Members of the National Assembly and the Senate have in the past week been embroiled in a heated debate over which of the two Houses was superior to the other. The issue was raised when the Suba MP John Mbadi questioned why the Senate was debating the Division of Revenue Bill, 2013, a Bill which had already been debated and passed by the MPs just a few days before. The MPs, led by Majority Leader Aden Duale felt that the Senate had over stepped their mandate and were trying to assume powers that had not been provided for them in the Constitution. The MPs felt that the Senate had no constitutional mandate to revisit the Bill. The Division of Revenue Bill deals with the amount of money that is to be allocated to the Counties from the National Government.
Rather than being a legal debate, the bitter exchange has degenerated into a political scuffle between the two houses, with both seemingly pushing for personal interests rather than speaking in one voice for the good of the Kenyan people.
So what exactly are the two roles of the two houses that comprise the Kenyan Parliament?
According to the Constitution (Article 95), this is the role of the National Assembly.
- The National Assembly represents the people of the constituencies and special interests in the National Assembly.
- It deliberates on and resolves issues of concern to the people.
- It determines the allocation of national revenue between the levels of government,
- It appropriates funds for expenditure by the national government and other national State organs
- It exercises oversight over national revenue and its expenditure.
- It reviews the conduct in office of the President, the Deputy President and other State officers and initiate the process of removing them from office; and
- it exercises oversight of State Organs.
The National Assembly is meant to enact legislation, determine the allocation of National Revenue between the different levels of Government. It is meant to oversee the National revenue, expenditure and State Organs. The National Assembly is also meant to approve a declaration of war and extensions of States of Emergency.
Article 96 (1) provides for the role of the Senate.
- The Senate represents the counties, and serves to protect the interests of the counties and their governments.
- The Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties.
- The Senate determines the allocation of national revenue among counties, and exercises oversight over national revenue allocated to the county governments.
- The Senate participates in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office.
The Senate is meant to be the backbone of the Counties and its actions will determine the effectiveness of the Devolved Units to deliver services to the people. It is meant to protect the interest of the Counties and their governments in parliament. The Senate will participate in law making, debates and approval of Bills that concern the Counties (Articles 109-113). The Senate will determine the allocation of National Revenue among the Counties (Article 217). It will exercise oversight over the National Revenue allocated to the County Governments. The Senate will also participate in the oversight of State Officers by determining resolutions to remove the President or his Deputy from office (Article 145).
The Battle for Supremacy
The Constitution does not mention which position is above the other. The two-chamber parliament is actually meant to create an appellate hierarchy in the enactment of laws. Basically, one chamber is supposed to be given an opportunity to review the laws and decisions of the other chamber. However, the Senate is restricted to dealing only with Bills concerning Counties while the National Assembly isn't. A Bill concerning Counties can originate from either the Senate or the National Assembly. When such a Bill is passed in either House, the Speaker of the House that passed it shall refer it to the Speaker of the other House. If both Houses pass the Bill in its original form, it's then passed on for Presidential Assent.
If the Houses fail to agree on a Bill,
- In the case of a special Bill (defined in Article 110), The National Assembly may amend or veto the Special Bill which has been passed by the Senate if it can get a resolution that is supported by at least two thirds of its members. If they fail to get this resolution, the Bill will move on for Presidential Assent.
- In the case of an ordinary Bill, if the Bill is amended, it will be referred back to the originating house for reconsideration. If the Bill is rejected, then it will be referred to a mediation committee comprising of an equal number of members from each house who will attempt to develop a version of the Bill that both houses will pass. Each House will then have to vote on whether they accept the amended version. If both Houses agree on the amended version, then it passes through. If either House votes it down, the Bill is defeated. Also, if the mediation committee fails to agree on an amended version of the Bill, then the Bill is defeated as well.
All this information is discussed in Articles 109-113 of the Constitution.
So rather than engaging in a pointless contest, both Houses ought to understand that Devolution is about power sharing with a view of benefiting all Citizens. In accordance with the spirit of the Constitution, there is an expectation of cooperation and a sharing of responsibility between the two Houses. None of them can work in isolation. Partisan interests ought to be laid aside in order to realize the objects of devolution which are clearly provided in the Constitution. Article 174 lists the objects as follows:
- to promote democratic and accountable exercise of power;
- to foster national unity by recognizing diversity;
- to give powers of self-governance to the people and enhance the participation of the people the exercise of the powers of the State and in making decisions affecting them;
- to recognize the right of communities to manage their own affairs and to further their development;
- to protect and promote the interests and rights of minorities and marginalized communities;
- to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya;
- to ensure equitable sharing of national and local resources throughout Kenya;
- to facilitate the decentralization of State organs, their functions and services, from the capital of Kenya; and
- to enhance checks and balances and the separation of powers.