The Draft Constitition & the Legislature - Part I

by Samuel Marete

Alas, it has been too long since I last wrote. But with the vote on August 4^th, press on I must. I will endeavour in the next couple of articles to review the proposed structure of the Legislature.

The composition of Parliament (Article 93)

As noted in my previous article, the proposed Parliament is to be bicameral, consisting of the Senate, whose representatives will be senators, representing counties, and the National Assembly, whose representatives will be Members of the National Assembly, representing constituencies. A quick mnemonic to remember this is: S +NA=P – SNAP. The term Member of Parliament will thus mean either a Senator or a Member of the National Assembly.

Manner of election, qualifications to be an MP and the right of recall (Articles 99, 101-102, 104)

A general election for both members of the National Assembly and senators is to be held on the 2^nd Tuesday of August every 5 years, on the same date as the Presidential election. Each Parliament’s term expires on the date of the next general election. One qualifies to be an MP if he/she:

1. is registered as a voter;
2. satisfies any educational, moral and ethical requirements prescribed by the proposed Constitution or by an Act of Parliament; and
3. is nominated by a political party, or is an independent candidate who is supported–
   1. in the case of election to the National Assembly, by at least one thousand registered voters in the constituency; or
   2. in the case of election to the Senate, by at least two thousand registered voters in the county.

One may not be an MP if he/she:

1. is a State officer or other public officer, other than a member of Parliament;
2. has, at any time within the five years immediately preceding the date of election, held office as a member of the Independent Electoral and Boundaries Commission;
3. has not been a citizen of Kenya for at least the ten years immediately preceding the date of election;
4. is a member of a county assembly;
5. is of unsound mind;
6. is an undischarged bankrupt;
7. is subject to a sentence of imprisonment of at least six months, as at the date of registration as a candidate, or at the date of election; or
8. is found, in accordance with any law, to have misused or abused a State office or public office or in any way to have contravened Chapter Six (Chapter Six deals with Leadership and Integrity).

The electorate have the right to recall members of Parliament. However, a crucial failing of the proposed Constitution is that the enactment of legislation to provide for the grounds on which a member of Parliament may be recalled and the procedure to be followed is left to Parliament itself. To leave the task of enacting a law by which MPs stand to suffer in the hands of the MPs themselves is less than wise. The Committee of Experts ought to have put the provisions for this in the Constitution.

Manner in which laws are to be enacted (Articles 115, 122, 123)

Generally speaking, any question proposed for decision in either House of Parliament shall be determined by a majority of the members in that House, present and voting (Article 122).

However, for the Senate, there are additional considerations. On election, all the members of the Senate who were registered as voters in a particular county shall collectively constitute a single delegation for purposes of voting. Except as provided otherwise in the proposed Constitution, in any matter in the Senate affecting counties—

1. each county delegation shall have one vote to be cast on behalf of the county by the head of the county delegation or, in the absence of the head of the delegation, by another member of the delegation designated by the head of the delegation;
2. the person who votes on behalf of a delegation shall determine whether or not to vote in support of, or against, the matter, after consulting the other members of the delegation; and
3. the matter is carried only if it is supported by a majority of all the delegations.

Within fourteen days after receipt of a Bill from Parliament, the President should either assent to the Bill or refer the Bill back to Parliament for reconsideration by Parliament, noting any reservations that he/she may have concerning the Bill.

If the President refers a Bill back for reconsideration, Parliament may, either amend the Bill in light of the President’s reservations, or pass the Bill a second time without amendment.

If Parliament amends the Bill fully accommodating the President’s reservations, the appropriate Speaker shall resubmit it to the President for assent.

However, Parliament, after considering the President’s reservations, may pass the Bill a second time, without amendment, or with amendments that do not fully accommodate the President’s reservations, by a vote supported—

1. by two-thirds of members of the National Assembly; and
2. two-thirds of the delegations in the Senate, if it is a Bill that requires the approval of the Senate.

Once this has been done, the appropriate Speaker should resubmit it to the President within seven days; and the President should assent to the Bill within seven days. If the President does not assent to a Bill or refer it back within the period prescribed, the Bill shall be taken to have been assented to on the expiry of the 14-day period given to the President for referring the Bill back to Parliament.

