Senate vows court action over bills

Kenya: President Uhuru Kenyatta and his deputy William Ruto are staring at a governance crisis as the Senate threatens to move to the Supreme Court and have 67 laws the Head of State approved declared unconstitutional.

And as a pointer that the conflict between the National Assembly and Senate has reached crisis levels, a Jubilee-allied senator claimed it had the potential to "kill a government". The senators yesterday unanimously backed a resolution to hire lawyers to go to the highest court in the country – for the second time in 18 months - to contest the legality of laws they say President Kenyatta assented to without its input.

The resolution would be put to the vote today, but barring an effective intervention by the President and his deputy, the exercise would be a mere formality.

Senators said they want National Assembly Speaker Justin Muturi and Attorney General Githu Muigai shown the door for alleged gross incompetence and violation of the Constitution and lashed out at the President for breaking his oath of office by failing to "defend, protect and uphold the Constitution".

The Senate's move would open the door for a political fallout within the Jubilee administration which has a majority in both Houses of Parliament. The last time the two Houses fought, Uhuru had to call Muturi and Senate Speaker Ekwe Ethuro to State House to declare a truce.

If the Senate goes through with its threat, it could cripple the collection of taxes, the procurement processes, and operation of State organs, because some of the laws in question deal with these matters. Some of the bills whose legality would be contested include the Value Added Tax Act, the Finance Act, the Insurance Act, the Election Financing Act, and even the Marriage Act.

The relations between the two Houses hit rock bottom after National Assembly Minority Leader Francis Nyenze said the Senate ought to be abolished.

"There are very many ways to kill a government. What is happening now is sabotage from within and it’s unfortunate the individuals involved are Jubilee operatives," Senator Mutahi Kagwe (Nyeri) said.

The Judiciary would now have to direct the two warring House Speakers on how to get the two chambers to work together in crafting laws touching on counties and devolution.

National Assembly Deputy Speaker Joyce Laboso, who is in charge as Muturi is away in Israel, regretted that "from last week, the Senate has been waging a war of words against the National Assembly Speaker," highlighting the conflict had reached crisis levels.

"Let the Judiciary, the arm of Government vested with the mandate of interpreting laws, make a binding determination on this matter to put an end to the continued hostility attendant in the two Houses of the Parliament," Dr Laboso said.

The Judiciary must also draw the boundaries regarding court orders that can be issued against the Legislature and determine how far the Senate can go in its dealings with governors.

Senate Majority Leader Kindiki Kithure (Tharaka Nithi) charged: "To tell me that a Speaker of any of the Houses can abrogate themselves the powers to decide which bills concern counties, which are money bills and which ones are not is to tell me that some people didn't read this Constitution properly."

But he sought to downplay the significance of the court action, saying it is not targeting to declare President Kenyatta and other leaders unfit to hold public office.

"By the court declaring the contested laws unconstitutional does not mean the President is at fault. It will be addressing the inconsistencies noticed and giving a clear position," added the Tharaka/Nithi Senator.

Senator Kiraitu Murungi (Meru) revved up the standoff decibels by urging the House to move to the High Court to check whether public officers holding public office can be removed.

Murungi took with Muturi over sentiments that the Supreme Court ruling on the Division of Revenue Bill 2013 was merely an opinion, which is not binding and can be obeyed or ignored.

Spineless house

"It is a big shame that somebody can choose to breach the law, which he swore to defend and uphold. We must move to court and deal with this matter expeditiously to prevent further violation of the Constitution," said Senator James Orengo (Siaya).

Senator Wilfred Machage (Migori) said: "The President has breached the law by assenting to bills without the input of the Senate. The AG should resign for failing in his co-mandate to advise the President in accordance with the Constitution."

Senate Minority Leader Moses Wetang'ula (Bungoma) accused Muturi of putting the two Houses against each other.

"If we adopt a policy of hearing nothing and saying nothing, we will go down in history as the most ignominious and spineless House that ever existed," he said.

Senate Deputy Speaker Kembi Gitura (Murang'a) said leaders opposed to devolution who think they can abolish the Senate by rendering it ineffective belong to the past.

Senator Dan Mwazo (Taita Taveta) said: "We have been called names and accused of wasting time and increasing the burden of taxpayers, but we have the experience, capacity and objectivity to undertake our role as prescribed in law."

Senator Mutula Kilonzo Junior (Makueni) said: "We must fight for our space. We must fight back in whatever terms possible."

Yesterday, the Commission for the Implementation of the Constitution (CIC) wrote to Uhuru asking him not to assent to the Mining Bill 2014.

"You should decline to assent to the bill and we recommend that you refer it back to Parliament for both Houses to resolve the issues in accordance with the Constitution," said CIC said in a letter dated November 12 and signed by the chairman, Charles Nyachae.