As a House of Parliament, the Senate was expected to participate in making laws. Part 4 - Legislative Powers, excerpts:
66. (1) Subject to the provisions of this Constitution, Parliament shall have power to make laws for the peace, order and good government of Kenya or any part thereof.
Crucially, despite its limited authority and clout, the Senate had to be consulted before a state of emergency or war, or an extension of the same, could be declared:
69. (4) ....... no proclamation of emergency shall be made except with the prior authority of a resolution of either House ....... supported by the votes of 65 per cent of all the members of that House, .......
(5) ....... but every proclamation so made shall lapse at the expiry of seven days, commencing with the day on which it was made, unless it has in the meantime been approved by a resolution of each House of the National Assembly supported by the vote of 65 per cent of all the members of that House.
And should the House of Representatives be dissolved, the Senate then becomes the sole authority to approve such a state of emergency:
(6) A proclamation of emergency may be made ....... at any time when Parliament stands dissolved but ....... shall lapse at the expiration of seven days ....... unless it has been approved by a resolution of the Senate supported by the vote of 65 per cent of all the Senators.
An 'out of line' regional government could expect the lawful support of the Senate especially if it felt its actions were unfairly adjudged by the lower house seeking to suspend its government purely for political reasons:
70. (1) ....... there is in force a resolution of each House of the National Assembly supported by the votes of 65 per cent of all the members, of that House declaring that the executive authority of a Region is being exercised in contravention of ....... this Constitution, Parliament may make laws for that Region ....... .
As we have seen, this First Senate was established through strong lobbying by the political party KADU, mainly to ensure a safeguard for rights of the minority groups in Kenya. Proctor explains some of the specifics: "The idea of a second chamber for Kenya was originally proposed by the Kenya African Democratic Union (hereafter called KADU) as part of its plan to provide protection for the smaller tribes, which that party represented, against the danger of domination by the larger and more advanced Kikuyu and Luo groups, which supported the Kenya African National Union (hereafter called KANU). KADU desired a federal system in which considerable power would be allocated to regional governments. An upper house was considered necessary to safeguard the autonomy of the regions and to assure sufficient representation of minority interests at the center, for it was recognized that a unicameral legislature elected on the basis of "one man, one vote" might very well be completely controlled by KANU which favored a greater centralization of power. Mr. Ronald Ngala, leader of KADU, said upon his arrival in London for the 1962 constitutional conference, "We believe that a two-Chamber Parliament with a Senate especially charged with preserving the rights of the regions is the only way to ensure the continuing liberty of the individual." (Proctor, 1965).
Clearly, and sadly, the present ethnic divisions in politics in Kenya witnessed today existed way back before independence; instigated and abetted no-less than by the colonial masters, leading to the formula for delimitation of District boundaries and hence Senate representation being based purely on ethnicity. These District boundaries had been drawn by the Regional Boundaries Commission for the 1962 Census and were considered expedient to the political considerations of the day by the majority of the players: "In 1962, immediately preceding independence, the Regional Boundaries Commission divided Kenya on the basis of either ethnic homogeneity, i.e. one tribe per district, or compatibility, i.e. more than one tribe per district or province where they were happy to coexist." (Roddy Fox, 1996).
KANU meanwhile, did not see the need for a senate. However, a compromise was arrived at, that allowed for a weaker upper house, but provided for a Senator from every District. J H Proctor continues, "........ partly to ensure proper representation of geographical views and interests, partly to act as a revising and reforming house, and also, possibly most important, to act as fundamental protector of individual rights and liberties ....... and to assure, particular influence to local or special interests ....... Elections by districts would ....... provide a much more effective safeguard for minorities and individuals."
In a nutshell, the Senate stood as the protector of group regional rights and individual liberties of minorities, against the dominance by the larger tribes who under KANU, could easily have swamped their interests.