An Act of Parliament to give further effect to the procedures relating to matters of bicameral nature between the houses of Parliament as contemplated in chapter eight of the Constitution.
| PROPOSED PROVISION FOR AMENDMENT | PROPOSED AMENDMENT | OUR COMMENTS |
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| PART I – PRELIMINARY | ||
Clause 2 Interpretation | “Bill not concerning county governments” means a Bill: a. containing provisions affecting the exclusive functions and powers of the national government under part 1 of the fourth schedule to the Constitution; b. containing provisions relating to a function or power not assigned by the Constitution or national legislation to a county government; or c. containing provisions that are incidental to the effective exercise of a function or power of the national government under part 1 of the fourth schedule to the Constitution. | This definition outlines various categories of Bills that are considered only in the National Assembly and passed in accordance with article 122 of the Constitution. |
“Clerk” means the clerk of the National Assembly or the Senate. | This definition ensures that any mention of "clerk" is clearly understood to refer specifically to the Clerk of either the National Assembly or the Senate, eliminating any ambiguity present in the Bill. |
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“Houses of Parliament” means the National Assembly and the Senate. | This definition seeks to align the Bill with the provisions of article 93(1) of the Constitution which indicates that the Parliament of Kenya shall consist of the National Assembly and the Senate. |
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“Speaker” means the Speaker of the National Assembly or Senate. | This definition seeks to align the Bill with the provisions of articles 97(1)(d) and 98(1)(e) of the Constitution which indicate that both houses of parliament will have a speaker who shall be an ex-officio member. |
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Clause 3 Objects of the Act | The objects of this Act are to: a. provide a seamless framework for the manner of conducting matters of bicameral nature; b. provide for the publication in the Gazette of all Bills to be introduced in either of the houses of Parliament pursuant to article 109(4) of the Constitution; c. provide for the enacting formula to be included in all Bills and Acts passed by houses of Parliament; d. outline the Bills on which no question can arise or joint resolution by the Speakers under article 110(3) of the Constitution; e. outline the manner in which a question can arise for resolution by the speakers under article 110(3) of the Constitution; f. define what constitutes consideration of a Bill for purposes of article 110(3) of the Constitution; g. provide for the manner of jointly resolving a question that arises on a Bill under article 110(3) of the Constitution; h. outline what constitutes a Bill not concerning county governments as contemplated by the Constitution for purposes of article 109(3) of the Constitution; i. provide for the mode of originating and considering a money Bill as contemplated under article 109(5) of the Constitution; j. provide a framework for the conduct of joint processes including: i. the conduct of a joint sitting of Parliament under article 107(2) of the Constitution; ii. the procedure applicable to the chairing, quorum, voting and timelines in respect of a mediation committee established under article 113 of the Constitution; iii. facilitation of public participation under article 118 of the Constitution; and iv. establishment and the procedure applicable to a joint committee under article 124(2) of the Constitution; and k. provide a framework for amicable resolution of disputes arising from the discharge by the houses of Parliament their respective functions. | Establishing a clear framework for bicameral relations ensures smooth coordination between the houses of Parliament. This reduces delays and enhances legislative efficiency. Secondly, mandating the publication of Bills in the Gazette ensures transparency, allowing the public and relevant stakeholders to stay informed and participate in the legislative process. Thirdly, the use of a standard enacting formula enhances uniformity and clarity in the way Bills are drafted. Fourthly, providing a framework for amicable resolution of disputes ensures that conflicts between the houses of Parliament are resolved constructively, maintaining a cooperative legislative environment. Fifthly, ensuring public participation in legislative processes enhances democratic engagement, making the legislative process more inclusive and reflective of public opinion. Further, this proposal aligns the Bill with the provisions of article 118 of the Constitution. By clearly stating the objects of the Bill, it helps in interpreting and understanding its provisions. Further, objects ensure that the Bill is effectively implemented, applied consistently and aligned with its intended purposes. |
