at the AU.

Mr. Deputy Speaker, Sir, “command” is very technical aspect in operations. If it is not integrated, it can bring risk and casualties even to the troops. So, we want to know who will be in charge of our troops. The other issue which is very important and I do thank the hon. Member for Imenti—

Mr. Chachu: On a point of order, Mr. Deputy Speaker, Sir. Is the Assistant Minister for Defence in order to ask those questions about our forces in Somalia when those decisions are made by his Ministry?

Mr. C. Kilonzo: On a point of order, Mr. Deputy Speaker, Sir. Is the Assistant Minister in order to poke his own Ministry’s Motion by casting doubts? When the Minister was coming to look for the support of the House, we thought you had all the facts, and knew what you are doing. If you do not have enough facts, then you have no business supporting this Motion.

The Assistant Minister for Foreign Affairs (Mr. Onyonka): On a point of information, Mr. Deputy Speaker, Sir.

Mr. Deputy Speaker: You want to inform who? The Assistant Minister, do you want to be informed?

The Assistant Minister, Ministry of State for Defence (Maj-Gen. Nkaisserry): Yes.

Mr. Deputy Speaker: Proceed.

The Assistant Minister for Foreign Affairs (Mr. Onyonka): Mr. Deputy Speaker, Sir, I just want to inform my colleague and the House in general the logistical arrangements on who will handle the forces when they are on the ground under the AMISOM. Strategic planning and organizing of the exercise will be determined by the force according to internationally acceptable law, where Kenya is a signatory.

Secondly, the other point of information, I want to give is that Kenya has been a member of peace keeping mission for over a period of 30 years. We have performed extremely well. So, there will be no need to worry about who is actually going to be in control, or in charge.

Mr. Deputy Speaker: Hon. Members, because of the interest that is generated here, every Member will only have five minutes.

Proceed, hon. Nkaisserry.

The Assistant Minister, Ministry of State for Defence (Maj-Gen. Nkaisserry): Mr. Deputy Speaker, Sir, I will be the last one to contribute for ten minutes.

Mr. Deputy Speaker, Sir, I was actually coming to that so that we know as we approve this Motion that our troops will be there. I have to talk quite frankly so that when we approve this Motion we know what will happen to our troops. I am not opposing the Motion.

Our equipment will be there. Of course, hon. Onyonka says this issue will be dealt with. Our Parliament, as you approve the Motion, you need to know all the facts, so that when we come back to you for support, you will be there for us. When we deploy, we use our equipment and resources. When we convert to AMISOM, it will be AMISOM equipment. Therefore, we will definitely require the support of the international community.

The other important issue is consistent political goodwill in this operation of AMISOM. It is important to know this. In every peace keeping, there is mission grip.

Mission grip is going to be issues of violations of human rights. We want our forces as we join AMISOM to be specifically under specific command of our own troops. That is very important, so that when mission crip come in, we shall not be blamed as an overall aspect.

With those very many remarks, I support.

Mr. Hassan: Mr. Deputy Speaker, Sir, I would like to contribute by saying the Somali tragedy has been with us for a very long time. For 20 years now, Somalia has no functioning and effective Government. It is a country whose problem has been neglected by the international community. As a result, Somalia has produced the largest number of refugees and internally displaced people in the world at one point.

Millions of Somalis have lost their lives as a direct result of war or consequences. Somalia has become haven for negative forces from all over the world. It has now become a threat to international peace and security in the region as well as in the world. However, unfortunately, the world has not done what it should have done. The international community has not done its work. For example, the world went to the rescue of Sierra Leone, Liberia, Burundi, the Democratic Republic of Congo (DRC), and Sudan. All these countries have either an African Peace keeping force or an international peace keeping force.

I am asking myself: Are Somalis not members of the human race? Why are we letting the children of Somalia die needlessly? In the case of Kenya, we share not only a common border, but also common characteristics. Therefore, I think Somalia needs the security to be able to have the peace and deal with its problems politically; after all, the problem in Somalia is political. However, you cannot have a political settlement unless you secure the security. Therefore, it is in the interest of Kenya and her people for us to play a supportive role in resolving the Somalia crisis. We can play that role by being part of the internationally recognized and accepted process which is AMISOM. By being part of AMISOM we can protect our interests as a country and let the people of Somalia have the opportunity to resolve their problems and find the political solution that, that country needs in order to be once again part of the regional process, Africa and the World.

Mr. Deputy Speaker, Sir, I think the best way we can contribute to that, having played a role in putting up the Somalia Government here in Nairobi, is by putting our Armed Forces at the disposal of the AMISOM and be able to play that role which will let Somalis have a functioning and legitimate government. This will also enable us to have a secure border in which we can once again trade, travel and enjoy what Somalia has to offer both politically and economically.

Thank you, Mr. Deputy Speaker, Sir.

Eng. Maina: Mr. Deputy Speaker, Sir, I rise to support this Motion and congratulate our forces for doing a good job. No country can sit back when its sovereignty is being threatened by some gangsters here and there.

Mr. Deputy Speaker, Sir, having said that, I think we must start taking the security of this country seriously. Before our forces moved into Somalia, there were various insurgents entering this country in the north. Apart from that an English tourist was killed in Lamu. Barely two weeks later, a French lady was captured by the same gang. One asks himself: Where were the Kenyan security forces? I am not talking about the Army. We knew and have always known that we have a neighbour who is harbouring some terrorist groups. What has the security agents in this country done to ensure that these people do not cross the border and do what they did? Therefore, the Army is doing a good job, but our security must ensure that our borders are safe. We should not have allowed the terrorist groups do what they did in Lamu.

Mr. Deputy Speaker, Sir, Kenya and Somalia are two neighbouring countries that are friends. Truly, a problem with your neighbour is your problem. But we must be careful when handling the Somalia problem. We need to understand that the interest of this country comes first. Why am I saying this? It is because we do not want ever again to have our youth dying in Somalia because somehow we were not as prudent as it is happening now. This war is definitely a very expensive affair for this country. No country looks forward to going into any war with anybody.

Mr. Deputy Speaker, Sir, the other issue is that whether we like it or not, the terrorist gangs in Somalia truly cannot be in isolation. This country must be careful never to get embroiled in a situation where the international terrorists all the way in Afghanistan; Al Qaeda and Al Shabaab, take Kenya as an enemy. This is because that is a war that we may not be able to win. America, the western world and Europe have not won it and we are not in any way better equipped to deal with that kind of a situation. In this regard, therefore, we must have a very clear timeline and agenda on what we are achieving. We must be very clear that we are going to Somalia and our agenda is one, two and three. Once that agenda is achieved, our children must come back to this country and ensure that we protect our borders such that the insurgents never come in again.

We are talking of Lamu Port, but one wonders what port we are talking about if truly these terrorists can slip into the country. Can this Government assure Kenyans that the so-called Al Shabaab is not within our midst? I am asking this question because there have been stories or information that there was a threat on the last national holiday. We have seen some terrorist explorations. Can this Government assure Kenyans that whatever we are doing in Somalia— We are fighting using jets and bombs, but what have we done about the likely insurgents that may be within us? I want to say that our forces have done a good job and we should make this war very short.

Mr. Deputy Speaker, Sir, let others in this world who believe in the peace of this world truly come in through the proposal given here.

Mr. Deputy Speaker: You have run out of time, Eng. Maina!

Eng. Maina: Mr. Deputy Speaker, Sir, let me conclude my statement.

Mr. Deputy Speaker: Conclude in half a minute!

Eng. Maina: Thank you very much, Mr. Deputy Speaker, Sir. I know that you are a religious man and I knew that you would oblige.

Mr. Deputy Speaker, Sir, I congratulate our forces and wish that this war ends quickly. We also wish that in future our borders are safe.

Thank you very much, Mr. Deputy Speaker.

Mr. Mungatana: Mr. Deputy Speaker, Sir, I rise to oppose this Motion with very solid reasons.

Mr. Deputy Speaker, Sir, if you read this Motion, you will find that it goes against what the Government initially told this Parliament. The Government told this Parliament that they were going to have a short mission. They said that they were going into Somalia in respect of hot pursuit, come back and we finish this mission.

We have filed a Question asking how much money has been spent. That Question was never approved; it has never come to the Floor of the House for us to know the extent of this Government’s involvement in this war. I am speaking like this because right now, we have a lot of internal problems in the family and the soil called Kenya. We have doctors striking, we have just ended the problems with teachers but they are threatening on other things; we have a deluge of rain that will require that people be supplied with food, but from where? After that, we have to repair the infrastructure that has been washed away. We are talking about the same money; a shrinking economy, and here we are saying that we want to support the conversion of our initial mission in Somalia from a normal, temporary, self protection mission to an engagement under AMISOM.

Mr. Deputy Speaker, Sir, what is AMISOM? Members of Parliament should know. Just for the sake of us knowing, AMISOM is the African Union mission that went to Somalia on 19th January, 2007 to replace the Ethiopian troops that had been called in to support the weak TFG Government. Ethiopia initially intervened at the request of the TFG. This mission was approved by the AU, and had a mandate; I wish to read that mandate.

(i) to provide support to the TFG in their efforts towards the stabilization of the situation in the country and the furtherance of dialogue and reconciliation;

(ii) to facilitate the provision of humanitarian assistance, and

(iii) to create conducive conditions for long-term stabilization, reconstruction and development in Somalia.

To fulfill this mandate, AMISOM was given a range of tasks by the United Nations Security Council (UNSC) which included:-

i. to support a voluntary disarmament process;

ii. to protect the TFG and its infrastructure.

Mr. Deputy Speaker, Sir, what am I saying? I am saying that the AMISOM is on a long- term engagement. Who is going to pay for this? I want to add that there have been two models of intervention whenever AU has gone to maintain peace or to try and stabilize a region. The model under which Kenya is being asked— In fact the model in which AMISOM is engaged in Somalia is the Burundian Model,” which is the TCC – Troop Contributing Countries – in which each country which contributes troops is supposed to take primary responsibility for those troops.

The Assistant Minister for Foreign Affairs (Mr. Onyonka): On a point of order, Mr. Deputy Speaker, Sir.

Mr. Deputy Speaker: What is your point of order, hon. Onyonka?

The Assistant Minister for Foreign Affairs (Mr. Onyonka): Mr. Deputy Speaker, Sir, is the hon. Member in order to misinform this House that when the troop contributing nations came together and contributed troops to AMISOM, the agreement was that each country would take responsibility for them, including paying them?

