National Parliaments: Kenya

February 2017

The Law Library of Congress, Global Legal Research Center

(202) 707-6462 (phone) • (866) 550-0442 (fax) • law@loc.gov • http://www.law.gov
 This report is provided for reference purposes only.
It does not constitute legal advice and does not represent the official
opinion of the United States Government. The information provided
reflects research undertaken as of the date of writing.
It has not been updated.
 National Parliaments: Kenya
Hanibal Goitom
Foreign Law Specialist

SUMMARY Kenya enacted a new Constitution in 2010 through which it established a system of
government akin to a federation, with legislative authority shared between the national
Parliament and county legislatures. At the national level, Kenya has a bicameral
Parliament consisting of the National Assembly and the Senate. All members of
Parliament are elected for a five-year term.

Under the 2010 Constitution, Kenya opted for a presidential system of government in
order to achieve a sharper separation of powers between, and reduce the influence of, the
executive body over the legislature. The President and his Cabinet are not members of
Parliament. Of the 350 members of the National Assembly, 290 members of any gender
are elected directly from single-member constituencies, forty-seven women members are
elected directly from each county, and twelve representatives of special interests are
nominated by parties based on the number of seats they control in the body. The sixty-
eight member Senate consists of forty-seven members directly elected from each county
and twenty members nominated by political parties in accordance with their share of seats
in the body. In addition, the speakers of both houses are considered ex officio members.

The legislative process through which bills become law involves one or both houses of the
Parliament, depending on the issue under consideration. Bills not affecting the function of
county governments are considered only in the National Assembly. This is because the
primary function of the Senate is to protect the interests of the county governments within
the national government. The legislative process in both houses mainly follows five steps:
publication of the proposed bill in the Kenya Gazette: first reading; second reading;
referral to committee, where amendments are offered and considered; and third reading,
including a vote. In addition to the consideration of a bill in Parliament, Kenya’s President
plays a key role in the legislative process by signing into law (or refusing to do so) every
piece of legislation adopted by the National Assembly or both houses.

I. Background

The first legislative body in Kenya, which at the time was a British colony known as the “East-
African Protectorate,” was created in 1907.1 The Order in Council that established the body
stated that

[t]here shall be a Legislative Council in and for the Protectorate, and the said Council
shall consist of the Governor and such persons, not being less than two at any time, as
His Majesty may direct by any Instructions under His Majesty’s Sign Manual and Signet,

1
East Africa Order in Council, 1906, § 7 (May 15, 1907), 9(181) OFFICIAL GAZETTE OF THE EAST AFRICA AND
UGANDA PROTECTORATES (May 15, 1907).

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or through one of His Majesty’s Principal Secretaries of State, and all such persons shall
hold their places in the said Council during His Majesty’s pleasure.2

The body, which was accorded limited authority to legislate on various matters “necessary for
the peace, order, and good government of the Protectorate,” consisted of the Governor of the
Protectorate, who was the chair of the body, and six members, including four civil servants and
two members appointed by the Governor.3 The members of the Council were all white; other
races within the Protectorate (Africans, Asians, and Arabs) were legally ineligible.4 In 1919, an
ordinance for the election of members of the Council was enacted; however, only British
subjects of European origin could vote or stand for office.5 Through a 1924 amendment Indians
and Arabs were permitted to vote and stand for election for seats in the Council.6 Although over
the ensuing years persons of Arab and Indian descent were afforded the opportunity to serve as
members of the body, it was only in 1944 that an African person was nominated to the Council.7
The number of Africans in the Council continued to increase over time; in 1948, there were four
Africans in the Council and by 1958 the number of Africans in the Council had reached sixteen.8

Kenya gained its independence from Britain in December 1963 and a truly representative
legislative body was established through the 1963 Independence Constitution and the
introduction of universal franchise.9 Lawmaking authority under the 1963 Constitution was split
vertically and horizontally. One of the main features of the 1963 Constitution was the creation
of two-tier government structures, with national and regional administrative units.10 It
established seven semi-autonomous regions with their own legislative and executive bodies.11
The regional administrative units assumed many of the functions that previously were under the
Provincial and District Commissioners before Kenya’s independence.12 Another important

