The Senate is a constitutional body and forms one part of Parliament. Excerpts from Chapter 8 - The Legislature, Part 1 - Establishment and Role of Parliament, Article 93 of the New Constitution:
93. (1) There is established a Parliament of Kenya, which shall consist of the National Assembly and the Senate.
Thus, any Bill that the Senate originates, passes, and is assented to by the President, is also called an Act of Parliament in the same way that Bills passed by previous Parliaments were referred to.
As one part of Parliament, the Senate, together with the National Assembly, share in the people's sovereign authority to make the laws of the land:
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.
(2) Parliament ........ represents the will of the people, and exercises their sovereignty.
(5) No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.
This authority extends to amendments of the Constitution, with the Senate expected to protect the political (and often emotional) interests of devolved units, and in this instance, the boundaries that define those units i.e the Counties:
94. (3) Parliament may consider and pass amendments to this Constitution, and alter county boundaries as provided for in this Constitution.
This provision is important for the simple reason that it protects the people's right to determine their area of identity and domicile with respect to a County. At times, that right may not be well protected by the often narrow interests of the National Assembly. The said interests may jeopardise the sovereignty and inherent rights of weak and marginalised Counties who may be in danger of domination by stronger political interests at the national level.
Some commentators have suggested that either House be engaged in moderating Bills arising from the other "Although the 2010 Constitution expressly assigns separate functions for each House, this should not impede efforts towards transforming both into regulating and moderating the legislative activities of either chamber. In essence, no enactment of law should occur without the concurrence of the majority of Kenyans (as exemplified by the National Assembly) or the majority of the counties (the Senate)." It is the opinion of this author that this suggestion by the commentator is mere wishful thinking, as this would require constitutional amendments. The commentator acknowledges the inherent difficulties of constitutional amendments: "The placement of checks and balances to regulate the legislative process is bound to encounter some difficulties. Such an attempt will meet stiff resistance owing to the fact that members of both Houses represent varied interests and viewpoints." (Osoro J B, 2013).
The Senate, as the defender of the interests of the Counties, has correctly been granted by the New Constitution, the final say on whether the National Government should intervene in the running of a dysfunctional County Government. It also has the power to bring to an end interventional measures in place against a County, such as the suspension of that County's Government by the President. Chapter 11 - Devolved Government, Part 6 - Suspension of County Governments:
192. (2) A county government shall not be suspended ........ unless ........ the Senate has authorised the suspension.
(4) The Senate may at any time terminate the suspension.
The authority of the Senate to make law on any matter is not exclusive and will always be subject to that of the National Assembly:
111. (2) The National Assembly may amend or veto a special Bill that has been passed by the Senate only by a resolution supported by at least two-thirds of the members of the Assembly.
For example, although it is the responsibility of the Senate every five years to determine the allocation of the revenue to the Counties, the National Assembly can amend or even veto the said resolutions:
217. (5) If the National Assembly–– (b) votes on the resolution, the resolution shall have been–– (i) amended only if at least two-thirds of the members of the Assembly vote in support of an amendment; (ii) rejected only if at least two-thirds of the members of the Assembly vote against it, ....... .
The Senate has the power to summon any of the Commissions, the Auditor-General or the Director of Budget to report on a matter:
254. (2) At any time, ........ the Senate may require a commission or holder of an independent office to submit a report on a particular issue.
The Constitution of Kenya 2010, closely resembles that of 1963 in limiting the authority of the Counties. For example the Senate will not get to 'consider, debate or approve Bills' that do not concern Counties; that remains the preserve of the lower house: Article 109:
109. (3) A Bill not concerning county government is considered only in the National Assembly, ....... .
Further to that, the Senate's authority in the larger scheme of national issues is limited by the New Constitution's provision that money Bills (even those that touch on Counties) cannot originate from the Senate.
109. (5) A Bill may be introduced by any member or committee of the relevant House of Parliament, but a money Bill may be introduced only in the National Assembly .......
Although the above Articles 217 and 109 appear to diminish the authority and jurisdiction of the Senate, the fact of devolution alone is enough reason to retain it.
No doubt drawing from historical experiences of the First Senate after independence, questions have been raised on more than one occasion, touching on the relevance of a Senate in present day Kenya, forcing its membership to steadfastly defended its role and importance in the national legislative processes. This was true especially in instances when the House appeared to be preoccupied with frivolous time-wasting debates over Bills and motions whose outcome was already known. According to Osoro, the Senate must not be seen to act as an "......... impediment to the speedy passing of legislation". (Osoro J B, 2013).
Indeed, supremacy wars between the two Houses soon flared during the preparation of the Division of Revenue Bill 2013, when the Members of the National Assembly voted to ignore in totality, the amendments proposed by the Senators.
The jury is still out on whether the MPs of the 10th Parliament who had their eyes set on Senate positions at the 2013 General Elections had the foresight to sufficiently push for legislation that would have given the Senate considerable influence, given that, for example, the New Constitution does not accord the Senate veto powers on any Bills.
In spite of the foregoing and whether by commission or omission, the Senate was already an inferior member of the Parliamentary Service Commission PSC, even before the 2013 elections were held and determined, because its (the PSC's) composition was skewed by the Constitution of Kenya 2010 to be in favour of the Lower House. As fate would have it, the COK2010 fails to make any mention of membership, "by right" (Kirui and Murkomen, 2011), of the Speaker of the Senate into the PSC; the Commission is chaired by the Speaker of the National Assembly while the Clerk of the Senate serves as its Secretary, preempting as well, any possibility of a co-chairing arrangement between the two Speakers.
127. (2) The Commission consists of— (a) the Speaker of the National Assembly, as chairperson;
(3) The Clerk of the Senate shall be the Secretary to the Commission.
Article 127 makes no effort to disguise the pecking order:
107. (2) At a joint sitting of the Houses of Parliament, the Speaker of the National Assembly shall preside, assisted by the Speaker of the Senate.
According to Kirui and Murkomen (2011), "....... this may be construed to imply an inverted hierarchical order where the Speaker of the Senate plays second fiddle to the Speaker of the National Assembly, contrary to tradition." Indeed, it will be interesting to see which of the two Speakers carries the day whenever there is no consensus on the question of whether a Bill concerns the Counties or not:
110. (3) Before either House considers a Bill, the Speakers of the National Assembly and Senate shall jointly resolve any question as to whether it is a Bill concerning counties and, if it is, whether it is a special or an ordinary Bill.
During the preparation of first Division of Revenue Bill after the General Elections of 2013, the country was horrified to learn that the members of the National Assembly had made an about-turn and demanded that the Bill be recalled from the Senate, arguing that the said bill did not concern the counties! Naturally, the Senate was unhappy with the NA's move which, as noted earlier, included vetoing amendments proposed in the Bill by the Upper House. The Senate went ahead to seek the intervention of the Supreme Court after the President assented to the Bill.
The reader ought to bear in mind that during the time of such disagreements, the respective Speakers are under considerable pressure from Members, and additionally, from the court of public opinion.