Opinion: Why Kenya needs a much stronger Senate in future

A large representation by astute lawyers in a Kenyan Senate that turned out limp is a clear indication that very few appreciated the new system that came with the 2010 constitution. The new constitution envisaged four equal arms operating in fidelity to the constitution. The legislative function was to be executed horizontally too. Both Houses were to operate in consultation with each other.

The success of the new system depended on the good faith and reasonableness of the shareholders. Success has proved elusive this far, though. Not only is the required reasonableness a rarity, horizontal legislature is a curious experiment that makes a case for a return to vertical bicameralism than it promises success. As it is, our Senate is erroneously constructed and therefore impotent. Supremacy wars between the two houses attest to this.

VARIED COMPOSITION

In his treatise, The Substance of Politics, Appadorai notes that Senate may be classed the upper house because of the higher pedigree of persons it consists of, or the nature of interests it represents. Not necessarily because of an elevated role when compared to the National Assembly as some believe. Various Houses enjoy various powers in various bicameral states. Most important is that each House should be uniquely composed and with duties different from those of the other House.

Composition is generally varied by adopting a different election or appointment criteria for each House. In some federal states, members of either house even serve varied terms. Depending on the State, senators could be appointed; proportionately appointed or elected -  directly or through another electoral mode. Ultimately, it is the house that is purely elected or best mirrors the electorate that enjoys more powers. In federal states, this house is often the upper house, and is the lower house in unitary states.

PEDIGREE

Interaction between the houses is the key influencer of legislative outcomes. Especially in federal states, the senate exists to ensure that the interests of the federal constituents are not swallowed up by the whole. But most importantly, as Alexander Hamilton writes, its existence provides an opportunity for the improvement of legislation through sober reflection and an air of permanence.

A bill goes through both houses until a consensus is reached or until a stopping rule comes into play. It is this second role that raises the senate to sort of an appeals chamber. The effective discharge of these roles calls for pedigree.

One argument for the Senate in the United States was that it improved the quality and guaranteed the stability of legislation.

Long terms for senators allowed them to become professional legislators better equipped to deliver the object of good government as well as protect legislation often negatively affected by the shifting tides of the lower house defined by the rapid turnover of members.

ELECTION MODE

In Switzerland, the mode of election into the upper house, the Council of States, is determined by the cantons.

They elect representatives on their own terms. Elsewhere, in the United Kingdom, for a long time the House of Lords reigned as preserve of the aristocracy while in Australia, senators are elected for six years where representatives in the lower house are elected for three.

These are some of the better functioning legislatures and in all of them; senators seem to be professionals, astute debaters, war veterans, really the cream of society

The same can hardly be said of our own Senate. In terms of pedigree, the National Assembly and the Senate are similarly composed, with any difference arising by sheer coincidence. Representatives of both are elected at the general election and they serve a similar term. The main role of the Senate is to serve and protect the interests of counties and participate in presidential oversight.

APPELLATE JURISDICTION

While the former function is often exercised in conjunction with the National Assembly, the latter must be carried out in conjunction with the National Assembly.

Otherwise the Senate has no appellate jurisdiction. It's mostly dormant hence the calls to scrap it off. Because of this, our laws are shallow and susceptible to the rough and tumble of elective politics.