Senate under the New Constitution

 

 

Fair. Assertive. Wise

 

Contents
Introduction
Authority

The Senate of the Republic of Kenya forms one of the two Houses (or Chambers) of the Parliament of the Republic of Kenya. Thus, it is a National legislative assembly. It draws its existence and authority from the concept of devolution under the Constitution of Kenya 2010.

 

Roles and Functions

 

The key mandate of the Senate of the Republic of Kenya is to safeguard and promote the interests of the units of devolution known as Counties. Hence the Senate must endeavour to influence national laws and revenue amounts that touch on Counties as well as the relationships and frameworks of cooperation between the Counties and the National Government and State Organs.

 Composition

The Senate consists of 67 members and a Speaker. Of the sixty-seven, 47 of them are directly elected by the voters of the Counties at the General Elections. Political Parties nominate 16 Women Senators to represent the women of Kenya, another 2 (a man and a woman) to represent the youth of Kenya, and one man and one woman to represent all persons with disabilities. Senators from the same County have a combined vote of one in the House.

 

Introduction

 

On the 27th of August 2010, by way of a referendum, the people of Kenya adopted a New Constitution replacing the 1963 independence Constitution. The New Constitution provides for a total of 47 administrative Counties (as listed in the First Schedule of the New Constitution), under a limited devolved system of government. Each of these Counties elects a Senator to the Senate to represent its interests. Thus, the idea for an Uppper House is a direct result of the devolution of National executive and legislative authority to the 47 Counties.

It should be remembered that this is not the first time that Kenya has had a Senate. The First Senate at independence existed for four years during which time it had little influence on legislative and executive governance, and was consequently scrapped in January of 1967 and Kenya became a unicameral state.

Up to and until the General Elections were held in March 2013, the functions of the Senate were exercised by the then National Assembly (also known as the 10th Parliament). Excerpts from the Sixth Schedule - Transitional and Consequential Provisions:

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.

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.

The Second Senate (and its Committees), are expected to conduct their activities in an open and transparent manner that in particular, accomodates and allows for public attendance and participation. Chapter 8 - The Legislature, Part 5 - Parliament's General Procedures and Rules, excerpts:

118. (1) Parliament shall— (a) conduct its business in an open manner, and its sittings and those of its committees shall be open to the public; and (b) facilitate public participation and involvement in the legislative and other business of Parliament and its committees.
(2) Parliament may not exclude the public, or any media, from any sitting unless in exceptional circumstances the relevant Speaker has determined that there are justifiable reasons for the exclusion.

This is a positive step from the old order in which Parliament appeared to revel in excessive officialdom, and gave scant attention to public opinion.

To be fair to the 10th Parliament that existed between 2008 - 2013, the above provision allowing for public participation was commonplace even before the 2013 General Elections. Nevertheless, its constitutionalisation with the passage of the Constitution of Kenya 2010 was a welcome and refreshing development. Indeed, the Senate can, if necessary, and at any time, choose to conduct its sitting from any location that it chooses, other than at Parliament Buildings. Part 6 - Miscellaneous:

126. (1) A sitting of either House may be held at any place within Kenya and may commence at any time that the House appoints.

 


 

 

Authority

 

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.

 


 

Roles and Functions 

 

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.

 


 

 

Composition and Tenure

 

The Second Senate will have in its assembly a total of 67 members. Under the devolved system of government in the New Constitution, each of the 47 Counties will directly elect a Senate Member. 

98. (1) The Senate consists of— (a) forty-seven members each elected by the registered voters of the counties, each county constituting a single member constituency;

As previously stated, the Senate safeguards the interests of Counties. Further to that, this Second Senate (unlike the First Senate) is charged with the protection of the interests of women, youth and persons with disability. These minorities and marginalised groups will be represented by Senators nominated through political party lists. The women of the Counties are particularly provided for:

98. (1) The Senate consists of— (b) sixteen women members who shall be nominated by political parties according to their proportion of members of the Senate elected under clause (a) in accordance with Article 90; (c) two members, being one man and one woman, representing the youth; (d) two members, being one man and one woman, representing persons with disabilities; ....... .

This clause has a lot riding on it, in that it assigns clear responsibilities to specific Senators. The following table summarises the constitutional composition of the Second Senate of the Republic Kenya under the New Constitution.

 

Table 2. Constitutional Composition of the Second Senate of the Republic of Kenya

 

Electoral Seat
Electoral Unit
Gender
Count

Elected Senator

The County

Both

47

Nominated Senator

Women of the Counties

Female

16

Nominated Senator

Youth of the Counties

Both

2

Nominated Senator

Persons with Disabilities in the Counties

Both

2

Speaker*

Ex-officio

Either

1

*One of the Senators is elected as Deputy Speaker by peers.

