UNIT: CONSTITUTIONAL LAW (II)

UNIT CODE: LAW 105

LECTURER: PROF. MORRIS K. MBONDENYI

DUE DATE: 08/03/2019

MEMBERS.

1. Lemayian David Salaton 18S01ALLB002

2. Kiprop Tracy Jebet 18S01ALLB006
3. Orwaru Faith Kerubo 18S01ALLB008
4. Mathu Regina Wanjiku 18S01ALLB009
5. Rachier Alpha 18S01ALLB033

ASSIGNMENT.

“An adherence to the doctrine of trias polita endorsed by both John Locke and French constitutionalist Baron de
Montesquieu necessitates that there be a clear demarcation in the functions and powers of the organs of government
so that no organ has excessive powers and that there are checks and balances. In many cases the demarcation goes
beyond just separation of functions and powers and calls for separation of personnel as well. The Kenyan legislature in
the repealed Constitution did not fully incorporate the separation of personnel as members of the Executive were also
members of the Legislature. Significantly, therefore, the 2010 Constitution establishes a Legislature distinct from the
other arms of government both in structure, functions and membership.” (Morris Kiwinda Mbondenyi & Osogo Ambani
The New Constitutional Law of Kenya: Principles, government and human rights (LawAfrica, 2012).

In light of the foregoing statement, compare and contrast the STRUCTURES, FUNCTIONS and MEMBERSHIP of the
National and Devolved (county) legislatures.
Contents
INTRODUCTION.................................................................................................................................................................... 3
STRUCTURE AND MEMBERSHIP OF THE KENYAN LEGISLATURE.........................................................................................4
THE NATIONAL ASSEMBLY................................................................................................................................................4
OFFICES OF THE NATIONAL ASSEMBLY............................................................................................................................4
The Speaker.................................................................................................................................................................. 4
The Deputy Speaker.....................................................................................................................................................4
The Majority Leader.....................................................................................................................................................5
The Minority Leader.....................................................................................................................................................5
The Majority Whip and the Minority Whip..................................................................................................................5
The Clerk.......................................................................................................................................................................5
The Senior Deputy Clerk...............................................................................................................................................5
THE SENATE......................................................................................................................................................................5
MEMBERSHIP OF NATIONAL ASSEMBLY..........................................................................................................................6
MEMBERSHIP OF THE SENATE..........................................................................................................................................6
THE COUNTY ASSEMBLY.......................................................................................................................................................6
THE DEVOLVED/COUNTY LEGISLATURE MEMBERSHIP....................................................................................................6
FUNCTIONS OF THE NATIONAL ASSEMBLY..........................................................................................................................7
FUNCTIONS OF THE COUNTY ASSEMBLY.............................................................................................................................8
CONCLUSION........................................................................................................................................................................ 9
REFERENCES........................................................................................................................................................................ 10
 INTRODUCTION.
According to the Black’s Law Dictionary, government is the regulation, restraint, supervision or control which
is exercised upon the individuals of an organized jural society by those invested with supreme political authority
for the good and welfare of the above mentioned jural society. Examples of governments are, but not limited to,
monarchial governments and federal governments. The Kenyan government has three arms of government
which are, the legislature the executive and the judiciary.