2
Id.
3
HUMPHREY SLADE, THE PARLIAMENT OF KENYA 11 (1967).
4
Id.; KARUTI KANYINGA, KENYA DEMOCRACY AND POLITICAL PARTICIPATION: A REVIEW BY AFRIMAP, OPEN
SOCIETY INITIATIVE FOR EASTERN AFRICA AND THE INSTITUTE FOR DEVELOPMENT STUDIES (IDS), UNIVERSITY OF
NAIROBI 180 (Mar. 2014).
5
Legislative Council Ordinance, No. 22 of 1919, §§ 9 & 10 (July 22, 1919), 21(663) OFFICIAL GAZETTE OF THE
EAST AFRICA PROTECTORATE (July 23, 1919).
6
Legislative Council (Amendment) Ordinance, No. 1 of 1924, §§ 4 & 5, 26(923) OFFICIAL GAZETTE OF THE
COLONY AND PROTECTORATE OF KENYA (SPECIAL ISSUE) (Jan. 5, 1924).
7
SLADE, supra note 3, at 11–13.
8
Id. at 14–15.
9
Kenya Order in Council, CONSTITUTION OF KENYA, sched. 2 (hereinafter 1963 CONSTITUTION), KENYA GAZETTE
SUPPLEMENT No. 30 (Apr. 1963); Kenya is Granted Independence, South Africa History Online,
http://www.sahistory.org.za/dated-event/kenya-granted-independence, archived at https://perma.cc/D5RS-FDU3.
10
Y.P. GHAI & J.P.W.B. MCAUSLAN, PUBLIC LAW AND POLITICAL CHANGE IN KENYA 177–78 (Oxford University
Press, 1970).
11
1963 CONSTITUTION, ch. V.
12
Kenya Human Rights Commission, Independence Without Freedom: The Legitimization of Repressive Laws and
Practices in Kenya, in CONSTITUTIONAL LAW AND POLITICS IN AFRICA: A CASE STUDY OF KENYA 113, 122
(Kivutha Kibwana ed., 1998).

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feature was the establishment of a bicameral legislature, the Senate and the House of
Representatives.13 The Senate, which consisted of forty-one members elected from forty
Districts and the city of Nairobi, was created mainly to safeguard the regional governments from
undue interference from the national government.14 Another key feature of the Constitution
designated the President as an elected member of the legislature and provided for appointment of
members of his cabinet from among the members of the same body, similar to the Westminster
parliamentary system.15

The House of Representatives and the Senate shared the legislative power of the national
government in all but one respect: while all bills required the approval of both houses, financial
matters were exclusively reserved for the House of Representatives.16

This constitutional structure, however, did not last long. The Kenya African National Union
(KANU) Party, which won a landslide victory in the elections held in May 1963 leading up to
Kenya’s independence both at the national and local level, never had the intention of actually
relinquishing power to the semi-autonomous regional administrations.17 At the beginning, the
central government incapacitated the regions by refusing to make available the funds they
needed to operate, it then eventually, through successive constitutional amendments, stripped the
regions of most of their authority and turned Kenya into a unitary state.18 A constitutional
amendment in 1965 effectively ended the autonomy of the regional administrations as envisaged
by the Independence Constitution.19 The regional assemblies, which enjoyed exclusive
legislative jurisdiction in a wide range of matters in their regions, were turned into mere
provincial assemblies that had to take their cues on legislation from the Parliament by
delegation.20 Through a 1966 amendment to the Constitution, the Senate, which was initially
established as a guardian of regional autonomy, was eliminated and its members were merged
into what became a unicameral National Assembly.21

13
See Y.P. Ghai & J.P.W.B. McAuslan, supra note 10.
14
1963 CONSTITUTION §§ 26 & 27; see also Kenya Human Rights Commission, supra note 12, at 122.
15
Conrad M. Bosire, Kenya’s Budding Bicameralism and Legislative-Executive Relations, in SEPARATION OF
POWERS IN AFRICAN CONSTITUTIONALISM 116 (2016).
16
1963 CONSTITUTION §§ 49–51.
17
Rainer Grote, The Republic of Kenya, Introductory Note, in CONSTITUTIONS OF COUNTRIES OF THE WORLD: THE
REPUBLIC OF KENYA 6 (Gisbert H. Flanz ed., Oceana Publications, 2008); Kenya is Granted Independence, South
Africa History Online, supra note 9.
18
Id. at 22. See also P.H OKONDO, A COMMENTARY ON THE CONSTITUTION OF KENYA vi (Phoenix
Publishers, 1995).
19
Constitution of Kenya (Amendment) Act No. 14 of 1965, 1st sched., KENYA GAZETTE SUPPLEMENT No. 44 (Acts
No. 5) ( June 8, 1965).
20
Id.
21
Constitution of Kenya (Amendment) (No. 4) Act No. 40 of 1966, KENYA GAZETTE SUPPLEMENT ACTS (Jan. 4,
1967); Grote, supra note 17, at 7.

