CHAPTER 7

LEGISLATIVE POWER, STRUCTURE AND PROCESS IN KENYA AND AFRICA1

This Chapter may be cited as Ben Sihanya (forthcoming 2023) “Legislative Power, Structure and
Process in Kenya and Africa,” in Ben Sihanya (due 2023) Constitutional Democracy, Regulatory
and Administrative Law in Kenya and Africa Vol. 1: Theory, Structure, Method and Systems,
Sihanya Mentoring & Sihanya Advocates, Nairobi & Siaya.

7.1 Conceptual and Theoretical Framework on Afro-Kenyan Legislative Power, Structure

and Process
This Chapter adopts a three-pronged methodology on legislative power, structure and process in
Kenya and Africa. First, what is the legislative and the core powers and functions of the Legislature
in Kenya and Africa? Second, what is the composition and the core organs or structures of the
Legislature in Kenya and Africa? Third, what are the legislative processes, especially regarding
law making, representation, and oversight including budgetary processes…. See Chapter 5,
“Methodology of Constitutional, Administrative and Regulatory Law in Kenya and Africa: The
Constitutional Sociology, Political Economy and Cultural Politics of Sustainable Development”
CODRALKA 1.

The three-pronged methodology addresses at least twelve (12) key question on legislative power
in Afro-Kenyan constitutional democracy. First, what is law? Second, what is law making? Third,
what is legislation? Fourth, what is regulation? Fifth, what is a rule? Sixth, what is rule making?
How have these been influenced by the five presidential administrations in Kenya, namely: Jomo
Kenyatta I, Daniel Arap Moi, Mwai Kibaki, Uhuru Kenyatta I, and William Ruto? Seventh, what
agencies have the power on law or rule making or regulation in Kenya and Africa?...What is the
legislative…interface in Kenya and Africa?

Eight, what is legislative power and process in primary and secondary, delegated or subsidiary law
and rule making? Ninth, what are the law making, rule making and regulatory processes? What of
regulatory impact assessment? Tenth, how can Afro Kenyanist theory help analyze, appreciate and
reform the legislative power and process?

1
See discussions on conceptualizing constitutional democracy in Chapter 1 of CODRALKA 1 on Conceptualizing
People, Sovereignty, Constitution, State, Government, Society and Market in Afro-Kenyan Constitutional Democracy;
& Chapter 1 of CODRALKA 2 on Key Themes in Kenya’s Constitutional Democracy since 1963); See also Chapter
1 of CODRALKA 3 (Administrative Bureaucracy and Regulatory Process and Justice in Afro-Kenyan Constitutional
Democracy)… on sources of law…..and materials on executive, judicial, legislative (parliamentary) administrative
bureaucracy.
Page 1 of 35
Eleventh, how are these conceptualized, problematized and contextualized in Kenya and Africa?
Twelfth, awhat is the rationale, justification, raison d’etre or theoretical foundation of legislation,
and what is the theoretical foundation of the legislative framework?

Some of the main justifications for legislation are related to at least three (3) factors. First, the need
to define rights and liberties of the individual and groups. Second, the need to define the power of
public, private and civil society organisations or agencies. Third, the need to balance liberties and
powers, hence facilitate good governance and public administration. Good governance and
administration can be facilitated through an expansion of liberties and by limiting coercive
powers. Legislation is also about upholding the rule of law….

Related rationale for legislation includes the following three-pronged (3) typologies. First, that
there should be no taxation without representation and participation. Second, there ought not to be
taxation without legislation. Third, benefit and burden of taxation must be equitable.

There is a four-pronged methodology on legislative power and process. First, Government is based
on sovereignty and law, Government by and under law. Second, there are three (3) arms of
Government including the Legislature, Executive and Judiciary. They have the powers to make,
execute and to interpret law, respectively.

Third, there are two (2) levels of Government in Kenya, including the National Government (NG)
and the 47 County Governments (CGs). Fourth, the Legislative powers of the National
Government and 47 County Governments are provided for in the Constitution 2010 and elaborated
in the Fourth Schedule. How have intergovernmental relations been affected by the establishment
of the Devolution Ministry under Uhuru Kenyatta II (2013-2022) and its non establishment under
Ruto (2022-)?

Legislative proposals go through various stages to become law. These stages are what is referred
to as the legislative process. In Kenya, traditionally, a Bill is supposed to originally be prepared
by the Attorney General’s Chamber. Section 5(e) of the Office of the Attorney-General Act, 2012
states that:

“the Attorney General (A-G) is in charge of drafting legislative proposals for the Government and
advising the Government and its agencies on legislative and other legal matters.”

The A-G of Kenya is also the head of the State Law Office and the principal legal adviser to the
Government. Therefore, the A-G should draft Bills that promote and support the Government’s
administrative policies and development agenda. 2 What of the role of Parliamentary Service
Commission (PSC)?

2
Cases that the Attorney-General cannot perform the functions of a Cabinet Secretary, and the Building Bridges
Initiative (BBI) proposed resolutions…
Page 2 of 35
In the Devolved Governments, various County Governments have come up with the Office of the
County Attorney Acts (Bills).3 This was as a result of the numerous requests for the establishment
of the Office of the County Attorney which resulted into the introduction of the Office of the
County Attorney Bill, 2018. The intention of this bill was to ensure competency of the people
appointed to these posts. It was enacted as the Office of the County Attorney Act, 2020. 4 [Name
all the counties with County AG laws or Bills]. What are the trends in legislative and policy
framework under the Ruto administration, with Attorney General, Justin Muturi, who is the former
speaker of the National Assembly (2013-2022)?

There are at least five (5) roles of the County Attorney provided for under section 7 of the Office
of the County Attorney Act, 2020. First, the County Attorney is the principal legal adviser to the
County Government. Second, is and ex officio member of the County Executive Committee
(CEC). Third, can act when instructed, for the County Government in any legal matters. Fourth,
the County Attorney is in charge of the revision of county legislation. Fifth, he or she has an
advisory role to the County Executive and officers on legal matters.

The majority of the Bills in Parliament are frequently sponsored and initiated by private Members
of Parliament (MPs). A private member’s Bill is one that is not part of a Government’s planned
legislation.5 It is a legislative bill that is introduced by a private Member of Parliament (MP). Such
bills rarely become law in Kenya and the same happens in the UK, Canada, Australia, and New
Zealand.6 The late JM Kariuki was one of the first Members of Parliament to sponsor a private
Bill in Kenya in 1968.7 JM’s Bill created the Hire Purchase Act that was enforced in 1970.8

The legislative arm of Government in Kenya as established under Article 93 of the Constitution of
Kenya 2010 consists of the National Assembly (NA) and the Senate. Legislative authority is

3
The Nairobi City County Office of the County Attorney Act, 2016 No.5 of 2016; Nakuru County Office of the County
Attorney Act, 2017; Garissa County Office of the County Attorney Act, 2018.
4
See the Kenya Law Reports (KLR) (2021) “Office of the County Attorney Acts, 2020,” at
http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/2020/TheOfficeoftheCountyAttorneyAct_No.14of2020.pdf
(accessed August 4, 2021).
5
See Cambridge Dictionary(accessed 4/11/2019).
6
See UK Parliament (2010) “Private Members’ bills,” at
https://www.parliament.uk/about/how/laws/bills/privatemembers/ (accessed 4/11/2019).
7
To draft a table on private member’s bills in Kenya and Africa after independence and discuss later in this Chapter.
Cf. Public Bills, Private Bills, Government Bills, Opposition Bills, Private Members Bills……
8
See below on the political economy of the Hire Purchase Bill, 1968….. How it was taken over by the then A-G
Charles Njonjo and made less protective of the hirers or hire purchasers…cf. Mutunga (1975) “The Demystification
of the Kenya law of Hire Purchase,” Vol. 8, Eastern Africa
Law Review, at
https://heinonline.org/HOL/LandingPage?handle=hein.journals/easfrilaj11&div=15&id=&page= (accessed
9/3/2020).. To relocate parts of the foregoing paras……
Page 3 of 35
derived from the people and is vested in and exercised by Parliament at the national level and
County Assemblies at the county level.

In South Africa, Parliament consists of the National Assembly (NA) and National Council of
Provinces (NCOP) established under section 42(1) with legislative e authority laid out under sec.
44 and 104(1) for the two (2) Houses, respectively. 9 In Nigeria, Parliament consists of the House
of Representatives and the Senate under section 47, Chapter 5 of the Nigerian Constitution, 1999.

Article 94(5) Constitution of Kenya 2010 states that “no person or body has the power to make
provision having the force of law in Kenya except under the authority conferred by this
Constitution or by legislation.” This part reserves the law-making right to Parliament unless
otherwise allowed by law. Parliament additionally has powers to consider and pass amendments
to the Constitution as well as alter the boundaries of counties.10

In the UK, parliamentary powers with regard to the approval of the recommendations of the
Independent Boundaries Commission (IBC) on the delimitation of boundaries (including reduction
of the number of seats in the House of Commons) were repealed. This was through the enactment
of the Parliamentary Constituencies Act, 2020 which applied an “automaticity” principle whereby
Parliament has no power to alter any recommendations of the IBC.11

Article 109 of the Constitution 2010 states that Parliament shall exercise its legislative power
through Bills passed by Parliament and assented to by the President. Article 109 further outlines
that any Bill may originate in the National Assembly. A Bill concerning County Governments may
originate in the National Assembly or the Senate, whereas a Bill not concerning county
government may be considered only in the National Assembly.

