1. Introduction
The legislature is one of the wings of government effected by the doctrine of “Separation of powers” alongside Executive and Judiciary and which derives its authority from the people as defined in the constitution. Legislative authority is a law-making authority apportioned by the state’s constitution to the state’s legislature, and these laws made by the legislature are binding on the people within the state and on organs of the state including the executive, thus imparting the jurisprudence of checks and balances within the government. In Some countries like South Africa, the legislative authority is not given to a single institution. It is instead divided up among three spheres of government__ national, provincial and local, which are interdependent in Co-operative Federalism. The United States constitution vests this authority in a Congress of the United States, which consists of a Senate and House of Representatives, albeit the states’ legislatures play pivotal role in making laws that have jurisdiction within the boundaries of each state . Conversely, the European Union legislative authority is vested in the European citizens and exercised by the European parliament, which jointly share the legislative power with the council of ministers in the matters concerning the annual budget of the E.U. In Germany, the trend continues with the legislative authority being divided between the Federation and Lander, with the later operating within the provisions of the Federal laws. The Spanish system mounts this authority exclusively on Cortes Generales (Parliament) which represents the Spanish people and which is divided into the Congress and Senate. The Kenyan situation, which is our focus in this chapter, sees the legislative authority shared between the national legislature and the devolved (County) legislatures, devoid of this, the national legislature retains its traditional role of making laws that enjoy the force of law within the country, while the county legislatures serve to implement the national laws and policies within their respective counties, with a little independence of making laws within their jurisdiction that must be in consistence with the constitution and the national legislation . In this vein, it will suffice to infer that the legislative authority is exercise variably across the globe as we shall see in the following discussion of the composition, structure and function of the Kenyan Legislature(s) both at the national and county tiers with a little comparative reference to the South African, American and the European Union Legislatures. 2. National Legislature
The national legislature is constituted by a parliament which is divided into two chambers— Senate and National Assembly. 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.
As aforesaid, the parliament of the Kenya is bicameral, made up of the National Assembly which represents the people of the constituencies and their special interest at the national level. On the other hand there is the Senate which represents the counties, and serves to protect the interests of the counties and their governments. The onus of this arrangement is to enhance an efficient system of check and balances, as the two houses serve to limit and control the traditional powers usurped by the executive branch of government. The re-emergence of the bicameralism in Kenya comes at the wake of the need to rectify the error made by the post-independent regimes in amending the independent constitution which had initially provided for the two houses of parliament__ the Senate and the House of representatives, with the former representing the people of the regions and the later being a correspondent of the current National Assembly. This amendment was brought about by the Seventh amendment which was introduced in December 1966. The main effect of this amendment was the abolishment of the Senate. This entailed the merging of the two Houses of Parliament, and thus depreciation of transparency and equitability with regard to how the interests of the society were represented. The idea behind bicameralism is that the two houses of parliament representing different interests, will act as a check on one another. The National Assembly is the dominant house between the two houses. 2.1 The structure, composition and Functions of Parliament
a) National Assembly
The National Assembly is a democratically elected house of parliament which consists of the representatives of the people of the constituencies. It is, arguably, the epitome of democratic order in Kenya. It consists of 350 members in total. 290 members of the house are elected by the registered voters of single member constituencies, 47 seats are specially allotted to the women, each elected by the registered voters of the counties, each county constitutes a single member constituency thus contributes each woman. Further, to enhance proportional representation, the constitution translates the number of votes obtained by a political party proportionately into a number of representatives for the party and then gives these parties discretion of nominating 12 members, beside the elected, to the national assembly according to their proportion of elected members in the National Assembly. Finally, one speaker, who is an ex-officio member, seals a 350-member National Assembly of Kenya. This number is far smaller than the one house by its France counterpart which houses up to 577. The National Assembly is generally known for making the legislations, alongside the senate, that are binding on everybody within the country, but beyond this facet the National Assembly enjoys other exclusive roles in most countries of the world. In South Africa, for instance, the National Assembly ensures the government by the people by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action; it is also mandated with a rare discretion of choosing the President. As a rule, members of the executive are appointed from the National Assembly; this is the point of departure from the Kenyan constitutional dispensation. In Kenya, its role is to deliberate on and resolves issues of concern to the people of Kenya. Accordingly, the National Assembly: determines the allocation of national revenue between the levels of government; appropriates funds for expenditure by the national government and other national State organs; and exercises oversight over national revenue and its expenditure. It also reviews the conduct in the office of the President, the Deputy President and other State officers and initiates the process of removing them from office; It plays a public watchdog’s role by exercising oversight of State organs; Finally, its dominant stature over the Senate makes it the only house that can approve declarations of war and extensions of states of emergency.
