22 February 2014

Kenya: Katiba Corner - the 'War' Between Senators and Governors: What Does the Law Say?

Photo: Capital FM
Parliament, Senate criticises the courts for issuing injunction to stop summoning of governors (file photo).


Going by recent events, the relationship between the Senate and the governors is characterised by both love and hate. Shortly after the March 2014 elections, the senators and governors ganged up to push for a referendum that would increase the constitutionally-stipulated minimum allocation of national revenue to counties from the current 15 per cent to 40 per cent.

However, this quest was gradually abandoned. This was shortly followed by the introduction of an amendment Bill by Senator Sang seeking to create county development boards chaired by senators and whose main role was to scrutinise and pre-approve county development plans, projects and budgets before they are tabled in the Senate. County governors who were proposed to be secretaries of the boards rejected this move. Of course the Senate has also passed a Bill that will ensure that governors do not use the title "Your Excellency" and that they may not fly the national flag outside the physical boundaries of their counties. The Bill is pending before the National Assembly.

One of the more recent intrigues of the Senate is the resolution reached by the Senate Finance Committee that the National Treasury should "revoke" the finance bills of all the county governments on the grounds that they contain illegal taxes. More recently, the Senate has summoned some governors to explain the comments made by the Controller of Budget (CoB) in her quarterly reports regarding county expenditures. Of course the latest and most sensational of the intrigues is the decision of the Senate committee and the full house of the Senate to impeach Martin Wambora, the Governor of Embu County.

The above events bring into sharp focus the role of the Senate in county governance. What exactly does the Constitution say is the role of the Senate over counties? What does the Senate's power of oversight over national revenue allocated to counties entail? Can the Senate summon a governor or governors to explain county expenditures? What is the role of the Senate in relation to county development? Can the Senate and the National Treasury "revoke" county finance bills or any other county laws on grounds of purported illegality? This article discusses the powers and duties of the Senate and suggests ways in which the Senate's interventions in county governance can be more effective.

Senate oversight over national revenue allocated to counties:

Under Article 96 (3) of the Constitution, the Senate is empowered to determine the share of each county from the total revenue allocated to counties. This is an over-statement: the Bill begins in the Senate, but the National Assembly must also approve it.

Then Article 96 says the Senate exercises oversight over the revenue allocated to counties. But Article 185 (3) empowers county assemblies to exercise oversight over the county executive committee and other executive organs of the county. On first reading, it would appear that the Senate has similar powers to those of the county assembly. However, closer scrutiny reveals clear differences in their roles.

First, the Senate's oversight role is limited to the equitable share that counties receive from the national level. The Senate cannot exercise oversight over loans, grants, and revenue that county governments collect locally. County assemblies, on the other hand, have oversight powers over all county finances and matters generally. It is highly unlikely that the Constitution intended that the Senate, being part of the national legislature, doubles up as a county legislature in scrutinising the expenditures of the county executive. Indeed, article 226(2) says that accounting officers are only accountable to the county assembly in the way they manage county finances.

Secondly, assuming that the Senate has powers similar to those of the county assembly, what remedy do they have if they find the governor or a county executive at fault? A county assembly is given specific and relevant powers: it can institute impeachment proceedings, shoot down or amend the county budget, refuse to approve expenditure plans or the appropriation and finance bills, etc. until the executive rectifies the problem. The Senate has no similar powers. It can only develop national laws, or propose policies or regulations for more prudent effective public finance management at the county level. This demonstrates the fundamental difference between the oversight power of the Senate and that of the county assembly.

Can the Senate summon a governor or county officials to explain expenditure?

The Senate was within its powers to summon Governor Wambora when it was deciding whether to uphold the impeachment charges against him; actually he had a right to appear (not addressing here the issue of court orders trying to stop this). The Senate was also within its powers to summon officials from the National Treasury over the issues of "illegal taxes" being charged by county governments.

But whether they can summon governors, generally or in relation to financial matters at county level, is more complex.

The Article 96(3) statement about supervising national revenue allocated to counties, without any indication of how this is to be done, and Article 125, giving powers to each House of Parliament and its committees to summon "any person", are broadly expressed. But it can be argued that these must be read in the light of the overall, and rather limited, role of the Senate, to support county government, and of the specific functions given to the Senate by other provisions of the Constitution.

This important question is going to need to be resolved, hopefully in the spirit of cooperation that the Constitution provides for, and recognising the distinct nature of county governments, and also bearing in mind the way in which the Constitution has granted powers to various bodies, like the county assemblies, as we have seen.

Illegal county taxes: what is the role of the Senate and National Treasury?

Counties have expressed constitutional powers to levy property and entertainment taxes only and the Senate and the National Treasury have raised concerns about additional taxes introduced by counties without authorisation by national legislation as required by the Constitution. The recommendation of the Senate was to have the National Treasury 'revoke' the county finance bills, but can the National Treasury do that? Finance Bills are essentially county laws passed by the county assemblies having exercised their legislative power under the Constitution. It is not possible for the Senate or the National Treasury to "repeal" such a law.

It would be more desirable if the Senate and the National Treasury used the intergovernmental structures for cooperation and consultation to engage both the county executives and assemblies in order to have the finance Acts amended by the counties. This way, they will not only address the problem amicably, as contemplated under article 189 of the Constitution, but will also establish an important precedent for addressing similar disputes or potential disputes in future. But otherwise the proper way to deal with this matter is to challenge the constitutionality of the county taxes in court; either aggrieved taxpayers can do this, or public spirited bodies.

The role of the Senate in county development: Are the proposed county development boards constitutional?

The proposal to establish county development boards has also set the Senate and the county governors on the path to conflict. Governors have formally opposed the establishment of these boards. If the proposals are implemented, all county budgets, development plans, and projects will have to be approved by the board before being tabled in the County Assembly. There are two main problems that arise from this structure and proposed powers of the board.

First, the county executive is mandated to develop budgets and development plans while the county assembly is to approve them under the Constitution. Requiring the prior approval by these "county development boards" is plainly unconstitutional. It is not possible to fetter the constitutional power of a level of government through ordinary legislation. If the objective of the Senate is harmonised development, the first point is to ensure that all county development planning is handled by the relevant county organs and offices and that senators and members of the National Assembly participate by giving inputs to these plans and budgets as envisaged in the Public Finance Management Act and the County Government Act (CGA).

Secondly, the involvement of senators and members of the National Assembly, who are essentially national level legislators, in scrutiny of and approving county budgets and plans offends the separation of powers in two ways. It goes against the vertical separation of power between the national and county levels, and against the separation of power between the legislature and the executive organs of government. Only the county has power to plan and budget for county development but these plans have to be in tandem with national plans and laws (passed and approved by the senators and members of the National Assembly). Accordingly, pre-approving local development plans amounts to usurping the executive and legislative power of county governments.


The lack of clarity in the Constitution and laws has resulted in the intrigues between the Senate and governors. It is important to note that devolution being a new and deeply complex system to implement, the senators and governors would be better off working together on the basis of mutual consultation and cooperation as opposed to the competition we are currently witnessing.

Conrad Bosire is an Associate of the Katiba Institute

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