10th Parliament (National Assembly)
Self-Serving. Compromised. Unreliable
|The 10th Parliament is credited with taking advantage of the provisions in the Old Constitution that gave it the express authority and space to legislate, to the extent that it was at times accused of being rogue. Although the Constitution of Kenya 2010 further expanded this authority, it did so within clear and specific framework under the separation of powers while making it clear that the people of Kenya remain the supreme authority.|
|Roles and Functions||The roles and functions of the 10th Parliament expanded during the transitioning into the New Constitution enabling the Assembly to actively play its part in making law, regulating public resources, and exercising oversight on the National Executive, State Organs, and to assist the country in the early stages of the transition.
|Composition||The 10th Parliament consisted of 210 directly elected Members for Constituencies, 12 Nominated Members to represent special interest groups for a total of 222 Members, and an ex-officio Speaker of the Assembly.|
The President of Kenya (and not the National Assembly) was the real and final authority in the country under the Old Constitution. It was the President who hired (and fired) at will, holders of top positions in State Offices and Organs without consulting any other authority least of all the National Assembly. Chapter 2 - The Executive, Part 3 - Executive Powers:
23. (1) The executive authority of the Government of Kenya shall vest in the President and, subject to this Constitution, may be exercised by him either directly or through officers subordinate to him.
24. Subject to this Constitution and any other law, the powers of constituting and abolishing offices for the Republic of Kenya, of making appointments to any such office and terminating any such appointment, shall vest in the President.
25. (1) Save in so far as may be otherwise provided by this Constitution or by any other law, every person who holds office in the service of the Republic of Kenya shall hold that office during the pleasure of the President:.......
The fact that a sizable number of Members of Parliament (MPs) also doubled up as Cabinet Ministers and Assistant Ministers, further complicated the separation of powers. The President could use State appointments to secure loyalty. This robbed Parliament off some of its independence. In fact, Parliament was by definition made up of 2 - a powerful President and the Assembly of MPs:
30. The legislative power of the Republic shall vest in the Parliament of Kenya, which shall consist of the President and the National Assembly.
However, the Constitution of Kenya 2010 (the New Constitution), has sought to rearrange the hierarchy of authority by placing the people of Kenya at the very apex of that power by affirming that they are the owners of that power, stating in Articles 94, 129, and 159 of the New Constitution:
94. (1) The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament.
129. (1) Executive authority derives from the people of Kenya and shall be exercised in accordance with this Constitution.
159. (1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.
These three Articles from the New Constitution, essentially separate the powers of the three arms of government; by first stating that the supreme authority in the Republic of Kenya is the people and secondly, placing State organs under the subordinate will of the people to exercise delegated power for the good of the people. As part of the dictates of devolution as contained in the New Constitution, the National Assembly forms just one half of the Parliament of Kenya. The other half is the Senate of the Republic of Kenya signifying the people's desire for a two-tier legislative structure. However, the Senate comes into existence only after the first elections under the New Constitution in March 2013. Until then, the functions of the Senate will be exercised by the current Tenth Parliament. Excerpts from the Sixth Schedule - Transitional and Consequential Provisions of the New Constitution:
11. (1) Until the first Senate has been elected under this Constitution— (a) the functions of the Senate shall be exercised by the National Assembly; and (b) any function or power that is required to be performed or exercised by both Houses, acting jointly or one after the other, shall be performed or exercised by the National Assembly.
(2) Any function or power of the Senate shall, if performed or exercised by the National Assembly before the date contemplated in subsection (1), be deemed to have been duly performed or exercised by the Senate.
Therefore the 10th Parliament has found itself in the unique situation of serving its term under two (and vastly different), constitutional dispensations. This has necessitated a complete evolution on its part in order to provide for a smooth transition from the old to the new era. Indeed, this Parliament enacted numerous legislation to amend the old constitution, to facilitate the adoption of the New Constitution and to function effectively for the remainder of its unexpired term that ends at the General Elections of 2013:
10. The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for its unexpired term.
As the constitutional organ of legislation, the National Assembly was assigned to exercise legislative authority in Kenya under the Old Constitution. Excerpts from Chapter 3 - Parliament, Part 1 - Composition of Parliament:
30. The legislative power of the Republic shall vest in the Parliament of Kenya, .......
The National Assembly or 10th Parliament as it was known, was the only body that had the people's express authority to make laws or change the laws that governed them. This power was not to be exercised arbitrarily but by way of Bills that had been assented to by the President and gazetted as Acts of Parliament. Excerpts from Article 46 in Part 2 - Legislation and Procedure in the National Assembly, Chapter 3 - Parliament:
46. (1) Subject to this Constitution, the legislative power of Parliament shall be exercisable by Bills passed by the National Assembly.
(2) When a Bill has been passed by the National Assembly, it shall be presented to the President for his assent.
