the government of kenya the government of kenya

2012

George

Strathmore Law and Policy Institute

12/11/2012

The Government of Kenya

© 2012 George N. Kimotho 1

The Government of Kenya

Table of Contents 1. The National Government ............................................................................................................... 3

1.1 The National Executive ............................................................................................................ 3

1.1.1 The President & Deputy President .................................................................................. 4

1.1.2 The Cabinet ...................................................................................................................... 5

1.2 The National Legislature .......................................................................................................... 6

1.3 Conclusion ............................................................................................................................... 7

2 The County Governments ............................................................................................................... 9

2.1 The County Assembly ............................................................................................................ 13

2.1.1 Members of the County Assembly ...................................................................... 13

2.2 The County Executive ............................................................................................................ 14

2.2.1 The County Governor .................................................................................................... 15

2.2.2 County Executive Committee ........................................................................................ 18

3 PUBLIC PARTICIPATION ...................................................................................................................... 22

3.1 Constitutional Provisions ....................................................................................................... 22

3.2 Other Selected Statutory Provisions ..................................................................................... 23

3.2.1 The County Governments Act, 2012 ............................................................................. 23

3.2.2 Intergovernmental Relations Act, 2012 ........................................................................ 25

3.2.3 Transition to devolved Government Act, 2012 ............................................................. 25

3.2.4 Urban Areas and Cities Act, 2011 .................................................................................. 25

The government of Kenya has since the promulgation of the Constitution of

Kenya 2010 been set on two tiers; the national government and the county

government. Their general functions are outlined in the fourth schedule to

the constitution.

The aim of this article is to consolidate all the different functions of the

different arms and levels of government as the functions are spread out

throughout the constitution and the subsequent legislations that have been

enacted to give effect to the provision of the constitution.

Government of Kenya

National Government

National Executive

Members:

1. President

2. Deputy President

3. Cabinet- Cabinet secretaries, Secretary to

cabinet

Others: Principal Secretaries, AG & DPP

Sources: COK 2010 Chapter 9, 6,11 & 4th Schd;

National Lagislature

National Assembly

Senate

County Government

County Executive

County Governeor & deputy Governor

County executive Committee

County Legislature


1. The National Government

The National government still retains the three arms of government, namely

the judiciary, legislature and executive. For good reason, the judiciary has

not been devolved, and as such the county governments have the executive

and the legislature only.

The National government embodies a strict separation of powers with the

President remaining as the head of state and head of government. However

Presidential system we have in place is one that is highly constrained by

many checks and balances emanating from the drafting of the constitution

itself and from judiciary and legislature. As it shall be further discussed a lot

of prerogative power is no longer residual but has been granted by the

constitution while other powers have been constricted to oversight by

parliament.

The national government retains a bulk of the policy making functions on

matters cutting across the nation. It exercises oversight over county

governments, operates the national revenue, national security, foreign affairs

among other functions that shall be studied in detail further ahead. The

oversight over county government extends to suspending such a government

for good reason as well as transfer of powers between the two levels of

government.

1.1 The National Executive

Established under Chapter 9 of the Constitution the executive shall exercise

its authority in a manner compatible with the principle of service to the

people of Kenya, and for their well being and benefit. 1

Composition:

1 Article 129 (2) COK 2010

The President

Cabinet Secretaries

Secretary to Cabinet

Principle Sectretaries, A.G,

D.P.P

Deputy President


1.1.1 The President & Deputy President

The President is the Head of State and Government; he exercises the

executive authority of the Republic, with the assistance of the Deputy

President and Cabinet Secretaries. He is the Commander-in-Chief of the

Kenya Defence Forces, is the chairperson of the National Security Council,

and is a symbol of national unity.2

Going by the solemn affirmation of allegiance and that of due execution of the office of the president he is to be faithful and bear true allegiance to the

Republic of Kenya; to obey, preserve, protect and defend the Constitution of Kenya, and that he is to protect and uphold the sovereignty, integrity and

dignity of the people of Kenya. Further, the President solemnly affirms to truly and diligently serve the people and the Republic of Kenya in the office of the President, to diligently discharge his duties and perform his functions

in the Office of President of the Republic of Kenya; to do justice to all in accordance with the Constitution, as by law established, and the laws of Kenya, without fear, favour, affection or ill-will.3 The general functions set out at Article 132 are:

address the opening of each newly elected Parliament;

address a special sitting of Parliament once every year and may address Parliament at any other time; and

once every year— i. report, in an address to the nation, on all the measures taken and the

progress achieved in the realisation of the national values, referred to in Article 10;

ii. publish in the Gazette the details of the measures and progress under sub-paragraph (i); and

iii. Submit a report for debate to the National Assembly on the progress made in fulfilling the international obligations of the Republic.

