A GUIDE TO THE MANDATES AND PROCEDURES OF … · a guide to the mandates and procedures of county governments ... immunity from legal proceedings ... a guide to the mandates and procedures

A GUIDE TO THE MANDATES ANDPROCEDURES OF COUNTY GOVERNMENTS

IN KENYA

Transition Authority

A GUIDE TO THE MANDATES

AND PROCEDURES OF COUNTY

GOVERNMENTS IN KENYA

Published by:

ISBN: 978-9966-21-355-6

© Transition Authority & Electoral Institute for Sustainable Democracy in Africa (EISA), 2013

iii

TABLE OF CONTENTS

List of Acronyms ........................................................................................ viii

Foreword ..................................................................................................... x

Acknowledgement ..................................................................................... xii

A. General Background ................................................................................... 1

B. Devolution ................................................................................................... 5

C. Enhancement of Democratic Culture and

Accountability ............................................................................................. 7

D. Political Parties in governance ..................................................................... 8

E. Distinctiveness,interdependence and intergovernmental

relationships .............................................................................................. 12

F. Public Finance Management ...................................................................... 14

G. The Structure of Government .................................................................... 19

H. The Mandate, role and function of County Government ............................ 22

I. Functions and roles of County Governments ............................................. 23

J. The County Executive ................................................................................. 24

Composition of a County Executive

Election, Role and Function of Offi cers of a County Executive

The County Governor

The County Executive Committee

County Public Service

K. The County Assembly ................................................................................. 28

Composition of a County Assembly

Election and Nomination of Members of a County Assembly

Speaker of a County Assembly

The Majority Leader and the Minority Leader of a County Assembly

Mandate, Role and Function of a County Assembly

iv

Management and Administration of a County Assembly

The County Assembly Service Board

The Clerk and Staff of a County Assembly

The Contact of a County Assembly with the National Parliament and County

Executive

L. Operations of A County Assembly .............................................................. 33

Environment in which a County Assembly Operate

Segments/Seasons in the life of a County Assembly

The Oath of Allegiance or Affi rmation of Allegiance

M. The Powers, Privileges and Immunities of A County Assembly ................... 39

Origin of Privilege

What is Privilege?

Immunity from Legal Proceedings – Freedom of Speech

Committee of Privilege

Evidence

Privilege of Witnesses

Sanctions Against False Evidence

Courts not to exercise jurisdiction in respect of acts of the Hon. Speaker and

Offi cers of a County Assembly

Mechanisms for the Public to Access, Participate in and Oversight a County

Assembly

N. The Work and Proceedings of A County Assembly ...................................... 44

Work of a County Assembly

Proceedings of a County Assembly

Orders of the Day and Order of Proceedings

Placement of Business on the Order Paper

The Votes and Proceedings

How a Matter gets on the Order Paper

v

Modes of Decision Making

Member not obliged to vote

Status of the Division – no vote for the Hon. Speaker

O. The Practice and Procedure ....................................................................... 52

Content of the Practice and Procedure of a County Assembly

In the Chamber – Conduct of Members and the Business

The Speaker entering and leaving the Chamber

Members entering and leaving the Chamber

Papers to be read in the Chamber

Members not to read out Speeches or Personal Statements

Maiden Speeches

Members to be heard without Interruption

Interrupting a Member speaking – to raise a Point of Order

Manner of Speaking in a County Assembly

Referring to occupants of the Chair

Moderate Language - unparliamentary words

Declaration of personal interest

Relevance

Decided matters may be rescinded

Anticipation of matters likely to be debated

Allegation and substantiations

Quorum of a County Assembly

P. How Resolutions are made – Motions ........................................................ 60

Substantive Motions

Notice of a Motion

When a Motion is in possession of a County Assembly

Amendments to a Motion- Motion as amended

Moving amendments to Bills and Motions

How to second an amendment

vi

Q. How a Law is made - Acts of County Assembly ......................................... 63

What is a Bill?

The stages in the making of a Law

Not more than one stage of a Bill may be dealt with at a Sitting

Assent of the County Governor

Custody of Acts of a County Assembly

Adherence to the Fourth Schedule of CK 2010

R. Sittings, Adjournments and Adjournment motions ..................................... 65

Sittings

Adjournments

End of Normal Sitting

Raising Defi nite, Urgent Matters of State/County Importance

Dilatory Adjournment Motions

Motions to curtail ongoing Business

Leave of a County Assembly

Limitation of Debate

S. Committees of A County Assembly ........................................................... 69

Committees of the Whole County Assembly

Select Committees

Membership of Committees

Procedure in Committees and Record of Work

Public Access and Participation

T. The Budget in The County Assembly ........................................................... 72

Role and function of the Cabinet Secretary for Finance

Role and function of the Commission for Revenue Allocation

Role and function of the National Parliament

Role and function of the County Executive Committee

How the estimates of the Annual Budget arrive in a County Assembly

vii

• Sequence of processing the Annual Budget

• Role and Function of the Select Committees

• Role and function of a County Assembly

APPENDICES ............................................................................................. 78

Appendix A: Guide to establishment of County Public Service and Board

Appendix B: Guide to establishment of County Assembly Service and Board

Appendix C: Oaths of Offi ce

Appendix D: Distribution of Functions between National and County Governments

Appendix E: List of Counties

Appendix F: Bibliography

viii

LIST OF ACRONYMS

CK 1963 CONSTITUTION OF KENYA, 1963

CK 2010 CONSTITUTION OF KENYA 2010

SIDA SWEDISH INTERNATIONAL DEVELOPMENT AGENCY

WFD WESTMINSTER FOUNDATION FOR DEMOCRACY

EISA ELECTORAL INSTITUTE FOR SUSTAINABLE DEMOCRACY IN AFRICA

THE CPST THE CENTRE FOR PARLIAMENTARY STUDIES AND TRAINING

LEGCO LEGISLATIVE COUNCIL

KADU KENYA AFRICAN DEMOCRATIC UNION

KANU KENYA AFRICAN NATIONAL UNION

APP AFRICAN PEOPLES PARTY

KPU KENYA PEOPLES UNION

FRG FEDERAL REPUBLIC OF GERMANY

UK UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

CGA COUNTY GOVERNMENTS ACT 2011

PFM PUBLIC FINANCE MANAGEMENT ACT 2012

SSMS SPECIAL SEAT MEMBERS IN THE COUNTY ASSEMBLIES

MMGS MEMBERS OF MARGINALISED GROUPS IN THE COUNTY ASSEMBLIES

CCA CLERK OF COUNTY ASSEMBLY

CASB COUNTY ASSEMBLY SERVICE BOARD

NALK NATIONAL ASSOCIATION OF LEGISLATURES OF KENYA

ACAK ASSOCIATION OF COUNTY ASSEMBLIES IN KENYA

ACLK ASSOCIATION OF CLERKS OF LEGISLATURES IN KENYA

SCA SPEAKER OF COUNTY ASSEMBLY

CECM COUNTY EXECUTIVE COMMITTEE MEMBER

ix

BPS BUDGET POLICY STATEMENT

BROP BUDGET REVIEW OUTLOOK PAPER

MT/DMS MEDIUM TERM DEBT MANAGEMENT STRATEGY

FSP FISCAL STRATEGY PAPER

C- BROP COUNTY BUDGET REVIEW AND OUTLOOK PAPER

CEF COUNTY EMERGENCY FUND

CPS COUNTY PUBLIC SERVICE

CPSB COUNTY PUBLIC SERVICE BOARD

x

FOREWORD

A Guide to Mandates and Roles of County Governments in Kenya is a timely and

welcome resource poised to spur and contribute to sound and proper implementation of

the Constitution of Kenya, 2010 (CK 2010). The publication is critical, given the near total

transformation of the principles, processes and structures of government, which CK 2010

is set to usher in. The Constitution of Kenya, 2010, was adopted by sixty seven percent

(67%) of Kenyans in a national referendum on August 05, 2010, thereafter, promulgated

on August 27, 2010. Thus the CK2010 became the supreme basic law replacing the nearly

fi fty year old Constitution of Kenya, 1963 (CK1963). The latter was enacted by the British

House of Commons and issued as the Kenya Independence Order – in – Council of 1963.

The concepts and principles of democratic governance in CK 2010 expressly provide

for an unfettered sovereignty of the people as the arch-stone of government. Hence, the

unequivocal right of the people to participate in and oversight the government, traverses

the entire Constitution. Embedded, therein and of no less signifi cance, are the objects

and principles of devolved government. Devolution is principally meant to take away

and re-distribute/share out the power to plan, legislate, budget and make policies for

governing from an erstwhile highly centralized national executive and legislature to forty-

seven county executives and assemblies.

The implementation of CK 2010 has been going on since its promulgation. The National

Assembly has led the way, by enacting most of the legislation in the Fifth Schedule,

especially, those that should be ready by the time the fi rst general elections are held under

CK 2010. It would help to remind readers, however, that not all legislation identifi ed, under

the Fifth Schedule, must be enacted prior to the fi rst general elections in March,2013.

Indeed, a cursory view reveals that, most of the identifi ed legislations have an enactment

timeframe of three or more years. Apart from the National Assembly, virtually all organs

with responsibility to implement CK 2010 have played their part. On this score, I note with

appreciation that, though the Transition Authority was only set up in June 2012, it hit the

road running. Within a short time its input is being felt across Kenya.

Nonetheless, it goes without saying that as the time scheduled for the fi rst general elections

under the CK 2010 draws near the value of the Guide needs no further emphasis. The Guide

condenses and digests the mandates, roles and functions of both the County Executive

xi

and County Assembly. In this way it is an easy reference manual as it precludes one from

going through the more than six statutes, each of which has a little of what devolution is

about. In the same breath it provides an immediate link for the users, into how the County

Government transacts its mandate, roles and functions.

The Guide has a suffi ciently vast and rich content which is fairly easy to read .It is the

work of an author of seasoned experience and practice on the mandate and operations of

Parliaments. This Guide is a real relief to all who seek to comprehend devolution and the

operations of County Governments in Kenya.

HON. KENNETH MARENDE, EGH, ACIArb, M.P,

SPEAKER,

KENYA NATIONAL ASSEMBLY

NAIROBI

xii

ACKNOWLEDGEMENT

I fi nd it a thrilling opportunity, to be able to put down a few words as an acknowledgement

of the efforts made to produce this epoch setting publication- A Guide to Mandates and

Procedures of County Governments in Kenya. The Transition Authority welcomes this

publication which will act as a valuable guide for putting in place of the processes and

structures necessary for the operationalisation of County Governments in Kenya.

The Guide is a concise and handy manual which has meticulously put together the must

know of the Mandate and Procedure of County Governments. The project to produce the

Guide was initially conceived for the County Assembly. However, in the course of putting

it together it became necessary to expand the scope to include the County Executive.

At the same time it became necessary to add brief information on matters of general

application in the devolved system of Government in Kenya.

The Guide received a lot of support from many people. However it will not be possible to

individually acknowledge, everyone. But, I wish to pay special tribute to:

• The Hon. Speaker of the National Assembly, for ever present interest in the

work of the Transition Authority. In the short time since our appointment he

has been able to spare time to receive us and hold fruitful exchanges. Further,

he has graciously agreed to provide the Foreword;

• The Clerk of the National Assembly, who continues to work closely with

the Transition Authority, by facilitating the staff of the Parliamentary Service

Commission to participate in many of our activities;

• My colleagues, the Members of the Transition Authority, who upon appointment

and conclusion of formalities of assumption of offi ce, hit the road running and

are soaring higher everyday;

• The Electoral Institute for Sustainable Democracy in Africa (EISA) together with

their funding partners, the Government of Sweden, the Swedish International

Development Agency (SIDA-Sweden) for supporting the development of this

Guide. The views expressed in this Guide do not necessarily refl ect those of

our supporting partners.

• The Westminster Foundation for Democracy (WFD) for the sustained interest

and support to virtually all aspects of the work of the Transitional Authority;

xiii

• The Consultant, Mr. Murumba Werunga, Emeritus Clerk of Parliament and

former Head of The Centre for Parliamentary Studies and Training (The CPST),

Kenya, for reviewing relevant literature and editing the Guide.

• The secretarial staff and all the other contributors who may not be mentioned

here, but whose input remains invaluable for the successful conclusion of this

project.

I commend the Guide to all persons interested and working for the establishment of the

County Governments, as the standard and appropriate manual for the operationalisation

of County Governments in Kenya.

KINUTHIA WA MWANGI

CHAIRPERSON

TRANSITION AUTHORITY

Nairobi

1

A GUIDE TO THE MANDATES AND PROCEDURES OF COUNTY GOVERNMENTS IN KENYA

A. GENERAL BACKGROUND

1. At the turn of the twentieth century before present Kenya was offi cially constituted into

a colony and later a Colony and Protectorate of the British Crown, the British issued the

Order – in – Council of 1906 that laid out its key structures of governance. The Order

– in – Council of 1906 was in effect the fi rst Constitution of Kenya, which had been

amended ten times, by the time it was replaced in 1954 by the Lyttelton Constitution.

The Lennox-Boyd Constitution came into effect in 1958. The Ian Macleod Constitution

which came into effect in 1960 was the last of the Colonial Constitutions, drawing its

roots from the Order – in – Council of 1906.

2. The 1906 Order – in – Council amongst others provided for an Executive Council and a

Legislative Council; both evolved, respectively, to be the Executive and the Legislature of

the National Government of Kenya. The Executive Council was staffed by non – elected

Members till the dawn of Independence. On the other, the Legislative Council, begun

as a wholly nominated body but progressively its portion of elected Members kept

increasing till 1961 when it had a majority of elected indigenous members. However,

till the fi rst sitting of the Independence Parliament, on June 11, 1963, members of the

unicameral Legco were nominated or elected on racial and not on political party basis.

3. The amendments to the 1906 Order – in – Council, progressively accommodated the

demands for representation in governance by the key racial groupings. Its successor

constitutions were either totally replaced or amended for similar reasons. For instance,

the Lyttleton Constitution of 1954, whose main objective was to promote multi – racial

government, was soon superseded by the demands for increased African representation,

after the March, 1957 fi rst election for Africans. In 1958, it was replaced by the Lennox-

Boyd Constitution, which increased the Elected African Representative Members from

the fi rst seven (7) in 1957 to fi fteen (15).

4. The Constitution of Kenya, 1963, was issued in the Kenya Independence Order-in

Council of 1963 being a negotiated armistice, between the departing colonial British

government and the resilient African nationalists. By the time the Constitution of Kenya,

1963 (CK 1963), was replaced by the Constitution of Kenya, 2010 (CK 2010), it had

been amended thirty – four times.

2


5. The Constitution of Kenya, 1963, amongst others, provided for:-

5.1 Unitary parliamentary system of government, with two levels – the National

and quasi – federal devolved eight Regional Governments;

5.2 Bicameral National Parliament, comprising a Senate and a House of

Representatives; and eight Unicameral Regional Assemblies;

5.3 A National Executive, comprising a non – Executive Governor – General; an

Executive Prime Minister, a Council of Ministers all- drawn from the National

Parliament; except the Governor – General;

5.4 A Regional Executive, comprising an Executive Chairperson, Regional

Executive Committee-all drawn from the Regional Assembly;

5.5 The powers and authority to govern were heavily tilted in favour of the

Executive, though, there were less clearly defi ned structures of division of

labour and limited checks and balance vested in the National and Regional

Legislatures;

5.6 The Government at both National and Regional levels embraced principles of

competitive multi – partyism.

6. The Constitution of Kenya, 1963 was replaced by the Constitution of Kenya 2010; the

latter was adopted by 67% at a national referendum on August 05, 2010 and then

promulgated on August 27, 2010.

7. The thirty-four amendments to the CK1963, had substantially altered and obliterated,

the governance principles, structures and the entire architecture of government, by for

instance –

1.1 Retaining a Unitary Parliamentary System of Government with an Executive

President and a Unicameral National Parliament, without, the quasi – federal

devolved regional governments;

1.2 A Unicameral National Parliament, without reckonable powers to check and

oversight governance;

1.3 The powers and authority to govern were virtually wholly vested in the single

Executive President;

1.4 The status of political parties, oscillated between multi – partyism and mono –

partyism [de jure and de facto multi - partyism - 1963 to 1982; de jure mono

– partyism - 1982 to 1991; de jure multi – partyism – 1991 to 2012].

8. The two hundred and sixty – fi ve sections and six schedules enunciate a great

philosophical, economical, social and structural paradigm shift of, the governance and

3


its architecture that, had served Kenya for nearly fi fty years. The key benchmarks of the

shift include:-

8.1 The explicit sovereignty of the people of Kenya, as the custodian of the

authority and power to govern, including its apportionment to designated

state organs, institutions and offi ces, who exercise the same on behalf of the

people;

8.2 The affi rmation of the supremacy of the Constitution and exhortation of all

Kenyans to ensure its implementation and defence;

8.3 The clearer division of mandate, role, function to govern between the

main stakeholders/ arms of the state and government, i.e. the Parliament,

the Executive, the Judiciary, the ten Constitutional Commissions and two

Independent Offi ces;

8.4 The devolution, distribution, openness and accountability in governance

and service provision; upholding gender parity; inclusion of the erstwhile

marginalized communities;

8.5 The creation of two levels of government – at National and County; and

an increase in the number of Kenyans, designated to serve; thus making

governance an all inclusive Kenyan process;

8.6 The clearer checks and balances, separation of powers and mandate between

the three arms of government whereby, despite, there being no concurrent

membership of persons serving in either, there will still be co-operation and

inter-dependence

8.7 Specifying the entitlement of citizenship, its acquisition, revocation and dual

citizenship;

8.8 Specifying the rights and freedoms of the people, including their application;

8.9 Specifying the requirements for the leadership and integrity including the

national values and principles of governance;

8.10 The affi rmation of the multiparty democratic status of Kenya;

8.11The creation of a National Government, comprising of an Executive and a

bicameral National Parliament;

8.12 The creation of a County Government, comprising of an Executive and a

unicameral County Assembly;

8.13 The provision of an elaborate process of amending of the Constitution, whereby,

the amendment of certain provisions would require direct participation of the

people at a referendum.