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II. Current Constitutional Status and Role

Following the violent aftermath of the 2007 election, Kenya embarked on a major reform that
culminated in the enactment of a new Constitution in 2010 and brought profound changes to the
country’s system of government, including the legislative body. The remainder of this report
describes Kenya’s current legislative structure and the workings of the legislature within the new
constitutional framework.

The 2010 Constitution recreated Kenya’s system of devolved government, which was one of the
pillars of the Independence Constitution, by establishing forty-seven counties with their own
legislative (county assembly) and executive (county executive) organs, and allocated
considerable legislative and executive powers and functions to those governments.22
Significantly, also like the Independence Constitution, the current Constitution established a
second house within the national legislature, the Senate, whose main purpose is to “serve and
protect the interests of the counties and their governments.”23 The Senate is a forty-seven
member body, with each county constituting a single-member constituency.24 Further, to reduce
the level of influence of the executive over the legislative body and avoid additional abuses of
power by the executive, Kenya sought to create a sharper separation of powers between the
executive and legislative bodies by adopting a presidential system of government,25 whereby
none of the members of the executive are part of the legislative body.26

The national legislative body shares its lawmaking power with county legislatures. The
Constitution provides a list of areas of legislative competence of the national and county
legislatures.27 Generally, while the national legislature is authorized to legislate on matters of
national import (including immigration, agriculture, labor standards, transportation, and
education), the competence of the county legislatures is limited to matters of local significance—
for instance, with regard to transportation matters, county legislatures may address issues
concerning county roads, street lights, traffic, and parking.28 The Constitution provides for a
mechanism for resolving any conflict between national and county laws.29

22
CONSTITUTION OF KENYA, 2010, §§ 6 & 176(1) (hereinafter 2010 CONSTITUTION), available on the University of
Pretoria website, at http://www.icla.up.ac.za/images/constitutions/kenya_constitution.pdf, archived at
https://perma.cc/WT74-K5LC.
23
Id. § 96.
24
Id. § 98.
25
Bosire, supra note 15, at 117 & 122; Adams Oloo, From A Hybrid System to a Pure Presidential System: Between
Theory and Practice (Apr. 9, 2013), available on the Friedrich Ebert Stiftung Kenya Office website, at
http://www.fes-kenya.org/media/publications/From%20a%20Hybrid%20System%20To%20a%20Pure%
20Presidential%20System%20-%20Dr.%20Adams%20Oloo.pdf, archived at https://perma.cc/5C8W-9WDW.
26
2010 CONSTITUTION §§ 131(3) & 152(3); Bosire, supra note 15, at 122.
27
2010 CONSTITUTION, 4th sched.
28
Id., pt. 2, 4th sched.
29
Id. § 191.

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 National Parliaments: Kenya

In addition to its legislative function, the National Assembly is designed to act as a check on the
executive branch. A key part of this function is exercised through the power of the purse; the
body, among others, “appropriates funds for expenditure by the national government and other
national state organs” and “exercises oversight over national revenue and its expenditure.”30 In
addition, the National Assembly reviews the conduct of the president and other high ranking
executive officials and initiates the impeachment process.31 Further, it “approves declarations of
war and extensions of states of emergency.”32

While the horizontal and vertical distribution of the legislative authority in Kenya resembles that
of the United States, it is important to note that there are various, substantial differences. For
instance, unlike in the United States, the role of the Kenyan Senate is limited; it can only be
involved in the adoption of legislation that has ramifications for county governments, and its
oversight function with regard to the executive branch is limited to voting on proposals to
impeach the President or a Deputy-President initiated in the National Assembly, which is, as
noted above, a body that has broad oversight powers over executive organs.33 In addition, also
as noted above, the power to declare war and extend states of emergency is exclusively reserved
to the National Assembly.34 Also, unlike the United States where the Senate provides advice and
consent for presidential appointments to key executive and judicial posts, in Kenya, this role is
reserved for the National Assembly.35 Further, the Kenyan President and his Deputy have no
substantive or ceremonial link to the legislature.36

