Commission on Implementation of the Constitution to clear the air on House supremacy battle

By Mwaniki Munuhe

NAIROBI, KENYA: The supremacy battle between the National Assembly and the Senate is unlikely to end any time soon as members of the two houses continue to charge at each other.

Whereas MPs insist the National Assembly is supreme, being the supreme legislative organ, senators insist that a quick check across the world shows that the Senate is always the Upper House of Parliament and “superior to the National Assembly”.

It would appear that drafters of the Constitution did not anticipate an exchange of this nature between the two houses and, consequently, did not give express provisions on the matter. The Senate was created to represent the counties and serve to protect the interest of county government.

Article 96 of the Constitution reads in part: “The Senate represents the counties, and serves to protect the interests of the counties and their governments. The Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties.”

Similarly, the Senate has the mandate in determining the allocation of national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the county governments. Speaking to The Standard On Saturday, National Assembly Speaker Justin Muturi said the law is clear as the roles of the National Assembly and the Senate and that, based on this, it is clear which House is superior to the other.

“As the Speaker of the National Assembly, I am not involved in any supremacy battles,” he said before adding: “The roles of both houses are well stipulated in the Constitution. This house called the Senate cannot get roles that exceed what is provided for under the law.”

According to the Constitution, the roles of Parliament include legislation, oversight and determination of national revenue between the levels of government, among other things.

Article 95 expressly provides that: “The National Assembly represents the people of the constituencies and special interests … (It) deliberates on and resolves issues of concern to the people… enacts legislation, determines the allocation of national revenue between the levels of government, appropriates funds for expenditure by the national Government and other national State organs and exercises oversight over national revenue and its expenditure.”

But Commission on Implementation of the Constitution feels the ongoing supremacy battles between the two houses only amounts to a distraction.

Speaking to The Standard On Saturday, CIC Commissioner Kamotho Waiganjo said the commission will publish an opinion across media houses tomorrow explaining its view over the matter.

However, Waiganjo said the Constitution only gave certain responsibilities to each house with some of them concurring. For this reason, he said, the two houses should look for a way of working together where the law so demands.

“In our view, we see this as a distraction because the Constitution does not address issues of seniority,” he said. “What it does was to give each House responsibilities, some of them concurring. That is what Parliament and the Senate should be doing.”

Waiganjo added that although the Constitution makes the allocation of revenue between the levels of government a responsibility of the National Assembly, that article does not block Senate participation in consideration of the Division of Revenue Bill.

The CIC commissioner laughed off threats by the Senate to scrap the role of Members of Parliament in the management of the Constituency Development Fund.

“I don’t think the Senate can do anything about the CDF,” he said. “To begin with, the Senate cannot amend that Act alone. They can have an opinion but cannot give it the force of law alone.”

Both MPs and senators have been exchanging harsh words on which house is superior to the other.

“In law, you’re better off focusing on substance rather than form; the Lower House is engaging in form… The Speaker of the National Assembly did not forward the Bill to us on the basis of magnanimity. He did so on the basis of some constitutional grounding… this is the height of insolent and indolent behaviour by colleagues who should know better,” said Bungoma Senator Moses Wetangula while commenting on the matter.

In fact, Igembe South Mithika Linturi had said senators thought they were superior because they failed to interpret the Constitution.

“I really did not expect senior citizens to misinterpret the Constitution. If they had read the Constitution and understood it, they would have made the right decisions,” he said.