The year 2015 will be a defining period for the Senate. Quite apart from its stately claim to be the upper House, it is now faced with existential threat, premised on fast erosion of its relevance as an institution.
As Senator for Mandera County, I have no elusions that the lofty name associated with this august House to which my fellow county residents elected me is just that — a name!
The constitutional mandate of the senator includes representation, legislation and oversight, all implied in Articles 94 and 96.
More precisely, the Senate exists to represent the interest of counties, in addition to other specific roles relating to counties such as allocation of revenue, suspension of counties, boundaries, impeachment and so on. Except in the suspension of counties, most other roles are shared with the National Assembly, or the County Assemblies.
The framers of the Constitution deliberately constricted its powers, or the exercise of the same, in an obvious attempt to give more clout to National Assembly and the County Assemblies.
It does not vet appointment of senior public officers at either level of government, nor can it censure any of them. The Senate also lacks overriding powers in legislative matters relating to counties, even in matters relating to revenue allocation among counties.
But the existential threat to the senate lies not in its constitutional mandate but in its operational rejection by other institutions, namely the Executive, National Assembly and the County Governments.
Two years after it was constituted, the Senate is yet to firmly find its foot on the ground. The media views it as irrelevant. The courts are hardly conscious of its presence and just can’t place it somewhere. The counsel for the Council of Governors opined that senate is a joke, and a bad one!
The county governments, for whom the Senate exists primarily, are its key opponents. In a myriad litigations, its Council of Governors have challenged literary every mandate of the Senate and are determined to consign it to oblivion.
Its impeachment mandate of a governor has been challenged by the Council in courts and is likely to succeed. The Senate’s power to summon county bosses has equally been challenged by the Council, as has its powers to exercise oversight over county government expenditure.
The Council nipped in the bud the only piece of original legislation on counties from the Senate, relating to county development boards.
The Presidency has not quite expressed any admiration for the Senate, and has attempted to undermine it all too often. Many legislations touching on counties have been assented to the exclusion of the Senate, including the recent passage of the security laws. Revenue allocation to counties is often negotiated with, and determined in consultation with the National Assembly. The latter has displayed open contempt for the Senate in the legislative process, even after advisory opinion by the Supreme Court. They feel they can adequately handle Senate’s role.
The Senators too are hopelessly divided on party lines, contrary to perception that it invariably acts in bipartisanship. The latter may be true in mundane motions which Executive can ignore. But when weighty matters arise, like the Pesa Mashinani referendum by the governors or security laws amendments that limit the Bill of Rights, Senate will not act to pursue its interests in unity.
For Jubilee members, the interests of the Executive reigns supreme at all times. For the minority CORD party colleagues, their pre-occupation is to score political goals.
Can the country do without bicameral parliament? Will devolution be threatened by the absence of a Senate? My take is that no one will miss the Senate. For the Executive and Presidency, Senate has nuisance value.
For the Council of Governors, it wants ornamental value from it, nothing more. Undoubtedly, National Assembly members would deem it a good riddance. The public does not understand its role yet, and will have fewer titles to salute in public rallies. Senate must decide to fight for its space in 2015, or let it die dishonourably.