 


 

 

Members of the Second Senate of the Republic of Kenya

 

Picture of Speaker of the Senate Ekwee EthuroEkwee Ethuro Speaker of the Senate

 

 

Following the conclusion of the first elections under the Constitution of Kenya 2010, 47 Senators were elected to respectively, represent each of the 47 Counties. The Senators-elect met for the first time on the 28 March 2013 and elected Mr Ekwee Ethuro proposed by the Jubilee Coalition, who in turn promptly swore them into office.

The following tables give the reader the breakdown of the membership of the Second Senate of Kenya. Obviously, the composition of the Senate members will bear special significance on account of the political party membership of individual Senators (elected and nominated).

 

Table 3.1 Party: Wiper Democratic Movement - Kenya (WDM-Kenya)

 

   
Representation
Senator
Gender

 1. 

Mombasa  County

Hassan Omar Hassan

Male

 2. 

Tana River County

Ali Bule

Male

 3. 

Kitui County

David Musila^

Male

 4. 

Machakos County

Johnston Muthama^^

Male

5.

Makueni County

Mutula Kilonzo

Male

Mutula Kilonzo Junior=

Male

6.

Women

Judith Achieng Sideny*

Female

* Nominated Woman Member of the Senate (Article 98. (1)(b))

^ Opposition Member to the Parliamentary Service Commission (Article 127. (2))

^^ Minority Chief Whip (Parliamentary Standing Order No. 2)

=Mutula Kilonzo Junior was elected Senator for Makueni County in July 2013 in a by-election following the death of his father Senator Mutula Kilonzo in April 2013. 

 

Table 3.2 Party: Orange Democratic Movement (ODM)

 

 

Representation
Senator
Gender

1.

Kwale County

Boy Juma Boy

Male

2.

Kilifi County

Stewart Madzayo

Male

3.

Taita Taveta County

Dan Mwazo

Male

4.

Wajir County

Abdirahman Ali^

Male

5.

Marsabit County

Godana Harugura

Male

6.

Busia County

Amos Wako

Male

7.

Siaya County

James Orengo

Male

8.

Kisumu County

Anyang' Nyong'o

Male

9.

Homa Bay County

!!Otieno Kajwang'

Male

Moses Kajwang'

Male

10.

Migori County

Wilfred Machage

Male

11.

Kisii County

Chris Obure

Male

12.

Nyamira County

Kennedy Mong'are Okong'o

Male

13.

Women

Janet Ongera*^^

Female

14.

Women

Elizabeth Ongoro*^^^

Female

15.

Women

Halima Abdille Mohamud*

Female

16.

Women

Agnes Nzani*

Female

17.

Youth

Kanainza Nyongesa Daisy**

Female

18.

Persons with Disabilities

!Harold Kimunge Kipchumba***

Male

!Goldliver Omondi

Female

* Nominated Woman Member of the Senate (Article 98. (1)(b))

** Nominated Member for the Youth (Article 98.(1)(c))

*** Nominated Member for Persons with Disabilities (Article 98. (1)(d)

^ Deputy Leader of the Minority Party/Coalition (Parliamentary Standing Order No. 2)

^^ Minority Deputy Chief Whip (Parliamentary Standing Order No. 2)

^^^ May preside in the absence of Speaker/D-Speaker (Article 107. 1(c))

! Nomination of Senator Kipchumba was revoked by the High Court in Nairobi on 27 Sept 2013, on account that the IEBC illegally substituted his name for that of Ms Omondi who was placed higher up in the Party Lists (Article 98. (2)(b).

!! Senator Otieno Kajwang' died suddenly on the 19th of November 2014. The ensuing by-election held on the 12th of February 2015 was won by his brother Moses Kajwang'.

 

Table 3.3 Party: The National Alliance (TNA)

 

 
Representation
Senator
Gender

1.

 Lamu County

Abu Chiaba

Male

2.

 Garissa County

Yusuf Haji

Male

3.

 Tharaka-Nithi County

Kindiki Kithure^

Male

4.

Nyandarua County

Muriuki Karue

Male

5.

Kirinyaga County

Daniel Karaba

Male

6.

 Murang'a County

Kembi Gitura^^

Male

7.

Kiambu County

Kimani wa Matangi

Male

8.

Laikipia County

G G Kariuki

Male

9.

Nakuru County

James Kiarie Mungai

Male

10.

