About Parliament

Establishment of Parliament

Chapter Eight of the Constitution of Kenya establishes the Legislature. Article 93 of the Constitution states that “There is established a Parliament of Kenya”, “which shall consist of the National Assembly and the Senate.” The two Houses of Parliament shall perform their respective functions in accordance with the Constitution as stated in Article 93 (2) of the Constitution.

Role of Parliament

Article 94 of the Constitution states the following as the role of Parliament:

• The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament.
• Parliament manifests the diversity of the nation, represents the will of the people, and exercises their sovereignty.
• Parliament may consider and pass amendments to this Constitution, and alter county boundaries as provided for in this Constitution.
• Parliament shall protect this Constitution and promote the democratic governance of the Republic.
• No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.
• An Act of Parliament, or legislation of a county, that confers on any State organ, State officer or person the authority to make provision having the force of law in Kenya, as contemplated in clause (5), shall expressly specify the purpose and objectives for which that authority is conferred, the limits of the authority, the nature and scope of the law that may be made, and the principles and standards applicable to the law made under the authority.
• parliament.go.ke/About_Parliament/

Historical Background

The British colonial administration, which was in charge of the then Kenya protectorate, established a Legislative Council (LEGCO) in 1907 to advise the then Chief Minister on the running of the colony. Its Members were nominated from the administration with the Chief Minister as Speaker, on the one hand, and the settler farming community on the other.

Kenya became a  de facto  British colony in 1920, with the Governor representing the King. For many years, the African population which had no vote, was represented in the LEGCO by an appointee of the Governor. The first African Member was nominated in 1944.

In 1957, after the acquiring of voting rights by Africans based on wealth and education, the first eight elected Africans joined the LEGCO. This development accelerated the country’s movement towards independence in 1963. The LEGCO the first bi-cameral parliament. However, this did not last long as the Senate merged with the House of Representatives to form the National Assembly in 1966.

The country has since independence had a consistent Parliamentary System of Government, with the President both as an elected Head of State and a Member of the National Assembly representing a constituency. General elections have been regularly (every five years) conducted to renew the mandate of the Government.

Post-independence Kenya became a  de facto  one party state in 1967 but matters changed substantially passed in 1982, when parliament a law to make it legally so. However, after a lot of agitation, the constitution was amended in 1991 to allow for the country to revert to political pluralism. This enabled a joint opposition alliance to remove the ruling party KANU, which had been in power since independence, in the 2002 General Elections. The current Parliament is the 9th Parliament.

Following the clamor for the review of the constitution which gathered momentum in the 1980s, the Constitution of Kenya Review Act, Chapter 3A of the Laws of Kenya was enacted by Parliament in 2001 to facilitate a comprehensive review of the Constitution by the people of Kenya. The objectives of the review process were to guarantee peace, national unity and integrity of the

Republic of Kenya, to establish a free and democratic system of government and to provide for the separation of power and checks and balances of the three organs of state, ie the executive, the legislature and the judiciary. The review also sought to promote people’s participation in elections, devolution of power, to recognize ethnic and regional diversity, and to ensure provision of basic necessities for all Kenyans, among others.

The review process which commenced in 2001 was conducted by the Constitution of Kenya Review Commission, the Constituency Constitutional Forum, the National Constitutional Forum, the Referendum and the National Assembly.

All the organs of review were expected to be accountable to the people of Kenya and to ensure that the review process was an all inclusive one taking care of the rights and interests of all groups (socio-economic status: race, gender, religion, age , disability, minority, etc.) and the national interest.

At the conclusion of the review exercise at the National Constitutional Forum, now popularly known as “the Bomas” (after the Bomas of Kenya venue where the talks were conducted), a Referendum, as stipulated by the Review Act, was conducted on the Draft Constitution. The document was rejected by the people by 57% to 43% in a National Vote. The process had gone full circle and now the government has gone back to the drawing board to chart the review process once again.

Enacting Legislation

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

(2) Any Bill may originate in the National Assembly.

(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.

(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.

(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.

