We must urgently rethink Senate’s role, scope, and structure

By David Wanjala

The Constitution established the Senate strictly to entrench Devolution. According to Art. 96 of the Constitution of Kenya 2010, the Senate represents the counties and serves to protect the interests of the counties and their governments; it participates in the law-making function of Parliament by considering, debating, and approving Bills concerning counties and, lastly; it determines the allocation of national revenue among counties, and exercises oversight over national revenue allocated to the county governments.

Save for Sub Sec. 4 of Art. 96 that apportions the Senate’s role of overseeing State officers by considering and determining any resolution to remove the President or Deputy President from office, the Senate exists exclusively for Devolution.

The importance of the Senate to the various aspects of Devolution, particularly on division of revenue between the national government and county governments, is well prosecuted in the Supreme Court’s Advisory Opinion 2 of 2013 in the matter of the Speaker of the Senate and another.

The reference of the matter to the Supreme Court was occasioned by the act of the Speaker of the National Assembly reversing his action of referring a legislative matter to the Senate and having only his Chamber conclude deliberations on the Division of Revenue Bill, providing for a sharing in finances between the national and the county governments.

Whereas the National Assembly’s stand was that the Bill was only concerned with the financing of county governments by the national government and therefore was the exclusive legislative responsibility of the National Assembly, the applicants (the Senate) maintained that as the county governments had a major interest in the monies in question, service of that interest, by the Constitution, involved the Senate’s legislative contribution; and that no valid law could be enacted without such legislative contribution.

The Supreme Court addressed three key issues relevant to this discussion in the Advisory Opinion 2 of 2013. One is the National Assembly’s role vis-à-vis the Senate in the origination, consideration, and enactment of the division of revenue bills. Two, the meaning of a Bill concerning county governments as provided for under the Constitution. Three, whether the Division of Revenue Bill concern county governments.

The Division of Revenue Bill, 2013, the apex court counselled in the majority advisory, was an instrument essential to the due operations of county governments, as contemplated under the Constitution, and so was a matter requiring the Senate’s legislative contribution.

Consequently, the Court further advised the Speaker of the National Assembly was under a duty to comply with the terms of Articles 110(3), 112, and 113 of the Constitution and should have co-operated with the speaker of the Senate, as necessary, to engage the mediation forum for the resolution of the disagreement.

Art. 110(3) states thus; Before either House considers a Bill, the Speakers of the National Assembly and Senate shall jointly resolve any question as to whether it is a Bill concerning counties and, if it is, whether it is a special or an Ordinary Bill. Art.112(1) states that if one House passes an ordinary Bill concerning counties, and the second House (a), rejects the Bill, it shall be referred to a mediation committee appointed under Article 113; or (b) passes the Bill in an amended form, it shall be referred back to the originating House for reconsideration. 112(2), If, after the originating House has reconsidered a Bill referred back to it under clause (1)(b), that House— (a) passes the Bill as amended, the Speaker of that House shall refer the Bill to the President within seven days for assent, or (b) rejects the Bill as amended, the Bill shall be referred to a mediation committee under Article 113.

The Supreme Court therefore reaffirmed the inevitable role of the Senate in the Division of Revenue Bill, without which, the Bill would be voided.

In its oversight over national revenue allocated to the county governments role, the Senate draws its mandate, among others, via Art. 181 of the Constitution of Kenya 2010 on removing a county governor, and more specifically, Sec 33 of the County Governments Bill No. 17 of 2012. A county governor may be removed from office for, inter alia, abuse of office or gross misconduct. Sec 33 (2) of the County Governments Bill – If a motion under subsection (1) is supported by at least two-thirds of all the members of the county assembly— (a) the speaker of the county assembly shall inform the Speaker of the Senate of that resolution within two days, (7) If a majority of all the members of the Senate vote to uphold any impeachment charge, the governor shall cease to hold office.