Article 110(3) of the Constitution 2010 also states that the Speakers of the National Assembly and
the Senate ought to consult and agree on at least three (3) issues. First, whether the Bill is a bill
“concerning county Governments” or not. Second, whether it is an ordinary or special bills, if it
concerns county Governments. Third, whether it is a money bill?

The Supreme Court in Re the Matter of the Interim Independent Electoral Commission, Sup. Ct.
Const. Appl. 2 of 2011 held that there is no definite definition of the term “concerning county
governments.” It stated:

9
….Section 44 (National legislative authority) and 104(1) (Legislative authority of provinces) Constitution of South
Africa, 1996.
10
Constitution of Kenya 2010, Art. 255(3) and 256. Parliament can set up an independent commission to inquire and
give recommendations on whether county boundaries should be altered under Art. 188(1). A two-thirds majority vote
both in the National Assembly and Senate is required for such a recommendation to have an effect in law. 11 Neil
Johnson (2021) “Constituency boundary reviews and the number of MPs,” House of Commons Library, January 7,
2021, at https://commonslibrary.parliament.uk/research-briefings/sn05929/ (accessed March 22, 2021).
11
In the matter of the Speaker of the Senate & Another [2013] eKLR.
Page 4 of 35
 “we consider that the expression “any matters touching on county government” should be so
interpreted as to incorporate any national-level process bearing a significant impact on the conduct
of county government. However, interpretation in this category is to be made cautiously, and on a
case-by-case basis, so as to exclude matters such as fall outside this Court’s Advisory Opinion
jurisdiction.”

Therefore, it can adduced that this definition must be determined on a case by case basis. We also
argue that this could also be deduced to have a negative effect of empowering courts to be law and
policy makers, where both Houses would always be required to turn to the courts on what
constitutes bills concerning county governments.

What happens when there is no concurrence between the two Speakers? What is the legal effect
of the National Assembly passing a law without consultation with the Speaker of the Senate under
Art. 110(3)? These issues were addressed by the Supreme Court In the matter of the
Speaker of the Senate & Another (2013).12 It was held that the National Assembly’s passage of
the Division of Revenue Bill 2013, and submission for assent to the President, was
unconstitutional. This was due to the lack of consultation with the Speaker of the Senate, yet this
bill would affect devolution.

The SCORK stated:

“…..that the business of considering and passing of any Bill is not to be embarked upon and
concluded before the two Chambers, acting through their Speakers, address and find an answer for
a certain particular question: “What is the nature of the Bill in question?” The two Speakers, in
answering that question, must settle three sub-questions – before a Bill that has been published,
goes through the motions of debate, passage, and final assent by the President. The sub-questions
are:

a. is this Bill concerning county government” And if it is, is it a special or an ordinary bill”
b. is this a bill not concerning county government”
c. is this a money Bill”

[142] How do the two Speakers proceed, in answering those questions or sub-questions? They must
consider the content of the Bill. They must reflect upon the objectives of the Bill. This, by
the Constitution, is not a unilateral exercise. And on this principle, it is obvious that the
Speaker of the National Assembly by abandoning all engagement or consultation with the
Speaker of the Senate, and proceeding as he did in the matter before this Court, had acted
contrary to the Constitution and its fundamental principles regarding the harmonious motion
of State institutions.

12
….
Page 5 of 35
 [143] Neither Speaker may, to the exclusion of the other, “determine the nature of a Bill”: for that
would inevitably result in usurpations of jurisdiction, to the prejudice of the constitutional
principle of the harmonious interplay of State institutions.

[144] It is evident that the Senate, though entrusted with a less expansive legislative role than the
National Assembly, stands as the Constitution’s safeguard for the principle of devolved
government. This purpose would be negated if the Senate were not to participate in the enactment
of legislation pertaining to the devolved units, the counties [Article 96(1), (2) and (3)].”13

The High Court in Senate of the Republic of Kenya & 4 Others v. Speaker of the National Assembly
& Another; Attorney General & 7 Others (2020)14 was also challenged to decide on the question
as to whether concurrence between the Speakers of the National Assembly and the Senate, is a
mandatory preliminary step in the legislative process. The Court concurred with the

Supreme Court’s decision above and reiterated that any law passed under Art. 110 (3) of the
Constitution without concurrence of the Houses is unconstitutional.

Where the Speakers fail to agree, the appropriate procedure is seeking alternative dispute
resolution, including mediation in the first instance. The failure of mediation would then result in
court adjudication as a last resort.

What does the Legislature have power to legislate on? The National Assembly, Senate, and the 47
County Assemblies have the mandate to legislate on the matters outlined in the 4 th Schedule, as
appropriate. Is the list exhaustive? What else under the Constitution? 15 What of the transitional
and consequential legislative mandate in the 2010 Constitution and in numerous legislations? The
BBI constitutional, political, legislative, administrative reform proposals had comprehensive
legislative proposals…

In the United States, Article 1(8) clarifies the Legislative power of the Congress thus:16

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the
Debts and provide for the common Defence and general Welfare of the United States; but all
Duties, Imposts and Excises shall be uniform throughout the United States;

13
In the matter of the Speaker of the Senate & Another [2013] eKLR.
14
Senate of the Republic of Kenya & 4 Others v. Speaker of the National Assembly & Another; Attorney General & 7
Others [2020] eKLR.
15
The schedule is contextualized in Chapter 1 of CODRALKA 1 (Conceptualizing People, Sovereignty, Constitution,
State, Government, Society and Market in Kenya and Africa).To develop a typology on legislative power, including
law making; representation, ….; oversight; and among the three main legislative agencies…..
16
The legislative power of Kenya’s National Assembly, Senate and County Assembly is founded on the Fourth
Schedule, and specific constitutional and legislative proposals regarding these agencies. See Chapters 1 on
conceptualizing constitutional democracy…. and Chapter 6 of CODRALKA 1 on (Fusion, separation of powers and
checks and balances) and Chapter 31 of CODRALKA 1 on (Constitution Making, Amendment, Construction,
Translation, Interpretation, and Implementation in Kenya and Africa 2010: Interests, Process and Outcomes).
Page 6 of 35
 To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian
Tribes;
To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies
throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights
and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries;17
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the
Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on
Land and Water;
To raise and support Armies, but no Appropriation of Money to that use shall be for a longer term
than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections
and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of
them as may be employed in the Service of the United States, reserving to the States respectively,
the Appointment of the Officers, and the Authority of training the Militia according to the discipline
prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten
Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the
Seat of the Government of the United States, and to exercise like Authority over all Places
purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection
of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this Constitution in the Government of the United States,
or in any Department or Officer thereof.”

Thus, the powers and scope of mandate of the US Congress is wider as compared to Kenya’s
National Assembly and Senate… The US Congress is also the purse holder, as compared to Kenya

17
Note the need and the congressional power to protect the owners of copyright and patent; and the need to promote
sustainable development through copyright and patent by facilitating access by users. Cf. Article 27 of Universal
Declaration of Human Rights (UDHR). See Ben Sihanya (2016; 2020) Intellectual Property and Innovation Law in
Kenya and Africa: Transferring Technology for Sustainable Development, Sihanya Mentoring & Prof Ben Sihanya
Advocates & Prof Ben Sihanya Advocates, Nairobi & Siaya.
Page 7 of 35
and Africa where there is a separate Minister for Finance that usually usurps the legislative control
of the finance..18. The powers as established in the US Constitution are also more concise as they
address specific areas of governance where the Congress can legislate on.19

7.2.1 Powers and functions of the National Assembly in Afro-Kenyan Constitutional

Democracy
The National Assembly has at least three (3) core powers and functions. First, the National
Assembly legislates. Second, the National Assembly represents the people of constituencies and
special interests and determines the allocation of national revenue between the national and county
government.

Third, the National Assembly exercises oversight over national revenue and expenditure. Its
oversight function also includes reviewing the conduct in office of the President, Deputy
President and other State Officers, and initiating the process of removing them from office. The
National Assembly also exercises the general oversight over State organs and approves a
declaration of war and extension of a state of emergency. 20

Other powers and functions are more recent, including vetting of some nominees to public and
state office. The National Assembly has been called out for having vetted some state officials in a
clandestine manner. Remarkably, former Cabinet Secretary, Rashid Echesa, who despite having
several complaints lodged against him was vetted and cleared by the National Assembly.21

Another closely debated vetting is related to the appointment of Ms Mwende Mwinzi as Kenyan
ambassador to Seoul in May 2020.22 Parliament rejected her appointment by President Kenyatta
II on contention that since she was a dual citizen, she had to renounce her American citizenship as
a condition precedent to her approval. Parliament even threatened to withhold funding to the Seoul
Embassy, due to Mwende Mwinzi’s appointment.23

18
….
19
To elaborate…These are discussed under chapter 7.3 below.
20
Fred Matiang’i (2006) “Case Study on the Role of Parliament in Fight Against Corruption: The Case of the Kenyan
Parliament,” The Role of Parliament in Curbing Corruption, 69-78; Adams Oloo (1995) The Role of Parliament in
Foreign Policy-Making Process in Kenya, 1963-1993. Diss. MA Thesis; Paul Evans (ed) (2017) Essays on the History
of Parliamentary Procedure: In Honour of Thomas Erskine May, Bloomsbury Publishing.
21
In the Building Bridges Initiative (BBI) debates, the former Cabinet Secretary (CS) Rashid Echesa case was Exhibit
1 for those opposed to vetting. That it had become mechanical, routine or robotic…. To elaborate cross ref…. See also
Chapter 3 of CODRALKA 1 and debate on appointments on merit versus……affirmative action, positive
discrimination…
22
Moses Nyamori (2019) “Committee reverses appointment of Mwende as ambassador,” Standard, Nairobi,
September 25, 2019, at https://www.standardmedia.co.ke/article/2001343377/mps-reverse-appointment-of-
mwendeas-ambassador (accessed 20/3/2020).
23
David Mwere (2021) “How ‘Handshake’ has changed power dynamics in Parliament,” Daily Nation, March 9,
2021, at https://nation.africa/kenya/news/politics/how-handshake-has-changed-power-dynamics-in-
parliament3316264 (accessed August 5, 2021).
Page 8 of 35
In the case of Mwende Maluki Mwinzi v. Cabinet Secretary, Ministry of Foreign Affairs & 2
Others,24 Justice Aaron Makau held that Ms Mwinzi could not be forced to renounce her American
citizenship. Also, that ambassadors are public officers, not state officers, hence allowed to hold
dual citizenship. Therefore, Parliament, the Executive and court were, locked in a tussle as to
which arm had the final word on the approval of Ms Mwinzi’s appointment. 25 This is further
discussed under section 7.5 below.

