By: Odhiambo Jerameel Kevins Owuor
Worth Noting:
- The county assembly in Kenya vets and approves nominees to hold county public offices. These nominees include the county executive committee members (or county ministers). Others are members of the county public service board (CPSB). The county assembly also vets and approves chief officers in the counties. The chief officers are the persons who head the county government departments.
- The Constitution vests the legislative authority of the county on the county assembly. It also empowers the county assembly to exercise this authority. The county assembly can make any laws that enable the county governments to perform effectively. The performance involves the functions and exercise of the powers of the county government] under the Fourth Schedule.
The 2010 Constitution brought systemic shift in the general governance in the public sector. It brought about devolution. A ‘Devolved Government’ is a system of government where there is a transfer or allocation of authority from a central government to a regional government. So, why did Kenyans need devolution? Peter Wanyande and Tom Mboya can answer this question amicably. The two noted that: For close to three decades Kenyans clamored for a new constitution and a change in the way the country was governed. The search for a new constitution was informed by many factors. One key factor was the dissatisfaction with the highly centralized model of governance, associated with imbalance in resource allocation resulting in ethno-regional development inequalities, marginalization of some communities and failure to involve the people in governance processes, among other ills. The people therefore yearned for a more equitable distribution of national resources and an end to development inequalities between regions of the country, fuelled largely by ethnicity. It is against this backdrop that on 27th August 2010 the country promulgated a new constitution, the Constitution of Kenya 2010 (CoK, 2010). The nerve center is a devolved system of government, comprising one national government and 47 county governments. The implementation of the devolved system of governance commenced in March 2013 following the general elections held that year.’
Moreover, Article 174 of the Constitution vouchsafes on objects of devolution. The said Article provides that the objects of devolution include but not limited to; to promote democratic and accountable exercise of power; to foster national unity by recognizing diversity; to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them; to recognize the right of communities to manage their own affairs and to further their development; to protect and promote the interests and rights of minorities and marginalized communities; to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya; to ensure equitable sharing of national and local resources throughout Kenya; to facilitate the decentralization of State organs, their functions and services, from the capital of Kenya; and to enhance checks and balances and the separation of powers. Thus having noted what devolution entails it is prudent that we get to note the essence of county assemblies for that is the major focus of this paper.
The role of the County Assembly in Kenya is largely concerned with legislation. The county assembly in Kenya is the law-making organ of the county government. It is one of the state organs that the Constitution delegates power. 47 county assemblies in Kenya are unique to each of the 47 counties. People elect the Ward Representatives to represent them in the assemblies. The county assembly in Kenya vets and approves nominees to hold county public offices. These nominees include the county executive committee members (or county ministers). Others are members of the county public service board (CPSB). The county assembly also vets and approves chief officers in the counties. The chief officers are the persons who head the county government departments.
The Constitution vests the legislative authority of the county on the county assembly. It also empowers the county assembly to exercise this authority. The county assembly can make any laws that enable the county governments to perform effectively. The performance involves the functions and exercise of the powers of the county government] under the Fourth Schedule. The county assembly in Kenya exercises oversight over the county executive committee. It also exercises oversight over any other county executive organs. It should play this role while respecting the principle of separation of powers. That is, without directly interfering in the functions of the county executive.
The County Assembly approves the budget and expenditure of the county government. It should authorize any allocation and expenditure of the county government. The county assembly authorizes the county executive to withdraw funds from the County Revenue Fund (Article 207). To do this, the county assembly should pass a law to authorize the withdrawal (Appropriations Act). The county assembly should also consider legislation before approving the county budget and expenditure. It should ensure the county government budget contains: estimates of revenue and expenditure, differentiating between recurrent and development expenditure; proposals for financing any anticipated deficit for the period to which they apply; and proposals regarding borrowing and other forms of public liability that will increase public debt during the following year.
On paper the Constitution envisaged a kind of perfect devolution system, not until the implementation face came into effect. It is at this point that all started crumbling down. Let me pose a question, what news is available of county assemblies save for the daily dose of fights with Homabay County Assembly taking the lead on the same. In fact the first term of devolution the county assemblies turned into wrestling rings. Oh! No I was almost forgetting. I think the county assemblies copied the same from the National Assembly where Members of National Assembly squabble whenever they disagree even on pettiest of all issues. A key reference of the same is Jaguar and Babu Owino.
Apart from the unnecessary squabbles, another issue that has been rampant in the County Assemblies definitely has to do with corruption. This takes various forms from threatening CECs with impeachment motions if they don’t part with some cash to Members of County Assembly going for foreign travels which are uncalled for just to have a meeting or team building event yet the same can be done in Kenya. At times one wonders who bewitched politicians in Kenya from the top echelons to the lower levels.
The Members of County Assemblies as well in the past have been threatening Governors with uncalled for impeachment motions to Governors and County Executive Committee Members and Chief Officers. Yes impeachment is enshrined in law when one contravenes the Constitution or other laws in the country. The MCAs have been duping the CECs and Governors to bow to their demands lest they initiate impeachment proceedings against them. This happened in numerous counties a perfect example is in Bungoma County. This shows how the county assemblies are just rotten to the core.
Good chunks of County Assemblies have failed to check on the Executive. This has led to impunity being brewed in the county assemblies. Such County Executives have taken advantage of the unholy alliance they have with the County Assemblies to perpetuate illegalities. This happens yet the Members of County Assemblies have been given the mandate to represent the people. I wonder whether the people they represent can allow impunity to gain foot in their jurisdiction. Can that really happen? Tell me kindly. Am very sure that if Montesquieu can rise from the dead he can weep for he propounded separation of powers and checks of balances.
The last bit has to do with legislation of the County Assemblies. Few county Assemblies make available the various laws made in their chambers. It is imperative for the laws made by the County Assemblies to be in the public gallery for transparency sake. As well when the same are posted in their respective websites it is then possible for one to track the achievements and the progress of a specific county assembly.
Over twelve years past the promulgation of the Constitution 2010, the County Assemblies have not lived to their expectations unfortunately. It was expected that County Assemblies are to be churning out progressive, people centered laws and policies. It seems in that house, only vibes thrive to our dismay. Thus the question, do we really need county assemblies? Yes we do for the same has been provided in the Constitution and County Government Act. However, it seems there is a perfect mismatch between the law in books and the law in practice. I humbly submit.
Jerameel Kevins Owuor Odhiambo is a law student at University of Nairobi, Parklands Campus. He regularly comments on social, political, contemporary and legal issues in equal measure.
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