By: Onesimus Kipchumba Murkomen A few weeks ago the Speaker of the Upper House made the following constitutional sound ruling. COMMUNICATION FROM THE CHAIR ON THE DISPOSAL OF THE DIVISION OF REVENUE BILL, 2013 BY THE SENATE 1. Honourable Senators, my attention has been drawn to a Communication made by the Speaker of the National Assembly at a sitting of the Assembly held on Wednesday, 22nd May, 2013 on the matter of the Division of Revenue Bill, 2013. Arising from this Communication, some anxiety may have arisen among the public and in the minds of the county governments on the manner in which this Bill is to be disposed of by the Senate. It has therefore become necessary that I make a Communication on the disposal of the Division of Revenue Bill, 2013 by the Senate. 2. Honourable Senators, let me at the outset state that in keeping with the provisions of standing order 88(5), which is replicated in the National Assembly Standing Orders at standing order 87(5), this Communication is not intended to criticize or to call to question the proceedings of the National Assembly or the Communication made by the Speaker of the National Assembly. That is, for good reason, expressly prohibited in the Standing Orders. This Communication is intended only to clarify the role of the Senate with regard to the Division of Revenue Bill, 2013 so as to ensure the smooth transaction of the business of the Senate in accordance with its constitutional mandate. 3. The Communication made by the Speaker of the National Assembly on the Division of Revenue Bill, 2013, has been understood to mean that the Division of Revenue Bill, 2013 which is currently before the Senate, having been forwarded to the Senate by the Clerk of the National Assembly by a letter dated 13th May, 2013, to which was annexed a Message by the Speaker of the National Assembly seeking the concurrence of the Senate on the Bill as passed by the National Assembly, is not properly before the Senate and that the Bill should have been processed and disposed of only by the National Assembly, to the exclusion of the Senate. 4. Honourable Senators, by way of elucidation, simply put, a Division of Revenue Bill is a Bill that seeks to allocate monies between the national and county levels of government. The enactment of a Division of Revenue Bill then sets the stage for the publication, by the Senate, of a County Allocation of Revenue Bill, which when passed then allocates monies as between the counties. 5. With this background in mind, the essence of the position advanced on this matter is that while the Senate can allocate monies as between the counties, it has no say and no role whatsoever in the determination of the amount of money that will be available for such allocation. Stretched to its limits, this interpretation would mean that the Senate must merely wait for the National Assembly to determine in any particular year the amount due to the counties which amount could very well be set at nil, despite the provisions of Article 203(2) of the Constitution. The Senate would then, once the Bill allocating nil to the counties has been published, embark on the allocation of this zero figure as between the counties. 6. Honourable Senators, this analogy, though rather extreme, is intended to illustrate the important role and place of the Senate in the disposal of a Division of Revenue Bill. A Division of Revenue Bill is at the heart of the devolved government system and is the first, and probably the most important test of fidelity by Parliament and all other institutions of government, to the Constitution as a whole, and devolution in particular. Whatever else devolution may be about, it is principally about sharing of financial resources. Indeed it is arguments surrounding the question of the nature and design of the devolved government structure that were in very large measure responsible for the protracted Constitution-making process that Kenyans had to endure. 7. Honourable Senators, against this background, it is therefore important that I clarify a number of issues, among them- (1) The effect of a determination in one House on the role and mandate of another House; (2) The meaning of a money Bill and whether or not a Division of Revenue Bill is a money Bill; (3) The meaning of a Bill concerning county government and whether or not a Division of Revenue Bill is a Bill concerning county government; (4) The consequence of a disagreement between the two Houses on their roles particularly with regard to Bills; and (5) The process for disposal of a Bill once the Senate has concluded its consideration of the Bill. 8. On the first issue, which is the effect of a determination in one House on the role and mandate of another House, I need to explain that the hallmark of a legislature is the running of its own affairs. It matters not whether the legislature is one established at the national level or at the county level. A legislature conducts its business in terms of the Constitution and the law free of the control or direction of any other person or organ. The effect of this is that a legislature determines for itself its own understanding of its role and mandate. While one House may be