One of the research objectives of this book is to constitute or clarify and theorize the emerging
interests, powers and functions and processes, and outcomes associated with the legislature from
an AfroKenyan perspective…

7.2.1.1 Article 95 on Powers of the National Assembly in Kenya and Africa26

What are the conceptualizations of the role of the National Assembly under Art. 95 of the
Constitution 2010? This section also addresses proposed reforms to this provision and the political
economy around reform proposals.

Article 95 of the Constitution provides:

“(1) The National Assembly represents the people of the constituencies and special interests in the
National Assembly.
(2) The National Assembly deliberates on and resolves issues of concern to the people.
(3) The National Assembly enacts legislation in accordance with Part 4 of this Chapter. (4) The
National Assembly --
(a) determines the allocation of national revenue between the levels of government, as provided
in Part 4 of Chapter Twelve;
(b) appropriates funds for expenditure by the national government and other national State
organs; and
(c) exercises oversight over national revenue and its expenditure.
(5) The National Assembly--
(a) reviews the conduct in office of the President, the Deputy President and other State officers
and initiates the process of removing them from office; and
(b) exercises oversight of State organs.
(6) The National Assembly approves declarations of war and extensions of states of emergency.”

24
Mwende Maluki Mwinzi v. Cabinet Secretary, Ministry of Foreign Affairs & 2 Others [2019] eKLR, Petition No.
367 of 2019.
25
This is discussed in detail in Chapter 8 on Citizenship (to be in Chapter 1 alongside people from…..)… of
CODRALKA 1 below.
26
See also National Assembly (Powers and Privileges Act); National Government Coordination Act; Inter
Governmental Relations Act....Nigeria, South Africa, Uganda, Tanzania,…USA, UK….To discuss the political
economy and practice or tradition in text and footnotes…To cross ref…..
Page 9 of 35
Art. 95 generally outlines the fundamental functions of Parliament as discussed in section 7.3.1
above. However, has the National Assembly lived up to its powers and functions? What are the
challenges facing the national Assembly in delivering its functions?

Rampant corruption, partisan system, and intimidation are some of the challenges facing the
National Assembly in conducting oversight.27

For instance, there were debates on the Sugar Report bribery claims against Members of
Parliament (MPs) in 2018 for allegedly receiving bribes ranging between KES 10, 000 to KES 30,
000 to throw out the Joint House Committee Report report on importation of contraband sugar
into Kenya.28

There were also questions regarding Senate’s partiality in 2018 when 19 senators voted to throw
out the Report on the Inquiry into the acquisition of Land Parcel L/R. No. 7879/4 for Ruaraka
High School and Drive-In Primary School, (Ruaraka School Land Report). This Report implicated
the then Internal Cabinet Secretary Dr Fred Matiang’i and the then Education Ministry Principal
Secretary, Mr Bellio Kipsang’ to be “held responsible” for the loss of public funds.29

It was alleged that some Senators hatched a scheme to save Dr Matiang’i and Mr Kipsang’ which
involved mobilization on ethnic and party lines. It was also alleged that some Senators were bribed
between KES 30, 000 to KES 50, 000 to oppose the Report. Those in opposition argued that the
National Land Commission (NLC) ought to be held responsible as it had the constitutional
mandate of acquisition of land for public purposes.30

Further, there was the 2018 fuel tax debate that elicited public anger as a result of the imposition
of an 8% value added tax (VAT) on diesel and fuel prices. This was contained in the Finance

27
Gideon Keter (2018) “House of shame: 15 MPs charged in court,” Star, Nairobi, October 29, 2018, at
https://www.the-star.co.ke/news/2018-10-29-house-of-shame-15-mps-charged-in-court/ (accessed 19/3/2020).
28
Parliament of Kenya (2018) “NACoPP on inquiry into allegations on bribery to reject Sugar Report,” November
16, 2018, at http://www.parliament.go.ke/sites/default/files/2018-
11/NACoPP%20on%20inquiry%20into%20allegations%20on%20bribery%20to%20reject%20Sugar%20Report%2
0Final-17.11.2018_0.pdf (accessed March 18, 2021); Eric Omollo (2019) “Protect new sugar report from MPs who
take bribes,” Star, April 4, 2019, at https://www.the-star.co.ke/opinion/star-blogs/2019-04-04-protect-new-
sugarreport-from-mps-who-take-bribes/ (accessed March 18, 2021).
29
Ibrahim Oruko (2020) “Ruaraka land: Senators accused of playing dirty to save Matiang’i, Kipsang,” Daily Nation,
Nairobi, June 28, 2020, at https://nation.africa/kenya/news/ruaraka-land-senators-accused-of-playing-dirtyto-save-
matiang-i-kipsang-115122?view=htmlamp (accessed August 5, 2021); Business Daily (2018) “EACC names
Matiang’i in Sh1.5bn Ruaraka land row,” August 16, 2018, at https://www.businessdailyafrica.com/economy/EACC-
fingers-Matiangi-Ruaraka-land-row/3946234-471589014oxlxxz/index.html (accessed March 18, 2021). In this
matter, the Government allegedly paid KES 3.2 Billion to purchase land that belonged to the Government…Dr.
Kipsang was reappointed PS Education in the Ruto administration…
30
Ibid.
Page 10 of 35
Act, 2018 which was later declared unconstitutional by the High Court as result of the lack of
concurrence between the National Assembly and the Senate.31

7.2.2 Powers and functions of the Senate32 in Afro-Kenyan Constitutional Democracy Article
96 of the Constitution 2010 defines the role of the Senate in Kenya as representing the interests of
the county governments and participating in the law-making function of Parliament by debating
and approving Bills concerning counties.

What is the assessment of the role of the National Assembly (NA) and the Senate on major public
or national questions in the Ruto administration? E.g., ethnic inclusion in Government, especially
Cabinet Secretaries, Principal Secretaries, and generally Kikuyu and Kalenjin hegemony in
Government, arbitrary GMO promotion and deregulation, maize import, removal of fuel subsidy,
taxes (bank to Mpesa transfer, capital gains tax, landlords, enhanced tax brackets)…

The Senate also determines the allocation of national revenue among counties and further
participates in the oversight of State officers and determining any resolution to remove the
President and Deputy President from office.

Article 96 of the Constitution provides:

“(1) The Senate represents the counties, and serves to protect the interests of the counties and their
governments.
(2) The Senate participates in the law-making function of Parliament by considering, debating
and approving Bills concerning counties, as provided in Articles 109 to 113.
(3) The Senate determines the allocation of national revenue among counties, as provided in
Article 217, and exercises oversight over national revenue allocated to the county governments.
(4) The Senate participates in the oversight of State officers by considering and determining
any resolution to remove the President or Deputy President from office in accordance with Article
145.”

Just like the National Assembly, the Senate too has been faced with challenges in the performance
of its functions. Some of the challenges include corruption, intimidation, party politics, and
executive interference among others.33

31
John Mutua (2020) “Judges quash fuel VAT, M-Pesa tax over Senate snub,” Business Daily, Nairobi, October 30,
2020, at https://www.businessdailyafrica.com/bd/economy/judges-quash-fuel-vat-m-pesa-tax-over-senate-
snub2726024 (accessed August 5, 2021); see also section 7.1 and 7.2 above.
32
See also Parliamentary Powers and Privileges Act, No. 29 of 2017; Senate Standing Orders; County Government
Act, 2012.
33
Tee Ngugi (2019) “Kenya’s Senate has failed in its oversight role; It is a needles burden on taxpayers,” East African,
Nairobi, December 24, 2019, at https://www.theeastafrican.co.ke/oped/comment/Kenya-Senate-has-failedoversight-
role/434750-5396708-qvd9d2/index.html (accessed 19/3/2020).
Page 11 of 35
Some of the contested issues in the Legislature, political and public discussions included the Solai
dam tragedy Report…., debate on impartiality during the impeachment hearing of the then Kiambu
Governor, Ferdinand Waititu,34 and the graft claims around the Ruaraka Land Report, as discussed
under Chapter 7.3.1 above, etc.35
What is the role of the Senate in the transfer of functions as stipulated under Article 187 of the
Constitution? A case example was the transfer of County Government functions by Nairobi
Governor to the National Government in 2020….. The Senate as a custodian of devolution under
Art. 96(1) has the mandate to ensure that such transfer of functions complies with the law, and is
in the best interest of the county. This includes promoting public participation under sec. 29 of the
Intergovernmental Relations Act, 2012, as a condition precedent to any transfer of functions.