PART II – PUBLICATION AND ENACTING FORMULA | ||
Clause 4 Publication of Bills | A Bill to be introduced by any member or committee of a house of Parliament pursuant to article 109(5) of the Constitution shall be published in the Gazette in such a manner as may be specified in the Standing Orders of the respective house. Where a request is submitted to the Government printer by the respective clerk for the publication of a Bill under subsection (1), the Government Printer shall cause to be published in the Gazette the Bill within a period not exceeding seven days after the date of receipt of the request. | Publishing Bills fosters open dialogue about Bills. Citizens can discuss the merits and potential drawbacks of the legislation with each other and with their elected representatives. This transparency ensure that laws reflect the will of the people. Secondly, the addition of sub-clause (2) is a good proposal. It ensures that Bills are published in the Gazette within a prescribed period without delays. |
Clause 5 Publication of Acts | A Bill passed by both houses of Parliament or by the National Assembly under article 109(3) of the Constitution shall be published in the Gazette as an Act of Parliament in accordance with article 116(1) of the Constitution. A Bill passed by both houses of Parliament or by the National Assembly under article 109(3) of the Constitution, shall be styled “An Act of Parliament” and the words of enactment shall be “Enacted by the Parliament of Kenya”. | Publishing Acts of Parliament in the Gazette formally recognizes them as the law of the land. This official publication serves as a public record and a central source for accessing the complete and final version of the enacted legislation. Secondly, publishing in the Gazette ensures that the public is informed about new laws and amendments, promoting transparency in governance. Thirdly, the addition of the words “Enacted by the Parliament of Kenya” in sub-clause (2) is a good proposal that seeks to differentiate a Bill from an Act of Parliament that has been passed by the relevant house of Parliament. |
PART III – JOINT RESOLUTION OF A QUESTION UNDER ARTICLE 110(3) OF THE CONSTITUTION | ||
Clause 6 Notification of question arising | A question under article 110(3) of the Constitution may arise in the manner provided for under this Part. Whenever a Bill is published in the Gazette, in accordance with section 4 of this Act, a speaker may, subject to section 7 and at any time before the period specified for the Second Reading of such Bill in the Standing Orders of the respective House, become seized of a question as to whether the Bill concerns county governments. Whenever the speaker becomes seized of a question under subsection (2), the speaker shall as soon as is practicable, notify the speaker of the second House of the question. The notification under subsection (3) shall be in the form set out in the First Schedule. In determining whether a question has arisen under Article 110(3) of the Constitution, a speaker shall for the purposes of subsection (2): a. consider the Bill’s true purpose, intent and legal effect; b. examine the contents of the Bill and the memorandum of objects and reasons to ascertain its inherent nature; c. consider whether the Bill falls under the exclusive mandate of the National Assembly pursuant to article 109(3) of the Constitution; and d. consider whether the provisions of the Bill specifically affect the functions and powers of county governments set out in the Fourth Schedule to the Constitution. | We propose the addition of timelines in sub-clause (3). This proposal ensures that the speaker of the second house is notified of the question within a prescribed period without delays. Secondly, the addition of a notification template in sub-clause (4) is a good proposal. A template provides a standard format that is easy to understand and use. Further, the use of a template enhances uniformity. |
Clause 7 Bills on which no question can arise for joint resolution | The provisions of section 6 shall not apply to: a. a Bill to amend the Constitution as provided for under article 255, 256 and 257 which is considered by both Houses; b. a Bill relating to the election of members of a county assembly or a county executive under article 110(1)(b) of the Constitution which is considered by both houses; c. the annual County Allocation of Revenue Bill provided for under article 218 of the Constitution which is considered by both houses; d. an Appropriation Bill as provided for under articles 95(4)(b), 221, 222 and 223 of the Constitution which is considered only by the National Assembly; e. a Finance Bill introduced pursuant to articles 95(4)(c), 114, 209(1), 210 and 221(1) of the Constitution which is considered only by the National Assembly; f. any Bill providing for taxation and other revenue raising powers of the National Government introduced pursuant to the provisions of Part 3 of Chapter Twelve of the Constitution which is considered only by the National Assembly; and g. a Bill not concerning county governments which pursuant Article 109(3) of the Constitution is considered only in the National Assembly and passed in accordance with article 122 and the Standing Orders of the Assembly. | This clause provides a list of various Bills where a question as to whether a Bill concerns county governments will not arise. |
