Why the Senate in Kenya Should Not be Scrapped

The Senate in Kenya is one of the Chambers of the bicameral parliament in Kenya. People wonder which, between the Senate and the National Assembly is more powerful. The Constitution is unclear on which of the two houses is superior. However, based on the functions both houses perform, the differences stand out. The National Assembly performs more functions than the Senate.

Therefore, the National Assembly is superior to the Senate. This is not de jure (by law) but de facto (by practice). The National Assembly has a wider portfolio and makes important rules that relate to the national government. The Senate’s portfolio largely involves the counties and the county governments.

Membership of the Senate

The Senate has:

  • 47 elected Members of Parliament (or Senators) representing the counties.
  • 16 MPs or Senators based on 16 special seats set aside for women. Political parties nominate these members according to their proportion of elected members in the House.
  • Four special seats set aside for the youth and persons with disabilities. A man and a woman should represent the youth, and another man and woman should represent the persons with disability.
  • The Speaker, who is is an ex officio member of the Senate.

The role of the Senate in Kenya

The functions of the Senate in Kenya largely relate to the Counties and to laws that touch on the Counties. Despite that, it has a crucial role to play in the sphere of politics and governance.

The Senate in Kenya derives its legislative authority from the people of the Republic of Kenya. It manifests the diversity of the nation, represents the will of the people, and exercises their sovereignty. It should protect the Constitution and promote the democratic governance of the Republic. (Article 94 of the Kenyan Constitution).

Article 96 of the Kenyan Constitution stipulates the role of the Senate. The role relates to

  • considering, debating and approving bills concerning Counties;
  • determining the allocation of national revenue that goes to the Counties;
  • exercising oversight authority over the national revenue allocated to the County Governments; and
  • exercising oversight over State Officers. It considers and determines any resolution to remove the President or the Deputy President from office.

In essence, the Senate in Kenya plays a collective role of representing the counties. It should protect the interests of the counties and their governments.

1Revenue Sharing Role

The most important function that the Senate performs involves revenue sharing. This involves both the vertical sharing of revenue and the horizontal sharing of revenue. The vertical sharing of revenue is a joint function between the Senate and the National Assembly.

Once every five years, the Senate should determine the basis for sharing the equitable share among the counties (Article 217 of the Constitution). The Senate can amend the revenue sharing formula anytime within the five years. The function of approving the formula is a joint function with the National Assembly. The Senate should seek also the approval of the National Assembly to amend the formula.

The Division of Revenue Bill (Article 218:1a) determines the vertical sharing of revenue. The County Allocation of Revenue Bill (Article 218:1b) determines the revenue each county should receive (horizontal sharing).

The Senate ensures that the National Assembly does not shortchange counties by denying them enough funds. In doing so, the amount of revenue allocated to the counties has continued to rise every financial year.

Through horizontal sharing, the Senate determines the amount of money each county receives from the vertical sharing.

2Oversight of revenue expenditure by counties

After the counties spend the equitable share, the Senate has to ensure that the expenditure is prudent. Therefore, it has to keep the county governments accountable to enhance transparency and fiscal discipline. It performs that role by adopting and acting on reports from the Controller of Budget and the Auditor General. These reports relate to county revenue expenditure.

The Controller of Budget reports review the county expenditure every financial quarter (3 months). They should come out within one month after the end of every quarter. The Auditor General reports are audit reports of the county expenditure that should come out within six months after the end of every financial year (financial year ends in June, so by December).

See the following articles to learn more about these reports:

As a result, the Senate issues summons periodically to governors and other county executive officials. They appear before the respective Senate Committees. The purpose of the summons is to provide information or evidence on revenue expenditure based on these reports. (Article 125 of the Kenyan Constitution).

The Senate only plays oversight over the national revenue allocated to Counties. However, it cannot do so for the other sources of revenue for the counties. That is the role of the County Assembly.

3Making laws that are important to counties

The Senate also formulates laws that are crucial to the counties. It should consider, debate and approve bills that concern the counties (Article 110 of the Kenyan Constitution). A “Bill concerning county government” means a Bill–

A Bill concerning county governments can be a special bill or an ordinary bill.

Ordinary and special bills

A Bill is a special Bill to consider under Article 111 of the Kenyan Constitution if it:

  • relates to the election of members of a county assembly or a county executive; or
  • is the annual County Allocation of Revenue Bill referred to in Article 218.

The National Assembly may amend or veto a special Bill that originates from the Senate. However, this is only possible by a resolution of at least two-thirds of the members of the Assembly. If the resolution fails to pass, the Speaker of the Assembly, within seven days, shall refer the Bill, in the form the Senate adopted, to the President for assent.

A Bill is an ordinary Bill if the Senate considers it under Article 112 of the Kenyan Constitution. This bill concerning county governments can originate from either the National Assembly or the Senate..

If one House passes an ordinary Bill concerning counties, and the second House —

  • rejects the Bill, it shall be referred to a mediation committee appointed under Article 113 of the Kenyan Constitution; or
  • passes the Bill in an amended form, it shall be referred back to the originating House for reconsideration.

If, after the originating House has reconsidered a Bill referred back to it, that House–

  • passes the Bill as amended, the Speaker of that House shall refer the Bill to the President within seven days for assent; or
  • rejects the Bill as amended, the Bill shall be referred to a mediation committee under Article 113 of the Kenyan Constitution.

Some of the Bills originating from the Senate include the:

4Ensuring integrity of public office

The Senate determines the integrity of public office by impeaching the President and his deputy. In determining the impeachment of the President and his Deputy, the Senate in Kenya follows:

  • Article 145 of the Constitution; and
  • Standing Order No. 66 and 67 of the Senate.

In addition, it determines the removal of Governors from office as part of its oversight role:

  • in accordance with Article 181 of the Constitution;
  • Section 33 of the County Governments Act; and
  • Standing Order No. 68 of the Senate.
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I comment on the current political and social issues in Kenya. I am also passionate about devolved governance and public finance. Follow me on social media.

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