(3) The President shall, within twenty-one days after the Bill has been presented to him for assent under subsection (2), signify to the Speaker that he assents to the Bill ........
(6) A law made by Parliament shall not come into operation until it has been published in the Kenya Gazette, ........
(7) A law made by Parliament shall be styled an Act of Parliament, and the words of enactment shall be “Enacted by the Parliament of Kenya”.
Having been assigned the legislative authority of the Republic, the National Assembly, was also empowered by the Old Constitution to consider and pass amendments to the constitution. This was a most sacred duty of the National Assembly given that the electorate was not invited to participate in or hold the final say on this critical process of amendment. Instead, a two-thirds majority in the Assembly was all that was required to pass an amendment.
47. (1) Subject to this section, Parliament may alter this Constitution.
(2) A Bill for an Act of Parliament to alter this Constitution shall not be passed by the National Assembly unless it has been supported on the second and third readings by the votes of not less than sixty-five per cent of all the members of the Assembly (excluding the ex officio members).
The person occupying the powerful office of the Presidency acted as the benevolent representative of the people in regard to Money Bills that sought to amend the Old Constitution:
48. Except upon the recommendation of the President signified by a Minister, the National Assembly shall not - (a) proceed upon a Bill (including an amendment to a Bill) that, in the opinion of the person presiding, makes provision for any of the following purposes - (i) the imposition of taxation or the alteration of taxation otherwise than by reduction; or (ii) the imposition of a charge on the Consolidated Fund or any other fund of the Government of Kenya or the alteration of any such charge otherwise than by reduction; or
(iii) the payment, issue or withdrawal from the Consolidated Fund or any other fund of the Government of Kenya of moneys not charged upon the fund or an increase in the amount of the payment, issue or withdrawal; or (iv) the composition or remission of a debt due to the Government of Kenya; or (b) proceed upon a motion (including an amendment to a motion) the effect of which, in the opinion of the person presiding, would be to make provision for any of those purposes.
The National Assembly was not empowered by the New Constitution to set its own calendar. That authority was exercised by the President. Excerpts from Part 3 - Summoning Prorogation and Dissolution of Parliament:
58. (1) Subject to this section, each session of Parliament shall be held at such place within Kenya and shall commence at such time as the President may appoint.
59. (1) The President may at any time prorogue Parliament.
(2) The President may at any time dissolve Parliament.
There was a general feeling not only in the Assembly but also among the electorate that Articles 58 and 59 gave the President and the President's party the trump card with respect to the business and life of the Assembly as well as the timing of elections. Nevertheless, the Old Constitution placed caps on the tenure of sessions, and the life of that National Assembly:
58. (2) There shall be a session of Parliament at least once in every year, so that a period of twelve months shall not intervene between the last sitting of the National Assembly in one session and the first sitting thereof in the next session.
(3) Whenever Parliament is dissolved, a general election of members of the National Assembly shall be held, and the first session of the new Parliament shall commence within three months after that dissolution.
The National Assembly could send the President home:
59. (3) If the National Assembly passes a resolution which is supported by the votes of a majority of all the members of the Assembly (excluding the ex officio members), and of which not less than seven days’ notice has been given in accordance with the standing orders of the Assembly, declaring that it has no confidence in the Government of Kenya, and the President does not within three days of the passing of that resolution either resign from his office or dissolve Parliament, Parliament shall stand dissolved on the fourth day following the day on which that resolution was passed.
Despite the provisions of Article 59. (3), and the frequent threats by disgruntled Members to institute motions of no confidence in the government, this Parliament rarely witnessed any serious attempts to table such a motion. This was perhaps due to the fact that the passing of such a motion meant that a general election would follow; something that most MPs were uncomfortable with.
The National Assembly had the authority to set the President's remunerations: Chapter 2 - The Executive, Part 1 - The President and Vice-President, Article 13:
13. (1) The President shall receive such salary, allowance and benefits as may be determined by a resolution of the National Assembly.
To ensure that there are checks and balances across the arms of government, the decisions and actions of the Cabinet were placed under the oversight of the National Assembly. Excerpts from the Old Constitution of Kenya, Chapter 2 - The Executive, Part 2 - Ministers and the Cabinet, Article 17:
17. (3) The Cabinet shall be collectively responsible to the National Assembly for all things done by or under the authority of the President or the Vice-President or any other Minister in the execution of his office.
Kenneth Marende, Speaker of the National Assembly
Under the Old Constitution, Parliament was made up of 3 types of memberships: elected, nominatied and ex-officio. Article 31 of Chapter 3 - Parliament, Part 1- Composition of Parliament, excerpts:
31. Subject to this Constitution, the National Assembly shall consist of elected members ........, nominated members ........ and the ex officio members.