The Speaker of the Senate Kenneth Lusaka was present during the signing of the Deed of Transfer.
Some senators argued that such a move was “a last resort and a lesser evil” to manage the
breakdown of services and functions in the Nairobi City County Government. The question would
be, how would the Senate oversight functions transferred from the County Government to the
National Government?

What role does the Senate play in the establishment of the Nairobi Metropolitan Service (NMS)?
Role of the Senate in the oversight of the NMS?.... Relatedly, the Intergovernmental Relations
(Amendment) Bill, 2021 proposed to make it mandatory that there be an express authority from
the Legislature where any transfer of functions from the county Government to the National
Government, is proposed.

Relatedly, the scope of the powers and functions of the Senate in Kenya is quite limited in
comparison to the US model. For instance, the Senate in Kenya is limited to at least four (4)
functions. First, debating on legislation related to counties under Art. 96(2) of the Constitution
2010. Second, determining national revenue allocation (Article 96(3) as read with Art. 207
(revenue funds for county Governments)).

34
Standard (2020) “Governor Ferdinand Waititu impeached,” Standard, Nairobi, January 29, 2020, at
https://www.standardmedia.co.ke/nairobi/article/2001358452/governor-ferdinand-waititu-impeached (accessed
December 1, 2020)…
35
Moses Nyamori (2019) “Senator’s outburst reveals Ruaraka land report games,” Standard,
Nairobi, September 24, 2019, at
https://www.standardmedia.co.ke/kenya/article/2001343071/senator-s-outburst-reveals-ruaraka-
land-reportgames (accessed December 1, 2020). See Business Daily (2018) “EACC names
Matiang’i in Sh1.5bn Ruaraka land row,” August 16, 2018, at
https://www.businessdailyafrica.com/economy/EACC-fingers-Matiangi-Ruaraka-landrow/3946234-4715890-
14oxlxxz/index.html (accessed March 18, 2021), under Chapter 7.3.1.1 above.
Page 12 of 35
Third, voting on motions for the impeachment of the President.36 And fourth, voting on motions
for the impeachment of the Deputy President (DP) under Art. 96(4) (role of the Senate) as read
with Art. 150 (removal of Deputy President) and Art. 145 (removal of President) Constitution of
Kenya, 2010.37

In the USA, Senate provides advice to the President on appointments to state offices, which is a
mandate reserved for the National Assembly in Kenya (Art. 132(2) on appointment and dis-
appointment of Cabinet Secretaries, Attorney-General (A-G), Secretary to the Cabinet, Principal
Secretaries and High Commissioners …..

In Kenya, the National Assembly approves the appointment of the Chief Justice (CJ), Deputy Chief
Justice (DCJ) and other judges under Art. 166 of the Constitution 2010…38 In the USA, the Senate
is mandated to vet the presidential nominee for appointment to the offices of the judges of the
supreme Court. Article II, sec. 2(2) of the “Appointment Clause” provides that the President:

“shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ...
Judges of the supreme Court.”

This role is termed as the “advice and consent” role. The USA Senate can be bypassed in such
appointments, though controversially, whenever the Senate is in recess. For instance, the
appointment of Potter Stewart as an Associate Justice in 1958, by President Eisenhower. Also, the
US Senate votes on declaration of war and extension of state of emergency unlike in Kenya where
this mandate is exclusive to the National Assembly under Art. 95(6) which states that National
Assembly has the power to approves declarations of war and extension of the state of emergency.

7.2.3 Powers and functions of County Assemblies in Afro-Kenyan Constitutional

Democracy39
There are points of convergence and divergence between powers and functions of Kenya’s..40
county assemblies, and the state or provincial legislative assemblies in Nigeria and South Africa
respectively.

36
Article 96(4) (role of the Senate) as read with Article 145 (removal of President by impeachment) Constitution of
Kenya, 2010.
37
Ibrahim Oruko (2021) “Trial by mathematics: Five MPs could decide Ruto’s fate,” Daily Nation, Nairobi, March
23, 2021, at https://nation.africa/kenya/news/politics/trial-by-mathematics-five-mps-could-decide-ruto-s-
fate3332308?view=htmlamp (accessed March 23, 2021).
38
See Chapter 9…on National Assembly’s role in vetting CJ Martha Kooome, Maraga, Willy Mutunga…
39
Cf. state and other subnational legislatures in Nigeria, South Africa, USA, UK…..…To discuss the political economy
and practice in text and footnotes…to cross ref…..
40
Public appointments (Parliamentary Approval Act, 2011)….
Page 13 of 35
7.2.3.1 Powers of County Assemblies under Art 185 Constitution of Kenya 2010 Under
Article 185 of the Constitution of Kenya:

“(1) The legislative authority of a county is vested in, and exercised by, its county assembly.41 (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.”
Additionally, the functions of County Assemblies are also defined in the County Assemblies
Powers and Privileges Act, 2017. What role do county assemblies play in constitutional
amendments?... The Senate has the responsibility under Art. 256 to consider proposed
constitutional amendments by parliamentary initiative. Art. 257(6) and (8) provide that Senate
should consider draft constitutional amendment bills, where such amendment is by popular
initiative. This applies after the 47 county assemblies have considered the draft bill.42

In accordance with the foregoing discussions, what is the structure and composition of the
Legislature in Kenya?

7.3 History of the Legislature in Kenya43

The Legislature is bicameral at the National level and unicameral at the County level in Kenya
under the 2010 Constitution.44 Bicameralism was introduced at independence IN 1963. Following
the abolition of the Legislative Council in Kenya in 1962…, a bicameral system of Parliament was
introduced.45

The idea of a second chamber (Senate) was first introduced by members of the Kenya African

41
The “vesting” of legislative authority in the county assembly is a constitutional anachronism, especially in Kenya
and African states where legislative power is vested in, belongs to and is derived from the people. (Art 1).
42
The Punguza Mzigo Bill by the Third Way Alliance; The role of county assemblies in the Regional Caucus
Resolutions submitted to the Building Bridges Initiative (BBI)….
43
See also Paul Evans (ed) (2017) Essays on the History of Parliamentary Procedure: In Honour of Thomas Erskine
May, Bloomsbury Publishing.
44
Cf. 1962, 1963 Kenyan Constitution; cf. Nigeria, South Africa, Uganda, Tanzania, USA, UK and the debates at
Lancaster House Conferences, Bomas, and debates on the Building Bridges Initiative (BBI).
45
The Lancaster House Constitution of 1962 which preceded the 1963 Constitution introduced a bicameral legislature.
The senate was formed by section 34(2) of the 1963 Constitution. See JH Proctor (1965) “The Role of the Senate in
the Kenyan Political System,” Vol XVIII, Parliamentary Affairs, 389-415.
Page 14 of 35
Democratic Union (KADU) party.46 This was part of KADU’s plan to protect the smaller tribes
(Kalenjin, Maasai, Turkana, Samburu (KAMATUSA), and the Coast) which it represented against
domination by larger tribes (Kikuyu and Luo).47 On the other hand, Kenya African National Union
(KANU) which was KADU’s rival party preferred a centralized system of Government.

Most European settlers and Asians supported KADU’s proposal. KADU’s proposal of a system of
a bicameral legislature had at least nine (9) features. First, a powerful Senate was to be elected
indirectly on a regional basis. Second, the Senate was to consist of five (5) members to represent
each region, chosen by the regional assembly. Third, the Senators were to serve for a fixed term
of four (4) years. Fourth, the Senate’s legislative powers would be equal to those of the Lower
House.

Fifth, conflicts between the two Houses were to be resolved by a joint committee. Sixth, members
of the Cabinet would be elected by both houses sitting together. Seventh, cabinet would be
responsible to both Houses. Eight, constitutional amendments were to be supported by 75% of the
members of each house. Ninth, two thirds majority of both houses would be required for a
declaration of a state of emergency to be made.48

However, KANU was opposed to the whole idea of a Senate. Its counter arguments were, inter
alia, that a second chamber would be too expensive and would negatively impact on the
effectiveness of government.49

Eventually, after a series of debates and arguments, KANU conceded to KADU’s proposals but
with fundamental changes and conditions to KADU’s first proposals. The two (2) main issues
raised by KANU were first, that the Senate would not be allowed to block bills passed by the lower
house. Second, that the Senate must be composed of one representative elected from the then
existing administrative districts.50
KADU and KANU finally arrived at a compromised solution. Mr Reginald Maudling, the then
Secretary of Sates for the Colonies through a draft memorandum defined the purpose of the
Senate.51 The Senate was:

46
21 Ibid. KADU was formed in
1962.
47
Ibid. At that time, KANU was largely perceived as a party for the larger tribes in Kenya i.e. Luo and Kikuyu.
48
See J. H. Proctor (1965) “The Role of the Senate in the Kenyan Political System,” op cit.
49
Ibid. KANU leader Jomo Kenyatta was quoted saying that the Senate would be “the thin edge of the wedge which
regionalists would exploit.”
50
KADU wanted the Senate to be comprised of regional as opposed to district representatives. To review in this
context…. Robert Maxon (2011) “Kenya’s Independence Constitution: Constitution-Making and end of empire,”
Lanham, Fairleigh Dickinson, at http://site.ebrary.com/id/10753502 .…. (biased against TJ Mboya and his
colleagues….) Robert Maxon (2011) Britain and Kenya’s Constitutions, 1950-1960, Cambria Press.…..; Fitz de
Souza (2019) Forward to Independence: My Memoirs….See Chapter 4 of CODRALKA 1….
51
To create table of Secretaries for Colonies and equivalent from 1895 to 1963….
Page 15 of 35
 “partly to ensure proper representation of geographical views and interests, partly to act as a
revising and reforming house, and also possibly, most important, to act as fundamental protector of
52
individual rights and liberties.”
These principles were mutually accepted. It was further agreed that a majority of 75% of each
house would be required to effect any constitutional amendments except those affecting the
entrenched rights for which a 90% majority in the Senate would be necessary. On the declaration
of a state of emergency, “substantially more than 50%” would be required to give approval. 53

