This week we were treated to an unfortunate twit-storm between two top Jubilee leaders. Senate Majority Leader Kipchumba Murkomen went hammer and tongs against his opposite number in the National Assembly Aden Duale. According to Murkomen, he had been shocked that morning to discover, at no place lesser than the House of the Hill, that he was going to be party to the signing by the President of a Bill which, in his view, had been passed unconstitutionally. The issue of contention is not a new controversy.
Our Constitution, recognising that there would be contestation between the two Houses of Parliament on their jurisdictional boundaries, had made several provisions to resolve any arising conflicts. The Constitution, in the first instance, granted different mandates to both Houses.
Most specifically, it restricted the legislative mandate of the Senate to “Bills concerning counties.” Those Bills cannot be passed without the involvement of the Senate. Naturally, this means all other Bills can be originated, debated and passed solely at the National Assembly.
The way our devolved governance system is structured, the National Assembly largely looks out for the interests of the national government, while the Senate looks out for counties. It’s no wonder then that every time there have been demands for full implementation of devolution as contemplated by the Constitution, it is the National Assembly that has placed most road blocks on issues such as adequate allocation of revenue to county governments or the full transfer of functions.
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It would therefore be in the interest of the National Assembly to pass as much legislation as possible that protects and empowers the national government without “interference and meddling” by the Senate. The easiest way to do this would be to allege that such Bills do not “concern county governments.”
The best example is when in 2014, in a controversy finally decided by the Supreme Court, the National Assembly purported to pass the Division of Revenue Bill without involving the Senate, arguing that this Bill did not concern counties in the manner contemplated by the Constitution.
The framers of the Constitution, being aware of this possibility, created a mechanism in Article 110(3) which requires that no Bill will be considered by either House before the question of whether the Bill concerns counties has been resolved between the two Speakers. Undoubtedly, this process has been ignored several times by the National Assembly. This appears to have occurred in respect of the Health Laws (amendment) Bill.
According to Duale, the National Assembly considered the content of the Bill and determined that it dealt with matters solely within the mandate of the national government. It therefore prosecuted it solely in the National Assembly.
Though health is devolved, a review of the Bill indicates that Duale is substantively correct. Unless one interpreted “concerning counties” very liberally, what is contained in the Bill largely relates to the reorganisation of regulatory bodies within the health sector, a matter within the exclusive mandate of the national government. Where Duale gets it wrong is where he assumes that the National Assembly can solely determine whether a Bill concerns counties.
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The Constitution requires the two Speakers to jointly agree that the Bill in question does not concern counties. What the law lacks is the formalisation of the concurrence process.
I believe we have arrived at the point where we should enact in the law the requirement for a concurrence certificate signed by both Speakers without which a Bill cannot be presented to the President for assent.
This small addition will go a long way in curing this unfortunate defect so we avoid situations where leaders of the House wash their dirty legislative linen in public and will also enable the Senate to play its rightful role in the protection of the interests of counties.
– The writer is an Advocate of the High Court of Kenya
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