entitled to comment or hold a view on the role of another House, that opinion is of little consequence in the other House. This position is as true of the Senate as it is of the National Assembly. The Senate claims for itself the right to determine the scope and extent of its role and mandate on any matter, including Bills, not least of all a Division of Revenue Bill. 9. Honourable Senators, this brings me to the second issue which is the meaning of a money Bill and whether or not a Division of Revenue Bill is a money Bill. A money Bill is defined in Article 114 of the Constitution. It is important to observe that in this definition, the Constitution, for good reason, is careful to exclude from the ambit of a money Bill, a Division of Revenue Bill and a County Allocation of Revenue Bill by stating at Article 114(3) that a ‘money Bill” means a Bill, other than a Bill specified in Article 218 of the Constitution. By this provision, a Division of Revenue Bill as well as an Allocation of Revenue Bill are both excluded from being the preserve only of the National Assembly. 10. On the third issue, which is the meaning of a Bill concerning county government and whether or not a Division of Revenue Bill is a Bill concerning county government, this is a particularly important issue because only if a Bill concerns county government does the Senate become seized of it. It is possible that although a Bill is not a money Bill in terms of Article 114 of the Constitution, the Bill does not concern county government. Article 110(1)(c) of the Constitution provides that a Bill concerning county government means “a Bill referred to in Chapter Twelve affecting the finances of county governments”. It is clear from this provision of the Constitution that a Division of Revenue Bill is a Bill concerning county government because it is a Bill referred to in Chapter Twelve of the Constitution and it is arguably the one Bill in Chapter Twelve that most affects county governments. 11. Having found that a Division of Revenue Bill is a Bill concerning county governments, it is important to further determine whether it is a special or ordinary Bill for purposes of setting out the procedure for its disposal. In terms of Article 110(2) of the Constitution, a Division of Revenue Bill is an ordinary Bill as opposed to a County Allocation of Revenue Bill which is a special Bill. Thus, in the case of a County Allocation of Revenue Bill that has been passed by the Senate, the National Assembly may only amend or veto such a Bill by a resolution supported by at least two-thirds of the members of the Assembly. For a Division of Revenue Bill, a simple majority suffices. 12. Honourable Senators, it may be useful to observe, that by the Constitution and the Standing Orders of both Houses, a Division of Revenue Bill may commence in either House of Parliament. The Constitution is clear on this point and the Senate Standing Orders at Part XX and those of the National Assembly at Part XXIV are similarly clear on this matter and set out procedures by which a Division of Revenue Bill may originate in either House. Thus, while in this year the Division of Revenue Bill, 2013 commenced in the National Assembly, it may very well have commenced in the Senate. 13. Honourable Senators, on the question of the consequence of a disagreement between the two Houses on their roles particularly with regard to Bills, I emphasize that the defining character of a legislature is the capacity, by right, to run its own affairs. I therefore find and rule that while the National Assembly may be entitled to comment or hold a view on the role of the Senate, that opinion is of no legal consequence in the other House. 14. This is why, Honourable Senators, the Constitution establishes a Mediation Committee at Article 113 of the Constitution, which is appointed by the Speakers of both Houses, consisting of equal numbers of members of each House, to attempt to develop a version of a Bill that both Houses will pass. The mediation process may conclude in either an agreeable version of the Bill being developed which is subsequently approved by both Houses or may end in the death of the Bill where the committee is unable to agree on a version of the Bill within thirty days or where the version that is agreed is rejected by either House. 15. The argument that the prospect of a defeat of a Division of Revenue Bill at a Mediation Committee is evidence that it is not intended to be disposed of by both Houses is incorrect. An important and unwritten principle on which the Constitution is predicated is that there shall be good faith in the disposal of public business by Parliament, that Parliament would not be so unwise as to fail to agree on a matter so important as the monies to be made available to the national and county levels of government with the prospect that no monies are therefore made available by legislation. 16. This argument which is based on the prospect of failure of a mediation process, should, if it is to be applied to a Division of Revenue Bill, also be applied to a County Allocation of Revenue Bill, yet the Constitution is clear that both Bills are to be considered in both Houses. Notably, this argument would apply even if a Bill was to be disposed of only by one House because even then, that House can defeat the Bill. Ultimately, the Constitution is based on the assumption [and belief] that the two Houses will agree, one way or the other. 