A report prepared by the Secretariat of the Senate has proposed that a law be put in place to provide for the timeframe within which a Mediation Committee holds its first meeting and when the countdown for the 30 days, as provided for in Article 131(4) of the Constitution, commences.
The Constitution anticipates that disputes could arise in the process of consideration of Bills between the two Houses and provides for a mediation process under Articles 112 and 113.
Article 112 provides that if one House passes an ordinary Bill concerning counties and the second House rejects the Bill, it shall be referred to a mediation committee appointed under Article 113.
Mediation Committees are appointed to attempt to develop a version of the Bill that both Houses will pass. They represent the necessary and formal continuation of discussions aimed at resolving conflicts between the two chambers on the same Bill.
Article 113 provides that if a Bill is referred to a mediation committee, the Speakers of both Houses shall appoint a mediation committee consisting of equal numbers of members from each House to attempt to develop a version of the Bill that both Houses will pass.
Whenever a Mediation Committee fails to agree on a version within the constitutional timeline of thirty (30) days, the Bill is deemed to have been defeated. As a matter of practice, the 30 days begin to count when a Mediation Committee holds its first meeting.
According to Mediation in the Legislative Process during the 11th and 12th Parliaments, which was launched by Speaker Amason Kingi on Thursday last week, the lack of clarity has resulted in situations where some mediation committees delay convening, with months passing before the first meeting is scheduled, leading to protracted mediation processes.
“There is need to provide for the timeframe within which a mediation committee holds its first meeting and when the countdown for the 30 days commences,” observes the report.
The quorum for Standing/Departmental Committees, including mediation committees, as provided in the Standing Orders of either House, is set at one-third of the membership of the committees.
“This creates disproportionate representation from either House when the Committee sits,” says the report, even as it calls for clarification to ensure that one-third of the members from each House of Parliament constitute the quorum.
It further suggests that there is need to provide clarity on the issue of the majority required to adopt the report, to avoid misrepresentation and to ensure ownership of the report by each House of Parliament.
“It should provide that a majority from each House of Parliament must adopt the mediation report.”
The report observes that in most mediation cases, Members from both Houses of Parliament enter the process with pre-determined and self-preservation views, thus causing a stand-off, as opposed to engaging on the key issues. The lack of political will in mediation processes leads to the failure of most mediations and underscores the need for regular informal and formal consultations among the leadership of both Houses to build goodwill on contentious issues beforehand.
The secretariats from the respective Houses of Parliament tend to interfere with the mediation process, as more often than not they take sides.
“Poor handling of documentation during mediation processes has become the norm, causing chaos and confusion as each Secretariat presents its own documents. It is therefore recommended that a lead Clerk, jointly agreed upon by the Clerks of the two Houses, steer the facilitation processes of the mediation committee.”
There are instances where no reports were tabled in either House on the status of a mediation process, especially for Private Members’ Bills.
For example, in the 11th Parliament, the Public Fundraising Appeals Bill, 2014 mediation committee did not table or file a report on the status of the mediation process.
Another example cited is from the 12th Parliament regarding the Wildlife Conservation and Management (Amendment) Bill, 2020, where the Committee had the requisite 30 days, but the process stalled, leading to a collapsed mediation process as both Houses adjourned sine die.
A status record of the process was not filed for future reference. It has been observed that the tracking mechanism of mediation processes is not properly maintained. There is a need to provide for reporting on collapsed mediations and to ensure up-to-date tracking through the requisite systems.