A proposed expansion of senators’ powers over county governments has run into resistance, with governors, county assemblies and the State Law Office questioning whether the plan fits within the Constitution’s system of devolved government.
The dispute centres on the County Oversight and Accountability Bill, Senate Bill, 2024, sponsored by Narok Senator Ledama Olekina, which seeks to give the Senate a stronger role in monitoring money allocated to counties and provide a formal system for public participation.
The Bill, which was passed by the Senate on July 21, would establish a senator-led oversight and public participation programme in every county.
It also proposes that individual senators establish offices in their respective counties, recruit up to three staff members and conduct public hearings on issues affecting their counties.
The proposals were challenged during a public participation forum held by the National Assembly’s Committee on Regional Development at Bunge Towers in Nairobi.
The Office of the Attorney-General told the committee that the Constitution assigns the oversight of national revenue given to counties to the Senate as a House, rather than to individual senators.
Solicitor-General Shadrack Mose said Article 96(3) requires the Senate to exercise the mandate through the institution and its committees.
“Article 96(3) of the Constitution confers oversight over national revenue allocated to county governments on the Senate as an institution,” Mose said in submissions to the committee.
Mose said giving individual senators authority to oversee their counties would effectively shift a constitutional responsibility from the Senate to individual legislators.
The State Law Office also raised concerns about the proposed senator-led offices and the manner in which their employees would be recruited.
It warned that the offices could result in another oversight system operating alongside existing county structures, including at the ward level, while bringing senators into direct involvement in county affairs.
The Council of Governors has taken an even stronger position, opposing the Bill in its entirety on grounds that it could interfere with the constitutional design of devolution.
In submissions signed by CEO Mary Mwiti, the council identified Clauses 16, 17 and 18 as particularly problematic because they provide for senator-led oversight programmes and offices.
The CoG cited the Supreme Court ruling in Senate & 2 Others v Council of County Governors & 8 Others (2022) in arguing that senators do not have a direct oversight mandate over county governments.
“The Supreme Court held, inter alia, that Senators cannot oversee county governments at the county level, as that role is reserved for the County Assembly under Article 185(3),” the council said.
According to the governors, allowing senators to undertake direct oversight would also affect the functional and institutional independence of county governments.
The County Assemblies Forum separately objected to a provision that would require county executive committee members to submit annual financial, asset and liability reports directly to individual senators.
The forum said county executives are constitutionally answerable to county assemblies rather than individual members of Parliament.
The proposed system has also raised questions about the cost to the public.
Acting Kenya Law Reform Commission chief executive James Nombi told the committee that the Bill could amount to a Money Bill because its implementation would place a charge on public funds.
Under Clause 18, an oversight office would be established in each of the 47 counties, with every office allowed to have up to three officers.
“This establishes an oversight office in each of the 47 counties, with up to one hundred and forty-one officers in aggregate,” Nombi said.