Clause 8 Consideration of a question arising | Upon receipt of a notification of a question under section 6(3), the Speaker of the second house shall within a period not exceeding seven days, consider the question raised. Upon consideration of the question, the Speaker may: a. agree with the question as raised; and b. disagree with the question as raised. | For sub-clause (1), the addition of timelines is a good proposal as it ensures that the speaker of the second house considers the question raised within a prescribed period without delays. |
Clause 9 Agreement over the question raised | Whenever a speaker of the second house agrees with the question raised as contemplated under section 8(2)(a), the speaker shall prepare and transmit a Certificate of Joint Resolution in duplicate, for endorsement by the speaker of the originating house. Upon receipt of a Certificate of Joint Resolution on a question as to whether a Bill concerns counties, the Speaker of the originating House shall, as soon as is practicable indicate their resolution and convey a copy of the Certificate to the Speaker of the second House. The Certificate of Joint Resolution shall be in the form set out in the Second Schedule and shall be deemed to be evidence of the resolution of the particular question. | We propose the addition of timelines in sub-clause (2). This proposal ensures that the speaker of the originating house endorses the Bill concerning counties within a prescribed period without delays. The addition of sub-clause (3) is a good proposal. The Certificate of Joint Resolution serves as formal evidence that the speaker of the second house of Parliament has determined that the Bill concerns county governments. |
Clause 10 Disagreement over the question raised | Whenever the speaker of the second house disagrees with the question raised as contemplated under section 8(2)(b), the speaker shall immediately refer back the question to the speaker of the originating house for reconsideration noting the specific clauses of the Bill subject to the disagreement and the specific reasons for the disagreement. If the speaker of the second House refers a question back to the speaker of the originating house speaker for reconsideration, the speaker of the originating house may, following the appropriate procedures asset out under the respective Standing Orders: a. cause the Bill to be modified taking into account the observations and recommendations of the speaker of the second House; or b. further disagree with the observations and recommendations of the speaker of the second house on the question. If the originating speaker causes the Bill to be modified to accommodate the observations and recommendations of the speaker of the second house, the question shall be deemed to have been resolved for purposes of article 110(3) of the Constitution. The speaker of the originating House shall notify the house on the modification of the Bill and the procedure for its consideration as modified. Where the speaker of the originating House further disagrees with the observations and recommendations of the speaker of the second house on the question, the provisions of section 11 shall apply. | For sub-clause (2), we propose the deletion of the word “speaker” appearing after the word “House”. This proposal seeks to correct the grammatical error present in this sub-clause. By referring a question back to the speaker of the originating house for reconsideration, it ensures that the recommendations of the speaker of the second house is thoroughly examined. This thorough scrutiny leads to the identification and rectification of potential issues in the Bill. . |
Clause 11 Conciliation in the event of disagreement | Where the speakers are unable to jointly resolve a question arising under article 110 of the Constitution, the speakers may: a. refer the Bill to its sponsor for further directions; b. jointly appoint any person or body of persons to make such recommendations within seven days on the way forward as may be appropriate. Where the speakers of the houses of Parliament are unable to reach a joint resolution on a question after invoking the provisions of sub-section (1), the originating house may proceed with the consideration of the Bill notwithstanding the disagreement. | This clause prevents legislative deadlock by providing specific mechanisms to resolve disputes between the two houses of Parliament in an orderly manner. For sub-clause (1)(a), referring the Bill back to its sponsor allows for reconsideration, revision or clarification of any issues raised. This directly addresses the concerns that led to the disagreement. For sub-clause (1)(b), the seven-day timeframe for providing recommendations ensures that disputes between the two houses of Parliament are resolved promptly, preventing unnecessary delays in the legislative process. For sub-clause (1)(b), bringing in external viewpoints helps in identifying solutions that may have been overlooked, leading to more comprehensive resolutions. |