4


8.14 The requirement of the participation of the public at all sittings of the National

Parliament and County Assemblies; including, those of the Constitutional

Commissions.

5


B. DEVOLUTION

9. Chapter Eleven on Devolved Government re-crafts the vision of the nationalism

movement as was enshrined in the Independence Constitution, 1963. This time round,

the Constitution creates forty-seven Counties each with its own elected government.

The County Government will have and exercise executive and legislative authority

including the accompanying mandates and powers, to raise limited revenue, establish

policies, plan, and budget and carry out the processes of governing. Additionally, the

National Government is obligated to support the County Governments.

Form of Devolved Government

10. The basic premise in the application of devolution is determining the extent to which

the apportionment of the traditional power and authority of the state: - to tax, spend,

account for governance, provide and deliver public services, control; distribute and

redistribute resources, legislate, set public policy, defi ne and enforce rights; and put

in place and enforce a governing machinery; is reserved in the central/national state

organs or dispersed across a range of devolved and decentralized entities of mini

governments. The investiture or dispersal among the National and County Government

is on the basis of the CK 2010 and the attendant Acts of Parliament.

11. The form of the Devolved Government in the CK 2010 is defi ned in Section 6 which

postulates that though the two levels of government are distinct, nevertheless, they

remain inter-dependent. Clarity of the extent and the apportionment of mandate,

role, function and power in the devolved system are to be found in the provisions of

Chapter Eleven, the Fourth Schedule and the Acts of Parliament that enable and give

effect to constitutional provisions. Given that government in Kenya is unitary, the two

levels are required to observe and adhere to, among other provisions CK2010, the

following:

(i) Section 10 - National Values and Principles of Governance

(ii) Part 5 – Relationships between Governments

6


The Objects and Principles of Devolved Government

12. Devolved governance is achieved by the creation of County Governments and

Decentralized Units and Structures. Underlying and embedded in the processes of

devolution are the Objects and Principles of Devolved Government provided under

Sections 174 and 175 of the CK 2OIO.

13. The Objects of Devolved Government include:-

(i) Promotion of democratic and accountable exercise of power;

(ii) Fostering national unity through recognition of diversity;

(iii) Giving powers of self – governance to the people and enhancing their

participation in the exercise of the powers of the State and in making decisions

affecting them;

(iv) Recognition of the right of communities to manage their own affairs and to

further their development;

(v) Protection and promotion of the interests and rights of minorities and

marginalized communities;

(vi) Promotion of social and economic development and the provision of

proximate, easily accessible services throughout Kenya;

(vii) Ensuring equitable sharing of national and local resources throughout Kenya;

(viii) Facilitation of the decentralization of State Organs, their functions and

services, from the capital of Kenya;

(ix) Enhancement of the checks and balances and the separation of powers among

those exercising it.

14. The Principles of Devolved Government include:-

(i) democratic principles and separation of powers;

(ii) reliable sources of revenue to be able to govern and deliver services effectively;

(iii) that the membership of representative bodies should not comprise more than

two thirds of one gender.

7


C. ENHANCEMENT OF DEMOCRATIC CULTURE AND

ACCOUNTABILITY

15. Running through CK 2010 and effecting statutes are provisions for the public to

participate in and engage in the work of both the National Parliament and the County

Assemblies. Some of these provisions follow here-below.

16. The Objects and Principles of Devolved Government under Sections174 and 175 of

CK 2010 stand for and expect a participatory system of government; for instance –

Section174 (a) promotes democratic and accountable exercise of power;

(b) gives powers of self – governance to the people and enhances their participation

in the exercise of the powers of the State and in making decisions affecting

them;

Section175 County Governments are to be based on democratic principles and

separation of powers.

17. The powers under Section 195 of CK 2010 for a County Assembly and the Select

Committees to summon witnesses to appear and give evidence and produce documents,

as is the case in virtually all democratic governments, it provides a converse, whereby,

the public seek to present evidence on any matter being dealt with. Indeed, the

common approach has invariably been that whenever a Select Committee is dealing

with legislation, budgetary matters or carrying out an inquiry on any matter, it would

always call for/ invite presentations from the public.

18. The requirement under Sections 217 (2) (d) and 221 (5) of CK 2010 for the Constitutional

Commissions; and Section 196 (1) and (2) of CK 2010 for the County Assembly and its

Select Committees to sit in public and also facilitate the participation and involvement

of the public in all business, except, in the exceptional circumstances determined by

the Hon. Speaker; these re – enforces statements in paragraphs 16 and 17 above.

19. The rights at the disposal of the public under Article 119 of the Constitution and Section

15 of the County Governments Act, 2012 to petition a County Assembly to consider

8


any matter within its authority and at the same time requiring a County Assembly to

facilitate the presentation of such petition – give an unequivocal right for the public to

both participate in and oversight the work of a County Assembly;

20. The provisions of Sections 27, 28 and 29 of the County Governments Act, 2012, provide

elaborate processes through which the electorate of an Electoral Ward, oversight the

performance of their Elected Members and could recall the Member before the expiry

of the life of that County Assembly. Those provisions by extension provide continuous

oversight over the entire County Assembly. Though it might take long to complete the

recall proceedings, the codifi cation of these provisions is a constant deterrent on any

lax performance.

D. POLITICAL PARTIES IN GOVERNANCE

21. At the core of democracy is the recognition of divergence of views and perceptions

among the “demo”, i.e. the people, who, not – with – standing the divergence, must

“cracia”, i.e. allow/ agree on how to be governed. The CK 2010 recognized this core

principle of democracy and declared in Section 4 (2) that, “The Republic of Kenya

shall be a multi – party democratic state…” Nonetheless, this declaration does not

negate the effi cacy of the provisions of Section 1 of CK 2010, which affi rms that, “All sovereign power belongs to the people of Kenya and shall be exercised only in

accordance with this constitution.” The next three sub sections, spell out how the

“sovereign power” is to be exercised and delegated at the two levels of government.

22. In a multi – party democratic State, the political parties market their manifestos to

the people, especially at elections. This process gives the people, the opportunity to

compare and make their choice.

23. Political Parties have always been part of the formation of representative democratic

governments. In Kenya, even prior to the Order – in – Council of 1906, some form of

political party had instigated its issuance. The Order – in – Council was in response to a

petition sent to the Secretary of the Colonies in London by a Colonist Association. The

Colonist Association was a social welfare – cum political pressure group of immigrant

European settlers, pressing for participation in the budding colonial government. The

9


foundation laid by the Colonist Association, was to be adopted by other races, right up

to re – Independence.

24. Presently, governments in most democratic polities, are formed by and operationalize

the manifesto of a political party, which the electorate preferred over the others at an

election. The centrality of political parties to formation of democratic government,

is endorsed, not only by their recognition but further, by the extensive elaboration

which the constitution and enabling statutes devote to their formation, management,

participation in general and other elections and the formation of government at the

two levels.

25. In addition to provisions of Section 4, the CK 2010 provides for the role and function

of political parties:-

25.1 Chapter Seven – Representation of the People – provides what is required of

Political Parties as well as Section 92 of the Political Parties Act, 2012;

(i) 25.2 Chapter Eight – The Legislature – elaborates the role and function of

Political Parties in the formation of the National Legislature, its operation

and management. The same is the case in Chapter Eleven – Devolved

Government for the formation of the County Assemblies.

(ii) 25.3 Chapter Nine – The Executive – gives further elaboration on the

role and function of political parties. Indeed, the President and Deputy

President are creations of the parties.

26. The role and function of political parties in governance, is exhaustively elaborated in

the Elections Act, 2011 while, the Political Parties Act, 2011, dwells on the formation

and management of Political Parties.

Status of Political Parties

27. The status of political parties in most democracies oscillates between One Party and

Multi – Parties. Kenya has experienced these two since Independence.

28. Kenya regained Independence on a Constitution that, provided for multi – parties.

When the First Parliament, met on June 11, 1963, three political parties were

10


represented. These were the ruling party – Kenya African National Union (KANU), the

Kenya African Democratic Union (KADU) and the African Peoples Party (APP). On the

fi rst anniversary of re – Independence on December 12, 1964, KADU and APP had

voluntarily dissolved and merged with KANU. This produced a status referred to as de

facto One Party, since the constitution had not been amended, to effect de jure One

Party.

29. The de facto One Party status lasted till April 14, 1966, when another party, the Kenya

Peoples Union (KPU), was formed. This party existed till October 1969, when it was

proscribed. Thus, the de facto One Party state resumed.

30. The fi rst general elections were held on January 06, 1970, under the de facto One

Party status.

31. The de facto One Party status prevailed till June 09, 1982, when the CK 1963, was

amended to create a de jure One Party status. This status prevailed till December 01,

1991, when the CK 1963, was amended to revert to de jure Multi – Party status. This

status has been re – affi rmed by CK 2010.

Coalition of Political Parties

32. Coalition of political parties is a phenomenon that can exist in a multi – party

democracy. Coalitions could be formed for various reasons, for instance:

32.1 Where there exists strong regional political parties, with none is capable of

marshalling suffi cient votes to attain the threshold to win a general election;

32.2 Where there exist, strong ethnically or ideologically based political parties,

with none capable of marshalling suffi cient votes to attain the threshold to

win a general election;

32.3Where there exist, numerous tiny political parties fragmented on tiny regional,

ethnic; fear of domination, often transient, so that none could stand a chance

of ever winning a general election.

33. Coalition of political parties has been common in continental Europe – Federal Republic

of Germany, Italy; in the Middle East – Israel, Lebanon; in Asia – India, Pakistan. The

11


Federal Republic of Germany (FRG) has so far been the best practice, while both Italy

and Israel are examples of the unpredictability of coalitions. The situation in Africa has

yet to be tested!

34. Pursuant to provisions of the Political Parties Act, 2011, formation of coalitions among

political parties are guided by Section 10, thus

(i) Formed and concluded, either prior to or after the general elections;

(ii) The coalition pacts are to be deposited with the Registrar of Political

Parties;

(iv) The coalition pacts apply to Members of the National and County

Assemblies;

(v) The matters core to the coalition and which the political parties are

required to abide with are in the Third Schedule. The Political Parties in the Legislature

35. The status of Political Parties in the Legislature; at National and County levels; refl ect

the above description.

36. Thus, within the Legislature, the management of political parties, whether singly or as

a coalition, have the following leadership structure:

36.1 The Leader of the Majority Party or Coalition of Parties constituting the Majority

in Legislature –

(i) Is usually a Member of the Legislature, designated by the body of the party

or coalition, as stated in its constitution [CK 2010 91(1)(b)];

(ii) In some jurisdictions, the Members of the party or coalition in a Legislature,

designate one of themselves to be their Leader;

36.2 The Leader of the Minority Party or Coalition of Parties leads the Party or

coalition of Parties constituting the biggest single number of Members in the

Legislature, next to the Majority Party. The process of designation of its leader,

is as in (i) above;

36.3 Leaders of the Majority and Minority are often recognized in the national

constitution and in the order of precedence of the Legislature, after the Hon.

Speaker. In addition to their role and function as Leaders of their parties,

12


they also shoulder management and administrative responsibilities for the

Legislature. The Standing Orders and the traditions, conventions and practice

of Legislatures, give recognition to them and elaborate their role and function.

36.4 Leaders of other parties are given less prominent recognition and responsibilities

by the procedure and practice.

36.5 In addition to the Leaders of Political Parties, the Majority and Minority

Leaders, have each a Chief Whip. The smaller parties have their own whips.

36.6 Remuneration, offi ce accommodation, staff and facilitation are usually

accorded to the Leaders and the Whips of the Majority and Minority Parties.

In some jurisdiction, there is a set criterion by which the Leaders and Whips

of smaller parties receive remuneration and limited facilitation.

E. DISTINCTIVENESS, INTERDEPENDENCE AND

INTERGOVERNMENTAL RELATIONSHIPS

37. The basis and framework for distinctiveness, interdependence and intergovernmental

relationships are statutory and by best practice. The provisions of Sections 6(2) and 189

of the CK 2010 provide a lead in this regard. Whereas Section 6(2) lays emphasis on

distinctiveness and interdependence, Section 189 demands closer liaison, consultation

and exchange of information that is necessary for appropriate working of the structures

of governance. The output of these two sections would appear to disallow subservience

of one level of government to the other, a status that should be upheld in all statutes

and regulations to be put in place for the operationalisation of devolution. Despite the

distinct constitutional functioning of the two levels, their institutional arrangements,

legal frameworks and practical operations are not based on absolute autonomy but

rather on interdependence and co-operation.

38. The need for a framework to govern the intergovernmental relations is premised on

the provisions of Sections 6(2), 187 and 189 of CK 2010. The framework has been

consolidated in the Intergovernmental Relations Act, 2012, whose principles and

objects include:-

(i) Consultation and co-operation between the National and County

Governments; and among the County Governments.

13


(ii) Establishment of institutional structures and mechanisms for

intergovernmental relations.

(iii) Giving effect to provisions of Sections 187 and 200 of the CK 2010,

regarding the transfer of functions and powers by one level of government

to the other; including the transfer of legislative powers from National to

County level.

(iv) Mechanisms to resolve intergovernmental disputes.

(v) Recognition of the sovereignty of the people.

(vi) Promotion of National Values and Principles of Governance provided for

in Section 10 of the CK 2010.

(vii)Promotion of accountability by the people in decision making and actions

taken.

(viii)Institutionalized protection of marginalized groups.

(ix) Providing a forum for coordinating the policies on legislation and functions

of the two levels of government.

(x) Providing a forum for sharing and disclosing necessary data and

information.

39. The Intergovernmental Relations Act,2012, establishes under Section 7 the following

structures:-

39.1 A National and County Governments Coordinating Summit:-

(i) Comprise of the President, the Deputy President and the Governors of the

forty-seven Counties;

(ii) The function, regulation and reporting of the Summit; also referred to as

the Apex Body, are provided for in Sections 8, 9, 10.

(iii) The Summit and the Council under 39.2 below, are supported in their

work by the Intergovernmental Relations Technical Committee (Sections

11, 12, 13, 14, 15, 16, 17, and18)

39.2 A Council of County Governors (Section 19)

(i) Comprise all Governors of the forty-seven Counties

(ii) The functions, regulation and reporting of the Council are in Sections 20,

21, 22 and 23.

39.3 The Intergovernmental Relations Act, 2012, also provides the principles and

processes for the:-

14


(i) Transfer and Delegation of Powers, Functions and Competencies.

(ii) Dispute Resolution Mechanisms.

(iii) A Schedule on the Conduct of Meetings.

39.4 Participation of the Public in work of the organs is as provided for in adherence

to provisions of Section 118 of the 2010. Those provisions are replicated for

in the work of both the Summit (Section 8(1)) and the Council(Section 20(9))

and in the entire County Government (Section 38(2) (b)).

40. In addition to the foregoing, there are Regulations and Rules made under the enabling

/effecting Acts of Parliament that enhance intergovernmental relations, including,

ensuring they operate on harmonized standards, for instance:-

(i) Section 205, Public Finance Management Act, 2012

(ii) Part VI, Public Finance Management Act, 2012

F. FINANCIAL AND BUDGETARY DOMAIN

41. The Constitution of Kenya 2010 confers responsibilities on a number of institutions

that have a bearing on public fi nance management. This is further amplifi ed by the

Public Finance Management Act, 2012. The institutions involved in the public fi nance

management and their respective roles and responsibilities are:-

(i) The National Treasury

(ii) The County Treasury

(iii) The Controller of Budget

(iv) The Auditor General

(v) The Commission on Revenue Allocation

(vi) The Salaries and Remuneration Commission

(vii)The Central Bank of Kenya

(viii)National and County Executives

(ix) Parliament and County Assemblies

42. The roles, functions, responsibilities in the fi nancial and budgetary domain are fully

realized by the input of the following stakeholders:-

15


43. The National and County Governments:- The Executive is the national agency

responsible for the following:

(i) Macro-economic policies and projections;

(ii) Assessing and documenting macro and fi scal stability factors;

(iii) Computing resource envelope based on macro-framework;

(iv) Coordinating public expenditures consistent with resource envelope;

(v) Guiding budget preparation, consistent with agreed policies/priorities;

and

(vi) Monitoring budget execution and taking necessary corrective action.

(vii)Enactment of legislation and setting policies that give the power and

authority to do the activities for governing, for instance:-

• Taxation and levies that constitute public revenue;

• Entering into agreements for borrowing loans and getting grants;

• Planning, starting from Decentralized Units to National Level on whose basis

the annual and medium term budgets are made;

• Distribution of fi nancial, material and human resource;

• Harmonisation and standardisation that apply across the Republic;

• Establishment of fora and structures to guide, encourage co-operation,

consultations, resolution of disagreements and disputes, facilitation of joint

planning and support for each other;

• Provide leadership for governance;

• Provide and facilitate the participation of the public;

• Provide for the establishment of independent constitutional commissions and

offi ces that contribute to enhanced oversight and accountability.

44. The Independent Constitutional Commissions and Offi ces

The Commissions and Offi ces oversight and ensure compliance with statute and

accountability by all stakeholders, viz:-

a) Commission on Revenue Allocation

45. Established under Section 215 of CK 2012, the CRA operate and exercise authority

under Section 216 of CK 2012 in addition to other provisions of the Public Finance

Management, 2012. It is responsible for vertical and horizontal sharing of resources.

