Senate should enjoy more powers in legislative process

What you need to know:

  • This year’s Division of Revenue Bill was published in the Assembly in March

Like that of last year, the 2015 Division of Revenue Bill has had to be settled through the mediation process that the Constitution requires when the two Houses – the National Assembly and the Senate – are unable to agree on the contents of the bill.

This year’s bill was published in the Assembly in March and referred to the Budget and Appropriations Committee of that House. The committee deliberated on the bill and eventually tabled a report on the bill in the Assembly, which was adopted by the Assembly without amendment.

When, in accordance with the provisions of the Constitution, the bill was referred to the Senate for concurrence, the Senate proposed three amendments, the first an additional allocation to Level Five hospitals amounting to Sh1.5 billion; the second a provision of new allocations towards county emergency funds amounting to Sh4.4 billion; and, lastly, an increase in the allocations towards emoluments as made by the Salaries and Remuneration Commission to county executives and county assemblies by Sh1.7 billion. The Senate proposals amounted to Sh7.7 billion.

The justifications that the Senate provided for the amendments of the bill were that currently only the national government has a financial capacity to respond to emergencies, even though these can occur in situations where a county government is better placed to respond. In the view of the Senate, it would be desirable for both levels of government to be able to respond.

The politics of the Sh1.5 billion that it proposed for allocation to Level Five hospitals is that Senate perceives that the national government is pursuing a policy of deliberately under-resourcing these hospitals, to undermine their performance and ultimately to create a basis for a suggestion that health service, currently a devolved function, should revert to the national government.

The bill proposing these amendments was rejected by the Assembly, necessitating a mediation process, where each House appointed three mediators. Following that process, the two Houses increased, by Sh3.5 billion, the budget for the devolved governments, money that the Assembly was trying to find by slashing the budgets of national level institutions, especially those it does not like.

The actions of the two Houses in relation to the bill are informative of developments of the country’s parliamentary practices under a new Constitution which both Houses are only still struggling to understand.

In 2013, the Assembly processed the first-ever Division of Revenue Bill on its own, and the President signed the bill into law, without involving the Senate, necessitating an advisory opinion before the Supreme Court. The court resolved that the Senate must be involved in the passage of the bill and not just in the sharing of revenue among counties.

The fact that the Assembly has referred the two subsequent division bills to the Senate represents progress and growing stability in the relationship between the two Houses.

However, still the Assembly does not accept as correct the constitutional interpretation in the advisory opinion which imposed a requirement that it must seek the concurrence of the Senate in the passage of the bill. Therefore, the Assembly merely tolerates, rather than respects, the Senate as a partner in the enactment of division of revenue legislation.

The processing of the bill in the Assembly without amendment reflects a view that has taken root in the Assembly that the Jubilee members, who form the majority, are under some kind of collective responsibility to protect the interests of the government in the House.

Kenya chose a presidential system of government, a feature of which gives the President a fixed term in office and excludes ministers, with whom the president forms government, from membership of the legislature.

NO VULNERABILITY

Since, unlike in a parliamentary system, the government is not represented in the legislature, whatever happens in the House does not immediately render the government vulnerable to the possibility of loss of power.

At the moment, members of the Assembly incorrectly see themselves as bound by a government line, which explains why they so easily concurred with the Treasury’s proposals on the budget.

A misunderstanding of their role risks reducing the Assembly into the position of a rubber stamp for the presidency, a situation that the country’s parliament once lived under.

The role of the Senate in the processing of the 2015 bill, again, underscores the critical importance of that House if devolution is to work.

By successfully insisting on an increased allocation to Level Five hospitals, which came to Sh3.6 billion, something the Assembly had resisted, the Senate has demonstrated its inherent role as the protector of devolution.

Another issue that provides a steep learning curve is the practice of bipartisanship in Parliament.

With two dominant coalitions and a recent history of stridently oppositional politics, it is increasingly difficult to find common ground.

Members of the Senate, with a significantly inferior role in the legislative process, and having to contend with a government whose support for devolution is often doubted, have learnt to stick together across party lines.

It is reported that an impasse in the mediation committee was avoided only because one of the three members of the Assembly voted with the Senators, who all voted together, thus breaking the tie. This reflects the fact that irrespective of political party affiliation, Senators are bound together by the interests that they must protect.

Even as the two chambers learn to live together, a reform agenda is indicated. Giving the Senate more power in the legislative process would be good not only in addressing the imbalance between the two Houses but also for the protection of devolution.