KATIBA CORNER

When is it right for Parliament to pass laws on matters ‘under’ the counties?

National level politicians have an almost irresistible urge to tell counties what to do.

In Summary

• Counties can make laws necessary for carrying out their powers. Basically the Constitution says to counties, “This is your responsibility; get on with it."

• Counties can make laws necessary for carrying out their powers. Basically the Constitution says to counties, “This is your responsibility; get on with it."

Members of Parliament in the chambers
Members of Parliament in the chambers
Image: FILE

You may have seen newspaper items about the President signing into law six Bills recently. Some seemed to concern what counties - not the national government - ought to be doing.

National level politicians appear to have an almost irresistible urge to tell counties what to do.

They seem to forget that county governments are just that – governments – albeit with limited powers, and think that they are subordinate to them.

Yet the Constitution says that while levels of government are inter-dependent, and should relate to each other on the basis of consultation and cooperation, they are also distinct.

The Constitution gives certain powers to counties, and Article 174 says that the purposes of this whole system include recognising “the right of communities to manage their own affairs”.

Counties can make laws necessary for carrying out their powers. Basically the Constitution says to counties, “This is your responsibility; get on with it."

 

Sometimes it is clear that they are limited by the power of the national government to make policy (on housing, agriculture, health and tourism, for example).

Otherwise, if both the national and county governments can and do make law on a subject, and some county law conflicts with a national one, the county law would be the valid one unless there is a very good reason for having a national law on the subject (Article 191).

The Constitution gives some details about how county government should work, and Parliament was to pass law on several matters about how it would work.

It passed the County Governments Act as the relevant national Act. You could say that this Act – with what the actual Constitution says about county operations – form the constitution for the counties.

But the national Parliament should not try to regulate all sorts of things that the national Constitution does not regulate for the national government.

Sacking county executive members

The failure to recognise the status of county governments showed right from the enactment of the County Governments Act.

That Act says that county executive (CEC) members may be dismissed only for certain reasons, and after a rather elaborate process.

It treats them almost the way the Constitution treats judges – who are hard to dismiss because they are supposed to be independent. But Cabinet Secretaries are not independent – they are political appointments. So why not CEC members, too?

However the Employment and Labour Relations Court has been deciding cases of dismissed county executive members, even reinstating them, like employees. (This also violates a basic principle that you do not force people into relationships where they have to work together.)

It seems that one element in the Bills the President signed may have gone some way to rectifying that.

Now, apparently, Parliament – both Houses – has agreed that a Governor does not need to give reasons for dismissing CEC members, any more than the President has to give reason for dismissing a CS.

Suspending county governments

 

A particularly interesting change in the new Acts is about the procedure (in Article 192) for the President to suspend a county government when some very serious situation arises.

It is important because sooner or later this is going to become a reality. Indeed, some of us wonder why the President did not use this procedure to take over Nairobi county for a while.

Maybe because (i) it would be only for a while and it seems that the national government wants to take over Nairobi permanently, and (ii) it involves an independent inquiry into what has been going on in the county in question, and not some curious deal between a governor and the President.

A few years ago this process was initiated in the case of Makueni county, and an independent inquiry did take place and recommended that the government be suspended. The President chose not to accept the recommendation.

Even if he had done so, the Senate could have refused to approve the suspension, or could have ended the suspension at any time before 90 days had passed.

If they did neither of these, the county government would have been dissolved and everyone would have had to stand for election.

What the new law does is to clarify the Senate’s role in this process. And if there is a suspension, and the Senate is minded to bring it to an end, the Senate must invite the views of the public, the Board managing the county, and anyone else relevant.

This seems a good thing, constitutional – and obviously a matter for national law.

Some of the other changes in the law seem less justified – or one-sided.

One is another new provision about suspension of county governments: even if there is no recommendation to suspend, or the President disagrees, the Senate still gets a chance to look at the inquiry report and decide how to proceed on the basis of other recommendations of the inquiry.

But if, for example, the inquiry has made recommendations for the county government, why should the Senate be able to decide what happens?

Recalling MCAs

The Constitution gives citizens a right to recall their national legislators. Those legislators passed law on this so restrictive that recall was impossible.

A court declared this unconstitutional – and this also affected the law on recalling MCAs. Now Parliament has passed new law about recalling MCAs.

That is a good thing – because otherwise there was no legal framework for recalling MCAs. But when are they going to pass constitutionally compliant law about recalling themselves?

And it should not be easier to recall MCAs than MPs. Whether the new law is the best approach is something we don’t have time to look at here

Petitions to county assemblies

The Constitution requires Parliament to provide for petitions to itself – and each house has done so in its rules of procedure.

In the County Governments Act Parliament said that each county assembly must make its own rules of procedure – but spelled out in excessive detail what ought to be included, including about petitions. A number of counties have actually passed Acts on petitions.

Now, in its schoolmasterly style, Parliament has passed a detailed Act telling counties - or the people in counties - how to do this. Old-fashioned, cumbersome, formal – and expensive – are the words that come to mind when reading the new law.

The Bill’s promoter said this was “to provide a uniform and harmonised procedure that would apply in all county assemblies”. But this is a negation of devolution.

If all law was uniform across counties devolution would be meaningless. Let counties innovate, decide what procedure suits their people. Counties vary a lot; this is one reason for having devolution.

County attorneys

The Constitution creates the office of Attorney General but does not say very much about its role.

But now Parliament has seen fit to give counties detailed directions about a county attorney – making the officer hard to sack, but entitled to attend CEC meetings, and giving many powers and duties.

Again, why not leave this to the counties to decide on their needs?

This attitude of 'We know best' is condescending and arguably unconstitutional.

It would be more appropriate to prepare a model law that counties may take, use and adapt as they find appropriate.

In fact the Kenya Law Reform Commission says it has prepared more than 50 of these – but this of course does not satisfy the desire of government and Parliament to tell counties what to do.

Counties may not always be doing a great job, but nor does the national system do such a great job.

The Law Reform Commission said there is a “dearth of capacity at both levels of government to facilitate the effective development of laws and policies that are clear, coherent, comprehensive and compliant with the applicable constitutional provisions”.

Various other Bills designed to control counties, usually emanating from the Senate, are lurking in the wings.