III. Structure and Composition

A. Seat of Parliament

While Kenya’s past national legislatures were sequestered in Nairobi, the nation’s capital, this
practice ended with the enactment of the 2010 Constitution.37 The Constitution provides that a
“sitting of either House may be held at any place within Kenya and may commence at any time
that the House appoints.”38 The Constitution further states that, after every general election, the
President must issue a notice announcing the place and date for the first sitting of parliament.39
According to one commentator, the purpose of this language in the Constitution is “to enhance

30
Id. § 95.
31
Id.
32
Id.
33
Id. §§ 95& 96.
34
Id. § 95.
35
Id. §§ 132 & 166.
36
Id. §§ 131 & 147.
37
P.L.O. LUMUMBA & LUIS FRANCESCHI, THE CONSTITUTION OF KENYA, 2010: AN INTRODUCTORY COMMENTARY
413 (2014).
38
2010 CONSTITUTION § 126.
39
Id.

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the image of the Legislature not as a den of the elites but as a truly representative Assembly.”40
The commentator further notes that “[w]ith this development, it is hoped that the disappointed
cries of many in the rural areas who soon after the dust of the electioneering period had settled
would remark ‘There our MP goes to Nairobi. We will see him in five years’ time’; will be a
thing of the past.”41

B. National Assembly and Senate Membership

The National Assembly is comprised of 290 members elected from single-member

constituencies; forty-seven women representatives elected from the forty-seven counties, each
constituting a single member constituency; and twelve special-interest representatives nominated
by political parties in accordance with the proportion of their seats in the National Assembly.42
In addition, the Speaker of the National Assembly is an ex officio member of the body.43

The Senate is composed of forty-seven members directly elected from each county; sixteen
women nominated by the political parties in the Senate on the basis of the proportion of the seats
they control; two representatives of the youth (a man and a woman); two representatives of
persons with disabilities (also a man and a woman); and the Speaker of the Senate who, like his
National Assembly counterpart, is also an ex officio member.44

Elections for members of Parliament are held on the second Tuesday in August every five years.
The term of each house of Parliament expires on the date of the next election.45

C. Political Parties

In 2013, the year the last national elections were held, there were around sixty registered political
parties in Kenya.46 Following the most recent general elections, which were held in 2013, seats
in Parliament were divided among seventeen parties, as follows:

40
LUMUMBA & FRANCESCHI, supra note 37, at 413.
41
Id.
42
2010 CONSTITUTION § 97.
43
Id. §§ 97 & 106.
44
Id.
45
Id. §§ 101–102.
46
Registered Political Parties 2013, INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (IEBC),
http://www.iebc.or.ke/index.php/downloads/item/political-party-membership-pdf (last updated Oct 13, 2014),
archived at https://perma.cc/JW2Z-M3GE; General Elections, IEBC, http://www.iebc.or.ke/index.php/2015-01-15-
11-10-10/general-elections (last visited Dec. 21, 2016), archived at https://perma.cc/U3XR-77NM.

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Table: Parties Represented in Parliament Following the 2012 Election

Party National Assembly Senate

Orange Democratic Alliance (ODM) 78 11

The National Alliance (TNA) 72 11

United Republican Party (URP) 62 9

Wiper Democratic Movement-Kenya (WDM-K) 19 4

United Democratic Forum Party (UDFP) 11 2

Forum for Restoration of Democracy-Kenya (FORD-K) 10 4

Kenya African National Union (KANU) 6 2

Alliance Party of Kenya (APK) 5 2

New Ford Kenya (NFK) 4 1

Party of Independent Candidate of Kenya (PICK) 4 1

Federal Party of Kenya (FPK) 3

National Rainbow Coalition (CARC) 3

Ford-People (FP) 3

Kenya National Congress (KNC) 2

Chama Cha Uzalendo (CCU) 2

The Independent Party (TIP) 1

Kenya African Democratic Union-Asili (KA-DU-A) 1

Source: Data from INSTITUTE FOR EDUCATION IN DEMOCRACY, FROM LAW TO PRACTICE: A REPORT ON THE
ASSESSMENT OF POLITICAL PARTIES’ ADHERENCE TO THE LAW IN KENYA 44 (2015).

