Kenya Should Abolish The Senate and Other Great Ideas at The NDC

24 mins read

That was Prof. Makau Mutua expressing his support of ex-AG Prof. Githu Muigai who made a presentation to the sitting National Dialogue Committee (NDC) asking them to recommend the abolition of the senate, reduction of devolved counties and reduce MCA numbers significantly.

Prof. Githu’s main point was that the government(s) were just way to big for the country. Muigai has proposed that the current 290 constituencies and 47 counties be reduced to a maximum of 100 and 14 respectively.

He went a little further when he asked the NDC to also abolish the position of Women Representatives from the National Assembly.

Kenyans elect a Women Rep in every county and that means there are 47 Women Representatives in our country. We need to look at the whole scene and how the representatives help Kenyan women in general but the ones Kenyans know very well were the two contestants for that seat in Nairobi, namely Esther Passaris and Millicent Omanga. We will come back to the Women Rep issue.

As for the Senate we need to go to how and why it was established in the new constitution going back to the Bomas Conference in 2003 where the pillars of the later-to-come 2010 Kenya Constitution were established.

I was fortunate to be at the Bomas meeting in 2003 almost by accident because I just happened to be in the country after my mother passed away. I came from Canada and the conference was on so I went there.

I was invited by my comrade Odenda who was a delegate otherwise I wouldn’t be allowed in. Then I met good friends there like Mwandawiro who was the chair of the committee dealing with issues for the rights and development of Kenyan youth.

The big boss running the Bomas Committee at the time was Patrick Lumumba Otieno a friend of mine whom I met at Usenge High School where we were both teachers while at the University of Nairobi. So I visited Lumumba’s office and he gave me a ton of papers and all bindings from resolutions already made.

It was obvious that the idea of having a senate in Kenya was popular. Kenyans were just sick of the monolithic sick dictatorship of Moi which was very well facilitated by the Kenya National Assembly as the only seat of power outside Moi’s State House but completely controlled by Moi.

So Kenyans had a sense that they needed another seat of power to be part of the check and balance in state affairs. The senate was also supposed to be the big boy supervisor of the county governments to make sure the governors did not turn the counties into corruption dens for themselves and their friends.

The first question for Kenyans to ask now is: Has the Kenyan Senate achieved any one of the objectives for which it was set up? The obvious answer is no, no, and No.

Let’s start with the check and balance business where the Senate was supposed to protect the public interest in cases where parliament is passing laws and making decisions that are harmful to public interest.

Can any Kenyan or any senator in our country name one single action by parliament in the last 10 years deemed harmful to the Kenyan people that has been stopped by the Senate? Zero is your answer.

Does that mean our parliament is full of Angels who do perfect things for parliament? Of course not.

The real issue here is that the Senate does not oversee or approve anything based on what is good for the country but rather based on what is good for the political party or coalition of each senator.

Look at the present situation where we have a controversial Finance Act 2023/24 now before the courts in Kenya because one senator, Okiya Omtatah, defied his fellow senators who wanted to just steamroll the budget because the majority in the senate belongs to Ruto’s Kenya Kwanza alliance and their only interest in the senate is to do what is good for their leader and their political group and you can safely forget they will ever consider doing what is good for the country.

Indeed there is a question out there if the Senate has any powers at all on the budget or if it is just a formality that they glance at the budget and pass it over to the president to sign into law. Some senators opposed to Senator Okiya’s lawsuit have said the Senate is not supposed to do anything about the budget. Then what is the Senate supposed to do if anything?

So the objective Kenyans had for the Senate being a counter checking institution in our parliament has been thoroughly defeated by the actions of the senators themselves thus making it irrelevant in the administration of any government activities in the country. That is the Senate taking itself out before Kenyans do so.

On the senate, as a supervisor of the county governments with the powers to summon governors to appear before the senate when there are allegations of corruption explain the situation, and if found culpable the senate can actually remove governors from office.

Has that ever happened in Kenya since the 2010 constitution took effect in the country? Nada and Nada. Nothing like that has happened. It is the same old thing the senators operate on party lines so if a governor is summoned to the senate their first defenders are all the senators from their political party or grouping.

In fact, one of the most stupid things in the Senate is that they have a nightmare just summoning governors to the Senate to answer questions about corrupt deals by those governors.