Kajiado County

Peter Ole Mositet

Male

11.

Nairobi County

Gideon Mbuvi Sonko^^^

Male

12.

Women

Beth Wambui Mugo*&

Female

13.

Women

Emma Mbura Gertrude*

Female

14.

Women

Naisula Lesuuda*

Female

15.

Women

Joy Adhiambo Gwendo*

Female

16.

Youth

Hosea Onchwangi**

Male

17.

Persons with Disabilities

!Linet Kemunto Nyakeriga***

Female

!Ben Njoroge***

Male

  * Nominated Woman Member of the Senate (Article 98. (1)(b))

 ** Nominated Member for the Youth (Article 98.(1)(c))

*** Nominated Member for Persons with Disabilities (Article 98.(1)(d)0

^ Leader of the Majority Party/Coalition (Article 108.(2))

^^ Elected by members as the Deputy Speaker of the Senate (Article 106.(1)(b))

^^^ Majority Deputy Chief Whip (Parliamentary Standing Order No. 2)

& Majority Member to the Parliamentary Service Commission (Article 127. (2))

! Nomination of Senator Kemunto was revoked by the High Court in Nairobi on 28 Sept, 2013 on account that the IEBC illegally substituted her name for that of Ben Njoroge who was placed higher up in the Party Lists (Article 98. (2)(b). 

 

Table 3.4 Party: United Republican Party (URP)

 

 
Representation
Senator
Gender

1.

Mandera County

Billow Kerrow

Male

2.

Isiolo County

Mohammed Kuti

Male

3.

Samburu County

Sammy Leshore&

Male

4.

Uasin Gishu County

Isaac Melly

Male

5.

Elgeyo Marakwet County

Kipchumba Murkomen^

Male

6.

Nandi County

Stephen Sang

Male

7.

Narok County

Steven Ole Ntutu

Male

8.

Kericho County

Charles Keter^^

Male
9.

Bomet County

Wilfred Lesan

Male
10.

Women

Mshenga Mvita Kisasa*

Female
11.

Women

Chelule Liza*

Female
12.

Women

Dulo Fatuma Adan*

Female

*Nominated Woman Member of the Senate (Article 98. (1)(b))

^May preside in the absence of both the Speaker and D-Speaker (Article 107. 1(c))

^^Nominated as the Deputy Leader of the Majority Party/Coalition (Parliamentary Standing Order No. 2)

&Majority Member to the Parliamentary Service Commission (Article 127. (2))

 

Table 3.5 Party: National Alliance Rainbow Coalition (NARC)

 

 
Representation
Senator
Gender

 1.

Nyeri County

Mutahi Kagwe

Male

 

Table 3.6 Party: Alliance Party of Kenya (APK)

 

 
Representation
Senator
Gender

1.

Meru County

Kiraitu Murungi

Male

2.

Embu

Lenny Kivuti

Male

3.

Women

Beatrice Elachi*^

Female

 * Nominated Woman Member of the Senate (Article 98. (1)(b))

 ^ Majority Chief Whip (Parliamentary Standing Order No. 2)

 

Table 3.7 Party: Forum for the Restoration of Democracy - Kenya (FORD-K)

 

 
Representation
Senator
Gender

1.

Turkana County

John Munyes

Male

2.

Trans Nzoia County

Henry Ndiema

Male

3.

!Bungoma County

!Moses Wetangula^

Male

4.

Women

Catherine Mukite Nobwola*

Female

* Nominated Woman Member of the Senate (Article 98. (1)(b))

^ Leader of the Minority Party/Coalition (Article 108.)

! The election of Senator Wetangula was revoked on the 30 Sept 2013 by the High Court in Bungoma, and a by-election ordered on account of massive irregularities. Wetangula however retained his seat at the by-election held on the 20th of December 2013.

 

Table 3.8 Party: Kenya African National Union (KANU)

 

 
Representation
Senator
Gender

1.

Baringo County

Gideon Moi

 Male

2.

West Pokot County

John Lonyangapuo

 Male

3.

Women

Zipporah Jepchirichir Kittony*

Female

  *Nominated Woman Member of the Senate (Article 98. (1)(b))

 

Table 3.9  Party: United Democratic Forum (UDF)

 

 
Representation
Senator
Gender

1.

Kakamega County

Bonny Khalwale

Male

2.

Vihiga County

George Khaniri

Male

3.

Women

Martha Wangari*

Female

  *Nominated Woman Member of the Senate (Article 98. (1)(b))

 

No woman was directly elected to the Senate in the 2013 elections.

