• Senate Standing Order Number 78 states that a delegation is comprised of all senators who at the time of election were registered voters at a particular county.
•The other issue that may run into challenges is the proposal in the BBI report creating 70 new positions that will be domiciled in the National Assembly.
Some proposals in the BBI report are opaque and experts and leaders warn they could create a quagmire.
At the heart of the proposals is how the Senate will navigate legal standoffs when voting on bills and other matters involving the counties.
Today, the Senate Standing Orders say an elected senator is the leader of the delegation. But BBI proposes radical changes — two senators for each county.
Experts say when the two senators are elected on different parties or an independent wins, there will be a problem in deciding the county decision maker.
Previously, the Senate has witnessed grandstanding on key issues that required House determination. Now it's feared elected senators can take positions resulting in standoffs.
Senate Standing Order 78 states that a delegation is comprised of all senators who were registered voters in a county during election.
The elected senator is the head of the delegation and gets one vote on a bill or any other matter affecting counties.
In the absence of the elected senator, he or she should designate voting rights to delegation member in writing.
“The person who votes on behalf of the delegation shall determine whether to vote in support of or against a matter after consulting the rest of the delegation. It's carried if it is supported by the majority of all delegations,” the Standing Orders states.
The BBI task force proposed that the current model of picking Cabinet secretaries be altered so some ministers will be picked from the National Assembly, while others will be technocrats and ex-officio members of the House.
Given the constant sibling rivalry between the Senate and the National Assembly, questions are abound whether the Prime Minister and ministers picked from teh House will be able to appear and respond to questions in the Senate.
70 NEW MP POSITIONS
The other issue is the BBI proposal creating 70 new positions domiciled in the National Assembly.
Critics of the report say unless it is clarified how nominated MPs for the 70 positions will be picked, the country faces political confusion.
“Take Nairobi. BBI is proposing it will have 16 new positions. What will be the formula to share slots among parties participating in an election and having an MP in Nairobi?,” Belgut MP Nelson Koech asked.
The BBI task force chaired by Garissa Senator Yusuf Haji has proposed 70 positions in a multi-member constituency model aimed at addressing under representation in highly populated constituencies.
Tharaka Nithi Senator Kindiki Kithure said some of BBI proposals are “so ridiculous and should they be adopted, they will set the country on a chaotic path”.
The ex-Senate deputy speaker said the proposal to elect two senators per county “is badly thought out and should be deleted, adding that other proposals on devolution are “irredeemably anti-devolution”.
“BBI proponents want Article 123 of the Constitution amended to remove the hallowed one county one vote principle. The legal equality of the counties is the sole way in democracies to ensure the upper chambers of Parliament protect the regions including marginalised areas to ensure national unity,” he told the Star.
He added, “They want the Senate to be voting using the majoritarian concept normally used by lower chambers of Parliament, including our National Assembly.”
The law professor said reducing decision making in the Senate to a simple majority is setting the country on a dangerous route, where a few counties can collude against or for a decision.
“If BBI proposals are adopted, senators from one corner of the country, eg, Western and Nyanza or Coast and Northeastern or Nairobi and Central, can constitute a simple majority. They can pass an agenda that can threaten national unity by isolating or disenfranchising the rest of the country through a simple majority, impossible under the current Article 123,” he said.
Mt Kenya MPs who are pro-BBI have launched a vigorous campaign, including radio adverts, telling residents to back to report as most of the 70 positions will be under their control.
However, considering the 70 MPs will be nominated, MPs from the region with reservations on BBI say the best way for fair representation was to allow the IEBC to carry out boundary review.
Kiharu MP Ndindi Nyoro said new constituencies will come with money instead of nominating MPs who will not have a kitty to run.
“In the current model, elected MPs and Woman Representatives have funds. Now we are being told we support 70 virtual positions not be entitled to any kitty."
"Then they are taking the Woman Representative to the Senate where they will not have the funds they run now. Who is fooling who? Which model is true representation?” he posed.
Nyoro said if the IEBC were funded to conduct boundary reviews as required in the Constitution, Mt Kenya, among other regions, would get extra constituencies.
The Constitution obliges the IEBC to review the names and boundaries of constituencies not less than every eight years, and not more than 12 years.
The commission is mandated to periodically review the number, names and boundaries of wards. Any review must be completed at least 12 months before a general election for MPs.
The IEBC can review the number, names, and boundaries of wards but cannot add or scrap any constituency from the existing 290.
Apart from the census, the Constitution also provides boundary reviews to include other parameters such as geographical features and urban centres, the community of interest, historical, economic, cultural ties and means of communication.
On Wednesday, the Senate's Justice, Legal Affairs and Human Rights Committee also picked holes in the BBI report which it said will render the “Upper House” weaker.
In a report the committee said the drafters of the BBI report failed to clarify how nominated MPs for the 70 virtual constituencies will be picked.
“The modalities of identifying multiple-member constituencies is not clear. We propose drafters of the report and the bill should provide clarity to avoid contention at the constituencies that will benefit ” Senator Okong'o Omogeni told the House on Wednesday.
Omogeni said though the additional 70 positions are meant to address the contentious matter on representation, it has not been addressed clearly.
“ We noted the party list does not provide an answer to this problem of affirmative action. Though a party is obligated to nominate at least 130 members of the opposite gender, there is no guarantee those elected will attain the affirmative number in our Constitution,” he said.
The committee said the Senate and the National Assembly roles should be well defined, with Senate charged with vetting all nominees to Constitutional offices.
The committee also wants the Senate to retain the role of generating and processing bills.
“Now the ministers will be domiciled in the National Assembly. The committee proposes that Article 96 be amended to give vetting powers of various appointees to Constitutional offices to the Senate".
"Those who will be nominated as ministers and are not elected MPs should also be vetted by the Senate,” Omogeni said.
The influential committee also noted that there is no justification of taking the 47 positions for Woman Representative to the Senate, saying they should be retained in the National Assembly.
According to the committee, to take the affirmative seats to the Senate amounts to watering down the role of women in leadership.
“ We noted that the 47 women play a critical role in being the link between the vulnerable women, and the Woman Representatives have a kitty of Sh7 million per constituency annually, which is used for the benefit of women,” he said.
“There was a purpose why this fund was created and put under the management and responsibility of woman representatives,” he added.
Kericho Senator Aaron Cheruiyot warned that amending the article that defines the roles of the Senate and how it conducts its business risks devolution.
“If you water down the provisions of Article 23 such that with the loudest decision by acclamation carries the day on the critical decisions, including matters that touches on the existence of the nation, then we will erode the progress we have made since independence,” Cheruiyot said.