b) Senate
The Senate represents the counties, and serves to protect the interests of the counties and their governments. Among other things; the Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties. It also flexes its legislative muscles by determining the allocation of national revenue among counties and exercises oversight over national revenue allocated to the county governments. The peak of its legislative supremacy can be seen in its participation in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office__ this is achieved through impeachment of the president or the deputy president. In the United state, the Senate, as one house of Congress, has the powers outlined in Article I, section 8 of the Constitution. The Senate has several exclusive powers that are also mentioned in Article One. The Senate must approve treaties with other nations; major appointments of the President, like ambassadors and members of the federal judiciary, must be approved by the Senate; the Senate acts as the jury in impeachment cases and to be removed from office, the impeached officer must be convicted by a two-thirds vote in the Senate. However, the approval roles at the national front are mostly taken by the National Assembly in Kenya, while the senate is left with the approval role of matters concerning the counties.
The fact that Kenya is currently divided into forty-seven counties, by default the membership of the Senate consists of: forty-seven members each elected by the registered voters of the counties, each county constituting a single member constituency; To mitigate a mode gender imbalance usually witnessed in the parliaments, the constitution is categorical in allotting sixteen women members, who shall be nominated by political parties according to their proportion of members of the Senate, to a have a representative share in the Senate. The youth are also recognized in the Senate as two seats are reserved to be filled by one man and one woman of their own to represent them. Another breakaway from the old constitutional dispensation is seen in the representation of the persons with disabilities in the Senate where two of them, one man and one woman, are allowed to represent their interest. The list of the members of the Senate is concluded by the speaker, who is an ex officio member.
2.2 Qualifications and disqualifications for election as Member of Parliament A person is eligible for election as a Member of Parliament if the person— is registered as a voter and satisfies any educational, moral and ethical requirements prescribed by the Constitution or by an Act of Parliament; and is nominated by a political party, or is an independent candidate who is supported––
(i) in the case of election to the National Assembly, by at least one thousand registered voters in the constituency; or
(ii) in the case of election to the Senate, by at least two thousand registered voters in the county.
Conversely, a person is disqualified from being elected as a Member of Parliament if the person—is a State officer or other public officer, other than a Member of Parliament; has, at any time within the five years immediately preceding the date of election, held office as a member of the Independent Electoral and Boundaries Commission; or has not been a citizen of Kenya for at least the ten years immediately preceding the date of election; further, one can be ineligible if one is a member of a county assembly; or is of unsound mind, undischarged bankrupt; is subject to a sentence of imprisonment of at least six months, as at the date of registration as a candidate, or at the date of election; or is found, in accordance with any law, to have misused or abused a State office or public office or in any way to have contravened the constitutional chapter on Leadership and Integrity. One thing remain uncertain though, there is nothing like Age specification for one to become a national legislator under new constitution unlike the prerequisite 21 years of the old order.
2.3 Vacation of office of Member of Parliament
The office of a Member of Parliament becomes vacant— if the member dies; or if, during any session of Parliament, the member is absent from eight sittings of the relevant House without permission, in writing, from the Speaker, and is unable to offer a satisfactory explanation for the absence to the relevant committee. Furthermore, the vacancy can occur if the member is otherwise removed from office upon contravention of the constitutional provisions on leadership and integrity as enshrined in Chapter six of the constitution. If a member resigns from Parliament in writing to the Speaker, either at the Senate or National Assembly, he ceases to be called an MP. Another ground for losing Parliamentary membership is when the member resigns or is deemed to have resigned from the party that sponsored him to the parliament, or if the member was an independent candidate when he joined the parliament but later decides to, and actually, joins a political party. However, a natural termination of membership in parliament comes when the term of the relevant House ends, which is normally after the end of its fifth year.
