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Jurisdictions Examined: Algeria | Argentina | Australia | Azerbaijan | Belgium | Brazil | Canada | China | Cote d’Ivoire | Egypt | Estonia | France | Germany | Guatemala | India | Israel | Italy | Jamaica | Jordan | Kenya | Kuwait | Malta | Mexico | New Zealand | Nicaragua | Norway | Philippines | Portugal | Russia | South Africa | Spain | Sweden | Switzerland | Taiwan | Turkey | United Kingdom | United States

Kenya

I. Current Situation

Kenya has a bicameral Parliament consisting of the National Assembly and the Senate. The National Assembly comprises 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.[1] In addition, the Speaker of the National Assembly is an ex officio member of the body.[2]

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.[3]

On March 13, 2020, the speakers of the National Assembly and the Senate issued guidelines in a joint memo to the 416 members of the two chambers and their staff suspending all foreign travel for members of Parliament and their staff, among other things.[4] The guidelines, which will remain in effect for 30 days, suspended public activities, including visits by students and other groups, and recommended that members of parliament postpone all committee sittings and other activities that required them to venture out of the precincts of Parliament.[5] In addition, everyone who arrives in the precincts of Parliament, including members, are now required to undergo screening (body temperature checks) before they are allowed into the grounds.[6] Two members of the National Assembly who had reportedly just returned from a trip to London were asked to leave the floor of the Assembly and self-quarantine.[7]

Significantly, on March 17, 2020, the National Assembly and the Senate then suspended sittings.[8] No information was located relating to the issue of how members of Parliament would maintain operations if their access to the precincts of Parliament were restricted.

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II. Emergency Parliament

Although the term of each chamber in Parliament normally expires on the date of the next general election, in instances when the country is at war Parliament may, “by resolution supported in each House by at least two-thirds of all the members of the House, from time to time extend the term of Parliament by not more than six months at a time.”[9] The extension may only be renewed once.[10] Other than this form of emergency Parliament, no constitutional provision was located mandating or authorizing the creation of an emergency parliament in which legislative power is delegated to a small group of members of Parliament during disruptive emergency events.

The Constitution allows for either chamber to hold its sittings in any place within the country.[11] However, the presence of 50 members in the case of the National Assembly and 15 members in the case of the Senate is required to establish a quorum.[12] The Constitution states that, unless its provisions state otherwise, “any question proposed for decision in either House of Parliament shall be determined by a majority of the members in that House, present and voting.”[13]

Constitutional provisions relating to parliamentary functions are among the most difficult to amend. A constitutional provision of this kind may be amended through parliamentary or public initiative. If an amendment is a parliamentary initiative, it requires adoption in each chamber of Parliament with the support of “not less than two-thirds of all the members of that House” as the first step of the process.[14] A constitutional amendment could also be put in motion through a public initiative by collecting one million signatures from registered voters, which must be certified by the Independent Electoral and Boundaries Commission and then submitted to each of the 47 county assemblies for consideration within three months.[15] To succeed, the initiative must be approved by the majority of county assemblies and majority members of each chamber of the national Parliament[16] Significantly, both parliamentary and public amendment initiatives require approval through a popular referendum in which at least 20% of all registered voters in each of at least half of the counties in the country vote and the amendment garners the support of a simple majority of the citizens who voted.[17] During the current COVID-19 pandemic organizing a popular referendum may not be practicable.

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Prepared by Hanibal Goitom
Chief, FCIL I
March 2020


[1] Constitution of Kenya, 2010, §§ 97, https://perma.cc/WT74-K5LC.

[2] Id. §§ 97 & 106.

[3] Id.

[4] David Mwere, Coronavirus: Temperature checks for all at Parliament, Daily Nation (Mar. 16, 2020), https://perma.cc/CA83-7GTH.

[5] Id.

[6] Id.

[7] Noni Ireri, MP Kicked out of Parliament over Coronavirus, Kenyans (Mar. 17, 2020), https://perma.cc/5US6-6HNA; Moses Nyamori & Rawlings Otieno, MPs Kicked out of Chambers over Virus Scare, Standard Media (Mar. 18, 2020), https://perma.cc/3ZC7-VMLY.   

[8] Brian Oruta, Parliament Suspends Sitting over Coronavirus, PulseLive (Mar. 17, 2020), https://perma.cc/8MVK-A8GN.

[9] Constitution of Kenya § 102.

[10] Id.

[11] Id. § 126.

[12] Id. § 121.

[13] Id. § 122. For more information on the legislative process, see Hanibal Goitom, National Parliaments: Kenya (Law Library of Congress, Feb. 2017), https://perma.cc/68QW-EWPJ.

[14] Constitution of Kenya § 256.

[15] Id. § 257.

[16] Id

[17] Id. §§ 255, 256 & 257.

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Last Updated: 12/30/2020