Transition Authority
A GUIDE TO THE MANDATES AND
PROCEDURES OF COUNTY GOVERNMENTS
IN KENYA
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
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 Officers 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
iii
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 Affirmation 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
Officers 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
iv
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
v
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 Definite, 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
vi
• 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 Office
Appendix D: Distribution of Functions between National and County Governments
Appendix E: List of Counties
Appendix F: Bibliography
vii
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
viii
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
ix
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
fifty 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 significance, 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 fortyseven 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 first general elections are held under
CK 2010. It would help to remind readers, however, that not all legislation identified, under
the Fifth Schedule, must be enacted prior to the first general elections in March,2013.
Indeed, a cursory view reveals that, most of the identified 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 first 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
x
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 sufficiently 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
xi
ACKNOWLEDGEMENT
I find 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 office, 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 reflect 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;
xii
• 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
xiii
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 officially 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 first 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 first 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 first election for Africans. In 1958, it was replaced by the LennoxBoyd Constitution, which increased the Elected African Representative Members from
the first seven (7) in 1957 to fifteen (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.
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A GUIDE TO THE MANDATES AND PROCEDURES OF COUNTY GOVERNMENTS IN KENYA
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 defined 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 – five sections and six schedules enunciate a great
philosophical, economical, social and structural paradigm shift of, the governance and
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A GUIDE TO THE MANDATES AND PROCEDURES OF COUNTY GOVERNMENTS IN KENYA
its architecture that, had served Kenya for nearly fifty 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 offices, who exercise the same on behalf of the
people;
8.2 The affirmation 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 Offices;
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 affirmation 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.
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A GUIDE TO THE MANDATES AND PROCEDURES OF COUNTY GOVERNMENTS IN KENYA
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.
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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, define 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 defined 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
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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.
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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
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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 codification 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 efficacy of the provisions of Section 1 of CK 2010, which affirms 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
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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
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A GUIDE TO THE MANDATES AND PROCEDURES OF COUNTY GOVERNMENTS IN KENYA
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
first 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 first 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 – affirmed 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 sufficient 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 sufficient 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
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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; reflect
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,
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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, office 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.
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(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:-
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(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 finance management. This is further amplified by the
Public Finance Management Act, 2012. The institutions involved in the public finance
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 financial and budgetary domain are fully
realized by the input of the following stakeholders:-
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A GUIDE TO THE MANDATES AND PROCEDURES OF COUNTY GOVERNMENTS IN KENYA
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 fiscal 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 financial, 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
offices that contribute to enhanced oversight and accountability.
44. The Independent Constitutional Commissions and Offices
The Commissions and Offices 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.
Specifically, the functions of the CRA include:
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A GUIDE TO THE MANDATES AND PROCEDURES OF COUNTY GOVERNMENTS IN KENYA
(i) Develop an equitable basis for allocation and the criteria which should
be consistent with Section 203. The section specifies 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 financial
management matters to Counties.
(ii) When appropriate define revenue sources for the County and National
Governments;
(iii) Recommends ways to encourage fiscal 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.
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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 financing is met from public funds. All accounting officers
of National and County entities are required to submit their financial reports and
statements, three months after the end of each financial year to the Auditor General.
The Auditor General is consequently required to audit financial statements and submit
and report to Parliament and the County Assembly within six months after the end of
each financial year on:
(i) Accounts of Commissions and Independent Offices;
(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 benefits within the Public Service.
(i) Is responsible for harmonizing pay and benefits,
(ii) Ensure harmonization of salaries/ benefits, by precluding, the basing of
the amounts paid as salaries for state officers on political considerations,
as that lacks credibility.
(iii) To urgently review and harmonize pay and benefits and advise National
and County Governments as necessary on fiscal sustainability of pay
and benefits; 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.
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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 financial 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 specific 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
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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 financial 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 financial 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 Offices.
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.
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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 five 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 fifty 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
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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 five 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 fifty 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;
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(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
specified 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.
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A GUIDE TO THE MANDATES AND PROCEDURES OF COUNTY GOVERNMENTS IN KENYA
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.
