Senate schemes to change law to give it authority over Parliament

The Senate is quietly scheming to amend the Constitution to win authority over the National Assembly.

Senators are working on at least 25 changes to the Constitution in a bid to enhance their powers which, they say, is aimed at ensuring devolution of power and resources to the counties.

The Sunday Nation has seen a draft of the proposed amendments from the Senate Committee on Legal Affairs and Human Rights which include a proposal to nearly triple the minimum amount of money the national government has to transfer to the counties.

The senators are looking beyond the fight over the allocation of money between the national government and the 47 county governments. They are keen to rewrite the Constitution to ensure it conforms to international jurisprudence which, they say, designates the Senate as the Upper House in countries with a bicameral Parliament.

“The Bill seeks to amend the Constitution in order to remove restrictions on the legislative mandate of the Senate,” reads the memorandum of the Constitution of Kenya (Amendment) Bill, 2013, which contains the amendments.

That committee is chaired by Senator Amos Wako. The Senate’s Deputy Speaker, Mr Kembi Gitura, also sits in the committee. Other members are former Justice minister Kiraitu Murungi, Senators Stephen Sang, Hassan Omar, Fatuma Dullo, Kipchumba Murkomen, Judith Sijeny and James Orengo.

The push for amendments comes at a time when the Senate is seeking an advisory opinion in the Supreme Court in which it wants the court to rule that it has jurisdiction over any Bill that affects counties.

The Senate committee has also proposed that the Upper House be granted exclusive jurisdiction when it comes to vetting State officers such as all members of the independent commissions; cabinet secretaries; director of public prosecutions; attorney-general; auditor-general and controller of budget. The senators also want to vet principal secretaries and the inspector-general.

“In comparative jurisdictions, where the approval of Parliament for appointment to State office is required, it is the second chamber that is required to approve the appointment of such State officers. The structure and composition of the Senate would also ensure equity, inclusiveness and protection of the marginalised in the processes of appointment of State officers,” the senators argue in a brief to explain the Bill.

They cite the United States and Nigeria as the jurisdictions with bicameral parliaments where the Senate does the job of vetting State officers. They also looked at Rwanda where judges of the Supreme Court are approved by the Senate.

The senators have proposed that if the National Assembly insists on having a seat at the vetting table, they should follow the example of the Philippines where both houses send an equal number of members to a special committee of parliament to do the vetting.

Under Kenya’s three-year-old Constitution, the vetting of State officers is the domain of the National Assembly, but MPs have lately been criticised for lacking rigour in the exercise to the extent that the public derided the crucial exercise of checking the Executive’s appointees as a “mere formality”.

The Senate committee has to go through a series of meetings with governors, speakers of the county assemblies, members of the county assemblies, and even with members of the National Assembly to build consensus and ensure that the Bill sails through. It appears that the Senate is keen to ride on the relative public goodwill towards the Upper House and the notoriety of the Lower House, to win the support of Kenyans and ensure that they enjoy the fruits of the new Constitution.

The Senate has asked for an amendment of Article 203(2) of the Constitution. “This percentage would ensure that adequate resources are allocated to the county governments and that devolution, which is the centre-piece of the Constitution, succeeds,” reads the memo of the draft Bill seen by the Sunday Nation.

The recommendation to have at least 40 per cent of national revenue sent to the counties echoes the proposal of the chairman of the Council of Governors, Mr Isaac Ruto, that governors, too, wanted the amount increased.

But because of the leaning towards the National Assembly that President Kenyatta has already shown – when he signed the Division of Revenue Bill into law prompting the Senate to take the milestone legal step to take the President and the National Assembly to the Supreme Court – the senators and all those interested in more money in the counties are expected to have a fight on their hands.

The Senate had wanted the money increased to Sh258 billion, but the National Assembly, with the backing of the President and his deputy, insisted that the government could only afford Sh210 billion for the counties. Because, they argued, the counties had no structures to spend the money, plus, it was way above the 15 per cent minimum prescribed in the Constitution.

The senators appear to have anticipated this because the Senate is bringing the amendment through a popular initiative. This means that the senators have to first collect a million signatures of the country’s registered voters; deliver a draft Bill to the Independent Electoral and Boundaries Commission, which shall then verify that the initiative is supported by a million registered voters.

The IEBC, if satisfied, will then submit the Bill to the county assemblies for debate and approval or rejection within 90 days. All senators need is to have the backing of 24 county assemblies, have the Bill pass in both Houses, and then it would go to a referendum.