Parliament scheming to devalue the Senate

By Isaac Ongiri

Storm is brewing over the chain of command in the new bicameral Legislature after the Parliamentary Service Commission (PSC) designed a service structure seen to be diluting the status of the Senate.

The structure already approved by the PSC chaired by National Assembly Speaker Kenneth Marende places the National Assembly and the Senate on equal standing, with no proper definition on which should be the Lower and the Upper House.

Now some MPs want the Constitution amended to clearly designate the Senate in its rightful position as the Upper House, and the National Assembly as the Lower House.

In pure presidential systems, like the United States, the Senate is the Upper House, and the National Assembly is the Lower House.

The formation has been playing out and is shown in the status of individuals already coming up to run for the Senate, whose representatives will have influence over many constituencies, as compared to the National Assembly representative leading one.

National Assembly Clerk Patrick Gichohi told The Standard that the PSC’s proposal is in line with the Constitution, which he said had not defined the two into Lower and Upper Houses.

"As far as we are concerned the two Houses are equal. There is no lower or the upper House here," Gichohi argues.

But in the new order the National Assembly Speaker will be the chairman of the broadened PSC, symbolising the seniority of the National Assembly over the Senate, with the Clerk to the Senate designated the secretary to the commission.

Despite being secretary to the PSC the clerk of the Senate and the clerk of the National Assembly are clustered under scale 17 in the PSC job grading, which means they will also draw the same salary.

A circular by Gichohi dated August 5, which is copied to House Speaker, Kenneth Marende, instructs directors and heads of departments to implement aspects of the new structures.

"During its 141st meeting on Thursday, May 4, the commission considered the amended structure of the Parliamentary Service as contained on commission paper No 390, and resolved that the structure (copy attached) be approved for implementation with effect from July 1, 2011,"reads a document The Standard obtained.

Presidential system

Ikolomani MP Bonny Khalwale on Saturday insisted that under the pure presidential system anchored in the Constitution, boundaries between the Senate and the National Assembly must be clear.

"The National Assembly has given way to the creation of the Senate. I have seen MPs trying to claim the Lower House is superior to the Senate. This is a blunder that has never happened anywhere and should not be allowed to happen," Khalwale states.

Further, he argues that there are senators who will be in charge of more than 10 constituencies, and it will be humiliating to see MPs who ran errands for one constituency claiming superiority.

"There are three organs of legislations: They include county assemblies, the National Assembly and the Senate. The Senate approves, with finality, what the National Assembly has passed. So it is clear who would be calling the shorts," Khalwale said.

The Ikolomani MP who has declared he would be running for the Senate in Kakamega County, accused some MPs of suffering from a sense of self- preservation in pushing for the relegation of the Senate.

Khalwale is calling for an amendment of the Constitution to clearly define the status of the Senate in relation to the National Assembly.

Kangundo MP Johnstone Muthama describes as cheeky PSC’s attempts to downgrade the Senate.

"The Senate is the Upper House, this fact cannot be compromised. If you look at the powers bestowed by the Constitution on the Senate. The impeachment of the President, for example, is the highest oversight role of the Legislature. This is now under the Senate. This shows where the power lies," Muthama said.

Muthama called on members of the PSC to stop introducing an unnecessary confrontation between the two Houses, and come up with a clear structure that respects the natural terrain of power.

Ndaragua MP, Jeremiah Kioni, who is a member of the PSC, is calling for the enactment of a legislation that can separate the two chambers and properly define them.

"Initially, it was assumed that the National Assembly is the Upper House. But if you look at the roles of the Senate they literally preside over the National Assembly and, therefore, superior," Kioni argues.

Two chambers

Justice Minister Mutula Kilonzo describes the Kenyan situation as a balance and therefore argues that the two chambers are crucial.

"The National Assembly has a wider national responsibility while the Senate protects devolution," Mutula argues.

Yatta MP Charles Kilonzo argues that the National Assembly’s responsibilities that include legislation and budgeting make the Senate subordinates.

"The Senate is there to look at county issues, and other minor functions. It is clear that the National Assembly has much more broader responsibilities," Kilonzo said.

But two members of the now defunct committee of Experts Nzamba Kitonga and Njoki Ndung’u cautioned MPs against making an issue over superiority saying the thinking of the lawmakers was that each of the two bodies undertakes its roles independently.

"There was nothing like one house was to be superior to the other. Each has its role clearly spelt out," said Kitonga who chaired the committee.

He said for further interpretations of the new Constitution, the Nyachae team should do its work by explaining expectations to the public. Efforts to get Mr Nyachae’s comment failed as calls to his mobile phone went unanswered, as did a short text message.

Ndungu, a supreme Court judge, said the roles were very clear that they should not be a matter of dispute, since the National Assembly will be dealing with national issues while the Senate will largely focus on matters concerning devolved system of governance and service delivery.

But another member of the commission speaking on condition of anonymity said the difference between senators and MPs will be on allowances given areas of representation.