Constitutionalism has been greatly advocated for in the Kenyan government. One of the factors that promote
constitutionalism is the doctrine of separation of powers. This doctrine is drawn from works of scholars like
John Locke1 who said that legitimate government is based on separation of powers. The 2010 constitution in
many ways provides for the doctrine of separation of powers and one of these ways includes the introduction of
a devolved system of government. There are three ways to do this. They include: De-concentration2,
Delegation3 and Devolution4 (Lumumba, Mbondenyi, & Odero, The constitition of Kenya: Contemporary
Readings, 2011). Devolved government is in its purest form the delegation or transfer of powers from a central
government to a lower level such as regions in a sovereign state. This means that the lower level of government
does not need to answer to the national government when making decisions that fall within its jurisdiction
(Lumumba, Mbondenyi, & Odero, The constitition of Kenya: Contemporary Readings, 2011). In Kenya, this
form of decentralization was a “dream” that was realized after the promulgation of the 2010 constitution. The
2010 Kenyan Constitution under article 6 provides for the transfer of legislative and executive powers to 47
counties. The main aim of this devolution was to transfer powers, representation and resources down to the
local levels. The two levels of government have been given distinct function, structures and memberships.
However, article 189 of the constitution elaborated the relationship between the two levels and provides foe
cooperation on certain levels between the two. Under the legislature, Kenya has a bicameral structure with two
houses including the National Assembly and the Senate.

In this paper, we are going to focus on comparing and contrasting with deep scrutiny the distinct functions,
memberships and structures of the two levels of the legislative arm of government.

This paper has been written in partial fulfillment of this unit ‘CONSTITUTIONAL LAW II’ as a prerequisite
for the completion of the course we are undertaking, BACHELOR OF LAWS.

1
the TWO Treatises of Government
2
This is the delegation of certain decision-making powers to lower levels of the central government.
3
The responsibility for decision making with respect to public functions administration is transferred to the semi-autonomous
organizations not wholly under the control of government.
4
The authority of decision making with respect to finance and management id transferred to quasi-autonomous units of local
government.
STRUCTURE AND MEMBERSHIP OF THE KENYAN LEGISLATURE
According to the 2010 Kenyan constitution, Article 94(1) states that: The legislative authority of the Republic is
derived from the people and, at the national level, is vested in and exercised by Parliament. Based on the
doctrine of separation of powers, the Kenyan government adopted a devolved system of government for both
the executive and the legislature. This means that the legislature is divided into both the national and county
levels.

The legislature is the supreme law-making body of Kenya. Following the promulgation of the 2010
Constitution, the legislature of the Republic of Kenya became a bicameral parliament. This saw the legislature
compose two houses: The National Assembly and the Senate.

THE NATIONAL ASSEMBLY

This is also known as the Lower House. Article 95 of the 2010 Constitution establishes that the National
Assembly consists of two hundred and ninety members, each elected by the registered voters of single member
constituencies. In addition, forty-seven women, often referred to as ‘women representatives’ or ‘women reps’,
each elected by the registered voters of the counties, each county constituting a single member constituency and
twelve members nominated by parliamentary political parties according to their strength in the National
Assembly, in accordance to Article 90 of the Constitution 2010, to represent special interests: the youth, people
with disabilities and workers (Representing each gender). Further, the Speaker is a member of the national
assembly as an ex official.

OFFICES OF THE NATIONAL ASSEMBLY

The Speaker 
The Speaker is an ex-officio Member of Parliament elected by other Members of Parliament pursuant to Article
106 of the 2010 Constitution, which provides that there shall be a Speaker for each House of Parliament, who
shall be elected by that House in accordance with the Standing Orders, from among persons who are qualified
to be elected as members of Parliament but are not such members.

The Deputy Speaker

The office of the Deputy Speaker is established in Article 106 of the 2010 Constitution and provided for in the
Standing Orders. The Deputy Speaker is elected by Members from amongst themselves and performs the duties
of the Deputy Speaker.
The Majority Leader 
Article 108 of the 2010 Constitution provides that there shall be a leader of the majority party and a leader of
the minority party. The leader of the majority party shall be the person who is the leader in the National
Assembly of the largest party or coalition of parties.

The Minority Leader

The leader of the minority party shall be the person who is the leader in the National Assembly of the second
largest party or coalition of parties.

The Majority Whip and the Minority Whip

Standing Order No. 2 provide for a Member designated by a parliamentary party as its party whip for the
purposes of the transaction of business in the National Assembly.

The Clerk
The Clerk of the National Assembly is the administrative and procedural head of the National Assembly and
oversees the day-to-day operations and affairs of the National Assembly.