AMISOM was decided on by the AU countries. The AU decided that there was a need to take troops to Somalia, whose agenda was specifically what he mentioned. Is he in order to misinform the House? Who pays? Right now the USA and Italy governments are paying the money for the maintenance of the AMISOM troops. Kenya, as a troop contributing country under this mission would seek the recommendation of the AU as to how our troops would be funded. The Kenya Government will not participate in raising money.

(Applause)

Mr. Mungatana: Good point, Mr. Deputy Speaker, Sir. I could not agree more with the Assistant Minister that they are going to now seek some funding from somewhere. But in the meantime, we are being told by his Minister that the initial engagement is going to be for the Kenyan Government to pay!

Mr. Deputy Speaker, Sir, what I am asking is a very simple question. Is it right when we are having so many internal problems? Are we being sensitive when we are having so many internal problems right now in the country? Having decided to just defend ourselves from Al Shabaab, are we right in going into a long-term engagement which we do not know how long it will last? When AMISOM was formed the Minister of State for Defense and the Minister for Foreign Affairs knows know that it was initially mandated to stay for only six months. After that, the UNSC was supposed to take over, but up to now, they keep on extending that mandate because the UN has not accepted to take the responsibility. What the Minister has said is that individual governments have been saying “Let us help; let us help.” The UN has not taken over the mandate!

(The red light turned on)

Mr. Deputy Speaker, Sir, I wish to have more time because I am the only opposing voice.

Mr. Deputy Speaker: You have one minute!

Mr. Mungatana: Mr. Deputy Speaker, Sir, I wish to say this as I wind up, I wish I could say more. You will see that the only country that will be having to share a border—

Mr. Ethuro: Si umalize!

Mr. Mungatana: Mr. Deputy Speaker, Sir, please, protect me from hon. Ethuro!

Mr. Deputy Speaker: Order, hon. Ethuro! Order!

Mr. Mungatana: Mr. Deputy Speaker, Sir, I am pleading with hon. Members of Parliament, and a few months later, you will come to agree with me. The only country that will be sending troops, if we approve this Motion to Somalia, and shares a border with Somalia, will be Kenya. Right now, it is Burundi and Uganda, which do not share a border with Somalia. The only country that shares a border with Somalia and will be asked to contribute troops to Somalia is Kenya.

Mr. Deputy Speaker, Sir, there was a reason why Ethiopia, which shares a border with Somalia, was asked to withdraw. Why are we putting our country into this situation?

I urge this House that, let us go to the—

Mr. Deputy Speaker: Conclude!

Mr. Mungatana: Let us stick to the original reason for which we sent the KDF to Somalia. If we have money for engagement, let us use this money to solve the doctors’ problems. We just passed a Motion in the morning to pay loans for tea farmers; let us solve the internal problems – I plead – instead of going into a long-term, or indefinite engagement in Somalia—-.

Mr. Deputy Speaker: Order, your time is up!

Mr. Mungatana: I beg to strongly oppose.

Thank you, Mr. Deputy Speaker, Sir.

Mr. C. Kilonzo: Mr. Deputy Speaker, Sir, I support. I saw my good friend in Church the other day, and as Christians, we are told to love our neighbours. The argument that “in my house, I do not have enough food for two meals” does not mean that I should not sacrifice for my neighbour to have one meal.

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

Mr. Deputy Speaker: What is your point of order, hon. Mungatana?

Mr. Mungatana: Mr. Deputy Speaker, Sir, I am surprised at hon. C. Kilonzo. We have been here for two terms now. It is wrong for him to simplify the issues I have raised here to having two meals and others not having a meal. The doctors’ strike is about death in our hospitals. That is not one meal or two meals! It is not a simple issue. Please, go to your arguments and do not try to make this a simple matter.

Mr. C. Kilonzo: Mr. Deputy Speaker, Sir, I am sure he is not the Speaker and that is not a point of order.

Mr. Deputy Speaker, Sir, the fact that you do not have enough water in your house does not mean you do not rush with the little water you have to help at a neighbour’s house, which is on fire. Africa lived under an organization which was called the Organization of African Unity (OAU), which observed the principle of noninterference in the internal affairs of another country. In a sense they said “hear no evil, see no evil, speak no evil.” If AU had come into being much earlier, the problem of Somalia would have been solved some years ago.

Mr. Deputy Speaker, Sir, when we have smaller nations with limited or meager resources like Burundi and Uganda saying “We cannot sit back; let us do something about it,” it will be selfish of us, as Kenyans, to say we must solve all our problems before we think about a neighbour. In any case, we are already in Southern Sudan; why is it that nobody is complaining that we are funding the Southern Sudan Government and giving technical assistance? Why is it that when it comes to Somalia, we say “No, no, no; Somalis are not human beings. We should not fund them?”

(Applause)

If we are funding Southern Sudan, then we have a duty to fund Somalia. We are not only talking about military intervention, we are talking about Kenya lobbying the international community to fund the problem in Somalia.

Mr. Speaker, Sir, in supporting this Motion, I have three reasons as to why we need to convert our operation there into an African Union affair. Firstly, we must give assurance to the Transitional Federal Government in Mogadishu that we do not have any hidden agenda like trying to create Azania or Juba Land state. Secondly, we must not talk about creating a buffer zone. The idea of creating a buffer zone is another way of talking about creating another state within Somalia.

Thirdly, we must be a team player. We must not go into Somalia alone. Before 19th December, 2011, the African Union (AU) is going to petition the United Nations (UN). I am sure that they will be going to look for funds. We cannot afford to remain in Somalia as Kenya. We must bring on board other team players as well. If we achieve peace in the Somalia, we will easily move the 500,000 refugees who are in Kenya into Somalia. The Somali people would rather be Internally Displaced Persons (IDPs) rather than refugees.

Mr. Deputy Speaker, Sir, somebody said that you do not have to fight to be a man but when you are a man, sometimes you must fight. A time has come for Kenya to rise to the occasion and to the challenges and show leadership in Africa. We cannot be a leader but when it comes to assisting people solve their problem, we say: “No, we cannot assist you. Let us, first, complete solving our problems.” When we had the post-election violence in 2007/2008, everybody in the world stopped what they were doing and came to assist us. This is pay-back time for Kenya. We must pay back by going into Somalia—

Mr. Mungatana:(off record)

Mr. Deputy Speaker: Order, hon. Mungatana! There is only one person who is supposed to speak for now.

Proceed, hon. C. Kilonzo!

Mr. C. Kilonzo: Mr. Deputy Speaker, Sir, it is said “I may not like what you are saying but I will defend your right to say that which I do not like”.

Mr. Deputy Speaker, Sir, in conclusion, it is better late than never. We should have gone into Somalia ten years ago, on a humanitarian basis, in the first place. Humanitarian aid from Kenya should have been in Somalia for the last ten years; it has not been there. We have gone there militarily. Let us now back our military operation with humanitarian aid.

With those remarks, I beg to support.

Mr. Yinda: Mr. Deputy Speaker, Sir, I would also like to join my colleagues in supporting this Motion.

I would say straightaway that our National Defence Forces are already doing a very good job in Somalia. We are now asking our security forces to join the AMISOM, so that they can become a peace-keeping force in Somalia. As hon. C. Kilonzo said, this is something which we should have done more than 10 years ago. Somalia is a natural neighbour to Kenya. Any problem in Somalia affects Kenya. We cannot take lightly the support or the contribution that Somalia has made to the Kenyan economy. Most of the economy in Eastleigh comes from Somalia, and, as a country, we cannot ignore that fact. Therefore, the Minister’s request to this House is very noble and we should wholeheartedly support the Motion.

Mr. Deputy Speaker, Sir, if piracy in the Indian Ocean continues, shipping will be affected badly. Even our Port of Mombasa and the proposed Port of Lamu will be nothing. As we talk now, the cost of shipping is already too high because of the insecurity in Somalia. The only way we can contribute in a snall way is to send our soldiers, who are very capable and disciplined, to join the other African men and women who are keeping peace in Somalia.

At the moment, we are busy talking about just our military forces going to Somalia but military forces without equipment are not forces at all. At the moment, our military forces need a lot more equipment than what they have. Our navy, for example, is not as well equipped as they should be to be able to discharge the responsibility of monitoring law and order in the Indian Ocean or in the coastal waters near our country. It would, therefore, be prudent for this House to look into the future, especially when our Minister in charge of defence brings his Budget to this House. It is up to this House to ensure that our military have the resources they need to build up the equipment that will enable them to defend this country.

Mr. Deputy Speaker, Sir, when you move forces into a foreign country, as we will be moving our forces into Somalia, you need to transport them. The Minister will agree with me that at the moment we do not have sufficient transport aeroplanes to even take our forces to the war front. Why am I saying this? It is costly to do these things, but in normal circumstances, if, for example, the United Nations will be involved in this mission, they will reimburse the country for the expenditures we will incur on movement of military personnel. Therefore, even as we build up our equipment, it is also an investment worth supporting.

For now, I would like to join my other colleagues in supporting this Motion wholeheartedly to enable our security forces to go into Somalia.

Thank you, Mr. Deputy Speaker, Sir.

Mr. Samoei: Mr. Deputy Speaker, Sir, I thank you very much for giving me an opportunity to contribute to this Motion.

From the start, I want to support this Motion and make it very clear that it is, indeed, in the strategic interests of the Republic of Kenya to have a peaceful and stable Somalia. As they say, it is better late than never. We should have engaged Somalia way back. You will remember that when Siyad Barre was forced out of office more than 20 years ago, the whole world tried to do something. The failure of that effort to save Somalia was because it was fronted by countries and interests that were not regional.

Mr. Deputy Speaker, Sir, today, we have Somalia in the hands of a regional force, under the African Union mandate. The only chance of success in Somalia is when we have a regional force backed by neighbours of Somalia. We have a chance of success because it is in the interests of all the countries surrounding Somalia to sort out the security issues in Somalia. We must engage our security forces in Somalia because, as a country, we are already suffering the effects of terrorism in Somalia.

The cost of bringing goods to our country has gone up by 40-50 per cent merely because of insurance; shipping lines have upped their stakes. It is, therefore, absolutely necessary for us, as a country, to sort out the issues in Somalia by contributing in every way, including financially, if the need arises, because we are suffering from the effects of what is going on in Somalia.

Mr. Deputy Speaker, Sir, tourism which is actually the sector in which Kenya has a competitive advantage with beaches, wildlife, wildebeest migration and all, is suffering. We have not managed to go beyond 1.5 million tourists in our country. This is majorly contributed to by insecurity. It is obvious that we cannot grow our economy as fast as we want without a sector like tourism in which we have competitive advantage, growing. There is absolutely no reason why Kenya cannot attract 5 million tourists every year. A City like London which has nothing but very old buildings gets 30 million tourists every year. A country like France gets up to 86 million tourists every year. Why can Kenya not get 5 million tourists every year? In any case, scientific evidence indicates that for every extra tourist that we get, three Kenyans get a job.

