The County Oversight and Accountability Bill, No. 3 of 2024

SPECIALISSUE

Kenya Gazette SupplementNo.38(Senate Bills No.3)

REPUBLICOFKENYA

KENYAGAZETTESUPPLEMENT

SENATEBILLS,2024

NAIROBI28thFbruary,2024

CONTENT

| Bill for Introduction into the Senate-- | | |------------------------------------------------|------| | | PAGE | | The CountyOversight andAccountabilityBill,2024 | 21 |

Clauses

PARTI-PRELIMINARYPROVISIONS

1-Short Title.

2-Interpretation.

3—Objects of theAct.

4-Guiding principles.

PARTII-PUBLICPARTICIPATIONFACILITIES

5-CountyPublicParticipationFacilities.

6-Criteria for the infrastructural development ofpublic participationfacilities.

7—Assessment ofinfrastructural needs.

8—Infrastructure developmentplan.

9-Approval ofplanbycounty assembly.

10—Setting aside and capping of funds.

11-Allocation offunds.

12—Previously approvedprojects.

13-Reports on the implementation ofworksbyapublic

institution.

14—Unspentfunds.

15—Annual Reports.

PARTII-OVERSIGHTANDPUBLIC

PARTICIPATIONPROVISIONS

16Oversight of County Revenue Allocation by the

National Government.

17OversightandPublicParticipationProgrammes.

18—Oversight Office.

19-CountyAssembly.

PARTIV-MISCELLANEOUSPROVISIONS

20-Regulations.

THECOUNTYOVERSIGHTAND ACCOUNTABILITYBILL,2024 ARRANGEMENTOFCLAUSES

THECOUNTYOVERSIGHTAND

ACCOUNTABILITYBILL,2024

A Bill for

AN ACT ofParliament to give effect to Articles96(1) and (3) of the Constitution;to enhance public financial accountability by the county governments;and for connected purposes

ENACTEDbytheParliamentofKenya,asfollows-

PARTI-PRELIMINARYPROVISIONS

• 1.ThisActmay be cited as the County Oversight and
• AccountabilityAct,2024.
• 2.In this Act-

"county executive committee"has the meaning

assigned to it in the County Governments Act;

"county executive committee member"

means the county executive committee member responsible efor matters relating to finance in therespective county;

"effectiveness" means theextenttowhich a programme intervention has attained,or is expected to attain,its objectives efficiently in a sustainable manner;

"efficiency"means a measure ofhow economically resources orinputs,including fund,expertise and time,are converted to results;

"officer"means any person employed to work under

theoversightofficeestablishedunder section 18;and

"public money"has the meaning assigned to it under section 2of thePublicFinanceManagementAct.

• 3.The object of this Act is to improve the efficiency, economy and effectiveness ofcounty government operationsby-
• (a)giving effect to Article 96(1) and (3) of the
• Constitution;
• (b) enhancing public financial accountability in the
• counties;
• ()promoting accountability and transparency in the acquisition and disposal of assets and incurringof liabilities by county governments;and

Short Title.

Interpretation.

Cap.265.

Cap.412A.

Object of the Act.

• (d)providinga frameworkforthedevelopmentof the infrastructure necessary to carry out public participation on financial matters within the
• counties.
• 4.All persons shall,in the performance of their functions under this Act,be guided by the following principles
• (a)theprinciplesofcitizenparticipationundersection 87of the County GovernmentsAct;
• (b)proper and prudent use of publicfinance by county governments;
• (c) the right of the residents,communities and organisations in a county to be affected by decisions on the finances of the respective county to be consulted and involved in the decisionmakingprocess;
• (d)provision of an effective mechanism for the involvementofcitizens thatwouldbeaffected by or that would be interested in decisions made by
• the county government;
• (e)access to the information by residents of a county toenable themparticipatein ameaningfulmanner in the decision-making processes in the respective county;
• publicviews shall be taken into consideration in decision making;
• (g) the national values and principles under Article 10 of theConstitution;and
• (h)promotion ofsustainable decisions recognising the needs and interests of all participants,including
• decision makers.

