BY GIBSON KAMAU KURIA
When Senator Murkomen stated that there is a conspiracy to cripple the Senate and have it wound up, he probably used an understatement. Probably, there is a plan to return Kenya to the constitutional order which obtained between 1960s and 1991.
J. H. Proctor Jr., in an article titled ‘The Role of Senate in the Kenyan Political System’ observed that ‘a little more than a month after the meeting of the Senate on 7th June, 1963, an Opposition Member of Parliament voiced the suspicion that some Ministers had a negative attitude towards that House and that there was a rumour circulating that the Senate might be washed out’. He further says that in 1964, the Leader of Government Business acknowledged that there had been wide speculation as to whether the Senate should be scrapped.
One hopes that what Senator Murkomen said, will not prove prophetic. If it does, Kenya may be commencing a cycle of constitutional amendments which commenced in 1964 and ended in 1988. By that time, among other organs, the Police Service Commission and the Senate had been abolished.
The country was a one – party State in which the Attorney General, the Judiciary and Auditor General had lost their independence. Rule of law and constitutionalism had been greatly undermined, if not, virtually banished. The Members of Parliament have made it clear, in the course of their debates, that they consider their House to be the Superior House.
That notion is now embodied in the Bill which was assented to by the President on 10th June, 2013. One hastens to add that according to his statement, the President did not assent it because he supported its principle but rather that, he feared that there would be a government shut down if no money was approved by government before 30th June, 2013.
When Bill Clinton was the President and Professor Gingrich was the Speaker of the Lower House or which is also known as the House of Representatives, the government shut down for a few days because of lack of funds. No doubt, that was the consideration of the President.
2.There are some members of the National Assembly who would like the country to return to the one – party era which was banished by the referendum of 4th August, 2010 which brought in the new Constitution. Honourable Mithika’s motion to nullify the Legal Notice which communicated the new salaries of MPs is based on an outdated notion of supremacy of the Parliament.
That motion disregarded the powers of the Salaries and Remuneration Commission under section 231 of the Constitution to determine the salaries of the Members of Parliament. Similarly, the disregard of the views of the Senate on the Division of Revenue Bill is based on the same outdated notion. Before 4th August, 2010, our Constitution established a single chamber Parliament and a unitary government. It had no devolved government, the one established by the 1963 Constitution having been abolished in 1965 through a constitutional amendment. If the devolved government is killed at birth, we shall return to the unitary or centralised government.
3. In 1966, the Senate, the second chamber of Parliament under the 1963 Constitution, was abolished through a constitutional amendment. Honourable Murkomen was hinting at this possibility or plan.
Recently, Honourable Irungu Kang’atta, the MP for Kiharu, informed the country that he will be bringing a Constitutional Amendment bill through which he will start a process of abolishing the Senate. Even if he tables such a Bill and it is passed, by virtue of Article 265 of the Constitution, it will require a referendum to become law because it is a Bill touching on “the Supremacy of the Constitution, the Sovereignty of the people, the function of Parliament, objects, principals and structure of devolved government”.
4. The 1966 abolition of the Senate was part of a bigger project of dismantling the constitutional order which was established by the 1963 Constitution. That project was discussed by former Attorney General, Mr. C. N. Njonjo in an article titled, ‘Recent Constitutional Changes in Kenya’ which he published in the 1965 Issue of the East Africa Law Journal.
To achieve that goal, the Parliament then used the very notion which is being touted today by the National Assembly, purportedly derived from the British Constitution. According to that notion, the British Parliament has the power to make whatever constitutional changes it desires. In practice, however, that does not happen. From time to time, the British government organises for referenda on issues of fundamental concern to the British people. It has been announced that a referendum will be held to decide if Britain should remain in the European Union.
The notion used in Kenya is opposed to the principle in a democracy of a limited government. That absolute power is reserved to the people who can replace one Constitution with another. As long ago as 1970, in Ukunda v R, (1970) EA 453, a constitutional court held that in Kenya, we have the supremacy of the Constitution and not that of Parliament or one organ of government. The Constitution is the expression of the will of the people. The supremacy of people is expressed in the Pre – amble of the Constitution which, inter alia, states that,
“We, people of Kenya, …….., adopt, enact and give this Constitution to ourselves and our future generations.”
The Constitution belongs to the present and future generations – not to either of the two chambers of the current Parliament.
5. As the two – chamber Parliament of 1964 found cumbersome the exercise of the power to amend the Constitution which required it to get the support of 75% of all Members of the National Assembly for some provisions and 90% support of all the members of the Senate for the same provisions, it persuaded the two Houses to accept an amendment whereby any amendment to the Constitution would require the support of only 65% of all the members of either House. Once this amendment was passed, the die was cast. Constitutional amendments were passed, thereafter:
a. to merge, in 1964, the Offices of the Prime Minister with that of Head of State and called the New Office ‘The President’ who wielded more power than Presidents wield in democracies; and abolished the Police Service Commissions;
b. in 1965, to abolish the Devolved Government then known as Regionalism;
c. in 1966, to abolish the Senate;
d. in 1982, to abolish multi – partyism;
e. in 1987, to abolish the independence of the Attorney General;
f. in 1988, to abolish the independence of the Judiciary and the Auditor and Controller General.
6. It is the undemocratic philosophy embodied in the notion of Supremacy of Parliament being used now which caused the very suffering which led to the call for the rewriting of the Constitution. Kenyans are asking, for how long they are going to continue rewriting their Constitutions?
7. Two sad things have emerged from the debates on the salaries of MPs and the Division of Revenue Bill. The first one is that the National Assembly does not have the legal advisors it ought to have. The second thing is that the members of the National Assembly do not understand that what we have in Kenya now is the supremacy of the Constitution or People and not that of either the National Assembly or the Senate.
8. Kenyans should now demand that the Division of Revenue Act be repealed and that they be given better services by their Members of Parliament.
(Gibson Kamau Kuria is an Advocate and Senior Counsel)