Ward Bill Upsets Separation of Powers by Side-lining County Assemblies

By Gitungo Wamere

(Guest Blog)

Five years later after the debut of the Senate, thanks to Kenya’s constitution 2010, the role of the Senate in the Legislative arm of the government seems not to have crystallized. The upper house has persistently been struggling to find it space and relevance, sometimes to the extent of creating friction with other institutions.

In the 11^th Parliament, the debate on whether Kenya needed a Senate arose. Irungu Kang’ata, the current senator of Murang’a, had vowed to introduced a bill that would abolish the Senate, because in his opinion the house was useless and didn’t have a role in law making. Mr. Kang’ata thought that National Assembly and the County Assemblies could sufficiently legislate on counties, guard and strengthen devolution.

Fast forward to 2018,  Senator Kang’ata seats in the House he termed useless and the jovial guy has started on a high note; drafting a bill on ward fund. The bill whose central objective is to decentralise resources has good intentions but upsets separation of powers by side-lining county assemblies and making the Senate poke its nose on county issues that can be dealt with by the county assemblies.

Certainly, our Senate struggles because the legal architecture makes it weak. When the drafters of the constitution inserted the Senate in our constitution, they gave it minimum roles, and this where the problem emanates. Article 96 on the role of the Senate is so brief, and the only pure and substantive role assigned to the Senate is highlighted on Article 96 (3) & (4). That is to determine the allocation of money to the county governments and the resolution to remove the President and the Deputy President. Any other thing they set themselves to do, must be done with caution to avoid usurping roles of other institutions.

Back to this county wards development & equalisation fund bill, 2018; despite the lofty title, the bill is a replica of the National Government Constituency Development Fund (NGCDF) Act, 2015. In some sections, the bill tries to dictate how county assemblies run their business. The drafter of the bill eclipses county assemblies and puts the senate to run some county assembly business.

For instance section 12 (1) & (2) of the bill gives the Senate powers to consider the audit reports of the fund. Why is this so, while county assembles can consider audit reports of their respective counties and act on them accordingly? Critics may be tempted to think that the Senate is trying to add more roles on their job descriptions. Sadly, as they usurp they are weakening county assemblies.

To date, instead of counties finding ways to strengthen county assemblies by building capacity of its members, for instance those in the Public Accounts Committee.  Senators are still fighting to summon governors to Nairobi for grilling on audit queries. Why decentralise with one hand and try to recentralise power using the other hand?

If you go to section 46 (1) of the bill, the Senate through the drafter of the bill, dictates to the county assemblies on their standing orders. The bill gives an order to members of the county assembly on how many members should be in the select committee on the County Wards Development & Equalisation Committees.

I think this is too much micromanaging. It is in standing orders where assemblies should be given liberty to formulate their rules according to their situation. The bill should not dictate to county assemblies how many members should be in a committee or even what committees they should have. County assemblies are wise enough to know how to manage themselves.

When the constitution created the position of an MCA it created it with a purpose, and since this sounds like a bill that has been drafted on behalf of them, I think it will be incumbent that the MCAs be given an opportunity to ratify it in their respective counties.

Senator Kang’ata proposes an old model of decentralisation but may be some counties could be having a newer model of decentralising resources. Kenyans have had problems with NGCDF and the same problems ought not to be replicated at the ward level.

Posted by Mzalendo Editor on April 20, 2018

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