Each elected Member of Parliament represents a single constituency. Excerpts from Article 32:
32. (1) Kenya shall be divided into constituencies ........, and each constituency shall elect one elected member to the National Assembly ........
Nominated members, who were nominated by political parties, represented special interests:
33. (1) Subject to this section, there shall be twelve nominated members of the National Assembly appointed by the President following a general election, to represent special interests.
The Electoral Commission determined the proportions and composition of these nominees to the National Assembly:
33. (3) The persons to be appointed shall be nominated by the parliamentary parties according to the proportion of every parliamentary party in the National Assembly, taking into account the principle of gender equality.
(4) The proportions under subsection (3) shall be determined by the Electoral Commission after every general election and shall be signified by the chairman of the Commission to the leaders of the concerned parliamentary parties, the President and the Speaker.
(5) The names of the nominees of parliamentary parties shall be forwarded to the President through the Electoral Commission who shall ensure observance of the principle of gender equality in the nominations.
Ex-officio members of the Assembly were the Attorney General and the Speaker:
36. The Attorney-General shall be an ex officio member of the National Assembly, but he shall not be entitled to vote on any question before the Assembly.
The Speaker was elected from among the members of the Assembly, and had no voting rights.
37. (1) There shall be a Speaker of the National Assembly, who shall be elected by the Assembly, in accordance with the standing orders, from among persons who are members of the Assembly or are qualified to be elected as such members, other than the President, the Vice-President, Ministers, Assistant Ministers and the Attorney-General.
(4) The Speaker shall be an ex officio member of the National Assembly, whether or not he is elected from among the members of the Assembly.
It is noteworthy from Article 37. (1) that the Speaker could be sourced from outside of the National Assembly. However the common practice was for the Members of the Assembly to elect one of their own as Speaker. Upon election, the member gave up his constituency seat:
39. (2) An elected member or a nominated member of the National Assembly shall vacate his seat as such if he is elected as Speaker.
Under the Old Constitution, the MPs could resolve to remove the Speaker and the Deputy Speakers from office. However they could only legally do so by at least a three-quarters majority vote of all the Members:
37. (2) The Speaker shall vacate his office - (c) if the National Assembly so resolves, by resolution supported by the votes of not less than seventy-five per cent of all its members (excluding the ex officio members).
The Deputy Speaker, who was not required to give up their constituency seat, but could be removed if they ceased or were disqualified to be a Member of the House through other legal processes such as election petitions, bankruptcy, etc:
38. (3) The Deputy Speaker shall vacate his office - (d) if the National Assembly so resolves, by resolution supported by the votes of not less than seventy-five per cent of all its members (excluding the ex officio members). (c) if he ceases to be a member of the National Assembly otherwise than by reason of the dissolution of Parliament; ........
The Old Constitution provided for additional members of the National Assembly to provide administrative and supportive functions to the Assembly. These officers were seconded from the Parliamentary Service:
45A. (1) There shall be a service to be known as the parliamentary service.
(2) There shall be a Clerk of the National Assembly and such other officers and staff as may be appointed for the purposes of the National Assembly in accordance with section 45B.
(3) The offices of the Clerk of the National Assembly and the officers and other staff provided for under subsection (2) shall be offices in the parliamentary service.
A special Commission generally composed of stakeholders in the business of Parliament, existed to plan for and direct the business of the Assembly:
45B. (1) There shall be a Parliamentary Service Commission which shall consist of - (a) the speaker of the National Assembly who shall be the chairman; (b) a vice-chairman elected by the Commission from amongst the members appointed under paragraph (e) of this subsection; (c) the leader of Government business in the National Assembly or a member of the Assembly deputed by him; (d) the leader of the opposition party with the highest number of seats in the National Assembly or a member of the Assembly deputed by him; (e) seven members (other than the President, Ministers, Assistant Ministers and the Attorney-General) appointed by the National Assembly from amongst its members, of whom - (i) four shall be nominated by the parliamentary party or parties forming the Government; and (ii) three shall be nominated by the parliamentary party or parties forming the opposition.
The number of elected and Nominated Members in the 10th Parliament was 222. (Further details on what the numbers mean in terms of Representation is discussed under the link). A minimum number of only 13% of the 222 MPs were enough to form a valid quorum in the Chamber and to vote on a decision. Excerpts from the Part 2 - Legislation and Procedure in the National Assembly, Articles 51, 54:
51. If any member of the National Assembly who is present takes objection that less than thirty members of the Assembly (besides the person presiding) are present in the Assembly and, after such interval as may be prescribed in the standing orders of the Assembly, the person presiding ascertains that there are still less than thirty members of the Assembly present, the person presiding shall thereupon adjourn the Assembly.
54. (1) Except as otherwise provided in this Constitution, any question proposed for decision in the National Assembly shall be determined by a majority of the votes of the members present and voting.
