The Star (Nairobi)

13 February 2013

Kenya: What Exactly Is the Role of a Senator?

Many candidates for the senate seem confused about the role of a senator.

Recently, Gideon Moi he told voters in Baringo that if he elected senator, he will acquire a "county chopper" to deal with insecurity issues in the county.

And candidates for Kiambu senator said that they variously intended, if elected, to help Kiambu youth acquire life skills, introduce modern technology in fish farming, or fight poverty at village level.

How Moi thinks that as senator he would buy a police helicopter is a mystery. Even a governor would find this hard: the constitution gives no functions about the police to the counties. As the law stands, senators will have no similar fund to the CDF to spend in their counties. Anyway, CDF funds have hardly been in the helicopter buying league.

What will a senator do?

The role is not to govern a county but is as a MP: of the about-to-be-reborn senate. Reading the constitution gives the impression of a very limited set of functions for the senate.

The main one is law making. But, though every Bill, or draft Act of Parliament, must be passed by the National Assembly, only Bills that affect counties have to be approved by the Senate. This means anything that affects the constitutional powers of counties, or their finances or elections to county offices.

A Bill about something to be done only by the national government, which does not affect what county governments do, will not have to be approved by the Senate.

In fact, almost all the functions given to the Senate concern the county governments. It is important in allocation of national revenue to, and between, counties once every five years.

The Senate makes the initial decision (it must use the work of the Commission on Revenue Allocation, constitutional principles, public input, and the input of others including the county governors). Its decision is final unless two-thirds of the National Assembly reject or change it (then there is a procedure to try to achieve agreement).

The Senate has other important finance-related roles; according to the constitution it "exercises oversight over national revenue allocated to the county governments", and this is backed up by detailed provisions of the Pubic Financial Management Act.

But when the MPs passed the Constituency Development Fund Bill last month, they removed provisions giving the Senate a role in overseeing the CDF, changing a proposed supervisory Senate Committee to a National Assembly Committee - even a "parliamentary committee" did not satisfy them - and providing that CDF Regulations must be approved by the National Assembly not the Senate.

It can require a commission or an independent office holder like the Auditor General etc. to submit a special report - it is unclear whether it can do this only in connection with the roles it is given or for other purposes as well.

It must approve any changes to county boundaries. And the Senate must approve any suspension of a county government by the President (if that government "engages in actions that are deemed to be against the common needs and interests of the citizens" of the county, says the County Governments Act) and can end a suspension. It also approves a town becoming a city (Urban Areas and Cities Act).

A county may appeal to the Senate if the Transition Authority decides that the county does not have the capacity to exercise a governmental function that the county wants to be transferred to it.

The Senate does have two truly important functions in connection with national government.

One will, hopefully, rarely, if ever, be exercised: if a motion for the removal of the President or Deputy President is passed in the National Assembly, it will go to the Senate which will appoint a committee of its members to investigate the charges, and if it found they were justified, the Senate could remove the President or Deputy by a two-thirds vote of all its members. Perhaps, rather more often, the Senate may be called upon to perform a similar role in the removal of a governor under the County Governments Act.

The other major role would be approving constitutional amendments, whether or not they affect counties specifically.

A Senator will no doubt be able to bargain for benefits for his or her county, as US Senators do: "I shall vote for this Bill that you, the government, want only if you do this-and-this for my county" - what the American call "pork-barrelling". Their ability to do this may be less than for MPs - because they will vote on far fewer Bills.

Senators must clearly be people with sound financial heads on their shoulders, with good judgment, as well as all the integrity qualifications that Kenyans are looking for but that law makers have so dismally failed to require. And hopefully people who understand their job description.

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