The Senior Deputy Clerk

The Senior Deputy Clerk is the second senior-most officer in the National Assembly and the immediate deputy
to the Clerk of the National Assembly. The Senior Deputy Clerk deputizes the Clerk in the management of the
affairs of the National Assembly.

Other notable offices in the National Assembly include the Budget office, the Hansard department and the
Sargent at Arms department.

THE SENATE
This is also referred to as the Upper House.  The Senate was first established as part of Kenya's 1963
Constitution. After being abolished in 1966, the Senate was re-established by the 2010 Constitution. The 2013
general election was the first to include the election of Senators representing the 47 newly created counties. The
Senate is considered the backbone of the counties, and its actions determine the effectiveness of the devolved
units in delivering services to Kenyans.

The Senate consists of forty-seven members each elected from a county, sixteen women members nominated by
political parties according to their strength in the senate in accordance with Article 90 of the Constitution, two
members from each gender representing the youth, two members from each gender representing people with
disabilities, and the Speaker who will be an ex officio member.

MEMBERSHIP OF NATIONAL ASSEMBLY

According to chapter 8, Article 97 of the 2010 Kenyan constitution, the National Assembly consists of--
 (a) two hundred and ninety members, each elected by the registered voters of single member
constituencies;
(b) forty-seven women, each elected by the registered voters of the counties, each county constituting a
single member constituency; 
(c) 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

(d) the Speaker, who is an ex officio member.

MEMBERSHIP OF THE SENATE

According to chapter 8, Article 98 of the 2010 Kenyan constitution, the Senate consists of:

a) forty-seven members each elected by the registered voters of the counties, each county constituting a
single member constituency;
b) sixteen women members who shall be nominated by political parties according to their proportion of
members of the Senate;
c) two members, being one man and one woman, representing the youth;
d) two members, being one man and one woman, representing persons with disabilities; and
e) the Speaker, who shall be an ex officio member.

THE COUNTY ASSEMBLY

The role of the County Assembly in Kenya is largely concerned with legislation. The county assembly in Kenya
is the law-making organ of the county government. It is one of the state organs that the Constitution delegates
power. 47 county assemblies in Kenya are unique to each of the 47 counties.

The County Assembly is comprised of elected members representing the various wards within the county and
has legislative authority conferred upon it.

THE DEVOLVED/COUNTY LEGISLATURE MEMBERSHIP

According to chapter 11, Article 177 of the 2010 Kenyan Constitution, the county assembly consists of:

(a) members elected by the registered voters of the wards, each ward constituting a single member constituency;

(b) the number of special seat members necessary to ensure that no more than two-thirds of the membership of
the assembly are of the same gender;
(c) the number of members of marginalised groups, including persons with disabilities and the youth, prescribed
by an Act of Parliament; and

(d) the Speaker, who is an ex officio member.

FUNCTIONS OF THE NATIONAL ASSEMBLY

According to Article 95 (4) of the 2010 Kenyan Constitution; the role of the National Assembly will be to enact
legislation, determine the allocation of revenue between the levels of Government, oversee national revenue,
expenditure and State organs and approve declaration of war and extensions of states of emergency.

The specific roles of the national assembly are:

a) Members of the national assembly are obligated to represent their constituents and all the special
interests within their respective constituencies.
b) Enactment of legislation for both county and national government
c) Approval or disapproval of revenue allocation presented by the senate, determining the national
distribution across the counties.
d) Check the conduct of the executive and other state officers and if necessary initiate the process of
removal of president, deputy president and other state officers.
e) Exercise oversight over state organs and approve the state of emergency and declaration of war.

The Senate shall be the backbone of the counties, and its actions will determine the effectiveness of the
devolved units in delivering services to Kenyans.