The combined membership of both the URP and TNA in the Senate and who between them form part of the Jubilee Coalition, constitute more than half (24) of all the directly Elected Senators in this Second Senate. Consequently, this Coalition has 10 Nominated Senators, as permitted by Article 98 through party lists.

A quorum of only 15 Senators (just over 22% of the Members) will be enough to transact most of the business in the Senate:

121. The quorum of Parliament shall be–– (b) fifteen members, in the case of the Senate.

The New Constitution has expressly given the two Houses of Parliament much leeway and flexibility, perhaps to preempt questions of legality being raised against its activities. For example, the business of the Senate cannot stop just because of a vacancy in its membership or an invited outsider happened to actively participate in its proceedings: 

124. (3) The proceedings of either House are not invalid just because of— (a) a vacancy in its membership; or (b) the presence or participation of any person not entitled to be present at, or to participate in, the proceedings of the House.

The life cycle of the Senate is tied to the holding of a general election. This means that an impeachment by the Senate, of a sitting President, will not necessitate a General Election:

102. (1) The term of each House of Parliament expires on the date of the next general election.

However, the constitution allows for limited extensions of the Senate under the exceptional circumstances of war:

102. (2) When Kenya is at war, Parliament may, by resolution supported in each House by at least two-thirds of all the members of the House, from time to time extend the term of Parliament by not more than six months at a time.
(3) The term of Parliament shall not be extended under clause (2) for a total of more than twelve months.

The 16 nominated women Senators are expected to perform delicate balancing acts when legislating given that different Counties attach different levels of importance to women issues as a matter of social-cultural fact. The Senators will need to make their voices heard within and outside of the Senate by networking with the women Members of the National Assembly and civil advocacy groups. The New Constitution is silent on the mechanism by which a Senator will be accountable to the people or when and how the people of the county can make petitions to the Senator for presentation in the Senate. 

Senators representing more populated counties may very well find themselves under pressure to somehow exert more clout and influence at the House so as not to appear to be outdone by those from smaller counties. According to Kirui and Murkomen (2011), "........ they may often pass the buck to the other House or committee, and as a result disguise their decision-making responsibility."

With the coming of the Senate as a new structure of governance in the country, it is crucial that the electoral body, the IEBC, conducts broad voter education before and after the elections, on what are the qualities of an effective Senator as well as the roles and structures of this new legislative body. Special mention here goes to the Commission on the Implementation of the Constitution (CIC) which must remain vigilant and play the important role of 'the peoples' watch-dog' on the 11th Parliament as the country transitions to bicameralism.

 


 

Committees

 

As a House of Parliament, the Senate can constitute Committees of the Senate complete with Standing Orders:

124. (1) Each House of Parliament may establish committees, and shall make Standing Orders for the orderly conduct of its proceedings, including the proceedings of its committees.

The Second Senate has 3 types of Committees: House Keeping (1), Standing (7) and Sessional (3) Committees. Such Committees have their powers, immunities and privileges defined by law:

117. (2) Parliament may, for the purpose of the orderly and effective discharge of the business of Parliament, provide for the powers, privileges and immunities of Parliament, its committees, ........ the chairpersons of committees and members.

 

(A) Rules and Business Committee

 

Mandate: prepare and adjust Senate Calendar - monitor and oversee the implementation of the Senate business and programmes - implement the Standing Orders.

 

Table 4.1  Rules and Business Committee (House Keeping)

 

 
Senator
Gender
Party
Representation
 1 Speaker Ekwe Ethuro - Chair
Male N/A N/A
  Leader of Majority Kindiki Kithure Male TNA Tharaka-Nithi
  Leader of the Minority Moses Wetangula Male FORD-K Bungoma
  Majority Whip Beatrice Elachi Female APK Women
  Minority Whip Johnston Muthama Male Wiper Machakos
  Beth Mugo Female TNA Women
  John Lonyangapuo Male KANU West Pokot
  Charles Keter Male URP Kericho
  Kiraitu Murungi Male APK Meru
10
Janet Ong'era Female ODM Women
  James Orengo Male ODM  Siaya
12 Agnes Zani Female ODM  Women

 

Click Rules and Business Committee of the Senate for more on this powerful committee of the Senate. The Chairperson and four other members of the Committee shall form a quorum.

 

(B) Committee on Agriculture, Land and Natural Resources (Standing Committee)

 

Mandate: To consider all matters related to agriculture, livestock, fisheries development, Lands and settlement, environment, forestry, water resource management and development, veterinary services.

