National Institutions necessary for devolution

In the last two articles under this column, we have been focusing on the structures of the County Government as designed in the Constitution of Kenya 2010. The articles are basically geared towards sensitizing the public on institutions that provide services to them at the local level. It is important to reiterate that from the onset, devolution was meant to devolve power and resources to the hands of people. It is therefore critical that we relate so closely with institutions and structures of devolution wherever they are. That goal can best be achieved when every Kenyan appreciates all structures of devolution.   

The Constitution of Kenya foresees a situation where both National and County Institutions work hand in hand for the benefit of Kenyans.

There are some institutions at National Level which have a direct impact in the provision of services to the Counties. These institutions have a National image but retain specific powers that enable County Governments to operate. Today, those institutions are our area of focus.

The Senate

It is important to note that Kenya has a bicameral Parliament, meaning that the legislative body has two houses, the Senate and the National Assembly.

The Senate is the upper house of the Parliament of Kenya. It was first established in 1963 as part of Kenya’s independent Constitution. Because of the politics of the day, it was abolished in 1966 and its membership combined with that of the House of Representatives to form a unicameral legislature, the National Assembly. It was however re-established by the 2010 Constitution but had to wait until 2013 when the new crop of leaders were elected to complete the house.

Senators are elected from all over the country. Every Senator is elected from a County, meaning there are 47 elected members in the institution. There are sixteen women members nominated by political parties according to their proportion of elected members. The emphasis here is for political parties to have more elected members in order to qualify for more slots of nomination.

There are also two youths and two persons with disability being a man and a woman.

The Senate is not complete without the Speaker. He is an Ex Officio member of the house, meaning he is a member by Virtue of his status. He does not take a vote to decide issues under debate. The people eyeing the Seat are first required to have qualifications equivalent to those of a prospective Member of Parliament. The law requires that there is a deputy Speaker elected from among members of the house. The Speaker however must be an outsider. They should not be a member of the House.

 Role and Membership of the Senate

It is interesting how the law phrases the roles of the Senate. There is no mincing of words. The Senate exists to serve and protect the interest of the Counties.

As such, it participates in the law making process by considering, debating and approving Bills concerning Counties. The law requires that the Senate determines the allocation of national revenue to Counties, and to exercise oversight over national revenue allocated to County governments.

It participates in the oversight of State Officers by considering and determining any resolution to remove the President or Deputy President from office in accordance with the relevant provisions of the Constitution. So we know that the Senate has powers to question the President and his Deputy.

Since the elections of 2013, the Senate has largely shown maturity and sense of purpose in performance of its duties. A number of times, they have demonstrated their unity against perceived ills by the National Assembly, the National and County Executives.

Lately though, the decision by a number of them to vie for gubernatorial positions has painted their position unfavourably. Ugly incidences and exchanges with Governors like the one of Mwangi Wa Iria and Kembi Gitura, Kabogo, Senator Mike Mbuvi Sonko and Governor Evance Kidero, have not gone down well with their mandate. At some point it would be important for Senators whose Governors are in the hot seat to excuse (recuse in the language of judges) themselves, just to maintain the honour and impartiality of the process.

Besides the Senate, there are a number of independent institutions that provide critical services to both National and Devolved Government. One such key institution is the Commission on Revenue Allocation.

The Commission on Revenue Allocation is an independent Commission set up to recommend the basis for equitable sharing of revenues raised nationally between the national and the county governments, and among the county governments.

It is often expected that six months before the start of each financial year, the Commission on Revenue Allocation submits its recommendations to the National Assembly on how to share revenue raised nationally between the national government and the counties. It also forwards the criteria to be used to share conditional grants among the counties. These recommendations are the first step in determining how much revenue counties and the national government will be allocated to fund their budgets for the upcoming financial year.

The Commission further recommends on other matters concerning the financing of, and financial management by, county governments, as required by this Constitution and national legislation.
In formulating recommendations, the Commission is needed to promote and give effect to the criteria set out in the Constitution and also encourage fiscal responsibility. Their mandate extends to determine, publish and regularly review a policy which sets out the criteria to identify the marginalised areas as prescribed by the Constitution. It submits its recommendations to the Senate, the National Assembly, the National Executive, County Assemblies and County Executives.

At the heart of the annual CRA recommendations is the estimate of national “shareable” revenue and how much will go to the two levels of government. Shareable revenue is mainly tax revenue collected locally, sometimes also called “ordinary revenue”. This comprises income, VAT and other taxes collected by national government. Shareable revenue does not include loans or grants.

It is important to note that the proposed share for counties is based on a revenue growth factor that is derived from averaging the growth in shareable revenue of the last three years for which there is complete data.

As we discuss the Commission’s mandate, it is important to mention its role with regard to the Equalisation fund. The fund constitutes 0.5% of the entire budget. It is set aside specifically to target areas that have been marginalised for long. The funding is meant for four priority areas identified as water, roads, electricity and health facilities.

It is certainly necessary for key stakeholders to monitor the Counties that receive these Funds in a bid to confirm that they are used in areas of necessity.

Office of the Controller of Budgets

The other Independent office is the one of controller of budgets. The Office of Controller of Budgets of Kenya is established under Article 228 of The Constitution of Kenya. Its core mandate is to oversee implementation of the budgets of the National and County Governments by authorizing withdrawal from public funds.

 It is thus expected to play an oversight role through control. As such, it authorizes withdrawals from public funds and can reject such withdrawals should they be satisfied that a certain institution did not follow the law. Their mandate covers, Equalization Fund, Consolidated Fund, and the County Revenue Fund.

You remember for instance that in the initial stages of the current Governments, the office holder came out hitting at the governors for failure to utilise development funds allocated to them in key priority areas. The wasteful purchase of things like motor vehicles and houses had to be objected to at some point.

The Office of the Controller of Budgets also prepares quarterly, annual and special reports. The reports are meant to be submitted to parliament and the national executive. The reports relate to how the national and the county governments implement their budgets.

Also key in their mandate is the investigative role. This could be through a complaint filed by a Kenyan or through its own volition. However, this mandate has not been quite put to use by the Commission. Whenever the County Government flaunts procedures, institution of focus in our debate, citizens run to all institutions of concern like the Controller of budget. Not much is often heard from them with such regard.

The Office of the Auditor-General of Kenya is an Independent Office established under the Constitution of Kenya to audit Government Bodies and report on their management of allocated funds. The Auditor-General’s role under the Kenyan constitution is to audit and report, in respect of that financial year. Their mandate extends to auditing accounts of the national and county governments, accounts of all funds and authorities of the national and county governments; and all institutions that enjoy the benefits of public finances. Also key in their role is to audit and monitor Public debt.

The above and several other institutions like Commission on Administrative Justice which seeks to address issues of malpractices in public service, the Ethics and Anti-Corruption Commission play key roles in shaping reputable service delivery to the people of Kenya. Even though the Constitution provides for them, the primary mandate of ensuring they perform still lies with Kenyans. It is therefore important to insist that the citizenry appraise themselves with those bodies’ mandate, and their operations for the benefit and growth of the entire Nation.


This article appears in our weekly digital law magazine, The Deuteronomy Vol 8, Issue 2 of November 11th, 2016

To receive The Deuteronomy in real time, click HERE.

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