Newton Arori There are no more trophies for saying that our Parliament has failed. Pointers to this fact are numerous. So let us sum it up by an observation by Walter Khobe in his eye-opening piece “Reflections on Five Years of Transformative Constitutionalism in Kenya: Chimerical or Viable?” He says: “The National Assembly has emerged as the biggest threat to the transformative agenda of the Constitution.” Several views have been given regarding our failed Parliament, particularly the National Assembly. One is that MPs are ill-informed, inept and generally low-calibre. While this is not entirely untrue, it is not the subject of this article. Instead, we shall focus on one often ignored aspect of our Parliament – its structure – and explore the ways in which a change may lead to better governance. It is perhaps appropriate to begin with an understanding of our parliamentary structure. Senior counsel Ahmednasir Abdullahi once noted that “real power in all its forms and manifestations lies with the National Assembly”. Despite the Constitution of Kenya 2010 creating a bicameral Parliament in form, what we have in substance is a unicameral Parliament. The National Assembly overwhelmingly outbalances the Senate in terms of power. The latter cannot veto decisions of the former either. Its mandate is restricted to the affairs of counties. How has the National Assembly, arguably the most powerful institution, fared? The House is dominated by party politics, and frequently acts as little more than a cheerleader for government-sponsored legislation, taking stands that are disproportionately out of step with the citizens. This is contrary to its constitutional role of being a representative of the electorate. This problem is neither new nor unique, since parliaments are, by their very nature, political bodies. It is the same form of predicament that led Professor L F Crisp in his book “Australian National Government” (1971) to lament that: “Among British parliaments around the world, the Australian has perhaps suffered a more substantial eclipse than most… Today great and far reaching decisions for the welfare and security of every day citizens are taken and applied every day by the Executive…the initiative and power of decisions are with government…most decisions of consequence are effectively made elsewhere-in the prime ministers suite, or in cabinet…” He was referring to the state in which the executive, because of party loyalty of its members of Parliament, virtually always manages to pass its bills into law. We have a similar challenge in Kenya today. A possible solution would be to devise an “upper house” that is not as likely to be under the control of the Executive. This means keeping this legislative body as much as possible away from party politics. This house must then have a say before any legislation can be passed. An example is the UK’s unelected House of Lords, whose members are drawn from diverse professional backgrounds. This provides a national forum of debate, free from the constraints of party discipline. Oversight and legislative roles Quite aside from the intricacies of party politics and executive influence, our National Assembly is guilty of abusing its legislative power and oversight role. Regarding this, Walter Khobe has noted: “…the institution only looks at the interests of its members…it uses its budget making powers to punish those institutions it deems to stand on its way or that hold it accountable…the same approach is evident in its oversight role that is deployed to arm twist other state organs to comply with the demands of the Assembly.” Interestingly, when seeking to meet their own selfish ends, our MPs, regardless of their party affiliations, become remarkably united. The latest demonstration of this is the passing of the parliamentary powers and privileges bill that imposes unreasonable fines on journalists for an offence it calls “defamation of parliament”. Thankfully, the provisions were late removed. How can the creation of a bicameral parliament remedy this situation? Bicameralism addresses the issue raised in Lord Acton’s much quoted aphorism: “Power corrupts and absolute power corrupts absolutely.” It ensures that legislative power is dispersed, rather than concentrated in a single house. Bicameral parliaments, by requiring issues to be debated further and again before they can be approved, can provide second thoughts and some review. On the legislative function, Professor Scott Prasser in “Virtues of Upper Houses” has argued that the design of parliament as either unicameral or bicameral has influence over the quality of legislation produced. He observes: “Often governments, after bringing legislation to the upper house, have to make numerous amendments…this has made for better outcomes in terms of good legislation and good policy. In Queensland, legislation rushed through the state’s government dominated unicameral legislature has often had to be reintroduced with numerous amendments to make up for its poor initial drafting and lack of consultation with key interest groups.” Similarly, John Stuart Mill warned against a unicameral parliament when he said: “The consideration which tells most, in my judgment, in favour of two chambers … is the evil effect produced upon the mind of any holder of power, whether an individual or an assembly, by the consciousness of having only themselves to consult. It is important that no set of persons should, in great affairs, be able, even temporarily, to make their sic volo prevail without asking anyone else for consent. A majority in a single assembly, when it has assumed a permanent character – when composed of the same persons habitually acting together, and always assured of victory in their own House – easily becomes despotic and overweening, if released from the necessity of considering whether its acts will be concurred in by another constituted authority. The same reason, which induced the Romans to have two consuls, makes it desirable that there should be two Chambers: that neither of them may be exposed to the corrupting influence of undivided power, even for the space of a single year.” Given that almost all our legislative power is concentrated in one house (the National Assembly), it should not come as a surprise that Parliament has failed to deliver according to its constitutional mandate namely, representative, legislative and oversight. Some will be quick to point out that there are other means for keeping parliament in check, such as independent offices and an independent Judiciary. That is all very well in theory, but it is a different altogether in practice. Primary safeguards “All non-political safeguards depend ultimately on the political process for their establishment, maintenance and defence. Attempts to dismantle them are likely to be successful in the absence of political noise and obstruction generated in the political class. That noise and obstruction needs independent political institutions to be effective. Therefore political safeguards, such as bicameralism, are the primary safeguards. This is a variation of the theme that power can only be controlled by power” [S. Gordon, “Controlling the State” Harvard University Press (1999)2]. There is statistical evidence that bicameral legislatures tend to have policies that are more stable through time and more broadly supported on average than those supported by otherwise similar unicameral legislatures. Roger Congleton in “On The merits of Bicameral Legislatures: Policy Stability Within Partisan Polities”, for example, in a case study of Sweden and Denmark concluded that “in the circumstances simulated, bicameral legislatures adopted policies that were more faithful to the long run interests of the median voter than those adopted by unicameral legislatures.” Balancing interests It is acknowledged that parliaments do not operate in a vacuum; their functioning and effectiveness is shaped very much by the political context of which they are part. As such, there is no single straightforward fix to making a parliament more effective. It is, however, clear that adopting a bicameral parliament would be a step in the right direction. Granted, measures such as establishing an unelected upper house may not be exactly popular – some may feel that it is undemocratic to let unelected persons veto the decisions of elected representatives. It is therefore a delicate balancing act. This article should only serve as the start of a longer and more detailed debate about how it could be done.