Legal Systems and Methods

Lecture 6: The legislature and law-

making

By
Dr. Benjamin Musau
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 Contents
• Parliament, meaning
• The rule of law and supremacy of Parliament
• General functions of legislature
• Law-making as state-power
– Politico legal basis of law-making (democracy: representative v participatory),
constitutional basis (sovereignty of the people and representation of the people),
people’s participation in law-making, legislature as law-maker, legislative process
and general procedures and rules (principal and subsidiary legislation), judicial
precedent (judicial law-making?), domestication of international law/conventions
• The legislature and separation of powers
• Constitution of Kenya (Chapter 8 of the Constitution)
– Parliament, National Assembly, Senate, County Assemblies, People’s access
and participation, People’s petition
– Composition
• The legislative powers and functions of devolved governments

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 Parliament, meaning
• The word Parliament comes from a French
word ‘parlement’ which signifies a place of
speaking.
• Parliament therefore is essentially a place
of speaking.

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 The rule of law and supremacy
of Parliament
• The rule of law
– Carl F Stychin and Linda Mulcahy, Legal
Methods and Systems (Sweet & Maxwell, 4th
Edition, 2010 Reprinted 2012) pages 11-24
– And on judicial review and the rule of law
pages 62
• Supremacy of Parliament
– Carl F Stychin and Linda Mulcahy, Legal
Methods and Systems (Sweet & Maxwell, 4th
Edition, 2010 Reprinted 2012) pages 25-44
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 General functions of legislature
• Law – making function
• Watchdog function
• Discuss

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 Law-making as state power
• Discuss

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 Legislature … separation of
powers
• Njoya case
• Parliament against the SRC
• Discussions

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Democracy, participation and inclusiveness role

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Democracy, participation and inclusiveness role …
• The above figure represents the critical
success factors for devolution in Kenya.
The objects of devolution are set upon the
pillars of:
– Effective political parties;
– Ethics and values;
– Effective development planning;
– Skilled human resource; and
– Sustainable funding.

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 Constitution
Cooperative Devolution; Distinct & Interdependent Governments
Basis of their Mutual Relations: Cooperation & Consultation
National County
Constitution Governments
Government

County Functions:
National ▪ Infrastructure
Functions: ▪ Social services
▪ National policy ▪ Service delivery
▪ Regulation & Shared Functions: ▪ Coordination of
standards ▪Education community
▪ Macroeconomic ▪Transport Participation in
Policy & Mangt local governance
▪Health facilities ▪ Community
▪ Foreign affairs
▪ Natural resources ▪Public works & administrative
▪ National revenue Investment capacity building
▪Statistics for public
▪ Defence etc. participation in
▪Disaster management
National Government

governance

County Governments
▪Energy regulation ▪ Local economic
development etc.
▪Environment
▪ Forestry
▪Tourism etc.

▪ Enabling
macroeconomic ▪ Effective service
environment delivery
▪ Nationhood and ▪ Participatory
strong country development
C
brand
(Shared Institutions) ▪ Empowered
▪ Preferred communities
investment ▪ Vibrant local
destination National Level County Level economies
▪ Equitable Financial Financial Resources ▪ Wealth creation
development Constitution and employment
▪ Sustained high Resources & & Management
generation
economic growth Management ▪ Improved
▪November
High quality of life
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 Composition of legislature
• National legislature
– Legislature (Parliament i.e. Senate and the National Assembly).
– National Assembly: (i.e. Total 350 No. viz: 290 elected MPs+47 elected women
reps from each of the 47 county governments +12 nominated on party strength
of the 350+ Speaker – ex-officio).
• County legislature
▪ County assembly members are elected from each ward (No. of wards in a county
are dependent on the number of constituencies – and the distribution of wards
within a county dependent on the population of the constituency)
▪ There is a constitutional proviso for special seat members – for gender balance –
no more than 2/3 of the same gender rule applies
▪ Members from marginalised groups, people with disabilities and the youth - 2
each – man and woman
▪ Speaker (ex-officio) - elected by the County Assembly from outside its ranks -
role to preside over the sittings of the county assembly or in his/her absence
another member of the assembly elected for the purpose
▪ Nominated ward representatives to be on the basis of party strength of elected
ward representative.

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 Legislature under devolved government
National Legislature
• Legislature (Parliament i.e. Senate and the National
Assembly).
• National Assembly: (i.e. Total 350 No. viz: 290 elected
MPs+47 elected women reps from each of the 47 county
governments +12 nominated on party strength of the
350+ Speaker – ex-officio).
• Senate: (i.e. Total 68 = 47 one from each County, 16
Women nominated by political parties/on strength of the
47; 2 Members, a man and a woman – representing the
youth 2 Members, a man and a woman – representing
persons with disabilities Speaker as ex-officio).