Nominations and Appointments The President shall nominate and with the approval of the national Assembly

appoint and may dismiss Cabinet Secretaries, the Attorney General, and Secretary to Cabinet, Principal Secretaries, Diplomats and other state

officers. Cabinet:

The President chairs cabinet meetings, directs and co-ordinate ministerial functions.

2 Article 131

3 Adapted from the Third Schedule of the Constitution of Kenya 2010, National Oaths and Affirmations


Other Functions:

As head of state, he may establish an office in the public service in accordance with the recommendation of the Public Service Commission,

assign responsibility for the implementation of an Act of Parliament to a Cabinet Secretary, receive foreign diplomatic and consular representatives, confer honours in the name of the people and the republic, declare war or a

state of emergency with the approval of Parliament. Finally the President shall ensure that the international obligations of the Republic are fulfilled through the actions of the relevant Cabinet Secretaries.

It is notable that a lot of functions of the President are not to be exercised in

absolute autonomy. His principal assistant is the deputy President who shall also deputise for him in the execution of Presidential functions.4

1.1.2 The Cabinet

The Cabinet is composed of the President, the Deputy President, the

Attorney-General, and 14-22 Cabinet Secretaries who are appointed by the

President with approval of Parliament. Other state officers who serve with

the Cabinet are the Principal Secretaries and the Secretary to cabinet also

appointed by the President with approval of Parliament.

The Cabinet Secretaries are accountable individually and collectively to the

President for the exercise of their powers and the performance of their

functions.5

The Principal Secretaries appointed by the President are in charge of the

state department and perform the functions formerly performed by the

Permanent secretaries. However, this office is in the public service meaning a

further divesture of Presidential powers to make appointment unilaterally. 6

4 Article 147

5 Article 153(2)

6 Article 155


1.2 The National Legislature

The Constitution at Article 93 establishes a bicameral parliament somewhat

similar to what Kenya had at independence up to 1966, consisting of the

National Assembly and the Senate.

The National Assembly;

Determines the allocation of national revenue between the levels of government;7

Appropriates funds for expenditure by the national government and other national state organs;

Reviews the conduct in office of the President, the Deputy President and other state officers and initiates the process of removing them

from office;

Exercises oversight over State organs; ad

Approves declarations of war and extensions of states of emergency

On the other hand, the Senate;

Represents the counties, and serves and protects the interests of the counties and their governments

Participates in the law-making function of parliament by considering, debating and approving Bills concerning counties

Determines allocation of national revenue among counties and exercises oversight over national revenue allocated to the county

governments

Participates in the oversight of state officers by considering and

determining any resolution to remove the President or the Deputy President from office in accordance with Article 145

It is noteworthy that the Parliament under Chapter eight of the Constitution assumes both the legislative function as well as a policy-making making function. The Senate ensures representation of group interests such as those

of the youth, persons with disabilities and women, in addition to the general responsibility to protect the interests for county governments. Allocation of

national revenue and the budget making process hitherto was the prerogative of the executive through the treasury. However this has been all taken up by parliament. As such Parliament will not just be a law making

body but as well as a policy maker.

Parliamentary offices established under the Constitution include the office of

the speaker and the deputy speaker, the Party Leaders, Parliamentary Service Commission and the Clerks.

7 Further provisions made at Chapter 12 of the Constitution and the Public Finance Management Act, 2012


The Speaker of the National Assembly presides over a joint sitting of the

Houses of Parliament assisted by the speaker of the Senate; as such it would be likely that the National Assembly is considered the higher house.

The Party Leaders replace the position of the leader of government business in parliament and the leader of opposition because of the strict presidential

system adopted in 2010. The party leaders include the leader of the majority party and a leader of the minority party, in the National Assembly. However, their roles have not been defined succinctly by the Constitution.

1.3 Conclusion

The functions of the National Government have been outlined as follows in

the Fourth Schedule to the Constitution:

1. Foreign affairs, foreign policy and

international trade.