While the final draft of the Independence Constitution was taking shape in Nairobi, conflicts and
controversies arose as to how the members of the Senate would be chosen. There were also
controversies over the creation of new districts which were intended to permit a more satisfactory
representation for certain tribes. KANU resisted this on the grounds that it would encourage people
to think of themselves as tribal groups rather than as one nation.54

The Committee set up to demarcate the six (6) regions into which the country was to be divided
recommended boundaries which cut through some of the then existing districts in order to separate
antagonistic tribes and to group together others that wished to be so associated. After approval by
Government, three new districts were created. The effect of this was that it would enable
representation of nearly all tribes in the Senate.55

The Senate contemplated under the Lancaster House Conference had at least three (3) key features:
First, the term of office for a Senator was six (6) years. However, the life of the Senate would not
be affected by dissolution of the House of Representatives or the fall of Government. 56 Second,
money Bills originated from the Lower House and could only be delayed by the Senate for one
month after which they would be passed by the Lower House.57 Third, the Senate had no control
over the life of Government. Only the Lower House was empowered to pass a motion of no
confidence.58

However, all these agreements were not reflected in the final draft of the Constitution. It was
argued by KANU that the provisions agreed upon from London would be effective when
independence was achieved. 59 Later, it became apparent that KANU was opposed to those

52
JH Proctor, op. cit, 394.
53
Ibid.
54
Cf. unity in diversity….. diverse and united … cf. Article 10…….. Chapters 1 to 4 of CODRALKA 1…. Building
Bridges Initiative (BBI) 2019 and 2020 Reports, proposals and debates on utu (humanity? human dignity?),
inclusivity, ethnic antagonism and competition, and national ethos and mutual responsibility…
55
Out of the 41 constituencies, approximately 35 constituencies constituted an absolute majority of one tribe. In about
17 districts, over 90% were of the same tribe.
56
See also Chapter 7.2 above; Constitution of Kenya 2010.
57
Ibid; Constitution of Kenya 2010.
58
Cf. Constitution of Kenya 2010…; 1969 Constitution…
59
This was according to the Minister for Legal Affairs, Tom Mboya.
Page 16 of 35
provisions. The main argument by Tom Mboya was that it would practicably be impossible to
secure a 90% majority in the Upper House and that only five (5) of its members could block a
change strongly desired by all other Senators and the entire House of Representatives.60

After another conference in September 25, 1963, KANU’s views prevailed. Ordinary amendments
could be made by 65% of the two Houses sitting together. It was also agreed that a proposed
amendment rejected by the two Houses could be passed by a 65% affirmative vote in a national
referendum. Clauses that affected the rights of individuals, Judiciary, boundaries of regions,
structure, composition, franchise and procedure for regional assemblies, tribal land rights, Senate,
district boundaries and amendment procedure remained entrenched and therefore could still be
changed with a 90% majority in the Senate.61

In the ensuing elections, KADU had the majority in the Senate (although later some Senators
crossed over to give KANU a majority) in 1964. Remarkably, all seats in the Senate were filled
by blacks. This also resulted in the emergence of the radicals (led by Vice President Jaramogi
Oginga Odinga) versus moderates factions in KANU.

Although the Constitution empowered Senators to originate non money bills (only), no such
initiative (reportedly) was ever exercised by Senate. 62 The Senate succeeded in securing
amendments to only three (3) bills and all of these changes were quite minor. 63 Reportedly, there
were other amendments passed by the Senate but rejected by the House of Representatives.64

In December 1966, both Houses, resolved to merge the Senate and the House of Representatives
into one House, and to create 41 constituencies to be represented by the 41 existing senators.65
This was through the Constitution of Kenya (Amendment) (No. 4) Act No. 19 of 1966.66 This was
probably the most consequential and impactful Senate resolution: to dissolve itself.67

60
Cf. Tom Mboya (1963) Freedom and After, Andre Deutsch Ltd …. (Uhuru ni Mwanzo)….Oginga Odinga (1968)
Not Yet Uhuru: The Autobiography of Oginga Odinga, Heinemann….
61
Art. 255(1) of the2010 Constitution provides for matters that can only be amended through a referendum, including
the term limits of the President, Bill of Rights, national values and principles, and functions of Parliament; ….See also
Chapter 31 of CODRALKA 1… on (Constitution Making, Amendment, Interpretation, Construction, Translation, and
Implementation and Reform in Kenya and Africa 2010: Interests, Process and Outcomes)……..; Ben M. Sihanya (due
2023) ‘The BBI Litigation in the High Court, Court of Appeal and Supreme Court of the Republic of Kenya”…
62
JH Proctor, op. cit., at 397.
63
JH Proctor, op. cit., at 399. The Senate made small (few?) amendments to the Pyrethrum Bill, the Central Road
Authority Bill and the Export Duty Bill.
64
Ibid.
40
Ibid.
65
Ibid.
66
See Nancy Baraza (2010) “Amending law will be no stroll in the park,” Daily Nation, Nairobi, August 18, 2010, at
https://www.nation.co.ke/oped/opinion/Amending-law-will-be-no-stroll-in-the-park-/440808-
980586auf4ldz/index.html (accessed 19/3/2020).
67
Cf. HWO Okoth Ogendo (1972), “The Politics of Constitutional Change in Kenya; 1963-1969”…African Affairs
Page 17 of 35
Table 1 on Legislative Council Nominations, Party Lists and Elections Since 1907….
Year No of Seats by race Political Parties Independent
1944 1 African nominated ….. Kenya African Union
(KAU)
11 whites

5 Indians

… Arabs

1956 1 African nominated ….

1957 8 Africans elected African political parties

were banned
14 whites
8 independent candidates
6 Indians and 6 from Independent
Group Party
1 Arab

1958 14 Africans elected; 6 in

58)68

14 Europeans
3 Asians
3 Arabs

Total: 34
1959 Formation of African Elected Members’ Organization
(AEMO) by the 8 nominated Africans.

68
LegCo expanded under the Lennox Boyd Constitution. See the National Assembly of Kenya (2017) History of the
Parliament of Kenya, Fact Sheet 24, Clerk of the National Assembly, at
http://www.parliament.go.ke/sites/default/files/2018-04/24_History_of_the_Parliament_of_Kenya.pdf (accessed
9/11/2019).
Page 18 of 35
1961 33 Africans elected69 Kenya African National
Union
10 Europeans

8 Asians
Kenya African
2 Arabs Democratic
Union

Total: 53

1962 LegCo succeeded by a Bicameral Kenya African National Union

Legislature

Senate- 41 Senators70
Kenya African Democratic
House of Representatives- Union
117 members

Total: 158

May 18-26, 1963 Kenya African National Union

(KANU)

Kenya African Democratic

Union (KADU)

69
Ibid.
70
Ibid.
Page 19 of 35
June 11-12 June As series of by-elections (Little Kenya African National Union
1966 General Election) (KANU)

Following House of Representatives - 19 Kenya Peoples Union (KPU)

resignation of members elected
Vice President
Jaramogi Oginga Senate – 10 members elected
Odinga, formation
of KPU, and
defection of some
29 MPs- only 6
were reelected
after the by-
elections (threats,
deaths,
intimidation…).

December 6, 1969 158 KANU

Kenya Peoples Union (KPU) is

proscribed

October 14, 1974 158 Kenya African National Union

(KANU)

Page 20 of 35
December 29, 188 members elected Kenya African National Union
1992
12 nominated FORD–Asili

Democratic Party (DP)

FORD–Kenya 928,364

Kenya National
Congress (KNC)

Party of Independent
Total: 200
Candidates of Kenya

Kenya Social Congress (KSC)

Kenya National Democratic

Alliance (KNDA)

Social Democratic Party (SDP)

December 27, 210 members elected National Rainbow Coalition

2002 (Liberal Democratic Party
12 members nominated
Democratic Party, FORD–
Kenya , National Party of
Total: 222 Kenya New)

Kenya African National Union

FORD–People

Safina

Sisi Kwa Sisi

Shirikisho Party of Kenya

December 27, 210 members elected Orange Democratic Movement

2007
12 members nominated Party of National Unity

Page 21 of 35
 Orange Democratic Movement
– Kenya
Total: 222
Kenya African National Union

Safina

National Rainbow Coalition

Democratic Party

FORD–People

Kenya African
Democratic
Development Union

Kenya National Democratic

Alliance

NARC–Kenya

Sisi Kwa Sisi

March 4, 2013 National Assembly had 337 elected Jubilee Alliance (The National
members (290 representing Allliance, (TNA), United
constituencies and 47 women Republic Party (URP), New
representing counties) elected and 12 Ford Kenya…)
nominated members
Coalition for Reform and
Senate had 47 members elected, 16 Democracy (CORD) (ODM,
women nominated and 4 members Wiper, Ford Kenya)
representing youth, women, and
PWDs.

