The Secretary for Finance
The Constitution of Kenya 2010 has put in place an orderly engagement between the people's representatives (Parliament), and the Secretary for Finance in matters of Public Finance. This engagement process, is governed by 3 broad steps. The first step encompass budget-making; the second covers the preparation of money Bills and in particular, Appropriation Bills, and the third step covers resource allocation and administration in accordance with (money) Acts of Parliament. It is perhaps appropriate at this stage to clarify what the drafters of the New Constitution categorised as a money Bill in the context of Public Finance. Chapter 8 - The Legislature, Part 4 - Procedures for Enacting Legislation, Article 114:
114. (3) In this Constitution, “a money Bill” means a Bill, other than a Bill specified in Article 218, that contains provisions dealing with— (a) taxes; (b) the imposition of charges on a public fund or the variation or repeal of any of those charges; (c) the appropriation, receipt, custody, investment or issue of public money; (d) the raising or guaranteeing of any loan or its repayment; or (e) matters incidental to any of those matters.
Article 218 mentioned above, excludes the Division of Revenue Bill and the County Allocation of Revenue Bill. These two Bills are really 'facilitation' Bills because they respectively, provide for the division of revenue raised by the national government among the national and county levels of government, and for the division among the counties of the revenue allocated to the county levels of government.
As was noted on the general discussion on the allocation of County Revenue, the Secretary for Finance is empowered by law to stop the transfer of funds to an irresponsible County government:
225. (3) Legislation ........ may authorise the Cabinet Secretary responsible for finance to stop the transfer of funds to a State organ or any other public entity— (a) only for a serious material breach or persistent material breaches of the measures established under that legislation; ........
The Secretary for Finance has also been granted the discretionary authority to make an advanced payment out of the Contingencies Fund in the event that an emergency situation that has arisen, and which is found to be outside of any of the Acts that govern public expenditure. Chapter 12 - Public Finance:
208. (2) An Act of Parliament shall provide for advances from the Contingencies Fund if the Cabinet Secretary responsible for finance is satisfied that there is an urgent and unforeseen need for expenditure for which there is no other authority.
In effect, Clause (2) above, confers a legal status to an 'extralegal' action by the Secretary.
Roles and Functions
A few provisions in the Constitution of Kenya 2010 have redefined the office of the Secretary of Finance and granted it more legislative authority than before. For example, no sooner is a Bill determined as a money Bill, than the input of the Secretary of Finance is sought and factored into the Bill before the legislative process can proceed into the Committee stage. Chapter 8 - The Legislature, Part 4 - Procedures for Enacting Legislation, Article 114, excerpts:
114. (2) If, in the opinion of the Speaker of the National Assembly, a motion makes provision for a matter mentioned in the definition of “a money Bill”, the Assembly may proceed only in accordance with the recommendation of the relevant Committee of the Assembly after taking into account the views of the Cabinet Secretary responsible for finance.
This requires the office of the Secretary of Finance to remain well-informed in the law and in what the National Assembly is doing, to enable it properly perform its advisory role with respect to legislation. This is perhaps the reason that the national budget-making process has been accorded generous time-lines by the New Constitution - the Executive via the Secretary of Finance, will no longer ambush Parliament with budget proposals. Chapter 12 - Public Finance, Part 5 - Budgets and Spending:
221. (1) At least two months before the end of each financial year, the Cabinet Secretary responsible for finance shall submit to the National Assembly estimates of the revenue and expenditure of the national government for the next financial year to be tabled in the National Assembly.
The Secretary of Finance (aka the Cabinet Secretary for the National Treasury) did promptly table the first such estimates after the first General Elections under the New Constitution for the 2013/2014 financial year. The Secretary of Finance will similarly advise and guide the Senate when it is considering how to allocate the County Revenue. Part 4 - Revenue Allocation, excerpts from Article 217:
217. (2) In determining the basis of revenue sharing ........, the Senate shall— (c) consult ........ the Cabinet Secretary responsible for finance ........
As the National Executive's lead on matters of Public Finance, the Secretary of Finance is a member of or is represented in select Commissions. Excerpts from various Articles of the New Constitution:
230. (2) The Salaries and Remuneration Commission consists of the following persons ........— (d) one person each nominated by— (i) the Cabinet Secretary responsible for finance; ........
215. (1) There is established the Commission on Revenue Allocation. (2) The Commission shall consist of the following persons ........ (d) the Principal Secretary in the Ministry responsible for finance.