If the vacancy occurs in the Senate or the National Assembly in either circumstance provided above, the speaker of the respective house shall notify in writing, within twenty one days, the Electoral body and the political party on whose party list the member was elected or nominated, then the by-election shall be conducted after ninety days, subject to alteration from the court, from the date of vacancy. The court has the power to extend the ninety days ultimatum if it has detected violation of the law with regard to the conduction of the not-yet-conducted by-election as was witnessed in the case of Republic v Returning Officer Kamukunji Constituency, Nairobi & another Ex-parte Simon Ng’ang’a Mbugua . 2.4 The law-making procedures of Parliament
Exercise of legislative powers
The Parliament exercises its legislative power through Bills passed by Parliament and assented to by the President. Any Bill may originate in the National Assembly. A Bill not concerning county government is considered only in the National Assembly, while the Bill concerning county government may originate in the National Assembly or the Senate. Any member or committee of a relevant house parliament may introduce a Bill which, if passed, becomes legislation, but a money Bill can be introduced only in the National Assembly so long as it does not cover those not listed in the definition of “Money Bill”.
Bills concerning county government
A “Bill concerning county government” means–– a Bill containing provisions affecting the functions and powers of the county governments set out in the Fourth Schedule; a Bill relating to the election of members of a county assembly or a county executive; and a Bill referred to in Chapter Twelve affecting the finances of county governments.
A Bill concerning county governments is–– a special Bill, which is considered under Article 111, if it–– relates to the election of members of a county assembly or a county executive; or is the annual County Allocation of Revenue Bill referred to in Article 218(b); or an ordinary Bill, which shall be considered under Article 112, in any other case. Before either House considers a Bill, the Speakers of the National Assembly and Senate 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. When any Bill concerning county government has been passed by one House of Parliament, the Speaker of that House shall refer it to the Speaker of the other House. If both Houses pass the Bill in the same form, the Speaker of the House in which the Bill originated shall, within seven days, refer the Bill to the President for assent.
Special Bills concerning county governments
A special Bill concerning a county government is process in the same manner as an ordinary Bill concerning county government, subject to the law that the National Assembly may amend or veto a special Bill that has been passed by the Senate only by a resolution supported by at least two-thirds of the members of the Assembly, and if a resolution in the National Assembly to amend or veto a special Bill fails to pass, the Speaker of the Assembly shall, within seven days, refer the Bill, in the form adopted by the Senate, to the President for assent.
Ordinary Bills concerning county governments
If one House passes an ordinary Bill concerning counties, and the second House rejects the Bill, it shall be referred to a mediation committee appointed under Article 113, which stipulates the how the committee goes about its business; or passes the Bill in an amended form, it shall be referred back to the originating House for reconsideration. If, after the originating House has reconsidered a Bill referred back to it in an amended form, that House–– passes the Bill as amended, the Speaker of that House shall refer the Bill to the President within seven days for assent; or rejects the Bill as amended, the Bill shall be referred to a mediation committee established by article 113 of the basic law. Mediation committees
Mediation committees serve the literal role of arbitrators in a situation where both houses are conflicting on a bill. If a Bill is referred to a mediation committee as aforesaid, the Speakers of both Houses are obliged to appoint a mediation committee consisting of equal numbers of members of each House to attempt to develop a version of the Bill that both Houses will pass. If the mediation committee agrees on a version of the Bill, each House shall vote to approve or reject that version of the Bill. Consequently, if both Houses approve the version of the Bill proposed by the mediation committee, the Speaker of the National Assembly shall refer the Bill to the President within seven days for assent. But if the mediation committee fails to agree on a version of the Bill within thirty days, or if a version proposed by the committee is rejected by either House, the Bill is defeated, meaning its procession comes to an end.
Money Bills
A “money Bill” means a Bill, other than a Bill specified in Article 218, that contains provisions dealing with— taxes; the imposition of charges on a public fund or the variation or repeal of any of those charges; the appropriation, receipt, custody, investment or issue of public money; the raising or guaranteeing of any loan or its repayment; Or matters incidental to any of those matters. “Tax”, “public money”, and “loan” do not include any tax, public money or loan raised by a county which they fall out of the jurisdiction of the National parliament.