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(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 officers of the County Executive
67. The officers of the County Executive are elected to office 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 fifth year. The first general election under the CK
2010, are scheduled for March 04, 2013;
(ii) Eligibility for election requires same qualifications as for election to a
County Assembly;
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(iii) Each eligible candidate, is required to designate one person, who is as
qualified 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 office for more than
two terms of five years each;
67.2 Removal of the County Governor from office
The County Governor shall be removed from office for:(i) Gross violation of the Constitution or other laws;
(ii) Commission of a crime under national or international law;
(iii) Abuse of office or gross misconduct;
(iv) Physical or mental incapacity to perform the functions of the office of a
County Governor.
67.3 Vacation of the office of a County Governor
The office 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 office as at sub-paragraph 66.2 above;
67.4 Filling a Vacation where the County Governor vacates office
• Section 182 (2), (3),(4),(5) and (6) provide for the process to fill the
office of a County Governor where the Governor causes the vacation
of the office.
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;
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(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 official 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 Officers
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 Officers to departments, entities or decentralized
units in a County Government;
(iii) Having the powers necessary to execute the duties of the office of a
County Governor;
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(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 efficient 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:-
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(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 office of a member of a County Executive Committee
Members of the County Executive Committee may be removed from office
(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 Officers (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.
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Elected Members of a County Assembly
71. The Independent Electoral and Boundaries Commission (IEBC) set one thousand, four
hundred and fifty 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
fifteen.
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
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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 first 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 five 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 final 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
quantified. Such is the case, given that, legislatures, which include County Assemblies,
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have come into existence by evolution. Thus, their status, mandate, role and function
have also, with time, evolved to encompass far wider aspects than codified.
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 Officers 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 offices/ leaders of a Legislature. Whereas such key political
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officers/ leaders initially hold and occupy constitutional offices, 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 offices/ leaders perform dual roles and functions, viz;
83.1The Roles and Functions by Practice
(i) Enables a County Assembly to fulfill its constitutional, statutory and
traditional mandate;
(ii) Political offices/ leaders, include, the Speaker, the Majority Leader, the
Minority Leader; which, are constitutional and statutory offices by Section
178 of the CK 2010 and Section of the County Governments Act, 2012;
(iii) The other political offices/ 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 Officer; Authorized Officer; Accounting Officer 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.
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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
specific 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 efficiently fulfill 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 identified as:(i) The Constitution and Statutes;
(ii) The Standing Orders;
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(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 briefings on the various items of the business
dealt with, finance 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.
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Segments/Seasons in The Life of A County Assembly
93. A County Assembly has at least seven distinct Segments or Seasons, beginning when it
first 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 first sitting of the first 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
specified in its calendar;
(iii) A Regular Session of a County Assembly is ended by an adjournment on
the date specified in its calendar or dissolved upon expiry of its statutory
term;
(iv) In the fifth 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 definitions 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.
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93.4 Prorogation of a County Assembly
(i) A County Assembly may be prorogued pursuant to its calendar;
(ii) In parliamentary parlance, prorogation signifies 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 fifth year of its life, on the same day
it first met after a general election;
(ii) In parliamentary parlance, dissolution signifies 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
significant as it comes as a consequence of dissolution.
The Oath of Allegiance or Affirmation 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 Affirmation of Allegiance at a sitting of the Assembly.
95. A Judge administers the Oath of Allegiance or Affirmation to all Members assisted by
the Clerk of a County Assembly.
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The Oath at the first sitting of a County Assembly after a General Election
96. At the first sitting of a County Assembly following a general election, the procedure
followed in administering the Oath or Affirmation 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 Affirm
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 Affirmation 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 Affirmation of Allegiance in
either of the official 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 Affirmation of Allegiance is
performed by the Hon. Speaker as the first item of the proceedings at a sitting, soon
after Prayers. On such occasions:-
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(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
first 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 Affirmation 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 Affirmation of Allegiance
in her left hand which she reads out aloud;
(ix)The Member then returns the Bible/ Koran and the Oath/ Affirmation 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.
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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 first codified 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 affirm that status by stating,
“The national law regulating the powers and privileges of Parliament shall, with the
necessary modifications, 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
defined Parliamentary Privilege as, the sum of the peculiar rights enjoyed
by each House collectively as a constituent part of the High Court of
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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 fierce 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 officers 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.
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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 sufficient notice
to all concerned persons.
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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 reflect 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 find 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 officers could decline to give evidence, as provided for in Section 18 of the
Official Secrets Act Cap 6, Laws of Kenya.
