Senate, National Assembly spoiling for a fight over Bills

A supremacy battle is brewing in the bicameral House over the transaction of Bills.

Whereas the Senate maintains it has a constitutional mandate to deliberate on all Bills, the National Assembly insists the drafters of the Constitution were very explicit on the roles assigned to each House.

A communication to the House following concerns raised by senators led by Minority Whip Mutula Kilonzo Jnr (Makueni), Senate Deputy Speaker Kithure Kindiki (Tharaka/Nithi) has opened a Pandora’s box on the matter, citing 11 instances that would qualify as matters affecting counties in the transaction of Bills.

National Assembly Speaker Justin Muturi has maintained that the Constitution is very clear on the role of each House.

There is a blame game between the leadership of the two Houses on ‘sitting’ of Bills with the Senate on the spot for originating money Bills, an exclusive function of the National Assembly.

Prof Kindiki made reference to the Supreme Court advisory of 2013 on the Division of Revenue Bill, which he indicated laid the foundation on how the two Houses should work.

“With a good Speaker, the Senate should be able to find something that affects the functioning of counties in almost every Bill that comes to Parliament, making it a Bill that must be considered and passed by both Houses,” Prof Kindiki quoted the court’s advisory.

He went on, “We consider that the expression ‘any matters touching on county governments’ should be so interpreted as to incorporate any national level process bearing a significant impact on the conduct of county government.”

The Senate Deputy Speaker argued that when the National Assembly deliberates on any matter that has implications on the Senate, it should have a say like the now controversial Parliamentary Service Bill, which deals with members and staff welfare.

“If the matter affects the operations or internal workings of the Senate as an institution that protects counties and their government,” he said

Kindiki stressed the importance of the matters affecting in any way one or more counties or like the Nairobi city by virtue of the county doubling as capital of Kenya. “It is therefore a county sui generis making such a matter affecting all counties and the nation. The recent ban on matatus entering the Central Business District by Governor Mike Sonko, paralysed transport in other routes outside Nairobi,” he noted.

The surprise position taken by the Senate might open a ‘can of worms’ to rekindle the protracted war on the mandate of the two Houses.

Consideration of matters

Kindiki ruled that a matter that has functions that constitute the exclusive jurisdiction of the county governments as provided for in the Fourth Schedule as read together with Article 186 (1) of the Constitution concerns the Senate.

The same applies to functions that constitute the concurrent jurisdiction of both levels of government such as security, agriculture, health, roads, regional boards.

“The functions that comprises the exclusive jurisdiction of the national government in Article 186 (1) and part 1 of the Fourth Schedule to the Constitution provided that such a matter has some connection of any kind whatsoever with the counties,” explained Kindiki.

The Deputy Speaker explained that it also includes those touching on the workings and operations of the county executive of any county, including the ancillary structures such as County Public Service Board, or operations of the County Assembly such as the County Assembly Service Board.

His assertions come at a time when senators are breathing fire to assert their authority, accusing the National Assembly leadership of undermining its work. Minority Leader James Orengo (Siaya) weighed in on the matter, saying the Senate has travelled a long journey, including the courts, to try and settle the matter amicably.

“The court and the Fourth Schedule have left no doubt on the roles. The Senate expresses the will of the people and in actual sense should be the senior House; however we are equal,” said Orengo.

Thorny issue

Kilonzo Jnr and Bungoma Moses Wetang’ula (Bungoma) sought the chair’s intervention on the thorny issue, noting that on many occasions the National Assembly has ignored the input of the Senate.

They said there was need to clarify and flag out the salient ingredients of what constitutes matters concerning counties.

“I seek the speaker’s guidance and ruling on Senate’s consideration of matters concerning counties,” said Kilonzo Jnr.

Majority Leader Kipchumba Murkomen (Elgeyo/Marakwet) even wrote to the President recently registering their frustrations in dealing with Bills and sought his intervention.

Muturi, National Assembly Majority Leader Aden Duale (Garissa Township) and the Minority Leader John Mbadi (Suba South) have scoffed at efforts by the Senate to consider all Bills.

Muturi was categorical that Money Bills is an exclusive function of the National Assembly.

“When we receive Bills transmitted from the Senate, we prioritise them. Once I make the communication, they are committed to the relevant committee and we share with the Budget office if it has any budget implications,” he said.

He noted, “Some Bills originating from the Senate are drafted without consulting the budget office and National Treasury to establish if there are funds.”

He made reference to Article 114 of the Constitution on money Bills. “If, in the opinion of the Speaker of the National Assembly, a Motion makes provision for a matter listed in the definition of “a money Bill”, the Assembly may proceed only in accordance with the recommendation of the relevant Committee of the Assembly after taking into account the views of the Cabinet Secretary responsible for finance,” said Muturi.

The Bill deals with taxes, the imposition of charges on a public fund or the variation or repeal of any of those charges, among others.

Mbadi warned members against being emotional over constitutional matters.

“This is not about feelings but argument of the Constitution. Bills not listed for the Senate are not theirs. The Finance Bills and Appropriation Bills are dealt with at the National Assembly, and result in Act of Parliament,” he noted.