Specifi cally, the functions of the CRA include:

16


(i) Develop an equitable basis for allocation and the criteria which should

be consistent with Section 203. The section specifi es the vertical basis but

not horizontal; promotes and gives effect to criteria of Section 203 (1) on

equitable share; and advises and recommends on other public fi nancial

management matters to Counties.

(ii) When appropriate defi ne revenue sources for the County and National

Governments;

(iii) Recommends ways to encourage fi scal responsibility.

(iv) Determine, publish and regularly review a policy setting out the criteria

by which to identify marginalised areas under Section 204(2)

b) Controller of Budget.

46. The functions of the Controller of Budget are both constitutional and executive

at the two levels of government. The key function of the Controller of Budget is,

authentication of public spending and ensuring that funds are withdrawn on and for

approved purposes.

47. Pursuant to Section 228 of CK 2010 and the other provisions under the Public Finance

Management Act, 2012 and the County Governments Act, 2012, the Controller of

Budget has power to:-

(i) Approve release of funds from the Exchequer; oversee implementation of

national and county budgets and authorize withdrawals from public funds;

and ensures that, every withdrawal from any public fund is authorized

by law; and monitor and prepare quarterly budget implementation and

report on National and County Governments.

(ii) Oversee the implementation of the budgets of the National and County

Governments by authorising withdrawals from public funds under Sections

204,206 and 207 0f CK 2010.

(iii) Approve withdrawals only on satisfaction that, they are authorised by the

law.

(iv) Report quarterly to National Parliament and County Assemblies on the

implementation of the budgets of the National and County Governments.

17


c) Auditor- General

48. Pursuant to Section 229 of CK 2010 and provisions in other statutes, the mandate of the

Auditor General is to audit and report on all accounts of public entities and all funds

and commissions whose fi nancing is met from public funds. All accounting offi cers

of National and County entities are required to submit their fi nancial reports and

statements, three months after the end of each fi nancial year to the Auditor General.

The Auditor General is consequently required to audit fi nancial statements and submit

and report to Parliament and the County Assembly within six months after the end of

each fi nancial year on:

(i) Accounts of Commissions and Independent Offi ces;

(ii) The National Assembly the County Assemblies and the Senate.

(iii) Accounts of political parties; and

(iv) Public debt and accounts of any other entity requiring public audit

49. Parliament and County Assemblies are required to scrutinize the audit reports

produced by the AG within three months of submission. Under Section 229, (6), the

AG is required to perform audits on results and effectiveness of expenditure including

that of political parties.

The Salaries and Remuneration Commission

50. Pursuant to Section 230 of CK 2010, the Salaries and Remuneration Commission has

functions that broadly cover payment of salaries and benefi ts within the Public Service.

(i) Is responsible for harmonizing pay and benefi ts,

(ii) Ensure harmonization of salaries/ benefi ts, by precluding, the basing of

the amounts paid as salaries for state offi cers on political considerations,

as that lacks credibility.

(iii) To urgently review and harmonize pay and benefi ts and advise National

and County Governments as necessary on fi scal sustainability of pay

and benefi ts; ability to attract necessary skills to the sector; and sustain

productivity, transparency and fairness; and apply these principles as a

guide to future wage structure in public sector.

18


The Central Bank of Kenya

51. Pursuant to Section 231 of CK 2010 the Central Bank has the power to:-

(ii) To formulate and guide the monetary policy, promote price stability, issue

and control currency circulation; regulate the fi nancial sector; be a banker

to Government, particularly, on matters of public debt.

(iv) Formulate monetary policy; promote price stability, issue currency and

other functions conferred by statute.

The National and County Executives

52. The functions for the Executive arms of the Government, at both the National and

County Levels

(i) Ensure the various funds and bank accounts into which public funds are

held and deposited are established and operated as required by statute

and best practice.

(ii) Budget and prepare annual and medium term estimates as required by

statute and their processing through the Legislatures.

(iii) Implement the plans, budgets and account to National Parliament and

County Assemblies.

The National Parliaments and County Assemblies,

53. The functions of the Legislatures at both the National and County Levels are as

encapsulated under the Constitution and the Public Finance Management Act,

2012. Different roles are dealt with distinctly and require specifi c procedure for their

transaction. At National level, the National Assembly is mandated as follows;

(i) Section 218 provide for Annual Division and Allocation of Revenue in a

matter of sharing out national revenue;

(ii) Section 114 provides matters on Money Bills;

(iii) Section 221 provides for Annual Estimates; while Section 222 provide

for advance approval of expenditure; and Section 223 provides for

Supplementary Appropriations and provisions of Section 220 provide for

planning at County level

19


54.The Constitution of Kenya 2010 confer unlimited powers on the Parliament on the

national purse which includes:-

(i) The power to authorize taxation, other charges and public borrowing;

modify sharing of revenue base and collected revenues;

(ii) Oversee budget implementation, hold the Executive to account on

performance; conduct detailed scrutiny through Committees; and

(iii) Monitor compliance and achievement of results.

(iv)Ensure sustained oversight on the activities in the fi nancial and budgetary

domain.

(v) Scrutinise and approve the separate annual and medium term budgets

and estimates of the three arms of government and other entities spending

public funds.

(vi)Scrutinise the recommendations and determinations of independent

constitutional Commissions on fi nancial matters.

The Public

55. Pursuant to Sections 118, 119 of CK 2010 and provisions in other statutes- County

Governments Act, 2012, Intergovernmental Relations Act, 2012, Public Finance

Management Act,2012, the public are :-

(i) Guaranteed constitutional and statutory rights to participate in all meetings

of all State Organs.

(ii) Guaranteed constitutional and statutory rights to petition, demand and

access public information held by from all State Organs, Commissions

and Offi ces.

G. THE STRUCTURE OF GOVERNMENT

56. The Constitution of Kenya, 2010, provides a structure of government that differs in

many aspects from virtually all governments since re - Independence. However, that,

government will be understood upon implementation of the CK 2010 and appurtenant

statutes.

20


57. The key aspects of the government in the CK 2010 include:-

(i) Unitary hybrid system, incorporating aspects of the Westminster (British)

Parliamentary system and the USA Congressional Presidential system;

(ii) Unitary hybrid system with devolved structure, sharing and distributing

governance between one National Government and forty – seven County

Governments.

58. The National Government comprises –

58.1 The National Executive, consisting, the President, who is its head; the Deputy

President and a Cabinet of not less than fourteen and not more than twenty –

two Secretaries;

(i) only the President seeks election, while the Deputy President is a running

mate of the President;

(ii) none of them is either, concurrently a member of the National Parliament

or sits and directly takes part in its proceedings;

(iii) the President addresses Parliament on statutorily designated occasions;

(iv) the President serves for only two fi ve year terms;

58.2 The Cabinet Secretaries are nominated by the President and vetted by the

National Parliament prior to appointment;

(i) the Cabinet Secretaries appear before Select Committees of Parliament as

required by statute and the Standing Orders of the National Parliament;

(ii) the Public Service Commission procures the National Public Service.

(iii) The Cabinet procures the services and facilities for the use by the Executive.

58.3 The Parliament – consisting, a Senate of sixty eight members and a National

Assembly of three hundred and fi fty members;

(i) All members are either elected or nominated;

(ii) None of the members is either concurrently a member of the National

Executive or sits and directly takes part in the proceedings of the Executive;

(iii) There is no limit on the terms of membership of Parliament;

(iv) The Parliamentary Service Commission procures the human resource and

the services and facilities for the use of Parliament.

59. The County Government comprise –

59.1 The County Executive, consisting, the County Governor, being its head, the

21


Deputy Governor and a County Executive Committee whose number will be

related to the portfolios necessary for each County Government:

(i) only the County Governor seeks election, while the Deputy Governor is

the running mate of the County Governor;

(ii) none of them serves concurrently as a member of a County Assembly or

sit and directly takes part in the proceedings of the County Assembly;

(iii) The Governor addresses the County Assembly on statutorily designated

occasions;

(iv) there is a two fi ve year terms limit on the tenure of the Governor;

59.2 The County Executive Committee Members are nominated by the Governor

and vetted by the County Assembly prior to appointment;

(i) the County Executive Members appear before Select Committees of the

County Assembly as required by statute and or the Standing Orders;

(ii) The County Service Board procures the County Public Service.

(iii) The County Executive Committee manages and administers the operations

of the County Public Service.

59.3 The County Assembly – the total membership of the forty – seven County

Assemblies is set at one thousand ,four hundred and fi fty members:-

(i) Individual County Assemblies, will have such number of elected Members

depending on the number of the electoral wards delimited by the

Independent Electoral and Boundaries Commission (IEBC) meanwhile,

the Nominated Members will be in proportion to those elected.

(ii) All Members are either elected or nominated;

(iii) None of the Members serves concurrently as either a member of the

County Executive or sits and takes part in the proceedings of the Executive.

(iv) There is no limit on the tenure of members of the County Assembly.

(v) The County Assembly Service Board procures the human resource, the

services and facilities for the use of the County Assembly.

59.4 Decentralized Units – each County shall:-

(i) Be decentralized to further units, pursuant to the CK 2010, the Urban

Areas and Cities Act, 2011 and the County legislation;

(ii) Ensure that its functions and the provision of services by a County

Government are decentralized to:-

(iii) The Urban Areas and Cities established according to the Urban Areas and

Cities Act, 2011;

22


(iv) The Sub – Counties equivalent to Constituencies for election to National

Assembly established under Section 88 (4) (c) of CK 2010;

(v) The Electoral Wards established under Section 88 (4) (c) of CK 2010;

(vi) The number of Village Units determined by the County Assembly;

60. Additional Units to be determined by the County Government through an Act of the

County Assembly.

H.THE MANDATE, ROLE AND FUNCTION OF COUNTY

GOVERNMENT

61. The Mandate, Role and Function, which County Governments have and execute are as

specifi ed and vested in them, by the CK 2010 and the various Acts of Parliament that

effect and facilitate the implementation of the relevant provisions in the Constitution.

62. The Constitution of Kenya, 2010, amongst others, provide for the functions in:-

(i) Chapter Eleven – Sections 174 to 200.

(ii) Fourth Schedule- Distribution of Functions between the National

Government and the County Governments (Sections 185 (2), 186 (1) and

187 (2)).

63. The Acts of Parliament that facilitate the implementation of the provisions of the

Constitution, include:-

(i) The Transition to Devolved Government Act, 2012;

(ii) The Intergovernmental Relations Act, March 09, 2012;

(iii) The County Governments Act, August, 2012;

(iv) The Public Finance Management Act, August 27, 2012;

(v) The Petitions to Parliament (Procedure) Act, August 31, 2012.

(vi) The Urban Areas and Cities, Act, August 30, 2012.

23


I. FUNCTIONS AND POWERS OF NATIONAL AND

COUNTY GOVERNMENT

64. The Functions and Powers of the National and County Governments are provided for

in the Fourth Schedule of the Constitution. The exemptions include:-

(i) Functions or powers conferred by legislation on both levels, that would be

dealt with under concurrent jurisdiction;

(ii) Functions and powers that are not expressly conferred on the County

Government would be presumed to belong to the National Government;

(iii) However, the National Parliament may legislate on any matter meant to

serve the whole country;

(iv) Transfer of assigned functions and powers between the two levels is to be

done by mutual agreement, though the constitutional responsibility for

its performance would remain with the level to which it was originally

assigned. Further, the resources necessary for the execution of the

transferred functions or powers, would also have to be transferred to the

level to which the function is transferred;

(v) The Governments are to perform their functions and powers in a manner

that respects the functional and institutional integrity of government.

Thus, each Government is required to assist, support and consult and as

appropriate implement the legislation of the other.

(vi) The National Parliament shall enact legislation providing mechanisms

for settling intergovernmental disputes, including through negotiation,

mediation and arbitration.

(vii)National Parliament enacts legislation that prevail upon County legislation

whereby:-

(a) It would prevent unreasonable action by a County Government;

(b) It would provide for matters that can only be effectively legislated at

national level;

(c) The matter requires uniformity across the nation based on uniform

norms and standards or policies;

(d) It is necessary for maintenance of national security, economic unity,

protection of common market, promotion of economic activities

nationally, promotion of equal opportunities, protection of the

environment, et cetera.

24


(viii)County Assemblies enacts legislation that prevails upon national

legislation for matters where the circumstances in (vi) do not apply.

65. County Governments exercise constitutional authority, are corporate bodies with

perpetual succession and have full powers necessary to discharge their due functions.

To that end, County Governments would –

(i) Enter into contracts;

(ii) Acquire, purchase or lease land; or

(iii) Delegate any of their functions to be performed by their staff, decentralized

units or other entities.

(iv) Borrow, lease and receive grants from development partners with the

authority of the National Government.

J. THE COUNTY EXECUTIVE

Composition of a County Executive

66. The Executive of the County comprise –

(i) The County Governor and the Deputy County Governor;

(ii) The Members of the County Executive Committee;

(iii) The Civil Service of the County Executive. Election, Role and Function of the offi cers of the County Executive

67. The offi cers of the County Executive are elected to offi ce as follows:- The County Governor

67.1 Election of the Governor

(i) The Governor of a County is directly elected by the registered voters of a

County, at a general election of Members of Parliament, i.e. the second

Tuesday in August every fi fth year. The fi rst general election under the CK

2010, are scheduled for March 04, 2013;

(ii) Eligibility for election requires same qualifi cations as for election to a

County Assembly;

25


(iii) Each eligible candidate, is required to designate one person, who is as

qualifi ed as the candidate, to be a running mate for the position of a

Deputy County Governor;

(iv) The Governor and the Deputy Governor do not hold offi ce for more than

two terms of fi ve years each;

67.2 Removal of the County Governor from offi ce

The County Governor shall be removed from offi ce for:-

(i) Gross violation of the Constitution or other laws;

(ii) Commission of a crime under national or international law;

(iii) Abuse of offi ce or gross misconduct;

(iv) Physical or mental incapacity to perform the functions of the offi ce of a

County Governor.

67.3 Vacation of the offi ce of a County Governor

The offi ce of a County Governor shall become vacant, if the holder:-

(i) Dies;

(ii) Resigns in writing, addressed to the Speaker of the County Assembly;

(iii) Ceases to be eligible to be elected, a County Governor, by ceasing to

qualify for election to a County Assembly, under Section 180 (2) of the CK

2010;

(iv) Convicted to serve a sentence of imprisonment for at least twelve months;

(v) Removed from offi ce as at sub-paragraph 66.2 above;

67.4 Filling a Vacation where the County Governor vacates offi ce

• Section 182 (2), (3),(4),(5) and (6) provide for the process to fi ll the

offi ce of a County Governor where the Governor causes the vacation

of the offi ce.

67.5Roles and Functions of a County Governor

The roles of a County Governor include:-

(i) Being the chief executive of the County;

(ii) Providing leadership to the County;

(iii) Providing leadership to the County Executive Committee and

administration on the basis of County policies and plans;

(iv) Promoting democracy, good governance, unity and cohesion within the

County;

(v) Promoting competitiveness to make the County a preferred destination

for investment, et cetera;

26


(vi) Being accountable for the management and use of the resources of the

County;

(vii)Promoting and facilitating the participation of citizens in development of

policies, plans and delivery of services in the County;

(viii)Being the offi cial spokesperson of the County.

67.6 The functions of a County Governor, include:-

(i) The exercise and execution of the authority and functions as provided in

the constitution and statute;

(ii) By mutual consultation, perform state functions within the County, on

behalf of the President;

(iii) Represent the County in national and international fora;

(iv) Make appointments within the Executive with the approval of the County

Assembly, i.e. to the County Executive Committee and the Chief Offi cers

of the Civil/ Public Service of the County Government;

(v) Allocate portfolios to Members of the County Executive Committee;

(vi) Submit County plans, policies and budget to the County Assembly for

consideration and approval;

(vii)Consider, approve and assent to bills passed by the County Assembly;

(viii)Submit to the County Assembly, an annual report on the implementation

status of the policies and plans of the County and also an annual report

on matters of public importance raised by the Citizens Forum and the

response by the Executive;

(ix) Deliver an Annual State of the County Address to the County Assembly;

(x) Sign and cause the publication in the County Gazette of all Bills passed

by the County Assembly, important formal decisions made by a County

Governor or by the County Executive Committee.

67.7 The powers of a County Governor, include:-

(i) Dismissing members of the County Executive Committee, while taking

into account the provisions of Section 40 of the County Governments Act,

2012; and any resolution of a County Assembly;

(ii) Appointing Accounting Offi cers to departments, entities or decentralized

units in a County Government;

(iii) Having the powers necessary to execute the duties of the offi ce of a

County Governor;

27


(iv) Assigning of duties and functions to the Deputy Governor, except the

constitutional and statutory ones, which are vested in the Governor

(Section 32 (4) of the County Governments Act, 2012).

67.8 Appointment of Members of a County Executive Committee

(i) Members of a County Executive Committee are appointed by the County

Governor, with the approval of a County Assembly;

(ii) Members of a County Executive Committee may also be appointed under

provisions of Section 42, of the County Governments Act, 2012.

(iii) The appointment by a County Governor and the approval by a County

Assembly of members of a County Executive Committee, take into account

the provisions of Sections 10 and 179 (3) of the CK 2010 and Section 35

of the County Governments Act, 2012.

67.9 The County Executive Committee

(i) The executive authority of a County vests in and is exercised by a County

Executive Committee under Section 34 of the County Governments Act,

2012;

(ii) the County Executive Committee shall –

(a) prepare bills for consideration by a County Assembly; and implement

Acts of the County Assembly ; and the national legislation to the

appropriate extent;

(b) manage and co – ordinate the functions of the County administration;

including those in Sections 46 and 47 of the County Governments Act,

2012;

(c) provide to the County Assembly, full and regular reports on matters

relating to the County;

(d) Submit/ present the budget of a County to the relevant Select Committee

of a County Assembly;

(i) The County Executive Committee executes the roles and functions,

necessary for the effective and effi cient operation of the Urban Areas and

Cities, pursuant to provisions of Section 37 of the County Governments

Act, 2012.