Under the Old Constitution, the National Assembly had a five year tenure unless dissolved earlier or extended by way of specific constitutional provisions to accommodate unusual circumstances of war. Excerpts from Part 3 - Summoning Prorogation and Dissolution of Parliament:
59. (4) Parliament, unless sooner dissolved, shall continue for five years from the date when the National Assembly first meets after dissolution and shall then stand dissolved.
59. (5) At any time when Kenya is at war, Parliament may from time to time provide for the extension of the period of five years specified in subsection (4) for not more than twelve months at a time: Provided that the life of Parliament shall not be extended under this subsection by more than five years.
Committees of the House have served to expedite Parliamentary business by allowing for small representative units of Parliamentarians to consider Bills, conduct studies and investigations, invite public participation where necessary, evaluate estimates and budgetary requests etc., after which they tabled their reports in the House for approval. The National Assembly of the 10th Parliament of Kenya had well over a dozen committees which fell under 4 kinds: Committees of the Whole House; Standing Committees; Ad hoc Select Committees; and Departmental Committees; Click on the following link to Parliament's official website for more on the current Committees of Parliament.
56. (1) Subject to this Constitution, the National Assembly may- (b) subject to standing orders ......., establish committees in such manner and for such general or special purposes as it thinks fit, and regulate the procedure of any committee so established.
These Committees could carry on their work even if a vacancy existed in the office of Speaker:
37. (3) No business shall be transacted in the National Assembly (other than an election of the Speaker) at any time when the office of Speaker is vacant, but this subsection shall not prevent the transaction of business by a committee of the Assembly.
In a bid to revitalize the Committees, Parliament had a free hand to determine the general environment under which they operated:
57. Without prejudice to the powers conferred by section 56, Parliament may, for the purpose of the orderly and effective discharge of the business of the National Assembly, provide for the powers, privileges and immunities of the Assembly and its committees and members.
The jury is still out there on whether these Committees had the mandate and the will to act with independence and without any fear.
Hansard & Records
All proceedings and debates in the Chambers of Parliament are recorded and published in the Hansard reports. Click on the following link to Parliament's official website for more on the Parliamentary Hansards that go way back to 1905!
These are proposals made by a member of the House in the debating chamber seeking the adoption of a decision. Click on the following link for more on the available Parliamentary Motions as listed on current (tenth) Parliament's official website.
Sessional Papers are oftentimes what the Government uses to develop policy frameworks for implementation. Numerous Sessional Papers spanning the over 90 years of parliamentary legislation in Kenya have been drafted, tabled, and adopted. Click on the following link for more on the available Sessional Papers at the official website of the current (tenth) Parliament.
Bills & Legislation
The Old Constitution gave little direction on the procedures to be followed on the process of consideration, debate and the enactment of legislative Bills. Thus the 10th Parliament largely conducted its business of legislation as guided by Acts of Parliament. As we mentioned at the introduction, this Parliament has existed during a transitional period in which Kenya has adopted a new constitution. During this time of transition, the National Assembly has made major constitutional amendments such as the National Dialogue and Reconciliation Act of 2008 that allowed for a coalition government between the Orange Democratic Movement ODM and the Party of National Unity, PNU. This Act introduced an amendment that established the offices of a Prime Minister and two Deputy Prime-Ministers.
The 10th Parliament was also assigned the important task of considering (debating) and enacting numerous important legislation designed to bring to effect and operationalise the Constitution of Kenya 2010. Some of the key legislation sought to repeal respective sections of the law whose force and legality had been overtaken by the enactment of the New Constitution. Other legislation aimed to establish State Organs that have been created by the New Constitution, and yet others are designed to establish and actualise the new system of devolution. Still other Acts provided for transitional legislation over a 5 year period for the full implementation of the New Constitution. The New Constitution, unlike the Old one, permitted a Member of Parliament, a Committee of Parliament or a member of the public to initiate a Bill. Chapter 8 - The Legislature, Part 5 - Parliament's General Procedures and Rules:
119. (1) Every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal any
(2) Parliament shall make provision for the procedure for the exercise of this right.
Click on the following link for more on the Bills and Acts of Parliament that had a direct bearing on the new constitutional dispensation in Kenya. Most of these legislation had clear and specific time-lines as defined by the New Constitution. Below in Table 1, are excerpts from the Fifth Schedule of the Constitution of Kenya 2010, and which are timed to have been enacted by the end of the term of the 10th Parliament:
*Table 1. Legislation that must be Enacted by the 10th Parliament
|*||Institution/Right/Act||Constitutional Provision||Time Specification|
*...table content coming soon.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney-General.
2. Constitution of Kenya Revised Edition 2008 (2001). National Council for Law Reporting. The Attorney-General.