A money Bill may not deal with any matter other than those listed in the definition of “a money Bill” above. If, in the opinion of the Speaker of the National Assembly, a motion makes provision for a matter listed in the definition of “a money Bill”, the Assembly may proceed only in accordance with the recommendation of the relevant Committee of the Assembly after taking into account the views of the Cabinet Secretary responsible for finance. Presidential assent and referral
Within fourteen days after receipt of a Bill, the President shall— assent to the Bill; or refer the Bill back to Parliament for reconsideration by Parliament, noting any reservations that the President has concerning the Bill. If the President refers a Bill back for reconsideration,
Parliament may, following the appropriate procedures under this Part - amend the Bill in light of the President’s reservations; or pass the Bill a second time without amendment. If Parliament amends the Bill fully accommodating the President’s reservations, the appropriate Speaker shall resubmit it to the President for assent.
The Parliament, after considering the President’s reservations, may pass the Bill a second time, without amendment, or with amendments that do not fully accommodate the President’s reservations, by a vote supported— by two-thirds of members of the National Assembly; and two-thirds of the delegations in the Senate, if it is a Bill that requires the approval of the Senate. When the Parliament has passed a Bill in the manner above, the appropriate Speaker shall within seven days resubmit it to the President; and the President shall within seven days assent to the Bill. If the President does not assent to a Bill or refer it back within the period afore-prescribed, the Bill shall be taken to have been assented to on the expiry of that period. Coming into force of laws
A Bill passed by Parliament and assented to by the President is published in the Gazette as an Act of Parliament within seven days after assent. An Act of Parliament, other than the Act that confers a direct pecuniary interest on the Members of Parliament, comes into force on the fourteenth day after its publication in the Gazette, unless the Act stipulates a different date on or time at which it will come into force.
An Act of Parliament that confers a direct pecuniary interest on members of Parliament does not come into force until after the next general election of members of Parliament. However, this pecuniary interest does not apply to an interest that the Members of Parliament have as members of the public. After publication in a Gazette, the enacted law effects its force of law which binds everyone within the Kenyan Territory. 2.5 Parliament’s general procedures and rules
2.5.1 Powers, privileges and immunities
The Parliamentarians enjoy an inalienable, but subject to good sense of decorum, freedom of speech and debate in Parliament as enshrined in the constitution. Consequently, for the purpose of the orderly and effective discharge of the business of Parliament, the parliament may provide for the powers, privileges and immunities of Parliament, its committees, the leader of the majority party, the leader of the minority party, the chairpersons of committees and members. The Most important is privilege is the freedom of expression, which is essential for the proper functioning of parliament; the general rule that curbs any liability to any Member of the parliament for comment he or she made while in the line of his or her parliamentary duties ensure that members cannot be visited with adverse consequences, such as judicial proceedings, for exercising their privileges. 2.5.2 Public access and participation
Parliament is mandated to conduct its business in an open manner, and its sittings and those of its committees ought to be in public. It also has to facilitate public participation and involvement in the legislative and other business of Parliament and its committees. Parliament may not exclude the public, or any media, from any sitting unless in exceptional circumstances the relevant Speaker has determined that there are justifiable reasons for the exclusion. The Kenyan parliament sessions are nowadays broadcasted live by the media, an ingredient that was absent in the former constitutional recipe.
Right to petition Parliament
As articulated in article 119 of the constitution, every person has a right to petition Parliament to consider any matter within its authority, including enacting, amending or repealing any legislation.
The Parliament shall make provision for the procedure for the exercise of this right, otherwise left wide open in such a way, it would make it would, arguably, compromise the fundamental functions of the parliament and paralyze its supremacy.
