Narok Senator Olekina Ledama /FILEStakeholders warn that the proposed law violates the Constitution and could create parallel structures of governance.
The County Oversight and Accountability Bill, Senate Bill, 2024, sponsored by Narok Senator Ledama Olekina, seeks to strengthen Senate oversight of funds allocated to counties and provide a framework for public participation.
But the Council of Governors (CoG) and county assemblies have told the National Assembly that several provisions of the bill are unconstitutional.
They hold that if enacted, the new dispensation could interfere with the functions of existing county institutions.
The stakeholders spoke during a public participation forum by the National Assembly's Committee on Regional Development at Bunge Towers in Nairobi.
The bill, which was passed by the Senate on July 21, seeks to establish a senator-led oversight and public participation programme in each county.
It would also allow individual senators to establish oversight offices, employ up to three staff members and hold public hearings on matters affecting their counties.
However, the Office of the Attorney-General said the Constitution gives the Senate, as an institution, the power to oversee national revenue allocated to counties.
Solicitor-General Shadrack Mose said Article 96(3) provides for Senate oversight through the House and its committees, rather than through individual senators.
“Article 96(3) of the Constitution confers oversight over national revenue allocated to county governments on the Senate as an institution,” Mose said in submissions to the committee.
He said provisions allowing individual senators to exercise oversight over their respective counties would turn an institutional mandate into a personal role.
The State Law Office also questioned provisions allowing senators to establish offices staffed by people personally recruited by them.
It said the offices could create a parallel oversight structure at county and ward level while placing legislators in direct administrative involvement in county affairs.
The Council of Governors opposed the bill in its entirety, arguing that it undermines the constitutional architecture of devolution.
In submissions signed by CEO Mary Mwiti, the council singled out Clauses 16, 17 and 18, which establish senator-led oversight programmes and offices.
CoG cited the Supreme Court decision in Senate & 2 Others v Council of County Governors & 8 Others (2022), saying the court held that senators cannot exercise direct oversight over county governments.
“The Supreme Court held, inter alia, that Senators cannot oversee county governments at the county level, as that role is reserved for the County Assembly under Article 185(3),” the council said.
The council further argued that allowing senators to undertake direct county oversight would undermine the functional and institutional integrity of devolved governments.
The County Assemblies Forum also raised concerns over a provision requiring county executive committee members to submit annual financial, asset and liability reports directly to individual senators.
The forum said county executives are constitutionally accountable to county assemblies and not individual members of Parliament.
Another major concern was the cost of implementing the proposed senator-led oversight offices.
Acting Kenya Law Reform Commission chief executive James Nombi said the bill could amount to a Money Bill because it would create a charge on public funds.
Clause 18 proposes an oversight office in each of the 47 counties, with up to three officers per office.
“This establishes an oversight office in each of the 47 counties, with up to one hundred and forty-one officers in aggregate,” Nombi said.
He argued that a Bill imposing a charge on public funds must comply with Article 114 of the Constitution governing Money Bills.
Stakeholders also questioned provisions dealing with county planning, budgeting and public participation, saying they duplicate existing laws, including the County Governments Act and Public Finance Management Act.
Committee member Liza Chelule said public participation must result in the views of citizens being reflected in government policies and programmes.
Committee chairman Peter Lochakapong said lawmakers would consider the submissions before making recommendations to the House.
“Many of the stakeholders appearing before us here have a convergence of views that the proposed law in some sections does not align with the provisions of the Constitution,” Lochakapong said.
