Why Senate must be involved in enactment of Revenue Bill

By Kindiki Kithure

NAIROBI, KENYA: On Thursday the 6th June 2013, an unacceptable event took place in the National Assembly that is likely to spell doom to the role of the Senate as the watchdog over devolution. The National Assembly unilaterally and quite contemptuously ignored the recommendations of the Senate to upscale the amount allocated to the counties by the national government from the Sh210 billion allocated earlier by the National Assembly to Sh248 billion.

In an unprecedented attack on the institution of the Senate, the National Assembly decided that the Bill in the version recommended by the National Assembly should go directly to the President for assent, essentially making the Senate look like a group of busybodies who had encroached on the terrain of the National Assembly’s law-making powers. If this state of affairs goes unchallenged, it will set a dangerous precedent that can lead to the demise of the system of devolution. The matter at hand raises two fundamental questions, namely:   if the Division of Revenue Bill required the input of the Senate and if so, what does the law say when the two Houses of Parliament — the National Assembly and the Senate — cannot agree on the final version of a Bill.

In answer to the first question, the Senate is properly seized with the jurisdiction over the Division of Revenue Bill for at least three reasons. First, article 96(2) empowers the Senate with the law-making power of Parliament by considering, debating and approving “Bills concerning counties”. If this Bill, which essentially determines how revenue is shared between the national Government and County Governments is not — as the National Assembly wants Kenyans to believe — a “Bill concerning counties”, then it is impossible to imagine what other Bill would fit the definition of a Bill concerning counties.

Second, Article 218 of the Constitution provides that each financial year, the Division of Revenue Bill is one of the two Bills that must be introduced in “Parliament”. “Parliament” is created under article 93 of the Constitution and is described there to include the National Assembly and the Senate.

If the drafters of the Constitution intended to exclude the Senate from handling the Division of Revenue Bill, nothing would have been easier than to say that the Bill shall be introduced to the “National Assembly”, as opposed to “Parliament”.

Thirdly, the Bill did not fly into the Senate: it was referred to it by the National Assembly in accordance to the law and procedures for such referral. Thus, a belated attempt by the National Assembly to change its mind is not justifiable whatsoever. Now that the Bill was properly within the mandate of the Senate and there is a variance of opinion between the two Houses, what is the lawful way to break this stalemate?

Drafters of our Constitution expected situations where the two Houses are unable to agree on the contents of a Bill. In such cases, a mediation committee consisting of equal members of each House is supposed to be established to come up with an acceptable version of the Bill, states Article 112 of the Constitution.

The Committees’ version of the Bill shall then be taken to the respective Houses for ratification. In the event of failure of ratification by each of the Houses, the Bill is defeated. In the circumstances, the action taken by the National Assembly is unconstitutional.

Therefore, the President is respectfully requested not to assent to an unconstitutionally enacted law. Meanwhile, it is important to reiterate several things.

The first is that Senators are not interested in the unhelpful debate about who between Members of the National Assembly and Senators are superior. Such debate is incompatible with the humility and dignity required of public office holders in the chapter on Leadership and Integrity of the Constitution of our country which we are under oath to respect, protect and defend.

Second, we in the Senate consider the National Assembly (as well County Assemblies) as important organs of our legislature and we shall continue to respect them as      colleagues and partners in leadership.

Thirdly, we are aware there are a number of structural defects and illogical provisions which were quietly inserted in the Constitution and remained unnoticed until the finalisation of the Constitution-making process. Such provisions significantly undermine the effectiveness of the Senate.

Nevertheless, the Senate is prepared to operate within the present legal framework properly interpreted to deliver services to the people. If after several years of implementation Kenyans feel that it would be critical  to empower the Senate a little more for better protection  of Kenya’s new system of devolved governance, then any Constitutional amendments belong to such a future time but not at the moment.

Finally, as Senators, we have decided not to allow personal interest or myopic sense of self-importance cloud our sacred duty to protect devolution which we believe holds the key to a prosperous and united Kenya where all parts of the country enjoy equitable development.