2. The use of international waters and water

resources.

3. Immigration and citizenship.

4. The relationship between religion and

state.

5. Language policy and the promotion of

official and local languages.

6. National defence and the use of the

national defence services.

7. Police services, including—

(a) The setting of standards of

recruitment, training of police and

use of police services;

(b) Criminal law; and

(c) Correctional services.

8. Courts.

9. National economic policy and planning.

10. Monetary policy, currency, banking

(including central banking), the

incorporation and regulation of banking,

insurance and financial corporations.

11. National statistics and data on

population, the economy and society

generally.

12. Intellectual property rights.

13. Labour standards.

14. Consumer protection, including

standards for social security and professional

pension plans.

15. Education policy, standards, curricula,

examinations and the granting of university

charters.

16. Universities, tertiary educational

institutions and other institutions of research

and higher learning and primary schools ,

special education, secondary schools and

special education institutions.

17. Promotion of sports and sports

education.

18. Transport and communications,

including, in particular—

(a) Road traffic;

(b) The construction and operation

of national trunk roads;

(c) Standards for the construction

and maintenance of other roads by

counties;


(d) Railways;

(e) Pipelines;

(f) Marine navigation;

(g) Civil aviation;

(h) Space travel;

(i) Postal services;

(j) Telecommunications; and

(k) Radio and television

broadcasting.

19. National public works.

20. Housing policy.

21. General principles of land planning and

the co-ordination of planning by the

counties.

22. Protection of the environment and

natural resources with a view to establishing

a durable and sustainable system of

development, including, in particular—

(a) Fishing, hunting and gathering;

(b) Protection of animals and

wildlife;

(c) Water protection, securing

sufficient residual water, hydraulic

Engineering and the safety of dams;

and

(d) Energy policy.

23. National referral health facilities.

24. Disaster management.

25. Ancient and historical monuments of

national importance.

26. National elections.

28. Health policy.

29. Agricultural policy.

30. Veterinary policy.

31. Energy policy including electricity and

gas reticulation and energy regulation.

32. Capacity building and technical

assistance to the counties.

33. Public investment.

34. National betting, casinos and other

forms of gambling.

35. Tourism policy and development.


2 The County Governments

The establishment of a devolved government is seen as one of the most

fundamental break of the new constitution from the repealed constitution8

whose main objective was to bring the structures of governance back to the

people. This is captured at Article 174; objects and principles of devolved

government; ‗…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;‘

The arms of county governments are established at Article 176:

176. County Governments

(1) There shall be a county government for each county, consisting of a

county assembly and a county executive.

(2) Every county government shall decentralise its functions and the

provision of its services to the extent that is efficient and practicable to do so.

The operation of the county governments is expected to reflect the following

principles:

(a) County governments shall be based on democratic principles and

separation of powers;

(b) County governments shall have reliable sources of revenue to

enable them to govern and deliver services effectively; and

8 Franceschi, The Constitution of Kenya: An Introduction (unpublished)

County Government

County Executive

Governor & Deputy

Governor

County Executive

Committee

County Assembly


(c) No more than two-thirds of the members of representative bodies in

each county government shall be of the same gender.

The functions of County governments have been delimited at the Fourth

Schedule of the Constitution, whereby Article 185 requires the county

assemblies to pass legislation necessary for the effective performance of

those functions.

At the same time some functions fall under the jurisdiction of both the

national government and the county governments and are thus concurrent

functions. In this case, the Constitution foresees a system of devolution

based on co-ordination, consultation and co-operation.9

These functions include:

9 Article 189 on cooperation between national and county governments


1. Agriculture, including—

(a) Crop and animal husbandry; (b) Livestock sale yards; (c) County abattoirs; (d) Plant and animal disease control; and (e) Fisheries.

2. County health services, including, in particular—

(a) County health facilities and pharmacies; (b) Ambulance services; (c) Promotion of primary health care; (d) Licensing and control of undertakings that sell food to The public; (e) Veterinary services (excluding regulation of the Profession); (f) Cemeteries, funeral parlours and crematoria; and (g) Refuse removal, refuse dumps and solid waste disposal.