(ii) The Members of the County Executive Committee are individually and

collectively accountable to the County Governor in the performance of

their roles and functions.

(iii) The Members of the County Executive Committee, may be required to:-

28


(a) Attend, appear or submit documents to Select Committees of a County

Assembly;

(b) Attend and appear to answer questions relating to their portfolios.

67.10 Removal from offi ce of a member of a County Executive Committee

Members of the County Executive Committee may be removed from offi ce

(i) By a County Governor, as provided for in Section 40 (1) of the County

Government Act, 2012;

(ii) By resolution of a County Assembly as provided for in Section 40 (2), (3),

(4), (5) and (6) in the County Governments Act, 2012.

County Public Service

68. The County Public Service is constituted by a County Executive as in Appendix A,

with the approval of a County Assembly for the positions of a County Secretary, and

Chief Offi cers (Sections 44, 45, 50, 51, 52, 53, 55, 56, 57, 58, 59, 60, 61, 62, 63 to

86, of the County Governments Act, 2012).

K. THE COUNTY ASSEMBLY Composition of a County Assembly

69. Membership of a County Assembly is constituted according to provisions in Section

177 (a), (b), (c) and (d) of the CK 2010; and Section 7 (1) and (2) of the County

Governments Act, 2012. Election and Nomination of Members of a County Assembly

70. A County Assembly is composed of both elected and nominated Members. The process

for the election and nomination, including how the stakeholders participate are set out

in CK 2010 and statutes – County Governments Act, 2012, Political Parties Act, 2010

and Independent Electoral and Boundaries Commission Act, 2011.

29


Elected Members of a County Assembly

71. The Independent Electoral and Boundaries Commission (IEBC) set one thousand, four

hundred and fi fty members as the maximum number of elected Members for all forty

– seven County Assemblies. The actual number of Elected Members for each County

Assembly will be equal to the number of Electoral Wards, the IEBC delimits for each

County. However, the minimum number of the Elected Members per County is set at

fi fteen.

72. The Elected Members of a County Assembly are either sponsored by registered political

parties or independently sponsored. Each Elected Member represents a single Member

Electoral Ward in a County. Nominated Members of a County Assembly

73. There are two categories of Nominated Members in a County Assembly, viz:-

73.1 Special Seat Members (SSMs) – these would be nominated by registered

political parties after the declaration of results of Elected Members;

(i) SSMs would be chosen from a list of aspirants nominated by each registered

political party and deposited with the IEBC, prior to general election;

(ii) The number of SSMs apportioned to each registered party would be

proportionate to the number of Elected Members, it will have gained at

the general election;

(iii) The totality of SSMs for each County Assembly can only be known after

the general election, since SSMs are meant to provide a gender balance

in ensuring that, no more than two thirds of the membership of a County

Assembly is of the same gender.

73.2 Members of Marginalised Groups (MMGs) – each County Assembly shall

have six MMGs, nominated by registered political parties in proportion to the

number of elected member seats each will have after declaration of results for

the general elections.

(i) The MMGs would be drawn from persons with disabilities, the youth and

the marginalized groups;

(ii) The nomination of MMGs is done in respect of the provisions of Section 7

(2) of the County Governments Act, 2012

30


Speaker of a County Assembly

74. Each County Assembly shall have a Speaker of a County Assembly. The Speaker shall

be elected by Members of a County Assembly from persons who are not its members.

75. The Speaker of a County Assembly shall preside at all sittings of the Assembly. There is

no provision for the position of a Deputy Speaker, thus in the absence of the Speaker,

or while a County Assembly is deliberating on matters directly affecting the Speaker,

the Assembly, would elect one of its Members to preside. However, the Member so

elected on the fi rst of such occasions, shall preside at all subsequent occasions during

the lifespan of that Assembly.

The Majority Leader and the Minority Leader of a County Assembly

76. For the particulars of their role and function in a County Assembly refer to Part F,

above.

Tenure of a County Assembly

77. In accordance to provisions of Section 177 (4) of the CK 2010, the lifespan of a County

Assembly, constituted at a general election is fi ve years. The lifespan starts from the day

the Members are sworn in.

78. The Clerk of a County Assembly shall swear in Members within fourteen days, after the

declaration of fi nal results of an election. Mandate, Role and Function of a County Assembly

79. A County Assembly exercise and execute the mandate, role and function by the

sovereign power to participate in governance, delegated to them under Section 1(2),

(3) and (4) of CK 2010.

80. The mandate, role and function of a County Assembly can be hardly spelt out or

quantifi ed. Such is the case, given that, legislatures, which include County Assemblies,

31


have come into existence by evolution. Thus, their status, mandate, role and function

have also, with time, evolved to encompass far wider aspects than codifi ed.

81. Nevertheless, on the basis of the current philosophies and practices of governance

and from CK 2010 and pertinent statutes, these would ably be the mandate, role and

function of the County Assemblies in Kenya viz:-

(i) They are the home of and executer of the legislative authority of a County

by making and unmaking laws to facilitate the due execution of the

powers and functions of a County Government under existing statute;

(ii) They exercise oversight over all issues and matters of governance,

especially, the operation of the County Executive Committee and all

organs of the County Executive;

(iii) They receive, deliberate on and approve:-

(a) All development plans, programmes, policies and budget of a County

Government; as set out in Sections 207, 220 (2), 201 and 203 of CK

2010 and Part IV of the Public Finance Management Act, 2012;

(b) After vetting all nominees for appointment as County Secretary and

Chief Offi cers of the County Public Service;

(c) The borrowing by a County Government in accordance with provisions

of Section 212 of CK 2010.

(d) Appointment of a Clerk of a County Assembly (CCA) on recommendation

of the County Assembly Service Board (CASB).

(iv) They represent the electorate of a County in the governance, including

providing leadership in deliberation on all matters of concern and interest;

(v) However, Members of a County Assembly, do not get directly involved in

the Executive or functions of a County Government or in the delivery of

services meant to be done by the County Public Service. Management and Administration of a County Assembly

82. The organs and structures for the management and administration of a County

Assembly have been put in place by both statute and practice. Further, it is a common

long established convention and tradition for the processes to involve and revolve

around the key political offi ces/ leaders of a Legislature. Whereas such key political

32


offi cers/ leaders initially hold and occupy constitutional offi ces, the management and

administrative chores are added by statute and practice.

83. Pursuant to the CK 2010, Statute, Standing Orders and the traditions and conventions,

the key political offi ces/ leaders perform dual roles and functions, viz;

83.1The Roles and Functions by Practice

(i) Enables a County Assembly to fulfi ll its constitutional, statutory and

traditional mandate;

(ii) Political offi ces/ leaders, include, the Speaker, the Majority Leader, the

Minority Leader; which, are constitutional and statutory offi ces by Section

178 of the CK 2010 and Section of the County Governments Act, 2012;

(iii) The other political offi ces/ leaders are the Chairpersons of the Select

Committees of a County Assembly, who are a consequent of the provisions

of Section 14 of the County Governments Act, 2012 and the Standing

Orders.

83.2 The County Assembly Service Board

(i) Is created by Section 12 of the County Governments Act, 2012, as a body

corporate with perpetual succession and a common seal;

(ii) The County Assembly Service Board comprise four members – the Speaker

who is also the chair; the Majority and Minority Leaders and one non –

member.

(iii) The Secretary of the Service Board is the Clerk of the County Assembly;

(iv) Section 12, in addition to providing for the membership of the Service

Board, also details the responsibilities of the Board;

(v) In a nutshell, the responsibilities of the Service Board are to ensure the

County Assembly is availed with services, facilities, human and material

resources for its proper operation/ functioning; et cetera.

83.3The Clerk and Staff of the County Assembly

(i) The Clerk of a County Assembly is the Chief Procedural Advisor; the Chief

Executive Offi cer; Authorized Offi cer; Accounting Offi cer and Secretary

of the County Assembly Service Board;

(ii) The Clerk and the Staff serve in the County Assembly Service which

appoints them; they do not fall under the County Public Service Board.

33


Contact of County Assembly with National Parliament and County Executive

84. Thus, a combination of the mandate, role and function carried out by the organs/

structures in paragraph 81 above ensure an all round, sound, proper, appropriate

management and administration of a County Assembly. Needless to say, the organs/

structures keep continuous contact with their equivalents at the National Parliament

and the County Executive.

85. Harmonization and standardization of norms and procedure is achieved through

specifi c fora:-

(i) The National Association of Legislatures of Kenya (NALK);

(ii) The Association of County Assemblies of Kenya (ACAK)

(iii) The Association of Clerks of Legislatures of Kenya(ACLK)

(iv) Intergovernmental fora.

L. OPERATIONS OF COUNTY ASSEMBLIES

86. The Working Mechanisms, Processes and Tools of a County Assembly are meant to

collectively enable a County Assembly effectively and effi ciently fulfi ll its mandate,

role and function. Every aspect touches the other; none could be applied and relied

upon to deliver singly the work of a County Assembly.

87. As has been opined above in paragraphs 80 and 819 regarding the management and

administration of a County Assembly, so it is with the working mechanisms, processes

and tools. These too, are imbedded in tradition, practice and convention of legislatures

as they have evolved through centuries. Often it may not be possible to appreciate,

understand or even describe the genesis of some of the precepts/ principles underlying

some of the conventions, practices and privileges.

88. Be that as it may, the sources of the working mechanism, processes and tools of

legislatures, in this case, the County Assemblies, may be identifi ed as:-

(i) The Constitution and Statutes;

(ii) The Standing Orders;

34


(ii) The practice, traditions and conventions;

(iv) The decisions and considered rulings of the Speaker;

(v) Incidents/ precedents of how a matter is dealt with in the course of

proceedings;

(vi) Political trends resulting in reform of the political system, constitution,

statute, procedure; and

(vii)The nature and type of the Speaker and the Members of a Legislature.

89. Information on the working mechanisms, processes and tools of a County Assembly

will be availed in the following description of the structures, organs, components of

the work, roles and functions. Environment in which A County Assembly would operate

90. The environment, in which a County Assembly would operate, is widely viewed as

political. Yet imbedded within it are facets of technical knowledge encompassing,

information on law, procedure, research briefi ngs on the various items of the business

dealt with, fi nance and budgeting, privilege, management and administrative aspects.

An explanation on the following will put in proper perspective, how the foregoing are

applied to enable a County Assembly execute its mandate, role and function:- A County Government

91. By the provisions of Section 1 (3) of the CK 2010, a County Assembly and a County

Executive are State Organs which constitute a County Government under Section 176

(1) of the CK 2010. The County Government exercises powers and authority delegated

by the sovereign; i.e. the people of Kenya.

A County Assembly

92. A County Assembly is the forum through which the people, who own the sovereign

power to govern, participate in the making of laws, formulation of policies for taxation,

budgeting, establishment of County Public Service, et cetera. Through the same forum,

the people maintain surveillance and oversight on how they are governed; while The

County Executive gives an account of its operations in governing the County.

35


Segments/Seasons in The Life of A County Assembly

93. A County Assembly has at least seven distinct Segments or Seasons, beginning when it

fi rst sits/ sworn in following a general election to the time it is dissolved upon expiration

of its statutory term:-

93.1 A County Assembly

• Is established in accordance with provisions of Sections 177 and 178 of

CK 2010,

93.2 A Session of a County Assembly

(i) The fi rst sitting of the fi rst session of a County Assembly after a general

election shall be convened by the County Governor through a Notice in

the Gazette. The Notice shall be issued within thirty days after declaration

of the result of the general election. Further, it shall specify the place and

date of the sitting.

(ii) A Regular Session of a County Assembly is convened by the Hon. Speaker

in each calendar year; commencing on the second Tuesday in February, or

on a day/ date set by a resolution of the County Assembly;

(iii) A Regular Session of a County Assembly is held for the duration already

specifi ed in its calendar;

(iii) A Regular Session of a County Assembly is ended by an adjournment on

the date specifi ed in its calendar or dissolved upon expiry of its statutory

term;

(iv) In the fi fth year of the life of a County Assembly, the dissolution would

pave way for a general election.

93.3 A sitting of a County Assembly

(i) Subject to a calendar of a County Assembly, each of the days therein on

which a County Assembly meets as a Plenary, Committee of the Whole

County Assembly or a Select Committee, is known as a sitting;

(ii) Pursuant to provisions of Section 14 (1) (a) of the County Governments

Act, 2012, the sittings are regulated by the Standing Orders;

(iii) There are varied defi nitions of a sitting, depending on the nature of the

business to be transacted at the sitting;

(iv) The intervals between sets of sittings in a Session are known as

Adjournments.

36


93.4 Prorogation of a County Assembly

(i) A County Assembly may be prorogued pursuant to its calendar;

(ii) In parliamentary parlance, prorogation signifi es the cessation of the

proceedings of one Session.

(iii) Any business then pending before a County Assembly comes to an

automatic halt and should there be a need to continue and conclude any

of the halted business, the relevant Standing Orders would be applied.

93.5 Dissolution of a County Assembly

(i) Subject to provisions of Section 177 (4) of CK 2010, a County Assembly

stands automatically dissolved in the fi fth year of its life, on the same day

it fi rst met after a general election;

(ii) In parliamentary parlance, dissolution signifi es the end of the life of one

County Assembly

93.6 Adjournment of a County Assembly

(i) An adjournment of a County Assembly is the interval/ an interruption of

the sittings within a Session; in accordance with the Standing Orders;

(ii) There are various forms of adjournment, depending on the causes or

reasons, though predictability does emerge with practice.

93.7 Recess of a County Assembly

(i) A recess is the period when a County Assembly is adjourned to a day

which is not the next normal sitting day, including ,when it is adjourned

at the end of a Session or prorogation;

(ii) A recess at the end of a statutory life of a County Assembly may not be

signifi cant as it comes as a consequence of dissolution. The Oath of Allegiance or Affi rmation of Allegiance

94. Pursuant to Section 74 of the CK 2010 and Section 9 (3) of the County Governments

Act, 2012, every member of a County Assembly, cannot take his/her seat and participate

in any business of a County Assembly, until he/she has subscribed to the Oath of

Allegiance or Affi rmation of Allegiance at a sitting of the Assembly.

95. A Judge administers the Oath of Allegiance or Affi rmation to all Members assisted by

the Clerk of a County Assembly.

37


The Oath at the fi rst sitting of a County Assembly after a General Election

96. At the fi rst sitting of a County Assembly following a general election, the procedure

followed in administering the Oath or Affi rmation of Allegiance to Members, is as

follows:-

(i) Once all Members have taken their seats, the Clerk of a County Assembly:-

(a) Lays a complete list, as published in the Kenya Gazette by the IEBC

of all Members Elected and Nominated on the Table of the County

Assembly.

(b) The names in the list are arranged alphabetically, starting with those of

Elected Members.

(c) Lays the Notice convening the session of the County Assembly,

published by the County Governor in the Gazette.(ii) The Clerk of a County Assembly calls out the full names of each Member,

who rises in her seat, proceeds to the Bar of the Assembly, where she

bows to the Chair, then proceeds to the Table.

(iii) The Clerk of a County Assembly, inquires from the Member, the religion

he/ she belongs to and whether he/ she wishes to take an Oath or Affi rm

to an Allegiance;

(iv) If the Member is a Christian or a Muslim, she would respectively be given

a Bible or a Koran, which while lifting by her right hand and holding

a Form containing the written Oath or Affi rmation of Allegiance, will

proceed to read out the text;

(v) On conclusion, the Member shakes hands with the Judge, proceeds to

the left side of the Table and signs the Oath of Allegiance Book, and then

returns to her place, amidst congratulatory bench thumping by colleagues.

(vi) The Member is at liberty to take the Oath or Affi rmation of Allegiance in

either of the offi cial languages, used for communication in the proceedings

of a County Assembly. The Oath on the other occasions, during the life of a County Assembly

97. On other occasions, the Administration of the Oath or Affi rmation of Allegiance is

performed by the Hon. Speaker as the fi rst item of the proceedings at a sitting, soon

after Prayers. On such occasions:-

38


(i) The newly Elected or Nominated Member sits behind the Bar during

Prayers;

(ii) Immediately after Prayers, the Clerk of a County Assembly, reads out the

fi rst order of the day which is, the Administration of Oath, after which he

reads out the full names of the new Member;

(iii) The Hon. Speaker, the Members, the Clerks and the public rise and remain

standing to the end of the Administration of Oath.

(iv) The new Member rises, proceeds to the Bar and sandwiched between her

two sponsoring Members, the three bow to the Chair, proceed to stand

in front of the Mace, bow to the Chair once more; proceed to the space

behind the Clerks’ seats and the Chair, bow again and remain standing

facing the Hon. Speaker.

(v) The senior of the two sponsoring Members, who is normally on the right

of the new Member, introduces her to the Hon. Speaker;

(vi) The Hon. Speaker then asks the new Member her religion and whether

she would take an Oath or an Affi rmation of Allegiance;

(vii)Depending on the new Member’s reply, the Hon. Speaker is then

handed the relevant material by the Clerk of the County Assembly which

he proceeds to hand to the new Member;

(viii)The Member taking either the Bible or the Koran in her right hand, raises

it up and holds the Form containing the Oath or Affi rmation of Allegiance

in her left hand which she reads out aloud;

(ix)The Member then returns the Bible/ Koran and the Oath/ Affi rmation of

Allegiance to the Hon. Speaker;

(x)The Hon. Speaker shakes hands with the new Member, utters the special

words of ‘welcome and best of luck”;

(xii)Thereafter the new Member and her two sponsors proceed to the left of

the Table where the new Member signs the Oath Book;

(xiii)The trio then proceeds to the Bar, where they bow to the Chair before

moving to their respective seats.

