Senators accuse Lusaka of disobeying House protocol

The Senate is on the spot for violating its own Standing Orders and the constitution when it sat on April 21, 2020, to take a vote on three key Bills.
The Sunday Nation has since established that a group of Senators not happy with the manner in which business was conducted in the House but who cannot be named for fear of reprimand from the Speaker, are planning to sponsor a Kenyan to file a petition in court to challenge the passage of the three bills.
The Bills at the centre of the dispute include the two County Governments (Amendment) Bills of 2017, and the Division of Revenue Bill 2020, which President Uhuru Kenyatta has since been signed into law.
The Senators claim that the rules developed by Senate Speaker Ken Lusaka to guide the business of the House during this Covid-19 pandemic crisis period violated Articles 122 and 123 of the Constitution.
They argue that the rules gave Senate leader of majority Kipchumba Murkomen and deputy leader of minority Cleophas Malala (Kakamega) undue advantage to vote for their colleagues as the House was adopting the three bills.
“Murkomen and Malala voted for Senators who did not even step within parliament precincts. When did the two become “each Senator shall vote” as proclaimed by the constitution? What if it emerges that the Senators they voted for may have actually admitted in the hospital?” a Senator, who did not want to go on record, wondered.
The Covid-19 pandemic has seen the number of Senators and MPs allowed in their respective debating chambers limited as a caution to check its spread after the country adopted the social-distancing protocol.
Interestingly, all the 47 heads of county delegations (the elected Senators) required to take a vote on a matter that concerns counties including the three Bills, voted.
On a normal day, it has been difficult to register such votes as many elected Senators do not attend House proceedings. They have also failed to delegate to their county delegations.
Mr Lusaka’s guidelines provide that a Senator shall be considered and reckoned to have attended and to be present during the Covid-19 crisis period if the Senator has come to the precincts of parliament for purposes of the sitting or is at the Senator's office within the precincts of parliament.
The rules further indicate that the Senator shall be present if he or she has been recorded and certified by the Clerk to be present.
According to Mr Lusaka, a Senator decreed to be present shall communicate his or her vote in writing to the Senate majority leader or the minority leader or to a Senator designated for that purpose (vote), may communicate using email or text message.
“Whenever a question is put on a matter concerning counties, the majority and the minority or Senator designated for that purpose, shall when called upon to do so by the Speaker, verbally state the vote of their respective side,” the guidelines state.
The Senators opposed to these rules argue that while voting in parliament is physical, this provision may have seen some register their presence and immediately disappear from parliament but still, end up being voted for as decreed by the rules.
They also claim that Speaker Lusaka may have applied the Senate’s Standing Order No. 1 beyond its limit.
Standing Orders are a set of rules that guide how business is to be conducted in parliament.
The National Assembly and Senate have different sets of Standing Orders that guide their proceedings.
The Senate Standing Order No 1 provides that in all cases where matters are not expressly provided for in the Standing Orders, any procedural question shall be decided by the Speaker and that such decisions shall be based on the constitution and the laws.
Article 123 (4) of the constitution provides that each county delegation shall have one vote to be cast on behalf of the county by the head of the county delegation.
Contrary to the happenings in the Senate on the material day, there is no provision empowering the leader of majority or minority to vote for their colleagues.
However, the Article notes that in the absence of the head of the county delegation, another member of the delegation designated by the head of the delegation shall vote.
The constitution further states that the person who votes on behalf of a delegation shall determine whether or not to vote in support of, or against the matter after consulting the other members of the delegation.
While the Senate’s Standing Order 78 is a copy-paste of this Article (123), the voting in the Senate on the material may have violated the constitutional.
At the time, the House voted on the report of the mediation committee on the County Governments (Amendment) Bill by Mr Murkomen, which seeks to have governors appoint their deputies whenever a vacancy arises, was being voted for.
The Senators also voted to endorse the mediation report of the County Government (Amendment) Bill by Makueni Senator Mutula Kilonzo junior on the suspension of a county government.
They also voted to pass the Division of Revenue Bill 2020 but with amendments.
In the National Assembly that is also sitting during this Covid-19 crisis period Speaker Justin Muturi has played safe.
Speaker Muturi has designated the extension of the debating chamber to include the member’s lounge, lobbies, the cafeteria area and erected tents.
As such, MPs in these designated areas are accorded the requisite privileges to follow and contribute to debate in the chamber as well as vote now that it cannot hold the 349 MPs because of the social-distancing protocol.
Such privileges included using the parliamentary orderlies to escort members in the designated areas to the dispatch box of the debating chamber whenever they be selected by Speaker Muturi to contribute on debates and back after concluding their contributions.
Whenever a vote would be taken, Speaker Muturi appointed members of the Speaker’s panel- Patrick Mariru (Laikipia West) and Chris Omulele (Luanda) to move physically around collecting votes of the MPs outside the debating chamber but within the designated areas.
Leader of majority in the National Assembly Aden Duale hailed Mr Muturi noting that the decisions of parliament must always abide by the constitution.
“Ours was well planned with strict adherence to the House Rules, the law and the constitution. No one can challenge the constitutionality of the decisions the National Assembly has taken during this crisis period,” Mr Duale, who is also the Garissa Township MP, said.
“I want to urge my colleagues in the Senate not to use the crisis period to bend the law and the constitution to satisfy the interests of a few selfish individuals. By doing so, they will not be serving the interests of the counties but selfish interests,” he added.