3. Control of air pollution, noise pollution, other public nuisances and Outdoor advertising. 4. Cultural activities, public entertainment and public amenities, including—

(a) betting, casinos and other forms of gambling; (b) Racing; (c) Liquor licensing; (d) Cinemas; (e) Video shows and hiring; (f) Libraries; (g) Museums; (h) Sports and cultural activities and facilities; and (i) County parks, beaches and recreation facilities.

5. County transport, including—

(a) County roads; (b) Street lighting; (c) Traffic and parking; (d) Public road transport; and

(e) Ferries and harbours, excluding the regulation of international and national shipping and matters related

Thereto. 6. Animal control and welfare, including—

(a) licensing of dogs; and (b) facilities for the accommodation, care and burial of animals.

7. Trade development and regulation, including—

(a) markets; (b) trade licences (excluding regulation of professions); (c) fair trading practices; (d) local tourism; and (e) cooperative societies.

8. County planning and development, including—

(a) statistics; (b) land survey and mapping; (c) boundaries and fencing; (d) housing; and (e) electricity and gas reticulation and energy regulation.

9. Pre-primary education, village polytechnics, home craft centres and childcare facilities. 10. Implementation of specific national government policies on natural resources and environmental conservation, including—

(a) soil and water conservation; and (b) forestry.

11. County public works and services, including—

(a) storm water management systems in built-up areas; and (b) water and sanitation services.

12. Fire fighting services and disaster management. 13. Control of drugs and pornography.


14. Ensuring and coordinating the participation of communities and locations in governance at the local level and assisting communities and locations to

develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level.


2.1 The County Assembly

Article 176 of the Constitution establishes the County Assembly while Article

177 provides that its members shall be elected by registered voters of wards,

each ward constitution a single member constituency. The assembly shall

also have special seats to ensure gender parity as well as members of

marginalised groups.

The County Governments Act provides additional functions including vetting

and approving nominees for the appointment to county public offices,

approve the budget and expenditure of the county government in accordance

with Article 20710 of the Constitution, and the legislation contemplated in

Article 220(2)11 of the Constitution, guided by Articles 20112 and 20313 of the

Constitution.14

The County assembly shall also approve the borrowing of the county

government, approve county development planning and perform any other

role as say be set out under the Constitution or legislation.

2.1.1 Members of the County Assembly

In addition to the general function of legislating, a county assembly member

is expected to maintain close contact with the electorate and consult them

on matters before or under discussion in the assembly, present their views

and opinions to the assembly, provide a linkage between the county

assembly and the electorate on public service delivery as well as extend any

professional knowledge, experience or specialised knowledge to any issue for

discussion in the county assembly.15

10

This Article establishes a Revenue Fund into which all revenue raised or received by and on behalf of the county government is paid. Appropriation of this fund requires county assembly’s approval. 11

The Public Finance Management Act, 2012 enacted on 24th

July 2012. 12

This Article sets out the principles of public finance among them openness and accountability including public participation if financial matters, and effective expenditure to ensure equitable development of the country. 13

This Article sets out the criteria for the equitable sharing of national revenue among the national and county governments. 14

Section 8(1) of the County Governments Act, 2012 15

Section 9; County Governments Act, 2012


2.2 The County Executive

The County Executive operates more or less like the National executive only

that its scope is limited to the county only. The Governor is the chief

executive of the County deputised by the Deputy Governor. The two

executives work aided by a County Executive Committee (CEC). The

members of the CEC are appointed by the Governor subject to the approval

by the County Assembly and they function as the cabinet at the county level.

The executive‘s functions are further decentralised according to the

decentralised units that the county may establish, whereas some of them

have already been contemplated in the County Governments Act, 2012

with the following hierarchy:

Governor & Deputy Governor

County Executive Committee

County SecretarySub-County

Administrator

Village Administrator

Ward Administrator

County AssemblyCounty Public Service Board


The County Governor

The Deputy County Governor

The County Executive Committee & County Chief Officers

The Sub-County Administrator

County Service Board

Ward Administrator

Village Administrator Village Council

2.2.1 The County Governor

Being the chief executive in the county government, the governor has a wide

scope of functions. Some of them are outlined in various pieces of legislation

such as the County Governments Act, the Public Finance Management Act,

Intergovernmental Relations Act, Transition to Devolved Governments Act

and the Constitution of Kenya.

