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Parliament Speakers: Understanding Kenya Constitution Procedures for Enacting Legislation

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(Center) President Uhuru Kenyatta (Left) Senate Speaker Ekwe and (Right) National Assembly Speaker Justin Muturi. (Center) President Uhuru Kenyatta (Left) Senate Speaker Ekwe and (Right) National Assembly Speaker Justin Muturi.

A referendum is been called by Senate and Governors before understanding Constitution laws and the procedures for enacting legislation by the Speakers of National Assembly and Senate. The current debate came up from passage of Kshs 210 billion bill and Kshs 258 billion bill. Did both Speakers state the Bill was a Money Bill, a Special Bill and a Bill Concerning Counties as required by constitution? Did the Senate have the right to adjust the Bill to Kshs 258 billion? Why is the house given Veto power of two-thirds to a Special bill? The laws and procedures as established by the Kenya Constitution articles 109 to 116 are in the best interest of Kenyans. Once the legislators understand each law and why it is worded the way it is then they will realize there is no need for a referendum if constitution laws are followed strictly as written.

Below Kenya Constitution laws created by articles 109–116 and an understanding of this law.   

Constitution 109 (1) Parliament shall exercise its legislative power through Bills passed by Parliament and assented to by the President.

Understanding: This creates the legislation power in the two bodies National Assembly and Senate. The law also says a bill shall be assented by the president.       

Constitution 109 (2) Any Bill may originate in the National Assembly

Understanding: The law states any bill can originate from the National assembly. Bills normally originate from citizens who are represented thus the reason of this law. 

Constitution 109 (3) A Bill not concerning county government is considered only in the National Assembly, and passed in accordance with Article 122 and the Standing Orders of the Assembly.

Understanding: A bill not concerning County Government is a bill that will have zero impact on the functions of County governments. Very few bills will likely not be integrated to County 14 functions. For the Speaker of national assembly not to err in this law the persons who would have to make the decision this bill does not concern the Counties would be the Senate Speaker.  

Constitution 109 (4) A Bill concerning county government may originate in the National Assembly or the Senate, and is passed in accordance with Articles 110 to 113, Articles 122 and 123 and the Standing Orders of the Houses.

Understanding: A bill considered as concerning the County may originate from both houses says this law. For example if I’m in Embu County and have a concern that border insecurity is leading to drugs into Kenya then this becomes an issue concerning the county government. 

Constitution 109 (5) A Bill may be introduced by any member or committee of the relevant House of Parliament, but a money Bill may be introduced only in the National Assembly in accordance with Article 114.

Understanding: Any bill can originate from a committee or a member. A “Money bill,” is stated to originate only from the National Assembly. The reason given in countries this is applied is that taxation should originate from people who are taxed. The National assembly is the equivalent to peoples representative whereas the County is a land area where people are settled. If a Money Bill was to originate from the Senate it would be so hard to pass in the peoples representative house. This system is adopted this way in many countries and states so as to make government funding achievable. The Senate is supposed to adjust the bill to achieve regional equality.     

Constitution 110 (1) In this Constitution, “a Bill concerning county government” means–– (a) a Bill containing provisions affecting the functions and powers of the county governments set out in the Fourth Schedule.

Understanding: The functions set in forth schedule include: Housing, farming, Disaster management and others. Almost all bills passed will have something affecting the County either through land, property in County and the access to homes of residents of a County. Again it is up to speaker of Senate to decide if it affects Counties or not. The Speakers would then label the bill as one concerning county governments.

Constitution 110 (b) a Bill relating to the election of members of a county assembly or a county executive. 

Understanding: This is direct and thus all laws that will affect the jobs would also be labeled as “Bill Concerning County Government.” 

Constitution 110 (c) a Bill referred to in Chapter Twelve affecting the finances of county governments.

Understanding: This is a bill that concerns finances of a County Government. The Division of Revenue bill that is now the discussion should have been labeled as a “Bill Concerning County Governments” by the two speakers.

Constitution 110 (2) A Bill concerning county governments is–– (a) a special Bill, which shall be considered under Article 111, if it–– (i) relates to the election of members of a county assembly or a county executive.

Understanding: This law says the bill concerning counties shall be also labeled Special Bill if it relates to elections of County Government.   

Constitution 110 (2) (a) (ii) is the annual County Allocation of Revenue Bill mentioned in Article 218. 

Understanding: The recent bill of Kshs 210 billion was a special bill.  