Official languages of Parliament
The official languages of the Kenyan Parliament are Kiswahili, English and Kenyan Sign language, and the business of Parliament may be conducted in English, Kiswahili and Kenyan Sign language, (with sign language usually effected through an interpreter, who plays the role of conveying the session to a needy members of the public, specially, the blind). Nevertheless, in case of a conflict between different language versions of an Act of Parliament, the version signed by the President shall prevail. Voting and Quorum in Parliament
The parliament is said to be in quorum if the number of the Members in the National Assembly and Senate reach a minimum of fifty and fifteen members respectively. In some jurisdiction, like South Africa, the simple majority rule takes precedent before a vote may be taken on a Bill or an amendment to a Bill. Except as otherwise provided in the Constitution, any question proposed for decision in either House of Parliament shall be determined by a majority of the members in that House, present and voting. When a question is proposed for decision in either House, the Speaker has no vote; and in the case of a tie, the question is lost, and no further decision shall be pursued on it, unless reintroduced if a need arise.
A member cannot vote on any question in which the member has a pecuniary interest. In reckoning the number of members of a House of Parliament for any purpose of voting in that House, the Speaker of that House shall not be counted as a member. The rationale of the majority requirement is that the decisions are considered valid if the majority of the members are present.
Decisions of Senate
On election, all the members of the Senate who were registered as voters in a particular county shall collectively constitute a single delegation for purposes of being allocated one vote to be cast on behalf of the county by the head of the county delegation or, in the absence of the head of the delegation, by another member of the delegation designated by the head of the delegation. The head of the delegation is a member elected by the all the registered voters of the county to represent the entire county in accordance with article 98(1) (a).
When the Senate is to vote on any matter other than a Bill, the Speaker shall rule on whether the matter affects or does not affect counties, if the matter does not affect counties, each senator has one vote. But if the Matter does affect the counties, each county delegation shall have one vote to be cast on behalf of the county by the head of the county delegation or, in the absence of the head of the delegation, by another member of the delegation designated by the head of the delegation; the person who votes on behalf of a delegation shall determine whether or not to vote in support of, or against, the matter, after consulting the other members of the delegation. The matter is carried only if it is supported by a majority of all the delegations.
Committees and Standing Orders
Each House of Parliament may establish committees, and shall make Standing Orders for the orderly conduct of its proceedings, including the proceedings of its committees.
Parliament may also establish joint committees consisting of members of both Houses and may jointly regulate the procedure of those committees. The proceedings of either House are not invalid just because of; a vacancy in its membership, or the presence or participation of any person not entitled to be present at, or to participate in, the proceedings of the House.
When a House of Parliament considers any appointment for which its approval is required under the Constitution or an Act of Parliament–– the appointment shall be considered by a committee of the relevant House, and before the finality of the appointment, the committee’s recommendation shall be tabled in the House for approval. To allow transparency, and taking into account the public interest, the proceedings of the committee and the House shall be in public.
Power to call for evidence
Either House of Parliament, or any of its committees, has power to summon any person to appear before it for the purpose of giving evidence or providing information.
For the this reason, a House of Parliament and any of its committees has the same powers as the High Court - to enforce the attendance of witnesses and examine them on oath, affirmation or otherwise to compel the production of documents and issue a commission or request to examine witnesses abroad.
Parliamentary Service Commission
There is established the Parliamentary Service Commission, which consists of the Speaker of the National Assembly, as chairperson, a vice-chairperson elected by the Commission from the seven members appointed to the commission by Parliament. Four of these seven members are nominated equally from both Houses by the party or coalition of parties forming the national government, of whom two must be women. The other remaining three are nominated by parties not forming the national government, at least one of whom shall be nominated from each House and at least one of shall be a woman. Then there is another one man and one woman appointed by the parliament from among persons who are experience in public affairs, but are not members of Parliament. The Clerk of the Senate becomes the Secretary to the Commission.
The constitution is so categorical in providing the grounds a member of the Commission can vacate office, which are; if the person is a Member of Parliament— at the end of the term of the House of which the person is a member; or if the person ceases to be a member of
Parliament, if the person is an appointed member, on revocation of the person’s appointment by Parliament.
The Commission is responsible for providing services and facilities to ensure the efficient and effective functioning of Parliament. It is also involved in constituting offices in the parliamentary service, and appointing and supervising office holders, preparing annual estimates of expenditure of the parliamentary service and submitting them to the National Assembly for approval, and exercising budgetary control over the service. Furthermore, it undertakes, singly or jointly with other relevant organizations, programmes to promote the ideals of parliamentary democracy. The national legislation can confer onto the commission other functions necessary for the well-being of the members and staff of Parliament.
