"This time, we shall be voting for 48 Presidents at the same time (do not be misled by the term "Governor": the 47 Governors in the 47 Counties will have quasi-presidential powers!),” writes Marlby Matathia through Email. Whereas the constitution of Kenya creates Presidential powers & Governors powers, nowhere does it create quasi-presidential powers. One similarity in the functions of President of Kenya and the 47 Governors is that the occupants of these offices will be responsible to Execute bills passed by the legislative. The term Governor is "not misleading," for Kenya constitution is not a misleading document but a clearly written document as passed by over 6 million Kenyans.
Marlby further writes, “The County Governors mandate will derive much of its power from the fact that its roles and responsibilities are not as clearly defined in the constitution as they should be.” This is another inaccurate statement. When one reads Chapter Eleven of the Kenya Constitution that creates the Devolved Government and Forth Schedule that defines the 35 roles of National Government and 14 roles of County government one sees clearly defined roles. When one further reads County Governments Bill 2012 part V County Executive one sees clearly defined roles and responsibilities. (See some articles of constitution and Part V of County Bill below article.)
Another inaccurate statement by Marbly is: “It will be up to the individual office-holder to stake out their territory and define where county government ends and where national government begins.” This is another incorrect statement. Nowhere does the constitution give power to the Governor of single-handedly creating laws of county. Indeed the biggest source of power is the money budget that is controlled by Articles 110, 111 and 112 of the National assembly. . The current national assembly passed bill is Kshs 280 billion funding of county governments. Constitutional articles like 179, 185, 187 and others define the county governments.
Marbly creation of fear is unnecessary, “In such an environment, the personal integrity and competence of the individual is all that stands between order and chaos, light and darkness.” The use of words order and chaos, light and darkness are a false alarm. 3 examples of how county citizens can use constitution.
1. Development of County
Constitution Article 183 (2) “A county executive committee may prepare proposed legislation for consideration by the county assembly.” Whereas the Governor can initiate development for a county the constitution in Article 185 (4) “A county assembly may receive and approve plans and policies for— (a) the management and exploitation of the county’s resources; and (b) the development and management of its infrastructure and institutions.” The County assembly will be responsible for legislating everything done. The Governor role is introduce and then (a) Assent to the Bill; or (b)refer the bill back to the county assembly with a memorandum outlining reasons for the referral. This normally happens when a bill is passed by between 50% and two-thirds. If over 67% of County Assembly passed the Bill then the Governor power is zero at this point.
2. County Assembly seating as High Court
Constitution Article 195 (1) “A county assembly or any of its committees has power to summon any person to appear before it for the purpose of giving evidence or providing information. (2) For the purposes of clause (1), an assembly has the same powers as the High Court to— (a) enforce the attendance of witnesses and examining them on oath, affirmation or otherwise; (b) compel the production of documents; and (c) issue a commission or request to examine witnesses abroad.” The executive members can be summoned by the county assembly at any time and at this time the assembly has the same powers as a court.
3. Corruption & Embezzlement of Funds
Constitution Article 192 (1) “The President may suspend a county government— (a) in an emergency arising out of internal conflict or war; or (b) in any other exceptional circumstances. (2) A county government shall not be suspended under clause (1) (b) unless an independent commission of inquiry has investigated allegations against the county government, the President is satisfied that the allegations are justified and the Senate has authorised the suspension.” This article shows that if the county assembly and governor create a situation other than defined in constitution then the President can suspend the county government. Thus if the Governor and executive committee and county assembly collude in corruption citizens of county can petition the President who has the power to suspend the government.
"Je, County Governor Ni Nani? Competition,” is a good initiative towards having Kenyans discuss the county government formation; however, the writer would better serve Kenya if he applied Kenya constitution laws. On March 4th 2013, Kenyans will be vote for a President of Kenya and 47 Governors and not 48 Presidents.
Articles of Constitution and County Governments Bill 2012 for Reference.
110. (1) In this Constitution, “a Bill concerning county government” means––
(a) a Bill containing provisions affecting the functions and powers of the county governments set out in the Fourth Schedule;
(b) a Bill relating to the election of members of a county assembly or a county executive; and
(c) a Bill referred to in Chapter Twelve affecting the finances of county governments.