Clause 12 Consideration of money Bills | A money Bill or motion shall be introduced only in the National Assembly in accordance with article 114 of the Constitution. If, in the opinion of the Speaker of the National Assembly, a motion makes provision for a matter listed in the definition of “a money Bill”, the Assembly shall, pursuant to Article 114(2) of the Constitution proceed only in accordance with the recommendation of the relevant Committee of the Assembly after taking into account the views of the Cabinet Secretary responsible for finance. Where the matter under consideration under subsection (2) relates to a Bill or motion originating from the Senate, the relevant committee of the Assembly may recommend that: a. the Bill or motion be not proceeded with by the Assembly for want of compliance with the procedure set out in articles 109(5) of the Constitution; b. the relevant departmental committee of the Assembly is at liberty to take up the origination of the Bill or motion in question in co-sponsorship with the Senator who sponsored the Bill or motion and the process of consideration of the Bill be deemed to begin afresh in the Assembly pursuant to the provisions of article 109(5) of the Constitution. | For sub-clause (2), we propose the addition of the word “National” immediately before the word “Assembly”. This proposal enhances clarity by correcting the omission present in this sub-clause. For sub-clause (2)(a), we propose the deletion of the word “articles” and replacing it with the word “article”. The rationale for this is that sub-clause (2)(a) is referring to a single article of the Constitution. We propose the deletion of sub-clause (3). Article 114 of the Constitution does not contain provisions on Bills or motions originating from the Senate. |
Clause 13 Co-sponsorship of Bills | Where a member in charge of a Bill intends to co-sponsor a Bill with a member of the other house, the member shall include in the memorandum of objects of the Bill a statement indicating the name of the member of the other House who shall be in charge of the Bill upon its passage of the Bill by the originating House. The relevant clerk, shall upon passage of the Bill under paragraph (1), forward a certified copy of the Bill, signed by the clerk and endorsed by the speaker, to the clerk of the other House together with a message: a. requesting the consideration of the Bill by the other House in accordance with the respective Standing Orders; and b. notifying the other house of the name of any member of the house nominated to co-sponsor the Bill. This section shall not apply to a Bill which, in terms of Article 109(3) of the Constitution, is considered only in the National Assembly. | Specifying a co-sponsor fosters collaboration between members of both houses of Parliament. This leads to a more comprehensive Bill that addresses the concerns of both houses of Parliament. |
| PART IV – CONDUCT OF JOINT PROCEEDINGS AND COMMITTEES | ||
Clause 14 Mediation committees | If one house passes an ordinary Bill concerning county governments, and the second house: a. rejects the Bill, it shall be referred to a mediation committee appointed under article 113 of the Constitution; or b. if after the originating house has reconsidered a Bill referred back to it under article 112(l)(b) of the Constitution, that house rejects the Bill amended, the Bill shall be referred to a mediation committee under article 113 of the Constitution. The speakers of both houses shall appoint a mediation committee consisting of equal numbers of members of each house, to attempt to develop a version of the Bill that both houses will pass. The quorum of a mediation committee shall be a third of its members from the National Assembly and third of its members from the Senate. The chairperson and vice-Chairperson of a mediation committee shall be appointed by the majority of the Members of the committee present at its first meeting. The chairperson and the vice-chairperson of a mediation committee shall not be members of the House. Unless a decision is reached by consensus, any vote to be taken in a mediation committee shall be by separate houses. The report of a mediation committee on a Bill prepared in terms of article 113 of the Constitution shall be laid on the table of each house by a member of the mediation committee authorized by the committee in that behalf. Where the report of a mediation committee includes an agreed version of the Bill in terms of article 113(2) of the