Only courts will resolve this stalemate

The perceived wrangles between the two Houses of Parliament emanating from their different perception on the processing of bills introduced in either House for determination have reached a crescendo.

From last week, the Senate has been waging a war of words against the National Assembly Speaker for allegedly overstepping his mandate by presenting bills to the President for assent that, in their opinion, touch on county governments, without consulting his Senate counterpart as provided for in the Constitution and as earlier guided by an advisory of the Supreme Court.

The advisory opinion gave an elaborate suggestion on the processing of the Division of Revenue Bill and other bills.

The Constitution has a myriad of widely celebrated ingenious provisions, among them the creation of a devolved system of government.

However, one can conclusively infer that the failure by the same Constitution to provide clarity on specific elements regarding the two Houses, particularly on the processing of Bills, has occasioned the frequent altercations and name-calling.

Indeed, the matters in question are weighty and require urgent attention. They are matters that interrogate the raison d'etre of each House.

According to the Constitution, both the National Assembly and the Senate have legislative mandates as stipulated in Article 95(3) and 96(2).

What is in question is our understanding and interpretation of these articles. Members of the National Assembly led by the Speaker are convinced that the way they have processed the bills (passed and assented to by the President) is legitimate and anchored on the constitutional provision that states, "A bill not concerning county government is considered only in the National Assembly, and passed in accordance with Article 122 and the Standing Orders of the Assembly" Art 109(3).

Article 110 of the Constitution is at the heart of the current controversy. What constitutes a bill concerning county governments as stipulated in this article? On the face of it, it seems perfectly clear as Article 110(1) overtly defines a bill concerning county governments as one, a) "affecting the function and powers of county governments..."; b) "....relating to the election of members of a county assembly or a county executive"; and c) ".....affecting the finances of county governments."

Article 110(2) goes further to divide bills concerning county governments into two types a) A special bill if i) it relates to election of county officials; ii) is the annual County Allocation of Revenue; and b) an ordinary bill.

The rest of article 110 and the next two, articles 111 and 112 focus on the processing of special and ordinary bills concerning county governments.

 

Despite these constitutional provisions, the Senate continues to complain fervently that they have been ignored by both the National Assembly and the President.

They have also continued to pass 'money bills' despite the provisions of Article 114 on which House can initiate 'money bills' and in spite of advice from the National Assembly.

However, according to them, the Constitution is clear on the legislative role of Parliament, not the National Assembly, as stipulated in Article 109(1): "Parliament shall exercise its legislative power through bills passed by Parliament and assented to by the President."

Many will recall that the Senate sought an advisory opinion from the Supreme Court on the determination of bills and the procedure thereof, should the bills touch on both the national and county governments.

In a nutshell, without going into the details of the 140-page advisory, the Supreme Court's opinion advised the two speakers to exploit the constitutional provisions of Article 110(3), which state: "Before either House considers a bill, the speakers of the National Assembly and the Senate shall jointly resolve any question as to whether it is a bill concerning counties and, if it is, whether it is a special or ordinary bill."

The advisory further suggested that a joint mediation committee should be put in place as stipulated in Article 113 of the Constitution, to provide direction on bills that both speakers are unable to agree on.

It is important to note that the Supreme Court, in its advisory, was careful not to overstep its mandate as its advice could be construed as interfering in the running of the legislative arm of Government and thereby violating the doctrine of separation of powers.

The long and short of the impact of the advisory opinion is that the National Assembly has continued to pass laws they consider "not concerning county governments" without reference to the Senate, and the Senate has continued to voice their concerns.

Clearly, the advisory opinion did not achieve the desired binding ruling on a solid process of determination.

At least 15 bills touching on issues concerning county governments have been discussed and referred to the Senate for debate and input.

So far, about 11 bills posted to the Senate for input are yet to be returned to the National Assembly.

There is therefore no reason for these continued battles since, from where we sit, all the bills that have been passed by the National Assembly so far do not concern counties in the manner envisaged in Article 110(1, 2).

Furthermore, the previous guidance by the court through the advisory opinion on dispute resolution does not give a clear direction on the issue at hand.

We may therefore need further interpretation of the law to achieve a binding ruling on how the two Houses should handle matters bills.

While there is need to appreciate that a bi-cameral system is a new concept in the country, it is essential that a common ground is arrived at on exactly how bills are to be processed and the nature of bills that each House should handle to avoid unnecessary misinterpretations witnessed currently and for the sake of future Parliaments.

Parliament is a key institution that cannot afford to be split as a result of mandates spelt out by the Constitution.

Since this matter concerns both Houses of Parliament, in my view, it is important to address the issue jointly as Parliament.

The question of one House seeking judicial intervention against another House of the same Parliament does not sell.

We are one Parliament. Is the grandstanding and blame-game getting us any closer to working together as one Parliament? I do not think so.

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 Parliament.