The National Assembly

Article 95 of the Constitution establishes that the National Assembly shall consist of the following: –

• Two hundred and ninety members, each elected by the registered voters of single member constituencies;
• Forty-seven women, each elected by the registered voters of the counties, each county constituting a single member constituency;
• Twelve members nominated by parliamentary political parties according to their proportion of members of the National Assembly in accordance with Article 90, to represent special interests including the youth, persons with disabilities and workers; and
• The Speaker, who is an ex officio member. http://www.parliament.go.ke/index.php/the-national-assembly

Historical Background

1.  Introduction

The authority to make laws in Kenya is primarily vested in two institutions; Parliament and County Assemblies. Parliament makes laws that apply nationally, while County Assemblies make laws applying in the respective County.

Kenya has changed from bicameral with Regional Assemblies, at independence, to unicameral and back to bicameral with County Assemblies as the situation currently obtains.

The following is a brief history of the legislature, its establishment and mandate since independence.

2.  The 1963-1967  

At independence, Kenya had a two-chamber Parliament and Regional Assemblies.

(a)   Parliament

Parliament comprised the National Assembly and Her Majesty who was represented by the Governor-General. The National Assembly was a two-chamber consisting of the Senate and the House of Representatives.

Parliament had the power to make laws applying throughout the country. Bills, except a money Bill, originated in either House. Once a Bill was passed by the House in which it originated, it was sent to the other House for consideration and passage, and thereafter presented to the Governor-General for assent (later the President).

Money Bills originated in the House of Representatives. The Senate only proposed amendments for the House of Representatives to consider. The House of Representatives had no obligation to incorporate amendments suggested by the Senate.

(b)   Regional Assemblies

At independence, Kenya was divided into seven (7) Regions, plus the Nairobi Area. The seven Regions were Coast, Eastern, Central, Rift Valley, Nyanza, Western and North Eastern. Each Region, except the Nairobi Area, had a Regional Assembly with power to make laws. Laws for the Nairobi Area were made by the National Assembly.

A Regional Assembly had power to make laws with respect to any matter concerning the Region. It also participated in making laws to implement international obligations entered into by Kenya. This was done by the giving of consent by all ‘the Presidents’ of the Regional Assemblies. Each Region had a President, akin to a Governor, who participated in the law making process by assenting to Bills passed.

3.  The 1967-2013 

Between December 1964 and 1968, the Constitution was amended severally resulting in the abolition of Regions, and merging of the Senate and the House of Representatives.

Kenya reverted to a unicameral where Parliament which consisted of the President and the National Assembly was the principal law maker. The National Assembly considered and passed Bills, while the President assented to the Bills passed.  

4.  The under the 2010 Constitution

The 2010 Constitution establishes two organs: Parliament and County Assemblies, with authority to make laws.  

(a)   Parliament

Parliament is established under Article 93 (1) of the Constitution as a bicameral. It comprises of the Senate and the National Assembly.

(i)         The Senate

The Senate is made up of 67 members and the Speaker who is an  ex officio  member. The roles of the Senate as set out under Articles 94 and 96 of the Constitution are __

Ø representing counties, and protecting the interests of counties and those of county governments;

Ø legislating laws concerning county governments;

Ø determines allocation of national revenue amongst counties and oversight utilization of revenue allocated to county governments; and

Ø oversight of state officers and participate in the impeachment of the President and the Deputy President.

The Senate’s legislative role is provided for under Articles 94, 96 (2) and 109 of the Constitution. It considers and passes laws which concern counties. Under Article 110 (1) of the Constitution a Bill is said to concern counties if __

Ø it contains provisions affecting the functions and powers of the county governments;

Ø it relates to the election of members of a county assembly or a county executive; and

Ø it is Bill affecting the finances of county governments.

(ii)        The National Assembly

It is made up of 349 members and the Speaker who is an  ex officio  member. The roles of the National Assembly as set out under Articles 94 and 95 of the Constitution include representation, legislation, oversight over national revenue and its expenditure, appropriates funds for expenditure by the national government, allocation of revenue, oversight over state organs, approves declaration of war, and removal from office of state officers including the President and the Deputy President.

