The question of the Senate has become topical again.

First the Thirdway Alliance – in its people’s initiative (see last week) — has proposed greatly strengthening the Senate.

Second, MP Cecily Mbarire (“nominated” as people like to say) wrote an article in the Star this week apparently designed to show how unimportant the Senate is. And, of course, proposals to abolish the Senate completely are still made.

TOP DOG?

Incidentally, the word “Senate” comes from the Latin word senātus for “old man” – which implies the nature of the ancient Roman Senate. And the US Senate members do indeed have a higher minimum age (30) than House of Representatives members (25). The word “senior” – and, of course, “senile” – come from the same root.

Mbarire’s article was headed “National Assembly is the Upper House” – probably not her choice.

This reminds me of the Parliamentary Select Committee as it tried to mutilate the almost final constitution draft in 2010. It proposed to change one clause from saying that Parliament would consist of the Senate and National Assembly to “shall consist of the National Assembly and a Lower House with limited legislative role to be known as the Senate”.

This undignified wrangling over status reminds me of a taunt among English primary school children, “I’m the king of the castle and you’re the dirty rascal” – which seems to reflect a particularly crude classist approach. But why would adults care about this?

The Committee of Experts, incidentally, sensibly did not adopt this language, but, ever careful not to expose the Constitution to political opposition if they could, did mention the Senate after the National Assembly.

It is hard to see why we cannot accept the idea of an equal partnership between the Houses of Parliament.

SENATE’S LIMITED ROLE

It is true that the Kenyan Senate has far fewer powers than most second chambers in parliaments.

The very first constitution draft (CKRC in 2002) gave more equal powers. Some appointments had to be approved by one house and some by the other. Now almost all are approved by the National Assembly alone.

The powers of the Senate over law were gradually reduced. Originally, the Senate was to have a role in the consideration of all laws. By early 2010, the Committee of Experts’ second draft said that the Senate was fully involved in-laws affecting devolution (county government) but for other proposed laws just got a chance to express an opinion. But the final Constitution gives the Senate absolutely no power if a law does not touch on counties, their powers or the system of county government.

IDEA OF A REVISING CHAMBER

In truth, the ideas lying behind having second chambers of lawmaking institutions vary a lot.

In the UK, the origin was the aristocracy who retained some powers to restrain the elected representatives of the more ordinary people, even as the latter became increasingly powerful over the centuries.

In the US, similarly, the Senate (older and assumed wiser) was supposed to restrain the more hotheaded representatives of the people.

Also in the US and other countries, the second chamber gives an equal voice (or a more equal voice) to the various lower levels of government – states or provinces. The first Committee of Experts draft would have had senators elected by the county assemblies. The CKRC 2002 draft would have involved the Chairs of the main lower level of government. Now Senators have no necessary connection with county governments – indeed they are often rather hostile to them, perhaps jealous of governors.

Even without these peculiarities of aristocracies or federal systems, the possibility of another house saying: “Hold on a minute. Are you sure you’ve got this right?” may be useful.

The House of Lords in the UK cannot stop a new law for ever, but it can delay it. The Canadian Senate could stop a Bill but rarely does so, but it does enable a second look at a proposed law. The US Senate has equal law making powers with the House of Representatives. The South African Council of Provinces has an equal role if a law affects provinces; it can cause a rethink, but has no veto, in other cases.

The Kenyan Senate’s lawmaking powers were reduced so much that if they were reduced any more they would disappear.

The 1963 Constitution had a House of Representatives and Senate – they made up the National Assembly. When the Senate was abolished soon after, the MPs said, “We are the National Assembly now”. But now if one house is “national” what is the other?

THIRDWAY PROPOSALS

The Punguza Mizigo proposals by Thirdway would make the Senate much more powerful. First, the Bill says, “the Senate shall be the Upper House with veto power “. That insistence on status again!

But if we unpack the details, there are some problems. First, the idea of “veto power” is too simple. We have just seen how many different ways — in in different countries — there are for senates to restrain the other house. “Veto” suggests completely throwing out a decision. Do we necessarily need the Senate to have that drastic power? And should it be the same for every type of decision?

Then Thirdway says the Senate may veto any “decision” of the National Assembly. What decisions does the National Assembly take? It passes laws. It approves appointments. It approves or rejects regulations made under the authority of a law — these may be very complex, with many provisions, often more than in a regular Act of Parliament.

It may pass a resolution – calling on the government to do something, or approving or rejecting something (declaring a state of emergency, using the military in peacetime, ratifying a treaty, approving the Budget Policy Statement, approving the spending of money before the annual budget is passed etc.).

Thirdway says that if the Senate decides that any decision “contravenes this Constitution or goes against public interest” it must veto it. No debate. No “Let’s discuss it”. This is surely a recipe for confrontation, deadlock and possibly something more serious.

Even if one thinks that giving more power to the Senate might be a good idea, this does not mean that every possible way of giving it more power is an equally good idea.

TURF WARS

Unfortunately, the National Assembly has found it hard to work well with the Senate. The courts have had to insist on more than one occasion that certain matters do concern county government and laws must go to the Senate. Particularly the Supreme Court said that the law that divides revenue raised nationally between the national and county governments is “an instrument essential to the due operations of county governments” and must have Senate involvement.

The former Chief Justice – in the same case – said, “Both Houses of Parliament represent the same people…. In the equitable distribution of resources owned by the people of Kenya, the principles of checks and balances, mediation, dialogue, collaboration, consultation, and interdependence are not necessarily conflictual, granted that they are all invoked in the interests of the people of Kenya. Since judicial authority is also derived from the people of Kenya, the constitutional duty of the Supreme Court [here] is to reinforce these principles, so as to ensure that the rights and interests (economic, social, political, and cultural) of the people of Kenya trump once and for all, the narrative of which of the two Houses is superior”.

THE ARGUMENT FOR NO REFORM

In 2010, the Kenyan state and its people moved into a new house. We are still settling in and learning how it works. The residents (the people and the institutions of government) are beginning to understand how they must adjust to it, and the courts play a major role in this.

If we change our house again, and into one designed in a hurry, and by a lot of rather unskilled architects, but the same self-seeking people still live in it, shall we really be better off?

By Jill Cottrell Ghai, Director, Katiba Institute

This article was first published by the Star newspaper on 4th August 2019