D. Role of the Speakers of the National Assembly and the Senate

As noted above, speakers of both houses of the Kenyan Parliament are ex officio members of the
bodies. They are elected by each house according to their standing orders “from among persons
who are qualified to be elected as members of Parliament but are not such members.”47 The
Speaker of each house of Parliament chairs “any sitting of the House of Parliament.”48 Speakers
47
2010 CONSTITUTION § 106.
48
Id. § 107.

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of both houses are assisted by a Deputy Speaker who is elected from among the members of each
house.49 The Speaker of the National Assembly, assisted by the Speaker of the Senate, presides
over joint sessions of Parliament.50

The Speaker of either House has no vote on any question proposed for a decision and may not be
counted as a member of the respective House for determining the number of members of
Parliament for any purpose of voting.51

The Speaker of the National Assembly is second in the line of presidential succession following
the Deputy President.52 However, unlike the Deputy President who, in the event of a vacancy in
the office of the President, would assume the presidency and serve the rest of the term, the
Speaker can serve for a maximum of sixty days until an election is held to fill the vacancy.53

The speakers of both houses decide on any procedural questions not expressly provided for in the
standing orders of the houses or other relevant rules.54

E. Other Parliamentary Officers

In the National Assembly, the political leadership positions are held by the leader of the majority
party (the person who is the leader of the largest party or coalition of parties) and the leader of
the minority party (the person who is the leader of the second largest party or coalition of
parties).55 The leaders of the majority and minority parties designate majority and
minority whips.56

In the Senate, the political leadership consists of the Senate Majority Leader, the Senate Deputy
Majority Leader, the Senate Majority Whip, and the Senate Deputy Majority Whip, all of whom
are elected from among the members of the majority party (the largest party or coalition of
parties in the Senate).57 The leadership also includes a Senate Minority Leader, Deputy Senate
Minority Leader, Senate Minority Whip, and Deputy Senate Minority Whip, all of whom are
elected from among the members of the minority party (the second largest party or coalition of
parties in the body).58
49
Id. § 106.
50
Id.
51
Id. § 122.
52
Id. § 146.
53
Id.
54
Senate Standing Orders § 1 (Jan. 9, 2013), http://www.parliament.go.ke/the-senate/standing-orders/item/downloa
d/1554_4dfc7c0f14e207f631b826aa0b85ddd1, archived at https://perma.cc/X3W8-X4FF; National Assembly
Standing Orders § 1 (Jan. 9, 2013), http://www.parliament.go.ke/the-national-assembly/standing-
orders/item/download/40_222b 24e2cb9a8077f8de3f3d6eb5fb5d, archived at https://perma.cc/RMU8-D979.
55
2010 CONSTITUTION § 108; National Assembly Standing Orders § 19.
56
National Assembly Standing Orders § 2.
57
Senate Standing Orders § 19.
58
Id. § 20.

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The Parliamentary Service Commission, a constitutional body whose functions include the
“efficient and effective functioning of Parliament,” appoints a Clerk and a Senior Deputy Clerk
for both the National Assembly and the Senate.59 The clerk in each house is the “administrative
and procedural head” of the body and manages its daily operations and activities.60 The
functions of the clerk also include advising the body on all “Parliamentary procedures, practices
and conventions.”61

Other officers of the Kenyan Parliament include the Senate and National Assembly Sergeant-at-
Arms, whose functions include performing “chamber and ceremonial duties,” maintenance of
decorum, and providing protective security for persons and property, and the Hansard Editor of
the National Assembly and Senate, whose functions include producing official records of
both houses.62

F. Parliamentary Committees

The Constitution provides that the National Assembly and the Senate may establish committees
and make rules for the orderly conduct of their proceedings.63 In addition, for the purposes of
carrying out functions over which they share jurisdiction, the Constitution permits the National
Assembly and the Senate to form joint committees and to jointly regulate the procedure of such
committees.64