(2) A Bill concerning county governments is––
(a) a special Bill, which shall be considered under Article 111, if it––
(i) relates to the election of members of a county assembly or a county executive; or
(ii) is the annual County Allocation of Revenue Bill mentioned in Article 218; or
(b) an ordinary Bill, which shall be considered under Article 112, in any other case.
(3) Before either House considers a Bill, the Speakers of the National Assembly and Senate shall jointly resolve any question as to whether it is a Bill concerning counties and, if it is, whether it is a special or an ordinary Bill.
(4) When any Bill concerning county government has been passed by one House of Parliament, the Speaker of that House shall refer it to the Speaker of the other House.
(5) If both Houses pass the Bill in the same form, the Speaker of the House in which the Bill originated shall, within seven days, refer the Bill to the President for assent.
111. (1) A special Bill concerning a county government shall proceed in the same manner as an ordinary Bill concerning county government, subject to clauses (2) and (3).
(2) The National Assembly may amend or veto a special Bill that has been passed by the Senate only by a resolution supported by at least two-thirds of the members of the Assembly.
(3) If a resolution in the National Assembly to amend or veto a special Bill fails to pass, the Speaker of the Assembly shall, within seven days, refer the Bill, in the form adopted by the Senate, to the President for assent.
112. (1) If one House passes an ordinary Bill concerning counties, and the second House––
(a) rejects the Bill, it shall be referred to a mediation committee appointed under Article 113; or
(b) passes the Bill in an amended form, it shall be referred back to the originating House for reconsideration.
(2) If, after the originating House has reconsidered a Bill referred back to it under clause (1) (b), that House––
(a) passes the Bill as amended, the Speaker of that House shall refer the Bill to the President within seven days for assent; or
(b) rejects the Bill as amended, the Bill shall be referred to a mediation committee under Article 113.
179. (1) The executive authority of the county is vested in, and exercised by, a county executive committee.
(2) The county executive committee consists of—
(a) the county governor and the deputy county governor; and
(b) members appointed by the county governor, with the approval of the assembly, from among persons who are not members of the assembly.
(3) The number of members appointed under clause (2) (b) shall not exceed—
(a) one-third of the number of members of the county assembly, if the assembly has less than thirty members; or
(b) ten, if the assembly has thirty or more members.
(4) The county governor and the deputy county governor are the chief executive and deputy chief executive of the county, respectively.
(5) When the county governor is absent, the deputy county governor shall act as the county governor.
(6) Members of a county executive committee are accountable to the county governor for the performance of their functions and exercise of their powers.
(7) If a vacancy arises in the office of the county governor, the members of the county executive committee appointed under clause (2) (b) cease to hold office.
183. (1) A county executive committee shall— (a) implement county legislation; (b) implement, within the county, national legislation to the extent that the legislation so requires; (c) manage and coordinate the functions of the county administration and its departments; and (d) perform any other functions conferred on it by this Constitution or national legislation.
(2) A county executive committee may prepare proposed legislation for consideration by the county assembly.
(3) The county executive committee shall provide the county assembly with full and regular reports on matters relating to the county.
185. (1) The legislative authority of a county is vested in, and exercised by, its county assembly.
(2) A county assembly may make any laws that are necessary for, or incidental to, the effective performance of the functions and exercise of the powers of the county government under the Fourth Schedule.
(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.
(4) A county assembly may receive and approve plans and policies for—
(a) the management and exploitation of the county’s resources; and
(b) the development and management of its infrastructure and institutions.
187. (1) A function or power of government at one level may be transferred to a government at the other level by agreement between the governments if—
(a) the function or power would be more effectively performed or exercised by the receiving government; and
(b) the transfer of the function or power is not prohibited by the legislation under which it is to be performed or exercised.
(2) If a function or power is transferred from a government at one level to a government at the other level—
(a) arrangements shall be put in place to ensure that the resources necessary for the performance of the function or exercise of the power are transferred; and
(b) constitutional responsibility for the performance of the function or exercise of the power shall remain with the government to which it is assigned by the Fourth
FOURTH SCHEDULE (Article 185 (2), 186 (1) and 187 (2))
DISTRIBUTION OF FUNCTIONS BETWEEN THE NATIONAL GOVERNMENT AND THE COUNTY GOVERNMENTS
Part 1—National Government
1. Foreign affairs, foreign policy and international trade.
2. The use of international waters and water resources.
3. Immigration and citizenship.
4. The relationship between religion and state.
5. Language policy and the promotion of official and local languages.
6. National defence and the use of the national defence services.
7. Police services, including—
(a) the setting of standards of recruitment, training of police and use of police services;
(b) criminal law; and
(c) correctional services.