Total: 404

Page 22 of 35
August 8, 2017 National Assembly had 337 members
(290 directly elected representing
constituencies and 47 women
representing counties) elected and 12
nominated members

Senate had 47 members directly

elected, 16 women nominated and 4

members representing youth,

women, and PWDs.

Total: 404

August 9, 202271 National Assembly had 337 members ODM…..

(290 directly elected representing UDA….
constituencies and 47 women Jubilee…
representing counties) elected and 12 Wiper…
nominated members

Senate had 47 members directly

elected, 16 women nominated and 4
members representing youth,
women, and PWDs.

Total: 404

Source: © Ben M. Sihanya (due 2023) CODRALKA Vol. 1; Ben M. Sihanya (due 2023)
CODRALKA Vol. 2; Ben M. Sihanya (due 2023) CODRALKA Vol. 3, Sihanya Advocates &
Sihanya Mentoring, Nairobi & Siaya.
….

71
Ben M. Sihanya numerous articles on Presidential Election Petitions (PEP) and on Presidential Elections, Sucession
and Transition (PEST) in Kenya and Africa; Ben Sihanya in Karuti.. ; Hornsby & Thoroup; Michael & Liisa Laakso
(eds)on 1997; NEMU on 1992.
Page 23 of 35
7.4 Structure and Composition of the Legislature in Kenya
There are two (2) levels of Parliament in Kenya. First, the National level comprising the National
Assembly and Senate (bicameral legislature; “lower and upper house”72)… Second, the County
level comprising of the 47 County Assemblies.

How is the National Assembly, Senate and County Assembly composed in Kenya? 73 What Afro-
Kenyanist theory explains the composition since independence? In 2010, the Constitution nearly
doubled the number of parliamentarians, from a house of 222 members to one with two (2)
chambers and 418 members, including two (2) speakers. What was the rationale? Are Kenyans
overrepresented in the National Assembly and County Assemblies?74

The Building Bridges Initiative (BBI) 2019 and 2020 Reports, and the Constitution of Kenya
(Amendment) Bill 2020 proposed the restructuring of the National Assembly (Art. 97) and Senate
(Art. 98) in at least four (4) ways. These are discussed in Chapter 7.4.1 and 7.4.2 below……

Further, the following sections of Chapters also compare the proposals in the Punguza Mzigo Bill
the and other relevant reform proposals including the Constitution of Kenya (Amendment) Bill,
2020?

7.4.1 Composition of Kenya’s National Assembly under Article 97 (1) Constitution of Kenya
201075

The composition of the National Assembly refers to… Article 97(1) of the Constitution of Kenya,
2010 states that:

“(1) 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;

72
A legislature with two houses, or chambers. The British parliament is a bicameral legislature, made up of the House
of Commons and the House of Lords. Likewise, the United States Congress is made up of the House of Representatives
and the Senate. Similarly, Kenya is also a bicameral legislature at the national level having the Senate and the National
Assembly as two distinct but complementary chambers of the Legislature.
73
Compare the composition of the national and subnational legislatures in South Africa and Nigeria.
74
See Chapter 5 of CODRALKA 1…
75
Compare the composition of the Legislature under the Constitution of 1962, 1963, 1969, 1992, 1997, 2002 and 2008,
2010 and beyond…See…above….To create section on National Assembly Committees.
Page 24 of 35
 (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.”

The membership of the National Assembly in the 2017-2019 period was drawn from twenty (20)
political parties and that of the Senate from eight (8). Jubilee had 140 of the National Assembly’s
290 constituencies, while the Orange Democratic Movement (ODM)76 had 62 members. There
were fourteen (14) independent candidates, including one (1) woman representative.77…..

7.4.1.1 Departmental Committees in the National Assembly in Kenya [Relate to MDAs…]78

The following are the Departmental Committees in the National Assemblies;79 Administration &
National Security, Agriculture & Livestock, Communication, Information & Innovation, Defence
and Foreign Relations, Education and Research, Energy, Environment and Natural Resources,
Finance and National Planning, Health, Justice and Legal Affairs Committee, Labour and Social
Welfare, Lands, Sports, Culture and Tourism, Trade, Industry and Cooperatives, Transport, Public
Works & Housing, Financial Audit and Money Related Committees, Public Accounts Committee,
Public Investments Committee, and Special Funds Account Committee.80

Further, we have the Budget and Appropriations Committee,81 Committee on Mediation, Select
Committees, Committee on Appointments, Committee on Delegated Legislation, Committee on
Implementation, Committee of Powers and Privileges, Committee on Regional Integration,
Committee on Selection, Constituencies Development Committee, Constitutional
Implementation Oversight Committee,82 Liaison Committee, Members Service & Facilities
Committee, National Cohesion and Equal Opportunity, Parliamentary Broadcasting and Library,
Procedure and House Rules Committee, House Business Committee.83

The 2013-2017 Parliament had five (5) independent candidates, all in the National Assembly.
Following the August 2017 general election, Hon John Paul Mwirigi, MP for Igembe South

76
Cf. Nigeria, South Africa, Uganda, Tanzania, UK, US…..To create section on Senate Committees….. these are
addressed in section 7.4.2 below…
77
Meru Member of Parliament (MP) Hon Kawira Mwangaza Mwenda. In the Senate, only Charles Kibiru of Kirinyaga
County made it in as an independent candidate in the 12 th Parliament.
78
Cf. Presidential Executive Orders…Standing orders…
79
Parliament (2020) “Departmental Committees,” at http://www.parliament.go.ke/the-
nationalassembly/committees/departmental-committees (accessed December 1, 2020). Cf. post 2022 elections…
80
Ibid.
81
Ibid.
82
Ibid.
83
See Parliament of Kenya (2020) “Mandate and Classification,” at http://www.parliament.go.ke/the-
nationalassembly/committees (accessed 20/3/2020).
Page 25 of 35
Constituency was elected as an independent candidate, and as the then youngest Member of
Parliament in Kenya’s 12th National Assembly (2017-).84…post 2022…85

……Section 35 of the Constitution 1963 stipulated that there would be 41 Senators in the
bicameral Parliament, who served for a fixed term of six (6) years. These were directly elected
representatives. Section 49 of the 1963 Constitution provided that there would be not more than
130 and not less than 110 constituencies, with a single elected representative from each
constituency.

The Building Bridges Initiative (BBI) 2020 Report, and the debates on the BBI Constitution of
Kenya (Amendment) Bill, proposed amendments to the composition of the National Assembly.
The key recommendations were five (5) pronged. First, the National Assembly to be composed of
360 members elected by registered voters from the two hundred and ninety (290)
constituencies.86

Second, the inclusion of the Executive (“Government”) in Parliament through a proposed

amendment to Article 97 (membership of the National Assembly) to include the Leader of Official
Opposition (Art. 107A), the Attorney-General (A-G) as established under Art. 156(4) 87 and
Cabinet Ministers (who are not members of Parliament) as ex officio members. The Leader of
Official Opposition would then be a member of the National Assembly. 88

Third, the BBI 2020 Report proposed to introduce Article 107A (Leader of Official Opposition)
to establish the Office of the Leader of Official Opposition with a shadow Cabinet, and adequate
financial and technical support. This was intended to enhance and ensure effectiveness of the
National Assembly’s role of holding the Government to account.

Compare and contrast the BBI’s Leader of Official Opposition and Ruto’s administration
proposals on the leader of the official opposition.89

84
Voice of Africa (VOA) (2017) “Kenyan voters Starting to shun handouts culture, youngest MP says,” August 22,
2017, at https://www.voanews.com/africa/kenyan-voters-starting-shun-handouts-culture-youngest-mp-says
(accessed November 16, 2020).
85
See…SA matrix above (?) on structure and comparison ….since 1906
86
See Ben Sihanya (forthcoming 2021) “The Building Bridges Initiative (BBI) Report 2020, and the Constitution of
Kenya (Amendment) Bill, 2020 vis-à-vis Devolution in Afro Kenyan Constitutional Democracy.”….
87
Building Bridges Initiative (BBI) Report 2020, at https://www.bbi.go.ke/post/bbi-report-october-2020 (accessed
November 10, 2020).
88
Building Bridges Initiative (BBI) Report 2020, ibid.
89
See Ben M. Sihanya (due 2023) “Restructuring the Legislative, Executive and Judiciary in Kenya under the BBI
Proposals…”; Ben Sihanya due (2023) “The BBI litigation in the High Court, Court of Appeal and Supreme Court of
Kenya”…
Page 26 of 35
Similarly, the various proposals for the abolition of special seats in the Legislature also have an
effect on its composition, structure and functions. There were also counter arguments that there is
need to ensure that special seats are competitively awarded as opposed to being used to reward
party loyalists. The Building Bridges Initiative (BBI) 2019 and 2020 Reports proposed to abolish
nominated seats. Also, to adopt a mixed-member proportional representation (MMPR) system
section 3 of the BBI 2020 Report on divisive election)90 to uphold the one third (two-thirds) gender
value, principle and or rule by promoting gender equity and effective representation of each
electoral unit in Kenya.91

What were the findings and decisions of the Supreme Court of Kenya, Court of Appeal and the
High Court on the BBI’s proposals on a restructured legislative?92

There were also proposals and submissions by the various “minority” ethnic groups calling for
establishment of counties and or constituencies for such groups e.g. the Sabaot of Trans Nzoia
County. 93 These were some of the notable issues addressed by the Building Bridges Initiative
(BBI) 2019 and 2020 Reports, which proposed the allocation of additional constituencies to
underrepresented areas in Kenya.94

7.4.2 Composition of the Senate under Article 98(1) Constitution of Kenya 2010 Article
98(1) of the Constitution of Kenya 2010 states:

“(1) 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 elected under clause (a) in accordance with Article 90; (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.”

