• The Senate has as a last resort, sought the intervention of the courts to seek redress on the constitutionality of 18 laws passed by the National Assembly without its input.
• But the move by senators to go to court may also not solve the problem as the role of the courts is to interpret the Constitution, not to legislate from the bench.
The Senate and the National Assembly have been involved in supremacy wars over their roles as stipulated in Articles 95 and 96 of the Constitution.
The speakers of the two Houses have been engaging each other in the media, thus eroding the cordial and working relationship between the two chambers.
The Senate has as a last resort, sought the intervention of the courts to seek redress on the constitutionality of 18 laws passed by the National Assembly without its input.
In developed democracies, a bicameral legislature exists out of a need to have two Houses that could act as an internal check on each other.
In the United States, the enactment of an Act of Congress requires both the House of Representatives and the Senate to approve an identical document. The Senate thus shares with the House of Representative's responsibility for all lawmaking.
However, the Senate is designed to provide a restraint on the excesses of the House of Representatives. It’s a more deliberative institution and provides advice, consent and careful debate on controversial issues.
Senators in the US serve for six-year terms and the membership of the Senate is staggered in such a fashion that a third of them are due for re-election every two years.
This constitutional design was intended to offer senators an opportunity to amass long term experience and cultivate alliances that are vital for analytical debate on important issues. The Senate thus pursues the broader interest of the nation, not that of parties.
In Kenya, the Constitution does not define the relationship that exists between the National Assembly and the Senate. Article 93, which provides for the establishment of Parliament does not designate any of the chambers as an upper house.
The intents of a bicameral legislature are not also captured in the article. This vacuum has created a conflict in which each of the two Houses sees itself as the senior. More critically, scrutiny of their roles reveals a subtle but deliberate intention to reflect the Senate as the lower House contrary to conventional wisdom.
In the US, functions such as confirmation of appointments of Secretaries of state, ambassadors, military chiefs, judges etc is the preserve of the Senate. In Kenya, this role belongs to the National Assembly. The oversight role, which is the most important role of Parliament, is now the domain of the national assembly and the Senate only oversees on issues of devolution.
But there is also a more important reason why the constitutional role of the Senate needs to be revisited. It was formed as a way to equalise the say of each county in matters of national importance.
Thus, Nairobi county with 17 seats in the National Assembly and a population of over three million has an equal representation with Wajir, which has six parliamentary seats and a population close to 700, 000.
The relationship that is supposed to exist between the National Assembly and the Senate should reflect this fact.
This is to ensure that populous counties and parties with higher representation do not dominate national politics and drive partisan and myopic interest.
The move by senators to go to court may also not solve the problem as the role of the courts is to interpret the Constitution, not to legislate from the bench.
To fix the deficiencies of the Constitution on the role of a bicameral legislature, senators must seek a new constitutional mandate through a referendum.
Article 93 should be specific to the relationship between the Senate and the National Assembly. The concept of both houses being a check on each other should be well captured in that article. The role of the Senate as per Article 96 should be revisited to give the Senate an oversight role over constitutional appointments.
The Senate must be given a say on every legislation that passes through the National Assembly so that the nation can benefit from it as they have more time to discuss issues in detail due to their smaller number.
The Senate is also likely to be non-partisan and more nationalistic than the National Assembly, which is likely to be prone to the fury of democracy.
The Constitution should enhance the unity of purpose among its leaders and citizens. Parliament being a representation of the will of the electorate must reflect this unity in its deliberations and actions.
A constitutional referendum is the only way to put to rest the supremacy wars between our lawmakers. Senators must remedy the mistakes that were made during the constitution-making process to subjugate the Senate to the National Assembly.
The writer is a member of the County Public Service Board, Wajir county.
Views herein do not reflect that of Wajir county government