2011/2012 Yearbook Governance

Governance

Kenya’s new Constitution has radically changed the structure of government and enhanced the participation of Kenyans in the running of public affairs. The new laws take full effect after the 2013 General Election.

Introduction

Kenya became independent in 1963. President Mwai Kibaki, the third Head of State and Government since then, ends his two five year-year terms after the March 2013 General Election, the first under the new Constitution. The nation’s founding President, Mzee Jomo Kenyatta, was in office between 1963 and 1978. His successor, President Daniel arap Moi left office in 2002.

The independence Constitution, negotiated between nationalists and the British government, was repealed and a new one enacted in a referendum on August 4, 2010. The Government spent Sh15 billion on the constitutional review process. The new Constitution has created institutions that have radically changed the structure of government. When the new laws take full effect after the 2013 polls, Kenya will adopt a devolved system with an elected President, county government, county assemblies, governors and senators. The Executive and the Legislature will be separated, where members of the Cabinet will no longer be Members of Parliament.

Government structure

Power is exercised through three main organs: The Executive, Legislature  and Judiciary. In the old Constitution, the Legislature, which makes laws, had members of the Executive – the President, the Vice-President, the Prime Minister, Cabinet ministers, assistant ministers and the Attorney-General.

Executive

The National Accord and Reconciliation Act of 2008 gave birth to the Grand Coalition Government formed by the two dominant parties in the 2007 disputed polls – the Party of National Unity (PNU) Coalition and the Orange Democratic Movement (ODM). The Accord created the position of Prime Minister, the leader of the party with a majority in Parliament, and two deputies from each side of the Coalition partners.

In the new Constitution (Section 129-158), the executive comprises the President, the Deputy President and the Cabinet and shall reflect the regional and ethnic diversity of Kenya.The office of the Vice-President has been renamed Deputy President, while the PM’s and assistant ministers’ positions have been scrapped. Cabinet Ministers will be called Cabinet Secretaries.

Presidency

In the new Constitution, like in the old, the President remains the Head of State and Government and exercises executive authority with the help of the Deputy President and Cabinet Secretaries. The President is also the Commander-in-Chief of the Kenya Defence Forces and the chairperson  of the National Security Council. The President – as a symbol of national unity – shall hold no other State or public office.

Functions of the President

Like in the old Constitution, the Presi- dent shall address the first session of a newly-elected Parliament. But unlike in the past, he/she must make a speech at a special session of Parliament once a year and has the option to address Parliament whenever the need arises. The country’s chief executive will, once every year, report, in an address to the nation, progress made in the attainment of national values (as referred to in Article 10 of the new Constitution). Details of such information will be published in the Kenya Gazette.

The Head of State will submit a report for debate to Parliament on the progress made in fulfilling Kenya’s international obligation. The President will nominate and, with the approval of Parliament, appoint Cabinet Secretaries, the Attorney-General, the Secretary to the Cabinet, Principal Secretaries (formerly Permanent Secretaries), high commissioners, ambassadors, and diplomatic and consular representatives.

The President will chair Cabinet meetings, direct and coordinate functions of ministries and Government departments. And, with recommendations of the Public Service Commission, the Head of State has powers to establish offices in the Public Service. The President will receive foreign diplomatic and consular representatives, confer honours, declare a state of emergency; and with the approval of Parliament, declare war.

If petitioned, the Head of State can exercise the power of mercy with the advice of the Advisory Committee by granting free or conditional pardon to a convict, postpone the carrying out of a punishment, substitute a less severe form of punishment; or remit all or part of the punishment. The Advisory Committee on the Power of Mercy will comprise the Attorney-General, the Cabinet Secretary responsible for correctional services and at least five other members, none of whom may be a State officer or in public service.

A decision of the President, in the performance of any function under the Constitution, shall be in writing and shall bear the seal and signature of the President.

Election of the President

The election of the President will be held on the same day as the General Election of Members of Parliament on the second Tuesday in August of every fifth year. If the President-elect dies before assuming office, the Deputy President-elect (who was the President’s running mate in the election) will be sworn in as acting President and a fresh election held within 60 days of the death of the President-elect.

If the Deputy President-elect dies before assuming office, the office of the Deputy President will be declared vacant when the President takes office. If the President-elect and the Deputy President-elect die before assuming office, the Speaker of the National Assembly will act as President and a fresh presidential election conducted within 60 days after the second death.

The swearing in of the President-elect must be in public in the presence of the Chief Justice or, in the absence of the Chief Justice, the Deputy Chief Justice. This will be on the first Tuesday 14 days after the announcement of presidential election results, if no petition has been filed. If a petition has been filed, the swearing in will be seven days after the court declares the election valid.

President’s term of office

The President shall hold office for a term beginning on the swearing in date and ending when another President is elected and sworn in. A President shall not hold office for more than two five- year terms.