Clerks and staff of Parliament
The constitution, in article 128, establishes a office of the Clerk for each House of Parliament, appointed by the Parliamentary Service Commission with the approval of the relevant House. The offices of the Clerks and offices of members of the staff of the Clerks shall be offices in the Parliamentary Service. The clerk plays fundamental roles in the parliament, which includes; Management of the Legislative Assembly, providing policy, procedural and corporate management advice to the speaker, advising ministers and members on matters relating to operation of the Legislative Assembly and its committee. He also plays a secretarial role of recording decisions and proceedings of the Legislative Assembly, and ensures legislation is passed in accordance with legislative and procedural requirement. He is a member of the parliamentary Executive group. In Australia, the clerk acts as an honorary secretary of the Commonwealth Parliamentary Association.
3. County Legislatures
The legislative authority of a county is vested in, and exercised by, its county assembly. A county assembly may make any laws that are necessary for or incidental to, the effective performance of the functions and exercise of the powers of the county government under the Fourth Schedule. While respecting the principle of separation of powers, a county assembly may exercise oversight over the county executive committee and any other county executive organs. A county assembly may receive and approve plans and policies for the management and exploitation of the county’s resources; and the development and management of its infrastructure and institutions
3.1 Structure and composition of the County Assemblies
A county assembly consists of the members elected by the registered voters of the wards, each ward constituting a single member constituency. In addition, it has the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly is of the same gender. For the purpose of equitable representation, the number of members of marginalised groups, including persons with disabilities and the youth, prescribed by an Act of Parliament are considered and allotted seats. Just like the national legislature, the county assembly has a Speaker, who is an ex officio member, and who chairs the proceedings of the assembly. Each county assembly has a speaker elected by the county assembly from among persons who are not members of the assembly.
A sitting of the county assembly is presided over by the speaker of the assembly; or in the absence of the speaker, another member of the assembly elected by the assembly.
3.2 Qualifications for election as member of county assembly
A person is eligible for election as a member of a county assembly if the person:
(a) is a registered voter;
(b) satisfies any educational, moral and ethical requirements prescribed by the Constitution or an Act of Parliament; and
(c) is either—
(i) nominated by a political party; or
(ii) an independent candidate supported by at least five hundred registered voters in the ward concerned.
A person is disqualified from being elected a member of a county assembly if the person:
(a) is a State officer or other public officer, other than a member of the county assembly;
(b) has, at any time within the five years immediately before the date of election, held office as a member of the Independent Electoral and Boundaries Commission;
(c) has not been a citizen of Kenya for at least the ten years immediately preceding the date of election;
(d) is of unsound mind;
(e) is an undischarged bankrupt;
(f) is serving a sentence of imprisonment of at least six months; or
(g) has been found, in accordance with any law, to have misused or abused a State office or public office or to have contravened Chapter Six of the Constitution.
3.3 Vacation of office of member of county assembly
The office of a member of a county assembly becomes vacant— when the member dies, or if the member is absent from eight sittings of the assembly without permission, in writing, of the speaker of the assembly, and is unable to offer satisfactory explanation for the absence; if the member is removed from office under Constitution or legislation on leadership authorized by the constitution. Furthermore, the seat becomes vacant if the member resigns in writing addressed to the speaker of the assembly, or if, having been elected to the assembly–– as a member of a political party, the member resigns from the party, or is deemed to have resigned from the party as determined in accordance with the legislation contemplated in a legislation concerning leadership stated above.
If a member was an independent candidate, but subsequently joins a political party before the terms of the assembly reaches a terminal, he loses his seat as a member of the county assembly; this rule serves to sever political fairness and act as a road block to selfish manipulation of a citizenry rights to political representation, since a member would shift his stance to that of a party that suits his political ambitions rather than his constituents’ interests. More so, natural lifespan of a member’s term is directly proportional to that the county assembly; devoid of the above grounds on the vacation of a seat, a member seat becomes vacant by default when the term of the assembly ends. The constitution gives the parliament discretion to enact a legislation providing for circumstance, for purpose of determining when a member of a political party shall be deemed to have resigned from the party before his seat is pronounce vacant.
