WHO'S GREATER?

National Assembly is the upper House

Can legislate on anything in the world.

In Summary

• Senate can only legislate on functions of the counties such as laws on pre-primary and nursery schools, and agriculture.

• Without the approval of the National Assembly, the Senate Bills would certainly die or fail.

The Senate has filed a lawsuit challenging 24 laws enacted by the 12th Parliament. One wonders why the Senate chose to file the case at this stage rather than upon enactment of these Acts. But it is the basis of the case that raises interesting questions.

The Senate is seeking the invalidation of all 24 Acts on the basis of what it cites as a complete disregard of the Constitution by the National Assembly in relation to its legislative mandate. While I may not want to comment on matters before a court of law because of the sub judice rule, I can review the Constitution on how it demarcates the mandate of each House of Parliament.

Article 95 and 96 confer exclusive mandate on the National Assembly to represent the people of the constituencies and deliberate on and resolve issues of concern to the people. This is why there are 290 Members of Parliament representing all the constituencies. Each MP is supposed to represent his or her constituency and resolve any problems raised by the constituents.

The National Assembly is also responsible for determining the allocation of revenue between the national and county governments. This means dividing the national cake to meet the objectives of devolution. It is only the National Assembly that is responsible for passing laws which allow for withdrawal of cash to fund public projects or provision of services to wananchi.

The Senate cannot introduce or consider Bills that do not concern county governments. The Senate cannot originate money Bills, which connotes Bills that require the expenditure of public funds for their implementation. It is nearly impractical to have a legislative proposal that does not require expenditure of public funds to be implemented.

Further, the National Assembly exercises oversight over national revenue and its expenditure. This is usually through the House teams such as the Public Accounts Committee and the Public Investments Committee before whom heads of parastatals appear to answer to audit queries.

Additionally, it is only the National Assembly that has the power to initiate impeachment of the President and Deputy President. Only the National Assembly can consider petitions or requests by wananchi for removal of Cabinet secretaries and members of constitutional commissions.

Further, it is only the National Assembly that can approve a motion sanctioning the country to go to war or declare a state of emergency. It is also only the National Assembly that has power to approve appointments made by the President such as CSs, Principal Secretaries and diplomats among others. It also only the National Assembly that can approve deployment of foreign forces in Kenya and approve the deployment of the Kenya Defence Forces to restore peace in any part of Kenya.  The Senate has no role whatsoever in these functions.

In terms of its legislative mandate, Article 109 gives authority to the National Assembly to introduce and consider any Bill. It is only the National Assembly that can legislate on any matter. Such is the unlimited legislative mandate of the National Assembly.

The Senate, on the other hand, is limited in its role. It can only introduce and consider Bills concerning county governments. Unlike the National Assembly, which can legislate on anything in the world, the Senate can only legislate on functions of the county governments such as laws on pre-primary and nursery schools, agriculture, including crop husbandry and abattoirs, licensing of dogs and burial of animals, cultural activities including video shows and hiring, control of drugs and pornography and county health services, including crematoria and funeral parlours, and the like.

However, the National Assembly must also approve Bills touching on functions of county governments upon passage by Senate. Without the approval of the National Assembly, the Senate Bills would certainly die or fail.

The Senate cannot introduce or consider Bills that do not concern county governments. The Senate cannot originate money Bills, which connotes Bills that require the expenditure of public funds for their implementation. It is nearly impractical to have a legislative proposal that does not require expenditure of public funds to be implemented.

This constitutional provision further illustrates the limited nature of the Senate legislative mandate, as the Senate has to look for a Bill that nearly does not exist for them to originate. This explains why very few Bills are originated by the Senate. This is the nature of the limited legislative mandate of the Senate. As such, the senators should stop accusing the National Assembly Speaker of ignoring them when passing laws.