County Governments Act, 2012:

Section 32: functions and responsibilities of the county governor;

Diligently execute the functions and exercise the authority provided for in the Constitution and legislation;

Perform such State functions within the county as the President may from time to time assign on the basis of mutual consultations;

Represent the county in national and international fora and events;

appoint, with the approval of the county assembly, the county

executive committee in accordance with Article 179(2)(b) of the

Constitution;

constitute the county executive committee portfolio structure to

respond to the functions and competencies assigned to and

transferred to

each county;


submit the county plans and policies to the county assembly for

approval;

consider, approve- and assent to bills passed by the county assembly;

chair meetings of the county executive committee;

The county governor shall also serve the nation in the following institutions:

2.2.1.1 National and County Government Co-ordinating Summit

This Summit is an apex body for intergovernmental functions established by

Intergovernmental Relations Act.16 In this body, the Governors of the forty seven counties are meant to work together with the President to provide a forum for the following:

a) consultation and co-operation between the national and county

governments;

b) promotion of national values and principles of governance;

c) promotion of national cohesion and unity;

d) consideration and promotion of matters of national interest;

e) consideration of reports from other intergovernmental forums and

other bodies on matters affecting national interest;

f) evaluating the performance of national or county governments and

recommending appropriate action;

g) receiving progress reports and providing advice as appropriate;

h) monitoring the implementation of national and county development

plans and recommending appropriate action;

i) considering issues relating to intergovernmental relations referred to

the Summit by a member of the public and recommending measures

to be undertaken by the respective county government;

j) co-ordinating and harmonizing the development of county and

national governments policies;

k) facilitating and co-ordinating the transfer of functions, power or

competencies from and to either level of government; and

l) performing any other function that may be conferred on it by this Act

or any other legislation or that it may consider necessary or

appropriate

This summit shall submit annual reports to the National Assembly, the

Senate and the county assemblies, although these houses may request for

information from the summit at any point in a year. The summit shall also

convene the Intergovernmental Relations Technical Committee which

16

An Act of Parliament to establish a framework for consultation and co-operation between the national and county governments and amongst county governments; to establish mechanisms for the resolution of intergovernmental disputes pursuant to Articles 6 and 189 of the Constitution, and for connected purposes.


shall be responsible for the day to day administration of the summit and the

Council of County Governors.17

2.2.1.2 Council of County Governors

Established at Section 19 of the Intergovernmental Relations Act, the

Council shall comprise of the 47 county governors, with a chairperson and

deputy chairperson elected from within the county governors. The principal

functions of the council shall be to provide a forum for consultation of the

development of the counties; a forum to learn best practices, share ideas on

capacity building for governors, resolving any inter-county conflicts,

discussing inter-county projects and matters of common interest to the

county governments.18

2.2.1.3 County Intergovernmental Forum

Section 54 of the County Governments Act establishes this forum for every

county, which forum shall be headed by the county governor. It shall

comprise of all heads of national government departments rendering services

in the county as well as the county executive committee members or their

proxies. The basic function of this forum if pursuant to Articles 185, 186, &

187 of the constitution; to provide a forum for;

a) harmonization of services rendered in the county;

b) coordination of development activities in the county; c) coordination of intergovernmental functions; and d) such other functions as may be provided for by or under any law.

2.2.1.4 County Budget and Economic Forum

Each county shall have the (Name of the County) County Budget and

Economic Forum19, e.g. Nairobi County Budget and economic Forum¸

comprising the County Governor who also acts as the chair, county

executive Committee members and a number of representatives not being

county public officers, who are appointed by the governor from nominees by

organisations representing professionals, businesses, labour issues, women,

persons with disabilities, the elderly and faith based groups at the county

level.20

The functions of these forums in each county shall be to provide a means for

the consultation by the county government on preparation of county plans,

the County Fiscal Strategy Paper and the Budget Review and Outlook Paper

for the county; and matters relating to budgeting, the economy and financial

management at the county level.

17

18

Section 20; Intergovernmental Relations Act, 2012 19

Section 137(1); Public Finance Management Act, 2012 20

Section 137(2); ibid


The governor who shall chair the Council of County Governors shall also be

a member of the Intergovernmental Budget and Economic Council21

whose purpose is to provide a forum for consultation and cooperation

between the national government and county governments on budgetary,

financing matters.22

2.2.2 County Executive Committee

The CEC is somewhat like cabinet in the national executive, only that its

membership, in terms of numbers, must be proportional to the membership

of the county assembly.