Mr. Deputy Speaker, Sir, I want to persuade this House that it is in the strategic and economic interest of Kenya to have a peaceful region. It is not possible to have a peaceful region if we do not sort out Somalia. Therefore, the request by the Minister of State for Defence for this House to approve that our national defence forces be joined into Somalia under the AMISOM, so that we can effectively deal with the menace that Al Shabaab and other terrorist groups have brought to this region, is a very welcome development.

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

Mr. Konchella: Mr. Deputy Speaker, Sir, this Motion requests this Parliament to approve a Motion for our security forces to serve in Somalia under AMISOM.

(Loud consultations)

Mr. Deputy Speaker, Sir, protect me from the lound consultations because I want to speak.

Mr. Deputy Speaker: Hon. Members, consult in low tones. Proceed, Mr. Konchella.

Mr. Konchella: Mr. Deputy Speaker, Sir, I want to support this Motion with reservations—

Mr. Ochieng: On a point of order, Mr. Deputy Speaker, Sir. We want the Mover to be called to respond.

Mr. Deputy Speaker: Order! The Chair is convinced that the Members who are present want to be heard. The matter itself is a matter that comes once in a generation.

Mr. Konchella: Mr. Deputy Speaker, Sir, I want to support this Motion with reservation. I am glad the two Ministers are here. My reservation is that the broad mission of AMISOM in Somalia has been there for the last four years. Could we have an audit of what they have done to stabilize that country and protect the people of Somalia?

By joining AMISOM, we are subjecting our troops to go back to an entity that has no proof of having done anything. I do not think I will agree with that.

At the moment, we have our troops trying to stabilize that country. We should not go to keep peace in Somalia. We should go there and create peace. That is what we are doing as far as I am concerned. We have between 500,000 and million Somali refugees in Kenya. We must create a buffer zone for these people to go back home and live in peace and start developing their country. They need to go there and build schools for their children. For us to tell our troops to go there and live in barracks, we will be exposing them to attacks by Al Shabaab militias. Our troops are not lame ducks to go and sit in barracks. If that is the arrangement under AMISOM, I will support this Motion with reservation.

I am asking the Ministers that when they discuss the terms of reference for our troops that they agree on the following:

1. We must be in our own zone. If we are occupying the AMISOM zone, it will be in a section for Kenya troops. We have to create peace there. We have to go for Al Shabaab. We have to clean the towns and provide security. We have to build schools, so that Somalis can send their children there.

2. We, as a country, must also be supported to get the people of Somalia back to their country. They are tired of being here. They are intelligent people. They are businessmen. Let us create a zone for them to go and develop their country. That is the only way we can win the hearts of the people of Somalia. That is the only way they can go, develop and stabilize their own country. That should be our mission; not to go under AMISOM, under the command of somebody else who has to wait for orders from the United Nation. All our troops must get orders from Nairobi if they convert to be part of the AMISOM troops. That is why we need our own sector, so that our troops can get orders from Nairobi and be able to carry out operations to stabilize that country.

The other issue which I would like to ask the Ministers to do is that as we create our zone, let us develop plans to take the Somali people back home. We can do this by creating a peaceful environment for them to go back. Our intelligence forces should be able to identify the elements who are among the refugees.

We want to tell the Somali people who are in Kenya, for goodness sake, that their children are tired of being refugees in other parts of the world. They want to go home. They want to develop their own country. I urge them to identify the people who have been causing problems in this country. Already we have had so many bomb attacks in Garissa and even here in Nairobi. So, what we are asking them is; they should work with our security forces and our own Somali community in Kenya, so that they identify those elements which are causing problems among them, so that they can be dealt with in accordance with the Kenyan law.

With those remarks, I want to support.

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Deputy Speaker, Sir, I stand to support very whole heartedly this Motion.

Somalia, as all my colleagues who have spoken said, remains a major destabilizing factor in this region. If we are to develop, we must have peace. Right from the word go, when Siyad Barre was overthrown, external forces came into Somalia without strategy or understanding what they came to do.

The East African region under IGAD has midwifed peace in Sudan. The East African region under IGAD has midwifed the creation of the TFG in Somalia. This is the only entity that is recognized internationally as a government in Somalia, although it controls very little of the Somali territory.

Mr. Deputy Speaker, Sir, the AMISOM forces in Somalia today have an authorized strength of 12,000. Burundi and Uganda have put together 9,500. All those troops are in Mogadishu. With the combined effort of the AMISOM forces in Mogadishu and the 8,000 TFG forces they have been able to defeat Al Shabaab and route them out of Mogadishu completely. Now they can consolidate the peace and security of Mogadishu. But Somalia is not Mogadishu and Mogadishu is not Somalia. We must do much more than that. We have as a region asked the United Nations to expand the AMISOM strength from 12,000 to 20,000. That request has been received very positively. The UN has indicated that once we reach the 12,000 strength they have no difficulty in expanding the numbers to 20,000.

We, as a region, have indicated to the UN Security Council and they are in agreement that once we get the extra troops beyond what is in Mogadishu today, they should not be deployed to Mogadishu where we have enough troops already doing a good job.

Kenya, for example, has liberated up to 130 kilometres of our frontier into Somalia. That area is free of Al Shaabab. It needs a stabilizing force. It needs a peace keeping force. We cannot keep peace where there is no peace. We can only keep peace where there is peace.

Mr. Deputy Speaker, Sir, that is why the UN that started off with what I thought to be a parochial policy of saying that neighbours of Somalia cannot contribute troops to AMISOM, on our representation and advocacy, changed that resolution. The UN has now allowed any neighbour to deploy troops to AMISOM. Djibouti has given a battalion. They are ready and will be deployed on the 16th of this month. Kenya has requested – and it has been agreed by the AU Peace and Security Council – that those troops should not go to Mogadishu. They should come to the liberated areas in southern Somalia. Kenya has offered to contribute – and the Minister of State for Defence, myself and others are discussing to see how strong our force will be in terms of numbers, logistical support required and the area of deployment and command structure— I agree with those who have contributed, asking that we look for a structure where our troops can enjoy some degree of autonomy in command. That is something that we are going to negotiate and it is not difficult to achieve.

Mr. Deputy Speaker, Sir, over and above Kenya’s contribution, it should also be recorded that Uganda has an extra two battalions ready to move into Somalia. Burundi has an extra two battalions ready to move into Somalia. Nigeria has three battalions ready to move into Somalia. Guinea has two battalions ready to move into Somalia. Sierra Leone has a contingent of 500 policemen to come into Somalia to help in civil duties.

It should not be lost that Kenya trained policemen for Somalia who are doing a wonderful job today. As I support this Motion, I wish I had time to say more—

Mr. Deputy Speaker: The Chair uses his own discretion to give you three more minutes. Proceed!

The Minister for Foreign Affairs (Mr. Wetangula): Thank you Mr. Deputy Speaker, Sir. So, when you look at the profile that we have and we already have a commitment from the international community; the EU, the USA, they have money in the basket. Last September, Turkey, a very close friend of this region, on the floor of the UN, put in the Somalia basket US$300 million that is waiting to come into Somalia to stabilize those structures.

Azerbaijan, a Muslim State, that is awash with oil – it is one of the major oil producers – put on the floor of the UN, in the basket of Somalia US$350 million available to come and help stabilize the State of Somalia. It is now up to us. Like we have said over and over again, Kenya is the superpower of this region. Kenya is the economic powerhouse of this region. We must also take the lead. We must also participate in what is happening to stabilize our region because we have a vested interest. With peace, Kenya will prosper even more. Without peace, Kenya will suffer like we have been suffering.

Mr. Deputy Speaker, Sir, in this new dispensation, I laud the Minister of State for Defence. In the past, one could sit in an executive office and declare that troops are going to Somalia. It is now important that this House made up of the representatives of the people of Kenya must have a say, must know and must approve what we are doing with our boys and girls in the Army. I believe that what we are doing today will go a long way in helping Somalia.

Lastly, I want to inform Parliament that tomorrow, the Secretary-General of the UN is coming to Kenya. He will be in Kenya for two days. He is also going to visit your constituency, Mr. Deputy Speaker, Sir. He will go there, on Friday to visit the Daadab camp. I want to urge you to be there so that you can also be able to agitate for the interest of the host community. We have told the UN that it is not good enough to bring money and facilities to refugees when the host communities are yawning outside the camps. They must also be given food. They must be given security. They must be given facilities. They must be given education.

Mr. Deputy Speaker, Sir, this is something that I am going to invite you and other Members of Parliament from the area, when we have a meeting with the Secretary- General of the UN, Ban Ki Moon, to join me in agitating and requesting for issues that also support our people. As a host country, we have done so much. It is only important that everybody else joins in, first to help our people but, more importantly, to liberate the areas and move in peacekeepers so that our brother and sisters from Somalia can move back home.

Mr. Deputy Speaker, Sir, and hon. Members, imagine there are Somalis who are now 20 years old who were born in those camps, who do not know what a home is or what peace is or how to sleep in peace is. It is our duty as human beings, neighbours and leaders to assist our brothers to go and live like all other nationals of other countries.

Nothing lasts forever. I have no doubt that Somalia problems will not last forever. If we have the will, the way will be there. If the way will be there, we will achieve success in normalizing Somalia.

Thank you so much. I support.

Dr. Khalwale: Mr. Deputy Speaker, Sir, I support this Motion very strongly. Allow me to use this time to pay my tribute to those soldiers who have so far paid the highest price, and those who have had all manner of casualties. Allow me to remember that in my family, Maj. Ong’ayo lost his life in a peace keeping force in Yugoslavia. Also allow me to remember that Pvt. Evans Mutoro was the first soldier to be declared missing in action.

Mr. Minister, we still hope that you will one day tell us that you have found him in captivity and if, by haven stance, he lost his life, you give us his body to bring him back home. We care.

Mr. Deputy Speaker, Sir, when I look at this Motion, it reminds me of the proverbial story of the acres of diamonds where a man sold his land because he could not grow anything on it. The other man who came in quickly discovered that he had bought land which could not geminate crops, but had acres of diamond. That our soldiers have demonstrated this high degree of discipline— There has been no rape and harassment of Somalia women and girls. It means that in our own soldiers, we have been sitting on acres of diamonds. Why did we not use them in 2008 to stop and prevent the Post- Election Violence (PEV)? Whoever should have given that command but did not, it should prick his conscience.