 

Table 4.2 Committee on Agriculture, Land and Natural Resources (Standing Committee)

 

 
Senator
Gender
Party
Representation
 1 Lenny Kivuti - Chair
Male TNA Embu
  George Khaniri - V/Chair
Male TNA Vihiga
  Isaac Melly
Male URP Uasin Gishu
  Liza Chelule
Female URP Women
  Lesuuda Naisula
Female TNA Women
  Janet Ong'era
Female ODM Women
  Boy Juma Boy
Male ODM Kwale
  Danson Mwazo
Male ODM Taita Taveta
 9 Henry Tiole Ndiema
Male FORD-K Trans Nzoia

 

(C) Committee on Education, Information and Technology (Standing Committee)

 

Mandate: to consider all matters related to education, training, technology, engineering and electronic research, information, broadcasting and Information Communications Technology (ICT) development.

 

 

Table 4.3 Committee on Education, Information and Technology (Standing Committee)

 

 
Senator
Gender
Party
Representation
 1 Mutahi Kagwe - Chair
Male NARC Nyeri
  John Lonyangapuo Male KANU West Pokot
  Wilfred Lesan
Male URP Bomet
  Daniel Karaba
Male TNA Kirinyaga
  Joy Gwendo
Female TNA Women
  Mutula Kilonzo
Male Wiper Makueni
  Daisy Kanainza Nyongesa Female ODM Youth
  Halima Abdile Mohamud - V/Chair
Female ODM Women
 9 Kennedy Okong'o Mong'are
Male ODM Nyamira

 

(D) Committee on Energy, Roads and Transportation (Standing Committee)

 

Mandate: to consider all matters related Transport, roads, public works, construction and maintenance of roads, rails and buildings, air, seaports and housing, Fossil fuels exploration, Development, production, maintenance and regulation of energy and communication.

 

 

Table 4.4 Committee on Energy, Roads and Transportation (Standing Committee)

 

 
Senator
Gender
Party
Representation
 1 Kiraitu Murungi Male APK Meru
  Gideon Moi - Chair
Male KANU Baringo
  Abu Chiaba
Male TNA Lamu
  Martha Wangari
Female UDF Women
  Charles Keter Male URP Kericho
  Christopher Obure Male ODM Kisii
  Otieno Kajwang Male ODM Homa Bay
 
Johnson Muthama
Male Wiper Machakos
9
Danson Mwazo - V/Chair
Male ODM Taita Taveta

 

(E) Committee Finance, Commerce and Economic Affairs (Standing Committee)

 

Mandate: to consider all matters related to resolutions and Bills for Appropriations, share of national revenue among the Counties and all matters concerning the National Budget, including public finance monitory policies and public debt, trading activities and commerce, tourism, investment and divestiture policies, planning and development policy.

 

Table 4.5 Committee Finance, Commerce and Economic Affairs (Standing Committee)

 

 
Senator
Gender
Party
Representation
 1 Kerrow Billow
Male URP Mandera
  Boni Khalwale
Male UDF Kakamega
  Mutahi Kagwe
Male NARC Nyeri
  Peter Mositet
Male TNA Kajiado
  James Mungai
Male TNA Nakuru
  Moses Wetangula
Male FORD-K Bungoma
  Peter Anyang' Nyong'o
Male ODM Kisumu
  Harold Kipchumba Male ODM Persons With Disabilities
 9 Catherine Mutike Nobwola
Female FORD-K Women

 

(F) Committee on Health, Labour and Social Welfare (Standing Committee)

 

Mandate: to consider all matters related to health, manpower and human resource planning, Labour, trade union relations, manpower and human resource planning, gender, culture and social welfare, youth, National Youth Service; children’s welfare; national heritage, betting, lotteries and sports public entertainment, public amenities, recreation.

 

Table 4.6 Committee on Health, Labour and Social Welfare (Standing Committee)

 

 
Senator
Gender
Party
Representation
 1 Mohammed Kuti - Chair
Male URP Isiolo
  Zipporah Kittony - V/Chair
Female KANU Women
  Hosea Onchwang'i
Male TNA Youth
  Linet Nyakeriga
Female TNA Persons With Disabilities
  Stephen Ole Ntutu
Male URP Narok
  Hassan Abdirahman
Male ODM Wajir
  John Munyes Male FORD-K Turkana
  Wilfred Machage
Male ODM Migori
 9 Stewart Madzayo
Male ODM Kilifi

 

(G) Committee on Legal Affairs and Human Rights (Standing Committee)

 

Mandate: to consider all matters related to Constitutional affairs, the organization and administration of law and justice, elections, promotion of principles of leadership, ethics and integrity; and implementation of the provisions of the Constitution on human rights.

