Kenya’s first bicameral House of order took off with disorder

By ALPHONCE SHIUNDU

NAIROBI, KENYA: Kenya’s first bicameral Parliament under its three-year-old Constitution took off to a tumultuous start.

The two bosses of the respective Houses — the Speaker of National Assembly Justin Muturi and the Senate Speaker Ekwe Ethuro — fought to mark their territory.

It’s a fight that defined the first nine months of the august House, more so, after the ground-breaking Supreme Court ruling to the effect that the Senate cannot be ignored when it comes to making all laws, especially those affecting counties.

In candid interviews with the The Standard, the speakers of both Houses appear to suggest the fight over their respective roles and the tensions over powers are unlikely to dissipate any time soon.

Mr Muturi, the National Assembly Speaker, believes that the ruling which empowered the Senate was “too casual” and he is very reluctant to obey it.

majority decision

The first time he dismissed the majority decision of the highest court in the country as simply “an opinion”, the country was astounded. But in an interview with The Standard to review the year, Muturi believes the Supreme Court “made a mistake”. 

“My very honest opinion is the Supreme Court cannot allocate functions to either House of Parliament which are not allocated by the Constitution. It is a misapprehension of the law. On this one, that’s my position, and I will go to my grave, unless this Constitution is amended,” said Muturi.

Muturi believes that not every Bill should be subjected to the provisions of article 110 (3).

The article requires that “before either House considers a Bill,  the speakers of both Houses should sit and agree on whether “it is a Bill concerning counties and, if it is, whether it is a special or an ordinary Bill”.

For Muturi, the key word in the clause is the word “considers”. He doesn’t see why he should talk to the Senate Speaker on every Bill, even before it is introduced in the House.

In the copy of the Constitution on his desk, Muturi has underlined the word “considers” in blue, and he insists that “the word is not used there carelessly”.

“Can the House consider a Bill before it has even been read the first time,” posed Muturi.

Before the First Reading — the formal introduction of a Bill into the House — the assumption is that the Bill has not been considered by the House, he said.

“The Supreme Court and the Senate are trying to use this to hold us into consultations on every Bill, and that I am uncomfortable with, because that way, we’ll not move as a House, we’ll never move as a Legislature… I will not agree to that,” he said.

advisory opinion

But his Senate colleague, buoyed by the immense win at the Supreme Court, believes the advisory opinion is the answer to the perceived weak roles granted to the Senate in the Constitution.

In a separate interview for this story, Mr Ethuro told The Standard the ruling of the Supreme Court was a panacea to the push and pull between the Senate and the National Assembly.

“We were not looking for who wins and who loses. We went to the Supreme Court for an advisory opinion, it was not an accusation,” said Ethuro.

Of course, having followed the debates in the National Assembly, Ethuro is aware that Muturi has dismissed the ruling of the Supreme Court as “an opinion”. He is also aware that some MPs, such as Alice Wahome (Kandara) have argued the National Assembly is not bound by an “advisory opinion”. But Ethuro, a former fiery MP, does not want to dig in. He takes the view that no one can ignore a ruling of the highest court in the land.

“I just want to remind Kenyans that a democracy operates on institutions. You don’t want to start throwing words, throwing stones or looking for spears to fight. This is a democracy. This is a civilised society. We’re pleased that the court agreed with our opinion and that opinion is binding to all State organs. I am personally persuaded that nobody can disregard such decisions coming from the Supreme Court,” said Ethuro.

EGO BATTLE

On the face of it, the fight between the two Speakers looks like a battle of egos. They both work for the same arm of government, and they know that jointly, the two Houses form “the Parliament of Kenya”  as defined in article 93 of the Constitution.

But it appears, the problem lies on the way they each interpret the Constitution.

“We went to court because there were differences on how we were interpreting the Constitution especially the role of the Senate in the Division of Revenue Bill,” noted Ethuro.

Muturi agreed that there was a problem with the interpretation and that’s why the matter ended up in court.

But interestingly, their views are so different that they could not even agree on lawyers.

Muturi was of the view that because the matter was simply a dispute over how the Constitution had to be interpreted, then the two Houses should have isolated the issues and sent the Director of Litigation and Compliance in Parliament, Mr Anthony Njoroge, to the Supreme Court to deal with the matter.

But the Senate, stung by the fact that their input to the Bill was ignored, went for external high-brow lawyers – Pheroze Nowrojee and Kioko Kilukumi. Muturi was thus armtwisted to okay the hiring of Fred Ngatia to act for the National Assembly.

If the two Speakers had cordial relations — they are both from the ruling Jubilee coalition with a majority in both Houses — then they ought to have found a way out. When you speak to Muturi and Ethuro, they say there’s “nothing personal”, it’s just the law. “I must confirm that Speaker Muturi and I are very good friends at a personal level. The differences may be in the way we read the Constitution and the role of each House. We talk also, and say let’s see how we can have a meeting of minds so that the different interpretations do not delay the parliamentary work,” said Ethuro.

Muturi agreed: ““You know I do not have a problem with the Senate myself. My colleague David is a great friend, in fact we were drinking with him late last night in Kampala. It is only that we do not discuss a lot about some of these things to do with processes and procedures.”

The Senate’s view is that article 96 (1) of the Constitution is pretty much straight-forward as it gives it jurisdiction over nearly every law, because everything affects counties.

But for the National Assembly, the idea is the Senate should be handling the things to do with counties and their governments, and keep off national legislation, unless such legislation affects “county governments”.