Allow me to assure the Minister that even if he had come today with an improved version of this Motion, we would not only have given him our okay, but if he had also asked us to vote him more money, we would definitely have done it for him because security is expensive. Allow me also to congratulate Mr. Wetangula and Mr. Haji for the exemplary role they have played during this engagement. I should go ahead and tell my brother Wetangula that he has done so well, but he should not be blowing hot and sometimes cold.

You know, if it was a question of a report card when you are coming back home to Kakamega in the capital, you would have been given an excellent for what you have done in Somalia. But, definitely, for what you have done in Sudan, you would have been given a very poor score.

Mr. Deputy Speaker: Order, Dr. Khalwale!

Dr. Khalwale: I am keeping order, Mr. Deputy Speaker, Sir.

Mr. Deputy Speaker: Proceed!

Dr. Khalwale: Mr. Deputy Speaker, Sir, I want to say and say it here that the Chair was worried about what is our exit strategy? Indeed, to my mind, this is the exit strategy. We are exiting now, but exiting in an organized manner. Obviously, we are going to deploy fewer troops now that the international community has come in.

Obviously, in our exit strategy, we are going to use less money that we would have used if the other people had not come in.

Mr. Deputy Speaker, Sir, it is my hope that the cost of doing that engagement will not be shrouded in secrecy. The Minister will have the courage to quietly – not in public – come before the Public Accounts Committee (PAC) and account for every cent that he is spending in that particular engagement.

I want to end by thanking my colleagues with whom, one and a half months ago, we held a huge national rally in Nakuru. We told the people that the problem we were facing was not a Kenyan problem. It was, first and foremost, an American problem. That is because Al Shaabab, we are told, is a branch of the Al Queida. Therefore, hon. Minister for Foreign Affairs, you must tell the American Government that they have a responsibility to contribute more than they might be doing in that particular engagement, because we are doing their dirty work.

This is not a laughing matter because as we can remember, as the Rwandese killed each other in the infamous genocide, America and the UN just sat there and did nothing. In fact, they pulled out and the few international forces, which were in Kigali, were told not to engage. Thank God that Kenya has the same shared DNA with Somalia because of the Somalis we have in Kenya and those that are in Somalia. This is has been the DNA that has given us leadership. We support the Government and support it strongly.

I support this Motion.

Mr. Njuguna: Thank you, Mr. Deputy Speaker, Sir, for giving me an opportunity to contribute to this very important Motion. Let me start by thanking the doctors who are now on strike because their call needs to be answered by the Government because our people are suffering. Their call needs to be heeded by the Government.

With regard to this Motion, let me start by saying that the two Ministers have done Kenya proud. They have visited the critical centres to present our case. They have visited the Headquarters of the Inter-Governmental Authority for Development (IGAD).

The IGAD has already endorsed our commitment to bring liberation to Somalia. You also remember the commitment given to the Kenyan Government by the African Union (AU). They even conducted an extra ordinary meeting to approve this engagement, not forgetting that the UN has also given an approval to this very important engagement. This is a critical assignment that has been taken by our Armed Forces. Our memories are fresh, considering what happened in Kenya when the Al Qaeda criminal group massacred our people in Nairobi. About 210 Kenyans lost their lives. If we had known that the Al Qaeda elements were going to attack the country, our Armed Forces would have been called to defend it.

Now that the Al Shabaab has also come out clearly with the intention of interfering with the territorial integrity of this nation, the Kenyan forces were legitimate in coming out to defend the territorial integrity of this country. Kidnappings were the order of the day in this country. Now, they have been stemmed. Piracy was common in the Indian Ocean and even at the Port of Mombasa where pirates were picking our ships.

With the mobilization of our Navy and the other forces, ships are now docking at our Port without any threat. It is, therefore, important that those liberated areas in Somalia, their fate be known so that the innocent people who are liberated are given social facilities to continue with their lives in that country.

We must also thank the men and women of this country who have moved to Somalia militarily to liberate that country. It is important that as our forces continue to fight in Somalia, a national day for prayer is set so that our military forces are given motivation, more spiritual and physical strength. As Kenyans continue to support this effort, it is important that the Government plans to invest more in our weaponry, particularly on the Navy. We must invest more and increase Navy ships and buy new weapons for our military. We should not wait for foreign countries to come and defend Kenya or even the East African countries. We have seen how the US is rushing to Egypt and how it has responded to Yemen and Tunisia. Therefore, this is an African and a Kenyan responsibility to defend the territories of this country. It is important that we move behind our Armed Forces to give them motivation so that they can bring back sanity and stability in Somalia.

With those few remarks I fully support the engagement.

Mr. Kaino: Mr. Deputy Speaker, Sir, let me start by thanking the Mover of this Motion. I will try very much to avoid repetition. Most of my colleagues have spoken and have done so very well. The messages that have come here tell you how long ago we should have gone to Somalia. The cries in Somalia especially from the children have not only been for Somalia but also for Kenya to help them. They cried to Ethiopia and Eritrea to help them. However, we have turned a blind eye to these children. We felt the pain when we were hit by the massacres in this country. We did not realise how many children had died in those areas.

Kenya cannot be stable with the problems in Somalia today. It will be correct and positive for this country if we support this Motion because of one thing. The problems that we have today are caused by the influx of refugees from Somalia. If that country stabilizes, you will see these refugees going away, naturally. You will not even ask them to go. You will see them going back to their country because it is very beautiful, fertile and has many natural resources. The international community should go to Somalia and help. It is good that many countries in the world have realized that it is important to have peace. You cannot enjoy peace when your neighbours are suffering. They will create the same problems for you and that is what we have in Kenya today. Let me put it this way.

It is important that Kenya joins the other forces of the AU because when we are there, we will not go as Kenya but as Africans. We shall be sharing whatever burden we have with other countries. So, the burden we have been having there as a country will lessen. Once that is done, we should come back home because we also have small fires burning here.

We have industrial strikes like the one of the doctors that the Government should address because patients are dying in the hospitals. We must also address the destruction in Syokimau and Embakasi. Children who lived in very good houses now live in shanties. The problem has been brought by the Government. These are small fires. As we take a lot of water to put out the fires in Somalia, we must also remain with some water to put out the small fires that we have here at home. Teachers met today and they are strategizing for another strike. The doctors are demonstrating, going round Parliament Buildings. People are sleeping outside or in shanties in Embakasi. These are also small fires that we must put out. However, the first priority is to watch over Somalia and make that country stable.

With those few remarks I support wholeheartedly this Motion.

Mr. Mututho: Mr. Deputy Speaker, Sir, I stand to support this Motion wholeheartedly. I want to congratulate our military forces for what they have done. I think they have a lot of lessons to teach to their colleagues in the regular police, administration police and others. They have shown us how a force can go, assemble itself, and do what they were meant to do, without causing unnecessary hassle. I want to say this military strategy which was primarily meant to make or reduce Al Shabaab’s military capability to nil is a success. Therefore, we are likely to have that lacuna. If we have a lacuna, and you do not have people there who are going to manage, then we will have another format of Al Shabab or something similar. Therefore, this Motion is timely. Our intention was never to go there and occupy the land of Somalia. We have never been at war with our neighbour. Our target was and is to eliminate Al Shabaab.

Having said that, we, as a nation, need to help the Somali people, who are our brothers. They need a political solution to their problems. A political solution is not a military intervention. That now should be focal point of our next move. We should assist them to solve their problems. Whatever they are quarrelling about, there must be a political solution in Somalia. We should be able to help. Now that the guns are silent, we should be able now to help the Somali people form their own Government.

Mr. Deputy Speaker, Sir, if we achieve that, we should have our think-tanks up with economic strategy. Kenya should not squander this chance. In my view, we should be thinking of putting a railway line from Nairobi to Kismayu or Mogadishu. If we do so, the private sector will take over. They will discover Somalia is a good country to do business and tour. They can use the Port of Kismayu or Mogadishu to import their goods. I am sure we will discover many things about our neighbour and the issue of Al Shabaab will come to an end. Let us not only focus on military intervention, but let us think of what we can do in Somali.

While welcoming the Secretary General of the UN to our country, let him first and foremost, when he lands at Dadaab, shed tears when he sees the plight of those refugees. What mistakes have they done on earth? Nothing! What is it that we could not solve there in Dadaab Camp? Among other things, the environment around this camp has been in a total mess. The decision to have people in Dadaab for whatever reason was not correct, in environmental thinking.

Since I will not have a chance to meet him, I would urge that in future when they are putting up refugee camps, they should provide them with water, energy and food. They should not only provide for tents. Energy is a very important component that they should provide. Otherwise, they will be forced to look for firewood. In the process, they will destroy the environment. That has led to the destruction of Dadaab. We must persuade them to help in reconstruction and rehabilitation of this delicate ecosystem around Dadaab.

We cannot wish Somali people away. They are business minded people. They are good investors. We have lived with them for a very long time. We have intermarried with them. They are our neighbours. It is the high time we stopped engaging them with suspicion. We do not want to witness a similar situation like what is happening in the Middle East. Let us live peacefully with our neighbours. Let us create peace with ourselves. That is why I support the Member who said this Government must learn very quickly to respect its own citizens. This Government is fighting its own people. Let us refrain from destroying people’s houses. Let us not evict IDPs because we think they have settled where they are not supposed to be. That is war in itself; war with your own people. Do not encourage the killing of Mungiki adherents without trial. Let them be tried. Let them say their problem. They have a similar background with Al Shabaab.

Mr. Temporary Deputy Speaker, Sir, finally, this Parliament should find it honourable to invite their colleagues from Somalia, Eriteria and other neighbours. Let us all sit together and solve our problems amicably. Let us meet in Naivasha; it is a very good place.

With that, I beg to support.

Mr. Chachu: Mr. Deputy Speaker, Sir, I support this Motion which is very timely and strategic for our national interest.

Mr. Temporary Deputy Speaker, Sir, first and foremost, I want to salute the courage and sacrifice of our men and women in uniform. They are there to defend our freedom and the sovereignty of this nation. Some of them might pay the ultimate price by defending this nation with their own blood. This is something that we should really be proud of as a nation. We should support our men in uniform with all the support they need so that they can perform their duties effectively and ensure success in whatever they are doing.

Mr. Deputy Speaker, Sir, it is critical and strategic for Kenya to support security in Somalia. Security in Somalia is very important for own freedom, prosperity and stability politically. More than that, out of our own African brotherhood, being an immediate neighbour of Somalia and out of humanity and care of our brothers, we must address the Somali crisis. The world at large is guilty of having let Somalia go to the dogs all these years. It is really high time, the world and, most of all, the African nations, through, IGAD and AU, did what they have to do to ensure that we have peace, and security in Somalia. The human race should have done more in Somalia. This problem has persisted for over a decade.

