The Devolution and Intergovernmental Relations Committee chairman Senator Sheikh Abass/ HANDOUT

A Senate committee has moved to kill a proposed law allowing employees to transfer between counties across the 47 devolved units.

The Devolution and Intergovernmental Relations Committee warned that the scheme could create a ‘backdoor’ route into public jobs and undermine the constitutional principle of competitive recruitment.

The committee, chaired by Wajir Senator Sheikh Abass, concluded that the County Governments (Amendment) Bill, 2024, should be thrown out.

The panel argued that the Bill’s central proposal — allowing pensionable county officers to transfer between counties — rests on a flawed assumption that the 47 counties are one employer.

“The movement of a county public officer from one county to another is, therefore, not a transfer within a single employer but a fresh appointment by a different employer,” the committee said.

That distinction effectively destroys the Bill's legal foundation, the committee said.

The Bill, sponsored by nominated Senator George Mbugua, was designed to make it easier for experienced county officers to move between counties, while retaining their pension, leave and other accrued benefits.

Its stated goal was to allow the “seamless movement” of officers between county public services and enable counties to share skills according to their needs.

But the Senate committee found that the convenience of moving existing employees cannot override the constitutional requirement that county jobs be competitively filled.

“An officer wishing to serve in another county may already do so by competing for a vacancy declared and advertised by the receiving County Public Service Board,” the report states.

It delivered its strongest criticism against Clause 4, which sought to establish the transfer mechanism.

“Clause 4 would instead create a non-competitive channel by which a serving officer could acquire a county public office never opened to other qualified Kenyans,” the committee said.

“The inter-county transfer of a county public officer constitutes a fresh appointment by a distinct county employer that must be made based on fair competition and merit.”

The committee consequently recommended deletion of Clause 4 in its entirety.

The committee also rejected plans to establish a County Public Service Boards Consultative Forum, bringing together representatives of all 47 county boards.

“The committee observed that the national transfer-of-service framework under Section 43of the Public Service Commission Act and the Public Service Commission Regulations, 2020, operates within a single public service of the republic under a common employer,” the report states.

“This structural precondition is absent among the 47 counties, each of which is a distinct public service under Article 235 of the Constitution and Sections 56 and 57 of the County Governments Act, with each County Public Service Board a separate body corporate appointing officers for its own county.”

It argued that the proposal would create another layer of bureaucracy around functions that counties already exercise through existing intergovernmental structures.

“The establishment of the forum risked duplicating existing intergovernmental structures,” the committee said.

The senators pointed to Sector Working Groups and committees established under the Intergovernmental Relations Act as mechanisms that could perform the proposed forum's functions.

More damagingly, the committee saw the forum as a potential threat to devolution itself.

“The establishment of the forum would introduce a centralised layer of oversight over county public service matters in a manner that derogates from the devolved powers of county governments,” it said.

This is where the dispute moves beyond a technical question of human resource management.

At its heart is a constitutional battle over who controls county workers — individual county governments or a national coordination mechanism.

The Council of Governors sided with the committee, arguing that the Bill would weaken counties' authority over their own personnel.

The governors said the proposed forum and transfer mechanisms would “dilute counties' authority over their personnel”, while introducing a “centralised layer of decision-making” contrary to the principles of devolution.

The council consequently called for the Bill to be withdrawn, saying existing structures under the Intergovernmental Relations Act were sufficient.

There was, however, support for some aspects of the Bill.

The County Assemblies Forum said inter-county transfers could improve mobility within the county public service and promote a more equitable distribution of skills.

The committee noted concerns that the proposed framework could produce “a skewed flow of officers driven by personal rather than service considerations”. The committee said competitive recruitment against advertised vacancies provides a stronger safeguard for merit and representation. It also rejected other proposals touching on the renaming of County Public Service Boards, remuneration and financial autonomy of board members, the number of county chief officers and the powers of board secretaries. The committee said those proposals may be important but fall outside the scope of the Bill.