Constitution, the houses shall consider the report of the mediation committee and the houses shall vote to approve or reject the report of the committee. Where the report of a mediation committee is to the effect that the committee has failed to agree on a version of the Bill or where the mediation committee fails to agree on a version of the Bill within thirty days from the date the Bill was referred to it, the Bill shall stand defeated in terms of article 113(4) of the Constitution. | By involving members from both houses of Parliament, the mediation committee can draw on a broader range of expertise and perspectives, potentially leading to higher-quality legislation that addresses concerns from multiple angles. Secondly, a decision by consensus ensures that the Bill undergoes rigorous scrutiny. This thorough review process helps identify and rectify potential flaws and ambiguities in the Bill. Thirdly a mediation committee can be a forum for innovative problem-solving, as members bring diverse ideas and perspectives to the table. This can lead to creative and effective solutions that might not emerge in a single-house debate. |
Clause 15 Joint committees | The Houses may, by resolution establish committees to be designated as joint committees of Parliament stating the mandate and objects of such committee and the number of members to be appointed to the committee. A joint committee of Parliament shall comprise of an equal number of members of the National Assembly and Senators. The quorum of a joint committee shall be a third of its members from the National Assembly and a third of its members from the Senate. Unless a decision is reached by consensus, any decision by the committee shall be by resolution supported by at least two-thirds or more of all the members of the committee. | Ensuring an equal number of members from both houses of Parliament guarantees that both houses have an equal voice. This balance reflects the interests and perspectives of both houses, promoting fair and equitable decision-making. Secondly, joint committees foster collaboration between the two houses of Parliament. By working together, members can better understand each other's viewpoints and work towards common goals, leading to a more harmonious legislative process. Thirdly, with members from both houses of Parliament, a joint committee benefits from a broader range of experiences and expertise. This diversity can lead to more comprehensive and well-rounded discussions and decisions. |
Clause 16 Joint sittings of committees | A committee of one house may hold a joint sitting with the corresponding committee of the other house to deliberate on matters of mutual interest and concern. The National Assembly and the Senate shall, upon commencement of this Act prescribe under their respective Standing Orders joint rules for the conduct of the sittings under subsection (1). In the absence of the rules under subsection (2): a. the Houses may, on a motion, prescribe rules for the conduct of a proposed joint sitting by committees of the Houses; b. the Speakers may issue joint guidelines for the conduct of a proposed joint sitting by committees of the Houses. | For sub-clause (2), we propose the deletion of the words “National Assembly and the Senate” and replacing it with the words “houses of Parliament”. The term “houses of Parliament” has been defined in clause 2 of the Bill to refer to the National Assembly and the Senate. By bringing together corresponding committees from both houses of Parliament, joint sittings can streamline the decision-making process. This helps to avoid duplication of efforts and ensures that both houses are on the same page regarding important issues. Thirdly, combining the expertise and knowledge of members from both houses of Parliament allows for more thorough and comprehensive deliberations. Diverse viewpoints and experiences contribute to a more well-rounded discussion and better-informed decisions. |
Clause 17 Joint sittings of Parliament | Pursuant to article 107(2) of the Constitution, at a joint sitting of the houses of Parliament, the Speaker of the National Assembly shall preside, assisted by the Speaker of the Senate. At any joint sitting of the Houses, the Standing Orders of the National Assembly shall apply with such modifications and variations as the Speaker of the National Assembly may consider necessary or appropriate. The Speakers of the houses of Parliament shall enforce any directions given during a joint sitting in relation to the conduct of a member of Parliament in accordance with the applicable provision of the National Assembly Standing Orders. | Joint sittings make more efficient use of time and resources by reducing the need for separate meetings on the same issues. This can lead to quicker resolution of matters and more effective use of parliamentary resources. Secondly, joint sittings encourage collaboration between the two houses of Parliament, fostering a cooperative environment. This collaboration leads to more comprehensive and well-rounded legislation, as members share diverse perspectives and expertise. |