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 Functions of the national legislature
▪ Functions of the Senate: Protecting interests of county governments,
consideration and enactment of any bill that affects the functions and
county governments; determination of the 3 or 5-year formulae/basis for
the allocation of the revenue raised nationally among the 47 counties;
decision on the removal of the President; consideration of issues
relating to the stoppage of funds or the suspension of county
governments, etc. - Article 96. Senate Power exercised via research of
facts, debating, voting, lobbying, party whipping, consensus building,
trade-offs, etc
• Functions of the National Assembly: enactment of laws, vetting of
presidential appointments, oversight of the national executive via
national assembly committees, etc. (NB: National Assembly may
originate national bills relating to county governments).
• National Assembly Power exercised via research of facts, debating,
voting, lobbying, party whipping, consensus building, trade-offs, etc.
• Public participation in law making, budgetary matters, etc. is mandatory
under the Constitution.
• Observance of the National Values and Principles of Governance, the
Values and principles of Public Service and Chapter Six required.
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 National legislature …
National Legislature …
▪ When the Senate is voting on matters that affects counties, other than
a Bill, each county delegation shall have one vote to be cast on behalf
of the county by the head of the county delegation or another member
of the delegation designated by the head of the delegation Article
123(4)). Its noteworthy all elected and nominated senate members who
are registered voters in a particular county will constitute a single
county delegation for purposes of voting on issues concerning
counties (Article 123(1).
▪ Presidential and parliamentary candidates must satisfy educational,
ethical and moral requirements as per Articles 99, 137, 193 and 200 of
the Constitution; and as specified in various statutes (Elections Act,
2011; Ethics and Anti-Corruption Commission Act, 2011; The
Leadership and Integrity Bill, 2012, KRA Act, HELB Act etc.).
▪ Power of recall (Article 104): The electorate will have power to recall
elected MPs and Senators following due process outlined in the
Elections Act, 2011.

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 Functions of county government's legislature
County Assembly Functions:

▪Making laws, necessary for effective performance and exercise of the power
of the county government.
▪Vetting of executive committee members and other senior staff nominated
by the Governor or the County Public Service Board.
▪May receive and approve of plans and policies for the management and
exploitation of the county’s resources and development and management of
its infrastructure and institutions.
▪Exercise oversight over the county executive committee including its
approval of budgets, development plans, county audit reports from the
Auditor General, etc.

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Constitutional Devolution: Nexus Pertaining to Functions, Power,
Financial Resources and Management

Devolved/County
Governments
(Established by the
Constitution)

Functions
(Assigned by the
Constitution)

Power to Manage Financial

Own Affairs Resources &
Management
(Conferred by the
Constitution) (Specified in the
Constitution)
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Governance and Management of Urban Areas and Cities
County Assembly County Executive
(County Assembly Speaker) (County Governor)

Executive Committee Member

County Urban Areas & City Committee
responsible for Urban Areas & Cities

Urban Areas & Cities

Board/Committee

Urban Area/ City COO/ Manager

Director Director Director

(Departmental Head) (Departmental Head) (Departmental Head)

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Financing County Infrastructure

National
County Joint County Infrastructure Government
Authorities & Investment Departments &
State Corporations

County Own Public- Private

I Partnerships:
Revenues:
ntergovernmental • Management
Transfers: • Taxation Contracts (MCs)
•County Allocation of revenues • Leases
• Concessions
Equitable share of • Fees and • Build-Own-
National Revenue
•Conditional Grants Charges Operate-Transfer
•Unconditional Grants • Donor Grants
(BOOT)
•Equalization Fund • Build–Own-
•Contingency Fund • Guaranteed Operate (BOO)
Loans • Other PPP Types

County Economic
Development
Corporation &
Companies Private Sector &
County Infrastructure Non- State Actors
County
Governments & Investment
Infrastructure
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Development Fund https://www.bmmusau.com/ 18
(CGIDF)
 Comments and discussion
• The Constitution of Kenya, 2010 is a major paradigm shift from
autocracy to democracy following a major protracted struggle by the
people of Kenya.
• The people of Kenya are likely to watch closely the implementation in
order to ensure that their rights are not watered down by mediocre
implementation or interpretation.
• Leadership must be accountable to the people and the people have
mechanisms of holding their leaders accountable e.g. the vote, recalling
of MPs, enforcement of constitutional rights by the courts, judicial
review remedies to check excesses of administrative action, etc.
• Constitutional Commissions are independent and shared between the
national and county governments. They are in actual fact the fourth arm
of Government in addition to the Executive, Legislature and the
Judiciary. They are a 4th arm of Government because they are only
subject to the Constitution (i.e. only subject to the law).
• The 4th arm of Government introduces a completely new jurisprudence
in Kenya and it will be interesting so see how this new branch evolves
and develops.
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