Why senators, MPs turf wars threaten devolution rollout

By Abdikadir Sugow     

NAIROBI, KENYA: A battle for supremacy has kicked off between senators and MPs in the bicameral Parliament, sparking fears of acrimony as devolution takes shape.

There are power struggles over the pecking order between the offices of senators and MPs, exposing the soft underbelly of the Kenyan political class.

The turf wars are likely to dominate, particularly in the early era of the devolved system of governance, with the same filtering down to the 47 county assemblies, with immense negative consequences.

As the MPs and senators jostle over veto powers, it is vital to note what the law says for the benefit of the people who elected them and for their own benefit. Former chairman of the Committee of Experts (CoE) Nzamba Kitonga, says the Tenth Parliament through its select committees, watered down some provisions denoting the powers of the Senate as an Upper House. 

“Although the original structure of the Senate suffered poor midwifery at Naivasha where the CoE met, it still retains substantial powers. The irony is that some midwives at Naivasha are now Senators seeking more powers for the Senate,” he says.

To set the record straight, a Senator is an MP - an abbreviation for Member of Parliament. The bicameral Parliament has two Houses (House of Senate (or Upper House) and the National Assembly House (or Lower House). Each House has its specific mandate under the Constitution. Unlike in Australia, Britain and Canada where the Senate is superior to the National Assembly, in Kenya it is different.

In the British case, the House of Lords vets Bills originating from the House of Commons, making it superior. However, the Kenyan case was a mongrel, although the Constitution gives the two Houses equal powers, adding to the confusion in understanding the Kenyan bicameral Parliament.

Though the envisioned Upper House in the fashion of the British System did not happen, parliamentary powers have been shared between the two Kenyan Houses.

Stark reality

Former Clerk to the National Assembly Patrick Gichohi offers a stark reality: “We know the Senator of Kisumu is in charge of over one million people in six constituencies, while the MP for Kisumu Rural represents a fraction of that and a limited boundary within the county. This should give a hint on who is where. However, the legislative responsibility does not operate on the basis of seniority.”

The Senate in Kenya as defined in the ‘Katiba’ has limited roles. Article 96 states that its main duties are representing and protecting the interest of counties. Senators consider laws that touch on counties using the procedures stipulated in articles 109 through to 113. They also determine the allocation of national revenue among counties. Senate has oversight powers as well. They exercise this power over national revenue allocated to county governments. They consider and determine any resolution to remove the President or his deputy as stipulated in Article 145.

Perhaps in support of the argument put forward by the MPs and contrary to popular belief, the Senate has no direct veto power on the legislative process other than impeachment of the President or the Deputy President (Article 145).

Article 112 states the Senate cannot veto an ordinary Bill without breaking down of mediation under Article 113. An ordinary Bill means one that does not relate to election of members of a county assembly/executive or annual County Allocation or Revenue Bill, otherwise referred to as Special Bills as specified in Article 110 (2) (a).

Article 113 provides that Speakers of both Houses shall constitute a mediation committee that will consider the differences between the two Houses over a Bill rejected or amended by either House.

Two-thirds

The National Assembly House, however, has direct veto power over the decisions of the Senate. Article 110 (2) requires two-thirds of members of the House to perform this task. It is limited to Special Bills. If it passes, the Bill is lost. This provision makes one wonder which of the two Houses has more powers.

Given these provisions, it appears that the Lower House, the National Assembly, has more powers, bolstering the MPs’ arguments in their early supremacy wars with the Senators, since it has greater national legislative duty.

Article 95 enumerates the role of the National Assembly. Among these is to make laws concerning national issues. It considers matters exclusive of the Senate if these matters do not touch on the county governments and removal of the President or his deputy (Article 109 (3)). 

The National Assembly approves Declarations of War and extensions to State of Emergency and have exclusive legislative jurisdiction over money Bills. With such constitutional powers, the perception the National Assembly is more powerful than the Senate carries much weight.

Kitonga further explains the National Assembly is the legislative and oversight arm of Parliament, while the Senate as another arm of Parliament is the protector of counties and the Trial Chamber for the impeachment of the President and the Deputy President.

On who has the vetoing powers, Kitonga says the Constitution allows for one House to reject, veto or amend a Bill from the other House.  But in reality, the Constitution discourages stalemates by creating a Mediation Committee comprising members of both Houses to iron out differences.

“The Constitution mandates Speakers of both Houses to agree on whether a Bill relates to counties before debate on the same. Only Bills touching on counties must be passed by both Houses. They can also be originated from either House,” he says.

In case of disagreement between the two, Kitonga says the arbitrator is the constitutionally designed mediation committee.  However, if there is no agreement, the Bill is lost.  This is a common method of attaining closure in parliamentary practice, the lawyer says.

“It must be understood the design of the Constitution is such that although the two Houses are distinct, they are crafted to compliment each other. Business runs from one House to another. The reality is all Bills will touch on counties.  This means most Bills will be debated in both Houses,” he adds.

Meru Senator Kiraitu Murungi says the Standing Orders created by the 10th Parliament need to be reviewed so that “laws passed by the Senate, especially in the mandate given to us - which is protecting the county governments - is not referred to any other body.”

Senators have formed a committee chaired by Speaker Ekwe Ethuro to enhance the status of the Senate.