By George Githinji

The functions of the Senate are largely related to the Counties and laws that touch on the Counties. Still, despite the Senate having a lesser legislative portfolio than the National Assembly, it has a crucial role to play in the sphere of politics and governance and the calls for it to be scrapped are mere dog barks that should not be taken seriously.

The Senate derives its legislative authority from the people of the Republic of Kenya. It also 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).

Article 96 of the constitution stipulates the functions of the Senate. These functions are concerned with considering, debating and approving bills concerning Counties, and determining the allocation of national revenue among Counties and exercising oversight authority over the national revenue allocated to the County Governments. It also exercises oversight over State Officers by considering and determining any resolution to remove the President or the Deputy President from office. In essence, the Senate plays a collective role of representing Counties; it should serve to protect the interests of the Counties and their governments.

Therefore, while the National Assembly predominantly deals with protecting the interests of the national government, the Senate is the sole protector of the county interests. The people, businesses and investments, institutions and other interests that are under the jurisdiction of the Counties and the County Governments, thus, need the Senate to ensure that their collective interests are protected. What is needed is therefore to strengthen and create capacity for the Senate in order to perform its functions effectively and efficiently.

The most important function that the Senate performs involves revenue sharing. It has been able to confront the National Assembly to ensure that counties are not shortchanged in the amount of revenue they receive from the National Government. In doing so, the amount of revenue allocated to the Counties has continued to rise with each financial year.

In addition, using the revenue sharing formula created by the Commission on Revenue Allocation (CRA), the Senate has played a crucial role in determining the amount of money each County gets from the equitable share of revenue (the amount that the Counties receive from the National Government after the revenue raised nationally by the National Government is divided between them).

When the equitable share is spent by the Counties, the Senate has to ensure that it is spent prudently. Therefore, it has to keep the County Government accountable to enhance transparency and fiscal discipline. It has been doing so by adopting reports on county expenditure from the Controller of Budget and audit reports from the Auditor General. As a result, it has been issuing summons to County Executive Members and other accounting officials to explain discrepancies in revenue expenditure. In doing so, the Senate acts as a quasi-judicial body with this authority being derived from the Constitution (Article 125).

Nevertheless, these directives by the Senate have brought turf wars between them and the county governors. The governors even went to court to challenge the authority of the Senate to issue summons to them. Nonetheless, the High Court ruled that the Senate has the authority to summon Governors to answer questions or to give evidence regarding their expenditure of the national revenue allocated to their Counties (Article 96 (3)).

Even so, the Court cautioned the Senate against issuing these orders arbitrary or capriciously and advised that the summons should only be issued after all other means have been exhausted. This includes seeking oversight from county assemblies, or summoning junior officers with governors being the last resort when the Senate feels like the issues raised can only be clarified by them.

Feeling discontented, the Governors appealed the decision but it was overturned. Several Governors summoned by the Senate in the past have often refused to honour these summons citing their ‘superiority’. In fact, just recently, an arrest warrant was issued against Kakamega Governor Wycliffe Oparanya for failure to honour summons by the Senate’s Public Accounts Committee.

While the Senate has the authority to play oversight over the national revenue allocated to Counties (the equitable share), it cannot do so for the other sources of revenue for the Counties.

Among the laws that the Senate has formulated concerning Counties include the County Allocation of Revenue Bills for 2013, 2014 and 2015 which became Acts of Parliament following Presidential Assent. These annual Bills determine how the equitable share is divided among the Counties using the CRA revenue sharing formula (that is, the amount of money each county gets from the national pot). The others are the Division of Revenue Bills for 2013, 2014 and 2015 jointly with the National Assembly (Article 217) which determine the revenue sharing between the two governments.

Most of the other Bills concerning Counties sponsored by various (nominated) Senators are still pending with majority being between the first and the third reading and others pending at the National Assembly. Some of these include the National Flag Emblems and Names Amendment Bill (2013), Kenya Medical Supplies Authority (Amendment) Bill (2013), and the Community Land Bill, 2013. The controversial Reproductive Healthcare Bill 2014 is also sponsored by Nominated Senator Judith Sijeny.

In determining the impeachment of the President and his Deputy, the Senate is guided by 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.

Consequently, the Senate is a very important legislative body. Doing away with it will leave the counties at their deathbed, and it will be a big rollback to the gains made by the advent of devolved governance.


The Writer comments on socio-political issues in Kenya – blogs at Politics Kenya