Amend the Constitution to Give Senate Teeth

The only way to check abuse by a seemingly inept National Assembly is to amend the Constitution to have all laws pass through both The House and the Senate.

The United States of America considered the issue of the tyranny of numbers in 1787! We brushed it aside in 2010 for wholly or partly dishonourable reasons. Where were our constitutional lawyers? Our James Madisons? Our Thomas Jeffersons? Our Washingtons? Everyone is saying that Senators have very little to do. We have a son of the soil who was a celebrated US Senator before being thrown upstairs to the Presidency. He had a better legislative record than Hilary Clinton. What lessons have we learnt/can we learn from him? The abrasive former Dean of the University of Buffalo Law School has advised Kenyans to ignore the experience and advances and the measures that the US instituted for the protection of its citizens. How many attacks have Americans endured on home soil? How many times have Kenyan borders been breached by murderous bands of the likes of Al Qaeda and Al Shabaab? How badly bruised is Kenya? He should spend more time learning what Kenya can usefully borrow from the US instead of lecturing Kenyans on issues that a street kid in Lamu or Mandera or Gikomba or Mwembe Tayari has a better grip on. He would be putting his lengthy stay (almost 30 years) far from events at home to better use.

Let me explain. When we agreed to have a bicameral legislature we do not appear to have considered the true reason for having a bicameral parliament. When George Washington was asked by Thomas Jefferson why they should have a Senate his response was couched in a simile to point out the differences between the House of Representatives and the Senate. The two Founding Fathers are said to have argued while drinking coffee. Suddenly, Washington asked Jefferson, “Why did you pour that coffee into your saucer?”

“To cool it,” replied Jefferson.

“Even so,” said Washington, “we pour legislation into the Senatorial saucer to cool it.”

We borrowed the American system but not its useful ways and traditions. More importantly we do not appear to have delved into the philosophy underlying their adoption of that system. Part of the reason why Washington wanted a bicameral system with the positive vote of both required to pass legislation, was a natural extension of the Founders concept of employing "checks and balances" to prevent tyranny.

Any observer of debates in the House of Representatives will tell you that many a time they pass a Bill within one day. The Senate takes weeks deliberating on the same Bill. The Founding Fathers did not intend that the House and Senate should be carbon-copies of each other. The inbuilt differences ensure that all legislation would be carefully considered, ‘taking both the short and long-term effects into account.’

In our case, the House members are elected by and represent limited groups of citizens living in small geographically defined constituencies within each county. Senators, on the other hand, are elected by and represent all voters of their county. When an MP considers a bill, the member tends to base the vote primarily on how the bill might impact the constituents, while Senators tend to consider how the bill would impact the nation as a whole.

That is what happened the other week and will happen again and again unless we provide the necessary cooling conduit.

The reason why the MPs view the Senate as being inferior is borne of ignorance. The large number of MPs representing smaller electorates is meant to ensure that, as their advocates in Nairobi, they are close to the people and are therefore aware of their opinions and needs. But the Senators are supposed to be a little insulated from the people and therefore less likely to fall to the temptation to vote according to the short-term passions of public opinion. Thus providing the cooling off or checks and balances that George Washington talked of and which we are all clamouring for now.

The Senate with its much fewer numbers would be more likely to consider the long-term effects of legislation and practice a more mature, thoughtful and deeply interrogative approach in their deliberations.
Only then will MPs’ rushed Bills be tempered by the Senatorial Saucer. And only then will Justice Ringera’s words ring true that the Legislature is ‘a conclave of wise men and women.’

By Gerald Kithinji | gkithinji@yahoo.co.uk