BY OKWARO OSCAR PLATO
Is the Senate a Chamber of retirees that failed to emasculate itself from the start? A cursory look the supremacy battle of “superior-inferior “ between the Senate and the National Assembly, one would easily agree with Senior Counsel Ahmednasir Abdullahi who in his weekly column in the Sunday Nation argued that the Senate is not the upper legislative chamber that the Senators would wish it to be in the style of the United States Senate or the House of Lords in the United Kingdom and that realpower lies with the National Assembly.
The roles of the Senate include: The protection of the interestsof counties and their governments; debating and approving Bills concerning counties; determining the allocation of national revenues among counties; and the impeachment of those in command.
It is not proper to assert that the Senate is a single-issue chamber. But, as enshrined in the Constitution, its most important role is the protection of Devolution by safeguarding the interests of counties and their governments. Its second most important role is the consideration of any Bill regarding the counties which may include Bills on the powers and functions of county governments, on the election of members of county assemblies (MCAs) and those affecting the finances of county governments.
When President Uhuru assented to the Division of Revenue Bill 2013 that had been approved by the National Assembly, despite the recommendations of the Senate to increase the allocation of national revenue by Sh48 billion, he was acting within the letter of the Constitution.
Whether he did so in the spirit of the Constitutionalism remains highly contested. It is only the National Assembly that determines the allocation of national revenue between the two levels of government, not the Senate. The Senate determines allocations among the counties.
Mr Abdullahi is right; many of the changes to the Harmonised Draft Constitution before it was presented to Kenyans at the 2010 referendum were made by members of the Tenth Parliament, some of whom are the most vocal about the diminished place of the Senate in the government. When it seemed that it was Raila Odinga who was on his way to State House, members of the Orange Democratic Movement party did everything in their power to ensure that the structure of government that Odinga would have inherited in 2013 was one that he could control.
Therefore, they had no problem in emasculating the Senate.Now that they find themselves in the uncomfortable position of playing second fiddle to the Jubilee Coalition, they are attempting to re-write history by saying, among other outlandish claims, that the Senate is the “superior” of the two chambers of Parliament. Their missteps are coming back to haunt them.
The financial legislation process that the Constitution provide in Kenya is markedly different from that of the United States. In the US, both the House of Representatives and the Senate have a vital role to play at the start of the process when it comes to money Bills. In Kenya, the Senate only steps in when it comes to sharing of the national revenue among counties not the national revenue allocation to counties.
The application for an advisory opinion of the Supreme Court by the members of the Senate has never given them the correct answer they seek. Surprisingly, there is little ambiguity in the provisions regarding the roles of the National Assembly and the Senate when it comes to money Bills and the division of revenue between the two levels of government and among the counties.
It is dawning on the members of the Senate that for the most part they have nothing to do and Abdullahi’s suggestion that the Senate should only meet for a fortnight in a year during the making of the national budget is not without its merits.
If they must meet on an emergency basis, they can do so, but even then it will be for the purpose of considering any Bill that a fects the powers or functions of counties or affects the finances of counties — or the impeachment of the President or Deputy President. Beyond that the Senate is, as one cheeky member of the National Assembly put it, a chamber for retirees.