We must change our dispute resolution processes

Politicians are at it again; apparently they want to file a case in Court seeking to have some 67 laws declared unconstitutional because they were passed without the input of the Senate.

The National Assembly is also bruised; Hon Joyce Laboso has invited the judiciary to make a binding determination on the matter and put an end to the hostility between the two Houses.

Hon Laboso in her article in The Standard of November 13, 2014, reminded us of the Supreme Court’s advisory opinion.

For those who may have forgotten, the facts and the advice in ADVISORY OPINION NO. 2 OF 2013 were as follows:

The National Assembly published the Division of Revenue Bill on April 29, 2013, and the Speaker of that Chamber then wrote a letter to the Speaker of Senate on May 3, 2013, “Seeking the latter’s concurrence to the effect that the Division of Revenue Bill was a Bill concerning County Government”. The Senate Speaker concurred, by his letter of May 9, 2013; and on that very day the Bill was debated and passed by the National Assembly, with several amendments being effected. The Clerk of the National Assembly, on May 13, 2013, forwarded the Bill as passed, to the Speaker of the Senate, for debate. The Senate deliberated upon the Bill fully, and passed it with amendments, on May 23, 2013; and it was forwarded to the National Assembly for consideration of the amendments on May 24, 2013. Indeed, the National Assembly entered upon a second round of deliberations on the Bill; but the Speaker then had a change of mind, taking the position that it was an error of judgment to have involved the Senate in the process of legislation. He had taken into account the objections of members of the National Assembly raised during the second round of debate that the Division of Revenue Bill was not a Bill concerning county government. Not only did the National Assembly reject the Senate’s amendments and exclude Senate’s legislative participation entirely, but the Speaker forwarded the National Assembly’s earlier-approved version of the Bill to, and obtained the assent of, the President on June 10, 2013.

The Supreme Court in its advisory opinion stated as follows, among other things;
“It is clear to us, from a broad purposive view of the Constitution, that the intent of the drafters, as regards the exercise of legislative powers, was that any disagreement as to the nature of a Bill should be harmoniously settled through mediation. An obligation is thus placed on the two Speakers, where they cannot agree between themselves, to engage the mediation mechanism. They would each be required each to appoint an equal number of members, who would deliberate upon the question, and file their report within a specified period of time. It is also possible for the two Chambers to establish a standing mediation committee, to deliberate upon and to resolve any disputes regarding the path of legislation to be adopted for different subject-matter. But our specific Advisory Opinion, which culminates from the detailed review, is as follows:

(a) The Division of Revenue Bill, 2013 was an instrument essential to the due operations of county governments, as contemplated under the Constitution, and so was a matter requiring the Senate’s legislative contribution. Consequently, the Speaker of the National Assembly was under duty to comply with ... the Constitution, and should have co-operated with the Speaker of the Senate, as necessary, to engage the mediation forum for resolution of the disagreement.

(b) With regard to any future lack of accord of a similar nature, between the two Chambers of Parliament, there shall be an obligation resting on the State organs in question to resort to mediation, as a basis for harmonious functioning, as contemplated by the Constitution. Hon Members, the Judiciary has done its work. Surely your members have enough Constitutional provisions and judicial advice to understand their respective roles. The Senate may have a very serious grievance but the Judiciary has spoken through the Supreme Court. As it is, we are behind our legislative agenda.