Constitution 110 (2) (b) an ordinary Bill, which shall be considered under Article 112, in any other case

Understanding: If the bill does not relate to elections or annual allocation then the speakers would stamp the bill as “Ordinary Bill.”  

Constitution 110 (3) Before either House considers a Bill, the Speakers of the National Assembly and Senate shall jointly resolve any question as to whether it is a Bill concerning counties and, if it is, whether it is a special or an ordinary Bill.

Understanding: Both speakers are required by this law to jointly resolve whether the Bill (1.) Concerns Counties (2.) Is a Special Bill and (3.) Is Ordinary Bill. The current problem in Kenya is caused by failure of the Speakers to apply this constitutional law strictly.     

Constitution 110 (4) When any Bill concerning county government has been passed by one House of Parliament, the Speaker of that House shall refer it to the Speaker of the other House.

Understanding: Once a Bill is stamped Concerning Counties, Ordinary or Special Bill then once passed by one house it would the next. 

Constitution 110 (5) If both Houses pass the Bill in the same form, the Speaker of the House in which the Bill originated shall, within seven days, refer the Bill to the President for assent.

Understanding: The Bill in this case passes without amendment in second house.  

Constitution 111 (1) A special Bill concerning a county government shall proceed in the same manner as an ordinary Bill concerning county government, subject to clauses (2) and (3).

Understanding: However if a bill is stamped, “Special Bill,” it would be subject to laws 111 (2) and 111 (3).    

Constitution 111 (2) The National Assembly may amend or veto a special Bill that has been passed by the Senate only by a resolution supported by at least two-thirds of the members of the Assembly

Understanding: The Senate and National Assembly both represent the people of Kenya. One as equal proportions and one based on regions. The Veto power here should only seen from the context that 67% of the Kenya citizens disagree with bill through their representatives. Indeed this law would be stronger if each constituency had an equal proportion or representation. The 47 women county representatives should be in the senate if a peoples representatives house is to be created. The reason behind this law can be found in the current population distribution where a majority of counties, 24 counties, have 30% population. This law helps to protect the counties with large population from the counties with small populations. The senate power comes from the regions and thus the reason why the citizens of Kenya put this law so they are not overtaxed by counties with low population in distribution of the money. Without this law 24 counties with 30% population could keep demanding more and more without an end. This law helps balance population and regions. 

Constitution 111 (3) If a resolution in the National Assembly to amend or veto a special Bill fails to pass, the Speaker of the Assembly shall, within seven days, refer the Bill, in the form adopted by the Senate, to the President for assent.

Understanding: The Senate should always make sure that they cannot be vetoed in any bill by having the required votes. Caucus of County representatives (Senate and National Assembly) would become important at this stage.       

Constitution 112 (1) If one House passes an ordinary Bill concerning counties, and the second House–– (a) rejects the Bill, it shall be referred to a mediation committee appointed under Article 113; or (b) passes the Bill in an amended form, it shall be referred back to the originating House for reconsideration.

Understanding: This sets process to consider the views of both houses. The Key word here is “Ordinary,” Bill.  

Constitution 112 (2) If, after the originating House has reconsidered a Bill referred back to it under clause (1) (b), that House–– (a) passes the Bill as amended, the Speaker of that House shall refer the Bill to the President within seven days for assent; or (b) rejects the Bill as amended, the Bill shall be referred to a mediation committee under Article 113.

Understanding: This sets the system in which the other House may accept and pass the bill onward to the President for consent or create a mediation committee. 

Constitution 113 (1) If a Bill is referred to a mediation committee under Article 112, the Speakers of both Houses shall appoint a mediation committee consisting of equal numbers of members of each House to attempt to develop a version of the Bill that both Houses will pass.

Understanding:  A new version of a bill can be created that harmonizes the ideas of both houses. The reason why we have regional and people’s representatives is for this system to make sure the counties with less population are considered.    

Constitution 113 (2) If the mediation committee agrees on a version of the Bill, each House shall vote to approve or reject that version of the Bill.

Understanding:  The new version is voted simultaneously. Many a time a new version will have the number of votes.    

Constitution 113 (3) If both Houses approve the version of the Bill proposed by the mediation committee, the Speaker of the National Assembly shall refer the Bill to the President within seven days for assent. (4) If the mediation committee fails to agree on a version of the Bill within thirty days, or if a version proposed by the committee is rejected by either House, the Bill is defeated.

Understanding:  This gives the end plan of passing or defeat. 

Constitution 114 (1) A money Bill may not deal with any matter other than those listed in the definition of “a money Bill” in clause (3).

