County Oversight Accountability Bill violates provisions of the Constitution
National
By
Irene Githinji
| Sep 30, 2026
Attempts to grant individual Senators direct oversight powers and independent county offices have been opposed, with concerns that the move violates the Constitution and risks crippling county operations.
In their submissions to the National Assembly Committee on Regional Development, state institutions including the Office of the Attorney-General and the State Law Office cautioned that the proposed legislation attempts to transform an institutional power reserved for the Senate as a collective House into personalised political authority.
The proposed law, the County Oversight and Accountability Bill (Senate Bill No 3 of 2024) sponsored by Narok Senator Ledama Olekina, seeks to give effect to Article 96(1) and (3) of the Constitution by enhancing public financial accountability by county governments and establishing a framework for public participation and oversight of revenue allocated to county governments by the national government.
It also intends to promote accountability and transparency in the acquisition and disposal of assets, and the incurring of liabilities by county governments, and further create a Senate-led oversight and public-participation programme.
The Bill which was passed by the Senate on July 21 and transmitted to the National Assembly.
The Council of Governors (CoG) opposed the bill, saying the matters it seeks to address are already adequately provided for under the Constitution and the existing statutory framework, including the Public Finance Management Act and the County Governments Act.
The CoG Director of Committees Kizito Wangalwa, noted that the Bill creates unnecessary duplication and risks undermining the constitutional allocation of functions, the separation of powers and the established framework for county oversight and citizen-centred accountability.
“The Council appreciates the intent of the Bill in as far as institutionalising public participation and to deepen public financial accountability at the county level. However, having reviewed the Bill, the Council on behalf of the 47 County Governments opposes the Bill in its entirety. The Council urges the National Assembly not to proceed with the Bill and to withdraw it from further consideration,” the Council submitted.
The Council made the submissions when it appeared before the National Assembly Committee on Regional Integration yesterday.
Some of the reasons the Council is opposed to the Bill is that it duplicates existing laws, with Wangalwa saying that public participation is already extensively provided for in Part VIII of the County Governments Act, Sections 87 and 92, town halls, budget fora, notice boards and citizen fora at the county and decentralised units.
But the CoG has stated the Bill will create a parallel structure and, should the Public Participation Bill 2025 be enacted, would risk duplicative and conflicting obligations on counties.
The Council has also said the Senator-led oversight architecture is unconstitutional.
The Council noted that clauses 16(2), 17 and 18 create a Senator-led oversight and public participation programme, including establishment of oversight offices in each county and officers employed by individual Senators.
They cited a Supreme Court ruling which stated that Senators cannot oversee county governments at the county level, as that role is reserved for the County Assembly under Article 185(3).
The Court further held that legislative overreach that fails to respect the functional and institutional integrity of county governments offends Article 189(1) of the Constitution, with the Council stating that the clauses are therefore unconstitutional.
The CoG has also told the committee that the Bill mischaracteries the equitable share of revenue as money allocated by the National Government.
“The Council notes that clauses 15(1)(e) and 16(1) of the Bill refer to public money and revenue allocated to county governments by the national government. Counties receive an equitable share of revenue raised nationally, which is a constitutional entitlement under Articles 202 and 203 of the Constitution. The Bill's framing is therefore constitutionally incorrect,” Wangalwa explained.
Other issues that the CoG has pointed out is that the Bill creates an unfunded mandate.
According to the Council, the Bill establishes a framework for the construction, renovation and maintenance of public participation facilities in the wards, and places planning, reporting and information duties on county executives under clauses 7, 8, 13 and 18(6), without identifying a funding mechanism.
“The Council's position, supported by reports of the Controller of Budget, is that counties require additional, dedicated funding to finance these facilities and programmes if they become necessary. The Bill is misaligned with the Counties' planning and resource allocation framework,” Wangalwa said.
He said the county budgetary allocations are guided by long-term, medium-term and short-term plans, including the County Integrated Development Plans (CIDPs) and Annual Development Plans (ADPs).
To this end, the proposed infrastructure projects may not align with these plans and risk creating funding gaps since the Bill proposes public participation and project identification processes that are inconsistent with existing plans.
Chief State Council from the Office of the Attorney General, Marion Muriithia, made reference to Clauses 16 to 18, which speak to oversight under Article 96(3) vested in the Senate as a House, not in individual Senators.
She said Article 96 (3) of the Constitution confers oversight over national revenue allocated to county governments on the Senate as an institution.
“That function is exercised through the House and its committees pursuant to Articles 124 and 125 of the Constitution, and the power to summon persons and compel evidence resides in the House and its committees, not in an individual member,” she explains.
Muriithia also stated Clause 16(2) provides that each Senator shall exercise the power of oversight over their respective county, and clauses 17 and 18 convert that institutional function into a personal one.
Clause 17(2)(b), which contemplates an individual Senator holding public hearings on matters of public interest within their county, has no constitutional anchorage.
But she said the scheme is also unworkable in respect of the 20 nominated Senators under Article 98(1)(b) to (d) of the Constitution, who have no respective county.
She also explained that Clause 18(1) extends Senatorial oversight to the collection, use and management of finances in the respective county, which would include revenue raised by the county under Article 209(3) of the Constitution, while Article 96(3) is confined to national revenue allocated to counties.
“Oversight of the county executive, including in respect of own-source revenue, is vested in the county assembly under Article 185(3) of the Constitution. To that extent, the provision is ultra vires Article 96(3) of the Constitution,” she said.
On the doctrine of separation of powers, she said Clause 18(1) to (3) permits a Senator, acting individually, to establish an oversight office in the county and to employ up to three officers to assist in carrying out oversight.
The structure is in substance indistinguishable from the Constituencies Development Fund model, which culminated in the Supreme Court judgment of 2022.
The judgment held that a scheme directed at a service-delivery or administrative mandate is constitutionally compliant only if structured so as not to entangle members of a legislative House in that mandate, and that such functions properly belong within the structures of the county executive or the national executive.
“An oversight office staffed by persons personally recruited by, and answerable to, an individual Senator entangles a member of a legislative House in recruitment, administration and on-the-ground monitoring that belong to institutions and not to an individual office-holder,” the office of the Attorney General explained.
Similarly, she noted that under Article 127(6)(a) of the Constitution, the staff of Parliament are appointed by the Parliamentary Service Commission. A Senator has no capacity to employ public officers personally. Clause 18(3) prescribes minimum qualifications but provides no competitive, merit-based recruitment process.
The office of the Attorney General has also noted that this is a money bill.
Muriithia explained that the memorandum of objects and reasons states no new structures are established and the cost of Senatorial oversight is already provided for in institutional budgets.
“Clause 18 establishes an oversight office in each of the 47 counties, with up to 141 officers in aggregate, and Clause 19(2) commits Senate resources to logistical support. A bill that imposes a charge on public funds is a money bill within the meaning of Article 114(3) of the Constitution, with the attendant procedural consequences,” she said.