Amend law to create a strong Senate

By Emeka-Mayaka Gekara

It is utterly ironical that Ford Kenya leader Moses Wetang’ula is a Senator – so, too, for Murang’a’s Irungu Kang’ata – and that William Ruto is a deputy president in a government that stands accused of frustrating devolution.

While Ruto made a solid case for devolution during negotiations for the 2010 constitution—which he would later ideologically oppose— Wetangula worked himself into a fit over the proposal to establish the Senate, which he said was a “waste of taxpayer’s money.” The two were members of the Parliamentary Select Committee that negotiated the current Constitution while Kang’ata in 2013 launched an aggressive campaign for abolition of the Senate while he was a member of the National Assembly. He is now a noisy member of the same Senate.

“If the Senate comes, I personally do not want its membership to be no more than 40,” argued Wetangula who went on to seek election in 2013.”

Another MP, Jeremiah Kioni of Ndaragua, even suggested that the roles assigned to the Senate under the 2010 Constitution could be undertaken by a committee of Parliament.

During the talks, Ruto argued also for the establishment of Senate. He was of the view that the institution would be a strong check on presidents who are often keen to retain resources at the centre and frustrate devolution.

“Members have asked here; what is going to be the purpose of the Senate or the devolved units?” Ruto posed during their deliberations in Naivasha. “The tendency of a President like the one we have to centralise resources and government activity is very high and it is very necessary for us to adopt a devolved system that makes it mandatory, so that it is not the discretion of anybody.”

The Senate, Ruto argued, would give a sense of “equitability” in representation.

In a dramatic reversal of roles, the government in which Ruto participates is accused of seeking to centralise the exercise of power and distribution of resources, and which perceives decentralisation of national wealth as an act of benevolence by the Presidency. The UhuRuto administration last year cut county budgets as Treasury sought to plug a Sh600 billion financial deposit.

The Senate is designated as a protector of devolution and prefect of county governments. But Narc Kenya leader Martha Karua saw the House as a duplicate of the National Assembly and former Garsen MP Danson Mungatana, like Kioni, proposed creation of a special committee of Parliament on devolution.

The consequence is that the Naivasha negotiations whittled down the powerful Senate that had been suggested by the Committee of Experts (CoE), which wrote the Constitution.

Although there has been significant progress in implementing devolution in the past six years, as well increased consciousness about the mandate of Senate, the effects of the watering down of its intended powers and role continue to reverberate.

The standing accusation today against Senate is that it is “too weak to provide requisite oversight for devolution.” Members of Parliament certainly hold this view. Governors too feel that the responsibility of oversight of the sub-nationals falls under county assemblies and see the Senate as an irrelevant irritant. Moreover, it is not as powerful and assertive as many had perceived it. This partly explains the decision by some of the senators to flock back to counties as governors or seek seats in the National Assembly.

Lawyer Nzamba Kitonga, SC, who chaired the committee of experts blames MPs in the 10^th Parliament for deliberately weakening the Senate.

The experts had proposed a Senate with a supervisory role over the National Assembly, one involved with both national and county legislation, and which was to be the trial chamber for impeaching a President. Its principal role would be to provide an institution through which counties would share and participate in the formulation and enactment of national legislation and protect the interests of the devolved governments. But its role was subsequently limited to legislating only on devolution.

Ideally, Senate is the upper house – to vet presidential appointees, oversight the lower House and approve Bills passed by the National Assembly. But the Parliamentary Service Commission (PSC) crafted a peculiar structure that left Senate as the inferior House, with limited legislative powers, an arrangement Kitonga describes as a “constitutional absurdity. Although this absurdity was partly corrected by the CoE, it was not enough. While it isn’t the lower House, it is also not the upper one.

Scrap it altogether

Calls to scrap Senate began soon after the 2013 elections, and they have persisted. Former Pokot governor Simon Kachapin feels that though critical, the current Senate is a threat to devolution.  

“The Senate is supposed to make laws that empower counties. But we have a weak, bitter and desperate Senate. The Constitution is vague on oversight. We have a dangerous Senate,” he argues.

“Unless we amend the law to have a strong Senate, this one will never be effective. It should be dissolved,” he said in 2014.

But Makueni Governor Kivutha Kibwana is of the opinion that the 2010 Constitution can be reviewed to strengthen Senate and reinforce devolution. He also proposes that the country could consider merging some counties to reduce their number, to increase their economic viability. (