39


M. THE POWERS, PRIVILEGES AND IMMUNITIES OF A

COUNTY ASSEMBLY ORIGIN OF PRIVILEGE Origin of Privilege

98. The Powers, Privileges and Immunities, often referred to as “Privilege”, which virtually,

all legislatures enjoy and exercise in the performance of their mandates, roles and

functions, have a long history. The genesis of Privilege stretches to over ten centuries

in the evolution of the British Parliament at Westminster. The Privileges of the British

Parliament were passed on to legislatures in virtually all British Colonies. Thus, Privilege

has come to be by custom, tradition, convention, constitution and statute.

99. In Kenya, Privilege was fi rst codifi ed in an Act of the Legislative Council (Legco) in

1952. It is among the statutes which transited into re – Independence. Today it is

entitled the National Assembly (Powers and Privileges) Act, Cap 6, Laws of Kenya.

100.Parliamentary Privilege is recognized and provided for by the CK 2010, for the National

Parliament by Sections 117 and 125 and for the County Assemblies by Sections 195

and 196 (3). However, since Parliamentary Privilege, is nearly standard, Section 17

of the County Governments Act, 2012, acknowledge and affi rm that status by stating, “The national law regulating the powers and privileges of Parliament shall, with the necessary modifi cations, apply to a County Assembly.”

101.Nevertheless and, so as to gain a proper perspective and appreciation of Parliamentary

Privilege, a recourse to how it evolved at Westminster would be appropriate.

Privilege and its content

102.The following lengthy quotation is from Parliamentary Practice, Twenty-Fourth Edition;

whose original was authored by Sir Thomas Erskine May, former Clerk of the House of

Commons, Westminster, U.K, in 1837.

(i) Erskine May, the acknowledged authority on Parliamentary Practice, has defi ned Parliamentary Privilege as, the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of

40


Parliament, and by the Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.

(ii)Thus, privilege, though part of the law of the land, is to a certain extent an exemption from the ordinary law. The distinctive mark of a privilege is its ancillary character, which puts Parliamentary Privilege in the context of the rights that, are “absolutely necessary for the due execution of its powers.

(iii) Privilege is enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity.

(iv) Indeed the origin of privilege was as the King’s peace (protection) enjoyed by his subjects, but in special measure by his servants (the staff of the royal courts, the Lords, et cetera. However, with time, new comers to the High Court of Parliament, the Commons, began to lay claim to privileges enjoyed by the Lords.”

103.The struggle by the House of Commons to gain some privilege from the Crown,

the Courts and the Lords has been fi erce and prolonged. To-day the U.K. House of

Commons claims Parliamentary Privilege as customary rights.

104.By extension, these privileges were introduced to colonial legislatures. Hence, it is

part of the great parliamentary tradition that at the commencement of a new Parliament,

the Hon. Speaker reminds the Executive of the claim by the Legislature to its ancient

rights and privileges.

105.By practice, Parliamentary Privilege which is the short form of all the Rights, Powers,

Immunities and Privileges awarded to Parliament and the individual Members are

now enjoyed by offi cers who serve in the Legislatures, witnesses appearing before

the Legislatures and the Select Committees and persons involved in the printing and

production of records of its proceedings and work.

106.The privileges awarded are double edged. They give all due protection and facilitate

the operations of the House and Members in their individual capacity, but in the same

vein they lay and make certain demands on them.

41


The Extent of Privilege - Examples

107.It is not intended to discuss the details of Privilege; however, the following are

mentioned to give an indication of its extent. Immunities and Privileges

108.The object of these is, to ensure that Members of a County Assembly go about their

business without impediment. Immunity from Legal Proceedings

109.No legal proceedings, whether criminal or civil can be instituted against any Member

for words spoken before or written in report to a County Assembly or its Select

Committee; or for any other matter in the course of a member executing her duties.

This is per provisions of Section 16 of the County Governments Act, 2012. These

provisions are often dubbed the “freedom of speech.” Freedom from arrest for Civil Debt

110.A Member may not be arrested for a civil debt during a Session, unless it is related to

or has criminal intentions.

Speakers Orders

111.The Hon. Speaker would from time to time issue Orders for the better carrying out of

the purposes of privilege. Such orders cover matters like, the deduction/ recovery from

earnings of Members in payment of refreshments or other facilities made available

to them within the precincts of a County Assembly. The orders would normally be

authenticated by the Clerk of a County Assembly and when exhibited in a conspicuous

position within the precincts of a County Assembly, it is deemed to be suffi cient notice

to all concerned persons.

42


Code of Conduct

112.These are directions issued from time to time by the Hon. Speaker to regulate the

conduct of Members whilst in the precincts of a County Assembly other than the

Chamber. Conduct in the Chamber is governed by the Standing Orders.

Committee of Privilege

113.Comprise Members appointed by a County Assembly and chaired by the Hon.

Speaker. This Committee inquires into reported complaints, breaches of privilege by

any Member that is intended or likely to refl ect adversely on the dignity or integrity of

a County Assembly, et cetera. Reports of such inquiries and any recommendations are

placed before a County Assembly for consideration.

Power to Order Attendance and Giving of Evidence

114.The object of the powers and privileges in relation to gathering of evidence by a

County Assembly and its Select Committees is to ease the processes and extend the

privilege to persons co-operating in that regard.

115.In the course of its proceedings, a Select Committee has powers to order the attendance

before it of any person it deems has evidence, papers, records or documents that

would be useful to the Committee. In this regard, the Select Committee would invoke

provisions of Section 125 of CK 2010.

116.The persons appearing before a County Assembly or any of its Select Committees to

give any form of evidence could be examined under oath, as the County Assembly or

Select Committee fi nd appropriate. Privileges of Witnesses

117.All persons summoned to give any form of evidence before a County Assembly or

a Select Committee, enjoy the same rights and privileges as before a Court of Law.

Public offi cers could decline to give evidence, as provided for in Section 18 of the

Offi cial Secrets Act Cap 6, Laws of Kenya.

43


Sanctions against False Evidence

118.Some of the provisions against breaches of the Law of Privilege include:-

(i) Witnesses who give false evidence before a County Assembly or any of its

Select Committees would be guilty of an offence under Section 108 of the

Penal Code, Cap 63, Laws of Kenya.

(ii) Members are not supposed to receive reward for promotion or opposition

to Bills, Motions et cetera. Any Member who in the course of his/ her

duties receives or accepts either directly or indirectly any bribe, fee,

compensation, gift or reward for the promotion or opposition to any

Bill, Motion or any matter submitted for the consideration of a County

Assembly or a Select Committee, shall be guilty of an offence and liable to

imprisonment for a term not exceeding two years or to a fi ne not exceeding

ten thousand shillings, or to both; and every bribe, fee, compensation, gift

or reward accepted or received by him/ her shall be forfeited. Protection of persons responsible for publications authorised by a

County Assembly

119.All persons and organizations involved in the printing and publication of any reports,

papers, minutes, votes and proceedings, the Hansard, enjoy immunity from any

legal process as long as a certifi cate issued under the hand of the Hon. Speaker shall

signify that such persons or their servants were acting under the authority of a County

Assembly.

Courts not to exercise jurisdiction in respect of acts of the Hon. Speaker and Offi cers of a County Assembly

120.The exercise of any power vested or conferred upon the Hon. Speaker or any offi cer

of a County Assembly by the Law of Privilege is not subject to jurisdiction of any court.

Offi cers of a County Assembly to have powers of Police Offi cer

121.Every offi cer of a County Assembly shall, while acting under the law of privilege and

of the application of the provisions of the criminal law, have all the powers and enjoy

all the privileges of a police offi cer.

44


Further Reading on Privilege

122.The above summary is meant to guide hon. Members who are encouraged to read

more closely so as to fathom their grasp of Parliamentary Privilege and application. It is

recommended that, hon. Members read relevant material in the Twenty Fourth Edition

of Parliamentary Practice by Sir Thomas Erskine May which is available in the Library

of the National Parliament.

Mechanisms for the Public to Access, Participate and Oversight a County Assembly

123.The mechanisms and processes by which the public have the right to access,

participate and exercise oversight on the work of a County Assembly are by custom,

tradition, practice and statute. Both the CK 2010 and the effecting Acts of Parliament,

for instance the County Governments Act, 2012. provide specifi c rights and avenues

for such engagement. The statutory provisions are specifi ed in Part F. Enhancement of

Democratic Culture and Accountability.

N. THE WORK AND PROCEEDINGS OF A COUNTY

ASSEMBLY

Work of a County Assembly

124.The work transacted by a County Assembly is in the form of items emanating from and

meant to enable a County Assembly fulfi ll its mandate, role and function. The work

constitutes the agenda of a County Assembly, known as Orders of the Day, placed

on an Order Paper for each sitting. The orders of the day are disposed of through a

series of activities, according to procedure and practice as synchronized in clearly

enforceable statements, known as Standing Orders.

125.The work of a County Assembly is provided for by custom, tradition, convention,

practice and statute, as indeed, are its mandate, roles and functions. The quality and

the quantity of the work often more or less depend on the state of democratic fervour

45


in the country, the calibre of the Members, not necessarily, in terms of academic

achievement, but more in terms of political effi cacy and acumen.

Proceedings of a County Assembly

126.The proceedings of a County Assembly, on the other hand, is the sum of what happens

in the Chamber of a County Assembly from the moment it is duly assembled, i.e. when

the Hon. Speaker has taken the Chair of the County Assembly. The proceedings are a

product of the words spoken and the decisions taken to transact the orders of the day

and other pronouncements incidental thereto. The Hon. Speaker presides and guides

the proceedings according to the totality of the practice and procedure of a County

Assembly.

127.The orders of the day do not all constitute the work or the business of a County

Assembly. However, the outcome of their transaction is the proceedings of a County

Assembly, which is recorded in the verbatim format, commonly referred to as the

Hansard. The Order Paper

128.The orders of the Day of the proceedings of a sitting of a County Assembly would be

put on an Order Paper in the following format:- Prayer

(i) Matters other than Business

(a) Administration of Oath

(b) Communication from the Chair

(c) Message from the Senate

(d) Presentation of Petitions

(e) Papers to be Laid before a County Assembly

(f) Notices of Motions

(g) Statements

(ii) Business to be transacted would be as set out on the Order Paper; here could be

placed-

46


(a) Bills at various stages of transaction –

• First Reading; Second Reading; Committee of the Whole County

Assembly; Third Reading.

(b) Motions on various issues-

• Adoption of a report of a Select Committee;

• Urging a County Assembly to establish an ad hoc Select Committee to

investigate the increasing incidents of violence among sand harvesters in

River Sabwani on the boundary of Trans- Nzoia and West Pokot Counties.

129.The proceedings arising out of the disposal of the orders of the day on the Order Paper

as at paragraph 127 above could consist of business introduced by political parties

and individual Members for decisions that would the fulfi llment of a pledge in an

election manifesto. At the same time, some could be for, new legislation to deal with

an aspect of governance which a County Executive fi nd necessary. Further clarifi cation

is in the following brief explanation on some of the orders of the day. Orders of the Day and Order of Proceedings

130.Paragraph 129 to 144 sheds light on the items in the Order Paper and also on the

nature of the individual orders.

131.Some of the matters which are not placed in the Order Paper include:

(i) Points of Order,

(ii) Notices for Motions of Adjournment on urgent matters of National/ County

importance;

(iii) Dilatory Motions of adjournment of a County Assembly;

(iv) Queries relating to lack of Quorum;

(v) Dilatory Motions of adjournment of Debates,

(vi) Motions which may be moved without notice. The Order Paper: Preparation and Publicisation

132.The Order Paper is a schedule showing the sequence of agenda items, called Orders

of the Day, to be dealt with by a County Assembly at one sitting. It is prepared by the

47


Clerk of a County Assembly under the direction of the Hon. Speaker on the authority

of the Sessional Committee under the chairpersonship of the Majority Leader. The

Clerk of a County Assembly also prepares and publicizes a Weekly Programme and

Schedule of Sittings of Select Committees which is published on the website and

distributed to departments of the County Executive.

133.The running sequence of the items on the Order Paper is split into two distinct parts:-

Matters other than Business

134. Administration of Oath.This is to enable any newly elected or nominated Member to

be sworn in or affi rm to the Oath of Allegiance.

Communication from the Chair

135. This is for the Hon. Speaker to convey any message e.g. Notifi cation of Assent to Bills

by H.E. the Governor. He may also give a Considered Ruling or some information to a

County Assembly regarding additions, deferment of the Orders of the Day.

Presentation of Petitions

136.This is an opportunity for Members to present any Petition from wananchi who could

be their constituents or interest group, with a prayer for some action by a County

Assembly to give relief on some matter or situation.

Papers to be Laid before a County Assembly

137.This is an opportunity for some offi cial documents, such as, reports of the accounts

of some County Corporation or those of Select Committees of the County Assembly to

be formally presented to the Assembly.

Notices of Motions

138.This is an opportunity for a Member who has a Notice of a Motion she intends to

move in the future to bring the terms of such a Motion to the attention of a County

48


Assembly; Notices relate only to Substantive Motions, which will have been approved

by the Hon. Speaker and balloted by the Sessional Committee. Placement of Business on the Order Paper

139.Business of a County Assembly comprises items introduced by the Government, Party

and Individual Member; each of which cause their business to be placed on the Order

Paper, subject to processing by the Select Committee

140.The Business is disposed of in the sequence in which it stands on the Order Paper,

or in such other sequence as the Hon. Speaker may decide for the convenience of a

County Assembly.

141.The Leader of the Majority Party shall place the business submitted by the County

Executive Committee on the Order Paper in such sequence as the Standing Orders

provide. However, on every Wednesday Morning on which a County Assembly

sits, business other than Government business; except the business of the Financial

Statement and the Annual Estimates; has precedence.

142.Occasionally, on some of the sittings on Wednesday Morning, when it is desired to

have Government business dealt with, a procedural motion is moved as the fi rst item

of Business to exempt Government Business from the mandatory requirement of the

Standing Order No. 34 which give precedence to Business other than Government

Business on Wednesday Mornings.

142.Order Papers have a running index number for each sitting while pages have running

numbers for each page as a record for proceedings in a Session.

The Votes and Proceedings

143.The Votes and Proceedings is the precise summary of the proceedings of a County

Assembly at each sitting, whose particulars are:

(i) The summarized record of what was said, done or transacted at the Sitting.

All proceedings, i.e. both matters constituting non- business and business

are recorded in the order in which they were dealt with or occur.

49


(ii) The sequence set out on the Order Paper is sometimes not strictly followed;

though, whenever this happens, the alteration, is recorded too.

(iii) The part of the proceedings not recorded in the Votes and Proceedings

include:

(a) Points of Order on matters of procedure;

(b) The entry, withdrawal and departure of the Hon. Speaker from the

Chamber; and any action, noise by strangers;

(iv) The part of the proceedings that are recorded in the Votes and Proceedings,

include,

(a) Time a County Assembly assembled;

(b) Prayer;

(c) Administration of Oath, only if administered;

(d) Communication from the Chair, only if given;

(e) Petitions, only if any were presented;

(f) Papers, only if any was laid on the Table;

(g) Notices of Motions, only if any was given;

(h) The rest will be a record of the business disposed of in the sequence

it was transacted, whether it was adopted, negatived, deferred or

dropped.

(i) In the process of disposition of business, matters other than business,

that arise are also recorded, plus a brief summary of any statements

made; and

(j) Results of a division by name;

(k) Time of interruption of proceedings, the name of the Presiding Offi cer

who actually adjourned the sitting and the date of reconvening, if

known. How matters get on the Order Paper

144.The matters contained on the Order Paper at any sitting are split into those that are

automatically included and those that are put by the initiative of a Member.

145.The matters that are automatically included in the Order Paper comprise:(i) Prayer;

(ii) Administration of Oath;

50


(iii) Communication from the Chair;

(iv)The Offi cial Opening of a County Assembly;

(v) Petitions;

(vi) Notices of Motions;

(vii) Statements; and

(viii) Messages from the Senate.

146.The matters whose inclusion arise from the initiative of a Member, comprise:-

(i) Substantive Motions for debate.

(ii) Stages of a Bill;

(iii) Substantive Motions for Adjournment of a County Assembly, usually

specifi ed;

(iv) Notices of amendments intended to be moved to Bills during the

Committee Stage;

(v) The address of the County Governor on State of the County and on any

other subject; et cetera.

Modes of Decision Making

147.Pursuant to Section 20 of the County Governments Act, 2012 decisions of a County

Assembly, are signifi ed by voting. The voting is either by the counting of voices (oral)

or by a physical count (division). Both modes of decision making apply to all matters of

substantive nature on which the House is required to make a decision. However, there

are some occasions on which divisions with specifi c majority votes are mandatory, for

instance:-

• To overturn the veto of a County Governor upon declining to assent to

a Bill passed by a County Assembly, under Section 24 (5) of the County

Governments Act, 2012.

Decision (Voting on Motions)

148.When the debate is concluded:

(i) the Hon. Speaker puts the question and a vote is taken

(ii) the question is to be put, in the following words:

51


“Will as many as are of that opinion say, “Aye”. “As many as are of a contrary opinion say, “Noe”.

(iii) The Hon. Speaker must then collect the voices and decide whether the “Ayes”

or “Noes” have it. He will then pause and if no one objects and cries “Division”

he will say,

“The Ayes have it.” and that is the decision of the County Assembly on the subject

of that Motion. Claiming/Calling for vote by Division

149.A Division is taken if a Member claims and –

(a) The Hon. Speaker considers there is reasonable doubt as to the outcome;

or

(b) Twenty percent or more further Members rise to support the Member

claiming a Division and the question is not one of procedure; or

(c) The constitution or statute requires the question to be carried by a certain

majority.