The National Assembly – number of members (Article 97, 121)

The National Assembly under the new Constitution is to have a grand total of 349 members, plus a Speaker. The 349 members are as follows:

1. 290 members each representing a constituency
2. 47 women members, one per county
3. 12 members nominated by political parties in the proportion of the members these parties have in the National Assembly.

Amazingly, the National Assembly’s quorum is a mere 50 members, or 14% of members (Article 121).

The National Assembly – role (Articles 97, 109, 132)

There is a misconception (perhaps not common) that the Senate is the more powerful of the two Parliamentary houses. This is certainly not true. Members of the current Parliament, in keeping with character, ensured that they retained as much power as possible for themselves as members of the future National Assembly:

1. As stated in my foregoing articles, the power to approve Presidential appointments (Cabinet Secretaries, the Attorney-General, the Secretary to the Cabinet, Principal Secretaries, High Commissioners, Ambassadors, diplomatic and consular representatives and other public officers) resides with the National Assembly; the Senate plays no part in this at all.
2. Article 97 states that the National Assembly:
   1. determines the allocation of national revenue between the levels of government (national and devolved);
   2. appropriates funds for expenditure by the national government and other national State organs; and
   3. exercises oversight over national revenue and its expenditure.
   4. Further, Article 109 (3) states that a Bill not concerning county government is considered only in the National Assembly. This includes, especially, “Money Bills” (Article 114) which deal with taxation; charges on national funds (i.e. national expenditure); the appropriation, receipt, custody, investment or issue of public money; and the raising or guaranteeing of any loan or its repayment.

All these provisions serve to concentrate power within the National Assembly, something we shall consider further below.

The Senate – number of members (Article 98, 121)

The Senate is set to consist of 67 members plus a Speaker. The 67 members are as follows:

1. 47 members elected from each of the counties,
2. 16 women members proportionally nominated by the political parties
3. 2 members, a man and a woman, to represent the youth
4. 2 members, a man and a woman, to represent the disabled.

The Senate’s quorum is also an amazing 15 members, or 22% of members (Article 121).

The total number of Members of Parliament under the proposed Constitution shall be 417 (and this figure excludes members of county assemblies and governments). This is certainly a budgetary concern. With the current Parliament costing the taxpayer KES 2.2 billion annually, simple mathematics means that this is set to nearly double to KES 4.1 billion annually even before the raises proposed through the Akiwumi Commission.

The Senate – role (Article 96)

1. The Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties.
2. The Senate determines the allocation of national revenue among counties and exercises oversight over national revenue allocated to the county governments.
3. The Senate participates in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office in accordance with Article 145.

The population quota (Article 89)

There is a key provision in Article 89 that to me has not been discussed as much as its meaning warrants. This article establishes something called a “population quota”, which is simply an average number of constituents that each constituency should have. The article then states that “the boundaries of each constituency shall be such that the number of inhabitants in the constituency is, nearly as possible, equal to the population quota...” There is a margin of error of 40% for urban and sparsely populated areas and 30% for other areas. The process of drawing these boundaries is to be husbanded by the Independent Electoral and Boundaries Commission (IEBC).

What does this mean? Let us take the current population of Kenya to be 35 million people. Dividing this figure by 290, we obtain a population quota of about 120,700 (i.e. the population of each constituency should be 120,700). Taking the case of Nairobi, even when we apply the 40% margin of error for urban areas, it would mean that each constituency in Nairobi should have a population of 169,000 people. Assuming Nairobi’s population to be 3 million people, the city alone should have 18 constituencies and therefore 18 members in the National Assembly.

This is the crux of the “one man one vote” debate that was so vigorously debated by PNU and ODM, and its implications are huge: when you couple this with the fact that legislative power actually resides in the National Assembly as we have seen above, what it means is that power is set to be skewed in the direction of the more densely populated areas of the country. It would seem that this idea is borrowed from the US system of government, where there is a House of Representatives where each state has as many representatives as is roughly proportional to the population of that state. However, in the US, this is counterbalanced by a Senate where each state is equally represented, and the Senate is the more powerful house. In the proposed Kenyan system, the “check and balance” of a powerful Senate is non-existent. I find it very strange that this has not been debated in depth as yet.

Next: The Legislature – Part II (Devolution)

Posted by Mzalendo Editor on July 20, 2010

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