The National Assembly’s legislative role is provided for under Articles 95 and 109 of the Constitution. It makes laws applying nationally and can consider any Bill, including those concerning County Governments. 

Three critical issues to note regarding the legislative function of the Senate vis-à-vis that of the National Assembly –

        (i) all Bills considered by the Senate must be considered by the National Assembly before they become law;

        (ii) all Bills considered by the National Assembly and touching on County Governments must be considered by the Senate before they become law; and

       (iii) Bills that do not concern County Governments are only considered by the National Assembly.

(b)    The County Assemblies

Chapter Twelve of the Constitution establishes devolved governments by creating 47 County Governments. A County Government consists of a County Assembly and the County Executive.

The roles of County Assemblies as provided for under Article 185 of the Constitution and section 8 of the County Governments Act, No. 17 of 2012 are representation, legislation, oversight over County Executive Committee, approving county development planning, approving of budget and expenditure of the County Government, and approving borrowing by the County Government.

County Assemblies make laws applying to the respective County as provided for under Article 185 of the Constitution and the Fourth Schedule to the Constitution.

Role of the National Assembly

Article 95 of the Constitution states that the following shall be the roles of the National Assembly: –

• The National Assembly represents the people of the constituencies and special interests in the National Assembly.
• The National Assembly deliberates on and resolves issues of concern to the people.
• The National Assembly enacts legislation in accordance with Part 4 of this Chapter.
• The National Assembly—
• (a) determines the allocation of national revenue between the levels of government, as provided in Part 4 of Chapter Twelve;
• (b) Appropriates funds for expenditure by the national government and other national State organs; and
• (c) exercises oversight over national revenue and its expenditure.
• The National Assembly—
• (a) reviews the conduct in office of the President, the Deputy President and other State officers and initiates the process of removing them from office; and
• (b) exercises oversight of State organs.
• The National Assembly approves declarations of war and extensions of states of emergency.

The Senate

Chapter eight of the Constitution of Kenya (the Constitution) establishes the Legislature. Article 93 of the Constitution states that “There is established a Parliament of Kenya,” (Parliament) “which shall consist of the National Assembly and the Senate.” The two Houses of Parliament shall perform their respective functions in accordance with the Constitution as stated in Article 93 (2) of the Constitution. http://www.parliament.go.ke/index.php/the-senate

Roles of The Senate

Senate’s overall function is to protect the interests of the counties and their governments. Article 96 of the Constitution provides that the Senate has a role in

1. Law -making;

2. Determining allocation of national revenue among counties as per Article 217 of the Constitution and overseeing national revenue allocated to county governments; and

3. Considering and determining any resolution to impeach the President and Deputy President as per the provisions of Article 145 and 150 (2) of the Constitution respectively.

A.     Law-making

In exercising its legislative mandate, the Senate considers, debates and approves Bills.

Articles 110 and 256 of the Constitution provide that Bills that may originate from the Senate are –

(a)   Bills concerning County Governments

Article 110 of the Constitution defines a Bill concerning County Governments as that which –

(i) contains provisions affecting the functions and powers of the County Governments as set out in the Fourth schedule;

(ii) relates to the election of members of a county assembly or a county executive; or

(iii) affects the finances of the County governments

The process of passing Bills in this category is guided by the provisions of Articles 111 through to 113 of the Constitution.

(b)   Bills that propose amendments to the Constitution through Parliament as envisaged in Article 256 of the Constitution.

Other than Bills that originate from the Senate, the Senate considers Bills that –

(i) originate from the National Assembly but affect county governments;

(ii) propose to amend the Constitution under Articles 256 or 257 of the Constitution;

(iii) divide the national revenue between the National and County government ie the Division of Revenue Bill under Article 218 (a) of the Constitution.

(iv) divide the national revenue allocated to the County level of government through the Division of Revenue Bill, amongst the county governments; ie the County Allocation of Revenue Bill under Article 218 (b) of the Constitution.