Clause 18 Address of Parliament by visiting dignitaries | The speakers of the houses of Parliament may in consultation with the Leaders of the Majority Party and the Minority Party, arrange for a joint sitting of Parliament for purposes of an address by a visiting Head of state or dignitary. | The address by the visiting leader can spark national dialogue on important issues. It can provide a fresh perspective and potentially lead to new ideas or collaborations between the two countries. |
PART V – MISCELLANEOUS | ||
Clause 19 Public participation process | Each house of Parliament and its committees shall facilitate public participation under article 118 of the Constitution. The public participation under subsection (1) shall be conducted through any of the following: a. inviting submission of memoranda; b. holding public hearings; c. consulting relevant stakeholders in a sector; or d. consulting experts on technical subjects. A committee of a house of Parliament shall have a broad measure of discretion in conducting public participation on a matter referred for its consideration and shall: a. endeavour to avoid duplication of any related exercise conducted on the matter; b. embrace modem means of engagement, including the use of information communication technology; c. give reasonable notice of the exercise and afford the public a reasonable opportunity to participate; d. adopt a clear and simple medium of engagement with wide reach for the exercise; e. target specific stakeholders, where appropriate; f. ensure reasonable access and participation of persons with disabilities in the exercise; and g. maintain a record of the submissions received from the exercise. When a Bill under article 109(4) of the Constitution has been passed in one house, the clerk shall forward a certified copy of the Bill, signed by the clerk and endorsed by the Speaker, to the clerk of the other House together with the public participation report on the Bill. A committee of one house may hold a joint public participation exercise with the corresponding committee of the other House. In considering a Bill or a matter on which a committee of a house of Parliament has conducted public participation, a committee of the second house may: a. elect not to undertake a similar exercise and rely on the findings of the committee of the first house; or b. seek additional views on the Bill or matter: i. with respect to substantive amendments made to a Bill during its consideration; ii. from persons or stakeholders who did not participate in the exercise conducted in the first House; iii. from persons or stakeholder whose submissions were not taken into account by the first house. A committee of Parliament shall consider the views received from public participation broadly. An Act of Parliament is not invalid on account of the failure to incorporate any view submitted during public participation. | This is a good proposal as it seeks to align the Bill with the provisions of article 118 of the Constitution. |
Clause 20 Use of an alternative dispute resolution mechanism to resolve disputes | Before formally declaring the existence of a dispute between the houses of Parliament, the houses of Parliament shall, in good faith, make every reasonable effort and take all necessary steps to amicably resolve the matter by initiating direct negotiations with each other through an intermediary. Where the negotiations under subsection (1) fail, the leadership of a house of Parliament may formally declare a dispute by referring the matter for resolution by the speakers of the Houses. Within twenty-one days of the formal declaration of a dispute, the speakers of the houses of Parliament shall convene a meeting inviting the leadership of the houses or their designated representatives: a. to determine the nature of the dispute, including: i. the precise issues in dispute; and ii. any material issues which are not in dispute; and b. to: i. identify the mechanisms or procedures, other than judicial proceedings, that are available to the parties to assist in settling the dispute; or ii. agree on an appropriate mechanism or procedure for resolving the dispute, including mediation or arbitration. A party in court shall demonstrate that all efforts of amicably resolving a dispute between the houses of Parliament under this section have failed. | We propose the deletion of this clause and replacing it with a clause mandating a dispute between the houses of parliament to be resolved using alternative dispute resolution (“ADR”) methods. This clause only provides for negotiations and resolution by the speakers of the houses as modes of resolving disputes. Secondly, the use of ADR is a good proposal as it aligns this clause with the provisions of article 159(2)(c) of the Constitution. Further, ADR focuses on finding solutions that are mutually acceptable to the parties. |