National Assembly, Senate headed for showdown in dispute over laws

Members of Parliament in a session on November 21, 2018. PHOTO | FILE | NATION MEDIA GROUP

What you need to know:

  • The Senate claims that the National Assembly Speaker Justin Muturi has arrogated himself powers of the Constitution and regularly ignores the role of the House in the legislative process.
  • The legal battle has roped in the Council of Governors, which is offering its support in the intended legal action.

The Senate will this week file an application at the High Court challenging at least 20 pieces of legislations enacted by the National Assembly as the turf wars between the two Houses take a turn for the worse.

LEGAL ACTION

The Senate is also seeking to challenge certain articles of the Standing Orders of the National Assembly they consider unconstitutional.

In particular, it is focused on Standing Order 12 (2), which senators argue is unconstitutional to the extent that it provides for concurrence only when a “question” arises as to whether a Bill concerns the counties.

The legal battle has roped in the Council of Governors (CoG), which is offering its support in the intended legal action.

In what is shaping up to be a battle to watch, senators who are practising advocates have accepted to provide pro bono services and prosecute a matter they say has undermined the Senate.

Consequently, a meeting will be held between the Senate committee on Justice and Legal Affairs and representatives of the CoG Monday afternoon to finalise the pleadings before they are filed in court, latest next week.

On Thursday, the CoG health Committee chairman Mohamed Kuti supported the application, saying the council was ready to mobilise resources to ensure that application was filed in court.

The Senate claims that the National Assembly Speaker Justin Muturi has arrogated himself powers under Article 110 (3) of the Constitution and regularly ignores the role of the House in the legislative process.

The Articles require that, before either House considers a Bill, the two Speakers 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.

STATE AGENCIES

On Sunday, National Assembly Majority Leader Aden Duale dared the Senate to go ahead and sue, warning that legislative work will not be carried under the cover of intimidation and threats.

“We are ready to defend our position because our activities have been within the existing legal framework,” he told the Nation Sunday. Mr Duale warned that taking the legal route will have serious repercussions in the relationship between the two Houses and that Senate will never have an opportunity to consider at first instance any money bill.

“We discharge our mandates in line with the provisions of the Constitution and not threats. It is all detailed from Articles 93, 94, 95 and 96 of the Constitution and the Senate should know their place,” Mr Duale said.

The conflict on this article is not exactly new. It was a subject of the 2013 Supreme Court advisory in which the apex court advised in favour of the Senate. While all has been well, it’s the enactment of the Health Laws (Amendments) Bill, 2018, which has reopened the festering wound and triggered what may be an ugly legal contest that may rope in all State agencies.

Whereas health is 90 per cent devolved, leaving the Ministry of Health only with the mandate on policy, the two national referral hospitals and Mathari Hospital, the National Assembly drafted, debated, passed and submitted to the President for assent the Bill without reference to the Senate.