I was a young student back in 1994 in the United States of America, when American forces were in Somalia and they were killed, and they were being dragged in the streets of Mogadishu. It made news for a whole week. That was the day the whole world, turned their back on Somalia. Yes, a few American forces were killed and they were dragged on the streets of Mogadishu. However, thousands of Somalis were killed during that war.

Mr. Deputy Speaker, Sir, our conscience should have been perturbed so that when we look at the crisis in Somalia, we should not just turn our backs simply because a few white American soldiers were killed and dragged in the streets of Mogadishu. Even African nations, including the immediate neighbours like Kenya, Ethiopia, Eretria and Djibouti did not do enough to ensure the safety and security of the Somali people. It is now time, if nothing else, out of guilt, for the whole world to come and rescue Somalia as they have rescued other parts of this world, which have fallen, or which have been in a very chaotic situation, from Sierra Leone to DRC. There are many such countries in the world.

Mr. Deputy Speaker, Sir, as they engage under AMISOM, I wish our forces all the best, so that they will do what they have to do, to secure Somalia and our borders. I hope they will come home peacefully to join their families and join us in building this nation.

Thank you, I support the Motion.

Mr. Deputy Speaker: I think under the circumstances, there being no other Member who wants to contribute, I will ask the Minister to respond.

The Minister of State for Defence (Mr. Haji): Thank you very much, Mr. Deputy Speaker, Sir.

I wish to respond, first of all, to the questions that were raised by hon. Members, who were contributing. Sir, you will recall during your contribution, you raised the question of an exit plan. Hon. K. Kilonzo who also spoke before you raised the same issue.

Mr. Deputy Speaker, Sir, in the first place, Kenya has never had any appetite really to enter Somali territory. It is as a result of the unprovoked disturbances that the Al Shabaab militants were creating that at the spur of the moment, Kenya decided to push Al Shabaab away from our border. The Minister for Foreign Affairs and I went to Djibouti, Somalia, Burundi, Uganda and Ethiopia to sell the idea that we want to come out of Somalia and it will, therefore, require the African troop contributing countries to contribute soldiers who can go and replace Kenya. This is because if Kenya had moved out, that would have given a lot of strength to Al Shabaab. They would have felt that the Kenyan forces had been expelled from Somalia. They would have been more popular and stronger in Somalia. Therefore, when we could not get more than 9,500 soldiers from the contributing countries, we decided to revert to the AMISOM so that we do not come out of Somalia right now.

Mr. Deputy Speaker, Sir, I do agree with your sentiments that Kenya should not stay longer than it is necessary. Even tomorrow if we achieve the objective which has taken us there, Kenyan forces will come out of Somalia. You also talked about collateral damage. We agree and are very sensitive to that. During our operation we have made sure that nothing like that happens in Somalia. That is why the liberated areas are embracing our soldiers and receiving them with both hands. They are very happy to receive all the assistance that our soldiers are able to give in terms of medicine, food, mosquito nets and even the Quran.

As the Minister of State for Defence I want to make it very clear that in this operation we do not have any other Government assisting us. We shall not also allow the Prime Minister of Israel to come and fight with us in Somalia. We will not allow even an office messenger from Israel to come and embrace us in this war against the Al Shabaab.

Mr. Deputy Speaker, Sir, hon. Imanyara talked about the contingent of AMISOM. Very rightly so, the contingent of AMISOM is 9,500 as at now. The requirement was that they should be 20,000, but now that the Al Shabaab have been expelled from Mogadishu – 98 per cent of Mogadishu is now in the hands of AMISOM – it has been found prudent that the second phase which was to liberate Mogadishu and other parts of Somalia should now start immediately. Therefore, there are 9,500 of Burundi and Ugandan troops in Mogadishu. These countries have also pledged to contribute a total of 4,000. They can also go to Mogadishu if they want. Djibouti has contributed 1,000 soldiers and we are persuading them to be brought to our side, plus the soldiers that we will contribute to AMISOM. With that we think that liberation of Somalia is in the pipeline right now.

Mr. Deputy Speaker, Sir, my brother, hon. Imanyara also raised the question of the cost element of this operation. This Motion intends that when the UN takes over the cost element and enabling, that is, giving soldiers arms, vehicles, salaries and everything, it will save the country a colossal amount of money.

Hon. Mungatana raised the question of us, as members, being engaged in Somalia. We are very proud, as a country, to have managed to convince the UN Security Council that we, as neighbours, have originally refused to contribute soldiers because we were conscious of our neighbourhood with Somalia, but the situation has now changed. Therefore, it has been agreed in principle that any neighbour can contribute peacekeeping troops and that is why we are now going to be in Somalia.

Mr. Deputy Speaker, Sir, hon. Konchella raised the question of zones and that was very rightly so. We said that there should be some sectors of AMISOM. There should be the sector of Mogadishu, another one neighbouring Ethiopia and a third sector which neighbours Kenya. Therefore, the control will be done by us, as the contributing country and this will take care of our interest.

For the benefit of this House, I also want to report that our soldiers have performed wonderfully with a minimum loss of life. The damage that has been caused to Al Shabaab right now is over 144 dead militants and five training camps with armament have been destroyed by our troops. This is against the loss of 11 Transitional Federal Government (TFG) soldiers who have been killed and 25 have been injured. Four members of the Kenya Defence Forces (KDF) have been killed and 11 have been injured. There are also five who died in the helicopter crash. Those who surrendered are seven.

Mr. Deputy Speaker, Sir, having said that, I would like to thank all the hon. Members for the overwhelming support that they have given this Motion. This will make our soldiers to know that they have brothers and sisters who are mindful of their welfare. Therefore, they will be fighting harder than they have already done.

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

(Question put and agreed to)

Government’s commitment to voluntary and free-choice family planning practices comes to question as Kenyan HIV infected women continue being coerced to use the IUCD. The Citizen TV on November 22, 2011 ran a story about a widow in Mbita who has benefited from a fish farming venture supported by a grant from an American based non-governmental organisation. The sole qualification she needed to qualify for the grant was to be HIV positive and willing to be fitted with an intrauterine contraceptive device (IUCD). It is probable that this poor widow had no choice but to accept the condition- she needed help to support her family and, to that end, would take considerable risk. The question here is whether she had any choice in embarking on this method of family planning? Is it fair to assume she was in fact coerced to accept an IUCD by the grant of much needed cash? What is the position of the Kenya Government on the matter?

Cash for contraception

According to Prof Peter Anyang’ Nyong’o, Minister for Medical Services, family planning practice should be voluntary[1]. Service providers must educate clients on the range of choices available, and let them choose that which suits them best. “But to flash money and say take this – no, that is not how to do it!” he added. However, it is not clear what the Minister has done to arrest the coercive practices.

Coerced sterilization of HIV-positive women came to light in 2007 when 13 cases were documented in Namibia[2]. Shortly afterwards there were reports of HIV-positive women in Kenya being paid money to accept long-term contraceptive methods, particularly IUCD[3]. These activities in Kenya (which include the case in point) are supported by Project Prevention, an American NGO founded in 1997 which also pays female drug users in the U.S. and UK to be sterilized. Whereas HIV-positive women do have a legitimate need for FP services, like every other woman they are entitled to exercise choice free of coercion or manipulation through incentives. Use of incentives and disincentives to pressure poor people to be sterilized was rejected at both the 1994 International Conference on Population and Development (ICPD) in Cairo, and the 1995 Fourth World Conference on Women in Beijing. In particular, the Beijing Platform for Action states clearly that “The human rights of women include their right to ….decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence”.

Coercion for sterilisation through incentives reached its peak in India during the rule of Prime Minister Indira Gandhi, with her government’s policy of sterilising (vasectomy) millions of Indian men who had fathered two or more children, being compensated with a transistor radio! This policy was ruthlessly and often illegally applied to the extent it came to symbolize the dangers of authoritarian rule[4]. It is notable that payment for sterilisation continues in India to this very day; for example, a medical college was recently reported to pay men that opt for non-scalpel vasectomy 1,100 Indian Rupees[5]. In Uttar Pradesh, to obtain a shotgun licence requires two people being sterilised; for a revolver licence, the price would be five. Wealthy farmers have managed to stock their armory through forcible sterilization of their poor farm hands![6]

Proponents of coerced contraception are usually driven by the wish to create an HIV-free tomorrow by preventing birth of children infected by their mothers. It is known that in Africa before the advent of antiretroviral drugs up to 40 percent of children born to HIV infected mothers were also infected. However, in Kenya, there has been an increasing access to services for prevention of mother-to-child HIV transmission (PMTCT), most often offered at antenatal clinics and at delivery. According to the Kenya Service Provision Assessment Survey of 2010, 58% of all health facilities nationwide offered some component of PMTCT services, with 33% of these facilities providing all four components for the minimum PMTCT package (HIV testing with pre- and post-test counseling, ARV prophylaxis for mother and newborn, counseling on infant feeding, and FP counseling or referral). This is increasingly reducing the incidence of perinatal transmission as well as rates of mortality among infected children. Accumulated evidence to date shows that administration of antiretroviral therapy to the mother during pregnancy, labour and delivery, and then to the newborn, as well as delivery by Caesarean section for women with high viral loads, can reduce the rate of perinatal HIV transmission to well below 10 percent[7]. What this means is that despite the many challenges not addressed here, it is possible to dream of an HIV-free generation without having to resort to cruel acts of forced contraception for HIV infected persons. Indeed this was the view expressed by UNAIDS Executive Director Michel Sidibé, during a visit to a Millennium Villages Projects (MVP) in Kenya: “We have seen that it is possible to virtually eliminate infant HIV infections in high-income countries ….Now we must apply the knowledge and tools to create an AIDS-free generation in Africa and the rest of the world.”[8]

[1]IRIN. Outrage over “cash for contraception” offer to HIV-positive women http://www.trust.org/alertnet/news/kenya-outrage-over-cash-for-contraception-offer-to-hiv-positive-women accessed October 22 2011

[2] Mallet J, Kalambi V. HIV AIDS Policy Law Rev. 2008 Dec;13(2-3):77-8. http://www.ncbi.nlm.nih.gov/pubmed/19297769 accessed October 22 2011

[3]Brett Davidson and Lydia Guterman. What’s Wrong with Paying Women to Use Long-Term Birth Control? February 21, 2011 http://blog.soros.org/2011/02/whats-wrong-with-paying-women-to-use-long-term-birth-control/ accessed October 22 2011

[4] “The World: The Issue that Inflamed India” Lawrence Malkin, TIME New Delhi Bureau Chief, Monday, Apr. 04, 1977

[5] Team to probe forced sterilisation charge Express News Service

http://www.indianexpress.com/news/team-to-probe-forced-sterilisation-

[6] Outrage at guns for sterilisation policy, Indian farmers given firearms licences as an incentive to curb population growth. Randeep Ramesh in Lakhimpur The Guardian, Monday 1 November 2004 23.56 GMT http://www.guardian.co.uk/world/2004/nov/01/india.randeepramesh

[7]http://www.cdc.gov/hiv/topics/perinatal/resources/factsheets/perinatal.htm

[8] http://www.avert.org/pmtct-hiv.htm

NATIONAL ASSEMBLY

OFFICIAL REPORT

Tuesday, 15th November, 2011

The House met at 2.30 p.m.