Understanding:  This protects unpopular issues being added to a money bill.  

Constitution 114 (2) If, in the opinion of the Speaker of the National Assembly, a motion makes provision for a matter mentioned in the definition of “a money Bill”, the Assembly may proceed only in accordance with the recommendation of the relevant Committee of the Assembly after taking into account the views of the Cabinet Secretary responsible for finance.

Understanding:  A money bill has to have the views of the Cabinet Secretary.   

Constitution 114 (3) In this Constitution, “a money Bill” means a Bill, other than a Bill specified in Article Constitution 218, that contains provisions dealing with—(a) taxes; (b) the imposition of charges on a public fund or the variation or repeal of any of those charges (c) the appropriation, receipt, custody, investment or issue of public money; (d) the raising or guaranteeing of any loan or its repayment; (e) matters incidental to any of those matters.

Understanding:  This defines the raising of money and expenditure of the money.    

Constitution 114 (3)  (4) In clause (3), “tax”, “public money”, and “loan” do not include any tax, public money or loan raised by a county.

Understanding:  This means the Money Bill in the National Government does not make decisions regarding tax, public money and loan raised by County.   

Constitution 115 (1) Within fourteen days after receipt of a Bill, the President shall— (a) assent to the Bill; 

Understanding:  The assenting of the bill means the president accepts the bill as so written.  

Constitution 115 (1) (b) refer the Bill back to Parliament for reconsideration by Parliament, noting any reservations that the President has concerning the Bill.

Understanding:  The president after reading may find they are unable to execute the bill and may send it back noting reservations for not passing. The reason here based on the feeling one cannot execute the bill. It is the veto part but with explanation why.  

Constitution 115 (2) If the President refers a Bill back for reconsideration, Parliament may, following the appropriate procedures under this Part— (a) amend the Bill in light of the President’s reservations; or pass the Bill a second time without amendment.

Understanding:  Parliament can then amend bill per the President’s requirements or pass the bill again without amendment.   

Constitution 115 (3) If Parliament amends the Bill fully accommodating the President’s reservations, the appropriate Speaker shall re-submit it to the President for assent.

Understanding:  Parliament can amend bill per the President’s requirements and pass it and send it to the President. It is this act of causing a bill to change that makes the President a Legislator.   

Constitution 115 (4) 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— (a) by two-thirds of members of the National Assembly; and (b) two-thirds of the delegations in the Senate, if it is a Bill that requires the approval of the Senate. Constitution 115 (5) If Parliament has passed a Bill under clause (4)— (a) the appropriate Speaker shall within seven days re-submit it to the President; and (b) the President shall within seven days assent to the Bill.

Understanding:  Parliament can pass the bill by two-thirds vote. This is the law that enables a Parliament with one party controlling over two-thirds of the both houses to override the president. However, this override is the current greed of salaries for MPs in Kenya. 

Constitution 115 (6) If the President does not assent to a Bill or refer it back within the period prescribed in clause (1), or assent to it under (5) (b), the Bill shall be taken to have been assented to on the expiry of that period.

Understanding:  This is where a President lets the bill become law without affecting their political ideology. Thus during the campaign the President would not be tied to the bill. Where Parliament is controlled by one party and the President controls the Executive many bills will pass through this assent system. 

Constitution 116 (1) A Bill passed by Parliament and assented to by the President shall be published in the Gazette as an Act of Parliament within seven days after assent.

Understanding:  The public gets to read the bill. If the public were totally in disagreement of the bill then they could exercise their recall power and then appoint new representatives who could reverse the bill.

Constitution 116 (2) Subject to clause (3), an Act of Parliament comes into force on the fourteenth day after its publication in the Gazette, unless the Act stipulates a different date on or time at which it will come into force.

Understanding:  The act of parliament comes to force in 14 days.   

Constitution 116 (3) An Act of Parliament that confers a direct pecuniary interest on members of Parliament shall not come into force until after the next general election of members of Parliament.

Understanding:  This law protects any additions that could be defined as leading to parliamentarians getting extra benefits through abuse of legislative power and override under this law. The Parliamentary budget of Kshs 19.1 billion will likely be evaluated closely and could become a legal battle in future if this is violated. 

Constitution 116 (4) Clause (3) does not apply to an interest that members of Parliament have as members of the public.

Understanding:  An interest that members of parliament have as members of public is exempted when the Member of Parliament is getting a benefit gotten from all by all citizens. For example reduction in taxes of basic commodities leading to food prices reductions is a pecuniary benefit to Members of Parliament as members of public.  

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