Last Thursday, the Star carried an opinion piece titled ‘Senate’s problem not flawed design, just flawed execution’ authored by Elijah Ambasa. The general context of the opinion piece is the infinite power struggle between the Senate and the National Assembly. The struggle is as old as devolution itself, literally.
Specifically, the oped was informed by a recent appeal by former Prime Minister Raila Odinga on the need to revisit the design of Parliament to grant the Senate more powers. The core of Ambasa’s argument is that the challenges witnessed have nothing to do with the design but with the implementation of the design. I respectfully differ.
As a starting point, I highlight a point of convergence with Ambasa, which is the existence of a problem. The fact of the existence of a problem between the two Houses of Parliament is not in dispute. It is a fact evidenced by the overt manifestation of differences and attempts at addressing the challenges. I will give an example for each.
One of the latest in the endless series of the differences is the National Assembly-led quest to amend the constitution to entrench the Parliament-managed funds. The Senate has already signalled opposition to the National Assembly initiative, authoring one of its own. Regarding the attempt at addressing the problem, the National Assembly originated not so long ago the Houses of Parliament (Bicameral Relations) Bill, 2023 to foster legislative harmony between the two Houses.
Ambasa points out, and rightly so, that the current design of our bicameral legislature largely grants to Senate powers over the devolved system. Whereas Elijah sees it as an appropriate design that is autochthonously tailored to Kenya’s context, it easily qualifies as the fundamental flaw engendering the persistent problems witnessed.
It was absolutely wrong to confine the Senate’s role almost entirely to devolution. The sad irony is that the configuration that was intended to defend devolution is inadvertently frustrating it.
The design seems to have been blind to the existence of county assemblies as the legislative cauldron for devolved units. It is a consequence that is well documented. In its 2016 report titled ‘Report of the Working Group on the Socio-Economic Audit of the Constitution of Kenya, 2010’, the Auditor General noted that the Senate’s oversight role over the counties has created confusion and contributed to disharmony between counties and the Senate.’ The report highlights more broadly the challenges stultifying the Senate’s effective functioning.
To address the plight it finds itself in, the Senate is caught in a dual struggle, fighting with both the National Assembly and the county assemblies. Put bluntly, the Senate is fighting for relevance. It is without meaningful powers of its own. The fight for power with the county assemblies has especially proven debilitating to devolution.
The Senate insists on undertaking roles that ideally should be undertaken by the county assemblies. It is to be remembered that from early on, the Council of Governors engaged in protracted litigation, challenging the decision by the Senate to summon governors to appear before them.
Sadly, a recent ruling by the Supreme Court worsened the Senate’s plight. Which is why the call by the former Prime Minister to pattern Kenya’s bicameral legislature along the US Congress is critically timely.
Granting the Senate more powers would have the dual benefit of fostering effective inter-parliamentary checks and balances, while strengthening devolution. It is not an outrageous ask. The Bomas Draft Constitution approximated the suggested design outlook. It is the right constitutional amendment to pursue.
Political commentator