[Mr. Speaker in the Chair]

Page 9 Tuesday, 15th November, 2011

REFUND OF MONEY TO DONORS

Mr. Mbadi: Mr. Speaker, Sir, I beg to ask the Deputy Prime Minister and Minister for Finance the following Question by Private Notice.

(a) Can the Minister confirm that on 24th October, 2011 the Permanent Secretary, Treasury, wrote to the Country Director of the World Bank committing to refund Kshs479 Million by 26th October, 2011 and a further Kshs2.19 billion before the end of the 2011/12 Financial Year?

(b) Could the Minister provide a breakdown of the various projects the refunds relate to, the reasons for the refunds and the action being taken by the Government against those involved?

(c) Under what budget lines are the refunds expended and was parliamentary approval for the same obtained?

The Assistant Minister, Office of the Deputy Prime Minister and Minister for Finance (Dr. Oburu): Mr. Speaker, Sir I beg to reply.

(a) I confirm that on 24th October, 2011, the Permanent Secretary, Treasury, wrote to the Country Director of the World Bank committing to refund to the International Development Agency (IDA) and other development partners funds spent on expenditures that were verified and confirmed to be ineligible.

(b)The breakdown of the projects that the refundable amounts relate to are as follows:-

PROJECT NAME : Arid Lands Resource Management Project

IMPLEMENTING MINISTRY : Ministry of State for Development of Northern Kenya and Other Arid Lands

PROJECT NAME : Kenya Education Sector Support Project

IMPLEMENTING MINISTRY : Ministry of Education

PROJECT NAME : Western Kenya Community Driven and Flood Mitigation Project

IMPLEMENTING MINISTRY : Ministry of State for Special Programmes

PROJECT NAME : National Statistical System Project

IMPLEMENTING MINISTRY : Ministry of State for Planning, National Development and Vision 2030

The refunds follow a joint World Bank and Government of Kenya forensic audit and a request to the Government of Kenya by development partners to refund funds identified as ineligible expenditures as provided for in the financing agreement.

Implementing line Ministries under the supervision of the Accounting Officers and authorized officers will take appropriate disciplinary measures against those responsible for the malpractices in line with the existing rules and regulations.

(c) The refunds are being made from reallocations from respective Ministries’ budget estimates approved by Parliament. The reallocations will be presented in Parliament during the preparation of the Supplementary Estimates.

Mr. Mbadi: Mr. Speaker, Sir, it should be noted that it is not the World Bank which originated or initiated this forensic audit. This was a Government initiative and it has verified and confirmed that money has been stolen. If you look at the letter, which I am sure the Assistant Minister has, which was written to the World Bank, it is very clear that this money is being refunded because some Government officers have stolen money through fraud, corruption or what they term as mal-procurement, and I do not know whether that terminology exists. However, the question I want to ask the Assistant Minister is: What are the criminal actions he has taken against the Government officers who were involved in this blatant theft of public resources which has denied this country an opportunity to enjoy services which should have been provided by these funds? What action apart from the normal disciplinary actions he is contemplating— This is a criminal act. What are the actions, as a Government, is he planning or has already taken against the officers who were involved in this fraud, corruption and the so-called malprocurement?

(Several hon. Members stood up in their places)

Dr. Oburu: Mr. Speaker, Sir, the Office of the Deputy Prime Minister and Ministry of Finance is responsible, on behalf of the Government, for receipt of these funds which are actually loans. Therefore, the refunds are like repaying the loans in advance but the loans are still there in our loan portfolio. It is only that these projects will be denied those particular funds but the specific question the hon. Member has asked is the action we are taking internally as a Government against officers who have fraudulently used Government money. I have read to you the various programmes and they are not under one Ministry. So each Ministry is responsible for taking action. With respect to the Ministry of Education, it is in public domain that several officers have been taken to court and there are court cases going on in that respect. The Ministry of State for Special Programmes has also taken some action in terms of criminal prosecution. The process of recovery is still ongoing and there are officers who have been surcharged and are repaying the funds.

Dr. Khalwale: On a point of order, Mr. Speaker, Sir. Is the Assistant Minister in order to mislead the House that the officers in the Ministry of Education are appearing in court because of the money which is being refunded when we know that the officers are in court merely for Kshs13 million by way of imprests? However, the money which is being reimbursed as being lost in the Ministry of Education is in two payments; one of Kshs347 million and another one of Kshs63 million. Could the Assistant Minister tell us the officers who are answering for that bulk money instead of hiding behind the Kshs13 million for which those officers are in court?

(Applause)

Dr. Oburu: Mr. Speaker, Sir, the hon. Member is aware that investigations are part of another arm of the Government and they are supposed to be independent in doing their investigations. So, it is only cases which have been proved to be of a criminal nature where officers have been identified that are being prosecuted. As soon as investigations are complete the officers will be brought to book or taken to court. This is an ongoing process—

(Messrs. Mbadi and Mungatana stood up in their places)

Mr. Speaker: Order, Mr. Mbadi! Let us adopt another method of doing business, but let me hear the Member for Garsen!

Mr. Mungatana: On a point of order, Mr. Speaker, Sir. The Assistant Minister has said that the money which has been stolen will be recovered by reallocation which will be presented in Parliament during the preparation of Supplementary Estimates. Is he in order to anticipate debate that this House will approve refund of stolen money? Is he in order?

Hon. Members: We will not!

Mr. Speaker: Mr. Assistant Minister, that is a legitimate challenge!

Dr. Oburu: Mr. Speaker, Sir, as I have stated, these refunds are an obligation from the Government in line with financing agreements with the World Bank and other bilateral donors. The consequences of not refunding this money are very grave for this country because what it means is that if the Government committed itself to refund any money which has been audited and found to have been either misused or fraudulently acquired is that they stop all ongoing projects funded by them. This is very grave for the country. Therefore, we have to deal with people who have stolen but we cannot default in making these payments. The emergency payments are normally paid through reallocation because we are not using any money over and above what Parliament had approved.

What we are doing is just reallocation of money from the same Ministries. As I have said—

(Mr. Mungatana stood up in his place)

Mr. Speaker: Order, Mungatana!

Dr. Oburu: Mr. Speaker, Sir, this is just reallocation of funds from the various votes which is a normal thing. Even now war is going on in Somalia and we are spending some money which we shall bring to this Parliament for approval.

(Mr. Mbadi stood up in his place)

Mr. Speaker: Order, the Member for Gwassi! The Assistant Minister has just slipped into that area. So, let it pass! What is it the Member for Lari?

Mr. Njuguna: Mr. Speaker, Sir, viable and beneficial projects have been affected by this diversion and payments. What measures has the Ministry taken to make sure that what has taken place will not happen in future? What measures have been taken to make sure that diversions of this nature will not happen in the near future?

Dr. Oburu: Mr. Speaker, Sir, we are continuously strengthening our financial management systems under various programmes. We are constantly trying to seal the loopholes which make it possible for officers to loot and dip their fingers into public coffers.

Mr. Imanyara: Mr. Speaker, Sir, this is a country where small people are always subjected to criminal sanctions while the big men and women who are responsible for massive looting and plunder of this country’s resources go scot-free. I am interested in this aspect of the Assistant Minister’s answer where he says:-

“The implementing line Ministries under the supervision of the Accounting Officers and authorized officers will take appropriate disciplinary measures against those responsible.”

The reason we created the Office of the Director of Public Prosecutions (DPP) is to enable specific actions to be taken by line Ministries. Have they made any reports to the DPP and if so, how many officers in his Ministry and what sums of the money were stolen so that this country can take the Government seriously when they say that they are fighting impunity?

Dr. Oburu: Mr. Speaker, Sir, the amounts of money which have been stolen are broken down.

(Several hon. Members stood up in their places)

Mr. Imanyara: On a point of order, Mr. Speaker, Sir. I started by prefacing on why we set up the Office of the DPP. I want to hear that he has referred the following people regarding these sums of money. Please, let him not go round in circles!

(Applause)

Dr. Oburu: Mr. Speaker, Sir, I started from the last point. The hon. Member should not force me to answer his questions in the same order that he wants. So, I will answer in the order which I feel is convenient to me.

Mr. Speaker, Sir, the DPP is an independent body and all these cases where there is fraud have been referred to investigative arms of the Government. The officers have been directed to take disciplinary action whereas the criminal aspects—

(Mr. Mbadi stood up in his place)

Mr. Speaker: Order, Mr. Mbadi! Just allow the Assistant Minister to make his point. I have seen you and I see your concerns but allow him to, at least, proceed and answer the question.

Dr. Oburu: Mr. Speaker, Sir, the various Ministries concerned have already handed over further investigations on the audit because these things came as a result of an internal audit by the Government of Kenya and later there was a forensic audit done jointly with the World Bank. As a result of this audit, we instituted measures to first reinstate the money which is suspected to have been stolen so that the World Bank projects can continue. We have instructed the various Ministries to take disciplinary actions against the officers who are suspected to have looted the money but on the criminal aspects, the investigating arms of the Government are doing their job. Finally, the cases which have been concluded are already in court while the ones which are being investigated are still being investigated and maybe soon they will be in court.

Ms. Karua: Mr. Speaker, Sir, I can see that the Assistant Minister has used the word “ineligible” which has become the mode of explaining to Parliament money that is improperly used. I want to remind him that this word, among many other meanings, means illegal, unauthorized or irregular. The Assistant Minister has confirmed that they have referred to the DPP. But of greater concern is his statement that this will be presented to Parliament during reallocation. During the KANU days, the Government was famous for spending without authorization and using Parliament as a rubberstamp.

What was so difficult about the Government seeking Parliament’s approval before refunding this money?

(Applause)

Dr. Oburu: Mr. Speaker, Sir, even the current Constitution allows the Government to operate and then come to Parliament because there are some emergency issues.

Hon. Members: No! No!