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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 fine 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 certificate 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 Officers of a County Assembly
120.The exercise of any power vested or conferred upon the Hon. Speaker or any officer
of a County Assembly by the Law of Privilege is not subject to jurisdiction of any court.
Officers of a County Assembly to have powers of Police Officer
121.Every officer 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 officer.
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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 specific rights and avenues
for such engagement. The statutory provisions are specified 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 fulfill 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
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in the country, the calibre of the Members, not necessarily, in terms of academic
achievement, but more in terms of political efficacy 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-
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(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 fulfillment 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 find necessary. Further clarification
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
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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 affirm to the Oath of Allegiance.
Communication from the Chair
135. This is for the Hon. Speaker to convey any message e.g. Notification 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 official 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
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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 first 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.
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(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 Officer
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;
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(iii) Communication from the Chair;
(iv)The Official 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
specified;
(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 signified 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 specific 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:
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“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
five 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 five 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 fifteen minutes thereafter.
154.The Clerks- at- the Table and the Tellers tick off the names of each Member as he files
past.
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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-codified 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 codified form, normally referred to as the procedure;
(iii) The whole totality is known as Practice and Procedure;
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IN THE CHAMBER – CONDUCT OF MEMBERS AND OF BUSINESS
The Speaker, Entering and Leaving the Chamber
160.When the five 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.
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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 floor
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
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pronouncements, figures or technicalities, which cannot be memorized easily or
whenever the Hon. Speaker is satisfied 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, fly 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.
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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.
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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.” Reflections
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 office 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 qualifications as, “The hon. and learned
Member for….”,
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(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 find
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 reflect on the motives, honesty or sincerity of another Member. Though
there may be no exact definition 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 first declare that interest.
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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 specific matters of fact as being true,
unless they are prepared to substantiate them by producing some kind of
evidence which reasonably justifies 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.
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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 specified 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….”
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“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.
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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 notified 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.
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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 final 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
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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 monthsliterary, “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.
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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
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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 Definite 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 Definite, 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 notification 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 definite, urgent matter of State/
County importance”
(iii)Should the Hon. Speaker decide in the affirmative he then accordingly
informs the County Assembly;
(iv)If not less than five 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:-
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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 confined 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 confined 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.
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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
affirmative, 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
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to the debate. Both limitations could be imposed on the same Motion. There are
limitations imposed on certain specific 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.Confines 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.
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Committee of Supply
234.Confines 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 five 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 finances 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.
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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 specific 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 Officers 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
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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.
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(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 five 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.
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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.
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(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 specifies 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 financial 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 finalizing 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;
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(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
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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
•
•
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.
County Executive Committee
•
•
•
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.
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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 first 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 (nonpoliticians, non-partisan) who are hired by the first 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 specific structures, organs and offices; 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;
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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 Officers, public officers 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 staffing and functions so as to ensure efficient, 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.
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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 specifies the process of its appointment, cessation of office, qualifications,
removal from office, 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 offices; appointment to public offices, 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.
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13.The establishment of both the County Public Service and the County Public Service
Board, would greatly benefit from the establishment and operations of the equivalent
for the National Government.
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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 first 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 (nonpoliticians, non-partisan) who are hired by the first 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.
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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 five 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 efficiently
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 benefit
from a close study of the establishment and operations of the Parliamentary Service
Commission at National Parliament.
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APPENDIX C
COUNTY GOVERNMENTS
OATHS OF OFFICE
Oath of Office for Governor/ Deputy Governor
“I ...................................., do swear/ solemnly affirm that I shall always truly and diligently
serve the people and the Republic of Kenya in the office of Governor/ Deputy Governor
of ………………………County; that I shall diligently discharge my duties and perform my
functions in the said office, 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 Office for Speaker/ Acting Speaker
“I …………………………., having been elected as Speaker/ Acting Speaker of the County
Assembly of ………………………………… County do swear/ solemnly affirm that I
shall always truly and diligently serve the people and the Republic of Kenya in the office
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 Office for County Assembly Clerk
“I……………………………, do swear/ solemnly affirm that I shall always truly and
diligently serve the people and the Republic of Kenya in the office of Clerk of the County
Assembly in ……………………… County; that I shall diligently discharge my duties and
perform my functions in the said office, 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 Office for the County Executive Committee Member
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A GUIDE TO THE MANDATES AND PROCEDURES OF COUNTY GOVERNMENTS IN KENYA
“I ………………………….., do swear/ solemnly affirm that I shall always truly and
diligently serve the people and the Republic of Kenya in the office the Executive Committee
Member of …………………….. County; that I shall diligently discharge my duties and
perform my functions in the said office, 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 Office for County Assembly Members
“I ……………………………, do swear/ solemnly affirm that I shall always truly and
diligently serve the people and the Republic of Kenya in the office of County Assembly
Committee Member of ……………………. County; that I shall diligently discharge my
duties and perform my functions in the said office, 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).”