Though not as effective as we would have wanted it to, the Senate has executed this function over the years since the promulgation of the Constitution of Kenya 2010. Under the 12th Parliament, five Governors faced the impeachment process in Senate: Mike Sonko of Nairobi City County, Ferdinand Waititu of Kiambu County, and Mohamed Abdi Mohamud of Wajir not being so lucky. Granton Samboja of Taita Taveta and Anne Waiguru of Kirinyaga survived. As recent as January 2023, Meru Governor Kawira Mwangaza survived Impeachment by the Senate. The Senate Special Committee, led by Kakamega Senator Boni Khalwale, said that none of the allegations raised against Governor Mwangaza by Meru County Assembly Members could be substantiated or proved by her accusers.

Be that as it may, the Senate has exhibited humongous weaknesses that cumulated, which could lead to questions about the value of its very existence. This has been manifest especially and unfortunately, in its key mandate area regarding Devolution, of budget appropriation to the counties. Since its inception, the Senate has failed to stamp its authority on this key mandate, especially regarding timely disbursements of funds by the national government to the devolved units and, secondly, as regards the determination of the allocation of national revenue among counties.

For instance, the Council of Governors (CoG) has threatened to shut down operations across all 47 counties, citing an unprecedented four-month delay in funding from the national government. The Council’s chair, Governor for Kirinyaga, Anne Waiguru, said in a recent press brief that the National Treasury owes counties Sh94.35 billion despite several reminders. Despite this being within its exclusive mandate, the Senate has not pronounced itself assertively on this impasse.

As regards the allocation of national revenue, the Senate again shot itself in the foot this year when it ganged up against its own committee recommendations to deny counties additional revenue in the Division of Revenue Bill. According to Edwin Sifuna, the Senator for Nairobi City County, the Chamber’s Committee on Finance and Budget had recommended, in an amendment, an additional Sh15 billion to the National Assembly’s proposed Sh385 billion to make it Sh407 billion for the Counties. Senators voted against this amendment on the floor. Mark you, the Sh407 billion had been a proposal of the Commission on Revenue Allocation (CRA), a constitutional commission under Article 215 whose single role is to guide the Senate on the objective criteria for the allocation of resources. The National Assembly had proposed an additional Sh360 billion more for the National Government on top of what was allocated last financial year, which the Senate passed.

Again, on late disbursement of funds to the counties, the Senate has just passed, on 4th April, Equalization Fund (Appropriations) Bill, 2023 authorizing 34 counties to spend the Sh13.89 billion, hardly two months to the close of the financial year 2022/2023. The Bill details how the 34 counties will share the funds to develop areas identified as marginalised within the devolved units. The funds were meant for the 14 least developed counties, especially those in the arid and semi-arid regions. However, the Commission on Revenue Allocation changed the formula and expanded the number of beneficiary counties to 34. The devolved units have until June 30 to spend the cash.

Some counties have endured wanton mismanagement under incompetent Governors for the past decade without any intervention, irrespective of the Senate’s express mandate to devolved oversight units. Many retired Governors are now mired in corruption cases in courts of law involving the misappropriation of billions of county funds, yet the Senate did not as much as raise a finger against them during their reigns.

Be that as it may, the Senate is key for Devolution by how it is woven into the Constitution. The failures, as illustrated above and beyond, are, in most cases, personality related. One, the Senate, as a Chamber of Parliament, has not been lucky with leadership. The Senate Speakers we’ve had so far have been pliant and have never exhibited strong leadership credentials. They have mostly been beholden to the governments of the day, for which they sacrifice the core mandate of the Chamber and, consequently, Devolution.

Senators, being politicians, have cared more about self-interest. This has always meant that a majority aligns with the national government to the detriment of devolved units. Now with retired governors heading to Senate, it is about to get even worse, especially regarding conflict of interest in the Senate’s oversight role over counties.

However, as regards the legal framework for Devolution, the Senate is key, and yes, scraping the Senate without reengineering the architecture of the Constitution would deal a devastating blow to Devolution.