The general functions of CECs are outline as follows at Article 183 of the

Constitution:

(1) A county executive committee shall—

a) implement county legislation; b) implement, within the county, national legislation to the

extent that the legislation so requires;

c) manage and coordinate the functions of the county administration and its departments; and

d) perform any other functions conferred on it by this Constitution or national legislation.

(2) A county executive committee may prepare proposed legislation for consideration by the county assembly.

(3) The county executive committee shall provide the county assembly with full and regular reports on matters relating to the county.

The County Governments Act 2012 sets out that the executive committee shall exercise of executive authority- 23

in accordance with the Constitution and relevant national and county

legislation;

for the well-being and benefit of the people;

taking into account the objects and principles of devolution of government set out under Article 174 and 175 of the Constitution;

while enhancing self-governance for communities in the management of development programs;

while ensuring the protection and promotion of the interests and rights of minorities and marginalized communities;

while promoting gender equity;

while promoting social and economic

development within the county; and

21

Section 187; ibid 22

See Section 187(2) ibid 23

Section 34; County Governments Act


while ensuring equitable sharing of available resources throughout the

county.

The CEC shall also supervise the administration and delivery of services in the county and all decentralized units and agencies in the county and carry

out any function incidental to any of the assigned functions under Article 183 of the Constitution. Further, Section 47 outlines the role of CEC in urban area of city planning as that of monitoring and facilitation.

All county executive committee members are individually and collectively accountable to the governor in the exercise of their powers and performance

of their duties and responsibilities.24

The County executive Committee members shall also serve in some of the

following organs in the county and national governments:

o The County Treasury: the member in charge of finance o County revenue Fund: the member in charge of finance shall ensure

public participation in the county budget process;

o County Budget & economic Forum o Intergovernmental Budget and Economic Council

The above institutions are established by the Public Finance Management Act, 2012 under Sections 103, 125, 137, and 187 respectively.

Other persons in the County Executive include:

2.2.2.1 County Chief Officers

This shall be an office in the public service. However, the officer shall be

appointed by the governor with approval of the county assembly from

persons nominated and recommended by the County Public Service Board.25

A county chief officer shall be responsible to the respective county executive committee member for the administration of a county department as maybe

established by CEC.26

2.2.2.1.1 Offices in the decentralised units

Section 48 of the County Governments Act allows the county governments

act to create further decentralisation units as they may determine. However,

the Act already establishes the following units:

2.2.2.1.1.1 Sub-County Administrator

Each sub-county shall have a sub-county administrator, an officer appointed

by the County Public service Board, with qualifications and knowledge in

management.

24

Section 39(1); ibid 25

Section45; County Governments Act, 2012 26

The County Executive Committee is responsible for determining the organization of the County


The officer shall be responsible for the coordination, management and

supervision of the general administrative functions in the sub-county unit,

including —

a) the development of policies and plans; b) service delivery ; c) developmental activities to empower the community;

d) the provision and maintenance of infrastructure and facilities of public services;

e) the county public service; f) exercise any functions and powers delegated by the County Public Service

Board under section 86;27 and g) facilitation and coordination of citizen participation in the development of

policies and plans and delivery of services

The Sub-county administrator is responsible to the county chief officer.

2.2.2.1.1.2 Ward Administrator

Below the Sub-county administrator is the Ward Administrator28 appointed by the

County Public Service Board, who also coordinates, manages and supervises

general administrative functions within the ward unit including-

(a) the development of policies and plans; (b) service delivery; (c) developmental activities to empower the community; (d) the provision and maintenance of infrastructure and facilities of public

services; (e) the county public service (f) exercise any functions and powers delegated by the County Public Service

Board under section 86;29 and.

(g) coordination and facilitation of citizen participation in the development of policies and plans and delivery of services.

2.2.2.1.1.3 Village Administrator

This office is responsible to the Ward Administrator and also appointed by the

CPSB. In addition coordinating, and managing and supervising general

administrative duties in the village, the Village Administrator has a more specific

duty of

Ensuring and coordinating the participation of communities and locations in

governance at the local level and assisting communities and locations to

develop the administrative capacity for the effective exercise of the functions

and powers and participation in governance at the local level30

27

(1) The County Public Service Board may delegate, in writing, any of its functions to any one or more of its members and the county secretary, county chief officer, sub-county or Ward administrator, village administrator, city or municipal manager and town administrators.29

(2) The provisions of this Part shall apply to the person to whom the powers are delegated under this section.

