It is surprising that I agree with Ahmednasir Abdullahi today; the Senate is not the upper legislative chamber that the Senators would wish it to be in the style of the United States Senate or the House of Lords in the United Kingdom (Real power in all its forms lies with the National Assembly, Sunday Nation 16/06/13.) The roles of the Senate include:
- the protection of the interests of counties and their governments;
- debating and approving Bills concerning counties;
- determining the allocation of national revenues among counties; and
- the impeachment of the President or Deputy President.
It is not correct or proper to assert that the Senate is a single-issue chamber; from the outline of the role of the Senate in the Constitution, its most important role is the protection of devolution by protecting the interests of counties and their governments. Its second most important role is the consideration of any Bill regarding the counties which may include Bills on the powers and functions of county governments, on the election of members of county assemblies and those affecting the finances of county governments.
When the President assented to the Division of Revenue Bill that had been approved by the National Assembly, despite the recommendations of the Senate to increase the allocation of national revenue by sh 48 billion, he was acting within the letter of the Constitution. Whether he did so in the spirit of the Constitution remains highly contested. It is only the National Assembly that determines the allocation of national revenue between the two levels of government, not the Senate. The Senate determines allocations among the counties.
Mr Abdullahi is right; many of the changes made to the Harmonised Draft Constitution before it was presented to Kenyans at the 2010 referendum were made by members of the Tenth Parliament, some of whom are the most vocal about the diminished place of the Senate in the government. When it seemed that it was Raila Odinga who was on his way to State House, members of the Orange Democratic Movement Party did everything in their power to ensure that the structure of government that Mr Odinga would have inherited in 2013 was one that he could control. Therefore, they had no problem in emasculating the Senate. Now that they find themselves in the uncomfortable position of playing second fiddle to the Jubilee Coalition, they are attempting to re-write history by claiming, among other outlandish claims, that the Senate is the "superior" of the two chambers of Parliament. Their missteps are coming back to haunt them.
The financial legislation process that the Constitution provides in Kenya is markedly different from the United States one. In the US, both the House of Representatives and the Senate have a vital role to play at the start of the process when it comes to money Bills. In Kenya, the Senate only steps in when it comes to allocation of national revenue among counties not when the share of the national revenue to be allocated to counties is being considered.
The application for an advisory opinion of the Supreme Court by the members of the Senate will not give them the answer they are seeking. Surprisingly, there is little ambiguity in the provisions regarding the roles of the National Assembly and the Senate when it comes to money Bills and the division of revenue between the two levels of government and among the counties. It is dawning on the members of the Senate that for the most part they have nothing to do and Mr Abdullahi's suggestion that the Senate only meet for a fortnight in a year during the making of the national budget is not without its merits. If they must meet on an emergency basis, they can do so, but even then it will be to consider any Bill that affects the powers or functions of counties or affects the finances of counties. Beyond that, or the impeachment of the President or Deputy President, the Senate is, as one cheeky member of the National Assembly put it, a chamber for retirees.