Removal of President

A Member of Parliament, supported by at least 25 per cent of all members, may move a motion seeking to investigate the President’s physical or mental capacity to perform the functions of the office. If it is supported by a majority of all the MPs, the Speaker informs the Chief Justice of the resolution within two days.

Within seven days after receiving the notice, the Chief Justice will appoint a tribunal (three persons nominated by the body responsible for regulating the professional practice of doctors, an advocate of the High Court nominated by the body which regulates the practice of advocates and one person nominated by the President). If the Chief Justice is unable to appoint a tribunal, the Deputy Chief Justice does so.

The tribunal inquires into the matter and, within 14 days of the appointment, reports to the Chief Justice and to the Speaker of the National Assembly. The report of the tribunal  is then tabled in Parliament for debate within seven days.

The report of the tribunal is final and not subject to appeal. If the tribunal reports that the President is capable of performing the functions  of the office, the Speaker informs Parliament. If the tribunal reports that the President is incapable, Parliament votes and if the majority of all MPs ratify it, the President ceases to hold office.

To remove the President by impeachment, an MP, supported by  at least a third of all the members, may move a motion on the grounds that the President has violated the Constitution, committed a crime under national or international law or for gross misconduct. If the motion is supported by at least two-thirds of MPs, the Speaker informs his or her Senate counterpart within two days.

Within seven days, the Senate Speaker convenes the Senate to hear charges against the President. The Senate then appoints an 11-member special committee to investigate the matter and report within 10 days whether the allegations have been substantiated. The President has a right to appear before the special committee.

If the allegations have not been substantiated, the matter ends there. But if they are, the Senate votes on the impeachment charges after giving the President an opportunity to be heard. If at least two-thirds of the Senate vote to uphold any impeachment charge, the President ceases to hold office.

Vacancy in the Presidency

This happens if: the President dies, resigns in a letter addressed to the Speaker of the National Assembly, is impeached or removed on the grounds of mental or physical incapacity. When this happens, the Deputy President assumes office of President for the remainder of the term of the President. But if the office of the Deputy President is vacant, the Speaker of the National Assembly acts in that capacity and an election is held within 60 days.

If the Deputy President assumes office in this manner, the person elected shall be deemed to have  served a full term as President if, at the date of assuming office, more than two and a half years remained before the next regularly scheduled election under Article 136 (2)(a). If this is not the case, the new holder of the office will not be deemed to have served a full term as President.

Permanent Secretary to OP  

Chapter Two of the old Constitution gave the President the power to appoint Permanent Secretaries. But the only Permanent Secretary’s position the Constitution establishes is that of the Office of the President, who is also the Secretary to the Cabinet. In the new Constitution, the administrative arrangements of the Cabinet will be the responsibility of the Secretary to the Cabinet (Article 154).

Today, ministries have Permanent Secretaries. In the new Constitution, however, each Government department will be run by a Principal Secretary (Article 155). These positions will be held by nominees of the President picked from candidates recommended by the Public Service Commission and approved by Parliament.

Cabinet

Currently, the Cabinet consists of the President, Vice-President, Prime Minister, the two deputy Prime Ministers and other ministers. The new Constitution, however, demands that after the next General Election, the Cabinet shall be made up of the President, the Deputy President, the Attorney-General and not less than 14 and not more than 22 Cabinet Secretaries. The President will nominate and, with the approval of Parliament, appoint Cabinet Secretaries who will not be MPs (Article 152(1)).

Cabinet Secretariat

The Cabinet Secretariat has been in existence since colonial days when it was headed by an Administrative Secretary responsible for taking minutes of the Legislative Council and Legislative Committees. The Administrative Secretary also served as the Estimates Clerk and received, for discussion and printing, the annual budget estimates. When a full Clerk to the Legislative Council was appointed in 1952, the Administrative Secretary’s responsibility was to manage the affairs of the Executive Council and later the Council  of Ministers.

This office later evolved into the Cabinet Office, which has 11 departments.

The Secretariat’s functions are:-

  1. Store and maintain Cabinet documents.
  2. Prepare the agenda for Cabinet meetings.
  3. Executive briefs of Cabinet memoranda.
  4. Monitor Cabinet committee meetings.
  5. Disseminate Cabinet documents to ministers and permanent secretaries.
  6. Disseminate Cabinet decisions to ministers.
  7. Monitor implementation of Cabinet decisions.

State House

Built in 1907 and known as Government House, this was the official residence of the Governor when Kenya was a British colony. But the Governor conducted official functions at the old Provincial Commissioner’s office (now a national monument) next to Nyayo House, Nairobi. After independence, Government House was renamed State House.

