KATIBA CORNER

Senate as proposed by BBI Amendment Bill

Our Senate is not designed as an institution of older, wiser and more experienced people

In Summary

• Senate is not designed as an institution of older, wiser and more experienced people, who might act as a restraining force on the possible excesses of the other house,

• It has not been demoted in any sense. Whether we really need these changes is entirely another matter.

Senate of the Republic of Kenya.
AUGUST HOUSE: Senate of the Republic of Kenya.
Image: FILE

Would the BBI changes make the Senate less or more powerful and important? And do the suggestions make sense?

Countries with a second level (or more) of governments commonly have two Houses of Parliament. Usually, one of them reflects the nation in a way that is different from the other –particularly to give the small lower level units more of a say.

The second House may have a close connection with the governments at what we call the county level. And it may have special functions in connection with the system of lower level government. Sometimes the second House has different types of qualifications for the members, or they stay in office for longer.

The very word Senate comes from the Latin for old – the ancient Roman Senate comprised older, also upper class, males (of course).

THE SENATE NOW

Our Senate has no such different qualifications, nor different terms of office. Nor do its members have any special connection with the county governments. A proposal in the Bomas Draft that senators should be elected by the county assemblies, or equivalent, was removed by the Committee of Experts.

Like governors, most senators are directly elected by their county voters. Sometimes they are not even from the same party as their county’s governor.

The Senate’s role is focused on the county government. Laws passed by the National Assembly that do not affect the counties are not considered by the Senate.

To ensure the Senate does consider laws affecting counties, the speakers of the two Houses must discuss each Bill to agree whether it should go to the Senate. This has not been happening – and the High Court recently said quite a number of laws were unconstitutionally enacted as a result.

So our Senate is not designed as an institution of older, wiser and more experienced people, who might act as a restraining force on the possible excesses of the other house.

The Senate has important roles in allocation of national revenue to the counties. It must be involved in passing the Act that divides national revenue between the national and county level (the Supreme Court clarified this).

It decides every five years how the devolved allocation will be shared among the individual counties – the National Assembly may overturn the Senate decision but only if two thirds of MPs agree.

And the Constitution says that the Senate “exercises oversight over national revenue allocated to the county governments”.

This is just one of the problems created by a parliamentary select committee that reviewed the draft Constitution in 2010. It caused surprise because the primary overseer of spending by counties must be the county assemblies. Indeed, the Constitution says assemblies “may exercise oversight over the county executive committee and any other county executive organs”.

The other oddity is that counties spend money from the national revenue and from their own revenue on the same activities and people wondered how the Senate could draw the line demarcating its jurisdiction. The courts have found it difficult, the Court of Appeal referring to this as an “operational quagmire”.

This looked like something to please the senators – though that select committee had otherwise tried to demean it, by suggesting it be called the “second House of Parliament”.

The Senate has an important role in impeachments — the removal process for the President and governors (like Mike Sonko of Nairobi).

And if the national government is moved to intervene in county government matters — because the county government is unable to cope and needs help, or because of some serious crisis in the county — the Senate can bring this intervention to an end.

SENATORS NOW AND UNDER BBI

The Senate consists of 47 directly elected senators (three of them now women), plus 16 women, and four members representing youth and people with disabilities (a woman and a man for each) who come in through party lists.

Usually, each county has one vote only (usually cast by the county senator) – and the senators not representing specific counties go along with the vote of the county where they are registered as voters.

The BBI team, with some justification, decided that list mechanisms were not a good idea. List members tend to be viewed as not ‘real’ members. And to have most women come in through lists undermines the credibility of women members.

The BBI amendments would do away with the 16 women in the Senate, but not the other four list members. And they would introduce 47 more members – because now every county would have a man and a woman directly elected.

This means every senator, man or woman, would have their own vote. There seems little wrong with this: Already, senators do not necessarily vote in a way that reflects the view of their county’s government. In many other countries — like the US, which has two senators from every state — every individual senator has their own vote.

The four senators for youth and persons with disability would also each have their own vote — no doubt with guidance from their parties. But it does mean that up to four counties would have an extra vote in the Senate, which slightly undermines the idea that in the Senate, every county, large or small, would have the same voice.

Ironically, having removed the women party list from the Senate (the House that was already pretty close to having one third women), the BBI team, under pressure, introduced a list system for women into the National Assembly. What happened to their principle?

WHAT WOULD SENATE DO?

Senators would have loved to be like other second Houses and have a say on all legislation. Perhaps like the South African Council of Provinces, which considers all legislation but whose voice counts for more on laws affecting the provinces. This they did not get — clearly the MPs counted for more in the BBI calculus.

The Senate’s anomalous power to oversee “national revenue allocated to the county governments” would actually be extended to all county expenditure.

This continues the national level disregard and disrespect for county institutions, and leaves county executives being supervised by two legislative institutions. Disgruntled MCAs are presumably expected to be bought off by the increase in funding to counties and the notion of wards being the primary location of county development.

The roles of the Senate would be slightly expanded by including responsibility for approving the President’s nominees as Judiciary Ombudsman and as members of the new Youth Commission.

And the approval of the appointment of the Controller of Budget would be shifted from National Assembly to Senate – on the basis presumably, that this office is very important for control of counties and their handling of their finance.

Senators may feel that they have been slighted because the Commission on Revenue Allocation (which makes recommendations about national finances going to counties) would no longer include five people nominated by political parties who have members in the Senate.

The five would be reduced to two. But no senator could anyway be appointed to this Commission and the Constitution does not say the Senate as such — or even individual senators — would nominate these members. The change is not great.

The Senate’s powers in connection with national revenue for counties would not be affected, nor its powers in connection with national government intervention in county governments, nor its role in impeachment.

Senators may feel aggrieved that even though now MPs might become ministers, they cannot enjoy this privilege. It is not uncommon for members of second Houses in parliaments in systems with two-tier governments to be able to be ministers. Australia and Canada are examples.

In India, even a Prime Minister has been a member of the second chamber (a real prime minister not the pseudo prime minister proposed here). No such chance for senators here!

Overall the Senate’s functions have not changed much – not nearly as much as the Senate would have wished. It has not been demoted in any sense. Whether we really need these changes is entirely another matter.