The Star of 29 May has the front page headline, “MPs Plot to Abolish Senate”. What is meant was the members of the National Assembly (NA), who alone are referred to in the media as MPs—although members of the Senate are also MPs.
This slip indicates the lack of understanding among the public of the parliamentary institutions, and in particular their role in relation to devolution. The Star story is about the move by some NA members who consider the Senate “an unnecessary burden to the taxpayers”—the same people who on the same day voted themselves an enormous increase in their salary in disregard of the constitution!
The attitude of these NA members is symptomatic of either the lack of understanding of the role of different institutions in relation to devolution or a deliberate disregard of the constitution which has marked the debate on devolution.
It is also evidence of the deep opposition of well entrenched interests to devolution, sharing of power, and public participation which are central values of the constitution.
This article examines the role of the Senate in relation to devolution which is essential to the functioning and autonomy of county governments. That is the primary purpose of the Senate. It represents the counties.
Forty-seven senators are elected directly from county-wide constituencies, and the remaining 20, providing for special interests, including women, are chosen from party lists.
The close link of senators with the county is reflected in the rule that in the voting on “county” matters, members from each county vote as a collective (list members are assigned to the county in which they are registered to vote), but vote individually on other matters.
To this extent it resembles more the South African model than the US and other federal or quasi-federal systems which give the senate or second chamber functions co-equal with the other House.
And to this extent it is true that the Senate has fewer responsibilities than the NA. But the expressions “superior” or “upper” are inappropriate. Both are legislative chambers of Parliament which have to work together to discharge several of their functions.
Both derive their responsibilities from the constitution, and contrary to what Irungu Kang’atta thinks, the NA cannot abolish or curb the powers of the other.
The MPs who considered, and revised the CoE’s Revised Harmonised Draft in Naivasha early in 2010 set the tone for the current un-edifying tussle between the two Houses when they tried to make the constitution read “There is established a Parliament of Kenya, which shall consist of the Senate and the National Assembly and a Lower House with limited legislative role to be known as the Senate.”. Fortunately the CoE reverted to wording that suggested no hierarchy. Ironically some of the PSC members are now Senators!
“National” functions of the Senate
The Senate and the NA are jointly responsible for the impeachment (removal proceedings) of the president and deputy president. The impeachment proceedings would commence in the NA and proceed to the Senate if supported by a two-thirds vote.
The Senate finally decides, by a two thirds majority, on impeachment charges if a Senate investigating committee recommends impeachment. Thus, while impeachment proceedings commence in the NA, the Senate makes the actual decision on impeachment.
Another instance where the two chambers have to co-operate is in the approval of some appointments (for example the Inspector General) that are subject to “approval of Parliament”.
Likewise both the Senate and the NA approve deployment of national forces in and outside of Kenya. The Senate also co-approves with the NA the extension of the term of Parliament when the country is at war.
A critical area where the Senate and the NA have to co-operate is in the amendment of the constitution. This function is discussed below when we turn to the role of the Senate in the protection of the autonomy and interests of counties.
Senate’s role in relation to counties
The role of the Senate is described in Article 96 of the constitution, broadly, as representing the counties and protecting their interests and those of their governments.
More specifically it participates in the making of laws “concerning” counties, and in determining the allocation of national revenue among counties, and exercises oversight over national revenues allocated to the county governments.
Protecting the powers and structures of counties
The principal aspect of the autonomy of the counties is non-interference from the national government (whether legislative or executive). The constitution says that the governments at the national and county levels are distinct.
The powers of each are defined in the constitution. Therefore their powers and functions cannot be increased or reduced without an amendment of the constitution.
Either House can initiate the process to amend it, but no proposed amendment is effective unless it has the support of at least two-thirds of the members of each House.
Amendments to the objectives, principles and structure of devolved government must additionally be referred to a referendum (where they need the support of an overall majority and at least 25 per cent of the votes in half of the counties).
Amendments can also be initiated by at least one million voters, but here the gatekeepers are not the Senate and NA, but the county assemblies (which are unlikely to vote for the diminution of the authority of the Senate or the counties).
Thus the authority of the Senate is unlikely to be reduced or eliminated by an amendment process, and in turn the Senate is most likely to protect the interests of the counties.
Protecting the autonomy and interests of counties
Another critical role of the Senate in the protection of county autonomy is in relation to the provisions which enable the President to suspend a county government in “exceptional circumstances” (Article 192).
Exceptional circumstances are not defined, and there are dangers that the presidential powers may be abused. A safeguard is that an independent commission must investigate the allegations relied on by the President.
But, more importantly for our purposes, no suspension can take place unless the Senate approves of the suspension. The Senate can also terminate the suspension at any time.
National government may also take lesser measures if a county is unable to perform its functions or does not operate the prescribed financial management system (Article 190).
This kind of intervention can take place only if there is legislation authorising it. Since this matter “concerns” counties, the Senate will participate in the making of it, and presumably ensure that it is so drafted as to exclude abuse.
Scrutinising parliamentary bills on devolution
The rules governing the role of the Senate in law making are complex. It is not a general legislative chamber, but is confined to Bills which “concern” the county government.
What concerns the county government is poorly defined: a bill which affects county government functions in the Fourth Schedule, a Bill relating to the election of members of the county assembly or the county executive committee, or a Bill affecting county finances.
Many laws will actually touch on county government functions in the Fourth Schedule and many Bills will (directly or indirectly) affect county finances and can therefore be interpreted as Bills affecting county governments.