8. Courts.
9. National economic policy and planning.
10. Monetary policy, currency, banking (including central banking), the incorporation and regulation of banking, insurance and financial corporations.
11. National statistics and data on population, the economy and society generally.
12. Intellectual property rights.
13. Labour standards.
14. Consumer protection, including standards for social security and professional pension plans.
15. Education policy, standards, curricula, examinations and the granting of university charters.
16. Universities, tertiary educational institutions and other institutions of research and higher learning and primary schools , special education, secondary schools and special education institutions.
17. Promotion of sports and sports education.
18. Transport and communications, including, in particular—
(a) road traffic;
(b) the construction and operation of national trunk roads;
(c) standards for the construction and maintenance of other roads by counties;
(d) railways;
(e) pipelines;
(f) marine navigation;
(g) civil aviation;
(h) space travel;
(i) postal services;
(j) telecommunications; and
(k) radio and television broadcasting.
19. National public works.
20. Housing policy.
21. General principles of land planning and the co-ordination of planning by the counties.
22. Protection of the environment and natural resources with a view to establishing a durable and sustainable system of development, including, in particular—
(a) fishing, hunting and gathering;
(b) protection of animals and wildlife;
(c) water protection, securing sufficient residual water, hydraulic engineering and the safety of dams; and
(d) energy policy.
23. National referral health facilities.
24. Disaster management.
25. Ancient and historical monuments of national importance.
26. National elections.
28. Health policy.
29. Agricultural policy.
30. Veterinary policy.
31. Energy policy including electricity and gas reticulation and energy regulation.
32. Capacity building and technical assistance to the counties.
33. Public investment.
34. National betting, casinos and other forms of gambling.
35. Tourism policy and development.
Part 2—County Governments
The functions and powers of the county are—
1. Agriculture, including—
(a) crop and animal husbandry;
(b) livestock sale yards;
(c) county abattoirs;
(d) plant and animal disease control; and
(e) fisheries.
2. County health services, including, in particular—
(a) county health facilities and pharmacies;
(b) ambulance services;
(c) promotion of primary health care;
(d) licensing and control of undertakings that sell food to the public;
(e) veterinary services (excluding regulation of the profession);
(f) cemeteries, funeral parlours and crematoria; and
(g) refuse removal, refuse dumps and solid waste disposal.
3. Control of air pollution, noise pollution, other public nuisances and outdoor advertising.
4. Cultural activities, public entertainment and public amenities, including—
(a) betting, casinos and other forms of gambling;
(b) racing;
(c) liquor licensing;
(d) cinemas;
(e) video shows and hiring;
(f) libraries;
(g) museums;
(h) sports and cultural activities and facilities; and
(i) county parks, beaches and recreation facilities.
5. County transport, including—
(a) county roads;
(b) street lighting;
(c) traffic and parking;
(d) public road transport; and
(e) ferries and harbours, excluding the regulation of international and national shipping and matters related thereto.
6. Animal control and welfare, including—
(a) licensing of dogs; and
(b) facilities for the accommodation, care and burial of animals.
7. Trade development and regulation, including—
(a) markets;
(b) trade licences (excluding regulation of professions);
(c) fair trading practices;
(d) local tourism; and
(e) cooperative societies.
8. County planning and development, including—
(a) statistics;
(b) land survey and mapping;
(c) boundaries and fencing;
(d) housing; and
(e) electricity and gas reticulation and energy regulation.
9. Pre-primary education, village polytechnics, homecraft centres and childcare facilities.
10. Implementation of specific national government policies on natural resources and environmental conservation, including—
(a) soil and water conservation; and
(b) forestry.
11. County public works and services, including—
(a) storm water management systems in built-up areas; and
(b) water and sanitation services.
12. Fire fighting services and disaster management.
13. Control of drugs and pornography.
14. Ensuring and coordinating the participation of communities and locations in governance at the local level and assisting communities and locations to develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level.
County Government Bill 2012
Functions and responsibilities of a county governor
31. (1) The governor shall take and subscribe to the oath or affirmation as set out in the Schedule to this Act before assuming office.