Dr. Oburu: Mr. Speaker, Sir, there are issues which are unpredictable.

(Several hon. Members stood up in their places)

I have not even made my statement!

Mr. Speaker: Order, the Member for Central Imenti! Mr. Assistant Minister, it would be helpful, so that you do not attract all these points of order, you say even the current Constitution allows the Government to operate and then subsequently seek authorization. Please cite the Article!

Dr. Oburu: But, Mr. Speaker, Sir!

Mr. Speaker: Proceed, you now have my protection!

Dr. Oburu: Thank you, Mr. Speaker, Sir. Article 223 of the Constitution states as follows:-

Mr. Imanyara: What? It is not true!

Mr. Speaker: Order, the Member for Central Imenti! You will not speak to the House from a sitting position before you catch the Speaker’s eye.

Mr. Imanyara: I am sorry, Mr. Speaker, Sir!

Mr. Speaker: Thank you!

Dr. Oburu: Mr. Speaker, Sir, Article 223 says:-

“(1) Subject to clauses (2) to (4), the national government may spend money that has not been appropriated if -

(a) the amount appropriated for any purpose under the Appropriation Act is insufficient or a need has arisen for expenditure for a purpose for which no amount has been appropriated by that Act.”

This means that if we are spending money which has not been appropriated by the Government and approved by Parliament, of course, we can spent it and then come later on for approval but what we are doing is spending money which has already been appropriated by Parliament. We are just doing an administrative work of reallocation which we shall bring later to Parliament for confirmation during Supplementary Estimates.

(Mr. Mbadi pointed his hand at the Speaker)

Mr. Speaker: Order, Mr. Mbadi! Gestures to the Speaker will not do! Do not point your hands at me! Do it correctly.

Proceed!

Mr. Mbadi: Mr. Speaker, Sir, I did not even notice I was pointing at the Speaker.

Mr. Speaker: It is okay!

Mr. Mbadi: On a point of order, Mr. Speaker, Sir. Is it in order for the Assistant Minister to mislead this House that the money was appropriated for the purpose for which the Government is applying it and yet we know very well that there is no single day this House ever appropriated funds to be refunded to the World Bank after the Government officers have misappropriated them? Could the Assistant Minister clarify to this House the accuracy of his statement that we appropriated funds to be refunded to development partners after their officers have already stolen the same funds?

Ms. Karua: On a point of order, Mr. Speaker, Sir, in relation to that.

Mr. Speaker: Mr. Mbadi, that becomes a further question. It is not a point of order. It is not! Check it again and again. Look at the HANSARD record and you will find that it does not pass for a point of order.

Ms. Karua: On a point of order, Mr. Speaker, Sir. The Assistant Minister has referred to Article 223(1) which clearly says subject to clauses (2) to (4). Clause 2 says:-

“The approval of Parliament for any spending under this Article shall be sought within two months after the first withdrawal of the money.”

(Applause)

Now that they have withdrawn the money and the answer is talking about the next Supplementary Estimates which is March, will the Assistant Minister perpetuate this illegality? If that is the case, is he in order to mislead the House that the Government is operating under this clause?

Dr. Oburu: Mr. Speaker, Sir, we are not operating under that clause because this clause only refers to monies which have not been appropriated. As far as we are concerned, the monies were approved by this Parliament. What was not approved is what Mr. Mbadi is alluding to; that they were not for this particular purpose but reallocation of funds is within the administration of the funds by the Treasury. This is specifically given to the Permanent Secretary of the Treasury. Reallocation of funds is within the powers of the Treasury.

Dr. Eseli: On a point of order, Mr. Speaker, Sir. Is the Assistant Minister in order to accept that they are paying money which was spent in ineligible circumstances and in the process also tell us that they are refunding the money in ineligible circumstances because the money appropriated by this House was not for that purpose that they are spending that same money on? So, it is again another ineligible expenditure. Is he in order to continue misleading the House that they are spending the money regularly and yet the way they are spending it is ineligible?

Mr. Speaker: Order, Dr. Eseli! In my assessment, what you have done there is raise an argument and also give your opinion which is at variance with the Assistant Minister’s opinion. If you look at Standing Order No.43 as to the contents of Questions, you will find that it does not pass for a point of order. Look at Standing Order No.43, and in particular address yourself to paragraphs 3, 4 and 7!

Mr. Mureithi: Mr. Speaker, Sir, whereas the Government is refunding quite a substantial amount of money, that is Kshs479 million and about Kshs2.19 billion, at the moment there are still some projects under the Economic Stimulus Programme (ESP) which are going on, like schools of excellence where more than one Ministry is colluding to take that money and after auditing they have been found that they have literally overcharged contrary to the contract sum. What will the Assistant Minister do once he discovers that? Will that be the extra money they will add to the money they are already paying to the donor agencies?

Dr. Oburu: Mr. Speaker, Sir, I did not quite get the question. That is because he is asking about ESP, which is not the subject which we are discussing here. That is because ESP is purely funded from Government funds. It has nothing to do with donor funding. So, that question really is not quite in line with what I am answering.

Mr. Lessonet: Mr. Speaker, Sir, I would like to ask the Assistant Minister to tell us the programmes that are affected by those refunds.

Dr. Oburu: Mr. Speaker, Sir, I thought I read out the specific programmes that are affected by the refunds in my answer. I do not know whether I should repeat them.

Mr. Speaker: No. If you read them out, that would be adequate.

Mr. Mbadi: On a point of order, Mr. Speaker, Sir. I almost let it pass but now that he has brought it up, is it in order for the Assistant Minister to insist that he gave the breakdown, when he only listed the programmes that are affected? He did not indicate the amounts besides those programmes, so that we can know. If it is a question of drought mitigation in western Kenya, how much is being refunded? If it is the Ministry of Education, FPE funds, how much was refunded? That way, Kenyans can know how much we are likely to lose.

Mr. Speaker: Very well. Mr. Minister, have you got those details?

Dr. Oburu: Yes, Mr. Speaker, Sir. In respect of Arid and Semi-Arid Resources Management Project, Ministry of State for the Development of Northern Kenya and Other Arid Lands, the monies which are suspected to have been wrongly spent amount to Kshs40 million. That money has already been refunded.

The second one is Kenya Education Sector Support Project, Ministry of Education where Kshs347,972,827.38 was refunded, leaving a balance of Kshs2,192,202,728.38 for the fast track initiative to be refunded later in the current financial year. West Kenya Community-Driven Development and Flood Mitigation Project, Ministry of State for Special Programmes, KShs8.7 million has been refunded. An amount of Kshs42.1 million will be refunded later in the year.

The last one is National Statistics System Project, Ministry of State for Planning, National Development and Vision 2030. An amount of Kshs42 million has already been refunded.

Dr. Nuh: Mr. Speaker, Sir, out of the monies that have been refunded to the World Bank, the Assistant Minister has quoted Kshs347 million in respect of Kenya Education Sector Support Programme. When the Ministry appeared before the Public Accounts Committee sometimes last week, they were able to explain that they had accounted for most of the monies and explained the ineligibility factor in such a way that they left only Kshs13 million. The PS then produced a letter they had written to the Treasury advising the Treasury not to refund the money because they were unable to explain that, out of the audit queries, it is only Kshs13 million which was ineligible. Why did the Treasury go ahead and pay the Kshs347 million and even alluded to the fact that they even want to refund some more – toping up to Kshs2 billion – when the Ministry concerned said that it is only Kshs13 million which was ineligible?

Dr. Oburu: Mr. Speaker, Sir, the Ministry of Education does not audit itself. The audit which we are talking about was carried out by the internal audit, together with the World Bank, and these figures were confirmed. If, for whatever reasons the Ministry wants to please the Public Accounts Committee, we are not aware as the Ministry of Finance. What we are dealing with is the official audit—

Hon. Members: On a point of order, Mr. Speaker, Sir!

Mr. Speaker: Order, hon. Members! We have already spent 20 minutes on this one Question. Last question by the Member for Gwassi. I will give directions after this.

Mr. Mbadi: Mr. Speaker, Sir, the Assistant Minister has admitted that over Kshs2.4 billion out of the total amount has either been refunded or will be refunded on the Kenya Education Sector Support Programme. It is clearly evident that there are areas where that money will come from. I would like the Assistant Minister to come out clearly and tell the people of this country which programmes will suffer as a consequence of that. That is because he has indicated to this House that he will seek for reallocation from some areas to fill the gap that has been left by that amount. So, could the Assistant Minister tell us the programmes that will be affected as a result of the reallocation?

Dr. Oburu: Mr. Speaker, Sir, we requested the Ministry of Education to indicate to us the areas where they can reallocate money without making any programmes suffer. That is why we are not refunding the whole amount. What is normally done in reallocations is look at areas where monies are unlikely to be spent by the end of the financial year. That is where monies are reallocated. Therefore, there is no programme which will suffer.

Hon. Members: On a point of order, Mr. Speaker, Sir!

Mr. Speaker: Order, hon. Members! Order, Member for Ikolomani! I realize that this matter is obviously very burdensome and that, hon. Members have genuine concerns over it, particularly, when so much money is being refunded at the expense of development programmes that would otherwise have taken place. So, it becomes a very grave matter of immense proportions. I will want to give direction as follows:-

First, that the Committee which is charged with the mandate to inquire into matters of this nature which, I believe, would be the Public Accounts Committee, should carry out an inquiry – if it is not already doing so – and table a report in this House expeditiously. It would be preferable that you table your report before the end of the Sitting that we are currently on, which will end around 10th December, or thereabouts. You could try and table your report by the end of the month of November, so that the House can have an opportunity to debate this matter, interrogate it even further and carry out resolutions that may lead to investigation, arrest and possible prosecution.

Secondly, hon. Members, please note that the Standing Orders and, in particular, Standing Order No.21 gives you a window to revisit a matter in which the House may have more interest than may have been covered during Question Time. You may want, therefore, to address the Speaker so that you can be permitted at the end of any Sitting Day – and it has got to be one in a week – to have a Motion to deliberate on the matter, whichever matter it is. You will have 30 minutes between 6.30 p.m. and 7.00 p.m. to speak to any given matter. So, please, note.