B.     Allocation of National Revenue

1.      Division of revenue between the National and County Governments

Article 217 (1) of the Constitution mandates the Senate to determine, by resolution, the basis for allocating among the counties the share of national revenue that is annually allocated to the county level of government. In determining the basis of revenue sharing under clause (1), the Senate must-

(a) Consider the provisions of Article 203 (1) of the Constitution; ie the national interest, the public debt and other national obligations, the needs of the national government, the need to ensure counties perform their functions, fiscal capacity and efficiency of county governments, developmental and other needs of counties, economic disparities within and among the counties, affirmative action, economic optimization of each county, the desire for stable and predictable allocations of revenues and flexibility in responding to emergencies and other temporary needs;

(b) request and consider recommendations from the Commission on Revenue Allocation;

(c) consult the county governors, the Cabinet Secretary responsible for finance and any organization of county governments; and

(d) invite the public, including professional bodies, to make submissions to it on the matter.

While considering the Division of Revenue Bill under Article 218 of the Constitution, the Senate ensures that the counties get their share of the revenues collected at the national level.

2.      County Allocation of Revenue Bill

Immediately after the approval of the Division of Revenue Bill, the Senate is charged with considering, deliberating and voting on the County Allocation of Revenue Bill which divides revenue allocated to the county level of government amongst the counties using the formula developed by the Senate every five years as per the provisions of Article 217 of the Constitution.

3.      Review of any Bills dealing with sharing of revenue or any financial matter concerning County Governments

The Senate also considers recommendations made by the Commission on Revenue Allocation regarding provisions of any Bill dealing with sharing of revenue or any financial matter concerning County Governments as per the provisions of Article 205 of the Constitution.

C.     Impeachment

The Senate plays a pivotal role in the process of impeaching the following State officers-

1. The President

2. The Deputy President

3. The Speaker and Deputy Speaker of the Senate

4. The Governors.

1.      President

The process of impeaching the President is outlined in Article 145 of the Constitution. The Senate is required to investigate allegations for impeachment of the President and resolve if they have been substantiated. The Senate may by resolution constitute a Special Committee of eleven Senators to investigate the allegations. If the Special Committee of the Senate finds that the allegations have been substantiated, then the Senate shall –

(i) accord the President an opportunity to be heard; and

(ii) vote on the impeachment charges

If at least two-thirds of all Senators vote to uphold any impeachment charge, the President ceases to hold office.

2.      Deputy President

The process of impeaching the Deputy President is outlined in Article 150 of the Constitution. The Senate is required to investigate allegations for impeachment of the Deputy President and resolve if they have been substantiated. The Senate, by resolution, may appoint a Special Committee of eleven Senators to investigate the allegations. If the Special Committee of the Senate finds that the allegations have been substantiated then the Senate shall –

(i) accord the Deputy President an opportunity to be heard; and

(ii) vote on the impeachment charges.

If at least two-thirds of all Senators vote to uphold any impeachment charge, the Deputy President ceases to hold office.

3.      Speaker and Deputy Speaker

Article 106 (2) (c) gives the Senate the power to remove the Speaker or the Deputy Speaker from office if it passes a resolution supported by at least two-thirds of its members.

4.      Governors

The process of impeaching the Governor is outlined in Article 181 of the Constitution and section 33 of the County Governments Act.

The Senate is required to investigate allegations for impeachment of the Governor and resolve if they have been substantiated. The Senate, by resolution, may appoint a Special Committee of eleven Senators to investigate the allegations. If the Special Committee of the Senate or the Senate sitting in Plenary finds that the allegations have been substantiated then the Senate shall –

(i) accord the Governor an opportunity to be heard; and

(ii) vote on the impeachment charges

If the Majority of Senators vote to uphold the impeachment charge, the Governor ceases to hold office.

If the vote to uphold the impeachment fails, then the Speaker of the Senate shall inform the Speaker of the concerned County Assembly.

A motion for removal of the Governor on the same charges may only be re-introduced in Senate on the expiry of three months from the date of the failed vote to uphold the impeachment.