(2) The governor shall—
(a) diligently execute the functions and exercise the authority provided for in the Constitution and legislation;
(b) perform such State functions within the county as the President may determine;
(c) represent the county in national and international fora and events;
(d) constitute the county executive committee portfolio structure to respond to the functions and competencies assigned to and transferred to each county;
(e) submit the county plans and policies to the county assembly for approval;
(f) consider, approve and assent to bills passed by the county assembly;
(g) chair meetings of the county executive committee;
(h) assign to every member of the county executive committee, responsibility to ensure the discharge of any function within the county and the provision of related services to the people;
(i) submit to the county assembly an annual report on the implementation status of the county policies and plans;
(j) deliver annual state of the county address;
(k) subject to the operational command structures set out in the Police Service Act or any other national security legislation, chair the county equivalent of the national security council as provided for in Article 239 (5) of the Constitution; and
(l) sign or designate a county public officer to sign county Gazette notices, unless county legislation provides otherwise.
(3) In performing the functions under subsection (2), the governor shall—
(a) provide leadership in the county's governance and development;
(b) provide leadership to the county executive committee and administration based on the county policies and plans;
(c) promote democracy, good governance, unity and cohesion within the county;
(d) promote peace and order within the county;
(e) promote the competitiveness of the county;
(f) be accountable for the management and use of the county resources; and
(g) promote and facilitate citizen participation in the development of policies and plans, and delivery of services in the county.
Powers of the governor
32. The governor—
(a) may dismiss a county executive committee member in accordance with section 41;
(b) shall dismiss a county executive committee member, if required to do so by a resolution of the county assembly as provided under section 41 of this Act;
(c) may appoint an accounting officer for each department, entity or decentralized unit of the county government; and
(d) shall have such powers as may be necessary for the execution of the duties of the office of governor.
Assenting to a Bill
25. (1) The speaker shall, within fourteen days, forward a Bill passed by the county assembly to the governor.
(2) The governor shall within fourteen days after receipt of a Bill—
(a) assent to the Bill; or
(b) refer the bill back to the county assembly with a memorandum outlining reasons for the referral.
(3) If the governor refers a Bill back to the county assembly, the county assembly may, following the appropriate procedures under this section—
(a) amend the Bill taking into account the issues raised by the governor; or
(b) pass the Bill without amendment
(4) If a county assembly amends the Bill taking into consideration the issues raised by the governor, the speaker shall within fourteen days submit the Bill to the governor' for assent.
(5) If a county assembly passes the Bill a second time, without amendment, or with amendments which do not accommodate the governor's concerns by a vote supported by two-thirds of members of the county assembly, the speaker shall within seven days re-submit the Bill to the governor and the governor shall within seven days assent to the Bill.
(6) If the governor does not assent to a Bill or refer it back within the period referred to under this section, the Bill shall be taken to have been assented to on the expiry of that period.
Removal of a governor
34. A member of the county assembly may by notice to the speaker, supported by at least a third of all the members, move a motion for the removal of the governor under Article 181 of the Constitution.
(2) Within seven days after receiving notice under subsection (1)—
(a) the speaker shall convene a meeting of the county assembly to hear charges against the governor; and
(b) the county assembly, by resolution, may appoint a special committee comprising seven of its members to investigate the matter.
(3) The governor shall continue to perform the functions of the office pending the outcome of the proceedings required by this section.
(4) A special committee appointed under subsection (2) shall—
(a) investigate the matter; and
(b) report to the county assembly within ten days whether it finds the particulars of the allegations against the governor to have been substantiated.
(5) The governor shall have the right to appear and be represented before the special committee during its investigations.
(6) If the special committee reports that the particulars of any allegation against the governor—
(a) have not been substantiated, further proceedings shall not be taken under this section and Article 181 of the Constitution in respect of that allegation; or
(b) have been substantiated, the county assembly, after according the governor an opportunity to be heard, shall vote on the charges.
(7) If at least two-thirds of all the members of the County Assembly vote to uphold any charge against the governor, the matter shall be referred to the Senate by the speaker of the county assembly for consideration and if the Senate upholds the motion of the county assembly by two- thirds of the members present and voting, the governor shall cease to hold office.
(8) The provisions of this section shall apply with necessary modifications to the removal of a deputy governor.
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