County Assembly: Powers

 

The County Assembly enjoys certain powers, privileges and immunities to enable it to carry out its constitutional mandate unhindered:

196. (3) Parliament shall enact legislation providing for the powers, privileges and immunities of county assemblies, their committees and members.

The Assembly represents devolution of legislative authority from the center to the regions. As such it has been granted the final say on all legislation that is applicable within the County:

185. (1) The legislative authority of a county is vested in, and exercised by, its county assembly.

It will exercise oversight authority over both the County Executive and organs in the County public service by being the public's watchdog on the execution of local policies, plans, and expenditure.

(3) A county assembly, while respecting the principle of the separation of powers, may exercise oversight over the county executive committee and any other county executive organs.

On two instances in 2014, the Embu County Assembly (and the Senate) impeached their Governor over accusations of gross violation of the Public Procurement and Disposal Act, gross violation of the Public Finance Management Act, and violation of the Constitution of Kenya. In the first instance, the High Court in Kerugoya reinstated him on grounds that the Assembly and the Senate had disobeyed orders of the High Court in Embu barring any such process by the Assembly.

In the second instance in June, the Governor once again moved to Court to challenge his removal by his Assembly and impeachment by the Senate, terming it as unconstitutional.

One other successful impeachment hearing took place at the Kericho County Assembly against the Governor. He was however absolved by the Senate.

A few successful impeachments by County Assemblies took place in 2014 around the Country against Executive Committee members and even a Speaker. Indeed, these actions by the County Assemblies put many of the Governors on edge and had political commentators warning the trend could pose a threat to devolution.

One particular attempt at the removal of a County Executive Committee (CEC) member in 2014 unleashed a landmark Court ruling touching on the oversight powers of county assemblies. This happened when the County Assembly of Bungoma went ahead to recommend the removal of one of its CECs by exercising its powers under Section 40 in Part 5 of the County Governments Act 2012:

40. (2) A member of the county assembly, supported by at least one-third of all the members of the county assembly, may propose a motion requiring the governor to dismiss a county executive committee member on any of the grounds set out in subsection (1).
(3) If a motion under subsection (2) is supported by at least one-third of the members of the county assembly—(a) the county assembly shall appoint a select committee comprising five of its members to investigate the matter; and (b) the select committee shall report, within ten days, to the county assembly whether it finds the allegations against the county executive committee member to be substantiated.
(4) The county executive committee member has the right to appear and be represented before the select committee during its investigations.
(5) If the select committee reports that it finds the allegations—(a) unsubstantiated, no further proceedings shall be taken; or (b) substantiated, the county assembly shall vote whether to approve the resolution requiring the county executive committee member to be dismissed.
(6) If a resolution under subsection (5) (b) is supported by a majority of the members of the county assembly—(a) the speaker of the county assembly shall promptly deliver the resolution to the governor; and (b) the governor shall dismiss the county executive committee member.

As it turned out, the Court's interpretation of the actions of the Assembly essentially held that the Section 40 of the Act allowed the Assembly to act all of prosecutor, jury, and judge in the removal of a CEC in contravention of Article 50 of the Constitution of Kenya on the right of an accused person to a fair hearing before an independent and impartial body. Chapter 4 - The Bill of Rights, Part 2 - Rights and Fundamental Freedoms:

50. (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

Thus it declared parts of the Section as unconstitutional. Said the High Court in Bungoma

"59. Accordingly, this court holds that Constitutionally, no County Assembly can purport to remove a county executive committee member pursuant to Section 40 (3) of the CGA. That provision negates the principal of independence and impartiality stipulated by Article 50 (1) of the Constitution and is null and void to that extent. Parliament should enact a law that provides for a separate, independent impartial and unbiased body that will be charged with the jurisdiction of carrying out investigations once a motion is passed by a County Assembly under Section 40 (2). It is that separate and independent body that should carry out investigations and report to the Assembly on its findings for the latter to vote on. To the extent that no such independent and impartial body exists, County Assemblies cannot purport to remove a member of the County Executive Committee under Section 40 of the CGA. That will be unconstitutional.

"60. Accordingly, I will allow the Petition and make the following declarations:- a) Section 40 (3) of the County Governments Act, 2012 is inconsistent with Article 50 (1) of the Constitution of Kenya and vide Article 2 (4) of the Constitution, Section 40 (3) of the County Government Act is void to the extent of such inconsistency."

Moving on, the County Assemblies also exercise oversight authority over the performance of the top financial officer of the County as the custodian of financial matters in the County:

226. (2) ........ the accounting officer of a county public entity is accountable to the county assembly for its financial management.

229. (8) Within three months after receiving an audit report, ...... the county assembly shall debate and consider the report and take appropriate action.

NB. Article 226, 229 above are part of Chapter 12 - Public Finance of the New Constitution. Public Finance is discussed under its link on the main page of this website.

 

 

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