The legislative process in Kenya happens in the Legislature at the national level. Parliament in Kenya is bicameral and comprises the Senate and the National Assembly.
Article 1 of the Constitution says all the sovereign power belongs to the people of Kenya. The people may exercise their sovereign power either directly or through their democratically elected representatives.
Article 1 of the Constitution also delegates the people’s sovereign power to Parliament, among other State Organs.
As a result, in Kenya, Parliament (the Senate and the National Assembly) is in charge of the legislative process at the national level.
A Bill is a proposal for a new law, or a proposal to change existing law, presented for debate before Parliament.
A Bill at the national level can originate from either the Senate or the National Assembly. Thus, the Bill is exclusive to either the Senate or the National Assembly. For Bills that require a joint effort from both Houses of Parliament, it can originate from either House.
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A Bill may originate from the following–
- a political party - introduced in Parliament in the name of the Leader of the Majority Party or the Leader of the Minority Party, or their respective deputies;
- the National Executive - introduced in the name of the Leader of the Majority Party or Leader of the Minority Party, or the name of the Chairperson of the relevant Committee;
- individual members of Parliament - introduced in the name of the member sponsoring the Bill;
- a Committee of the House - introduced in the name of the Chairperson or a member designated by the Committee;
- a member of the public may also petition Parliament according to the provision of Article 119 of the Constitution and the Standing Orders to legislate on a matter - introduced by way of a Petition conveyed by the Speaker and committed to the relevant Departmental Committee for consideration and publication of the consequential Bill;
- alternatively, members of the public may forward legislative proposals to Members of Parliament.
The legislative process in Kenya occurs in several stages through which a Bill passes through Parliament after its publication.
The first reading of a Bill in Kenya involves the Clerk (of either House of Parliament) introducing the Bill to the House for the first time by reading its title. The stage is a formality where no voting or debate occurs.
The Bill is then assigned a tracking number and committed to the relevant Departmental Committee of the House for consideration.
The Committee then facilitates public participation through appropriate means such as–
- inviting submission of memoranda;
- holding public hearings;
- consulting relevant stakeholders; and
- consulting experts on technical subjects.
The Committee considers the views and recommendations of the public when considering the Bill and preparing its report to the House.
The Committee then scrutinises the Bill by calling in the sponsor of the Bill, inviting various stakeholders and later compiles a report to the House with any specific proposed amendments that the Committee of the Whole House considers later.
A Second Reading is a stage in the law-making process in Kenya where a draft of a Bill is read out for the second time.
Members of Parliament debate the main purpose and principles of the Bill while seated in plenary. The member responsible for the Bill opens the debate for a Second Reading by setting out the case for the Bill and outlining its provisions, while a member seconds it. A Bill that is not seconded is withdrawn.
The discussion covers all aspects of the Bill, including its goals, principles, and how its passage will affect the general public.
The report of the Departmental Committee assists the members to debate the Bill, particularly to grasp the views of the public or the effects of the Bill on other laws.
The nature of a Bill determines its debate stage, ranging from a few hours to several sitting days.
The Speaker permits a Bill’s proposer to react to any issues expressed by the House after the debate. The Speaker then poses the question, causing the House to vote on whether or not the Bill shall go to the next stage.
No amendments can be made to the (text of the) Bill at this stage, although members may give an idea of the changes they will be proposing later.
The stage takes place through the Committee of the Whole House. The committee stage entails a careful (line-by-line) study of the Bill’s many parts (clauses) and voting by members of the Committee on each modification.
The Committee of the Whole House consists of all members of the House seated in form of a committee, who the Deputy Speaker or any member of the Chairpersons’ panel presides.
The Committee decides whether each clause of the Bill shall remain in it. Every clause in the Bill is agreed to, changed or removed.
The Bill’s clauses and schedules are approved by the Committee of the Whole House, with or without revisions. Following the conclusion of the meeting, the Committee, through its Chairperson, submits a report to the House for approval.