PARTII-PUBLICPARTICIPATIONFACILITIES

• 5.(1) Pursuant to Article 174 of the Constitution, each county government may carry out infrastructural
• developmentprogrammes for the developmentofpublic participationfacilities within therespective county.
• (2) A county government may,for the purpose of
• subsection (1),appropriate funds for the construction and

Guiding principles.

Cap.265.

County public participation

facilities.

renovation of existingpublicparticipation facilitieswithin the county.

• 6.(1) The infrastructural development and renovation programmes undertaken pursuant to section5 by a county government shall extend only to the following-
• (a) subject to subsection (2),the construction of publichallsinwardswherenopublichallsexist or where the halls are inadequate to carry out public participation;
• (b) the renovation,remodelling,maintenance and repair ofpublichalls and otherrelatedfacilities in wards that are inurgentneed ofsuchrenovation or repair;
• (c)upgrading and capital maintenance to address urgent maintenance needs in existing public halls; and
• (d) the conversion of a building that was originally
• constructed or used for purposes other than a publicparticipationfacility.
• (2) In determining whether infrastructural development or renovation programme should be undertaken inrelation to a publicparticipation facility,the following criteria shall be takeninto account
• (a) the number ofpublicparticipation facilities in the respectivewards;
• (b) repairs to,or replacement of,the facilities is requiredwithin areasonably shortperiod;
• (c)the stateof the facility andtheneedfor maintenance or repairs be undertaken to avoid endangering the welfare of persons using the facility;
• (d) the facilities or building infrastructure requires urgentrepairinordertomakethemfitforuseorto avoid incurring higher costs in carrying out the repairs in the future;
• (e) the repairs are not so extensive as to require an
• overhaul ofthe existingbuildings orfacilities;

Criteria for the infrastructural development of

public participation facilities.

• (f)the costof therepairs-
• (i) are within the financial limits set by the respective county executive committee member;and
• (ii) the county government is able to set aside the
• fundsrequiredfor the infrastructuralrepair and maintenance programme;and
• (g) the ratio ofpublic participation facilities to the number ofresidentsin therespective county.
• 7.(1) The county executive committee member shall, for the purpose of determining the public participation facilities that require urgent renovation within the county and prior to setting aside fundsfor thepurpose offunding the infrastructural development and renovation programmes-
• (a) undertake an assessment of the gaps of the public participation facilitiesneeds within the county that havebeen identified as requiring urgent intervention;
• (b)undertakea costing andtechnical support assessmentinrelation to eachpublicparticipation facility in order to ensure that the proposed programmes are within the scope of the budget projected by the county government;
• (c)prepare standards and guidelines for the upgrade and funding of the infrastructure development, repair and maintenance programmes undertaken pursuant to this Act;and
• (d)prepare apublicparticipationfacilityinfrastructure developmentplan for the subsequentfinancialyear which shall bepublished in the county gazette and in at least one newspaper of wide circulation within the county.
• (2) In undertaking an assessment under subsection (1)(a),the county executive committee member-
• (a) shall consider proposals that may be submitted to the committee member by residents within the county for the repair,renovation or development ofpublicparticipation facilities;and

Assessment of infrastructural

needs.

• (b) shall set out a list ofpublicparticipation facilities that have been identified as requiring urgent intervention in order ofpriority.
• (3) The county executive committeemember shall,for the purposes of subsection (2),prescribe—
• (a) the timeframe for the submission of aproposal by a resident under subsection (2)(a);
• (b) the information required to be submitted in a proposal under subsection (2)(a) including the nature of theworksrequired tobeundertaken;
• (c) the process of costing of theworks tobe undertaken in relation to each publicparticipation facility that is identified under subsection (1)(b) as requiring urgent intervention;
• (d) theprocessofimplementationof theworks to be undertaken in relation to public participation
• facilities under this Act;and
• (e) the process of engagement with the residents of
• the county under this Act.
• 8.(1) Where a county government intends to allocate
• funds for the carrying out ofinfrastructural development, renovation and maintenance of public participation facilities that meet the criteria under section 6,the county executive committee member shall prepare an infrastructural developmentand renovationplan for the subsequentfinancialyear setting out—
• (a) the funds required to be set aside for the purpose
• of carrying out the infrastructural development and maintenanceprogrammes;
• (b) thepublic participation facilities and areas identified by the county government as requiring urgent tintervention for the development and maintenance;
• (c) the funds required in relation to each identified publicparticipation facility and the worksto be carried outwithrespect to thefacility;
• (d)mechanisms for monitoring and evaluation, accountability and the conduct of an audit in relation to eachproject;

Infrastructure

development plan.

