Senators to sue MPs, want 15 laws scrapped

Senators and MPs are headed for a clash

In Summary

• Senators want the court to declare 15 pieces of legislation unconstitutional 

• This comes only days after Senators walked out of mediation meeting with MPs leading to the collapse of talks on Division of Revenue Bill, 2019.

Members of parliament and senate at the parliament gallery during the opening of the 11th parliament. Photo/Monicah Mwangi
Members of parliament and senate at the parliament gallery during the opening of the 11th parliament. Photo/Monicah Mwangi

The bad blood between the Senate and the National Assembly is set to play out again next week as senators prepare to challenge 15 laws enacted without their input.

This comes only days after they walked out of a mediation meeting with MPs, leading to the collapse of talks on the Division of Revenue Bill, 2019.

The senators said their colleagues failed to seek their concurrence in the passage of the laws and 83 other bills that are currently before the National Assembly. They accuse their counterparts of violating the law.

The Senate Legal and Justice Affairs Committee (JLAC), chaired by Nandi's Samson Cherargei, has invited all lawyers in the House for a meeting to draft the suit to be filed in the High Court next week.

“JLAC is meeting on Monday afternoon with all lawyers in the House. We are moving to the High Court in two weeks seeking to suspend these laws,” he said.

Cherargei spoke during a meeting with the chairman of the Health committees of the Council of Governors Mohamed Kuti over the recent signing into law of the Health Laws (Amendment) Bill, 2018.

Kuti had met the joint committee of the Health and JLAC of the Senate to present further amendments to the laws.

But Siaya Senator James Orengo, a senior counsel, said the entire Act should be struck as it violates Article 103 of the Constitution that requires the Senate’s input on laws touching on the counties.

“We will be repeating illegality if we amend some sections and leave out others. We need to strike out the entire Act because it was passed unconstitutionally,” he said.

JLAC has been auditing all the bills enacted by the 12th Parliament without the input of the Senate.

“In the 12th Parliament, the National Assembly has not sought the concurrence of the Senate on any of the 83 bills that have originated from the National Assembly,” reads a report by JLAC passed by the MPs without the input of the Senate.

The omnibus law contains 13 pieces of legislation, including the Kemsa Act, the Pharmacy and Poisons Act, the Nurses Act, the Nutritionists and Dieticians Act, the Medical Practitioners and Dentists Act, the Kenya Medical Training College Act and the Kenya Medical Supplies Authority Act.

The bill was passed by the National Assembly in December last year but was returned with a presidential memorandum detailing areas that needed further consideration by the House.

The National Assembly then considered the reservations and approved the bill, fully accommodating the President's reservations, on February 28.

Senators accuse National Assembly Speaker Justin Muturi and the MPs for overlooking and undermining them on matters legislation.

“The Speaker of the National Assembly has unilaterally determined whether a bill does or does not concern counties,” Cherargei noted in the report.

He criticised the MPs for amending the House’ Standing Orders to do away with the requirement for concurrence.

“Standing Order 121 (2) is unconstitutional to the extent that it requires concurrence only when a question as to whether a bill is one that concerns counties,” he said.

Article 110 of the Constitution provides that the Senate only considers bills concerning the county governments.

According to the report obtained by the Star, 25 pieces of legislation were enacted between August 8, 2017, and May 13, 2019, but only nine were considered by the Senate.

Also, of the 25 bills enacted, five originated from the Senate and 20 from the National Assembly.

Some 97 bills have been introduced in the National Assembly. Eighty-three of them originated from the National Assembly and 14 forwarded to the House from the Senate.

The report also states that 72 have been introduced in the Senate, 12 of which were received from the National Assembly.

“Pursuant to Article 110 (3), prior to introduction of the Bill for the First Reading in the National Assembly, the speakers of both houses are required to jointly resolve any questions as to whether it is a Bill concerning counties, and if it is, whether it’s a special or ordinary Bill,” the report reads.