Before the concept and structure of 47 devolved Counties of Kenya came into being, limited executive devolution existed under Districts and Provinces. The Old Constitution offered little in the way of the Bill of Rights, little in terms of equitable representation, and nothing in terms of legislative devolution. At the very core of the Constitution of Kenya 2010 is without doubt, a most progressive Bill of Rights that has inevitably given rise to administrative and legislative devolution - because of the increasing complexity demanded by equitable representation in the Bill of Rights as found in modern-day democracies. Thus, when viewed in context, and if truth be told, the idea of a second house of Parliament in Kenya is really nothing extraordinary.
As one half of the Parliament of the Republic of Kenya, the Senate is a major stakeholder and player, in Kenya's progression towards constitutionalism, democracy, and governance. As a legislative body, the Senate must therefore adopt a long-term view of the country by pushing for far-reaching legislation that can deliver an effective and efficient devolved structure that is equitable and representative: Excerpts from Article 94 of Chapter 8 - The Legislature, Part 1 - Establishment and Role of Parliament:
94. (4) Parliament shall protect this Constitution and promote the democratic governance of the Republic.
In a country as diverse as Kenya is, the New Constitution expects the Senate to give a voice to the rights and needs of minorities and the marginalised, and to address itself to regional interests:
94. (2) Parliament manifests the diversity of the nation, represents the will of the people, ........
100. Parliament shall enact legislation to promote the representation in Parliament of— (a) women; (b) persons with disabilities; (c) youth; (d) ethnic and other minorities; and (e) marginalised communities.
96. (1) The Senate represents the counties, and serves to protect the interests of the counties and their governments.
To do so as a House of Parliament, the Senate is by default, a law-making National institution for the commonwealth of the Counties:
(2) The Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, ........
Put another way, the Senate is expected to operationalise the people's document i.e., the Constitution and more so, as we have seen, those provisions that touch on devolution. Chapter 18 - Transitional and Consequential Provisions, Article 261, excerpts:
261. (1) Parliament shall enact any legislation required by this Constitution to be enacted to govern a particular matter ........
One of the key laws that the people of Kenya were eager to see originated by the Senate after the March 2013 General Elections, was the County Allocation of Revenue Bill 2013 to apportion the amounts of devolved funds due to each of the 47 Counties for the fiscal year 2013 - 2014:
(3) The Senate determines the allocation of national revenue among counties, ........
The Senate did not disappoint and passed the Bill unanimously on the 1st of August 2013. The various apportionments contained in the Bill closely followed the recommendations of the Commission on Revenue Allocation CRA whose mandate it is to make the technical determination of the allocations that also include revenues from the Equalisation Fund for marginalised areas, as well as conditional grants to County governments. The Bill was then forwarded to the National Assembly which passed it without amendments on the 6th of August and returned it to the Senate to forward to the President for assent. The President promptly signed it into law on the 9th of August, 2013 as the County Allocation of Revenue Act No 34 of 2013.
As one part of Parliament, the Senate will exercise limited oversight functions over the use of money to the Counties (Revenue Funds). This is an important role of checks and balances:
96. (3) The Senate ........ exercises oversight over national revenue allocated to the county governments.
Now in July 2014, the Senate's Sessional Committee on County Public Accounts Investments summoned some County Governors to appear before it to answer financial audit queries raised by the Auditor-General. While some Governors obeyed the summons, others remained defiant compelling the Senate to order the Controller of Budget to freeze their Funds. In alarm, the Governors argued that the House had overstepped its mandate and oversight roles and so went ahead to seek the intervention of the High Court on the matter.
As a House of Parliament, the Senate will jointly exercise oversight roles over Commissions and Independent Offices as these are required to submit yearly reports:
254. (1) As soon as practicable after the end of each financial year, each commission, and each holder of an independent office, shall submit a report to ........ Parliament.
The Senate's role of checks and balances extends over the National Assembly in the rare but critical event that the Assembly has resolved to impeach and remove the President or the Deputy. The Senate is expected to be the sober, wiser, non-populist arbiter of such a resolution, that clearly, would be of a great concern to the Counties:
(4) The Senate participates in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office ........
This last clause (4), "makes the Senate a quasi-judicial institution" that is entrusted with the vital role "of acting as a check on the President" (Kirui and Murkomen, 2011), since a lower house with a majority from the president's party may be unable to exercise this important mandate in the event that the president (or deputy) has committed an impeachable offence.
And speaking of impeachment, the Senate plays an important role in the process of the impeachment of a Governor of a County. This process must originate from the County Assembly of the concerned County. Part V - County Executive of the County Government Act 2012:
33.(1) A member of the county assembly may by notice to the speaker, supported by at least a third of all the members, move a motion for the removal of the governor under Article 181 of the Constitution.
(2) If a motion under subsection (1) is supported by at least two-thirds of all the members of the county assembly— (a) the speaker of the county assembly shall inform the Speaker of the Senate of that resolution within two days; and (b) the governor shall continue to perform the functions of the office pending the outcome of the proceedings required by this section.
(3) Within seven days after receiving notice of a resolution from the speaker of the county assembly— (a) the Speaker of the Senate shall convene a meeting of the Senate to hear charges against the governor; and (b) the Senate, by resolution, may appoint a special committee comprising eleven of its members to investigate the matter.
(4) A special committee appointed under subsection (3) (b) shall— (a) investigate the matter; and (b) report to the Senate within ten days on whether it finds the particulars of the allegations against the governor to have been substantiated.
(5) The governor shall have the right to appear and be represented before the special committee during its investigations.
(6) If the special committee reports that the particulars of any allegation against the governor— (a) have not been substantiated, further proceedings shall not be taken under this section in respect of that allegation; or (b) have been substantiated, the Senate shall, after according the governor an opportunity to be heard, vote on the impeachment charges.
(7) If a majority of all the members of the Senate vote to uphold any impeachment charge, the governor shall cease to hold office.
The above article 33 of the County Government Act 2012 draws its provisions from the Constitution's Article 181 in chapter 11 - Devolved Government, Part 2 - County Governments:
181. (2) Parliament shall enact legislation providing for the procedure of removal of a county governor .......
Article 33 does not tell the full story. Every attempt so far to impeach a county governor, has invariably ended up in Court. The judiciary has therefore found itself having to arbitrate on a matter that on the surface of it, appears to be a political process. Indeed, the Court of Appeal ruled on the same in September of 2014, affirming that the Courts have supervisory jurisdiction over impeachment proceedings. This ruling was directed at the County Assembly of Embu which had earlier impeached its Governor, and who in turn, had gone to Court seeking a fair hearing.
This ruling, invariably added to the supremacy tussles witnessed between the legislature and judiciary, with the Senate insisting in October 2014 that it will go ahead to discuss the impeachment of the Governor of Makueni arguing that the impeachment process of a County Governor is purely a political process.