 

 

Table 4.7 Committee on Legal Affairs and Human Rights (Standing Committee)

 

 
Senator
Gender
Party
Representation
 1 Fatuma Dullo Female URP Women
  Kiraitu Murungi
Male APK Meru
  Kipchumba Murkomen
Male URP Elgeyo Marakwet
  Stephen Sang - V/Chair
Male URP Nandi
  Kembi Gitura
Male TNA Murang'a
  Amos Wako - Chair
Male ODM Busia
  Mutula Kilonzo
Male Wiper Makueni
  Hassan Omar Hassan
Male Wiper Mombasa
 9 Judith Achieng Sideny
Female Wiper Women

 

(H) Committee on National Security and Foreign Relations (Standing Committee)

 

Mandate: to consider all matters related to regional integration, national security and foreign relations, international relations, agreements, treaties and conventions.

 

Table 4.8 Committee on National Security and Foreign Relations (Standing Committee)

 

 
Senator
Gender
Party
Representation
 1 Yusuf Haji - Chair
Male TNA Garissa
  G G Kariuki
Male TNA Laikipia
  Fatuma Dullo - V/Chair
Female URP Women
  Kembi Gitura
Male TNA Murang'a
  Mike Mbuvi Sonko
Male TNA Nairobi
  James Orengo
Male ODM Siaya
  Elizabeth Ongoro
Female ODM Women
  Hargura Godana
Male ODM Marsabit
 9 Moses Wetangula
Male FORD-K Bungoma

 

(I) Committee on Devolved Government (Sessional Committee)

 

Mandate: to consider all matters related to intergovernmental and inter-county relations, governance and management of county governments, cities towns and urban areas.

 

Table 4.9 Committee on Devolved Government (Sessional Committee)

 

 
Senator
Gender
Party
Representation
 1 Kipchumba Murkomen -  Chair
Male URP Elgeyo Marakwet
  Beatrice Elachi
Female APK Women
  Muriuki Karue
Male TNA Nyandarua
  Mvita Kisasa
Female URP Women
  Martha Wangari - V/Chair
Female UDF Women
  Amos Wako
Male ODM Busia
  Anyang' Nyong'o
Male ODM Kisumu
  Hassan Omar Hassan
Male Wiper Mombasa
 9 Henry Tiole Ndiema
Male FORD-K Trans Nzoia

 

(J) Committee on Implementation (Sessional Committee)

 

To scrutinize the resolution of the Senate (including adopted committee reports), petitions and formal undertakings given by the National Executive and examine – i) whether or not such resolutions and undertakings have been implemented and where implemented, the extent to which they have been implemented; and whether such implementation has taken place within a reasonable time; and ii) whether or not legislation passed by the Senate has been operationalised and where operationalised, the extent to which such operationalisation has taken place within a reasonable time.

 

Table 4.10 Committee on Implementation (Sessional Committee)

 

 
Senator
Gender
Party
Representation
 1 Boni Khalwale
Male UDF Kakamega
  Paul Wamatangi
Male TNA Kiambu
  Linet Nyakeriga
Female TNA Persons With Disabilities
  Joy Gwendo
Female TNA Women
  G G Kariuki
Male TNA Laikipia
  Hassan Abdirahman
Male ODM Wajir
  Boy Juma Boy
Male ODM Kwale
  James Orengo - Chair
Male ODM Siaya
 9 Daisy Nyongesa - V/Chair
Female ODM Youth

 

(K) Committee on Delegated Legislation (Sessional Committee)

 

Shall consider in respect of any statutory instrument whether it-

  1. is in accord with the provisions of the Constitution, the Act pursuant to which it is made or other relevant written law;
  2. infringes on fundamental rights and freedoms of the public;
  3. contains a matter which in the opinion of the Committee should more properly be dealt with in an Act of Parliament;
  4. directly or indirectly bars the jurisdiction of the Courts;
  5. gives retrospective effect to any of the provisions in respect of which the Constitution or the Act does not expressly give any such power;
  6. involves expenditure from the Consolidated Fund or other public revenues;
  7. is defective in its drafting or for any reason the form or purport of the statutory instrument calls for any elucidation;
  8. appears to make some unusual or unexpected use of the powers conferred by the Constitution or the Act pursuant to which it is made;
  9. appears to have had unjustifiable delay in its publication or laying before Parliament;
  10. makes rights, liberties or obligations unduly dependent upon non-reviewable decisions;
  11. makes rights, liberties or obligations unduly dependent insufficiently defined administrative powers;
  12. inappropriately delegates legislative powers;
  13. imposes a fine, imprisonment or other penalty without express authority having been provided for in the enabling legislation;
  14. appears for any reason to infringe on the rule of law;
  15. inadequately subjects the exercise of legislative power to parliamentary scrutiny; and,
  16. accords to any other reason that the Committee considers fit to examine.