17. This is also the case in reference to Article 110(3) which requires that “before either House considers a Bill, the Speakers of the National Assembly and the 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 ordinary Bill”. 18. The question could very well be asked, what happens if the two Speakers do not agree as to whether a Bill concerns counties and whether it is an ordinary or special Bill. The bottom-line is that the Constitution is predicated on the bona fides of both Houses. 19. Honourable Senators, for the avoidance of doubt, concerning the Division of Revenue Bill, 2013, in a letter dated 3rd May, 2013, the Speaker of the National Assembly informed the Speaker of the Senate that the Division of Revenue Bill was a Bill concerning county government and that it was an ordinary Bill. Subsequently, by a letter dated 9th May, 2013, the Speaker of the Senate concurred with the finding of the Speaker of the National Assembly. 20. Honourable Senators, having stated that the Bill is properly before the Senate, I will now proceed to the final issue which is the process for disposal of the Division of Revenue Bill, 2013 once the Senate has concluded its consideration of the Bill, which is as follows- (1) On the conclusion of the consideration of the Bill by the Senate, pursuant to standing order 147, the Senate shall either- (a) return the Bill with a message to the National Assembly that the Senate has agreed to the Bill without amendment; (b) return the Bill with a message to the National Assembly that the Senate has rejected the Bill and the Bill has been referred to a Mediation Committee; or (c) cause any amendment or amendments that may have been made to the Bill in the Senate to be entered in the Bill received from the National Assembly, and an amended copy of the Bill, signed by the Clerk and endorsed by the Speaker, shall then be returned to the National Assembly with a message desiring the concurrence of the National Assembly to the amendment or amendments made by the Senate. (2) Where the Senate amends the Bill, standing order 145 of the National Assembly Standing Orders requires the National Assembly to consider the amendments from the Senate in Committee of the Whole on such day as the House Business Committee of the National Assembly shall appoint. Each amendment will either be agreed to or rejected by the National Assembly. (3) Where the National Assembly passes the Bill as amended, the Bill shall be referred to the President for assent in terms of Article 115 of the Constitution. Where the National Assembly rejects the Bill as amended, the Speaker shall refer the Bill to a Mediation Committee. 21. Honourable Senators, having explained all this, I need to call the attention of the Senate and the country at large to the significance of this matter. Article 259(1) of the Constitution provides that the Constitution shall be interpreted in a manner that— (a) promotes its purposes, values and principles; (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance. 22. Honourable Senators, nothing would depart more from the letter and spirit of Article 259 of the Constitution, to my mind, than to interpret the Constitution to mean that the people of Kenya having established an elaborate system of devolved government, complete with a Chamber of Parliament dedicated to representing and protecting the interests of devolved government, intended that this representation and protection should not extend to the process of determination of the sharing of finances between the national and county levels of government. It cannot have been the intention of the people of Kenya that the Senate and county governments would be entirely at the mercy of the National Assembly, a majoritarian House, to determine the amounts of monies, if any, that would be shared by the counties. 23. Honourable Senators, such a finding would herald the death of the devolved government system and with it, a core pillar on which the Constitution is founded. Happily, the Constitution has gone to great lengths, as I have illustrated, to show that this is not so. The devolved system of government is alive and well and this Senate is determined to see to it that this remains the case. 24. Finally, I rule that in accordance with this Communication, the Senate shall proceed with the disposal of the Division of Revenue Bill, 2013 in the manner provided for in the Constitution and the laws. In the disposal of this Bill, I must further remind you that while any Senator is free to discuss our role and that of the National Assembly, I will enforce the provisions of standing order 88(5) which do not allow criticism or adverse reference to the proceedings of the National Assembly or the Ruling of the Speaker of the National Assembly. I thank you. SENATOR EKWEE ETHURO, E.B.S., M.P., SPEAKER OF THE SENATE. 23RD MAY, 2013.
Posted on: Tue, 11 Jun 2013 16:24:49 +0000
Trending Topics
Recently Viewed Topics
© 2015