EXPLAINER: What you need to know about Kenya's legislative process

The basic function of Parliament is to make laws, amend them or repeal them.

The law-making or legislative process may be defined as the process by which a legislative proposal brought before Parliament is translated into law.

Further, the legislative process is a sequence of steps required for laws to move or transform through the system, from ideas to formal legislation.

What is a Bill?

A Bill is a proposed law for introduction in the National Assembly or Senate.

Bills seek to introduce a new legislation, to amend an existing legislation or to repeal existing laws.

Origination of Bills

Bills may originate from either:

a)The Executive-introduced to the House through a member of the House, Leader of the Majority Party or Leader of the Minority Party through a Committee of the House, mostly the Chairperson.

(b) Individual Member of the National Assembly or the Senate-introduced to the House through the Member sponsoring the Bill). Co-sponsoring of Bills is an additional alternative.

(c) A Committee of the House - introduced to the House through the Chairperson or a member designated by the Committee.

(d) A parliamentary political party may also initiate or sponsor a Bill.

(e) A member of the public may petition Parliament to legislate on a matter.

Here the request is introduced to the House by way of a petition conveyed by the Speaker or Member and committed to the relevant Departmental Committee for action.

(f) Alternatively, members of the public can forward legislative proposals to Members of Parliament.

Introducing Bills

A member wishing to introduce a Bill is required to submit to the Clerk of the National Assembly a draft proposal or policy document bearing proposals to introduce a Bill.

Such proposals may be driven by stakeholders, interest groups, citizen initiatives, urgent public interest or party manifestos.

A member of the public may petition Parliament to legislate or to amend an existing legislation. In this case, the report of the relevant Committee will guide the House on how to proceed with the proposed legislation.

The Bill is published thereafter.

Procedure for Processing Bills by Members' Initiative

Pre-publication scrutiny

a) A member wishing to introduce a Bill needs to first present to the Speaker a legislative proposal.

The following requirements must be met:

(i) A letter presenting the legislative proposal to the Speaker.

(ii) A draft copy of the legislative proposal, if any.

(iii) A memorandum of objectives and reasons for which the legislative proposal is made

(iv) A statement on whether the proposal is a ‘Money Bill' or not

(v) A statement on the limitation of fundamental rights and freedoms, if any.

b) The Speaker will subject the legislative proposal to a review to ascertain whether it conforms with the provisions of the Constitution, statutes and the Standing Orders.

The scrutiny includes establishing that the Bill is drafted in the prescribed legal language

c) Where the Speaker is of the opinion that a legislative proposal is not a draft money Bill it is directed to the relevant Departmental Committee for prepublication scrutiny.

This is in case of a legislative proposal not sponsored by a Committee.

The speaker can direct that the proposal be published into a Bill in the case of a legislative proposal sponsored by a Committee.

d) A draft money Bill is a legislative proposal whose implementation will incur the commitment of public funds.

e) Where the Speaker determines that a legislative proposal is draft money, the legislative proposal is referred to the Budget and Appropriations Committee.

The Committee, after taking the views of the Cabinet Secretary responsible for Finance, will recommend whether the Bill should be published or not.

f) The Budget and Appropriations Committee shall consider only the money bill or financial aspects of the proposal and submit a report to the Speaker within 21 days of receipt of the proposal.

The report shall contain the views of the Cabinet Secretary responsible for finance and a detailed examination of how the legislative proposal affects the current and future budgets including implications on tax measures.

When the Speaker receives the recommendations of the Budget and Appropriations Committee, he shall direct that the proposal be subjected to prepublication scrutiny before the relevant Departmental Committee in case of a legislative proposal not sponsored by a Committee.

The speaker can also direct that the proposal be published into a Bill, in the case of a legislative proposal sponsored by a committee, or direct that the legislative proposal be halted.

The Departmental Committee to which a legislative proposal is referred for prepublication scrutiny shall consider the proposal and submit a report to the Speaker within 21 days.

The Committee shall advise whether or not the proposal should be proceeded with, or any other appropriate recommendation.

Thereafter, the Speaker shall direct either that the legislative proposal be not proceeded with or that it be published into a Bill.

If the legislative proposal meets the stipulated threshold and does not fall within the definition of the Money Bill, it is referred to the relevant Departmental Committee for pre-publication scrutiny.

