Impending death of the Senate?

Posted by: The People in Main story June 15, 2013 0 773 Views

With the raging controversy over powers and relevance of the Senate, we unearth strikingsimilarities to the firestorm that engulfed Kenya’s first Senate at independence, leading to its unceremonious dissolution.

Why the senate could soon die.

BY KIPKOECH KOMUGOR IT IS SAID that the more things change the more they remain the same. Right from the day it was sworn in hardly two months ago, debate has raged about the powers and usefulness of the Senate, with a member of the National Assembly giving notice of motion to discuss dissolution of the “Upper House”. Investigations by The People on Sunday have unearthed details that point to strikingly similar pattern of events that led to the dissolution of Kenya’s first Senate in the early years of independence. The first Senate was abolished three years into its machinations to kill the so called Upper House had kicked off right at its conception. The first Senate was creation of the independence Constitution negotiated at the Lancaster House conference six months to Kenya’s independence. At the constitution talks held in London, two bitterly opposed shades of opinion had been fronted by then political rivals, KANU and KADU. KANU was for a unitary form of government with a presidential system and a single chamber parliament. KADU on the other hand stood for a federal (Majimbo) format with 41 regional governments, a two-chamber (bi-cameral) parliament, a prime minister as head of government and a ceremonial president. At Lancaster, none of the parties was about to cede ground on their hard line positions even if it meant collapse of the talks altogether. Veteran politician, John Keen who was at Lancaster recalls: “After days of acrimonious exchanges, it became clear that none of the parties were ready to soften positions and we were all set to go back home empty-handed. Then a stroke of genius came from the KANU advisor at the talks, one Thurgood Marshall, a bright lawyer who later became the head of the US Supreme Court.” Endangered species Keen discloses that it was Marshall who secretly advised KANU to pretend they had accepted the Majimbo constitution advocated by KADU just for the sake of saving the Lancaster talks from collapse but discard the same once KANU won the election and formed the government. “It was sheer trickery from the word go”, says Keen. “KANU had no intention whatsoever to go Majimbo way of regional governments and the Senate.” KANU went ahead to win the independence elections and to form the government. Right from the word go, regional governments and the Senate became endangered species living on a borrowed time. John Keen recalls the KANU leader and later President Jomo Kenyatta having let the cat out of the bag that early with his remark: “For us (KANU)”, Kenyattta had said, “the Majimbo system looks like a cow from a distance. But when we try to milk it we discover it is a donkey!” But if President Kenyatta concealed his intentions through parables, his Minister for Constitutional Affairs, Tom Mboya, went flat out to have Majimbo system and the Senate relegated to the dustbin without much delay. First, Mboya came up with a constitutional amendment that declared Kenya a republic and created the office of the president who would be both head of state and government. By a stroke of the pen, the federal system had been scrapped just to remain only in name. The same amendment took away powers of demarcating regional boundaries from the regional assemblies to the national parliament. Quickly, in succession, Mboya brought another amendment that abolished powers of the regional governments to independently source for funds and made them entirely dependent on the national government. At the same time, the title regional president was outlawed and henceforth regional heads would be referred to as regional chairmen. To further clip their wings, the amendment did away with requirement that the head of state consult with the regional heads of government when appointing judges of the High Court. As a final straw to break the camel’s back, Mboya bulldozed the amendment No. 19 of 1966 that formally did away with the Senate and the regional governments. To placate the 41 Senators, special constituencies were curved out for them to facilitate their direct entry to parliament, henceforth to be called the National Assembly. To illustrate the contempt the powers that be had for the Senate, the act compelled the Speaker of the National Assembly to expunge from official parliament records any references to the Senate and regional governments. While Mboya was using constitutional fiat to emasculate the Senate, other acts of sabotage were quietly played behind the scenes to leave no doubt that the so called Upper House and the regional governments were on their way out. Hardly three months into independence, then Central Nyanza Senator, Dickson Makasembo, sounded the alarm by demanding that the Senate either be accorded the “respect it deserved or be scrapped altogether.” Said he: “It has taken me by surprise that this Senate is considered the Upper House, yet it does not have a sergeant-at-arms.The gentleman acting as the sergeant-at-arms is not considered as a sergeant-at-arms but as an office boy.” Raw deal Contributing to the same motion Nyeri Senator, Joseph Paul Mathenge, who was also the Leader of Government Business, complained that the Kenya Broadcasting Corporation (KBC) was giving the Lower House superior coverage while the Senate was getting a raw deal from the national broadcaster: “The whole Senate wants to express its concern that the Kenya Broadcasting Corporation seems to have forgotten that there is a legislative body called the Senate. I feel they should be warned that in future they should realise that this Senate is just as important, if not more important, than the other House.” Mathenge went further to whine: “If one wants one House, if he feels we are wasting money by having two Houses, then what he should do is to get a general election and get only one House elected by the nation.” But it wasn’t until two years when the worst happened and the Senate was consigned to the graveyard.  enate was debated and passed in the National Assembly on the afternoon of December 22, 1966. A day earlier, the Senate had made itself jobless by passing the Bill that ended its life. Asked why the Senate had agreed vote to end its own life, the then Senator for Nandi Gerald Kalya says the Senate was then weak and could not stand up to the Executive and Lower House. “It was a government decision and we just went along,” Kalya, 84, told the Peope on Sunday in a telephone interview from his Mosoriot home in Nandi County. Kalya, who also served as the Leader of Opposition in the Senate says the mass defection of KADU senators to the ruling party KANU had also severely weakened the Senate. So crucial to the government was the matter of abolishing the Senate that on the day the motion was debated in parliament, the president and the entire cabinet showed up to vote. One hundred and ten MPs voted to do away with the Senate against five dissenting voices. Opposition Leader Oginga Odinga was among the five who voted to preserve the bi-cameral Parliament. Others were fellow opposition Kenya People’s Union (KPU) MPs, Tom Okelo-Odongo, (Kisumu Rural) John Odero-Sar (Ugenya) and Okuto Bala (Nyando). The acrimonious debate that preceded the decisive vote saw KANU heavyweights led by Attorney, Charles Njonjo and Constitutional Affairs minister Tom Mboya pitted against KPU’s l Odinga. The mover of the motion, Njonjo, likened the amalgamation of the two houses to a merger merger of two commercial entities. “I prefer to describe the process by which this will be done as an amalgamation. Another word is merger. When two companies unite and become one, it is called an amalgamation or a merger,” Njonjo said, in reference to the Bill that created new constituencies for the former Senators in the same districts that they represented as Senators. No nobility Mboya, who seconded the motion, was more direct in his contributions. He described the senate as a mere appendage to the legislative system and of a “nuisance value” that could only serve to delay legislation. Mboya’s argument was that after doing away with the Majimbo sections of the constitution, the Senate no longer served any meaningful purpose. “It is neither, as in some countries, like Britain, a body representing the nobility because we have no nobility, it is not as, in some countries representing the chiefs because we have no council of chiefs, it is not a body representing special interests for they are on universal suffrage like all of us. What then would it be doing?” posed Mboya.

Impending death of the Senate?