A few weeks ago, the Senate expressed displeasure against what the National Assembly perceived as a deliberate move to undermine its legislative mandate.
The disquiet followed the National Assembly’s alleged trend of frustrating bills originating from the Senate.
The latest Senate bills to be dropped by the National Assembly at the Second Reading include the Employment (Amendment) Bill, 2022, and the Natural Resources (Benefit Sharing) Bill, 2022.
The most recent fallout reflects a trend that has characterized the relationship between the two Houses of Parliament since 2013. Disagreements have manifested in various ways on different forums and platforms.
A couple of times, the Judiciary has been invited to mediate the differences between the two Houses. In October 2020, for instance, the High Court declared over 20 laws unconstitutional because the Senate was not involved in their processing. The matter found its way into the Supreme Court following the Court of Appeal’s decision to overturn the High Court’s decision. In its wisdom, in 2023, the Supreme Court allowed the two Houses room to settle the tussle independently. The directive leveraged a desire by both the Senate and the National Assembly to resolve the persistent differences amicably.
Legislative intervention is the latest in the list of interventions suggested to address the standoff. The Houses of Parliament (Bicameral Relations) Bill, 2023, by the National Assembly, is intended to streamline relations between the two Houses, particularly in developing laws. It is a worthy effort, but only if it can genuinely and realistically address the protracted problem. However, a look at the Bill raises doubts about its capacity to achieve that.
The challenge facing our bicameral Parliament is fundamentally a design one. Looking back, the adopted design needs to be revised.
Confining the Senate’s role almost entirely to devolution set the stage for the persistent chaos we continue to witness in the management of parliamentary affairs.
It is baffling why the Senate’s role is primarily framed around devolution, yet county assemblies are established to oversee the devolved units. The design flaw has yielded a two-fold problem for the Senate: fighting for space at the national legislative table and crowding out legislative and oversight space in the county assemblies.
The former is partly due to the numerous court cases the Senate has filed to secure its space. A case filed by the Council of Governors in 2014 challenging the Senate’s role in summoning them (governors) demonstrates how the Senate is crowding out the county assemblies’ space.
The Houses of Parliament (Bicameral Relations) Bill, 2023, needs to do more, if any, to address the fundamental flaw. In any case, it only serves to refine and entrench certainty about the constitutional design flaw.
There is nothing new that the Bill seeks to address that is not provided for in the Constitution. Even if passed, it is unlikely that it will put to rest the tensions triggered by the unbalanced National Assembly-Senate power relations, which largely favour the National Assembly.
The bill originated in the National Assembly, so it is doubtful that the Senate will embrace it in the first place.
Addressing the flaw requires much more than a legislative intervention. It requires a fundamental re-look at the Constitution itself. A desirable constitutional amendment should expand the Senate’s legislative locus to include some functions reserved exclusively for the National Assembly.
Such change would foster checks and balances between the two Houses, as happens in comparable jurisdictions such as the US. Parliament may look at the comprehensive audit report by the Office of the Auditor General (OAG) published in 2016.
The Report of the Working Group on Socio-Economic Audit of the Constitution of Kenya, 2010, impressively documents the deficiencies afflicting Parliament as currently designed.
Its recommendations are more profound than those provided by the current Bill.