28 Section 51; County Governments Act, 2012

29 See Note 27 supra

30 Paragraph 14 of Part II of the Fourth Schedule to the Constitution


The village administrator shall also be the chairperson of the village council.

2.2.2.1.1.3.1 Village Council

The village council is established at Section 53 of the County Governments Act. It

comprises of the village administrator as the chairperson, and between 3-5 village

elders appointed by the village administrator with approval of the county assembly.

The village council is responsible for-

(a) ensuring and coordinating the participation of the village unit in governance;

(b) assisting the village unit to develop the administrative capacity for the

effective exercise of the functions and powers and participation in governance

at the local level;

(c) monitoring the implementation of policies at the village unit;

(d) advising the ward administrator and sub-county administrator on matters

pertaining to the village; and

(e) any other function necessary for the better administration of the village unit


3 PUBLIC PARTICIPATION

3.1 Constitutional Provisions

The Second last paragraph of the preamble to the Constitution of Kenya 2010 sets the standard of public participation in the governance of Kenya as

follows: ―EXERCISING our sovereign and inalienable right to determine the form of

governance of our country and having participated fully in the making of this Constitution:‖ At almost every chapter, the Constitution lays out principles and objects of the various modes of governance, and every time, it lays clear emphasis on public participation and consultation. The following Constitutional and Statutory Provisions provide a platform for public participation: Article 1: gives the rationale for public participation and consultation: All

sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.

Article 10(2) further outlines the National Values and Principles; (a) patriotism, national unity, sharing and devolution of power, the

rule of law, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non- discrimination and protection of the marginalised; (c) good governance, integrity, transparency and accountability; And (d) sustainable development.

The import of public participation is to ensure a democracy founded on the rule of law and human dignity. As such public participation and accountability are essential. Article 35: Access to information; every citizen has the right of access to information held by the State; and information held by another person and required for the exercise or protection of any right or fundamental freedom. This provision is important because it goes towards increasing public awareness which then gives the public better capacity to make public officers accountable. Article 47: Fair Administrative Action

“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”

This Article is the arguably the constitutional background of administrative

law in Kenya. Of essence if reasonableness and procedural fairness which go a long way to ensure legitimacy of decisions made by people exercising public powers. Administrative action is deemed fair if it the rights, liberties

and interests of such parties are likely to be affected by any such action are consulted and a decision that reflects their input is arrived at using a

predictable and consistent procedure. Further the Courts through Judicial Review remedies and other ‗appropriate relief‘ can enhance the effectiveness of this right.

Article 94: Role of Parliament. Parliament‘s legislative authority is derived

from the people and in the exercise of that authority, Parliament is expected to manifest the diversity of the nation, represent the will of the people and promote democracy. Article 118: Public Access and Participation Parliament shall –


(a) conduct its business in an open manner, and its sittings and those of its committees shall be open to the public; and (b) facilitate public participation and involvement in the legislative and other business of Parliament and its committees.

This is bolstered by Article 119 which gives a right to every person to petition Parliament to consider any matter within its authority including enacting, amending or repealing any legislation. 31 Article 174: Objects of devolution Relevant objects include:

to promote democratic and accountable exercise of power;

to foster national unity by recognising 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 recognise 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 marginalised communities;

to ensure equitable sharing of national and local resources throughout Kenya;

to enhance checks and balances and the separation of powers. Devolution of governance realises a real transfer of public power from a centralised control and takes it much closer to the people such that public participation shall be more effective. Article 201: Principles of Public finance Key among the objects is openness and accountability, including participation. Use of public money must be prudent and responsible while financial management shall also be responsible and fiscal reporting clear. Article 232: Values and Principles of Public Service Sub-article 1 demands involvement of the people in policy making, accountability for administrative acts, and transparency and provision to the public of timely, accurate information.

3.2 Other Selected Statutory Provisions

3.2.1 The County Governments Act, 2012

Right to petition: A person has a right to petition a county assembly to

consider any matter within its authority, including enacting, amending or

repealing any of its legislation. This provision is a replica of the

Constitutional provision in Article 119 which addresses the National

legislature.

