• Senators stood with their colleagues because it follows that if this is done to one of them, it could happen to any of them.
• It’s thus an assault to the independence and dignity of the senate and parliament as a whole.
The theatre of the absurd is for the Senate to do the same thing nine times and expect different results.
This is what has been happening for the last two and a half months, without much success. A Kikuyu saying goes that it’s only a fool whose matter forever pends before court. For heaven’s sake we have been quarrelling over the third basis for revenue sharing for more than a year without progress.
However, the events of August 17 clearly served to demonstrate the persistent tensions between the national and county governments, and the vicious battle for the control of the heart and soul of Kenya — public coffers.
Of great concern is the manner in which the Executive wanted to have its way in the Senate against all known restraints in the use of excessive force. The fact that police were deployed to arrest and harass three senators — Lelegwe Ltumbesi (Samburu), Cleophas Malala (Kakamega) and Christopher Langat (Bomet), is clear example of how low a country can sink.
In politics, however, I have also come to learn that politicians have known how to hunt with the foxes and ran with the hares at the same time.
Nevertheless, it’s inconceivable for the Executive to use force to deny senators the right to exercise their constitutional mandate as it goes against the doctrine of separation of powers.
Provisions on how delegations vote are lifted word for word from the Constitution to the Senate Standing Orders. Speaker Kenneth Lusaka thus had no option but to admit letters written by Langat and Malala respectively expressing their voting preference. Further, even if the vote would have proceeded, it would have ended up in a tie of 22/22.
The Senate, therefore, resolved to form a committee of 12 to further deliberate on the matter, and table a report in a Kamukunji before a final resolution is made in the House thereafter. This consensus was achieved partly due to the fact that the pro-government side won in the two procedural motions by failing to adjourn the debate and extending the plenary time beyond the traditional 6:30pm.
It’s possible to push through a people-driven agenda through persuasion, without resorting to violence and intimidation. Senators stood with their colleagues because it follows that if this is done to one of them, it could happen to any of them. It’s thus an assault to the independence and dignity of the Senate and Parliament as a whole. The institution commendably asserted itself against intimidation and misuse by the executive by sticking to the provisions of the constitution.
Article 123 states that on election, all senators registered as voters in a county shall constitute one delegation, with the senator elected under Article 98(1) being the head of delegation. In his or her absence, he shall designate another senator to vote and that the designated senator shall only do so after consulting his/her delegation. This provision thus gives latitude to the head of delegation to decide on whether to vote in person or by delegating on any matter concerning counties.
However, it’s a misnomer that many Senate delegations constitute a single senator. A copy paste from the South Africa’s National Council of Provinces, the provision doesn’t sit well in our jurisdiction since we don’t have delegations per se but 47 senators each per county and 20 nominated to represent special interest groups — 16 women, two youth and two persons with disabilities.
This can be amended, with the most populous counties being given nomination slots to leverage on the equality and probability of vote according to population size. For example, the senator for Kiambu has the same vote as that of Lamu, yet he represents 2,417,735 people against Lamu with 143,000.
The lessons drawn from this debacle is that no matter the circumstances, the rule of law must be adhered to, and that on the contrary, external aggression by the police served to unify the Senate to proffer an avenue for consensus building, a scenario that obtains in state building as well.
In addition, monies allocated to the counties in a non-scientific manner are inadequate and, therefore, the division of revenue bill that allocates funds to the two levels of government is of utmost importance.
Further, public spending and more so debt management is critical especially the need to reduce domestic borrowing from local banks since corruption money re-capitalises the same banks that the government borrows from, essentially getting back its own money at very high interest rates.
For example, look at the Covid-19 millionaire scandal in with the Ministry of Health (a devolved function) with a whopping Sh97 billion; equivalent to an allocation of 16 counties, yet the national government can’t cede at most Sh20 billion to help resolve the current crisis!
Its alleged that Jack Ma’s donations were resold back to government at an inflated cost. Same model.
The Senate needs to resolve the stalemate, for the country to move forward. Kenyans are already tired of the high drama.