The amendments may propose new changes to the Bill’s existing provisions or include the addition of new ones. When introduced, however, the modifications shall be close to the Bill’s subject matter.
Bill amendments at the committee stage (and other stages) may include revisions to ensure the Bill functions as intended, give effect to a new policy, or be concessionary amendments to make the Bill more manageable.
Concessionary amendments respond to points raised at an earlier stage or are tabled to avoid a government defeat at the stage in question.
This stage takes place in the chamber of Parliament during plenary sitting. The House only discusses amendments during this stage.
The House receives a report and votes on it following a procedural Motion. At this stage, any Member may, with reasons, also move the House to resolve itself into a Committee again to reconsider any specified clauses of the Bill. This is known as re-committal.
The amendments may change what is in the Bill already or may involve new provisions being added.
The third reading of a Bill involves a general discussion of the Bill immediately after the Report stage. Amendments (proposals for change) cannot be made to a Bill at the third reading, though tidying up amendments might be acceptable.
The tidying up of a bill (drafting amendments and re-numbering of clauses) ensures the eventual law is effective and workable (without loopholes).
Debate is usually short and limited to what is actually in the Bill, rather than what might have been included, like in the Second Reading.
At the end of the debate, the House takes a final vote on the Bill, that is, it decides (votes on) whether to approve the third reading of the Bill.
Once the House passes a Bill, the Speaker presents it to the President who, within fourteen days, may-
- assent to the Bill;
- refer the Bill back to Parliament with a memorandum of reservations.
If the President assents a Bill, it becomes law and an Act of Parliament (a law passed by Parliament to create a new law or amend an existing law).
The law may not take effect immediately and the date of commencement may be indicated (as a later date). This allows the government to plan accordingly, such as to prepare regulations that fill in the details of the new law.
If the President refers a Bill back to the House, the House shall reconsider the Bill confining itself to the clauses the President expressed reservations, including any recommendations the President may make on the clauses, and-
- the House may either amend the Bill in light of the President’s reservations or pass the Bill a Second time without amendments. If the House passes the Bill fully accommodating the President’s reservations, the Speaker presents the Bill to the President for assent;
- the House may pass the Bill a second time and-
- notwithstanding the President’s reservations insist on its initial text; or
- pass the Bill a second time with amendments that do not fully accommodate the President’s reservations.
both cases require a two-thirds majority of the House. Thereafter, the Speaker presents the Bill again to the President for assent.
Sometimes, the legislative process in Kenya may involve both Houses of parliament. Therefore, some Bills may require consideration and concurrence by both Houses of Parliament, especially those concerning county governments.
Usually, Concurrent Bills originate from the National Assembly and are referred to the Senate.
For Concurrent Bills, after the Third Reading, the House from which the Bill originates shall refer the Bill to the other House for consideration. The House which receives the referred Bill shall follow the same process of considering the Bill, from the First to the Third readings.
The House may accept or reject the referred Bill with or without amendments.
If the House passes the referred Bill without amendments, then it refers the Bill, through a way of a message, to the House that originated the Bill, whose Speaker presents the Bill to the President for assent.
If the House passes the referred Bill with amendments, the House, through a way of a message, refers the amendments to the House that originated the Bill for consideration. If the House that originated the Bill-
- accepts the amendments, the Speaker of the House presents the Bill to the President for assent;
- rejects the amendments, the Bill is referred to a Mediation Committee.
A Mediation Committee comprises members drawn from both Houses of Parliament who formulate a version of the Bill, agreeable to both Houses, within 30 days.
If both Houses approve the version of the Bill proposed by the Mediation Committee, the Speaker of the National Assembly presents the Bill to the President for assent.
However, a Bill is considered lost if-
- the Mediation Committee fails to agree on a version of the Bill within 30 days;
- a version proposed by the Mediation Committee is rejected by either House of Parliament.
Refer to the guide on law-making for more details about the legislative process in Kenya.