 

Table 4.11 Committee on Delegated Legislation (Sessional Committee)

 

 
Senator
Gender
Party
Representation
 1 Sammy Leshore
Male URP Samburu
  Liza Chelule
Female URP Women
  Emma Gertrude Mbura
Female TNA Women
  Daniel Karaba
Male TNA Kirinyaga
  Mvita Kisasa Mshenga - Chair
Female URP Women
  Stewart Madzayo
Male ODM Kilifi
  Judith Sijeny - V/Chair
Female Wiper Women
  Harold Kipchumba
Male ODM Persons With Disabilities
 9 David Musila
Male Wiper Kitui

 

Now the world over, Parliamentary committees play an important role of raising the efficiency and speed of the business of the House. They do so by enabling a small group of members to work closely together and to produce Bills and reports for consideration by the whole House in plenary. Almost always, the decisions of these committees are adopted with minimal fuss by the House. However, in August 2014, the Senate strongly voted to rejected a report of a special Committee that had overwhelmingly recommended the impeachment of the Deputy Governor of Machakos County, raising concerns as to the place and part of these committees in the wider scheme of things.

Committees have been granted the powers of a High Court to summon anyone or to demand information from anyone in or outside the country, or any public or private organ:

125. (1) Either House of Parliament, and any of its committees, has power to summon any person to appear before it for the purpose of giving evidence or providing information.
(2) For the purposes of clause (1), a House of Parliament and any of its committees has the same powers as the High Court— (a) to enforce the attendance of witnesses and examine them on oath, affirmation or otherwise; (b) to compel the production of documents; and (c) to issue a commission or request to examine witnesses abroad.

The Second Senate must carefully determine the type of committees it forms lest it appears to duplicate the work of similar committees of the National Assembly and thereby risk being frivolous.

Committees of the Senate have powers to summon a Cabinet Secretary:

153. (3) A Cabinet Secretary shall attend before a committee of the National Assembly, or the Senate, when required by the committee, and answer any question concerning a matter for which the Cabinet Secretary is responsible.

The summons referred to above may be issued by a select committee investigating a matter for which the oversight role of the Senate is applicable, or by an ordinary committee considering legislation that affects policy for which the Cabinet Secretary is responsible.

To remain relevant, the Senate must remain alert to potential delays whenever Bills from the National Assembly are referred to it for deliberation. One way in which it can achieve this is to keep open lines of communication with the lower house and hope to be invited informally to provide input on Bills that do not concern the Counties, especially money Bills. So, although the New Constitution does not give the Senate the express right to advise the National Assembly, it is not too much to hope that the two Houses will seek to work in harmony and to effectively complement their roles. This cooperation which may sometimes be forced on the two houses by the political mood of the day, could be achieved through formal joint committees of both Houses of Parliament to consider ordinary Bills concerning Counties.

124. (2) Parliament may establish joint committees consisting of members of both Houses and may jointly regulate the procedure of those committees.

Joint Committees serve two main purposes: to expedite approvals over crucial legislation that must be considered by both Houses and to allow direct negotiations between the two Houses when reviewing public interest or controversial legislation. A lot of time can be wasted when for example, a Bill is approved by one House and returned by the other with amendments. Joint Committees would eliminate this ping-pong movement of Bills and also save time such as when the two Houses (or "Parliament") are considering the same report:

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 the President and to Parliament.

The current 11th Parliament has two (2) joint committees of both its Houses: Joint Committee on National Cohesion and Equal Opportunity and its sister Joint Parliamentary Broadcasting and Library Committee.

 

(L) Joint Committee on National Cohesion and Equal Opportunity

 

This Committee has equal representation from both Houses, i.e 15 Members each.

