[UAH] Yes, there seems to be a conspiracy to emasculate the Senate and then kill it

When Senator Kipchumba Murkomen alleged a conspiracy to cripple the Senate and wind it up, it was an understatement. It seems, indeed, that there is a plan to return Kenya to the constitutional order which obtained between 1960s and 1991.

In an article titled The Role of Senate in the Kenyan Political System, J.H. Proctor Jr observed that "a little more than a month after the meeting of the Senate on June 7, 1963, an opposition MP voiced the suspicion that some ministers had a negative attitude towards that House and there was a rumour circulating that the Senate might be washed out".

He further says that in 1964, the Leader of Government Business acknowledged there had been wide speculation as to whether the Senate should be scrapped.

One hopes that what Mr Murkomen said will not prove prophetic. If it does, Kenya may be restarting 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 and Controller-General had lost their independence.

MPs have made it clear that they consider their House to be superior to the Senate. That notion is now embodied in the Bill on the Division of Revenue which was assented to by the President on June 10.

One hastens to add that the President did not assent to it because he supported it in principle, but rather because he feared there would be a government shut-down if no money was approved by Parliament before June 30.

Legislator Mithika Linturi's motion to nullify the Legal Notice which communicated the new salaries of MPs was based on an outdated notion of the supremacy of Parliament.

The disregard for the views of the Senate on the Division of Revenue Bill is based on the same notion.

Before August 4, 2010, the constitution had established a single chamber of Parliament and a unitary government, the devolved government having been abolished in 1965 through a constitutional amendment.

In 1966, the Senate was abolished through a constitutional amendment. Mr Murkomen was hinting at a similar possibility. Recently, Kiharu MP Irungu Kang'atta, informed the country that he would be bringing a constitutional amendment Bill through which he will start a process of abolishing the Senate.

But 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.

The 1966 abolition of the Senate was part of a bigger project to dismantle the constitutional order established by the 1963 Constitution. That project was discussed by former Attorney-General Charles Njonjo in an article titled, 'Recent Constitutional Changes in Kenya' published in the 1965 issue of the East Africa Law Journal.

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.

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 per cent of all MPs and 90 per cent support of all senators, it persuaded the two Houses to accept an amendment whereby any amendment to the Constitution would require the support of only 65 per cent of all 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 an all-powerful presidency;

b) to abolish, in 1965, the devolved government then known as regionalism;

 

c) to abolish the Senate in 1966;

d) to abolish multpartyism in 1982;

e) to abolish, in 1987, the independence of the Attorney-General;

f) to abolish, in 1988, the independence of the Judiciary and the Auditor and Controller-General.

It is the undemocratic philosophy embodied in the notion of the Supremacy of Parliament being used now which caused the very suffering which led to calls to rewrite the Constitution. For how long will Kenyans continue rewriting their constitutions?

Dr Kuria is a Senior Counsel.