MPs question legality of county bursaries

Kirinyaga Governor Ann Waiguru during disbursement of bursaries to students. [File, Standard]

The National Assembly Departmental Committee on Regional Development has raised concerns over the legality, funding mechanisms, and constitutional basis of county bursaries.

This is after it emerged that 34 county governments have signed an agreement with the Ministry of Education to continue supporting bursary and scholarship programmes. 

According to the Intergovernmental Relations Technical Committee (IGRTC), the 34 counties signed Intergovernmental Partnership Agreements (IPAs) with the ministry. 

Appearing before the committee chaired by Sigor MP Peter Lokachapong, IGRTC chairman Kithinji Kiragu, Director of Legal Services Sophie Amutavy and Deputy Director of Legal Services Joy Bigambo, briefed legislators on the implementation of the agreements during sessions held at the Pride Inn Paradise Convention Centre in Mombasa County over the weekend.

The agreements were introduced following a January 2025 directive by the Office of the Controller of Budget (CoB) requiring counties to formalise education support programmes through structured intergovernmental frameworks.

According to IGRTC, agreements have been prepared for 36 counties, with 34 already signing and operationalising the pacts.

The MPs were informed that the CoB has received funding requisitions from 31 counties and approved disbursements to 30 counties.

The agency further noted that the 12th Intergovernmental Summit directed it to conclude all pending agreements within two weeks.

The committee further heard that counties including Nairobi, Mombasa, Nakuru, Kisumu, Mandera, Kwale and Kilifi have already signed the agreements.

IGRTC also clarified that earlier references to the "limited transfer" of functions in some agreements had been corrected, insisting that the current arrangements are anchored on Article 189 of the Constitution, which promotes cooperation between the two levels of government, rather than Article 187 on the transfer of functions.

Despite the progress, MPs questioned whether the agreements were legally sound and whether counties were being allowed to spend resources on functions not expressly assigned to them under the Constitution.

Lokachapong challenged IGRTC to clearly define the nature of education support, arguing that bursaries and scholarships had traditionally been viewed as social protection interventions rather than devolved functions.

"If education support is a function, then resources must follow that function. Counties were allocated funds for devolved functions, and education support for secondary schools and universities is not among them. Are we therefore legitimising the use of county resources for functions that are not constitutionally assigned to counties?" He posed.

He also questioned whether the absence of a specific legal framework governing the agreements rendered them unconstitutional, noting that even IGRTC's legal advisers had acknowledged the lack of an explicit enabling law.

Emurua Dikirr MP David Kipsang Keter called for measures to ensure all counties participate in the programme, arguing that thousands of needy learners risk missing out on bursary support where county governments decline to sign the agreements.

"We may need legislation compelling every county government to sign these agreements because bursaries are critical to our children's education," he said. 

Other members sought clarification on the voluntary nature of the agreements and the apparent discrepancies in the number of participating counties.

Embu Woman Rep Pamela Njoki Njeru questioned the criteria used to determine participation and sought guidance on whether counties that fail to sign before the end of the financial year would lose access to funding.

Kabuchai MP Majimbo Kalasinga urged IGRTC to provide a comprehensive list of all counties that have signed and challenged the continued reliance on Article 189 as the primary legal basis for the arrangements.

He further raised concerns about development projects implemented by the national government within county jurisdictions, including market construction, and questioned whether similar agreements should be mandatory in such cases.

Matungu MP Oscar Nabulindo warned against attempts to sidestep constitutional safeguards, arguing that the Office of the Controller of the Budget had declared education support a national government function.

"The Controller of the Budget is a constitutional office mandated to guide public expenditure. If that office has pronounced itself on this matter, are we right to use agreements to create an alternative interpretation?" He posed.

Banisa MP Hassan Adan Ali highlighted the practical challenges faced by counties such as Mandera, which has spent substantial amounts on bursaries over the years.

Ali said that while the programme had benefited many families, it had also diverted resources from other key sectors such as water, roads, and infrastructure development.

"We spend about Sh370 million annually on bursaries. That money comes from resources originally intended for development projects. The question is whether there is a sustainable and lawful funding model under these agreements," he said.

In response, IGRTC chairman Kiragu acknowledged existing policy and legal gaps, particularly the absence of a comprehensive framework to operationalise Article 189. 

He informed the committee that a Legal Sector Working Group bringing together key institutions, including Parliament, the Office of the Attorney General, the National Treasury, the Controller of Budget and the Kenya Law Reform Commission, had been established to develop a more structured framework for intergovernmental cooperation.

Mr Kithinji said that while there is no specific legislation dedicated to Article 189 agreements, both the Constitution and the Intergovernmental Relations Act provide sufficient legal grounding for cooperation between national and county governments.

However, lawmakers remained unconvinced, with members insisting on clearer legal guidance and a sustainable funding framework.

Lokachapong directed IGRTC to submit the full list of counties that have signed the agreements and provide further clarification on the legal and financial obligations of both levels of government. 

The discussions underscored the growing debate over the role of counties in education financing, even as thousands of students across the country continue to rely on bursaries and scholarships for access to education.