Once a governor is summoned the senators from their parties will do anything to make sure that those governors do not even show up at the senate and if they do their “own” senators will defend to make sure they walk out scot-free.

One of the most bizarre cases where the Kenya senate failed miserably to help fight corruption in Kenya was that of Nairobi Governor Mike Sonko in 2019.

Sonko was taken to court and charged with stealing Sh 357 million from Nairobi County and after the senate failed so many times to take any action because the Jubilee senators protected Sonko from any action in the senate.

Sonko pleaded “not guilty” to all the charges when he was arraigned before anti-corruption court magistrate Douglas Ogoti.

The strangest thing here that tells Kenyans all they need to know about how rotten and useless our senate can be is that the lawyer who represented Sonko at the public theft trial was none other than the Senate Majority leader Kipchumba Murkomen who probably was the first time Kipchumba ever appeared in any Kenyan court to defend anybody. This one the senator had to be there not just to legally help the thieving governor but also to assure him that the senate was fully behind him in his thieving mission.

What a lucky thief Sonko must have felt he was with two senators Kipchumba Murkomen and Mutula Kilonzo part of the lead in his defense team.

Sonko right then knew that his theft of pubic money from Nairobi county was fully supported by his political friends in the senate and there was nothing to worry about on that front. Really sad for Kenyans to see their senators defending thieves that the same senators are supposed to punish as part of their job.

Sonko after being saved by the senate is still in trouble and is now looking for President William Ruto to get his money frozen by the courts back. He has pleaded with President William Ruto to help him recover his money, which was frozen by the courts. 

During the launch of the Nairobi Rivers Commission on Wednesday, Sonko said that Ruto’s presidency has been a relief to those who were prosecuted during Uhuru’s regime. 

“Gachagua’s money had been held unlawfully, it has been returned. We have seen people freed by courts. Kenyans prayed for me and the court freed me,” Sonko said. 

He pleaded for the president’s intervention to get him off the hook, alleging that the Directorate of Public Prosecution (DPP) wants to appeal the court’s decision to acquit him of corruption and money laundering charges. 

Sonko called for equality, saying that his money should be handed back to him, just like Deputy President Rigathi Gachagua. 

“I am ready to work with government, a lot of my money that was held by Uhuru Kenyatta, help me to get it back like Rigathi Gachagua. So that I help government and youths,” he said

As we speak governors are doing crazy corruption and the Senate is doing everything to save them and keep them in office.

Take the nuts governor of Meru Mwangaza who has faced impeachment right from when she took office and corruptly decided to run the Meru County government with her unelected husband Murega Baichu.

Now the same governor faces new corruption accusations this time from the voters themselves after a petition has been filed at the Senate and presented to the Ethics and Anti-Corruption Commission (EACC) to probe how some Ksh.42.4 million was paid to four individuals within the last one year.

The petitioner, Thuranira Selesion Mutuma, has in the petition accused the governor of overseeing the plunder of county monies through people related to her.

Selesio states that the “Meru County Governor has been looting public coffers in a brutal manner through people related to her (nepotisim) in total violation and contravention of Article 10 of the constitution”

Those are exactly the same accusations Meru Governor Mwangaza Kawira faced some months ago and the senate did everything to make sure she was not impeached and sent her back to Meru to loot more public money and she has done exactly that. She will be protected by the Senate again.

Simply put if a referendum was held today asking Kenyans to abolish the Senate there would be between 90%-99% support for that and the Senate would be dead forever. The only reason the Senate will still be alive in Kenya is that there is nobody in parliament or even the Senate itself who has the guts and moral courage to have the Senate put to vote in a referendum. It will get there but Kenyans have to work on that.

Same way with reducing MPs from 290 to 200. Put that to a referendum vote today and you have 99.9% support because only the MPs will vote against that. And if the number of MPs is reduced to 200 all that needs to be done is to redefine the constituency boundaries which is the job of the IEBC in Kenya and that is not a big deal.

As for the Senate, one way of saving it and making it work for Kenyans is to restructure how it works with parliament to pass laws and the budget of the country.

Take a good look at the US Senate which is also riddled with partisan party politics sometimes to the level of the absurd where Republicans obsessed with fighting President Joe Bidden would do crazy and stupid things as long as they think that would hurt Bidden politically.

So the US representatives in the Senate and those in Congress will do everything to hurt President Bidden even if their actions actually damage the country.