Although it remained the official residence of the Head of State, in practice it became an administrative and operational office. It also occasionally provided accommodation to visiting State guests and receptions on national days. This scenario has prevailed and first President Jomo Kenyatta and his successor, President Daniel Moi, preferred a private residence as opposed to living in State House. But President Mwai Kibaki changed the trend and made State House his residence. He has largely worked from there, although he also works from the Office of the President at Harambee House. State House Nairobi stands on a 300-acre property, three kilometres from the city centre. There are other State Houses and Lodges in various parts of  the country for the President when on tours.

State Houses are in Mombasa and Nakuru, while Lodges are in Sagana, Eldoret, Kisumu and Kakamega. The accounting officer at State House is the Comptroller of the House.

Office of Public Communications

Its functions are to:-

  1. Research on public opinion on Government.
  2. Communicate Government policies and programmes to the public
  3. Anticipate public concerns and respond pro-actively.
  4. Ensure good working relationship among the Government, media and the public
  5. Publish journals to improve Government image
  6. Coordinate international and local marketing of the country

Directorate of e-Government

  1. Facilitates access to online, e-mail, web services and Government domain name administration
  2. Promotes infrastructure, technical inter-departmental operations and secures networks across ministerial or departmental jurisdictions.
  3. Provides technological advice for Government electronic service delivery.
  4. Coordinates the development of ICT to ensure that the Government obtains value for money.

National Economic and Social Council

It is the think-tank that identifies opportunities for the country and the Government. It takes advantage of opportunities and minimises threats to the performance of the Government. Since its inauguration in January 2005, the Council has advised the Government on policy measures aimed at accelerating the pace of national development. Recommendations by the Council which have been implemented include:

  1. The launch of the Vision 2030 on June 10, 2008;
  2. Action on building a positive image for Kenya, locally and internationally, that led to establishment of the Brand Kenya Board;
  3. Initiation of Integrated Employment Creation that led to establishment of the Youth Fund and Kazi Kwa Vijana; and
  4. Advised on the reconstitution of the Monetary Policy Advisory Committee of Central Bank of Kenya.
  5. Advised and co-sponsored the introduction of Infrastructure Bonds in Kenya as an alternative means to finance Infrastructure.

The Council has also made other recommendations, which are at various stages of implementation. They include:

  1. Value addition on tea, cotton and textiles, hides, skins and leather and leather products, nuts and edible oils.
  2. Advising government to embrace economic diplomacy in its foreign policy.
  3. Proposals for accessible and affordable health care financing strategy.
  4. Recommended the implementation of an Integrated Population Registration System (IPRS).
  5. Advised the transformation of pension and retirement savings into long-term funds for financing investment.
  6. Development of a policy frame- work and enabling laws to manage, protect and the use of unclaimed assets.
  7. Harmonisation and utilisation of all devolved funds.
  8. Comprehensive geological survey to determine the mineral potential in the country.
  9. Strategies to transform Kenya into a 24-hour economy.

Government Vehicle Check Unit

It deals with the control and inspection of Government vehicles to ensure that they are used for the intended purposes. It releases Government vehicles impounded by the Check Unit after consulting the surcharge handling unit at the Office of the President. If a vehicle is impounded, expenses are added on to the surcharge and included in the payment voucher.

Kenya Southern Sudan Liaison Office

It was established in 2005 and mandated to:-

  1. Coordinate Kenya’s support and participation in the reconstruction of Southern Sudan
  2. Coordinate development activities between Southern Sudan and Kenya.
  3. Support Kenyan investors by providing vital information on opportunities, requirements, risks and security in Southern Sudan

Former Presidents Office

It was established by an Act of Parliament in 2003 after Kenya’s independence party was defeated and President Kibaki’s NARC assumed office. The Former Presidents Office has 26 professional staff. They include a private secretary and press secretary.

Policy Analysis Unit

Its functions are to:-

  1. Analyse reports from the public and private sectors.
  2. Prepare briefs for the secretary to the Cabinet Office and Head of the Public Service
  3. Prepare papers and briefs on public policy
  4. Monitor the implementation of presidential directives, pronouncements and cabinet office decisions.
  5. Initiate policy research and analysis.

Aids Control Unit

Its mandate is to mainstream HIV/Aids into Cabinet Office policies and programmes. Its aim is for Kenya to have a vibrant society, free from HIV/Aids and to combat the scourge through promotion of behavior change, education, information dissemination, and to empower communities to participate in social, cultural and economic develop- ment.

Since its formation, the Cabinet Office Aids Control Unit has conducted several activities to combat HIV/Aids  in line with the Kenya National Aids strategic plan. They include behaviour change programmes for staff, procurement of Information, Education and Communication (IEC) and Information Communication Technology (ICT) materials such as T-shirts and caps and TV, VCD, video cassettes and female and male condom dispensers. The unit has trained counselors courtesy of NASCOP and plans to launch VCT services.

