Kenya’s senators seem to have fundamentally misunderstood their role

Two weeks ago, the Governor of Nairobi was before the Senate to discuss financial irregularities in the county.

Daily Nation characterised the Governor as being “taken to task” for issues related to Ksh10 billion in own revenues. According to the story, the governor questioned the jurisdiction of the Senate, arguing that only the County Assembly has oversight of local revenues.

Responding to this challenge, Senator Paul Njoroge reportedly stated, “Don’t think the hands of the Senate are tied when it comes to a county’s own revenue. If so, why is this matter before the Senate committee?” Of course, it is possible that the senator was misquoted. But assuming this is what he said, what should we make of it?

Aside from the absurdity of the senator’s reasoning — this matter is before us, therefore it should be before us — he failed to address one of the main controversies related to the Senate since 2013: Its role in oversight.

Governor Kidero claimed that the Senate had no role in overseeing county own revenues. Was he right?

The Constitution states that the Senate “exercises oversight over national revenue allocated to the county governments.” Whatever the intention of this clause, it cannot mean that the Senate provides oversight of locally generated revenue by counties. The Senate has interpreted this clause to mean that it oversees how counties use all of their revenue. While there is no way to read this clause as covering county own revenues, does it even cover how counties use national transfers?

This was never intended to be the role of the Senate. In most countries, bodies like the Senate are mainly dedicated to representing the interests of the states, counties or other subnational units from which they are elected. They would be expected to focus on ensuring that counties receive adequate funding and that the national transfers to counties arrive in a timely fashion. Their “oversight” would therefore not be on the use of funds by counties, but on the actual transfer of those funds from the national government to counties.

If the drafters of the Constitution wanted senators to exercise oversight over the use of national funds by counties, they would have said so. Instead, they too said that the first role of the Senate was to “represent the counties” and “protect” their interests.

It is always possible to argue that the “true” interests of the counties are in proper financial management by governors, and that the Senate is therefore correct to step in to play this role. This ignores the fact, raised by Kidero, that there is another institution that has that role.

If the Senate is concerned that county assemblies are not up to the task, it should mainly focus on strengthening them, not usurping their role.

Even if the drafters of the Constitution did intend for the Senate to oversee county use of funds, that would have been a second oversight role, after the first one of overseeing national transfers. It follows that if senators are now reviewing county expenditure, they must have reviewed the flow of funds to counties already.

Yet there is little evidence that the Senate has provided any oversight of national transfers. It is currently impossible to verify when exactly counties receive their transfers from the national government.

There is considerable controversy around this issue, but no government source regularly produces evidence of the exact dates on which counties receive their funding.

Given that this is a potentially significant contributor to the escalation of pending bills in the past couple of years, there is a need for serious oversight.

Likewise, there are major unanswered questions about if, when and how conditional grants are transferred to counties.

In recent years, counties have complained they were not receiving the free maternity grant in a timely manner. In 2015/16, Ksh1 billion of this grant was never spent.
What oversight has the Senate provided to ensure that these funds are actually delivered to counties as intended?

In the socio-economic audit of the Constitution led by the Auditor General, the nature of the Senate was questioned. It was pointed out that in other countries, senators are indirectly elected by the subnational units to represent them, so conflicts with governors do not arise. However, in the United States, as in Kenya, senators are directly elected by the public but it is still rare to see them arguing with governors.

They have understood that their role is to represent their states, both by drawing resources to them and by passing legislation that serves their needs (say, health insurance that benefits all states, including their own).

As Kenyans go to the polls, they should ask whether the candidates for Senator will do their jobs, or will insist rather on a mandate that is not theirs.

Jason Lakin is Kenya country director for the International Budget Partnership. E-mail: [email protected]