 

Table 4.12 Joint Committee on National Cohesion and Equal Opportunity

 

 
Senator
Gender
Party
Representation
 1 Peter Mositet
Male TNA Kajiado
  Emma Gertrude Mbura
Female TNA Women
  Mike Mbuvi Sonko
Male TNA Nairobi
  Stephen Sang
Male URP Nandi
  Ali Bulle
Male Wiper Tana River
  Muriuki Karue
Male TNA Nyandarua
  Beatrice Elachi
Female APK Women
  Isaac Melly
Male URP Uasin Gishu
  Otieno Kajwang
Male ODM Homa Bay
10
Hargura Godana
Male ODM Marsabit
  Agnes Zani Female ODM Women
  Christopher Obure Male ODM Kisii
  Henry Tiole Ndiema Male FORD-K Trans Nzoia
  Abdirahman Hassan  Male ODM Wajir
 15 Harold Kipchumba  Male ODM Persons With Disabilities

 

For more on this Joint Committee of Parliament click here.

 

(M) Joint Parliamentary Broadcasting and Library Committee.

 

This Committee has equal representation from both Houses, i.e 15 Members each. 

 

Table 4.13 Joint Parliamentary Broadcasting and Library Committee.

 

 
Senator
Gender
Party
Representation
 1 Naisula Lesuuda
Female TNA Women
  Daniel Karaba
Male TNA Kirinyaga
  George Khaniri Male UDF Vihiga
  Stephen ole Ntutu Male TNA Kajiado
  Paul Wamatangi Male TNA Kiambu
  Kiarie Mungai
Male TNA Nakuru
  Abu Chiaba Male TNA Lamu
  Mohammed Kuti
Male URP Isiolo
  Wilfred Machage
Male ODM Migori
10
Halima Abdille Mohammud
Female ODM Women
  Kennedy Mong'are Okong'o
Male ODM Nyamira
  Boy Juma Boy Male ODM Kwale
  Daisy Nyongesa Female ODM  Youth
  Catherine Nobwola  Female FORD-K Women
15 Stewart Madzayo
Female ODM  Women

 

For more on this Joint Committee of Parliament click here.

A special joint committee known as a Mediation Committee may be formed by both Houses to help navigate around contentious legislation in County Bills and avert time-wasting stalemates:

112. (1) If one House passes an ordinary Bill concerning counties, and the second House–– (a) rejects the Bill, it shall be referred to a mediation committee appointed under Article 113; ....... .

During the preparation of the first Division of Revenue Bill in 2013 under the New Constitution, the National Assembly appeared to contravene this provision when its Speaker went ahead to ask the President to assent to it after deleting the amendments that had been proposed by the Senate. The Senate argued that the two Houses ought to establish a (joint) Mediation Committee to look into the disagreements.

113. (1) If a Bill is referred to a mediation committee under Article 112, the Speakers of both Houses shall appoint a mediation committee consisting of equal numbers of members of each House to attempt to develop a version of the Bill that both Houses will pass.

Without a doubt, Committees greatly enhance the performance of a legislative body. They enable a legislative assembly to split itself into smaller yet fully functional units of itself to expedite functions and responsibilities of the House. These smaller, nimble units are also easily able to move and sit anywhere in the Republic or abroad, when need arises.

 

 


 

Bills & Legislation

 

 


 

Hansard & Records

 

Hansard is the name of the printed transcripts of parliamentary debates in the Westminster system of government of which Kenya borrows heavily. It is named after Thomas Curson Hansard, an early printer and publisher of these transcripts. (Wikipedia). Click the following link Hansard reports of the Second Senate of Kenya for more on the debates and records of our current Senate.

 

 


 

 

References:

1. arap Kirui K and Murkomen K, (2011). The Legislature: Bi-cameralism under the new Constitution. Constitution Working Paper Series No. 8; Society for International Development (SID).

2. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General. 

3. The Kenya Gazette Volume CXV - No.45, of March 13, 2013. Government of Kenya Printer.

4. The Kenya Gazette Volume CXV - No.50, of March 20, 2013. Government of Kenya Printer.

5. Parliament of Kenya website. Retrieved at various times from April 17, 2013.

6. Osoro J B (July 2013). "The Houses of Parliament shouldn't bicker". Daily Nation Opinion, July 8, 2013.

7. County Allocation of Revenue Act No 34 of 2013. The Kenya Gazette Supplement, Acts 2013 of 12 August 2013. Government of Kenya Printer.

8. Musikari Nazi Kombo v Moses Masika Wetangula & 2 others [2013] eKLR. IN THE HIGH COURT OF KENYA AT BUNGOMA. ELECTION PETITION NO.3 OF 2013.

9. "Mzalendo - Eye on Kenyan Parliament". Retrieved 2014.

10. Martin Nyaga Wambora & 3 others v Speaker of the Senate & 6 others [2014] eKLR. National Council for Law Reporting. The Attorney General.

11. "Senate To Ignore Court Order On Kibwana Impeachment". Website of Citizennews. Retrieved November 2014.

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