Look now at the budget stalemate in the US today where the US may have no budget by the end of tomorrow September 30, 2023, because the Republicans with a tiny majority in Congress want to pass an anti-Bidden budget and they don’t even have enough votes to pass that in Congress.

The bigger issue is that even if the Republicans squeeze out their very bad budget bill through Congress, they need a 67% vote in the Senate to approve it before it is sent to the president and even if that were to miraculously happen, President Bidden can veto it and it is back to congress. That is what checks and balances should look like within all the branches of government.

So right now as of September 30, 2023, the US Congress under the leadership of Speaker Kevin McCarthy is stuck in Congress unable to move their fantasy budget forward, and if they are lucky to get it through they do not have 67 votes in the senate where Republicans have 49 senators.

My proposal to the NDC is that we change the Kenya constitution so that every bill and budget passed in parliament must get a 2/3 majority vote in the Kenya senate to pass and be sent to the president to sign. This will make sure that the Kenya Senate will work for Kenyans not for political parties because we can all say quite loudly that no party in Kenya is going to have a 2/3 majority in the Senate whatever number of MPs they have in parliament.

That 2/3 requirement is the only way the senate in Kenya can be a counter checking institution in our political system because parliament will be forced to moderate the bills and budgets they pass to appeal to the overall majority in the senate. Why can’t we do that? Take that proposal to the referendum as a way of saving the Senate and it will pass by a landslide.

On the issue of a number of counties, only God will stop me from jumping over the nearest mountain to me.

The number of counties was one of the biggest issues at the Bomas Conference in 2003. The majority decision was to have eight counties along the provinces which would then become counties with full authority to run basic functions of those counties like health services, urban and rural development plans and projects, and all of it.

The idea of having the eight provinces as counties was that they would be economically viable and self-sufficient. We would have Rift Valley Province as a county, Coast as a county, Nyanza as a county, Central etc. It looked very promising and at the Bomas conference and that is what we agreed on and then the political hacks went to what they called the Naivasha meeting where Kibaki working with Uhuru and others trashed the whole Bomas proposals including having an executive Prime Minister and the counties were increased from 8 to 47.

That Kibaki katiba was put to the referendum in 2005 and Raila and other Kenyans mobilized the voters to defeat it and that is how we ended up with another referendum in 2010 and got our new constitution. People talk about the 2010 constitution, our new bible as if it came from the sky. It did not. Kenyans like Raila Odinga led the fight to get us that new constitution which we are now screwing up every day.

People talking about eliminating the counties are daydreaming. Kenyans love their counties even though the governors and MCAs are robbing them blind. Reducing the counties to 14 or 10 is viable but very difficult because our politicians love territory for themselves. If our politicians could be told that every house will be a constituency they will take it and love it very much.

Can we reduce the number of counties? Yes, we can but it has to be through these regional mergers of counties where Kenyans and even the selfish politicians see the necessity and economic viability of larger regional areas.

Now we have the Lake Region alliance of Kisumu, Siaya, Kakamega, Busia, Migori, and Homa Bay counties among others. That is a creation of economic necessity. How do these counties use Lake Victoria for maximum economic benefits? How do these counties conduct trade and business between themselves and to other parts of the country and the world? How about infrastructure in the region, farming, food availability to everyone, schools, and education?

When the regional alliances see that working together makes it easier to develop projects that benefit everybody they will see the need to have the regional alliances merged as one county and in fact they will be countries by their economic might alone. What is wrong with that? We will get there.

On the issue of Women Representatives, I think I will pass because I really have no authority to speak for women in Kenya nor their representatives in parliament and senate but as long as they are democratically elected I see no problem. Why pick on Kenyan women which are half our population as a country? How about other elected MPs and senators? Why would anybody have problems only with Women’s Representatives?

I totally disagree with singling out Women’s Representatives as a problem for our oversized number of MPs. Yes, we need to cut the numbers down but it is not about women representatives and in fact, parliament has failed to meet the 2/3 constitutional requirement to ensure that a legally constituted parliament in Kenya will have at least 30% of those MPs being women.

Basically, we have an illegal parliament under 2010 as we speak. What do we do with that? Ignore it as the country has done so far. That has to be addressed and this NDC has to go there.

Adongo Ogony is a Human Rights Activist and a Writer who lives in Toronto, Canada

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