Assessment finds that existing procedures in the Senate of Kenya are good foundations for piloting post-legislative scrutiny
Parliaments make and change laws. They also play a critical role in monitoring the implementation of laws and evaluating whether they achieve their envisioned outcomes. This is called post-legislative scrutiny (PLS), which allows legislatures to review laws after their enactment to ensure that they benefit citizens in the originally intended way.
The Senate of Kenya, in collaboration with WFD, undertook a self-assessment on its procedures, structures, and resources dedicated to carrying out PLS. The assessment, conducted between March and April 2023, was guided by WFD’s parliamentary and legislative indicators for PLS. The indicators aim to measure how effective a parliament is in performing PLS and help parliaments consider options for upgrading or strengthening PLS practices.
Findings from the self-assessment
The assessment report notes that the Senate has enacted over 200 pieces of legislation between 2013-2023.
Three key findings emerged in relation to the capacity of Kenya’s Senate on PLS:
- There is no specific reference to PLS in the Senate Standing Orders as a function of the committees. According to article 124 of the Constitution of Kenya, Standing Orders are meant for the orderly conduct of proceedings in both houses of the Parliament of Kenya – National Assembly and the Senate – and the proceedings of their committees.
- PLS is not a priority compared to other Senate committee functional areas. Public petitions, motions, and other emerging public interest matters come first in routine standing committee business compared to any matter akin to PLS.
- Whilst every committee of the Senate is provided with a budget for its activities, there is no dedicated budget for PLS.
Further findings indicate that the Kenyan Senate has in place a resolutions tracker, which is an internal tool to compile the status and extent of implementation of senate resolutions. The Senate has also established periodic meetings with respective executive departments and oversight institutions. The purpose of these meetings is to find out the status of implementation of senate resolutions and agree on what can be done to improve on them.
Although these findings do not point to an active practice of PLS in the Senate of Kenya, they do reveal that the concept has been practiced in diverse ways. PLS has been executed in an unstructured manner, many at times recognized as a follow up on resolutions through the Senate standing committees. This suggests that the Kenyan Senate can actively prioritize and periodically perform PLS by building on existing structures and procedures.
Recommendations from the assessment
Despite the unstructured manner in the implementation of PLS, there exist numerous opportunities for the practice within the current structures of the Kenya Senate. Such opportunities may include pilot PLS enquiries to legislation that have been put in place to support functional Devolution e.g., the Health Act, 2017. The assessment noted the unanimous acceptance of value of PLS by both the Senate Members and staff which is a good starting point for piloting PLS.
“PLS is an important oversight mechanism that should be embraced by the Senate through the committees or a committee to enhance self-assessment of Senate oversight interventions, we need it as a house.” Senator Godfrey Osotsi.
The Senate self-assessment report recommends that: Standing Orders to be amended to expressly provide for PLS as a function of the Standing Committees; there is need for periodic sensitization of members to deepen understanding and harness the required goodwill to proactively prioritize PLS as a critical component of senate’s oversight work; the senate should provide a regularized budget line in the Standing Committees budget for PLS activities sensitization and focused training for Senate Committee staff; consideration should also be given to the development of a “Post legislation Scrutiny tracker” to enhance transparency in the work of Senate Committees on PLS; appropriate training in all areas of PLS is provided to senate members as a priority in the members’ induction and capacity development plans.
Conclusion
Post-legislative scrutiny offers an excellent opportunity to further strengthen legislative oversight as one of the key tasks of the Senate of Kenya. PLS can be institutionalised by the senate to assess the implementation of new and amended legislation as part of the overall progress of devolution in Kenya. The practice also provides additional opportunities for interaction of senate members with the citizens they represent, as well as for the effective oversight of the executive.
The assessment suggests that the senate should initiate PLS on several legislations as a pilot. For instance, a pilot PLS on selected devolution laws such as County Government Act, 2012 and/or Urban Areas and Cities Act, 2012. These will provide a basis for assessing the concrete needs for the nature of capacities required for efficient conduct of PLS by the senate. WFD is working with the Senate Liaison Office to support the piloting phase.