3.4 Legislative authority of county assemblies
The legislative authority of a county is vested in, and exercised by, its county assembly.
A county assembly may make any laws that are necessary for, or incidental to, the effective performance of the functions and exercise of the powers of the county government under the conferred to it by the constitution. A county assembly, while respecting the principle of the separation of powers, may exercise oversight over the county executive committee and any other county executive organs.
A county assembly may receive and approve plans and policies for the management and exploitation of the county’s resources; and the development and management of its infrastructure and institutions.
3.5 County assemblies’ general procedures, powers, privileges and immunities
County assembly power to summon witnesses
A county assembly or any of its committees has power to summon any person to appear before it for the purpose of giving evidence or providing information. The county assemblies has the same powers as the High Court to— enforce the attendance of witnesses and examining them on oath, affirmation or otherwise compel the production of documents; and issue a commission or request to examine witnesses abroad.
Public participation and county assembly powers, privileges and immunities
A county assembly conducts its business in an open manner, and holds its sittings and those of its committees, in public and facilitates public participation and involvement in the legislative and other business of the assembly and its committees. It may not exclude the public, or any media, from any sitting unless in exceptional circumstances the speaker has determined that there are justifiable reasons for doing so. The rationale here is to ensure fair and transparent running and management of the county by the elites elected to the county government and its assembly.
The national Parliament shall enact legislation providing for the powers, privileges and immunities of county assemblies, their committees and members. County assembly gender balance and diversity
The constitution is so articulate in its intent to shun gender imbalance in the county assembly, for this purpose, not more than two-thirds of the members of any county assembly or county executive committee shall be of the same gender. It gives the national Parliament an authority to enact legislation to ensure that the community and cultural diversity of a county is reflected in its county assembly and county executive committee; and prescribes mechanisms to protect minorities within counties.
County government during transition
During an election to constitute a county assembly, administrative vacuum is mitigated by letting the executive committee of the county, as last constituted remains competent to perform administrative functions until a new executive committee is constituted after the election. This committee consists of the county governor, deputy governor and the county council of ministers.
Publication of county legislation
County legislation does not take effect unless published in the Gazette. National and county legislation may prescribe additional requirements in respect of the publication of county legislation.
4. Conflict of laws
The constitution provides that, in case of a legal conflict of laws between national and county legislation in respect of matters falling within the concurrent jurisdiction of both levels of government, the National legislation prevails over county legislation if—
· the national legislation applies uniformly throughout Kenya. · the national legislation is aimed at preventing unreasonable action by a county that— is prejudicial to the economic, health or security interests of Kenya or another county; or impedes the implementation of national economic policy.
· County legislation prevails over national legislation if neither of the circumstances contemplated in the second bullet-number above apply.
· In considering an apparent conflict between legislation of different levels of government, a court shall prefer a reasonable interpretation of the legislation that avoids a conflict to an alternative interpretation that results in conflict.
· A decision by a court that a provision of legislation of one level of government prevails over a provision of legislation of another level of government does not invalidate the other provision, but the other provision is inoperative to the extent of the inconsistency.
“a money Bill” means a Bill, other than a Bill specified in Article 218 concerning Division of Revenue or County Allocation of Revenue, that contains provisions dealing with—) taxes; the imposition of charges on a public fund or the variation or repeal of any of those charges; the appropriation, receipt, custody, investment or issue of public money; the raising or guaranteeing of any loan or its repayment; or matters incidental to any of those matters. If one House passes an ordinary Bill concerning counties, and the second House–– rejects the Bill, it shall be referred to a mediation committee appointed under Article 113; or passes the Bill in an amended form, it shall be referred back to the originating House for reconsideration. If, after the originating House has reconsidered a Bill referred back to it under clause (1) (b), that House–– passes the Bill as amended, the Speaker of that House shall refer the Bill to the President within seven days for assent; or rejects the Bill as amended, the Bill shall be referred to a mediation committee under Article 113.