90
Building Bridges Initiative (BBI) 2020 Reports, at
https://nation.africa/resource/blob/2486392/88e5205129241296af3755acd99809c1/bbi-report-data.pdf (accessed
March 18, 2021). Section 3 of the BBI 2020 Report was on divisive elections.
91
Building Bridges Initiative (BBI) Report 2020, at https://www.bbi.go.ke/post/bbi-report-october-2020 (accessed
November 10, 2020).
92
SA to draft…..
93
Daily Nation (2020) “Leaders from the Sabaot community advocate for the formation of a Mt Elgon County,” June
27, 2020, at https://www.youtube.com/watch?v=EEacQu29XjU (accessed December 1, 2020)…. to clarify further…
94
Ibrahim Oruko (2020) “BBI: How counties would share out 70 new MPs,” Daily Nation, November 2, 2020, at
https://nation.africa/kenya/news/politics/new-mps-bbi-2728948?view=htmlamp (accessed March 18, 2021).
Page 27 of 35
The Building Bridges Initiative (BBI) 2020 Report and Constitution of Kenya (Amendment) Bill,
2020 also proposed the restructuring of the Senate under Article 98 in at least four (4) ways. First,
Senate to consist of 94 elected members being one (1) man and one (1) woman from the 67 elected
members as currently constituted.95

Second, the BBI 2019 and 2020 Reports also recommended the adoption of a mixed-member
proportional representation (MMPR) system to ensure that composition of the Senate reflects, and
achieves gender equity in conformity to Articles 27(8), 81(b) as read with Article 96(1). 96 Fourth,
proposal to remove voting by delegation in the Senate.97

There were attempts under the Punguza Mzigo Bill to restructure the Legislature in 2019. The Bill
proposed to elevate the Senate into an Upper House with veto powers to oversight the National
Assembly (Section 3 of the Bill). However, this constitutional reform process failed to attain the
requisite constitutional threshold of the support of at least 24 counties…..98 99

7.4.2.1 Departmental Committees in the Senate in Kenya

The Kenyan Senate also has committees just like the National Assembly. Senate Committees are
divided into four (4) key thematic areas. First, the House Keeping Committees.100 These include
the Senate Business Committee, the Liaison Committee, the Procedures and Rules Committee,
and the Powers and Privileges Committee. 101 …Cf. National Assembly, County Assemblies;
Senate of Nigeria, USA…

Second, the Standing Committees including, the Agriculture, Livestock and Fisheries, Education,
Information Communication and Technology, Roads and Transportation, Energy, Finance and
Budget, Health, Justice, Legal Affairs and Human Rights, Devolution and Intergovernmental
Relations, Labour and Social Welfare, Lands, Environment and Natural Resources, National
Cohesion, Equal Opportunity and Regional Integration, National Security and Foreign Relations,

95
See Ben Sihanya (forthcoming 2023) “The Building Bridges Initiative (BBI) Report 2020, and the Constitution of
Kenya (Amendment) Bill, 2020 vis-à-vis Devolution in Afro Kenyan Constitutional Democracy….”
96
Ibid. See also Roy Lumbe (2020) “Catholics want BBI report to go through debate,” People’s Daily (PD),
Nairobi, November 13, 2020, at https://www.pd.co.ke/news/catholics-want-bbi-report-to-go-through-debate-58829/
(accessed November 21, 2020)…..
97
Under Art. 123 of the 2010 Constitution, the 47 Senators were to represent counties and were the heads of county
delegation whether the relevant county had any nominated senator or not. The BBI 2019 and 2020 Reports proposed
the restructuring of Parliament through amendment of Article 97 (Membership of the National Assembly) and Article
98 (Membership of the Senate). See Ben Sihanya (forthcoming 2021) “Restructuring the Legislative, Executive and
Judicial Structure under Building Bridges Initiative (BBI) Amendment in Kenya…..” 91 To clarify further….
98
To clarify further…
99
100
… See Parliament (2021) “The Senate Committees,” at http://www.parliament.go.ke/thesenate/committees/senate-
committees (accessed 20/3/2021).
101
….Ibid.
Page 28 of 35
and Tourism, Trade and Industrialization. 102 … Cf. National Assembly, County Assemblies;
Senate of Nigeria, USA…

Third, the Sessional Committees comprising of the County Public Accounts and Investments, and
the Delegated Legislation. And fourth, the Ad hoc Select Committees comprising of the AdHoc
Committee on Maize Crisis.103 … Cf. National Assembly, County Assemblies; Senate of Nigeria,
USA…

7.4.3 Composition of Kenya’s County Assemblies under Article 177 of the Constitution104
What is the composition of County Assemblie and relevant subnational assemblies in Kenya and
Africa? What are the relevant justification or explanations for such composition?......

The power, functions and roles of the County Assemblies generally are three, first, representation.
Second, oversight of the county executive. Third, law making. These are elaborated under Art.
177 of the Constitution 2010.

Article 177 states:

“(1) A county assembly consists of--
(a) members elected by the registered voters of the wards, each ward constituting a single member
constituency, on the same day as a general election of Members of Parliament, being the
second Tuesday in August, in every fifth year;
(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 marginalized groups, including persons with disabilities and the
youth, prescribed by an Act of Parliament; and
(d) the Speaker, who is an ex officio member.

(2) The members contemplated in clause (1) (b) and (c) shall, in each case, be nominated by political
parties in proportion to the seats received in that election in that county by each political party under
paragraph (a) in accordance with Article 90.
(3) The filling of special seats under clause (1) (b) shall be determined after declaration of elected
members from each ward.”

The Building Bridges Initiative (BBI) 2020 Report proposed nomination based on a proportional
party list system that uphold gender equity and the proportional representation system (PR).……
Generally, the composition of the County Assemblies was retained.

102
….Ibid.
103
Ibid.
104
Cf. Nigeria, South Africa, Uganda, Tanzania, UK…. To create section on structure of County Assembly
Committees…
Page 29 of 35
7.4.2.1 Departmental Committees in the County Assemblies in Kenya
There are at least three (3) types of committees in county assemblies in Kenya. 105 First, standing
committees which include sectoral committees. The term of the standing committee expires upon
the end of the term of the relevant county assembly.

Second, select committees which include housekeeping committees, statutory committees and
watchdog committees. Their mandates are provided for under the relevant County Assembly
Standing Orders. Third, there are Ad hoc committees set up for special and temporary purposes.
Their term terminates upon the conclusion of the task which they were formed to handle, and
upon the submission of their report to the county assembly.

The structure and composition of the sectoral committees may vary across different counties….
First, the County Assembly Business Committee. Second, County Public Investments and
Accounts Committee. Third, County Budget and Appropriations Committee. Fourth, County
Assembly Procedure and Rules Committee. Fifth, Committee on Delegated County Legislation.
Sixth, the Liaison Committee. Seventh, Committee on Implementation.

Others include Committees on Health, Social Welfare, Land, Public service and Administration,
House Business, Education and ICT.

7.5 Parliamentary Powers and Privileges in Afro-Kenyan Constitutional Democracy

For the purpose of the orderly and effective discharge of the business of Parliament, the
Constitution of Kenya 2010 and the Parliamentary Powers and Privileges No. 29 of 2017 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.

Article 117 of the Constitution provides that there shall be freedom of speech and debate in
Parliament. Under Section 6 (1) of the Parliamentary Powers and Privileges No. 29 of 2017, a
Member shall not be liable to arrest for any civil debt except a debt the contraction of which
constitutes a criminal offence, whilst going to, attending at or returning from a sitting of a House
of Parliament or any committee.

In 2018, Justice John Mativo ruled that Section 7 of the Parliamentary Powers and Privileges Act
(PPA), which provides immunity on proceedings or decisions of Parliament or its committees, is
unconstitutional.106 In addition, the judge quashed Section 11 of the Act which shielded Members

105
See the Model County Assembly Committees Manual (2018) at
http://www.socattkenya.org/wpcontent/uploads/2018/02/CountAssemblyCommitteesManual.pdf (accessed August 6,
2021);
106
Apollo Mboya v. Attorney General & 2 Others [2018] eKLR Petition 472 of 2017…..
Page 30 of 35
of Parliament, employees of Parliament and journalists covering the House from being served with
court orders whenever they are within its boundaries.

Members of Parliament in Kenya have been able to hide in Parliament to avoid arrest for criminal
prosecution for things they did outside Parliament. Recent criminal offences committed by MPs
in Kenya but protected under the privileges law include fighting in Parliament, 107 insults,
assault,108 defamation, among others…. For instance, in 2014, Suba North Constituency Member
of Parliament, Ms. Millie Odhiambo, accused the Gatundu South MP Mr. Moses Kuria of
assaulting and stripping her during the debates on the controversial Security Laws (Amendment)
Bill.109

Consider the proposals and debates on the Constitution of Kenya (Amendment) (No. 3) Bill of
2019 which sought to amend the Constitution so as to restrain the courts from intervening in
matters pending consideration or being proceeded with before Parliament, County Assemblies or
any other committees of either legislative body….110

Related to this was the ruling of the Court in Mwende Maluki Mwinzi v. Cabinet Secretary,
Ministry of Foreign Affairs & 2 Others (2019). The Court held that ambassadors cannot be
regarded as state officers and therefore, Ms Mwende Mwinzi could not be subject to the limitation
under Article 78(2) Constitution of Kenya, 2010 which states that any State officer or member of
the defence forces cannot hold dual citizenship.111 This requires that any appointments to state
office (Art. 260)112 are subject to this limitation.

