Senate suffers legal blow in row with National Assembly

Appeal court upholds 21 of 23 laws challenged by Senate as unconstitutional.

In Summary

• National Assembly seeks court declaration for exclusive mandate to oversight  administration.

• Committees chairs directed to introduce the remaining two laws as fresh proposals, new bills.

Parliament Buildings.
AUGUST HOUSE: Parliament Buildings.
Image: FILE

The Court of Appeal has dealt a major blow to the Senate in its protracted fight with the National Assembly over their legislative mandates.

The court last Friday ruled there is no need for the Senate's input on most bills originating in the National Assembly.

It was not immediately known if the Senate would challenge the ruling in the Supreme Court.

Senators' input would only required for bills affecting county governments and those involving the Parliamentary Service Commission.

The National Assembly would also have the exclusive mandate to debate and vote on money bills, without any Senate input.

“Any money bill will have to pass through the Speaker of the National Assembly, regardless of which House it has originated from,” the court said.

In the new dispensation, all money bills discussed by the Budget committee will be passed by the National Assembly without reference to the Senate.

The court also provided that mediation on any bill would only start after the legislation has been passed, not prior to consideration.

Justices Agnes Murgor, Pauline Nyamweya and Jessie Lessit ruled, “Concurrence is exclusively within the control of speakers of the two Houses.”

They held that the two must resolve any question on whether a bill concerns counties — the Senate's concern —  before its consideration.

Because of the parliamentary supremacy wars, taxpayers have suffered losses due to delayed legislation and approval of critical instruments as well as budgets.

The Senate has been arguing that it must be consulted for concurrence on all bills and legislation being debated in the House.

In what will be a setback for the Senate, going forward concurrence would only apply to bills concerning counties.

“Mediation on any bill can only apply during the enactment of a bill and not before the same is considered,” National Assembly Speaker Justin Muturi told members on Tuesday following the ruling.

The Houses have been at loggerheads over which of them has the constitutional mandate to oversight national government entities.

This played out recently when National Assembly members asked Sports Cabinet Secretary Amina Mohamed to ignore Senate summonses over the Football Kenya Federation.

The High Court is expected to make a determination on the stand-off in a case in which the National Assembly wants a declaration that Senate's role is limited in oversight of state agencies.

It wants the courts to declare the Senate's job is limited to consideration of a resolution to remove the President and the Deputy President.

The National Assembly also wants Senate declared in violation of the law by establishing committees duplicating its mandate.

Muturi’s side wants a declaration that the “Senate's purported action of establishing committees duplicating mandate of National Assembly committees ,as well as county assemblies, amounts to imprudent and irresponsible spending of public money.”

The House also seeks a declaration that the Senate has no mandate to approve persons nominated by the President as state or public officers.

The National Assembly further wants a declaration that the offices of Senate Leader of the Majority and Leader of the Minority violatethe Constitution.

“The offices are not created or established anywhere in the Constitution,” the court documents read.

In a communication to members on Tuesday, Speaker Muturi said the point of departure has been that speakers of both Houses resolve a question on whether a bill is special or ordinary.

“The Appeals Court rightly held that Article 110(3) of the Constitution can only be interpreted in the context of the law making roles and procedures of the Senate and National Assembly,” Muturi said.

“We applaud the court for upholding the provisions of Article 110(3) of the Constitution and the distinct roles of the Houses of Parliament,” he said.

Members of the National Assembly welcomed the court's judgment, saying it would help end the stand-off.

“This judgment is going to make it clear to the other House that they are boxing above their weight," Kisumu West MP Olago Aluoch said.

“I have spent all my time in this House wondering what is the role of the Senate,” Funyula MP Wilberforce Oundo said.

The Senate’s input would, however, be required on any bill that touches on the powers and mandate of the Parliamentary Service Commission.

In 2019, the passage of the Division of Revenue Bill for that year was delayed for months after the two Houses failed to agree on the share of revenue between the national and county governments.

Senators said that they were not consulted when the National Assembly passed the Bill to provide that counties receive Sh316 billion.

(Edited by V. Graham)