The Senate had powers to summon county governors in the performance of its oversight role over county revenue

Brief facts

On February 8, 2014, the Senate Committee on County Public Accounts and Investments summoned fifteen county governors to appear before it to answer questions on county financial management. Several county governors appeared before the Committee save for four who expressly declined to honor the summons. The four governors instead filed a petition before the High Court challenging the summons. On April 16, 2014, the High Court found that the Senate was well within its constitutional mandate to issue the summons.

Consequently, the Senate issued fresh summons to the governors, requiring them to appear before the Committee on August 26, 2014. However, the governors of Bomet, Kiambu, Muranga and Kisumu Counties declined to honor the summons despite the court orders. That prompted the Senate to pass a resolution, in accordance with section 96 of the Public Finance Management Act (PFMA), recommending that the Cabinet Secretary, Treasury halts the transfer of funds to the concerned county governments and the Controller of Budgets withholds the approval of withdrawal of public funds by those county governments. 

Aggrieved, the governors filed a second petition on among other grounds that under articles 96 and 226(2) of the Constitution of Kenya, 2010 (the Constitution)and section 148 of the PFMA, the Senate could not summon governors to personally appear before it to answer questions of county government finances.

The High Court held among others that the Senate could summon governors to answer questions on county public finance management and that the resolution passed by the Senate directing the National Treasury and Controller of Budget not to release funds to counties was unconstitutional. Aggrieved, the respondents filed an appeal at the Court of Appeal while the appellant filed a cross-appeal at the same court. The Court of appeal dismissed both the appeal and cross-appeal for lack of merit and upheld the High Court judgment. Aggrieved by the Court of Appeal decision, the appellants filed the instant consolidated appeals.

Issues

1. Whether the Senate was constitutionally empowered to summon governors to appear before it or any of its committees for purposes of answering questions and providing requisite information. 
2. Whether the Senates oversight function was limited to nationally allocated revenue. 
3. Whether County Assemblies had the power of first tier oversight over county governments revenue whether nationally allocated or locally generated. 

Relevant provisions of the law

Constitution of Kenya, 2010

Article 96 - Role of the Senate

(1) The Senate represents the counties, and serves to protect the interests of the counties and their governments.

(2) The Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 to 113.

(3) The Senate determines the allocation of national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the county governments.

Held

1. Article 96 of the Constitution as read together with articles 110 to 112 of the Constitution, left no doubt that the Senate was established to perform fundamental roles of governance concerning counties; they were legislative, budgetary and oversight. It had been granted considerable latitude in ensuring that county governments operated at optimal and within accountability standards, if the objectives of devolution were to be realized. There was no way by which the Senate could perform such an important role without having the powers to summon a governor and to require him/her to provide answers and offer explanations regarding the management of the county finances and related affairs. Without such power, the Senate would not be able to protect the interests of the counties, nor would it be able to exercise effective oversight over national revenue allocated to counties.
2. Article 96(3) of the Constitution was buttressed by section 8 of the PFMA which provided for the responsibilities of the Senate Budget Committee in public finance matters. For the Senate to perform its functions as stipulated in section 8, it had to incorporate the input of the respective chief finance officers of the counties, who were in turn appointed by the governor. The office that was ultimately answerable to the Senate was that of the governor.
3. The Senate was constitutionally empowered, to summon governors to appear before it or any of its committees for purposes of answering questions and providing requisite information. In appearing before Senate, there was nothing to stop a governor from going on with his/her technical team from the county executive. By the same token, if the Senate was of the view that the questions to be answered or information to be provided did not need the personal input of the governor, it could restrict its summons to the relevant county official or executive committee.
4. Article 185(3) of the Constitution provided that a County Assembly, while respecting the principle of separation of powers, could exercise oversight over the county executive committee and any other county executive organs. Article 185(3), although permissively framed, conferred powers upon county assemblies to oversight the county executive. That therefore meant that among other things, county assemblies could question the county executives management of county affairs, including the use of revenue. What the County Assemblies could not do was to usurp the role of the county executive under the guise of oversight, for that would offend the principle of separation of powers. The County Assemblies could not for example, take over the role of implementing Government policies and projects. Their role was to provide checks and balances to the county executives so as to promote transparency and accountability in the manner county affairs were run.
5. Article 96(2) of the Constitution, which conferred legislative powers upon the Senate regarding Bills concerning county governments, had to be read together with articles 109 to 113 of the Constitution. Those provisions entrusted the Senate with the mandate of legislating for county governments in fields that spanned the entire spectrum of governance. With regard to county finances, the foregoing provisions did not limit Senates legislative power to the nationally allocated revenue.
6. A holistic reading of all the relevant provisions of the Constitution and the law, put in context, led to the conclusion that both the Senate and County Assemblies had the power to oversight county revenue whether nationally allocated or locally generated. The fact that county revenue was locally generated did not remove it from the purview of Senate oversight. Such revenue fell within the rubric of public finance whose use had to remain under the radar of scrutiny and oversight by the State organs established for that purpose. Similarly, the fact that county revenue was nationally allocated did not place it beyond the oversight of county assemblies.
7. The purpose of the Constitution was to entrench good governance, the rule of law, accountability, transparency, and prudent management of public finances at both levels of Government. Such grand purpose could not be served if either the Senate or county assemblies began to develop centres of oversight/influence. In that regard, the county assemblies provided the first tier of oversight while the Senate provided the second and final tier of oversight.
8. By exercising its oversight role in the manner determined, the Senate could not be said to be violating the principle of separation of powers. There was no potential danger of encroachment upon the mandate of the independent offices of the Controller of Budget or the Auditor General. What the Senate could not do under the guise of oversight, was to usurp the county executives mandates or to purport to supervise County Assemblies.