• (e) mechanisms for transparency in order to ensure maximum benefit andvalueformoney;and
• (f) the process of engagement by the county government institutions that have been identified asrequiring funding for the development ofpublic participation facilities and implementation of publicparticipationprogrammes.
• (2) The county executive committee member shall,in preparing the infrastructural development and renovation plan,takeintoaccountthe recommendations of theofficer set out ina report prepared under section (15)(2) assessments thatmay be carried out pursuant to the provisions of thisAct.
• (3) The county executive committee member shall submit theinfrastructural developmentandrenovationplan to thecountyexecutivecommitteeforapproval.
• 9.(1) The county executive committee member shall, upon the approval of theinfrastructural development and renovationplan by the county executive committee under section 8(4) submit the plan to the county assembly for approval.
• (2) The county assembly may approve with orwithout by the county executivecommitteememberunder
• amendmentorreject thedevelopmentplan submitted to it subsection (1).
• 10.(1) The county executive committee shall with the
• approval of the county assembly,determine
• (a)themaximumamount ofmoniesthatmay be set asidefor the implementation of theinfrastructural developmentandrenovationplan;
• (b) themoniesthatmaybeset asideinrelation to each public participation facility identified as requiring interventionunder this Act;and
• (c) the conditions that are required to be met in the implementation of the development and maintenance plan in relation toapublic participation facility.

Approval of plan by county

assembly.

Setting aside and capping of funds.

• (2) The county government may,upon the approval of the infrastructural development and renovation plan,set aside such funds as it shall consider necessary for the carrying out of the infrastructural developments and renovations of the public participation facilities set out in the plan.
• (3) The provisions of the Public Finance Management

3. Act shall apply with respect to funds set aside under subsection (1) for the carrying out of an infrastructural developmentandrenovation under thisAct.

• (4) The Public Procurement and Asset Disposal Act shall apply to theprocurementofservices andworksfor the implementationsoftheprojectunder thisAct.

5. 11.The funds allocated by a county assembly toa 6. specificpublicparticipationfacility,shall remain allocated tothat facility and shall notbe utilised for any other purpose other than the purpose for which they were allocated. 7. 12.(1)The allocation of additional funds withrespect toa publicparticipation facility thatreceived funds during thepreviousfinancialyearshall havepriorityover apublic participation facility which was not included in the infrastructural development,repair and maintenance plan under section 10 during the previous financial year where- 8. (a)it is determined that themonies allocated for the carrying outof the works arenotadequate owing to factors beyond the control of the county 9. executivecommitteemember; 10. (b) there is demonstrable actual work in progress in relation to thepublicparticipation facility; 11. (c) there an existing contract for the implementation of the project in the current financial year including thepotential of significantpenaltiesfor the cancellation or delayin implementation of the 12. contract;or 13. (d) there is inplace a cost sharing agreementwith the nationalgovernment thatthenationalgovernment contributesat leastfortyninepercentof the total value oftheproject.

Cap.412A.

Cap.412C.

Allocationof funds.

Previously approved projects.

• (2)Apreviously approved funding forinfrastructure
• repair ormaintenance offacilitiesshall notinclude-
• (a)apolitical statement,commitmentorpromise;
• (b)a project identified in the strategic plans or infrastructural development and renovationplan of the county government;
• ()pre-feasibilityplanning,study or design work;
• (d) an architectural or engineering design work that is notpartof the proposedconstructionor erection work;
• (e)a negotiated contract;or
• (f)apotentialcommitment to a cost sharedproject with thenationalgovernment thatcontributesless than forty ninepercentofthe total valueofthe project.
• (3)Where-
• (a) an infrastructural repair andmaintenanceplan is to beprepared and carriedoutforaperiod ofmore than one financialyear;and
• (b) the financial obligations relating to the project existforthe subsequentyear,

thecountyexecutivecommitteemembershall seek the approval of the county assembly for the appropriation of monies in any subsequent financial year during which the developmentis to be undertaken for thecompletion of the development.