Collateral for Corruption Interview – 17.11.11 – NTV Breakfast Show

To Whom It May Concern:

Re: Collateral for Corruption – An Objection to the Practice of Using Kenyan Taxpayers’ Funds to Refund Stolen Donor Money

Mars Group Kenya has seen a letter dated 24th October 2011 from Joseph Kinyua, Permanent Secretary in the Ministry of Finance to Johannes Zutt World Bank Country Director.  The letter is of very great concern because it constitutes a clear admission that massive amounts of donor funds have been misused and stolen by Government officers.  The letter by Mr. Kinyua states that as recently as 26th and 27th October 2011 the Government paid refunds amounting to about KES 347 million to various donors represented in Kenya.  Why hasn’t Parliament been told about these refunds?  Why hasn’t Parliament been told about a written commitment to refund a further KES 2.19 billion to a Global Education Initiative between now and June 2012?  Why should Kenyan taxpayers lose twice – once again being asked to shoulder the burden of refunds whilst going without the original benefits the stolen funds were to provide?  Which social service will be cut to finance these refunds.  Have Kenyan taxpayers’ funds become collateral for corruption?

An Objective Lesson in Impunity:

Permanent Secretary Joseph Kinyua’s letter, reads:

24th October 2011

Reference Number EA/FA62/335/01/(133)

REFUNDS TO THE WORLD BANK & OTHER DEVELOPMENT PARTNERS
“This is in reference to the requirement by the World Bank for the Kenya Government to refund to the Bank funds that were used to finance expenditures for a number of projects, which following a forensic audit jointly undertaken by the Government and the relevant donors, were found to be ineligible because of suspected fraud, corruption and malprocurement.  We would like to reiterate the Kenya Government’s commitment to refund to the IDA and other development partners those funds spent on expenditures that have been verified and confirmed to be, indeed, ineligible.”

PS Joseph Kinyua’s letter then lists the amounts to be refunded as follows:-

Program Amount to be Refunded (KES) Comments in PS Kinyua’s letter to world bank 24.10.2011
Arid Lands Program 40 million Refunded to World Bank  – according to attached transfer document
Kenya Education Sector Support Program 347 million To be refunded to Donors by 26th October 2011
Education Fast Track Initiative 2.19 billion To be refunded to World Bank by the end of FY 2011/2012 – i.e. by end of June 2012
Western Kenya Community Driven Development & Food Mitigation Project 50.8 million To be refunded to World Bank by 26th October 2011
National Statistical System Project 42 million Kenya National Bureau of Statistics refunded this amount by a transfer to the World Bank out of Citibank Nairobi on 24th October 2011 – according to a Citibank transfer notification attached to Kinyua’s letter

Permanent Secretary Joseph Kinyua’s letter to the World Bank concludes:
“The Treasury on behalf of Kenya Government would like to underscore that in line with its commitment to good governance and to safeguard tax-payers money we will follow up these issues with the relevant government agencies for further investigation and recovery of these funds.  In addition, we will be instituting mitigating measures to strengthen government financial management systems so as to ensure that similar fiduciary issues do not recur.”

When Did the Rain Start Beating Us?

It should be remembered that the genesis of all of this was the discovery of widespread fraud in the education sector program known as the KESSP in late 2009.  The discovery of fraud was announced by the Minister for Finance in a press statement on 22nd September 2009.  This was followed by a public demand issued by DFID of the UK for refund of its funds which were misused within the KESSP.  An in-depth fiduciary review of KESSP expenditure concluded on 28th May 2010 that there was ineligible expenditure of KES 234 million during the single month of June 2009.  The Kenya Government committed then to refunds, and to conduct further investigations and pursue recovery of funds then, just as Mr. Kinyua is doing in his letter of 24th October 2011.  Indeed the following refunds were made to various donors on 30th July 2010:

Donor Amount KES
World Bank

15,829,245

DFID

14,547,391

CIDA

5,210,024

UNICEF

199,565

Fast Track Initiative (through the World Bank)

28,115,901

TOTAL

63,902,126

Even after refunding KES 63 million in July 2010, Kenyan taxpayers were not out of the woods.  The letter by Joseph Kinyua to the World Bank of 24th October 2011 demonstrates this.  The situation is now dire.  The Government of Kenya has committed in writing to refund KES 2.1 billion to the World Bank (”because of suspected fraud, corruption and malprocurement”) within the next 7 months and parliament has not been told anything about this by the Treasury which signed the commitment.  Kenyans should be very concerned that in all likelihood social services to the Kenyan public will be cut in order to enable the Treasury to repay money which has been stolen by Government officials.  Doesn’t Parliament have a right to demand that this letter be tabled by the DPM & Minister of Finance so that Members can debate the way forward?  Has it become the practice to make taxpayers funds the collateral for grand corruption?

Questions:

  • Can the Permanent Secretary Minister of Finance confirm or deny that he wrote to the World Bank on 24th October 2011 committing the Kenya Government to refund a further amount of over KES 2.4 billion to donors because of suspected fraud, corruption and malprocurement?
  • Can the Permanent Secretary Minister of Finance clarify which budget such refunds will be made from, or reassure the country that no social spending will be cut?
  • Can the AG explain what progress has been made in investigation, prosecuting and sentencing the culprits as well as recovery of the funds in question?
  • Who in the Government will take political responsibility for this complete and utter mess?

Best regards,

Mars Group Kenya

—————–

KESSP fraud facts:

  • KESSP was launched in July 2005 and scheduled to run for 5 years.  Five donors contributed sector budget support to KESSP; namely DFID, World Bank, CIDA, UNICEF and the Fast Track Initiative. The discovery of fraud was first announced by the Minister for Finance in a press statement on 22 September 2009.  The final report from an in-depth fiduciary review of expenditures under KESSP was released on 28 May 2010 and revealed ineligible expenditure of KES 234 million during the single month of June 2009.  Reimbursements were received by donors on 30 July 2010 as follows:
  • A forensic audit of KESSP was launched in April 2010.  Investigations included a review of documentation in the Ministries of Finance and Education, as well as visits to a sample of 512 schools across the country.  A draft forensic audit was completed on 26 August 2010.  The Ministry of Education was asked to respond (including any additional documentation) by the end of October 2010.
  • The final figures from the forensic audit were agreed on 30 April 2011 showing ineligible expenditure of KES 4.66 billion between July 2007 and June 2009 (this figure does not include the KES 234 million that was previously refunded in July 2010).  After the April 2011 agreement the amounts to be reimbursed to donors were agreed as follows:
Donor Amount KES
World Bank

1,818,512

DFID

47,475,714

CIDA

164,536,531

UNICEF

144,242,070

Fast Track Initiative (through the World Bank)

2,192,202,728

TOTAL

2,550,275,555

  • Reimbursements were made to in-country donors on 27 October 2011 (i.e. to the World Bank, DFID, CIDA and UNICEF).  The Ministry of Finance asked for time to repay KES 2.192 billion to the Fast Track Initiative (through the World Bank) and promised to repay by the end of FY 2011/2012.)

Statement from the National Youth Sector Alliance on the Misappropriation of the The Kazi Kwa Vijana and the Kenya Youth Empowerment Program Funds by Government Officials.

Nairobi: October 24th 2011

The National Youth Sector Alliance is disturbed by the news that that Kazi Kwa Vijana Funds provided by the World Bank for the purpose of empowering Kenyan Youth with job opportunities have been misappropriated by top officials in the office of the Prime Minister. Media reports indicate that the World Bank released 4 Billion Shillings for KKV and that it is demanding a refund of over 900 million which is claimed to be misappropriated by officials in the OPM.

In 2008 during the National Youth Convention (NYCIV), the youth delegates complained directly to the Prime Minister of the poor design of the KKV program noting that most of the funds were being spent not directly reaching the youth with a tagline of “Kazi Kwa Vija Pesa Kwa Wazee”  It was recommended that the design of the program be restructured in order to directly empower the Kenyan youth. The recommendations were never taken into account by the Office of the Prime Minister.

During the inaugural Prime Minister’s Round Table with the Youth in September of 2010, under the Youth Empowerment Thematic Focus, a specific recommendation was made to the effect that the impact of the KKV was not being achieved due to poor structure and implementation. It was recommended that the Program be restructured to accommodate both labor intensive as well as intellectual capacity of the many millions of graduates from both tertiary and other institutions of higher learning in the country.

While the program was expanded and largely involved the Private Sector, the office of the Prime Minister managed to rename the department to Kenya Youth Empowerment Program. No caution was taken to the re-designing and structure of the KKV Program implementation. The specific recommendation in the matrix of implementation has never been responded to.

The fact that there has been public outcry and a lot of advice given on how to restructure the KKV, it is disturbing that the bureaucracy in the Office of the Prime Minister has not been keen to redesigning the program for the public good.

It should be noted that KKV is the closest that Kenya has come to creating massive employment opportunities for the high numbers of the unemployed population in the Country. The Fact that advice to make the program work has not been taken, is a confirmation of the existence of an axis of evil in Government that is  hell bent to continue enjoying youth disenfranchisement for short term political gains.

It is still not clear how much money has been misappropriated and how much has already been disbursed. NYSA will initiate the process to bring to the fore the facts in partnership with other key stakeholders. The process will immediately seek to have an audience with the Kenyan youth and the relevant Government agencies to get into the root of the matter under question.

Pending Issues on the Youth Enterprise Development Fund;  It should also be noted that there are many questions that are left unanswered on the Youth Enterprise Development Fund. There have been unconfirmed allegations of fictitious and non-existent youth groups being beneficiaries of the Fund with millions of shillings reported missing without financial returns. All this matters must now be put under investigation and the agenda of Youth Empowerment in Kenya brought to naught in order to deal with the unemployment issue once and for all.

Demands from the Youth of Kenya

The Youth of Kenya, demand the following from the office of the Prime Minister and the Coalition Government;

1.       A comprehensive financial audit of KKV and YEDF conducted with the following details;

a.       the total amount of money used,

b.      the kinds of projects accomplished,

c.       the number and names of youth beneficiaries and how much they have received

d.      the impact of the program aggregated according to region and gender.

2.       Immediate suspension of the Officers in charge of the Kenya Youth Empowerment Program (KYEP) in the office of the Prime Minister.

3.       Independent investigations to immediately commence and the officers found culpable of the misappropriation of the KKV and YEDF funds be prosecuted.

4.       Immediate suspension of any financial undertakings on the program until it is comprehensively redesigned through a team of experts with young people included through a competitive independent, public vetting process.

Leadership from the two Principles

The National Youth Sector Alliance calls upon the President and the Prime Minister to put aside all their assignments and directly attend to these issues. This is a clear picture of corruption and the Youth of Kenya demand for accountability on funds meant for them. Transparency MUST Prevail.

Signed for and on behalf of the National Youth Sector Alliance.

Emmanuel Dennis  Convener – NYSA

National Youth Sector Alliance (NYSA)

3rd Floor, Revlon Proffessional Plaza  Biashara Street, City Center

P.O. Box 8799, 00200 Nairobi Kenya

Cell: +254722619005

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