Senators defend their watchdog mandate

Senate Majority Leader Kipchumba Murkomen addresses mourners during the burial of ODM party treasurer Ogla Karani's father at Chebai, Elgeyo-Marakwet County, on March 17, 2018. He has said senators have a responsibility of ensuring counties are managed well. PHOTO | JARED NYATAYA | NATION MEDIA GROUP

What you need to know:

  • The Nzamba Kitonga-led committee had proposed a Senate with a supervisory role over the National Assembly.
  • Mr Murkomen argued the law gives senators powers to oversight State officers and, by extension, county governments.

The tug-of-war between governors and senators over the Senate’s decision to scrutinise reports of spending in the counties was a litmus test of the House, which was created to protect devolution.

The scrutiny, conducted in the first phase of devolution, was meant to question county bosses on accounting queries raised by the Auditor General, some running into billions of shillings.

While the Senate defended the scrutiny, saying it was intended to shed light on spending in devolved units, it faced opposition from governors, members of county assemblies and various scholars who accused it of overstepping its mandate.

A study published in the latest issue of the Africa Journal of Comparative Constitutional Law indicates that the House has the responsibility of defending devolution, but this does not extend to captaining governors or the devolved units.

The report says the Senate overstepped its mandate when it began summoning governors over audit queries.

“The senators’ obsession with pursuing audit queries in the counties had not only distracted the House from its core mandate, but had also neutered the role of county assemblies in checking the expenditure of county executives,” the study published last month says.

The once powerful Upper House lost some of its powers to the National Assembly following a compromise deal with then-MPs during talks in Naivasha by the Parliamentary Select Committee on the Constitution.

At the Naivasha summit, MPs — including Bungoma Senator Moses Wetang’ula and former Kitui Senator David Musila — whittled down an otherwise powerful Senate, which had been suggested by the Committee of Experts (CoE).

The Nzamba Kitonga-led committee had proposed a Senate with a supervisory role over the National Assembly and with legislative powers at both national and county levels.

It was also to be the trial chamber for impeachment of the President.

It was suggested that all presidential appointments and legislative initiatives be vetted and approved by the Senate and that senators be given an opportunity to occasionally address the assemblies of their home counties, but without voting powers.

Senators who spoke to the Nation, however, discredited the findings of the study, with Majority Leader Kipchumba Murkomen saying their responsibilities were clearly defined by Article 96 of the Constitution.

The law, Mr Murkomen argued, gives the House powers to oversight State officers and, by extension, county governments and their operations, a responsibility they share with county assemblies.

“The Senate derives its powers from Article 96 of the Constitution, which clearly outlines its mandate, and not from journals. Ours is a function of practical governance,” he said.

While both the senators and the ward representatives share the responsibility to oversight governors, the scope at which either of them can apply these powers is muddled by practicability, said the Elgeyo-Marakwet senator.

“The powers of the Senate to summon and question anyone does not only apply to governors but anybody else in the country — all aimed at achieving the best interests of the public,” Mr Murkomen said.

And Senate Speaker Ken Lusaka said that while it is clear the Senate has power to receive financial reports and audits, its first role is to “represent the counties” and “protect” their interests.

He further said that should Senate be concerned that county assemblies are not up to the task, it should mainly focus on strengthening them, not usurping their role.

Mr Lusaka said former senators “lost focus at some point” because of different conflicts of interests.

He underlined the need to have the roles of the two houses complemented but distinct.

“The first point of call for oversight are the counties.

"But we need to get the threshold and know what is supposed to be oversighted by the county assemblies, and what by the Senate,” he said.

The County Assemblies Forum, through chairman Johnson Osoi, said the Senate’s role is limited to overseeing national transfers and not reviewing county expenditure.