The National Assembly and the Senate have each established three types of committees:
departmental committees, standing committees, and housekeeping committees.65 The
composition of the committees mirrors the number of seats that the parties in each house
control.66 Committees in both houses enjoy subpoena powers and set their own agenda. While
any lawmaker is permitted to participate in committee meetings, only committee members can

59
2010 CONSTITUTION §§ 127 & 128.
60
Offices of the National Assembly, PARLIAMENT OF KENYA: THE NATIONAL ASSEMBLY, http://www.parliament.
go.ke/the-national-assembly/leadership/management-and-directorates (last visited Dec. 21, 2016), archived at
https://perma.cc/FNJ5-4J42; Management and Directorates, PARLIAMENT OF KENYA: THE SENATE,
http://www.parliament.go.ke/the-senate/management-and-directorates (last visited Dec. 21, 2016), archived at
https://perma.cc/K42D-5EML.
61
Offices of the National Assembly, supra note 59; Management and Directorates, supra note 59.
62
Offices of the National Assembly, supra note 59; Management and Directorates, supra note 59.
63
2010 CONSTITUTION § 124.
64
Id.; LUMUMBA & FRANCESCHI, supra note 34, at 410.
65
National Assembly Committees: Mandate and Classification, PARLIAMENT OF KENYA, http://www.parliament.
go.ke/the-national-assembly/committees (last visited Dec. 22, 2016), archived at https://perma.cc/KH5T-B5DD;
Senate Committees: Mandate and Classification, PARLIAMENT OF KENYA, http://www.parliament.go.ke/the-
senate/committees/mandate-and-classification (last visited Dec. 22, 2016), archived at https://perma.cc/S8SX-
9CZQ.
66
KANYINGA, supra note 4, at 198.

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participate in committee decision making.67 Committee meetings are held in public, and hearing
schedules are publicized in advance.68

As noted above, the National Assembly and the Senate have also formed joint committees to deal
with matters over which they share jurisdiction. These are the Joint Committee on National
Cohesion and Equal Opportunity, whose role includes the monitoring and promoting of
“measures relating to policy and program initiatives in pursuit of peace and national cohesion,”
and the Joint Committee on Parliamentary Broadcasting and Library, whose mandate includes
advising Parliament on issues regarding “public participation in Parliament.”69

IV. Elections

As noted above, not all members of the Kenyan Parliament are directly elected by the Kenyan
electorate. Of the 350 seats in the National Assembly, 290 are filled with members directly
elected by voters of single-member constituencies, whereas 47 seats are reserved for women
members who are also directly elected from each of the 47 counties, each county constituting a
single constituency.70 In the Senate, 47 of the 68 seats are filled with members directly elected
by voters in the counties, each county constituting a single-member constituency.71

According to the Constitution, a general election to select members of the National Assembly
and the Senate is conducted every five years, on the same day as the elections for President,
county governors, and members of county assemblies.72 If there is a vacancy in either of the
houses and the next general election is not scheduled to take place within the next three months
of the vacancy, a by-election may be held to fill the seat.73

A person vying for a seat in the National Assembly or the Senate may seek such office as a
nominee of a political party or as an independent candidate.74 To qualify to stand for an election
for a seat as an independent candidate, a person must have the support of at least one thousand
registered voters in the constituency if the person is interested in a seat in the National Assembly
seat and the support of two thousand registered voters of a county for a seat in the Senate.75

67
Id.; Senate Standing Orders § 195; National Assembly Standing Orders § 191.
68
KANYINGA, supra note 4, at 198.
69
National Assembly Committees: Mandate and Classification, supra note 64; Senate Committees: Mandate and
Classification, supra note 64.
70
2010 CONSTITUTION § 97.
71
Id. § 98.
72
Id. § 101; General Elections, IEBC, http://www.iebc.or.ke/index.php/2015-01-15-11-10-10/general-elections (last
visited Dec. 22, 2016), archived at https://perma.cc/3QPD-49GP.
73
2010 CONSTITUTION § 101.
74
Id. § 99.
75
Id.