During pre-publication scrutiny, the Clerk to the National Assembly or Senate writes to the Kenya Law Reform Commission, the Attorney General, the ministry/state departments or other agencies that will be charged with the implementation of the Act for their comments

Comments, once received by the Clerk from the agencies, are forwarded to the relevant Departmental Committee for consideration.

The Committee addresses the issue of the constitutionality of the proposal and the policy framework underpinning the proposal.

The Committee then hands in a report to the speaker within the prescribed period with recommendations calling for the publication of the Bill, proposing amendments to the legislative proposal and recommending whether to publish or not to publish the proposal.

The Committee is expected to give reasons for either of its recommendations.

Publication of Bills

Publication of Bills includes the assignment of a number to the Bill and the actual printing of the Bill by the Government Printer.

Before approving the publication of a legislative proposal into a Bill, the Speaker takes into account the recommendations of the relevant committee that undertook pre-publication scrutiny.

In the case of Money Bills, the Speaker must be satisfied that the relevant Departmental committee and/or Budget and Appropriations Committee has taken into consideration the opinion of the Cabinet Secretary responsible for finance.

Once approved by the Speaker, the legislative proposal is published in the Kenya Gazette.

Bills originating from the National Assembly are printed in green colour, whilst those originating from the Senate are printed in blue colour.

 Publication period for Bills

The publication period of a Bill is the minimum time prescribed by the Standing Orders for a Bill that has been published to be due for introduction in the House for First Reading.

In other words, this is the period between the date a Bill is published in the Kenya Gazette and when it is due for First Reading.

At the end of the publication period, the Bill is deemed to have matured for First Reading.

The publication period for Bills is fourteen days.

However, the publication period for the Consolidated Fund Bill, Division of Revenue, County Allocation of Revenue, Appropriation Bill Supplementary Appropriation Bill, or Equalization Fund Appropriation Bill is seven days.

The House may, by way of a resolution, reduce the publication period by such number of days as deemed fit.

Stages of a Bill

Bills in the House go through several stages, namely:

First Reading

A Bill is introduced in the House for the first time by way of reading the title of the Bill by the Clerk.

The First Reading is, by practice in most countries, a purely formal undertaking to introduce the Bill to the legislature. Upon being read the first time, the Bill stands committed to the relevant select committee for consideration. No debate arises and no vote is taken at this stage.

The select committee proceeds to scrutinize the Bill by calling in the sponsor of the Bill, inviting various stakeholders, technocrats and external experts and later submitting a report to the House.

Second Reading

At this stage, a Bill is deliberated upon by the House extensively and the main debate is on the principles and objects of the Bill.

At the commencement of this stage, the member in charge of the Bill, also known as the sponsor of the Bill, moves a motion for Second Reading.

No amendment may be moved to this Motion.

At the end of the debate on the Second Reading of the Bill, a vote is taken by the House, and if the Motion is passed, the Bill proceeds to the Committee Stage but if it is defeated, the Bill is lost.

If the Bill is passed at the conclusion of this stage, any Member wishing to introduce amendments may submit their proposals to the Clerk at least twenty-four hours before the commencement of the sitting at which the part of the Bill is to be considered in Committee.

This is to afford sufficient time for processing and approval by the Speaker for consideration of the amendments in the Committee of the Whole House Committee Stage

Committee of the Whole House

This refers to an arrangement in which the Plenary converts itself into a Committee that is comprised of the whole membership (Members) of the Assembly.

The Committee of the Whole House considers the Bill in detail clause-by-clause which includes the title, preamble and schedules contained in the Bill.

The Committee is chaired by the Deputy Speaker or any member of the Chairpersons' Panel-previously known as the Speaker's Panel.

Where amendments are proposed to any part of the Bill, the Committee considers the amendment and takes a vote on each of them.

If the amendment is passed, it becomes part of the Bill.

At the conclusion of consideration of the Bill at the Committee of the Whole House stage, the Sponsor of the Bill moves a Motion seeking that the Chairperson report the consideration of the Bill to the House.

Third Reading

The final stage of the passage of a Bill through the House is the Third Reading. No further substantive amendments are taken up at this stage.

 Generally, there is very little debate during the third reading, and a final vote is taken.

If the Bill does not concern county governments, the Speaker refers it to the President for assent.