• (4) The county executive committee and the county
• assemblyshallnot approve the allocation or appropriation offundsunder subsections(1) and (3)unless—
• (a)a contract or financial commitment exists in relation to the project;and
• (b) substantial work has commenced on the project andit cannotbecompletedwithin theplanned time frame.
• 13.The county executive committee member shall prepare areportonthestatusoftheimplementationof works withrespect to a publicparticipation facility setting out informationrelating to theworks including-

Reportson the

implementation of worksbyapublic institution.

• (a)informationrelatingto theprocurementofservices andworksinrelation to theproject;
• (b) a schedule of the works required to be undertaken andstatusoftheimplementationoftheproject;
• (c) the timelines for completion of specificphases of
• the works;
• (d) the manner inwhich the funds have been utilised
• in relation to theproject;and
• (e) the monies disbursed and any balance of unspent funds.
• 14.Where thereare unspent fundsupon completion of
• works with respect to a public participation facility,the unspentfundsshall bere-allocated to theimplementation of a project identified under this Act in such a manner as the county executive committee member shall,with the approval of thecountyassembly,determine.
• 15.(1) The officers shall prepare an annual report on thestatus ofpublic finances in therespective county set out thefollowinginformation-
• (a)informationrelatingto theprocurementofservices andworks inrelation to theprojectsin the county;
• (b)a scheduleof the worksrequired tobeundertaken andstatus of theimplementationof theproject;
• (c) the timelines for completion ofspecificphasesof
• the works;
• (d)a description of the assets acquired and the
• liabilities incurredin therespectivefinancial year;
• (e)a description of theprogress made by the County initiatedwith theuseofpublicmoneyallocated by
• Government on the projects and programmes the National Government;
• (f)theviews of the citizens of the county on the effectiveness of the projects and programmes initiated bytheCounty Government;
• (g)an assessment of the economy,efficiency and effectivenessoftheuseofpublicmoneyallocated to the CountyGovernment;

Unspent funds

Annual Reports.

• (h) a description of any complaints made against the institution in respect of public participation,the action take and the period within which the complaintwasaddressed;and
• ? any other information that may be considered as relevant.
• (2) The respective Senator shall cause the annual report to bepublished andpublicized in such othermanner as theSenatormay determine.

PARTII-OVERSIGHTANDPUBLIC PARTICIPATIONPROGRAMMES

• 16.(1) The Senate shall,pursuant to its oversight role
• conferred on it under Article 96 of the Constitution, exercise an oversightrole over thenational government revenue allocated to the County Governments.
• (2)Each Senator shall exercise power of oversight over theirrespective County.
• (3) There shall be openness and accountability over
• the county budget oversight process and the use ofpublic moneywhich shall includepublicparticipation.
• 17.(1) A Senator may facilitate public participation
• through public awareness campaigns in the respective county.
• (2) For the purpose of subsection (1),the Senator shall-
• (a)establish public participation and oversight programmes for the respective county;
• (b) hold public hearings on matters of public interest
• within therespective counties;
• (c)facilitate access to information held by the county
• government;
• (d) engage the communities and interest groups on the formulation of plans for the economic development of the county;
• (e)facilitate the participation of the communities in the engagement with the departments and the county governmentonfinancial matters;

Oversight ofthe CountyRevenue allocationbythe National Government.

Oversight and Public Participation Programmes.