Vice-Presidency

The new Constitution has renamed the holder of this position as Deputy President who – just like in the old Law – is the principal assistant of the President and deputises in the execution of presidential functions. Currently, the Vice- President is Mr. Kalonzo Musyoka who is also the Minister for Home Affairs. The Deputy President performs functions conferred by the Constitution (in Article 147) and also as the President may assign. When the President is absent or is temporarily incapacitated, the Deputy President acts as the President.

Election of Deputy President

Each candidate in a presidential election nominates a person as a candidate for Deputy President. The Independent Electoral and Boundaries Commission will declare the candidate nominated by the President to be elected as the Deputy President.

The swearing in of the Deputy President-elect will be in public and before the Chief Justice or the Deputy Chief Justice. He or she cannot hold office for more than two five-year terms. If the Deputy President resigns, it should be in writing in a letter addressed to the President.

Vacancy in Deputy President’s office

Within 14 days after a vacancy arises (Article 149), the President nominates a person to fill it, and the National Assembly votes on it within 60 days. The person so picked will be deemed to have served a full term if, at the  date on which the person assumed office, more than two and a half years remain before the next election.

Removal of Deputy President

This, in line with Article 150 of the Constitution, can be on the ground of physical or mental incapacity or impeachment for gross violation of the Constitution, committing a crime under national or international law or gross misconduct. The procedures similar to those for the removal of the President (Articles 144 and 145) apply

Prime Minister’s office

The new Constitution scraps this position and those of the two deputy prime ministers. Though Kenya had the Prime Minister’s position immediately after independence in 1963, it was abolished in 1964 and replaced with the President. It was created, again, through the National Accord and Reconciliation Act signed in February 2008 following the disputed 2007 election.

The President and Prime Minister consult on key matters of Government, including appointments of key public officials. The Prime Minister’s key functions are to coordinate and supervise the execution of Government affairs, including those of ministries. There are two deputy premiers.

Efficiency  Monitoring  Unit

Established in 1991, its mandate is to enhance efficiency in implementation of Government development programmes and projects and also to promote accountability and transparency. Over time, EMU has also addressed corruption in the Public Service, and has been transformed into a rapid deployment service of Government.

Inspectorate of State Corporations

It has the following functions:-

  1. Advise the Government on all matters affecting the effective running of state corporations;
  2. Report periodically to the relevant arms of Government on management practices within any state corporation;
  3. Report to the Controller and Audi- tor-General any cases where moneys appropriated by Parliament are not being applied by state corporations for the right purposes;
  4. Carry out management audits in state corporations;
  5. Conduct special investigations of any state corporation on behalf of the State Corporations Advisory Committee and the Controller and Auditor-General;
  6. Surcharge any person who incurs or authorizes irregular expenditure of state corporation funds or any person who, through negligence or misconduct causes loss of funds to a state corporation;
  7. Evaluate actual results of operations and management on the basis of the agreed performance targets;
  8. Determine methods for evaluating performance on the basis of specified and agreed targets;
  9. Develop evaluation criteria; and
  10. Advise on the administration of performance contracts.

Public Sector Reforms and Performance Contracting

The implementation of Performance Contracting in Kenya has yielded significant benefits to the country. Some of the positive impacts of performance contracting noted— including in prior reviews and documents such as the Performance Contracting Review report (2010), the Sector Performance Standards (2010) and the National Customer Satisfaction Survey Report (2009) — include:

  • Performance Contract has refocused ministries, departments and agencies on realising their core mandates;
  • Improved performance g. improved profitability levels, particularly in the commercial State corporations; improvements in the performance of the public service, particularly through the introduction of citizen service delivery charters, which refocused ministries, departments and agencies on identifying and delivering against service standards; (\
  • Improvements in levels of transparency and accountability where obligations of all public agencies are included in the publicly signed performance contracts and in most cases uploaded on the agencies’ website for stakeholder reference.

Considerable progress has been realised in:

  • Evolution of the Performance Contract and Evaluation System to adapt to emerging issues e.g. expansion of indicators to reflect some of the overarching national concerns, such as corruption; (ii)
  • Implementation of one of the most extensive system of performance contracts expanding from a pilot of 16 state corporations to 460 Ministries, Departments, State Corporations, Local Authorities and Tertiary Institutions;
  • Obtaining political support for the system and involvement of the President, the Prime Minister and the Cabinet Ministers.

Office of Deputy Prime Minister

The new Constitution abolishes the two positions which are creations of the law that established the Prime Minister’s office – National Accord and Reconciliation Act. The two deputy premiers are appointed by the President. Each of the coalition partners – Party of National Unity and Orange Democratic Movement – provides a deputy premier: PNU has Uhuru Kenyatta and ODM Musalia Mudavadi.