150.When the Hon. Speaker directs a Division to be taken, the Division bell is rung for

fi ve minutes.

Tellers for a Division

151.Two Tellers for the “Noes” and two Tellers for the “Ayes” are to be named by the Hon.

Speaker in consultation with the two Chief Whips.

152.At the end of fi ve minutes the Hon. Speaker orders the doors to be locked and the Bar

drawn. No Member may thereafter enter the House.

153.The Hon. Speaker then announces the names of the Tellers and says; “Ayes” to the

right and “Noes” to the left – proceed to a division. The doors to the lobbies shall be

unlocked fi fteen minutes thereafter.

154.The Clerks- at- the Table and the Tellers tick off the names of each Member as he fi les

past.

52


Member not obliged to Vote

155.No Member shall be obliged to vote in a Division, however those present but not

voting shall record their names with the Clerk of the County Assembly at the Table.

Fifteen minutes after the locking of the doors to the Lobbies, the County Assembly

or the Committee of the Whole County Assembly shall be called to order and any

Member who shall not have voted then shall forfeit her right to vote. The result of the

division is announced by the Hon. Speaker.

Status the Division- No vote for the Hon. Speaker

156.The Hon. Speaker has neither an original nor casting voting. Where the result is equal,

the question is negatived (lost).

157.On all other occasions, when a County Assembly votes, decisions are carried by

simple majority of the Members present and voting.

O. THE PRATICE AND PROCEDURE

Content of the Practice and Procedure of a County Assembly

158.The processes by which a County Assembly transacts its proceedings, Members

relation to each other, the required etiquette the totality of what it applies in carrying

out its mandate, role and functions may in one word be referred to as procedure.

159.The Procedure is wide and include:

(i) The unwritten and un-codifi ed working processes that have come into

place by usage, tradition, convention, etiquette and the rulings of the

Hon. Speaker, normally referred to as the Practice;

(ii) The written or codifi ed form, normally referred to as the procedure;

(iii) The whole totality is known as Practice and Procedure;

53


IN THE CHAMBER – CONDUCT OF MEMBERS AND OF BUSINESS The Speaker, Entering and Leaving the Chamber

160.When the fi ve minute bell rings, Members should proceed with dignity to the Chamber.

On the Hon. Speaker being announced, Members should stop talking and make their

way to their seats, where they should stand in silence. The Hon. Speaker will bow at

the Bar and on arriving at the Table will face the County Assembly and read a Prayer.

161. The Hon. Speaker would then mount the dais, bow to Members on the right and then

to those on the left. Members should turn slightly to the Hon. Speaker and return the

bow. When the Hon. Speaker sits, Members sit.

162. At the conclusion of business, the Hon. Speaker would rise and bow to the right and

the left .Members should also rise and return the bow of the Hon. Speaker. Members

remain standing silently in their places until the procession leading the Speaker out is

clear of the Chamber. Whenever the Speaker rises

163.When the Hon. Speaker, or the Chairperson of a Committee, rises to intervene in

a debate, Members must be silent. Should a Member, at that time be speaking, or

standing, she must resume her seat. It is out of order to interrupt the Hon. Speaker and

any Member entering the Chamber at that time, must stand in a respectful manner at the Bar until the Hon. Speaker or the Chairperson of a Committee, has completed speaking.

Catching the eye of the Speaker

164. A member may not speak in a debate until his name has been called out by the Hon.

Speaker that, is until he has “caught the eye of the Hon. Speaker”.

165. Members should stand up and speak from their own places while addressing all their

remarks to the Chair.

54


Referring to the occupants of the Chair

166. The occupant of the Chair is addressed as the Hon. Speaker, or the Hon. Temporary

Speaker, as the case may be, or in Committee as the Hon. Chairperson. A lady member

who occupies the Chair is referred to as the Hon. Madam Speaker.

Members entering and leaving the Chamber during a sitting

167. When the Members enter the Chamber during a Sitting, they should halt at the

Bar and bow to the Chair. This is a customary practice by which every Member

acknowledges with respect, the authority of the Chair. Similarly, Members wishing

to leave the Chamber should bow to the Hon. Speaker on rising from their seats and

proceed to the Bar of a County Assembly where they should again bow.

Members passing from one side of a County Assembly to the other

168. A Member must not pass between the Chair and any Member who is speaking; to

do this is violation of the etiquette of a County Assembly. A Member crossing the fl oor

from one side of the Chamber to the other must pause and bow to the Chair. It is out

of order to pass between the Chair and the Table, i.e. in front of the Hon. Speaker and

behind the seats used by the Clerk of a County Assembly and the Clerks-at-the-Table.

168. Should Members on opposite sides of the House wish to consult, they should

withdraw through the Main Entrance or proceed to the screen behind the Chair of the

Hon. Speaker.

Papers to be read inside the Chamber

169. Members must not read extraneous papers, such as newspapers, periodicals, et

cetera; in the Chamber; unless they are to be quoted in the course of a debate.

Members not to read out their speeches

170. It is out of order to read a speech. Exceptions to this rule would include; delivery

of a Government Statement, opening a debate, as they are deemed, authoritative

55


pronouncements, fi gures or technicalities, which cannot be memorized easily or

whenever the Hon. Speaker is satisfi ed that, the necessity for precision of the statement,

justify its being read out. Further, Members can refer to notes or quote brief extracts

from documents.

171. Exception to speaking more than once in a Debate

Ideally a member is not allowed to speak more than once on each question

in a debate. However, there is no restriction on the number of times she may

speak to a Motion in a Committee of the Whole County Assembly, Points of

Order, Statements and in any other proceedings which are not in the category

of debate. Inadmissible Articles/Substances

172.Articles such as weapons, walking sticks, umbrellas, fl y switches, desk top computers,

lap tops et cetera, should not be brought into the Chamber. Dress Code

173.Members would be expected to attend sittings of a County Assembly dressed

respectably, they may wear national costumes established by tradition, or by more

recent custom, but not ostentatious headgear or others which would stir concern in

the Chamber. Personal Statements

174. These provide a limited opportunity for a Member who has been criticized for his

conduct or remarks, in the County Assembly, to justify his action and to apologize or

remove any misunderstanding. Permission to make such a statement must be obtained

from the Hon. Speaker, who will normally allow it prior to commencement of Business.

This opportunity must not be used to respond to matters not emanating from the

proceedings or related to activities of Members in a County Assembly.

56


Maiden Speeches

175. Maiden Speeches are given high priority and are usually treated with special courtesy.

The Member making a Maiden Speech, should be congratulated by the other Members

speaking following her. Ideally, before delivering a Maiden Speech, the Member

should announce vividly her name and the Electoral Ward she represents, if she is an

Elected Member.

Members to be heard without Interruption

176. A Member has a right to be heard without interruption, provided he is not out of

order, irrelevant or repetitive; though inoffensive interjections which do not seriously

interrupt his speech are not discouraged. While an occasional interjection may add

spice to a debate, continuous interruptions cannot be tolerated and Members should

desist from making them.

Drawing attention to Breach of Order

177. Members may draw the attention of the Hon. Speaker to any breach of order. To do so

a Member may interrupt a colleague who is speaking with the words, “On a point of

order, Hon. Speaker…..”The Hon. Speaker will then give a brief ruling on the matter,

or state that, he defers the ruling to another day.

Interrupting a Member Speaking to offer Information

178. A Member who is speaking may permit interruption by another Member who wishes

to elucidate a point. Such a Member will attempt to rise with the words, “Will, the

Hon. Member permit me?”or “Would, the Hon. Member kindly give way?” or “On a

point of information”. The Member, then speaking will usually resume his seat, while

the interrupting Member asks for or gives explanation of a point , but if the hour is

late, or if the Member then speaking suspects the other of merely trying to harass him,

he may indicate that he is not prepared to give way.

57


Interrupting a Member Speaking - Point of Order

179. A Member speaking may be interrupted at any time on a Point of Order. The

words used are, “Hon. Speaker, on a Point of Order”. The member interrupting

thus must be certain that, his point is a Point of Order and not a point of

explanation or a point of argument. Points of Order may relate either to the

propriety of what the Member then speaking has said, or to any other matter

which is immediately relevant to the procedure (including a proposal to move

the Closure of a Debate).

Manner of speaking in a County Assembly

180. Erskine May, who is the authority on parliamentary procedure, states, “Good

temper and moderation are the characteristics of parliamentary language.

Parliamentary language is never more desirable than, when a Member is

canvassing the opinions and conduct of his opponents in debate.” Refl ections

in a County Assembly during debate against the character and proceedings

of the Assembly or its Members which tend to degrade the legislature are

prohibited. Members referring to Colleagues

181. Members may not refer to colleagues by name, instead they should employ

such appropriate description, as:-

distinguishing each Member by the offi ce she holds;

(i) by the Electoral Ward she represents or by some such designation

as, “The hon. Member who just resumed her seat,” or “The hon. Member who has just spoken so eloquently,”

(ii) a lady Member should be referred to as, ”The hon. and Gracious Lady, the Member for….”,

(iii) a former member of the Armed Services as, “The hon. and Gallant member for….”,

(iv) a Member having legal qualifi cations as, “The hon. and learned Member for….”,

58


(v) Nominated Members may be referred to as, “The hon. Nominated

Member who has just spoken,” or “The hon. Nominated Member Mr. X.”

(in this case her name may be used). The art of Speaking

182. Members whose speeches are uninteresting, repetitive or irrelevant would soon fi nd

themselves speaking to empty benches, even if not called to order for repetition or

irrelevance.

When to speak in a Debate

183. No Member other than the proposer and the seconder may speak in a debate until

the question has been proposed from the Chair.

Moderate Language- Un parliamentary Words

184. Members are expected to observe moderation of language and avoid saying anything

which might refl ect on the motives, honesty or sincerity of another Member. Though

there may be no exact defi nition of an un parliamentary expression, it has been held

in most legislatures that, such references as “ignorant”, “wasting time”, “sit down”,

“stooge”, “shut up”, “nonsense”, “lie”, “liar”, “stupid”, and many others fall in that

category.

185. Cries of “shame”, particularly if voiced loudly, are considered to be a gross form

of misconduct; however, cries of “hear hear”, in moderation, can be used, but when

frequent and loud for the purpose of interrupting a speech, they are considered as

un parliamentary. Such cries as “Questions”, “Order”, or “Division”, when used in

moderation, would be permitted by the Hon. Speaker.

Declaration of Personal Interest and Relevancy

186. A Member who wishes to speak on any matter in which he has a personal interest

shall fi rst declare that interest.

59


187. The subject matter of the Motion must be studied, to ensure that the speeches

are relevant to that subject matter. Irrelevancy could cause the Hon. Speaker to

discontinue the speech of a Member. Decided matters may be rescinded

188. When a matter has been decided by debate and resolution of a County

Assembly, it cannot be discussed further in the course of any subsequent debate

during the next six months. It may only be revisited on a motion to rescind the

decision taken on it earlier.

Anticipation of matters likely be debated

189. Matters which are to be the subject of a debate (whether on a Motion or in

respect of a Bill) in the near future must not be referred to in a current debate,

unless with the guidance of the Speaker.

190. Members must not repeat, in the course of any one debate, what they or other

Members have already said.

Allegations and Substantiation of Fact

191. Members should refrain from alleging specifi c matters of fact as being true,

unless they are prepared to substantiate them by producing some kind of

evidence which reasonably justifi es such allegations, though not necessarily

amounting to strict proof.

Quorum of a County Assembly

192. A Member may rise at any time on a Point of Order and draw the attention

of the Hon. Speaker to the fact that, a quorum is not present. A quorum of a

County Assembly is one third of all its Members.

60


P. HOW RESOLUTIONS ARE MADE - MOTIONS

Substantive Motions

193. A Substantive Motion is a self-contained proposal which upon debate and

adoption would constitute a decision of the House.

Notice of a Motion

194. All Substantive Motions are preceded by its sponsoring Member giving a

Notice containing its purpose, objects and contents to the County Assembly.

There are exceptions to this rule, for instance, Motions in the Committee of the

whole County Assembly.

195. Before giving Notice of a Motion, a Member would deliver to the Clerk a copy

of the proposed Motion in writing and signed by himself. The Clerk submits the

same to the Hon. Speaker, who may admit it or direct that it be altered or that

it is inadmissible.

196. When a Notice of Motion is approved by the Hon. Speaker, the Member gives

notice by reading the text out at a sitting of the County Assembly when the

Clerk calls out the order of the day, “Notice of Motion”.

197. Motions sponsored by the Majority Party, the Minority party or any other

Party, shall have precedence over all other Motions on the days specifi ed in the

Standing Orders. Variation on this, may be made by the Sessional Committee

in consultation with the sponsoring party.

198. Once a Notice of a Motion has been given, the Sessional Committee decides

on the sitting at which it could be debated. Whereas a Notice of Motion could

be withdrawn by the Member who gave the Notice; the same Notice could be

given again either by the same or any other Member.

The substance of a Motion should be prefaced with such words as:

“That, in the opinion of this County Assembly….”

61


“That, this County Assembly approves….” “That, this County Assembly urges Government to….” “That, this County Assembly notes….” Etc. “That, this County Assembly calls upon the Senate/Government to….”

199. A Member who has a Motion standing in her name, may authorise in writing another

Member to move that Motion in her stead.

When a Member fails to move a Motion

200. If a Member is not present to move her Motion at the time when it appears on the

Order Paper, such motion shall not appear again on the Order Paper during the same

session except with the leave of the Hon. Speaker. Reserving the right to speak on a Motion

201. A Motion must be seconded. The Member seconding the Motion, could reserve her

right to speak later in the debate, by rising in her place and bowing without speaking.

When a Motion is in possession of a County Assembly

202. When a Motion has been moved and seconded, the Hon. Speaker will, propose the

question by saying, “The question before the House is that….” ( reads out the Motion).

Once the question has been proposed, the Motion is open to debate and deemed to be

in the possession of a County Assembly; and cannot be withdrawn without the leave

of the Assembly. Amendments to a Motion- Motion as amended

203. Amendments and amendments to amendments can be proposed in the course of

the debate. However, only one question should be before the Assembly at one time.

Therefore, the County Assembly has to dispose of amendments before resuming the

debate on the original or amended Motion, as the case may be.

62


204. If the Motion is amended, the Hon. Speaker will propose the question in its new

form before the debate continues. Any Member who has not spoken to the original

Motion can take part in the debate on the Motion as amended, even though he has

spoken to the amendment, unless the Hon. Speaker had ruled that, the motion and the

amendment should be debated together.

Right of a Mover to Reply

205. Before the debate is concluded, the Mover of the original Motion has the right to

reply.

Moving amendments to Bills and Motions

206. A proposal before the County Assembly may be agreed to or negatived as it stands,

or it might be agreed to if it were altered in some way by means of an amendment.

This procedure is applicable to Motions and Bills. Every amendment must be relevant

to the question which it proposes to amend.

An amendment may take one or other of the following forms:-

(i) leaving out certain words;

(ii) adding or inserting certain words; or

(iii) leaving out certain words and adding or inserting others.

(iv) an amendment must be handed to the Clerk-at-the-Table in writing before

it is moved.

207. An amendment to a Bill at Committee stage must be notifi ed to the Clerk of a County

Assembly in writing before the commencement of the sitting at which that Bill is to be

considered, unless it is moved by the Member in charge of that Bill. An amendment to

an amendment in Committee may, however, be moved on delivering it, in writing, to

the Chairperson at that time. Amendment not to negate a Bill or a Motion

208. No amendment is permitted if it implies a direct negative of the original proposal,

or elimination of its main purpose/ objective. The correct way to expressing a contrary

opinion is by voting against the Motion.

63


Time at which an amendment is to be moved

209. An amendment may be moved at any time after the original Motion has been

proposed and before the fi nal question has been put. Any amendment proposed in the

County Assembly must be seconded unless it is an amendment in Committee of the

Whole County Assembly.

How to second an Amendment

210.Unlike the seconder of a Substantive Motion, the seconder of an amendment cannot

second formally by bowing and thereby reserving her right to speak later. If she wishes

to speak to the amendment, she must do so at the time she seconds the amendment.

Q. HOW A LAW IS MADE - ACTS OF COUNTY ASSEMBLY

What is a Bill?

211.A Bill is draft legislation for consideration by a County Assembly. Upon approval and

assent to by the County Governor, it is called an Act of the County Assembly.

212.Each member receives copies of all Bills which are for introduction to the County

Assembly.

Stages in the making of a Law

213. Not more than one stage of a Bill may be taken at the same sitting without the leave

of the House.

A Bill passes through six stages. These are:

(i) Drafting, Printing and Circulation- A time limit is set, prior to the next stage, to

enable the public read and study it and prepare to participate.

(ii) First Reading- to draw the attention of the Members and the public to the Bill.

At this stage, the Bill may be referred to the relevant Sectoral Committee.

(iii) Second Reading- the Mover introduces ,outlines its aims and objectives and all

64


details .Members discuss the Bill and the views of the Mover together with the

report of the Sectoral Committee. At the end of the Second Reading, the only

amendment that could be made, is to defer its Second Reading for six months-

literary, “killing the bill”

(iv) Committee of the Whole County Assembly as a Stage- the Bill is considered

clause by clause. Members may propose amendments. (See paragraph 208 to

213 above).

(v) Report Stage- the Committee informs the County Assembly sitting in Plenary of their consideration of the Bill.

(vi) Third Reading- Members may again debate the principles of what is already

in the Bill but further amendments should not be proposed, except to defer its

Third Reading for six months, literary-“killing the Bill” Assent of the County Governor

214.When a Bill has passed its Third Reading in the County Assembly sitting in Plenary, it

is sent by the Hon. Speaker to the Governor for assent.