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Parliamentary elections are decided by a simple majority of the votes cast in the election within
the relevant constituency.76

The electorate in a county or constituency may recall a member of Parliament before the
expiration of his/her term under certain circumstances.77 This may occur if the member, after
having been afforded due process, is found to have violated Chapter 6 (on leadership and
integrity) of the Kenyan Constitution or to have mismanaged public resources, or is convicted of
violating the election laws.78

In the 2013 general elections, around 86% of the 14,352,533 registered voters are said to have
voted.79 The Jubilee Alliance (a coalition in which the majority players are the TNA and URP),
led by Uhuru Kenyatta, the incumbent President of Kenya, won 6,173,433 of the popular vote
(50.07%), followed by the Coalition for Reform and Democracy (CORD) (mainly including
ODM and WDM-K), which took 5,340,546 votes (43.31%).80

V. Legislative Process

A. General

Under the Constitution, the Kenyan Parliament exercises its legislative authority by passing
bills.81 While any bill may originate in the National Assembly, bills not concerning county
governments may only be considered by the National Assembly.82 A bill affecting county
governments may originate in the National Assembly or the Senate.83 While a bill may be
introduced by any member or committee of the relevant house, what are known as “money bills”
may only be introduced in the National Assembly according to a specific process (see Part
V(D), below).84

76
URAIA TRUST & INTERNATIONAL REPUBLICAN INSTITUTE, THE CITIZEN HANDBOOK: EMPOWERING CITIZENS
THROUGH CIVIC EDUCATION 44 (2012).
77
2010 CONSTITUTION § 104; Elections Act 24 of 2011, § 45 (Dec. 2, 2011), available on the Kenya Law website, at
http://kenyalaw.org/lex//actview.xql?actid=No.%2024%20of%202011, archived at https://perma.cc/FKZ4-U3XJ.
78
Elections Act § 45.
79
THE CARTER CENTER, OBSERVING KENYA’S MARCH 2013 NATIONAL ELECTIONS: FINAL REPORT 5 (Oct. 16,
2013), https://www.cartercenter.org/resources/pdfs/news/peace_publications/election_reports/kenya-final-
101613.pdf, archived at https://perma.cc/HPF4-HSE9; Election Results, IEBC, http://www.iebc.or.ke/index.
php/election-results (last visited Jan. 10, 2017), archived at https://perma.cc/BGX2-BMN6.
80
THE CARTER CENTER, supra note 78, at 5; EUROPEAN UNION, ELECTION OBSERVATION MISSION TO KENYA:
GENERAL ELECTIONS 2013 FINAL REPORT 5 (May 29, 2013), http://www.eods.eu/library/FR%20KENYA%2029.
05.2013_en.pdf, archived at https://perma.cc/SBA5-D56F; Election Results, supra note 78.
81
2010 CONSTITUTION § 109.
82
Id.
83
Id.
84
Id.

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B. Bills Concerning County Government

Bills concerning county government include bills that affect the functions and powers of county
governments, have implications for the election of members of county governments, and impact
the finances of county government.85 These types of bills are further divided into what are
known as ordinary and special bills. A special bill is one that relates to the election of members
of county governments or annual revenue allocations to counties, whereas an ordinary bill is any
other bill not considered a special bill.86 Before either house takes up a bill, the Constitution
requires that the speakers of the National Assembly and the Senate determine whether the bill is
one that affects counties, and if so, whether it is an ordinary or special bill.87

1. Ordinary Bills

If one of the houses passes an ordinary bill and the second house rejects it, the bill must be
referred to the Mediation Committee (see Part V(C), below).88 If the bill is passed by the second
house with any amendment, it must be referred back to the originating house for reconsideration;
however, if the originating house rejects the bill as amended, it must be referred back to the
Mediation Committee.89

2. Special Bills

The process involving special bills is different in one key respect: if the National Assembly
wishes to change or reject a special bill passed in the Senate, it needs the support of at least two-
thirds of its members.90

C. Mediation Committee

The Mediation Committee was formed to reconcile bills referred to mediation under any of the
above-described scenarios. Consisting of an equal number of members from the National
Assembly and the Senate appointed by the Speaker of each house, the Mediation Committee’s
job is to reconcile two versions of the same bill. Upon completion of this process it sends a final
version to both houses for an up-or-down vote.91 If the Committee is unable to agree on a
version or the version it proposes is rejected by either house, the bill fails.92

85
Id. § 110.
86
Id.
87
Id.
88
Id. § 112.
89
Id.
90
Id. § 111.
91
Id. § 113.
92
Id.

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D. Money Bills

The Constitution defines a “money bill” as a bill (excluding bills that relate to the annual division
and allocation of revenue between the national and county governments) that includes provisions
dealing with any of the following:

(a) taxes;
(b) the imposition of charges on a public fund or the variation or repeal of any of
those charges;
(c) the appropriation, receipt, custody, investment or issue of public money;
(d) the raising or guaranteeing of any loan or its repayment; or
(e) matters incidental to any of those matters.93

If the Speaker of the National Assembly is of the opinion that a particular proposal falls under
the definition of a money bill, the body can proceed with its consideration of the proposal 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.”94

E. Presidential Assent and Referral

The Kenyan President plays a key role in the legislative process because all bills require his
approval before they can take effect. Once a bill is passed by the appropriate body in Parliament,
it is sent to the President’s desk for his assent; the President has fourteen days to either sign it
into law or refer it back to Parliament for reconsideration.95 If the President returns the bill to
Parliament, the relevant house can either incorporate the changes suggested by the President and
send it back to him for his signature or, as in the US, override the President’s reservations by
passing the bill again with the support of at least two-thirds of the members of the relevant
house.96 If the President does not sign or return the bill to Parliament within fourteen days of
receiving it, the bill is automatically enacted.97

F. Procedure

The life of a bill from the time it is proposed until it is adopted by the relevant legislative body is
long and complicated. The following steps reflect an abbreviated version of the process:

93
Id. § 114. The terms “tax,” “public money,” and “loan” do not cover taxes, public money, or loans raised by
county governments. Id.
94
Id.
95
Id. § 115.
96
Id.
97
Id.

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 Publication: The bill is published in the Kenya Gazette to attract public attention and
encourage participation.98
 First Reading: The bill is referred to the relevant committee.99
 Second Reading: Members discuss the bill and the position of the “mover” (sponsor) as well
as the report of the relevant committee. No specific amendments are allowed at this stage
except for proposals to defer the second reading.100
 Committee of the Whole House: This is the stage at which amendments are proposed and
voted on.101
 Third Reading: Members conduct further debate on the contents of the bill. While no
specific amendments are permitted at this stage, proposing a deferral of the third reading is
permitted.102 If the bill is voted on and receives the necessary support, it is considered passed
in the relevant body where it is considered.103

As noted above, depending on the type of bill, it may be sent to the other house of Parliament for
concurrence or to the President for his assent. Once the President signs the bill into law, it must
then be published in the Kenya Gazette as an Act of Parliament within seven days.104

VI. Contemporary Issues

In 2016, the Kenyan Parliament considered various proposals. For the year, fourteen bills were
proposed in the Senate, including the County Statistics Bill, the County Boundaries Bill, and the
County Allocation of Revenue Bill.105 Thirty-three bills were proposed in the National
Assembly; these included the Anti-Doping Bill, the Value Added Tax (Amendment) Bill, the
Witness Protection (Amendment) Bill, and the Refugees Bill.106

98
KENYA LAW REFORM COMMISSION, A GUIDE TO THE LEGISLATIVE PROCESS IN KENYA 69 (2015),
http://www.klrc.go.ke/images/images/downloads/klrc-a-guide-to-the-legislative-process-in-kenya.pdf, archived at
https://perma.cc/3APD-AFWU.
99
Id.
100
Id.
101
Id.
102
Id.
103
Id. at 68.
104
2010 CONSTITUTION § 116.
105
Senate Bills 2016, KENYA LAW, http://kenyalaw.org/kl/index.php?id=5990 (last visited Dec. 27, 2016), archived
at https://perma.cc/S5AY-VKPN.
106
National Assembly Bills 2016, KENYA LAW, http://kenyalaw.org/kl/index.php?id=5991 (last visited Dec. 27,
2016), archived at https://perma.cc/5TBZ-LD69.

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Twenty-four bills appear to have been enacted in 2016.107 These included the Anti-Doping Act
(No. 5 of 2016), the Climate Change Act (No. 11 of 2016), the Judiciary Fund Act (No. 16 of
2016), and the Private Security Regulation Act (No. 13 of 2016).108

107
Recent Legislation – 2016, KENYA LAW, http://kenyalaw.org/kl/index.php?id=5995 (last visited Dec. 27, 2016),
archived at https://perma.cc/HDG6-SXQ3.
108
Id.

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