Sponsored by Sen. Mutula Kilonzo Jnr. and Sen. Sakaja

This Bill has been the trending subject in Senate this week. It addresses the important question “What is a bill concerning Counties?” The importance of this question cannot be over-emphasized, it is in fact a question of constitutional importance and judicial interpretation by the Supreme Court through an Advisory Opinion issued shortly after devolution was operationalized in 2013. If the bill is passed, it will introduce new layers to the lobbying environment for Bills in Parliament.

The Bill attempts to codify the advice and guidance given to Parliament by the Supreme Court in order to avoid wrangles between both Houses of parliament as well as curb incidences of Bills being assented to by the President ‘behind Senate’s back’. Senate has complained on several occasions of being by-passed or left out of the law making process for laws that affect Counties, one of the most recent being the Health (Amendment) Act 2019 assented by President Uhuru Kenyatta on May 13th 2019 without the involvement of the Senate even though Health is a devolved function under Schedule 4 of the Constitution of Kenya.

In the opinion of the Supreme Court “ with a good Speaker, the Senate should be able to find something that affects the functions of the counties in almost every Bill that comes to Parliament, making it a Bill that must be considered and passed by both Houses. ” If the Determination Of The Nature Of Bills (Procedure) Bill is passed, Businesses will be required to anticipate categorization of bills while lobbying for or against business interests in parliament. What has previously been a matter exclusively handled by the National Assembly could become a matter for both Houses. This would require either double the work (for bills that favor business interests). It would also provide a second chance to change or kill bills that are not favorable to businesses by prolonging the time it takes for the Bill to become law as well as increasing actors in the enactment processes. The Bill also creates added incentives to lobby the Speakers of both houses as the speakers are required to submit a Certificate of Joint Concurrency regarding the status of each Bill before the President Assents to any law.

The Senate Committee on Justice, Legal Affairs and Human Rights is currently auditing laws that have been passed without the input of the Senate to further demonstrate Parliament’s need for this Bill that is expected to allow a symbiotic and seamless engagement on legislative processes in both Houses. If both Houses agree on a formula to categorize Bills, this would end or at least drastically reduce fights between the National Assembly and the Senate on Bills. Such progress will continue to fast track the implementation, growth and blooming of devolution in this country and enable conducive environments for doing busin