Controller of Budget under the New Constitution
Open. Accountable. Responsible
The Office of the Controller of Budget COB, is an independent Constitutional office.
The COB will examine all public budgets with a view to controlling allocation of all Public Funds, at both the National and County levels.
The office of the COB is headed by the Controller of Budget, and is expected to either establish its own Countywide bureaucracy and/or cooperate with the Provincial Administration.
The New Constitution has separated the office of the Controller of Budget COB, from that of the Auditor-General (previously known as the Controller and Auditor-General) granting it complete independence. To that effect, the COB must establish its own Countywide bureaucracy and/or cooperate with the Provincial Administration by relying on its already established and experienced human and infrastructure capacities.
The office of the Controller of Budget is a Constitutional Office. Chapter Twelve - Public Finance, Part 7 - Financial Officers and Institutions, Article 228:
228. (1) There shall be a Controller of Budget .......
As the name suggests, the Controller of Budget will be the final authority on whether money should be withdrawn from a Public Fund or not; notably, to examine and approve or deny the amounts, the timing and the legality of any withdrawal:
(4) The Controller of Budget shall oversee the implementation of the budgets of the national and county governments by authorising withdrawals from public funds .......
Two months after the General Elections in May 2013, the office of the COB was already involved in ping-pong blame games and witch-hunting by county Governors who complained that COB's budget preparation and reporting requirements were interfering with their independence. On its part, COB was steadfast in demanding that the county governments immediately implement lawful internal checks and balances in accordance with the Public Finance Management Act of 2012, over County Funds i.e. both devolved and internally generated incomes. The office of the COB and that of the Transition Authority would do well therefore, to join forces and stand up to political intimidation from a section of Governors and Senators and which reached a crescendo in August 2013, calling for hasty devolution of functions and the funds destined for the Counties.
Meanwhile, the Treasury too, was not spared either and found itself at the end of accusations by a section of Governors of (unfairly) demanding that county governments also implement its Integrated Financial Management Information System, IFMIS (Daily Nation, May 2013). These standoffs between key stakeholders, threatened, if not addressed, the smooth operations of County Finance.
The COB must maintain its focus and be be guided only by the law:
(5) The Controller shall not approve any withdrawal from a public fund unless satisfied that the withdrawal is authorised by law.
This is important so as to insulate the Office of the COB from witch-hunting by the political class at the Counties. Having said that, the Office of the COB would do well to ensure that it not only advises all concerned about budgets and the attendant processes, but that it is seen to facilitate (and not to hinder), the legislative framework necessary to operationalise financial devolution as soon as possible. Otherwise, it risks being dragged into the political competitions likely to flare up between the National Government and the political players in the Counties. For example, in the (unfortunate) event that the Cabinet Secretary has chosen to delay or stop the transfer of devolved public funds to a public entity, the COB is expected to report justly and fairly to Parliament on the decision of the said Secretary:
225. (7) Parliament may not approve or renew a decision to stop the transfer of funds unless— (a) the Controller of Budget has presented a report on the matter to Parliament; .......
This is a good provision to ensure there are checks and balances by an independent office, on any decision of Parliament to deny public funds to a public entity or government, and by extension, a region or community. The Public Funds referred to Clauses (4), (5) earlier, are the Equalization Fund, the Consolidated Fund and the Revenue Fund, discussed in more detail under the link on Public Finance.
The Controller of Budget has been entrusted by the people of Kenya to ensure that no person(s) or authority will be able to help themselves to the public's money outside of the law. In order to effectively carry out that mandate, the Controller of Budget must, as suggested by Clause 228.(4) above, continuously monitor the accounting and internal controls of all State and County Organs that are entitled to public funds. "These provisions will bring financial management at county level under the control of a constitutional office, which may help improve performance of these important units of government. To be effective, however, it will be necessary for the COB to build capacity and infrastructure in the 47 counties and establish offices at county headquarters. This will include developing a system similar to the integrated financial management information system (IFMIS) currently being implemented for the national government." (Kirira N, 2011).
The Controller's mandate will be guided and facilitated by legislation. Article 225, excerpts:
225. (2) Parliament shall enact legislation to ensure both expenditure control and transparency in all governments and establish mechanisms to ensure their implementation.
"The COB seems to combine constitutional and operational functions, because, besides being in charge of releasing funds, it will also monitor and report on execution. This will be a new experience for public sector managers who will need to adjust. It could also provide grounds for potential conflicts between Treasury and the Controller of Budget. Thus the role and functions of the Treasury will have to be detailed in an Act of Parliament that is yet to be prepared." (Kirira N, 2011).
In practice, the Office of the COB will, in the early years of Kenya's implementation of the New Constitution, rely to a considerable degree, on the reports and advise of the Transition Authority whose role is to midwife the transition process.
Obviously, it would not be prudent for the COB to authorise a withdrawal (or a budget for that matter), if the County in question does not have the capacity to carry out a given function. However, the political class at the Counties were reading from a different script. Not long after County Governors were sworn in following the March 2013 General Elections, there were loud murmurings from among them with claims that the Authority was frustrating approval of transfer of devolved Funds (by the COB) because it (the Authority) was withholding transfer of functions. The TA, on its part, was of the considered opinion that lack of capacity among many of the newly-established County Governments was what informed its decision.
Under the new system of devolved governments, the Senate will be entitled to the regular reports of the Office of the COB, because public finance has a direct bearing on Counties:
(6) Every four months, the Controller shall submit to each House of Parliament a report on the implementation of the budgets of the national and county governments.
Agnes Nangila Odhiambo, Controller of Budget
The first holder of the office of the Controller of Budget was vetted by the Budget Committee of the 10th National Assembly. The Controller will serve only one term of a maximum of eight years to allow for new blood and impetus in this important office, and perhaps to ensure that a "weak" or incompetent holder of the office does not continue indefinitely:
(3) The Controller shall, ....... hold office for a term of eight years and shall not be eligible for re-appointment.
The Controller's term will end in 2019.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.
2. Kirira Njeru (2011). "Public Finance under Kenya's new Constitution". Constitutional Working Paper Series No. 5. Society for International Development, SID.
3. "Treasury to keep tight grip on counties' cash spending". Daily Nation Business. Retrieved May 23, 2013.
4. Public Finance Management Act of 2012. National Council for Law Reporting. The Attorney General.
5. Website of the Controller of Budget. Accessed August 2013.
6. Website of the Transitional Authority. Accessed September 2013.