Governors and senators' rivalry put to an end after court verdict

Council of Governors chairperson Anne Waiguru (center) flanked by Embu governor Cecily Mbarire (left) and Bungoma Governor Ken Lusaka addressing the press during the Governors and Deputy Governor's retreat in Naivasha on October 13, 2022. [Kipsang Joseph, Standard]

This week the Supreme Court had its say on the contested issue of the role of the Senate in oversight of counties and in particular the summoning of governors by the senators.

The matter arose after several governors, including then Kakamega's Wycliffe Oparanya and Murang'a's Mwangi wa Iria refused to obey summons to appear before the Senate Public Accounts Committee.

At some point, the Senate even attempted to get Governor Oparanya sent to jail for contempt. The push and pull between the Senate and governors has left many Kenyans perplexed for the issue looks quite innocuous. In an ideal world, there should be no problem with a governor being required to appear before the Senate to respond to issues relating to their county. In any event, Parliament has general powers to "summon any person who has information" that may assist the House reach an informed decision.

It would be preposterous to adopt a position that exempts any public official from appearing before Parliament by virtue of their position. The challenge in this situation is however a political one, and arises out of our constitutional design where senators and governors arise from the same political pool and the former tend to be political competitors of governors.

Governors perceive senators using the Senate summons to obtain political advantage and, on several occasions, there was no doubt that what was at play was not the AG's report but local politics. No one can forget the rivalry between Oparanya and Senator Boni Khalwale or Meru's Kiraitu Murungi and Governor Peter Munya (Kiraitu successfully overthrew Munya in the subsequent election) playing out in the Senate.

A significant number of senators have indeed used their Senate seat as a launching pad for the governor's mansion. In view of our constitutional design there is nothing that can be done to resolve this aspect of the issue. But at a technical level there are legitimate concerns that while the Senate's power to summon county officials is legitimate, it has been applied at the wrong time in the oversight cycle and on the wrong issues to the detriment of county assemblies who have the primary power to oversight County Executives.

It is MCAs who have first-hand knowledge of the goings on at the county and to whom citizens have regular direct dealings with and therefore most suited to raising these issues with the county executives to account in the first instance.

The Senate's role should be holding county executives accountable at a macro level, including resolving broad policy issues or dealing with residual issues that assemblies were unable to deal with. It cannot be the role of the Senate to inquire on per-diem surrenders or documentation of micro tenders at the county; that is a role best left to county assemblies.

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The Senate should either carry out its role on the basis of the County Assemblies Oversight Report or require the Auditor General to prepare two separate reports for the respective Chambers; a micro audit one for the assemblies and a macro one dealing with broad audit issues for the Senate.

When this matter was previously decided by the courts, some have added confusion to the matter. At some point, the High Court even made a distinction on respective roles of both Chambers on the basis of the source of revenue; determining that the Senate should only deal with nationally allocated revenue.

As the Supreme Court correctly decided, this was impossible as the expenditure by the county executive was not disaggregated on the basis of revenue source, and it would be impossible to oversight revenue separately. While correctly deciding that governors could be summoned by the Senate, the Supreme Court also correctly decided that the county assemblies were the initial organ of oversight over the county executives.

The court however failed to determine the contours of such oversight comprehensively leaving the issue to still be subject to interpretation of the Senate and therefore retaining some confusion. The Supreme Court decision strengthens the county assemblies' role as the principal organ of county oversight. Hopefully, this decision will reduce the political drama that has sometimes accompanied the Senate's use of its powers.