• f)monitor spending patterns of public entities within the county;and
• (g)monitor compliance by the respective county with the Constitution and national legislation onpublic
• finance.
• 18.(1) A Senator shall,in carrying out the oversight roleoverpublicparticipation andoversightrole over the collection,use and management of finances in the respective county,establish an oversight office in the county consisting of such persons as the Senator may consider necessary.
• (2) The Senator may employ such officers not
• exceeding three officers for the purpose of assisting the Senatorincarryingouttheiroversightroleinthecounty.
• (3) The Senator shall not employ a person under subsection(3)unlesssuchperson-
• (a) is a Kenyan citizen;
• (b)has a university degree from an institution
• recognized in Kenya;and
• (c)has at least three years relevant experiencein budget control,audit,monitoring andevaluation.
• (4) TheSenator shall carry out therequired evaluation and mayprepare for circulationwithin the county,a report on thepublicfinancesofthecountyand theparticipationof residents in the decisionmakingprocesswith respect to the public finances in the county.
• (5)TheSenator shallpromotepublicawarenesson the county public finance processes through the usage of availableformsofmedia.
• (6)The county executive committee member shall avail to theSenatorwith all pertinent informationnecessary to carry out theoversightrole under thisAct.
• 19.(1) The county executive committee member and theClerkof therespectivecountyassemblyshallkeepand maintain the information relevant to the allocation of monies,collection of revenue and such other information on the finances of the respective county and shall upon request avail theinformation to amember of thepublic.

Oversight Office.

Roleof the

County Assembly.

• (2) The Clerk of the Senate may provide such logistical support as is necessary for the carrying out ofa successful publicparticipation and oversightexercise.

PARTIII-MISCELLANEOUSPROVISIONS

• 20.(1) The county executive committee member,with the approval of the county assembly,shall makeregulations generallyfor thebetter carrying outof theprovisionsof this Act.
• (2)Notwithstanding the generality of subsection (1), the county executive committee member may make Regulations-
• (a)processesr relatedtothe management and
• implementation of the project in relation toa public participation facility;
• (b)management of the finances allocatedwithrespect toa public participation facility including the receiptand 1disbursement of funds andthe accountability of funds received pursuant to this Act;and
• (C1 maintenance of adequate and accurate records including a system of internal accounts with respect tothe process ofaccountability andthe conductofauditsinrelation to the fundsreceived
• under this Act.

Regulations.

MEMORANDUMOFOBJECTSANDREASONS

The principal object of the Bill is to provide a framework for effective oversightover the countygovernmentby theSenate.

The Constitution ofKenya 2010,created a bicameral parliament to replace the existing unicameral Parliament.Accordingly,the Senate was tasked with oversight over national revenue allocated to the county governments.Moreover,under the constitutional concept of devolution and theprinciples ofpublic finance,the input of the public is required in all executive decision-makingprocesses.

This Bill therefore proposes to provide a mechanism on how oversight over the Countybudgets can be carried out.TheBill therefore gives effect to the Constitutional provisions on oversight, public participation and participatory democracy as enunciated in Articles 96, 174 and 201of theConstitutionrespectively.

The Bill provides for preliminary matters including the short title, objects of the Act and the guiding principles that guide Senatorial oversight.TheBill also designates theroles of the responsible bodies and officersin the oversight andpublicparticipationprocesses.

Statement on the delegation of legislative powers and limitation of fundamentalrightsand freedoms

Clause 20 of the Bill empowers the county executive committee member to make Regulations for the better carrying into effect of the provisions of the proposed law. However,the Bill does not limit fundamentalrightsandfreedoms.

Statementon how the Bill concerns county governments

The Bill seeks to provide a national framework for Senatorial oversight in national government allocations to county governments.The Bill therefore concerns county governments in terms of Article 11o(1)(a) of the Constitution in that it contains provisions that affect the functions andpowers of the countygovernments assetoutin theFourth Schedule to the Constitution.

Statement that the Bill is not a money Bill within the meaning of Article 114of the Constitution.

This is a framework legislation.Any cost relating to Senatorial oversightisalreadyprovidedforin theinstitutionalbudgetsand therefore there are no new structures that are set to be established.TheBill is therefore not a money Bill within the meaning of Article 1 14 of the Constitution.

Datedthe14thFebruary,2024.

LEDAMA OLEKINA, Senator.

KISANGWILLIAM,

Senator.