Within four months of their existence, Kenya’s new political institutions are already sparring with each other. Central to the emerging tensions are the constitutional roles and hierarchical relationships between Parliament’s two chambers: the National Assembly (NA) and the newly created Senate. Beyond key disagreements over hierarchical supremacy, some MPs have even questioned the Senate’s relevance and called for its abolition. For its part, the Senate has accused MPs of ‘childish’ conduct while claiming the title of ‘Upper House’. Is this chest-thumping indicative of an emergent and functioning Kenyan democracy, design defects of the new Constitution or simply evidence of a crop of leaders bereft of a basic understanding of their constitutional roles?

For one, while the new Constitution is not faultless (but certainly not so flawed as to provoke the on-going row between the institutions), the nature of the conflicts between the two houses is certainly revealing of politicians’ level of internalisation of this document, especially with respect to who plays what role, when and how. A case in point is the recent spat between the Senate and the NA over the Division of Revenue Bill – one of two pieces of legislation crucial to the implementation of devolution, and in ensuring the smooth running of national and county governments.

At issue was the amount of national revenue allocation to be made to the county level, a determination to be made by the NA according to Article 95(4) (a) of the Constitution. The Senate, it is worth recalling, only has prerogative over how much is allocated to each county from the overall national allocation determined the NA. The two Chambers proposed different figures – the NA, KES 210 billion (Ca USD2.3 billion), and the Senate, KES 258 billion (Ca USD 2,9 billion). Unable to reach agreement, MPs, much to the chagrin of Senators invoked their constitutional primacy on the subject and with the President’s approval adopted the bill allocating KES. 210 Billion.

Awake now to the reality of the limitations of their own powers, Senators have since taken a number of measures, key amongst which is a political campaign aimed at garnering one million signatures to force a referendum to amend the Constitution. They have also moved to marshal support from County Governors and County Assembly Representatives, portraying a capital city conspiracy between the executive and MPS to undermine devolution – a key pillar of the new Constitution. What is the potential fallout of such developments for the consolidation of Kenya’s new constitutionalism?

Constitutionalism as a culture builds on a system of values that require tremendous political will from political actors in order to take root. Nurturing and strengthening these values requires a number of key elements. For instance politicians have to acknowledge the need for a reasonable measure of political competition within and among different constitutional institutions. In addition, they need to seek recourse over disagreements within a commonly agreed institutional and regulatory framework, rather than attempting to ride a populist wave. With respect to the institutional squabbles plaguing the Kenyan Parliament, Article 113 of the Constitution actually envisages such mechanisms and provides, amongst other mechanisms, a mediation committee to resolve deadlocks over contentious bills between the two Houses, which one would normally have expected the Senate to resort to in the case of the revenue allocation bill. However, in this case Articles 95 and 218 are clear that debate on the Bill is the function of the NA. Hence, any consultation with the Senate would generally be done on a voluntary basis and would not be constitutionally binding to the NA.

Senators instead chose to bypass a possible constitutionally provided-procedure in favour of calls for popular referendum to amend the Constitution. Such an approach, while potentially abusive of the referendum procedure – which should be a measure of last resort – also establishes a worrying precedent, especially if it were to succeed. Questions arise as to whether Senators would always resort to such measures where the NA does not give due regard to their suggestions in law making. The message being sent would be that if one can’t get their way within the rules, there is always mass action to resort to regardless of whether the outcome is legitimate or not. And as history teaches us, the masses too often have been just unsuspecting participants unknowingly manipulated by politicians to give legitimacy to their grand designs of deconstructing and dismantling otherwise functioning constitutional democratic systems that disfavour them. For example, in April 1993 President Boris Yeltsin took Russia into a constitutional crisis by choosing to find his way out of a long-standing battle with the legislature by calling for a referendum for early elections, which he then deemed justification for dissolving parliament and concentrating power in the Office of the President in a manner which clearly subverted the balance of powers as defined in the Constitution.

Viewed from this perspective, there is certainly cause for concern when Kenya’s Senators start acting in this manner. The Senate may well be acting within formal rules to seek a referendum on the subject, but it is arguable whether the action itself is legitimate given the likely underlying political calculations. Its attitude over this matter so far demonstrates nothing but deliberate disregard for the system of separation of powers, and checks and balances built into Kenya’s new constitutional dispensation to ensure limited government and political conduct remains within constitutional parameters. The point being made is that ours is still a young constitutional democracy barely taking its first steps. And if it must take root and grow, the rules in place must be used only in ways that enable it to develop rather than to serve short-term political interests.

It seems the current battle, however, is set to run and run.  The Senate has filed a case in the Supreme Court seeking an advisory opinion on the constitutionality of assent to the Division of Revenue Bill by the President, notwithstanding the plain language of Article 96 and 218 which would seem to indicate the Bill was passed according to the procedures laid out under the Constitution. If the proposed referendum overrules not only the constitutional rules, but also a judicial declaration of its interpretation of those rules, Kenya’s new democratic order could indeed end up playing second fiddle to politics as usual.