Source: Transparency International- Kenya
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Leadership, Integrity and Devolution under the Constitution of Kenya
Who has more power between a Senator, M.P and a Governor?
Ans: None, because under Article 1(1) sovereign power belongs to the people of Kenya, and they merely delegate that power to state officers such as Senators, M.Ps and Governors. Additionally, the Constitution does not mention which position is above the other. Each has significant responsibilities in the county and national-level governance. Article 95 lays out the functions of the National Assembly comprising MPs, Article 96 details the role of the Senate while Article 199(4) and (6) specifies the functions of a governor.
Can a state officer take up other responsibilities, for example as a board member in a school?
Ans: Article 77(1) prohibits full-time State officers from participating in any other gainful employment. Thus, if the public officer will earn or receive a monetary reward from the position in the school board, the preferred interpretation would be that the public officer should not be part of the school board.
What is the structure of the devolved government?
Ans: Article 176 provides that there shall be county governments for each county consisting of a county assembly and county executive. The membership of the county assembly is provided for under Article 177 while the membership of the county executive is provided for under Article 179. The county assembly shall comprise of:
- Members directly elected by registered voters in the wards in a particular county
- Special seats to ensure that not more than two thirds of the members of the county are of the same gender. This will be determined after the declaration of elected members from each ward and members contemplated for these special seats will be nominated by political parties according to the proportion of the seats received in the election in that that county by a political party
- Special seats for people with disabilities and the youth- an Act of Parliament will be enacted to give guidance on this issue and members contemplated for these special seats will be nominated by political parities in the proportion of the seats received in the election in that that county by a political party
- The speaker who is elected by the county assembly from among persons who are not members of the assembly (an ex-official member).
The phrase “equitable allocation” has been used in several provisions in the Constitution such as Article 202(1), what criteria shall be used to determine what is equitable or otherwise?
Ans: The criteria to be used to determine the equitable shares provided for under Article 202 and in all national legislation concerning county governments is provided for under Article 203 and includes: the national interest, development and other needs of counties, need for affirmative action in respect of disadvantaged areas and groups, and need for flexibility in responding to emergencies and other temporary needs. Additionally, the Constitution, under Article 215, establishes the Commission on Revenue Allocation, whose functions include: making recommendations (based on the criteria set out in Article 202) concerning the basis for the equitable sharing of revenue raised by the national government (a) between the national and county governments; and (b) among the county governments
Who will nominate or elect the women leaders as provided under Articles 97, 98 and 177?
Ans: Article 97 provides that membership of the National Assembly will consist of among others, 47 women, each elected by the registered voters of the 47 counties. Article 98 states that the Senate will consist of among others 16 women who shall be nominated by the political parties according to their proportion of members of the Senate elected.
Article 177(b) is not really a provision for the nomination or election of women but rather a provision to ensure gender balance in 47 county assemblies contemplated under the Constitution. It provides for special seats to ensure that not more than two thirds of the members of any county assembly are of the same gender. This gender balance will be determined after the declaration of elected members from each ward in the county assembly and members contemplated for these special seats will be nominated by political parities in the proportion of the seats received in the election in that county by a political party.
If all or a majority of the 47 senators as per article 98(1) (a) are women, shall Article 98(1)(b) thereto still apply exactly as provided or shall it be adjusted to suit the situation and how, if at all?
Ans: Article 81(b) of the Constitution provides for the general principles of the electoral system and states that not more than two thirds of the members of elective public bodies shall be of the same gender. Under Article 259(1) (a), provisions in the Constitution will need to be interpreted to promote its purpose, values and principles of the Constitution and thus in the event that most or all of the elected senators under Article 98(1) (a) are women, thepreferred interpretation would be that Article 98(1) (b) is not applied and instead men would be nominated to ensure gender balance in the Senate.
Who will determine the salaries of the members of the county assembly and executive?
What are the set academic qualifications of a person intending to be elected to a county assembly?
Can a person seeking an elective position in a county assembly vie as an independent candidate?
Will the provincial administration be abolished?
Ans: The Sixth Schedule, under Article 17 states that the national government shall restructure the system of provincial administration to accord with and respect the system of devolved government within five years of the Constitution’s effective date, that is the promulgation day (27th August, 2010). The restructuring of the provincial administration would mean aligning these units in such a manner as not to create geographical units which inconvenience arrangements under the Constitution or enable units like provinces which then become another level of focus and possess overbearing powers over the counties.