If the Bill concerns county governments, it is referred to the Senate for concurrence.

The Bill is lost if it is rejected at either the Second Reading, Committee of the whole House or at Third Reading.

Laws that require consideration by both Houses of Parliament

According to Article 109(4) of the Constitution, any Bill that concerns county governments may originate in either House and requires consideration by both Houses.

Before the introduction of a Bill that would require passage in both Houses, the Speakers of both Houses of Parliament consult and determine whether that Bill concerns county governments. Bills that concern county governments include:

(a) Bill containing provisions affecting the functions and powers of the county governments set out in the Fourth Schedule.

(b) Bill relating to the election of members of a county assembly or a county executive.

(c) Bill referred to in Chapter Twelve affecting the finances of county governments.

Referral of Bills to the Senate

Once the National Assembly passes a Bill concerning county governments the Speaker refers it to the Senate for concurrence by way of a Message to the Senate together with the Bill in the form passed by the National Assembly.

Consideration of Bills originating from the Senate

Whenever the National Assembly receives a message from the Senate seeking its consideration, the Speaker conveys the Message to the House.

The Bill is read the first time and referred to the relevant Committee.

The House then processes the Bill in the same manner as Bills originating in the National Assembly.

In considering a Bill received from the Senate, the National Assembly may reject the Bill at the Second Reading, consider and pass the Bill with amendments or consider and pass the Bill without amendments.

It can also reject the Bill at the Third Reading.

After considering and making a decision on the Bill, the Speaker conveys the said decision to the Senate by way of a Message, indicating the decision of the National Assembly on that Bill.

Committal of Bills to Mediation Committee

A Bill is committed to a Mediation Committee if

(a) The National Assembly rejects a Bill received from the Senate at the Second or Third Reading

(b) The National Assembly rejects the Senate's amendments to a Bill originating from the National Assembly.

(c) The Senate rejects the National Assembly's amendments to a Bill originating from the Senate.

Appointment and composition of a Mediation Committee

Whenever a Bill stands committed to a mediation committee, the Speakers of both Houses appoint an equal number of Members to a mediation committee to consider that Bill and communicate the decision to the other House.

The mandate of a mediation committee is to attempt to develop a version of the Bill that both Houses will agree on and pass.

In most cases, mediation committees on Bills are restricted to consideration of the contested Clause(s) of the Bill under consideration.

The mediation committee has 30 days to develop the mediated version of the Bill. The thirty days start counting from the day the committee holds its first sitting.

If the mediation committee fails to agree on a version of the Bill within 30 days, the Bill is defeated.

Upon development of an agreed version of the Bill, the Mediation Committee tables in both Houses a Report on its consideration of the Bill and the mediated version of the Bill thereof for consideration by both Houses.

 If both Houses approve the Report of the mediation committee and the mediated version of the Bill, the Bill is deemed to have been passed.

The speaker then proceeds to refer the Bill to the President for assent within seven days following the passage of the mediated version.

If either House rejects the version proposed by the Mediation Committee, the Bill is defeated.

President's Assent

Once a Bill has been passed by the House, the Speaker, upon certification of the passed Bill, presents it for assent by the President.

The president may within fourteen days after receiving the Bill;

(a) Assent to the Bill, in which case it becomes law as an Act of Parliament and comes into effect within fourteen days or on the date or period specified in the Act

(b) Refer the Bill back to the House with a memorandum outlining reasons for the referral.

Referral of a Bill back to the National Assembly If the President refers a Bill back to the National Assembly or Senate.

 The Speaker conveys this referral to the House by way of a Message, and refers the President's Memorandum containing the recommended amendments to the relevant select committee for consideration.

 The committee considers the recommended amendments and submits a report to the House on them.

The House re-considers the Bill whilst confining itself to the clauses to which the President has expressed reservations, and either:

 a) passes the Bill fully accommodating the President's reservation, following which the Speaker re-submits the Bill to the President for assent.

b) passes the Bill a second time without amendments

c) passes the Bill with amendments that do not accommodate the President's reservations.

For the National Assembly or Senate to override the President's reservations, the House vetoes the proposed amendments by a vote supported by at least 233 Members.

This constitutes two-thirds of the National Assembly membership.

Thereafter, the Speaker re-submits the Bill for assent within seven days and the President is required to assent to it within seven days.