Indeed, it has been observed that the number of Bills “tagged” as affecting counties will depend on the enthusiasm of the Senate to review national legislation.
The decision on whether a Bill fits this description is made by both speakers. Ultimately the courts might have to decide if the speakers cannot: perhaps by seeking an advisory opinion of the Supreme Court.
A bill concerning county government can usually be introduced in either House. If the Bill is about the election of county assemblies, or is the annual Bill to divide the counties’ share of the national revenue between the counties, there is a special procedure.
It seems that such a Bill must start in the Senate, and the NA can change the Senate’s decision only by a two-thirds majority. If the NA cannot muster the necessary two-thirds, the Bill goes, as passed by the Senate, to the President for signature. This gives the Senate a very powerful position in connection with sharing revenue between counties.
In relation to the other Bills concerning counties, if the two Houses cannot agree, the matter is referred to a mediation committee (consisting of equal number of members of both Houses). If they cannot work out a compromise or the compromise is rejected by either House, the bill is defeated.
Transfer of powers to counties
The constitution envisages that powers destined for counties may be phased over a period of three years, and transfer need not proceed at the same speed for all counties.
To ensure that the national government does not unnecessarily hold back powers, the Transition to Devolved Governments Act empowers the Senate to make the final decision regarding the transfer of powers and functions.
While the Transition Authority (established under the same Act) can reject the application for transfer of functions, a county can appeal to the Senate; its decision is final.
Ensuring adequate funds for counties to discharge their functions and responsibilities
The constitution contains a detailed scheme for the management of financial resources of the Republic including entitlements of the counties (a full account of this topic is provided in next Saturday’s article in this series).
As far as counties are concerned, the general principle is the equitable sharing between the national and county governments. A detailed set of principles is set out in Article 203, balancing the interests and responsibilities of various governments (examined in next week’s article).
An independent Commission on Revenue Allocation (CRA) is given the responsibility to make recommendations on the basis for equitable sharing of revenue raised by the national government as between the national and county governments, and as between the counties.
The Senate plays a key role in determining its members: 5 out of 9 members (the others being the chair appointed by the President, 2 by the NA, and the Principal Secretary of Finance).
The Senate has the responsibility, every five years, to determine the basis for allocating among the counties the share of national revenue annually allocated to counties.
It does this after consultations with national and county authorities and taking into account the CRA’s recommendations. Its resolution goes to the NA for its approval. If the NA wants to amend or reject the resolution, it must muster the votes of at least two-thirds of its members.
The actual allocations of funds are made through two annual Acts: the Division of Revenue Act (as between the national and county governments) and the County Allocation of Revenue Bill (as among the counties).
The second Bill – but not the first – must follow the procedure we outlined a little earlier This scheme means that the Senate influence over the division of funds between the national and county governments is less great than over the allocation as between counties.
Senate and counties
Although the Senate’s primary function is to protect the interests of the county governments, the constitution says little about the relationship between it and county governments.
Senators are to represent the counties at the national level, but they have no role at the county level. In this respect, the constitution is respecting its own prescription of the “distinctiveness” of both levels of government.
It is also an indication that Kenya’s devolution is different from and “superior” to some forms of decentralisation where national members play a significant, formal role at the county level. However, the current demands by NA members in connection with the CDF system threaten to blur the distinction between the role of elected members at different levels of government, undoubtedly to the detriment of county autonomy.
Although there are no institutional links between Senators and their county governments, it is clear that informal links will be established. We have mentioned that when a matter that “affects” counties comes up for a vote, all the Senators from a county vote collectively as a single delegation.
Here clearly the intention is to emphasise the centrality of the county rather than other affiliations (like political). If so, consultations with the county government would be desirable, if not essential, even though nothing in the constitution says that such consultation must take place.
Another point of intersection of Senators and their county governments would lie in the working of intergovernmental relations (another topic for a later article in this series).
And it is not unlikely that the Senators, having a limited role at the national level, will seek a role at the county level which might come into conflict with the authority of the governor.
Concluding remarks
The somewhat formal analysis so far does not tell us how the provisions on the Senate will affect the fortunes of counties. We have assumed that the Senate will have an interest in promoting county interests and the NA those of the national government.
This may indeed happen, but other motives may also intrude—such as the egoistical and silly claims of the superiority of one House over the other. Since the careers of members of both Houses depend on support in their (common) constituency, it is likely that they will be driven by similar pressures and objectives—but respect for public views in constituencies has not been a characteristic of Kenya politicians.
One might expect political party affiliation to be a stronger determinant (though the experience so far disapproves that, and another notorious feature of Kenyan politicians—the lack of loyalty to party or policies—will no doubt assert itself). We may therefore be heading towards unsettled waters.
But should not parliamentarians be guided by the framework of the constitution?
The constitution assumes that a system of shared power as in devolution would lead to differences and conflicts of interests.So it constantly emphasises the common interest of Kenyans, the peaceful settlement of differences, and the building of consensus.
The objectives and mechanisms of inter-governmental relations are directed towards these goals. The NA cannot ignore the interests of counties, any more than that the Senate should disregard the national interest.
A fair amount of flexibility has been provided for dealing with relations between the national and county government, in terms of functions and finances, as well as in joint enterprises.
Our legislators at all levels should pay more attention to what unites us rather than what divides us, in terms of social and economic development. The proponents of devolution always saw it as a means to strengthen national unity and a more effective basis for development.
Ghai is a director of the Katiba Institute and Bosire is a PhD candidate at the University of Western Cape
