You may have read an article in the current Nairobi Law Monthly arguing for abolition of the Senate. No doubt many people would agree — indeed would be happy to do away with all politicians. The National Assembly would be delighted to abolish the Senate, whose powers they seem to resent.
The author of that article compared our Senate with the American one, which does have significant powers. He asks, “What stops MPs from performing the functions of Senate when the constituencies they represent in parliament are part of the same counties Senate oversees?” (By “MPs” he means only members of the National Assembly, the common usage, if slightly illogical — because Senators are MPs too. But other countries use the same terminology despite having two houses of Parliament.)
His may seem like a shrewd question, but actually contains the seeds of its answer.
SECOND CHAMBERS AND DEVOLVED SYSTEMS
The Senate is closely tied to the system of county government. Many countries with a two — or more — tier government system have one House of their parliament with responsibilities particularly connected to that system. These include the United States, Canada, Australia, Germany, India and South Africa.
There is often some tension between the national level of government and the lower level governments. The constitutions of these countries set out which powers of governments – both law making and other powers - can be exercised by which government. No one likes to give up powers, particularly if they go with resources. And when governments (including legislatures) are corrupt, the urge to hang on to – or grab – powers is greater because personal benefit is affected.
This is why our National Assembly members cannot represent the counties as such. They represent (or at least are elected by) the people of the counties (in their constituencies) — but only in connection with the matters that are the responsibility of the national government.
Neither the national government nor the National Assembly really respects the county government system. They find it hard to accept that counties are not just local authority areas. But Justice Isaac Lenaola said, “Local authorities cannot be equated to county governments as the structure and design of the Constitution has given county governments an elevated position as one of the organs to which sovereignty of the people of Kenya is delegated under Article 1 of the Constitution”.
There is always a bit of a tussle over how much national revenue will be allocated to the counties. And it took court action to push the National Assembly to limit the Constituency Development Fund to matters that are the responsibility of the national government. MPs were quite happy to carry out projects that were county responsibilities (in fact, that case is not fully resolved yet). The counties need a body that understands their issues and protects them.
POWERS OF THE SENATE
That body is supposed to be the Senate, which the Constitution says: “… represents the counties, and serves to protect the interests of the counties and their governments”.
The major ways the Senate is supposed to do that are:
- Playing a major role in fixing the national revenue that goes to the counties each year, and the allocation between counties
- Participating in passing legislation that concerns counties
- Playing an important part in changing county boundaries
- Having
the power to approve/disapprove the use of the processes by which the President
may suspend a county government, and the power to lift the suspension at any
time.
- Ensuring that a President is not removed when national MPs would want this to happen by playing a major role in the process of impeachment of the President.
The County Governments Act adds to these a major responsibility in the process of removing a county Governor.
RESISTANCE TO THIS ROLE
The National Assembly has been resistant to the role of the Senate. They tried, for example, to exclude the Senate from involvement in the passing of the law dividing national revenue between the national government and the counties. The Supreme Court had to put it right. And in another case the courts had to correct the National Assembly when it ignored the role of the Senate when passing law relating to health functions of the counties
One assumption lying behind the creation of the Senate was that counties would be prepared to work together to protect the interests of their level of government. A sort of bargaining would go on between counties — “if you protect us on this issue, we shall protect you on others”.
One important point about the Senate is that for most purposes, it has just 47 voting members, and each county has one vote. But in the National Assembly, the number of county representatives ranges from two for Lamu to 87 for Nairobi. In the Senate, the counties are equal, which give more power to smaller counties that could band together to challenge issues on which perhaps bigger counties might differ from the smaller.
HOW WELL HAS THE SENATE PLAYED THIS ROLE?
The Senate has consistently pushed for more money for the counties. As recently as September this year, Senators of both main parties were reported as resisting government budget cuts for the counties.
However, they have often not behaved as though they wish to work together with county governments. They seem to have resented the higher profiles of governors (and perhaps their chances for corrupt benefits). They have tried to trespass on their powers, as when they established boards on which they would sit to develop county development policies (the courts put an end to this – though now the Court of Appeal is set to hear the matter). And the Senate is fond of trying to pass other laws telling the county governments how to govern. Will things change now that senators are becoming governors? And if governors become senators? (There is no term limit for Senators!)
CONSTITUTIONAL WEAKNESS?
There is one particularly worrying constitutional provision: The Senate “exercises oversight over national revenue allocated to the county governments”. This was introduced by the Parliamentary Select Committee during the constitution making process. It muddies the waters over the role of the county assemblies (the primary body to oversee county government work). Many projects are probably funded by nationally raised revenue and county raised revenue, making a power to oversee just the former problematic.
It has perhaps encouraged the Senate to summon county governors – further exacerbating poor relations.
And now the Senate is considering a Bill seeking a lot of resources to oversee the counties, giving individual senators power to oversee their own county governments (highly questionable) and again trying to direct counties what to do and how to do it.
Earlier drafts of the constitution would have made up the Senate in different ways. The first Committee of Experts draft would have had senators elected by the county assemblies. The very first draft (2002) would have also involved the chairs of the lowest level of government.
Under such arrangements, the Senate would have been much more part of the county government system.
They are similar to those in Germany and South Africa. The Committee of Experts’ second draft changed to the current idea of direct election by the people of the county. This is not by any means unusual (it is for example the American arrangement). But it has perhaps played into the hands of Kenyan politicians who seem prone to view everything from their own personal perspective.
It was also perhaps an error to give the Senate a role in passing laws only if they affect the counties.
CONCLUSION
Now, Senators chafe under what they feel are restrictions on their role, and are constantly trying to expand it.
Nonetheless, the Senate does have a number of important functions. To abolish it would be a case of throwing out the baby with the bathwater.
The bathwater we need to get rid of is the greed and self-interest that bedevil our politics.