The Senate represents the counties and protects their interests. It participates in lawmaking, debates and
approves Bills concerning counties (Articles 109-113 of the 2010 Kenyan Constitution). It determines the
allocation of national revenue among counties (Article 217), and exercises oversight over national revenue
allocated to the county governments. The Senate participates in the oversight of State officers by determining
resolutions to remove the President or Deputy President from office (Articlel45).

The roles of the Kenyan Senate under article 96 of the 2010 constitution are:

(a) Debate and approve county bills

(b) Determine the allocation of national revenue to be distributed according to the counties

(c) Represent the interests of the counties at the national level

(d) Consider and determine the resolution of impeachment of the president or his/her deputy

Other functions of the bicameral parliament will be to create an appellate hierarchy in the enactment of laws,
i.e. giving an opportunity to one chamber to review laws and decisions of the other chamber.

The Senate is supposed to be both reactive and proactive. Article 109 allows a Bill concerning a county to
originate from the Senate (but it must be considered by the National Assembly from which it did not originate
(Articles 111 and 112). If a Bill relates to election of members of county assemblies or a county executive (also
called a ‘Special Bill’ under Article 111), it may be vetoed by the National Assembly through a resolution
supported by two-thirds of its members.

FUNCTIONS OF THE COUNTY ASSEMBLY

The principle of devolution or devolved government involves shared governance at the national level and self-
governance at the devolved level (Kangu, 2008). There were two main objectives as the devolved government
was being brought to life and they are: Involve the people in governance and allow better supervision and
implementation of policies at the grass root level (Commission on Revenue Allocation, 2019).Devolution of
power is also one of the national values and principles of governance under Article 10. The county governments
share Executive and legislative functions with the national government (the exact degree of these functions is to
be determined by implementing legislation under the fifth schedule of the 2010 Kenyan Constitution) in areas
like agriculture just to mention a few (Lumumba, Mbondenyi, & Odero, The constitution of Kenya:
Contemporary Readings, 2011). According to Article 185 of the 2010 Kenyan constitution:

(1) The legislative authority of a county is vested in, and exercised by, its county assembly.
(2) 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.
(3) 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.
(4) A county assembly may receive and approve plans and policies for--

(a) the management and exploitation of the county’s resources; and

(b) the development and management of its infrastructure and institutions.

CONCLUSION
In conclusion, we are going to identify the distinct similarities and differences between the national and county
legislatures in terms of structure, membership and functions.
The similarities in both legislatures include:

 Both levels of the legislature have the offices of the speakers and the deputy speakers, who are the ex
officio members of the legislature.
 Both representatives in the houses are elected by their respective registered voters.
 Both perform the function of the law making organs in their respective capacities. This power has been
conferred to them by the Kenyan constitution.
 Both perform the role of oversight; the national legislatures oversee the functions of all other state
organs, and the county assemblies oversee the functions of the county executive committees and other
county executive organs that have been put in place.
 Both legislatures have been put in place to represent the interests of the electing members through the
MPs and MCAs.

The differences between the national and county legislatures include:

 There only exists one national assembly and senate (under the national legislature) in Kenya, while
county assemblies are 47, each situated in their respective counties.
 The national legislature has a bicameral structure; with the parliament as the lower house and the senate
as the upper house. However, the County assembly is unicameral in structure.
 The number of elected members present in the national and county legislatures.
 The national assembly makes national laws concerning the nation in general, which apply across all
counties, while the county assemblies only make decisions that affect their respective counties of
jurisdiction.

REFERENCES
Commission on Revenue Allocation. (2019). Retrieved from https://www.crakenya.org/functions-of-county-
government/

County Assembly Services Act.

Kangu, J. M. (2008). Constitutionalism: A comperative analysis of Kenya and South Africa. Moi university law
journal.

Lumumba, P., Mbondenyi, M. K., & Odero, S. O. (2011). The constitition of Kenya: Contemporary Readings.
Nairobi: Law Africa Publishing.

The Constitution of Kenya 2010.