Why Duale Bill is daring attack on Senate and constitution

The National Assembly is currently deliberating on the Parliamentary Service Bill 2017, which if enacted will see current legislators together with their spouses, become entitled to diplomatic passports. The draft law was published by the Assembly Majority Leader Aden Duale, and came up for first reading a week ago.

This is the second time that this Bill has been brought before the National Assembly. The MP for Aldas, Adan Keynan, published a similar Bill in the Assembly in October 2015. However, following a public outcry, the Bill lapsed without further processing.

The manner in which the Bill addresses the issue of diplomatic passports raises an independent concern. The Kenya Citizenship and Immigration Act is the primary legislation governing passports.

A diplomatic passport is just one type of a number of travel documents that the government can issue under the Act. Each type of travel document is issued under specific rules that the Act stipulates. The rules deal with who may be issued with a passport, how it is to be issued and the circumstances under which it can be withdrawn.

The Bill provides that members of the Assembly are entitled to diplomatic passports, thus overriding the Immigration Act. The Bill fails to make detailed provisions regarding how members of the Assembly can apply for such passports and what rules, if any, will govern their holding of the passports.

RESOLVE QUESTION

Other controversies come with the Bill. The Constitution requires that before either House of the Kenyan Parliament considers a draft law, the Speakers of the National Assembly and the Senate must jointly resolve any question as to whether it is a Bill concerning counties and, if it is, whether it is a special or an ordinary Bill.

In July 2015, the Senate enacted the Parliamentary Service (Amendment) Bill, which had been sponsored by Meru Senator Kiraitu Murungi. The Bill deals with the same subject matter as the current one.

While the Senate then forwarded the Bill to the Assembly for its concurrence, the Assembly has not made a decision on the Bill, two years later and has instead commenced consideration of a parallel Bill. The fact that the Assembly has published and is processing its own Bill means that the constitutional resolution by the two Speakers has not taken place.

Inherent in the manner in which Mr Duale is proceeding with this Bill is an assumption that the Assembly can, on its own, enact it. This thinking is problematic.

The Parliamentary Service Commission (PSC), which is equivalent to the Public Service Commission and the Judicial Service Commission, is the secretariat that serves both Houses.

SHARED SERVICE

The PSC is established under the Constitution and, by design, it is a shared service. The Speaker of the Assembly is the chair of the PSC while the Clerk of the Senate is its chief executive and the accounting officer.

The Constitution spreads control of the PSC between the two Houses, creating a balance that ensures neither of them has monopoly over the management of the parliamentary service. When the Senate passed amendments affecting the PSC, it properly recognised that the concurrence of the Assembly was required for those amendments to take place. However, the Assembly is purporting to brush aside the interest of the Senate in the PSC by attempting to enact, on its own, amendments to the PSC which is a shared service.

The Bill contradicts the constitutional hierarchy of the Clerks of the two Houses in the administration of the parliamentary service. It seeks to do so by treating the two Clerks as equal in all respects, with each reporting directly to the PSC and each responsible for the execution of the commission’s decisions.

It also seeks to change the existing arrangements regarding the financial management of the parliamentary service. Currently, as the chief executive, the Clerk of the Senate is the accounting officer of the PSC.

ACCOUNTING OFFICER

The Bill seeks to claw back on this arrangement by creating a separate accounting officer for each of the two Houses of Parliament. If this amendment succeeds, it will become the only constitutional commission whose chief executive is not the accounting officer.

The accounting scheme that the Bill proposes is bizarre because it also provides that there can be other accounting officers besides the Clerks. Since the Bill has taken away the leadership of the Clerk of the Senate over the PSC, it is forced to go into hairsplitting details to find new roles for this office.

This Bill is not an accident. The National Assembly has been seeking ways to dismantle the PSC whose secretariat it does not control. By creating two accounting offices, one for itself and the other for the Senate, it will effectively achieve this ambition, which is, however, contrary to the Constitution.

The timing of the amendment is also not an accident. The electoral climate that has engulfed the country has led to a reduction of civic vigilance over the affairs of Parliament. The Bill is a daring attack on the Senate, made easier by the fact that most senators are currently fighting to be elected as governors, leaving nobody to defend the interests of their House.

PARTY NOMINATIONS

The circumstances are perfect for such a Bill to go through. Further, this Bill is coming after MPs have already faced party nominations, in preparation for the elections. Since, traditionally, every election leads to a large turnover of serving MPs, the nominations have already provided an indication of who might not be in the next Parliament. This Bill is, therefore, a chance for members to make hay while the sun still shines on them.

It is more than likely that if enacted, the Bill will be challenged in court – such a challenge would easily succeed since the existence of parallel Bills is clear evidence that the two Speakers have not resolved whether or not this is a Bill concerning county governments. Even before that, a passage of the Bill will put the president in the difficult position of deciding whether or not to assent to an unconstitutional legislative few days to elections.

Under the old Constitution, Parliament would be dissolved at some point close to elections, minimising the kind of mischief that can happen when a legislature continues in session so close to the next elections.

The conduct of the National Assembly, whose members have openly sworn vengeance against people they blame for unfavourable results in party nominations, raises the question as to whether there should be consideration of a constitutional amendment that dissolves Parliament before party nominations.