Role and Functions of the Senate in Kenya

The role of the Senate in Kenya is pivotal in the country’s legislative framework, complementing the work of the National Assembly.

Established under the 2010 Constitution, the Senate is tasked with safeguarding the interests of Kenya’s counties and ensuring that their concerns are addressed within the national legislative process.

Its functions extend beyond legislative duties, encompassing crucial aspects of oversight and representation. As a chamber designed to reflect and protect the diversity of Kenya’s devolved system of government, the Senate is instrumental in shaping policies that impact both county and national levels.

This article explores the core functions of the Senate, highlighting its contributions to legislation, oversight, and the equitable distribution of resources at the national and the county level.

Membership and composition of the Senate

The membership and composition of the Senate in Kenya are as follows–

47 elected Members of Parliament (or Senators) representing the counties;
16 MPs or Senators based on 16 special seats set aside for women. Political parties nominate these members according to their proportion of elected members in the House;
Four special seats (are) set aside for the youth and persons with disabilities. A man and a woman shall represent the youth, and another man and woman shall represent the persons with disabilities;
The Speaker, who is an ex officio member of the Senate.

Therefore, the Senate shall have a total of 67 members, excluding the Speaker.

The role of the Senate in Kenya

The functions of the Senate in Kenya mostly relate to the Counties and to laws that touch on the Counties.

The Senate in Kenya derives its legislative authority from the people of the Republic of Kenya. It manifests the diversity of the nation, represents the will of the people, and exercises their sovereignty.

The Senate shall protect the Constitution and promote the democratic governance of the Republic.

Article 96 of the Kenyan Constitution states the role of the Senate in Kenya as follows–

considering, debating and approving bills concerning Counties;
determining the allocation of national revenue that goes to the Counties;
exercising oversight authority over the national revenue allocated to the County Governments;
exercising oversight over State Officers. It considers and determines any resolution to remove the President or the Deputy President from office.

Therefore, the Senate in Kenya plays a collective role in representing the counties. It shall protect the interests of the counties and county governments.

Arguably, the most important role of the Senate in Kenya is revenue sharing. This is a function that involves both the vertical sharing and the horizontal sharing of revenue. The vertical sharing of revenue is a joint function between the Senate and the National Assembly.

Once every five years, the Senate shall determine the basis for sharing the equitable share among the counties (Article 217 of the Constitution). The Senate can amend the revenue-sharing formula anytime within those five years.

The function of approving the formula is a joint function with the National Assembly. The Senate shall seek also the approval of the National Assembly to amend the formula.

The Division of Revenue Act determines the vertical sharing of revenue. The County Allocation of Revenue Act determines the revenue each county shall receive (horizontal sharing). (Article 218 of the Kenyan Constitution)

Through horizontal sharing, the Senate determines the amount of money each county receives from vertical sharing.

Oversight of revenue expenditure by counties (Oversight)

After the counties spend the equitable share, the Senate has to ensure that the expenditure is prudent. Therefore, it has to keep the county governments accountable to enhance transparency and fiscal discipline.

It performs the oversight role by adopting and acting on reports from the Controller of Budget and the Auditor General. These reports relate to county budget expenditure.

The Controller of Budget (COB) reports and reviews the county expenditure every financial quarter (3 months). The reports shall come out within one month after the end of every financial quarter. You can find these reports on the Controller of Budget’s website(External Link).

The Auditor-General reports are audit reports of the county expenditure that shall come out within six months after the end of every financial year (in December).

The Senate’s oversight role is limited to the national revenue allocated to Counties.

See the following articles to learn more about these reports–

As a result, the Senate issues summons periodically to governors and other county executive officials. They appear before the respective Senate Committees. The purpose of the summons is to provide information or evidence on revenue expenditure based on these reports.

However, the Senate’s oversight role is limited to the national revenue allocated to Counties. It cannot oversee other sources of county revenue, which is the role of the County Assembly.

Making laws that are important to counties (Legislation)

The Senate also formulates laws that are crucial to the counties. It shall consider, debate and approve bills that concern counties. A “Bill concerning county government” means a Bill–

containing provisions affecting the functions and powers of the county governments set out in the Fourth Schedule;
relating to the election of members of a county assembly or a county executive; and
referred to in Chapter Twelve affecting the finances of county governments.

A Bill concerning county governments can be a special bill or an ordinary bill.

Ordinary and special bills

A Bill is a special Bill to consider under Article 111 of the Kenyan Constitution if–

it relates to the election of members of a county assembly or a county executive; or
it is the annual County Allocation of Revenue Bill referred to in Article 218 of the Constitution.

The National Assembly may amend or veto a special Bill that originates from the Senate. However, this is only possible by a resolution of at least two-thirds of the members of the Assembly.

If the resolution fails to pass, the Speaker of the Assembly, within seven days, shall refer the Bill, in the form the Senate adopted, to the President for assent.

A Bill is an ordinary Bill if the Senate considers it under Article 112 of the Kenyan Constitution. This bill concerning county governments can originate from either the National Assembly or the Senate.

If one House passes an ordinary Bill concerning counties, and the second House–

rejects the Bill, it shall be referred to a mediation committee appointed under Article 113 of the Kenyan Constitution; or
passes the Bill in an amended form, it shall be referred back to the originating House for reconsideration.

If, after the originating House has reconsidered a Bill referred back to it, that House–

passes the Bill as amended, the Speaker of that House shall refer the Bill to the President within seven days for assent; or
rejects the Bill as amended, the Bill shall be referred to a mediation committee under Article 113 of the Kenyan Constitution.

Ensuring the integrity of the public office

This role of the Senate in Kenya is also about oversight. The Senate determines the integrity of public office by impeaching the President and his deputy.

Here is the procedure to impeach the president and to impeach the deputy president respectively.

In determining the impeachment of the President and his Deputy, the Senate in Kenya follows–

Article 145 of the Constitution; and
Standing Order numbers 66 and 67 of the Senate.

In addition, it determines the removal of Governors from office as part of its oversight role–

according to Article 181 of the Constitution;
Section 33 of the County Governments Act; and
Standing Order number 68 of the Senate.

Article 106(2) (c) of the Constitution also gives the Senate the power to remove the Speaker or the Deputy Speaker from office if it passes a resolution supported by at least two-thirds of its members.

Therefore, in summary, the role of the Senate in Kenya is the representation of the people, legislation, and oversight.