215.Procedure to be followed where the Governor declines to assent to a Bill passed

by a County Assembly are in Section 24 of the County Governments Act, 2012 and

S.O.121.

Custody of Acts of a County Assembly

216.All Bills enacted by a County Assembly and assented to by the Governor shall be in

the custody of the Clerk of the County Assembly.

Adherence to the Fourth Schedule of CK 2010

217.In executing the legislative power of the County, the County Assembly shall ensure

that all Bills introduced adhere to the Fourth Schedule CK 2010.

65


R. SITTINGS AND ADJOURNMENTS AND

ADJOURNMENT MOTIONS

Sittings

218.The sittings of a County Assembly, pursuant to provisions of S.O.20 are held as

follows:-

(i) Afternoon Sittings are held on Tuesday, Wednesday and Thursday,

commencing at 2.30 p.m. and are interrupted at 6.30 p.m.; but they may

on some days, by a resolution of a County Assembly, be extended for an

agreed period;

(ii) Morning Sittings are held on Wednesday commencing at 9.00 a.m. and

are interrupted at 12.30 p.m.

(iii) In the Committee of Supply, each of the allotted days must consist of three

hours, either in the morning or afternoon. Sittings on the afternoon of an

allotted day may continue up to 07.00 p.m. Adjournments

219.The normal interruption of proceedings of normal sittings would come at 12.30 p.m.

and at 6.30 p.m. ,respectively, during Afternoon and Morning sittings.

220.The Adjournment of a County Assembly would also come about in the event of

there being no Quorum under provisions of Standing Order 26. Such adjournment is

normally without question put. Motions for the Adjournment

221.These Motions are split into Substantive and Dilatory

(i) The Substantive Motions End of Normal Sitting

The adjournment of a County Assembly under S.O. 24, to a day other than the

66


Next Normal Sitting day or sine die is secured by a resolution of the Assembly.

The resolution would normally be by a Motion contained in a Notice appended

to the Order Paper for the Sitting at which such Adjournment is contemplated. To raise Defi nite Urgent Matters of the State /County Importance

222.The Adjournment secured pursuant to provisions of Standing Order No.23, would

enable a Member, raise a matter considered Defi nite, Urgent and of State or County

Importance. Motions seeking this kind of Adjournment are moved at any time and

without notice. The sequence of events leading up to the moving of such motions is

as follows:-

(i)The Member should hand a written notifi cation of the matter she wishes to

raise to the Hon. Speaker, at least two hours before the commencement of

a Sitting at which she intends to raise the matter;

(ii)The Hon. Speaker has the duty to decide whether he considers the matter

to be one which falls within the phrase “a defi nite, urgent matter of State/County importance”

(iii)Should the Hon. Speaker decide in the affi rmative he then accordingly

informs the County Assembly;

(iv)If not less than fi ve other Members rise in their places in support, the Hon.

Speaker shall then nominate a time on the same day at which such a

Motion may be moved;

(v)This form of motion is intended to facilitate the discussion of a particular

subject, and only that subject may be discussed. The object is not literally

to adjourn a County Assembly; but to set aside scheduled business to

facilitate the deliberation, ventilation on that particular matter;

(vi)At the conclusion of the debate, no question is put.

(ii) Dilatory Adjournment Motions

223.These are motions made for the purpose of gaining time, postponing the decision on

a question and may be a safe way to evade altogether having to make any decision at

all. There are the following types:-

67


Adjournment of a debate

224.These Motions can be moved by a Member at any time after a Question has been

proposed, that she wishes to postpone to some future occasion the further discussion

of the proposed question, by stating, if, in a County Assembly, “That, the debate

be adjourned”; or if in the Committee of the whole County Assembly, “That, the

Chairperson do report progress”.

(i) The Hon. Speaker or the Chairperson has to decide whether such a Motion

is not frivolous and an abuse of the proceedings of a County Assembly, if

it is not, he will forthwith put the question; or if it is, he may decline to

propose the question.

(ii) The debate on any such Motion is confi ned to matters raised in the Motion;

which if adopted the debate on the proposed question ceases forthwith.

Adjournment of a County Assembly

225.These Motions can be moved, pursuant to provisions of S.O. 21 by any Member at

any time in the course of proceedings. Motions in this regard include, those seeking

the adjournment of the Assembly, to facilitate attendance by the Assembly to some

urgent State/County matter within the Nation or the County. These Motions are moved

without notice, and are concluded by putting of the question.

(i) The Hon. Speaker has the task of deciding whether the Motion is frivolous,

vexatious or an abuse of the proceedings of a County Assembly; if it is,

he may decline to put the question; otherwise, he may forthwith put the

question.

(ii) The debate on such a Motion shall be confi ned to the matter of the Motion,

which if adopted, the County Assembly adjourns immediately, otherwise

deliberation on the proposed question resumes.

(iii) A Member who has moved or seconded a negatived dilatory Motion may

not subsequently move or second another such motion during the same

debate.

(iv) Even though a dilatory Motion may have been moved and negative, more

such Motions may be moved by any other Member during the same

debate.

68


Motions to curtail ongoing Business

226.Motions under this form of procedure are also dilatory and are moved in the course

of proceedings after a question has been proposed. These Motions may be moved at

any time and comprise the following:-

(i) A Member may at any time seek to curtail the further discussion of a

question to which the Mover has the right to reply, by moving a closure.

The Member moving this kind of a Motion rises in her place on a point of

order and states- “That, the Mover be called upon to reply”.

(a) The Hon. Speaker has the duty to decide whether such a Motion is an

abuse of the proceedings of the Assembly or an infringement of the

rights of Members, if not, then the question shall be put forthwith and

decided without debate; and if he thinks so, then the debate on the

question then before the House shall resume.

(b) If the Hon. Speaker puts the Question and it is decided in the

affi rmative, then the Mover shall reply immediately, if she does not

wish to reply, the question of the main question shall be put.

(ii) A Member may at any time seek to curtail the further discussion of a

question to which the Mover has no right to reply, by moving a closure.

The Member moving this kind of a Motion, rises in her place on a point of

order, and states, “That, the question be now put”.

• Such motions are dealt with in a manner similar to that above. Leave of the County Assembly

227.Wherever, the procedure or any, Standing Order, requires “the leave of the County

Assembly”; it refers to a situation where there is no objection by any Member, either

with the sympathy of the Hon. Speaker or, with the support of at least two other

Members.

Limitations of Debate

228.The House may impose a limit on the duration of a debate on any particular motion

and also a limit on the amount of time set aside for each Member wishing to speak

69


to the debate. Both limitations could be imposed on the same Motion. There are

limitations imposed on certain specifi c business, e.g. debates on both the Public and

Private Bills; adoption of reports of Select Committees and of the Motions. Members

should refer to the relevant Standing Order for details.

S. THE COMMITTEES OF A COUNTY ASSEMBLY

229.The procedure of a County Assembly provide for the formation of two kinds of

Committees;

(i) Committees of the Whole County Assembly; and

(ii) Select Committees which comprise Standing, Ad hoc and Sectoral

Committees;

Committees of the Whole County Assembly

230.There are three types of Committees of the Whole County Assembly.

(i) Committee of the Whole County Assembly on Committee stage of a Bill

231.Once a Bill has gone through a Second Reading, it is automatically committed to the

Committee of the Whole County Assembly.

(ii) Committee of the Whole County Assembly on the Budget

232.Following the submission of annual or supplementary estimates of expenditure of

a County Government before a County Assembly by the chairperson of the Budget

and Appropriations Committee, the Committees of Ways and Means and of Supply

deliberate on them in sequence. Both Committees are comprised of all Members of

the Whole County Assembly.

Committee of Ways and Means

233.Confi nes itself to deliberations on the processes suggested to raise funds to foot the

budget for the next Fiscal Year. These deliberations are supposed to be disposed off

during the allotted days.

70


Committee of Supply

234.Confi nes its deliberations on the distribution of funds to be raised in the Committee of

Ways and Means to the various departments of a County Executive, County Assembly

and any County Corporations; this Committee does the distributions within the allotted

days.

Select Committees

235.A County Assembly can form Select Committees, split into:-

(i) Standing/Sessional Committees;

(ii) Ad Hoc Committees; and

(iii) Sectoral Committees.

(iv) Select Committees, consist of a minimum of fi ve and a maximum of eleven

Members,

Standing/Select Committees

236.The business executed by the Standing/Sessional Committees is either routine and/or

in-house. The lifespan of the membership of these Committees coincides with that of

a Session. The Committees falling under this category are:-

(i) Sessional Committee:- prepares and manages the programme of the business of

a County Assembly on a weekly basis and its Annual Calendar; decides on all

questions for changes in the Calendar and Order Paper;

(ii) Budget and Appropriations Committee:- examines and deals with matters

relating to fi nances and budgeting of a County Government.

(iii) Public Accounts and Investments Committee:- examines reports by the

Auditor-General on County Government expenditure, investments in County

Corporations and Funds Accounts;

(iv) Speaker’s Committee:- examines matters relating to the welfare of Members,

staff and the management of a County Assembly;

(v) Procedure and Rules Committee:- examines matters relating to and makes

periodic reviews of the procedure and the Standing Orders as necessary;

(vi)Powers and Privileges Committee:- deals with issues regarding privileges of a

County Assembly, Members and the public.

71


Ad Hoc Committees

237.These are formed by a County Assembly as and whenever the need arises to investigate,

study and make recommendations on certain specifi c matters and issues which need

consideration and solution.

Sectoral Committees

238.A County Assembly may form Sectoral Committees at the commencement of its life,

to which their lifespan correspond.

239.Sectoral Committees investigate or inquire into the activities and administration of

departments of the County Executive as constituted, subject to the Fourth Schedule

of CK 2010; assigned to each. Out of such investigation, the committees could

propose legislation; while dealing with Bills, in addition to dealing with the estimates

of assigned departments; and vetting nominations for appointment as Secretary and

Chief Offi cers of a County Government.

240.The Sectoral Committees include:-

(i) Sectoral Committee on Agriculture, Environment and Natural Resources;

(ii) Sectoral Committee on Early Childhood Education and Vocational

Training;

(iii) Sectoral Committee on Transport and Public Works;

(iv) Sectoral Committee on Planning, Trade, Tourism and Co-operatives;

(v) Sectoral Committee on Children, Culture and Community Services;

(vi) Sectoral Committee on Health Services

Membership of Committees

241.All Committees of the Whole County Assembly, constitute all Members and assemble

in the Chamber of a County Assembly.

242.Nominations to all Select Committees are made by the Sessional Committee, in

consultation with the leadership of political parties with Members in the County

Assembly, subject to approval by the County Assembly. In certain cases the composition

72


is made directly by the County Assembly, for instance, in case of the Sessional

Committee and Ad hoc Committees.

Procedure in Committees and Record of Work

243.The core of the procedure in Committees is in Standing Order No.118 which reads:-“Save as and to the extent to which the chairperson may in his discretion otherwise direct, for the purpose of facilitating full consideration and discussion of the matter referred to a Select Committee, the procedure in a Select Committee (which refers to Standing, Sectoral and Ad hoc Committees) shall be as nearly as possible, the same as that in Committee of the Whole

County Assembly”.

244.The procedure in the Committee of the Whole County Assembly, is a general relaxation

of that in the Plenary of a County Assembly, in which for instance, a Member may

speak severally on the same question (see paragraph 103). The proceedings enjoy the

same privilege as those of the Plenary of a County Assembly. Public Access and Participation

245.Proceedings of Select Committee and witnesses who appear are held in public, except

as provided for in Section 196 of the Constitution of Kenya, 2010.

T. THE BUDGET IN THE COUNTY ASSEMBLY Role and Function of the Cabinet Secretary for Finance

246.Pursuant to provisions of Section 218(1) of CK 2010, the Cabinet Secretary for Finance

shall at least two months before the end of each Financial Year submit to the National

Parliament:-

(i) A Bill by the name, Division of Revenue Bill, which shall have divided the

revenue raised by the National Government among the National Level

and County Level Governments as required under Sections 202(1) and

203 of CK 2010.

73


(ii) A Bill, by the name, County Allocation Bill, which shall have divided

among the Counties, the revenue allocated to the County Level of

Government, as resolved under Section 217 of CK 2010.

(iii) The share of the revenue of a County as authorised in the County Allocation

Bill, shall be transferred to the County without undue delay.

Role and Function of the Commission on Revenue Allocation

247.Pursuant to provisions of Section 216 of CK 2010, the Commission on Revenue

Allocation shall:-

(i) Make recommendations of the basis and criteria for the equitable sharing

of the revenue raised by the National Government, between the former

and the County Governments and among the County Governments;

(ii) Determine a policy setting out the criteria by which to identify the

marginalised areas for the purposes of Section 204(2) of CK 2010 Role and Function of the National Parliament

248.Pursuant to provisions of Section 204 of CK 2010,enact the Equalization Fund, which

is to be utilized by the National Government as provided for under this Section.

249.Pursuant to provisions of Section 217 the Senate and the National Assembly, adopts

a resolution determining the basis for allocating among the Counties, the share of the

national revenue that is annually allocated to them.

250.The resolution is initiated by the Senate, once every fi ve years. However, it requires

the concurrence of the National Assembly, subject to provisions of Section 217(5).

Role and Function of the County Executive Committee

251.Pursuant to provisions of Section 224 of CK 2010, each County Government shall

prepare its annual budget estimates and later an Appropriations Bill as provided for in

the Public Finance Management Act, 2012.

74


252.The annual budget, estimates and the Appropriation Bill shall be prepared by a County

Executive Committee and submitted by a County Executive Committee Member for

Finance to a County Assembly for approval and enactment.

How the Annual Budget and the Estimates arrive in a County Assembly

253.Pursuant to provisions of Section 128 of the Public Finance Management Act,2012

(PFA,2012), the budget process for a County is managed by a County Executive

Committee Member (CECM) for Finance, including forwarding the annual budget and

estimates of a County Government to a County Assembly. Sequence of Processing the Annual Budget

254.The Sequence/Processes of the transaction of the Budget of a County Assembly are:-

(i) County Development Plan- is prepared under Section 126 of CK 2010 and

submitted to a County Assembly by the County Executive Member responsible

for Planning, not later than September 01, in each year.

(ii) County Budget Review and Outlook Paper

(a) For each Financial Year, the County Budget Review and Outlook Paper is

submitted by the County Treasury to the County Executive Committee by

September 30, of the Financial Year;

(b) The County Executive Committee approves the County Budget Review

and Outlook Paper within fourteen days;

(c) The County Budget Review and Outlook Paper is then submitted to a

County Assembly

(iii) The Circular Setting out Guidelines to be Followed by County Governments in

the Budget Process

(a) The County Executive Member for Finance issues the Circular not later

than August 30, in each year;

(b) The Circular shall specify, amongst others-

• A Schedule for preparation of the Budget, specifying key dates by

which various processes are to be completed;

• Key policy areas and issues to be taken into consideration;

• The procedures to be followed by the public to participate and the

format in which information and documents may be submitted.

75


(iv)The Pronouncement of the Revenue Raising Measures of the County Government

(a)The Pronouncement shall be made by the County Executive Member for

Finance in each Financial Year;

(b) The County Finance Bill, is submitted to a County Assembly on the date of

the Pronouncement;

(c) The County Finance Bill sets out the revenue measures together with a

policy statement expounding on the same;

(d) The County Finance Bill shall be approved not later than ninety days after

a County Assembly passes the Appropriation Bill

(v)The County Fiscal and Strategy Paper

(a) The County Fiscal and Strategy Paper is prepared by the County Treasury

and submitted to the County Executive Committee for its consideration

and approval;

(b) The approved Paper is then submitted to a County Assembly by February

28, of each year;

(c) The Paper specifi es amongst others, the broad strategic priorities and policy

goals that would guide preparation of County budgets for the coming year

and over the medium term;

(d) The Paper, further ,includes- the fi nancial outlook of the revenues,

expenditures and borrowing of the County Government for the coming

year and over the medium term;

(e) The Paper is considered by the Committee on Budget and Appropriation

which tables a report and recommendations before a County Assembly;

(f) A County Assembly considers the Paper together with the report of the

Budget and Appropriation Committee and adopts it within fourteen days;

(g) The County Executive Committee Member for Finance considers

recommendations of a County Assembly on the Paper when fi nalizing the

Budget proposal for the year concerned.