31

See also Article 119 which requires the same from County Assemblies


Part VII of this Act is dedicated to Citizen Participation. Section 87 outlines

the principles of citizen participation in counties as follows:

(a) timely access to information, data, documents, and other information

relevant or related to policy formulation and implementation;

(b) reasonable access to the process of formulating and implementing policies,

laws, and regulations, including the approval of development proposals,

projects and budgets, the granting of permits and the establishment of

specific performance standards;

(c) protection and promotion of the interest and rights of minorities,

marginalized groups and communities and their access to relevant

information;

(d) legal standing to interested or affected persons, organizations, and where pertinent, communities, to appeal from or, review decisions, or redress

grievances, with particular emphasis on persons and traditionally marginalized communities, including women, the youth, and

disadvantaged communities; (e) reasonable balance in the roles and obligations of county governments

and non-state actors in decision-making processes to promote shared

responsibility and partnership, and to provide complementary authority and oversight;

(f) promotion of public-private partnerships, such as joint committees, technical teams, and citizen commissions, to encourage direct dialogue

and concerted action on sustainable development; and (g) recognition and promotion of the reciprocal roles of non-state actors'

participation and governmental facilitation and oversight.

Section 88 gives citizens a right to petition the county government (executive ad

county assembly) in general, on any matter under the responsibility of the

county government.

Section 89 is a key provision as it imposes a duty on the county government

authorities, agencies and agents a duty to respond expeditiously to petitions

and challenges from the citizens.

Section 91 obligates the county government to establish modalities ad

platforms for citizen participation.

Part IX of the statute generally provides that the mechanisms of public

participation shall be established at every level of decentralised unit in the

counties.


3.2.2 Intergovernmental Relations Act, 2012

Section 29 (Public Participation) is noteworthy in that it provides that the

framework for public participation in the transfer or delegation of powers, functions

or competencies by either level of government under this Part III of the Act

(Regulations Transfer and Delegation of Powers, Functions and Competencies) shall be

provided by way of regulations.

3.2.3 Transition to devolved Government Act, 2012

Section 27 (Access to Information) pursuant to Article 35 of the Constitution

allows a person to request the Transition Authority for any information relating to its

functions.

3.2.4 Urban Areas and Cities Act, 2011

This gives effect to Article 184 of the Constitution; to provide for the,

classification, governance and management of urban areas and cities; to

provide for the criteria of establishing urban areas, to provide for the

principle of governance and participation of residents and for connected

purposes.

The Second Schedule a detailed breakdown of the various ways in which

residents of cities and municipalities can participate in their administration

and make the administration accountable.

Residents of a city or urban area have a right to –

(a) contribute to the decision-making processes of the city or urban area

by submitting written or oral presentations or complaints to a board or

town committee through the city or municipal manager or town

administrator;

(b) prompt responses to their written or oral communications;

(c) be informed of decisions of a board, affecting their rights, property and

reasonable expectations;

(d) regular disclosure of the state of affairs of the city or urban area,

including its finances;

(e) demand that the proceedings of a board or committee and its

committees or sub committees be—

i. conducted impartially and without prejudice; and

ii. untainted by personal self-interest;

With regard to participation by residents, a city or urban area shall

develop a system of governance that encourages participation by residents in its affairs, and shall for that purpose –


(a) create appropriate conditions for participation in— i. the preparation, implementation and review of the integrated

development plan; ii. the establishment, implementation and review of its

performance management system;

iii. the monitoring and review of its performance, including the outcomes and impact of its performance;

iv. the preparation of its budget; and

v. making of strategic decisions relating to delivery of service;

(b) contribute to building the capacity of— i. the residents to enable them participate in the affairs of the city

or urban area; and

ii. members of the board or town committee and iii. staff to foster community participation;

(c) apply its resources, and allocate funds annually as may be appropriate

for the implementation of paragraphs (a) and (b); and

(d) establish appropriate mechanisms, processes and procedures for—

i. the receipt, processing and consideration of petitions and

complaints lodged by residents; ii. petitions and public comments procedures, when

appropriate; iii. notification of public meetings and hearings organised by a

board or town committee;

iv. consultative sessions with locally recognized resident organisations; and

v. reporting to the residents.

The Citizen Fora established at Section 22 allow residents of an urban

area to make deliberations and proposals to relevant bodies subject to the

Second Schedule.

the government of kenya the government of kenya

Documents