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A GUIDE TO THE MANDATES AND PROCEDURES OF COUNTY GOVERNMENTS IN KENYA
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.
2.
3.
4.
5.
6.
7.
Foreign Affairs, foreign policy and international trade.
The use of international waters and water resources.
Immigration and citizenship.
The relationship between religion and state.
Language policy and the promotion of official and local languages.
National defence and the use of national defence services.
Police services, including –
(a) the setting of standards of recruitment, training of police and use of police
services;
(b) criminal law; and
(c) correctional services
8. Courts
9. National economic policy and planning.
10. Monetary policy, currency, banking (including central banking), the incorporation and
regulation of banking, insurance and financial corporations.
11. National statistics and data on population, the economy and society generally.
12. Intellectual property rights.
13. Labour standards.
14. Consumer protection, including standards for social security and professional pension
plans.
15. Education policy, standards, curricula, examinations and the granting of university
charters.
16. Universities, tertiary educational institutions and other institutions of research and
higher learning and primary schools, special education, secondary schools and special
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education institutions.
17. Promotion of sports and sports education.
18. Transport and communications, including, in particular –
(a) road traffic;
(b) the construction and operation of national trunk roads;
(c) standards for the construction and maintenance of other roads by counties;
(d) railways;
(e) pipelines;
(f) marine navigation;
(g) civil aviation;
(h) space travel;
(i) postal services;
(j) telecommunications;
(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) fishing, hunting and gathering;
(b) protection of animals and wildlife;
(c) water protection, securing sufficient residual water, hydraulic engineering
and the safety of dams; and
(d) energy policy;
23. National referral health facilities.
24. Disaster management.
25. Ancient and historical monuments of national importance.
26. National elections.
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.
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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) fisheries
2. County health services, including, in particular –
(a) county health facilities and pharmacies;
(b) ambulance services;
(c) promotion of primary health care;
(d) licensing and control of undertakings that sell food to the public;
(e) veterinary services (excluding regulation of the profession);
(f) cemeteries, funeral parlours and crematoria; and
(g) refuse removal, refuse dumps and solid waste disposal;
3. Control of air pollution, noise pollution, other public nuisances and outdoor advertising.
4. Cultural activities, public entertainment and public amenities including –
(a) betting, casinos and other forms of gambling;
(b) racing;
(c) liquor licensing;
(d) cinemas;
(e) video shows and hiring;
(f) libraries;
(g) museums;
(h) sports and cultural activities and facilities; and
(i) county parks, beaches and recreation facilities.
5. County transport, including –
(a) county roads;
(b) street lighting;
(c) traffic and parking;
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A GUIDE TO THE MANDATES AND PROCEDURES OF COUNTY GOVERNMENTS IN KENYA
(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 specific national government policies on natural resources and
environmental conservation, including(a) soil and water conservation; and
(b) forestry.
11. County public works and services, including(a) storm water management systems in built-up areas; and
(b) water and sanitation services.
12. Fire fighting services and disaster management.
13. Control of 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.
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A GUIDE TO THE MANDATES AND PROCEDURES OF COUNTY GOVERNMENTS IN KENYA
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
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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
A GUIDE TO THE MANDATES AND PROCEDURES OF COUNTY GOVERNMENTS IN KENYA
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
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A GUIDE TO THE MANDATES AND PROCEDURES OF COUNTY GOVERNMENTS IN KENYA
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; Office 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;
Office of the Deputy Prime Minister and Ministry of Local Government, 2010.
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Transition Authority
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ISBN: 978-9966-21-355-6
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