UNIVERSITY OF NAIROBI
FACULTY OF LAW
DEVOLUTION LAW: GPR 446
CONTINUOUS ASSESSMENT TEST
NAME: WANGILA RAY VICTOR
REG NO: G34/2866/2018
Question
"Scrap Senate, Kill Devolution" Anon. Examine the above statement in light of the
devolved system of government in Kenya.
Introduction
Kenya's devolved government system was established in 2010 with the adoption of a new
Constitution1 intended at addressing historical inequalities, promoting inclusive governance, and
fostering regional development2. The system established 47 counties3, each with its own political
structure, and devolved major power, resources, and duties from the central government to
regional or local governments. The Senate, which represents county interests and safeguards
devolution, is one of the fundamental institutions of the devolved system. However, there have
been attempts to abolish the Senate and devolve power4. This essay discusses the arguments
against abolishing the Senate and eliminating devolution, as well as the probable consequences
of such a move for Kenya's governance structure and democratic growth.
Devolution is a system of government established by Kenya's 2010 Constitution that
decentralizes power and resources to 47 county governments. The sharing of functions between
national and county governments, the allocation of funding, and the construction of county
assemblies and executive committees are major components of devolution5.
The Senate, on the other hand, is the upper house of Parliament whose responsibility includes
devolution protection, county interest representation, and control of national revenue allocation
1
Constitution of Kenya 2010
2
Kanyinga, Karuti. “Devolution and the New Politics of Development in Kenya.” African Studies Review 59, no. 3
(2016): 155–67. https://www.jstor.org/stable/26410250.
3
Ibid n 1, Art 6(1), First Schedule
4
Kenya: MPs plot to abolish Senate (May 25, 2013). Available at https://allafrica.com/stories/201305291329.html
Accessed on May 15, 2023
5
Constitution of Kenya 2010, Art. 174.
to counties. The Senate has the authority to pass devolution measures and approve the
nomination of county officials6
In Kenya, the appeal to "Scrap Senate, Kill Devolution" runs counter to the fundamental values
of democracy, equitable resource distribution, and decentralized governance. The Kenyan
Constitution of 2010 expressly provides for the devolution of power and resources to counties7.
The Senate is a vital institution in providing effective monitoring and accountability in county
governments' use of public resources8.
.
The County Governments Act9 specifies the Senate's powers and functions, which include
control of county governments, approval of county legislation, and income delivery to county
governments. The Act also establishes the County Revenue Fund, which is a vital instrument for
guaranteeing equal resource distribution to counties10.
In any democratic society, representation and inclusivity are critical components. The Kenyan
Constitution of 2010 recognizes this fact and establishes the Senate to ensure that all Kenyans
are represented in the legislative process. According to Article 97(1) of the Constitution, the
Senate shall be composed of 47 members, each elected by the registered voters of the respective
counties, with each county represented by one male and one woman. This assures that both
genders are represented equally in the Senate, as well as that each county is represented equally.
As provided for in Article 98(1) of the Constitution, the Senate is also responsible with
preserving the interests of marginalized groups, such as those with disabilities.
In any democratic society, checks and balances are also vital. Kenya's Constitution establishes a
separation of powers between the three branches of government: the Executive, the Judiciary,
6
Constitution of Kenya 2010, Art. 174.
7
Constitution of Kenya 2010, Article 174-178
8
Constitution of Kenya 2010, Article 96.
9
County Governments Act No. 17 of 2012.
10
Ibid. Section 106
and the Legislature. According to Article 109(1) of the Constitution, the Senate functions as a
check on the powers of the National Assembly. The Senate has the authority to reject any law
passed by the National Assembly or to amend such bills. This ensures that no one branch of
government wields too much authority and that there is a good balance of power among the
many branches of government.
Another key part of devolution is local empowerment. The County Governments Act delegated
tasks and authorities from the national government to county governments. This guarantees that
local communities have a role in how they are governed, and that decisions are made at the local
level, by individuals who are familiar with the unique issues that their communities face.
Devolution also guarantees that resources are dispersed evenly across the country, as Article
203(1) of the Constitution requires.
Finally, accountability is essential in any democratic society. The Senate acts as an oversight
body, holding the national government and other public organizations accountable for their
actions. The Senate has the authority to invite anyone to appear before it, to investigate any topic
of public interest, and to make recommendations to the national government on any matter
falling under its purview.
In conclusion, abolishing the Senate and eliminating devolution would jeopardize the
constitutional goals of representation and inclusivity, checks and balances, local empowerment,
and accountability. All of these are key components of a democratic society, and they are
incorporated in Kenya's 2010 Constitution and the County Governments Act. It is critical that
these provisions are followed in order for Kenya to remain a democratic and egalitarian nation.