(vi) Statement of Debt Management Strategy

(a) The Statement of Debt Management of a County Government over the

medium term is submitted to a County Assembly by a County Executive

Committee Member for Finance, on or before February 28, in each year;

(b) The Statement sets out the actual and potential liabilities in respect of

loans and plans to deal with the loans;

76


(c) Further, the Statement would include information on-

• The total stock of debt as at the date of the Statement;

• The sources of the loans;

• The principal risk associated with those loans;

(d) The Statement is considered by the Committee on Budget and

Appropriation which would table a report and recommendations to the

County Assembly

(e) The report of the Committee would be considered by the County Assembly;

once adopted, the views and recommendations of the Assembly would be

forwarded to the County Executive Committee

(vii) Submission of Annual Budget Estimates and Documents

(a) The Annual Budget Estimates, Supporting Documents and any Bills

required to implement the Budget for the forthcoming Fiscal Year for the

County Executive and other entities; except the Finance Bill, should be

submitted by the County Executive Committee Member for Finance by

April 30, of the year;

(b) The Annual Budget Estimates and any Accompanying Documents shall

be prepared by and submitted to the County Assembly by the Clerk of the

County Assembly by April 30, of the year; copies shall at the same, be

submitted to the County Executive Committee Member for Finance

(c) The Annual Budgets and Estimates of the County Governments and the

County Assembly shall be referred to the Sectoral Committees;

(viii) The Role and Function of Select Committees

(a) The Sectoral Committees shall consider their sectoral budgets and estimates

and report to the Budget and Appropriation Committee;

(b)The Sectoral Committees shall require the respective County Executive

Committee Members to appear to elucidate and respond to any queries;

(c) The Budget and Appropriation Committee shall adopt the same procedure

as the Sectoral Committees; as well as facilitating public participation;

(ix)The Role and Function of a County Assembly

(a) The Budget and Appropriation Committee shall table a report and

recommendations on the two budgets and estimates to the Committee of

Supply of the County Assembly;

(b) The Budget and Appropriation Committee, as well as, the Committee of

Supply, shall deliberate and if amendments are proposed, they should be

77


done in compliance with the provisions of Sections 131 of PFM 2012; and

approve the Budgets and the Estimates by April 30, of the same year;

(c) A County Assembly shall consider and approve with or without

amendments the annual Budgets and Estimates of the County Government

and the County Assembly by June 30. of the year;

(x) The Appropriation Bill of the Year

(a) The Appropriation Bill of the year, incorporating the two sets of Budgets

and Estimates, shall be submitted to the County Assembly, soon after the

County Assembly would have approved the Budgets and the Estimates;

(b) The Appropriation Bill shall be submitted by the County Executive

Committee Member for Finance and shall be enacted soon after by the

County Assembly.

(xi) Statutory Stages in County Government Budget Process

The Statutory Stages in County Government Budget Process are set out in

Section 125 of PFM; 2011.

Comparative Summary of Processing Annual Budget at both levels of Government

Cabinet County Executive Committee

• Approves the Budget Policy Statement (BPS) and the Budget Review and Outlook Paper (BROP), and Medium Term Debt Management Strategy MT/DMS.

• Reviews the Annual Budget Estimates for the National Government (excluding Parliament and the Judiciary) before submission to Parliament for approval.

• Approves the Fiscal Strategy Paper (FSP) and the County Budget Review and Outlook Paper (C-BROP);

• Reviews and approves the Annual Budget Estimates for the County Government excluding the County Assembly before submission to the County Assembly for approval;

• Has powers to establish a County Emergency Fund (CEF) but with the approval of the County Assembly.

78


APPENDICES

APPENDIX A

GUIDE TO ESTABLISHMENT OF A COUNTY PUBLIC SERVICE

INTRODUCTION

1. The Mandate (Functions, Roles, Powers and Activities) of County Governments

are executed by two categories of personnel. The fi rst category are the elected and

nominated politicians– who primarily engage in the formulation of policy and its

translation into legislation and programmes; and accounting for the work of various

organs and structures of government. The second category is the apolitical (non-

politicians, non-partisan) who are hired by the fi rst category to turn the wheels of the

working of governance. Both categories have and exercise their functions and powers;

pursuant to various provisions of the Constitution of Kenya 2010, the enabling statutes

and the regulations and rules, enacted under the ambit of the statutes.

2. The Guide has, though, without much detail highlighted the part played by the political

(elected, nominated) personnel of the County Governments. The following is a brief

view of the Establishment of the County Public Service.

MANDATE AND POWER OF COUNTY GOVERNMENTS

3. The mandate and powers to put in place a County Public Service (CPS) are vested in

the County Government by Section 235 (1 and 2) of CK 2010, viz

(i) The responsibility to constitute, the entire County Public Service, creation

of specifi c structures, organs and offi ces; recruitment of personnel, their

control, deployment and limitation;

(ii) The establishment would, however, have to adhere to the uniform norms

and standards to be established by legislation of the National Government;

79


4. The Establishment and the Activities of the County Public Service are further subject

to:

(i)National Values and Principles of Governance in Section 10 of CK

2010,which bind all State Organs, State Offi cers, public offi cers and all

persons in their service to the public;

(ii)Values and Principles of Public Service in Section 232 of CK 2010, which

apply to public service in all State Organs at National and County levels;

all State Corporations;

(iii)The Objectives of the County Public Service in Sections 53 and 58 of the

County Governments Act,2012 which require the County Public Service

to:

(a) Comply with and promote Values and Principles of Sections 10 and

232, above;

(b) Organize the staffi ng and functions so as to ensure effi cient, quality

and delivery of productive services;

(c) Provide for institutional systems and mechanisms for human resource

utilization and development to enhance service delivery;

(d) Provide for establishment of County Public Service Boards for each

County

(iv) Each County Government is to have its own County Public Service, to be

headed by a County Secretary.

5. The processes for establishing or putting into effect the above, especially, the

provisions of Section 235 of CK 2010, would be undertaken by the Cabinet Secretary

with responsibility for Devolution/County Governance. The County Secretary would

prepare a Sessional Paper conceptualizing and indicating the enabling legislation

with its objects. The Sessional Paper and the enabling Legislation would in turn be

discussed by and approved by the County Executive Committee, then submitted to the

County Assembly for adoption and enactment.

6. The enabling legislation would be followed by Regulations to operationalize it.

80


ESTABLISHMENT OF COUNTY PUBLIC SERVICE BOARDS

7. Each County shall have and establish a County Public Service Board(CPSB), by

provisions of Section 57 of the County Governments Act, 2012(CGA 2012).

COMPOSITION OF COUNTY PUBLIC SERVICE BOARD

8. The composition of the County Public Service Board is under Section 58 of CGA

which also specifi es the process of its appointment, cessation of offi ce, qualifi cations,

removal from offi ce, et cetera.

FUNCTIONS AND POWERS OF A COUNTY SERVICE BOARD

9. The core functions and powers of a County Public Service Board are provided for

under Section 59 of CGA, 2012.

10. The rest of the functions, powers, regulation of the individual activities; the control and

facilitation of the County Public Service, including establishment and abolishment of

public offi ces; appointment to public offi ces, deployment, discipline, establishment

and maintenance of institutional memory; promotions, secondments, contracts,

resignations/retirements and appeals; delegation of functions and powers to its staff

and others – Sections 60 to 86 of CGA 2012.

11. The processes for the establishment of and the putting into effect of the above provisions

would be taken by the County Executive Committee Member responsible for County

Public Service affairs. The County Executive Committee Member would prepare a

County Sessional Paper conceptualizing and indicating the enabling legislation with

its objects. The Sessional Paper and the Legislation would in turn be submitted to the

County Assembly for adoption and enactment; upon discussion and approval by the

County Executive Committee.

12. Upon enactment of the enabling Legislation, the County Executive Committee

Member, would then prepare and submit to the County Assembly the Regulations to

operationalise the Legislation.

81


13.The establishment of both the County Public Service and the County Public Service

Board, would greatly benefi t from the establishment and operations of the equivalent

for the National Government.

82


APPENDIX B

GUIDE TO ESTABLISHMENT OF COUNTY ASSEMBLY SERVICE

INTRODUCTION

1. The Mandate (Functions, Roles, Powers and Activities) of County Governments

are executed by two categories of personnel. The fi rst category are the elected and

nominated politicians– who primarily engage in the formulation of policy and its

translation into legislation and programmes; and accounting for the work of various

organs and structures of government. The second category is the apolitical (non-

politicians, non-partisan) who are hired by the fi rst category to turn the wheels of the

working of governance. Both categories have and exercise their functions and powers;

pursuant to various provisions of the Constitution of Kenya 2010, the enabling statutes

and the regulations and rules, enacted under the ambit of the statutes.

2. The Guide has, though, without much detail highlighted the part played by the political

(elected, nominated) personnel of the County Governments. The following is a brief

proposal on the Establishment of the County Assembly Service.

MANDATE AND POWERS OF COUNTY ASSEMBLIES

3. The mandate and powers for the County Assemblies to put in place the County

Assembly Service are often claimed on the basis of, history and tradition. Today it

is claimed as being necessary in quest for democratic best practices of governance,

within proper operation of the principles of separation of functions /powers among

the three arms of Government. This principle has been ably incorporated in the Public

Finance Management Act, 2012, whereby, there are three separate budgets, one each

for the Executive, the Judiciary and the Legislature. The exercise of this principle

vindicates the National Assembly for relentlessly struggling for the establishment of

the Parliamentary Service Commission (PARLSCOM) in 1999.

83


ESTABLISHMENT OF A COUNTY ASSEMBLY SERVICE BOARD

4. Each County Assembly shall constitute a County Assembly Service Board, pursuant to

provisions of Section 12 of CGA, 2012,whose particulars include:-

(i) Status of the County Assembly Service Board as a body corporate with

perpetual succession and common zeal;

(ii) Composed of fi ve members, with the Clerk of the County Assembly as its

Secretary;

(iii) The processes of service, cessation of appointment;

(iv) The functions, roles and powers - broadly to ensure the County Assembly

is provided with services and facilities to enable it to function effi ciently

and effectively – budgeting, hiring personnel, promoting ideals of

parliamentary democracy and ensuring the well being of hon. Members

and staff.

5. The establishment of the County Assembly Service Board will require:-

(i) a Sessional Paper, to conceptualize and map out the objects and structures

of the Board

(ii) a County Assembly Legislation, containing virtually all in the Sessional

Paper to give legal effect to the establishment;

(ii) Regulations to address pertinent details in the operationalisation of the

legislation and its objects.

6. To initiate and effect the above processes would be the Speaker’s Committee of the

County Assembly; which will at the same time act in the interim as the Board.

7. The entire drive to establish the County Assembly Service Board, would greatly benefi t

from a close study of the establishment and operations of the Parliamentary Service

Commission at National Parliament.

84


APPENDIX C

COUNTY GOVERNMENTS

OATHS OF OFFICE

Oath of Offi ce for Governor/ Deputy Governor

“I ...................................., do swear/ solemnly affi rm that I shall always truly and diligently serve the people and the Republic of Kenya in the offi ce of Governor/ Deputy Governor of ………………………County; that I shall diligently discharge my duties and perform my functions in the said offi ce, to the best of my judgment; (that (in the case of the Deputy Governor) I shall at all times, when so required, faithfully and truly give my counsel and advice to the Governor of the …………………. County); that I shall do justice to all. (So help me God)

Oath of Offi ce for Speaker/ Acting Speaker

“I …………………………., having been elected as Speaker/ Acting Speaker of the County Assembly of ………………………………… County do swear/ solemnly affi rm that I shall always truly and diligently serve the people and the Republic of Kenya in the offi ce Speaker/ Acting Speaker of the County Assembly in …………………………… County; that I shall respect, uphold, preserve, protect and defend this Constitution of the Republic of Kenya; and that I shall do right to all manner of persons in accordance Constitution of Kenya and the laws and conventions of Parliament without fear or favour, affection or ill

shall (So help me God)

Oath of Offi ce for County Assembly Clerk

“I……………………………, do swear/ solemnly affi rm that I shall always truly and diligently serve the people and the Republic of Kenya in the offi ce of Clerk of the County Assembly in ……………………… County; that I shall diligently discharge my duties and perform my functions in the said offi ce, to the best of my judgment; that I shall at all times, when so required, faithfully and truly give my counsel and advice to the Speaker of the County Assembly of ……………………….. County; that I shall do justice to all. (So help

me God)

Oath of Offi ce for the County Executive Committee Member

85


“I ………………………….., do swear/ solemnly affi rm that I shall always truly and diligently serve the people and the Republic of Kenya in the offi ce the Executive Committee Member of …………………….. County; that I shall diligently discharge my duties and perform my functions in the said offi ce, to the best of my judgment; that I shall at all times, when so required, faithfully and truly give my counsel and advice to the Governor of the

…………………….. County; that I shall do justice to all. (So help me God)

Oath of Offi ce for County Assembly Members

“I ……………………………, do swear/ solemnly affi rm that I shall always truly and diligently serve the people and the Republic of Kenya in the offi ce of County Assembly Committee Member of ……………………. County; that I shall diligently discharge my duties and perform my functions in the said offi ce, to the best of my judgment; that I shall at all times, respect, uphold, preserve, protect and defend this Constitution of the Republic of Kenya; and that I shall do right to all manner of persons in accordance with the Constitution of Kenya and the laws and conventions of Parliament, that I shall do justice to

all (So help me God).”

86


APPENDIX D

FOURTH SCHEDULE

(Articles 185(2), 186(1) and 187(2))

DISTRIBUTION OF FUNCTIONS BETWEEN THE NATIONAL AND THE COUNTY GOVERNMENTS

Part 1- National Government

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 offi cial and local languages.

6. National defence and the use of 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 fi nancial 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

87


education institutions.

17. Promotion of sports and sports education.

18. Transport and communications, including, in particular –

(a) road traffi c;

(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;

(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 t establishing a

durable and sustainable system of development, in particular –

(a) fi shing, hunting and gathering;

(b) protection of animals and wildlife;

(c) water protection, securing suffi cient 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.

27. Heath policy.

28. Agricultural policy.

29. Veterinary policy.

30. Energy policy including electricity and gas regulation and energy regulation.

31. Capacity building and technical assistance to the counties.

32. Public investment.

33. National betting, casinos and other forms of gambling.

88


34. Tourism policy and development.

Part 2 – County Governments

The functions and powers of the county are –

1. Agriculture, including –

(a) crop and animal husbandry;

(b) livestock sale yards;

(c) county abattoirs;

(d) plant and animal disease control;

(e) fi sheries

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) traffi c and parking;

89


(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

(b) facilities for the accommodation, care and burial of animals.

7. Trade development and regulation, including –

(a) markets;

(b) trade licences(excluding regulation of professionals);

(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, homecraft centres and childcare facilities.

10. Implementation of specifi c 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 fi ghting services and disaster management.

13. Control of rugs 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.

90


APPENDIX E

FIRST SCHEDULE(Article 6(1))COUNTIES

1. Mombasa

2. Kwale

3. Kilifi

4. Tana River

5. Lamu

6. Taita Taveta

7. Garissa

8. Wajir

9. Mandera

10. Marsabit

11. Isiolo

12. Meru

13. Tharaka –Nithi

14. Embu

15. Kitui

16. Machakos

17. Makueni

18. Nyandarua

19. Nyeri

20. Kirinyaga

21. Murang’a

22. Kiambu

23. Turkana

24. West Pokot

25. Samburu

26. Trans Nzoia

27. Uasin Gishu

28. Elgeyo/Marakwet

29. Nandi

30. Baringo

31. Laikipia

32. Nakuru

33. Narok

34. Kajiado

35. Kericho

36. Bomet

37. Kakamega

38. Vihiga

39. Bungoma

40. Busia

41. Siaya

42. Kisumu

43. Homa Bay

44. Migori

45. Kisii

46. Nyamira

47. Nairobi City

91


APPENDIX F: BIBLIOGRAPHY

1. The Constitution of Kenya, 1963 (Kenya Independence Order-in – Council)

2. The Constitution of Kenya, 2010

3. The County Governments Act, 2012

4. The Transition to Devolved Government Act,2012

5. The Petitions to Parliament (Procedure) Act,2012

6. The Inter-Governmental Relations Act,2012

7. The Public Finance Management Act, 2012

8. The Political Parties Act,2011

9. The Elections Act,2011

10. The Urban Areas and Cities Act,2011

11. The National Assembly (Powers and Privileges) Act, 2003

12. The National Assembly Standing Orders (Draft), 2012

13. The Model County Assembly Standing Orders (Draft One), 2012

14. The National Assembly Members Handbook(Eighth Edition), 2002

15. Parliament Buildings – A Historical Pictorial Guide, (Third Edition),1997

16. Parliamentary Practice in Kenya, H.B. Ndoria Gicheru,1976

17. Parliamentary Service Act, Act No. 20, 2000

18. A History of Constitution Making in Kenya by Media Development Association and

Konrad Adenauer Stiftung, 2012

19. Handbook on Kenya’s Electoral Laws and System, by Ongoya Z. Elisha and Willis E.

Otieno, 2012

20. A Handbook on Legislative Practice and Procedure of the National Assembly by the

National Secretariat of Nigerian Legislatures, National Assembly, Abuja, Nigeria,

2004

21. The Bureau of Parliamentary Studies and Training, Lok Sabha, New Delhi. India

22. The CPA at 100 Years (Book published to commemorate One Hundred Years of the

Commonwealth Parliamentary Association) London , UK, 2012

23. Parliament of India, Edited by G.C. Malhotra, Secretary General, Lok Sabha, India,

2002

24. Constitution of the Federal Republic of Nigeria, 2011

25. House of Commons Practice and Procedure, Canada, Second Edition,2009, by Audrey

O’Brien and Mark Bosc

92


26. Parliamentary Practice, Fourth Edition, 2004, Thomas Erskine May

27. Stormont, the House on the Hill (A History of the Precincts of the Parliament of

Northern Ireland) by Jack Gallagher, 2008

28. The Scottish Parliament (several Pamphlets/ Booklets), 2012

• Discover the Scottish Parliament

• Making the Scottish Parliament work for you

• How the Scottish Parliament works

29. The National Assembly for Wales (several Pamphlets/Booklets), 2008 –

• National Committee – Submitting a Petition

• National Assembly, Explore the Senedd

30. Global Parliamentary Report – The Changing Nature of Parliamentary Representation,

April, 2012 by the Inter-Parliamentary Union and the UNDP

31. Final Report on Devolved Government in Kenya, 2010; Offi ce of the Deputy Prime

Minister and Ministry of Local Government; Chairperson – Dr. Mutakha Kangu.

32. Sessional Paper on Devolved Government under the Constitution of Kenya, 2010;

Offi ce of the Deputy Prime Minister and Ministry of Local Government, 2010.

ISBN: 978-9966-21-355-6

Transition Authority

This Publication is supported by The Swedish government,WFD & EISA

Transition Authority5th Floor KICC Building

P.O. Box 10736 - 00100 Nairobi, KenyaTel: +254 - 0710 287 080

Email: [email protected]