107
Consider the case against Embakasi East member of Parliament (MP) Mr Babu Owino and Mr Charles Njagua…;
See Parliament (2018) “NACoPP Report on inquiry into the conduct of Hon Ongili and Hon Kanyi,” at
http://www.parliament.go.ke/sites/default/files/2018-
11/NACoPP%20Report%20on%20Inquiry%20into%20the%20Conduct%20of%20Hon.%20Ongili%20and%20Hon.
%20Kanyi%20November%2017%2C%202018-Final.pdf (accessed March 18, 2021; Joseph Wangui (2021) “Court
declines request to drop Babu Owino’s attempted murder case,” Business Daily, Nairobi, March 16, 2021, at
https://www.businessdailyafrica.com/bd/economy/court-declines-babu-owino-s-attempted-murder-case-3323972
(accessed March 18, 2021).
108
Moses Kuria v. Milly Odhiambo…. To discuss ….
109
See also Star Reporter (2016) “Kuria threatens to insert bottle in MP Millie,” Star, Nairobi, December 22, 2016,
at https://www.the-star.co.ke/news/2016-12-22-kuria-threatens-to-insert-bottle-in-mp-millie/ (accessed August 6,
2021).
110
…. See the Constitution of Kenya (Amendment) (No. 3) Bill of 2019.
111
Mwende Maluki Mwinzi v. Cabinet Secretary, Ministry of Foreign Affairs & 2 Others [2019] eKLR, Petition No.
367 of 2019. See also Tom Ojienda (2021) “Mwinzi rightly appointed as ambassador to South Korea,” Star, Nairobi,
February 23, 2019, at https://www.the-star.co.ke/opinion/columnists/2021-02-23-mwinzi-rightly-appointed-
asambassador-to-south-korea/ (accessed March 18, 2021); Aggrey Mutambo (2021) “Kenya's envoy to S. Korea takes
up job, settling dual nationality question,” Star, Nairobi, February 18, 2021, at
https://www.theeastafrican.co.ke/tea/news/east-africa/kenya-envoy-to-south-korea-takes-up-job-3295574 (accessed
March 18, 2021).
112
Are Ambassadors listed in Art. 260? No. Are they provided for or established as a state office by any national
legislation as stipulated by Art. 260(q). Constitution of Kenya, 2010?
Page 31 of 35
Judges are state officers but may be dual citizens under Article 78(3)(a) (citizenship and
immigration).113

Members of Parliament (MPs) had sought to bar Ms Mwende Mwinzi’s appointment as Kenya’s
Ambassador to South Korea under section 31(1) of the Leadership and Integrity Act, 2012, since
she had dual citizenship.114 Section 31(1) of the Leadership and Integrity Act, 2012 (LIA) provides
that “a State officer who acquires dual citizenship shall lose his or her position as a State officer.”

In Rogers Mogaka Mogusu v. George Onyango Oloo & 2 Others (2014), Mr. Justice Isaac Lenaola
cited the problematic sec. 52 (Application of Chapter Six of the Constitution and this Act to public
officers generally) of the Leadership and Integrity Act, 2012 (LIA), and also Justice GV Odunga
in Republic v. Attorney General & 3 Others ex-parte Tom Odoyo Oloo (2015) which states that
subject to Article 80 (legislation on leadership), Chapter 6 (Leadership and Integrity) applies to all
public officers as if they were state officers.115

Further, in Priscilla Kivuitu & Another & 22 Others v. Attorney General & 2 Others
(2015), 116 the petitioners argued that their removal from the Electoral Commission of Kenya
(ECK) under the Constitution of Kenya (Amendment) Act, 2008 was unconstitutional. The High
Court upheld the constitutionality of the Interim and Independent Electoral Commission (IIEC).
The court argued that the 2010 Kenyan Constitution recognized the IIEC as the successor to the
Electoral Commission of Kenya (ECK) in section 28 (of the Sixth Schedule (Interim Independent
Electoral Commission and Independent Electoral and Boundaries Commission)…..

Also, in Republic v. Speaker of the National Assembly & 4 Others ex-parte Edward R.O. Ouko
(2017),117 The court deliberated on the constitutionality of the process of removal of the then

113
Art. 78(3)(a) states that judges and members of commission are exempt from the application of Art. 78(1) and (2)
which limits dual citizenship for state officers.
114
Allan Kisia (2021) “Parliament in showdown with Uhuru over Mwinzi's ambassadorial appointment,” Star,
Nairobi, February 19, 2021, at https://www.the-star.co.ke/news/2021-02-19-parliament-in-showdown-with-
uhuruover-mwinzis-ambassadorial-appointment/ (accessed March 18, 2021).
115
Rogers Mogaka Mogusu v. George Onyango Oloo & 2 Others [2014] eKLR; Republic v. Attorney General & 3
Others ex-parte Tom Odoyo Oloo [2015] eKLR. Section 52 of the Leadership and Integrity Act, 2012 (LIA) is
problematized and contextualized in Prof Ben Sihanya Murumbi and ODM v. EACC & Office of the Registrar of
Political Parties & 1 Other (2020), ELRC Petition/E055/2020; and in Chapter 3 (Constitutional Values, Principles
and Policies in Kenya and Africa).
116
Priscilla Ndululu Kivuitu & Another (suing as the Personal Representatives of Samuel Mutua Kivuitu & Kihara
Muttu (deceased) & 22 Others v. Attorney General & 2 Others [2015] eKLR, Petition No. 689 of 2008.
117
Republic v. Speaker of the National Assembly & 4 Others Ex-Parte Edward R.O. Ouko [2017] eKLR, Misc. App.
No. 108 of 2017.
Page 32 of 35
Auditor-General Edward Ouko by the National Assembly in exercise of its mandate under Article
25 (removal from office). Justice GV Odunga held that the National Assembly was bound to follow
due process when carrying out quasi-judicial functions in considering the removal of former
Auditor-General Edward Ouko including, ensuring that its proceedings comply with Article 47
(fair administrative action), and section 4(3)(a) (administrative action to be taken expeditiously,
efficiently, lawfully) of the Fair Administrative Action Act, 2015 (FAA).

In 1969, a similar applicable law on parliamentary privilege could not stop two (2) members from
being arrested. Mr Martin Joseph Shikuku,118 had made a sarcastic remark in Parliament to the
effect that Kanu, the then ruling party, was “dead.”119 When other party MPs demanded that he
substantiates his allegation, the then Deputy Speaker and MP for Tinderet, Mr Jean Marie Seroney,
ruled that there was no need to substantiate what was obvious. It is reported that both Mr Shikuku
and Mr Seroney were arrested within the precincts of Parliament as a result and detained by
President Jomo Kenyatta without trial. Mr Shikuku also lost his job as an Assistant Minister.120

Like the other Chapters of CODRALKA Vols 1, 2, 3, this Chap 7 of CODRALKA 1 has
integrated the following:
- Constitutional sociology, political economy and cultural politics
- structure, agency and conjecture
- interdisciplinarity, multidisciplinary and cross disciplinarity
- HASS and STEM
- present, past (history, tradition practice or custom) and future (reforms, recommendations,
proposals) …
Emotional Intelligence (Emotional quotient (EQ, cf Intelligence Quotient (IQ), Social Quotient
(SQ), Adversity Quotient (AQ)), mental health, self-awareness, empathy, character
development (x3): development of character in psychology; development of character…trauma
v. narcissism…, behavioural therapy in Kenya and Africa.

118
Shikuku was serving his second term as the Butere MP…
119
Peter Mwaura (2008) “Why MPs cannot hide behind parliamentary privilege,” Daily Nation, Nairobi, 12/12/2008,
at https://www.nation.co.ke/oped/opinion/440808-501374-gr9t9yz/index.html (accessed 5/11/2019).
......
120
Ibid.
Page 33 of 35
 CPC ... Conceptualize, Problematize, Contextualize
3 Rs: Read, Reflect, Rest
A luta continua vitoria e certa (the struggle continues; victory is certain)

As Poet Yussuf O. Kassam says, “The drum inspired the dancers / now the dancers inspire the
drummer.”

...Let wisdom flow from and back to the Oracle’s Shrine in class, and through books, articles,
online, and in appropriate fora…

Prof Ben Sihanya, JSD (Stanford), Adv.

Scholar, Public Intellectual and Mentor, IP, Ed and Constitutional Professor and Public Interest
Advocate, Intellectual Property & Constitutional Democracy
University of Nairobi Law School, Sihanya Mentoring & Sihanya Advocates
Email: sihanyamentoring@gmail.com; sihanya@innovativelawyering.com;
info@sihanyaprofadvs.co.ke
Url: www.innovativelawyering.com

*** END*** Thu tinda! ***Wishing You Success***

...to be Continued in Semester II…

Revised March 18, 2013; October 9, 2013; October 23, 2014; 19/2/15; 16/06/2015; 10/2/2016;
11/7/2016; 12/5/2017; 6/6/2018; 7/2/19; 11/2; 24/4; 29/4; 30/4; 21/8; 26/8; 6/11; 8/11;
11/11/2019; 9/3/2020; 20/3/; 2/4/; 21/11/; 30/11/; 1/12/2020; 18/3/2021; 22/3/; 23/3/; 13/8/; 8/9/;
6/12/2021; 15/1/2023.

Page 34 of 35
Page 35 of 35