A bicameral system of governance consists of two legislative chambers that work together
to enact laws and oversee the functions of the government. In Kenya, the bicameral
Parliament comprises the National Assembly and the Senate. However, Kenya follows an
asymmetrical bicameral system, where the National Assembly wields more legislative
power than the Senate, particularly regarding financial matters. This structure is
designed to ensure efficiency in governance while balancing representation. The debate
over the Senate’s role in money Bills underscores the nuances of this asymmetry and was a
focal point in SC Petition No. 19 (E027) of 2021, where the Supreme Court provided
clarity on the matter.
The Appellants’ Argument
The appellants contended that Article 109(5) of the Constitution of Kenya, 2010, only
mandates that a money Bill originates in the National Assembly but does not explicitly bar
the Senate from participating in its consideration. They argued that Article 109(3) gives
the Senate an unrestricted mandate to engage with all Bills concerning counties, including
money Bills. According to them, where a Bill has financial implications that affect county
governments’ functions or powers, the Senate should have a role in its deliberations.
The Respondents’ Position
On the other hand, the respondents supported the Court of Appeal’s decision that the
Senate has no role in considering and enacting a money Bill. Their argument was based on
the strict interpretation of the constitutional provisions governing money Bills, particularly
Articles 109, 114, and 96(2) of the Constitution.
Analysis by the Supreme Court
In addressing this issue, the Supreme Court reviewed several constitutional provisions to
determine the extent of the Senate’s legislative mandate concerning money Bills.
1. The Definition and Legislative Procedure for Money Bills
Article 114 of the Constitution outlines the procedure for enacting money Bills. According
to Article 114(1), such Bills must exclusively address financial matters as defined in
Article 114(3), including taxation, charges on a public fund, management or allocation of
public money, borrowing, guaranteeing, or repaying loans, and related issues. However,
financial matters specific to counties, such as county-raised taxes, public funds, and loans,
are excluded.
Additionally, Article 114(2) provides that if the Speaker of the National Assembly
classifies a motion as a money Bill, the National Assembly may only proceed based on
recommendations from the relevant committee and after considering input from the
Cabinet Secretary for Finance. The Court observed that Article 114 does not mention the
Senate’s role in the legislative process of money Bills, indicating that the Constitution
deliberately excludes the Senate from their enactment.
2. The Role of the Senate Under Article 96(2)
Article 96(2) of the Constitution defines the Senate’s role in law-making as follows:
“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.”
Notably, Article 114 is absent from this provision, reinforcing the argument that money
Bills are outside the Senate’s legislative mandate.
3. Special Treatment of Money Bills
The Constitution further emphasizes the National Assembly’s exclusive jurisdiction over
money Bills in Article 109(5), which states:
“A Bill may be introduced by any member or committee of the relevant House of Parliament,
but a money Bill may be introduced only in the National Assembly per Article 114.”
The Supreme Court held that this provision explicitly removes the Senate’s power to
introduce or consider money Bills.
The Supreme Court’s Conclusion
Upon holistically interpreting the Constitution, the Supreme Court affirmed the decision of
the Court of Appeal that the Senate does not have a role in the consideration and
enactment of money Bills. The Court reasoned that this exclusion aligns with global
legislative practices and serves to maintain the efficiency of financial governance in Kenya.
Implications of the Ruling
The ruling clarifies the distinct roles of Kenya’s bicameral Parliament:
- The National Assembly retains exclusive control over money Bills, ensuring that
financial legislation is passed efficiently without conflicts between the two Houses. - The Senate, while crucial in other legislative areas, is excluded from money Bills,
maintaining the constitutional balance between the two Houses. - The decision prevents potential legislative gridlocks that could arise from Senate
interventions in financial matters, thereby promoting effective governance.
Conclusion
The Supreme Court’s ruling provides a definitive interpretation of the Constitution
regarding money Bills. It affirms that the Senate has no role in the consideration and
enactment of money Bills, reinforcing the National Assembly’s primary function in
financial legislation. This decision aligns with international best practices and ensures that
financial governance in Kenya remains streamlined and efficient.
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