Article 180 of the Constitution of Kenya

(d) is convicted of an offence punishable by imprisonment for at least twelve months; or (e) is removed from office under this Constitution. (2) If a vacancy occurs in the office of county governor, the deputy county governor shall assume office as county governor for the remainder of the term of the county governor. (3) If a person assumes office as county governor under clause (2), the person shall be deemed for the purposes of Article 180 (7)— (a) to have served a full term as county governor if, at the date on which the person assumed office, more than two and a half years remain before the date of the next regularly scheduled election under Article 180 (1); or (b) not to have served a term of office as county governor, in any other case. (4) If a vacancy occurs in the office of county governor and that of deputy county governor, or if the deputy county governor is unable to act, the speaker of the county assembly shall act as county governor. (5) If a vacancy occurs in the circumstances contemplated by clause (4), an election to the office of county governor shall be held within sixty days after the speaker assumes the office of county governor. (6) A person who assumes the office of county governor under this Article shall, unless otherwise removed from office under this Constitution, hold office until the newly elected county governor assumes office following the next election held under Article 180 (1). Functions of county executive committees 183. (1) A county executive committee shall— (a) implement county legislation; (b) implement, within the county, national legislation to the extent that the legislation so requires; 110 Constitution of Kenya, 2010 (c) manage and coordinate the functions of the county administration and its departments; and (d) perform any other functions conferred on it by this Constitution or national legislation. (2) A county executive committee may prepare proposed legislation for consideration by the county assembly. (3) The county executive committee shall provide the county assembly with full and regular reports on matters relating to the county. Urban areas and cities. 184. (1) National legislation shall provide for the governance and management of urban areas and cities and shall, in particular— (a) establish criteria for classifying areas as urban areas and cities, (b) establish the principles of governance and management of urban areas and cities; and (c) provide for participation by residents in the governance of urban areas and cities. (2) National legislation contemplated in clause (1) may include mechanisms for identifying different categories of urban areas and cities, and for their governance. Legislative authority of county assemblies. 185. (1) The legislative authority of a county is vested in, and exercised by, its county assembly. (2) A county assembly may make any laws that are necessary for, or incidental to, the effective performance of the functions and exercise of the powers of the county government under the Fourth Schedule. (3) A county assembly, while respecting the principle of the separation of powers, may exercise oversight over the county executive committee and any other county executive organs. (4) A county assembly may receive and approve plans and policies for— (a) the management and exploitation of the county’s resources; and111 Constitution of Kenya, 2010 (b) the development and management of its infrastructure and institutions. PART 3—FUNCTIONS AND POWERS OF COUNTY GOVERNMENTS Respective functions and powers of national and county governments. 186. (1) Except as otherwise provided by this Constitution, the functions and powers of the national government and the county governments, respectively, are as set out in the Fourth Schedule. (2) A function or power that is conferred on more than one level of government is a function or power within the concurrent jurisdiction of each of those levels of government. (3) A function or power not assigned by this Constitution or national legislation to a county is a function or power of the national government. (4) For greater certainty, Parliament may legislate for the Republic on any matter. Transfer of functions and powers between levels of government. 187. (1) A function or power of government at one level may be transferred to a government at the other level by agreement between the governments if— (a) the function or power would be more effectively performed or exercised by the receiving government; and (b) the transfer of the function or power is not prohibited by the legislation under which it is to be performed or exercised. (2) If a function or power is transferred from a government at one level to a government at the other level— (a) arrangements shall be put in place to ensure that the resources necessary for the performance of the function or exercise of the power are transferred; and (b) constitutional responsibility for the performance of the function or exercise of the power shall remain with the government to which it is assigned by the Fourth Schedule.112 Constitution of Kenya, 2010 PART 4—THE BOUNDARIES OF COUNTIES Boundaries of counties. 188. (1) The boundaries of a county may be altered only by a resolution— (a) recommended by an independent commission set up for that purpose by Parliament; and (b) passed by— (i)the National Assembly, with the support of at least two-thirds of all of the members of the Assembly; and (ii) the Senate, with the support of at least two-thirds of all of the county delegations. (2) The boundaries of a county may be altered to take into account— (a) population density and demographic trends; (b) physical and human infrastructure; (c) historical and cultural ties; (d) the cost of administration; (e) the views of the communities affected; (f) the objects of devolution of government; and (g) geographical features. PART 5—RELATIONSHIPS BETWEEN GOVERNMENTS Cooperation between national and county governments. 189. (1) Government at either level shall— (a) perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and, in the case of county government, within the county level; (b) assist, support and consult and, as appropriate, implement the legislation of the other level of government; and (c) liaise with government at the other level for the purpose of 113 Constitution of Kenya, 2010 exchanging information, coordinating policies and administration and enhancing capacity. (2) Government at each level, and different governments at the county level, shall co-operate in the performance of functions and exercise of powers and, for that purpose, may set up joint committees and joint authorities. (3) In any dispute between governments, the governments shall make every reasonable effort to settle the dispute, including by means of procedures provided under national legislation. (4) National legislation shall provide procedures for settling inter-governmental disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration. Support for county governments. 190. (1) Parliament shall by legislation ensure that county governments have adequate support to enable them to perform their functions. (2) County governments shall operate financial management systems that comply with any requirements prescribed by national legislation. (3) Parliament shall, by legislation, provide for intervention by the national government if a county government— (a) is unable to perform its functions; or (b) does not operate a financial management system that complies with the requirements prescribed by national legislation. (4) Legislation under clause (3) may, in particular, authorise the national government— (a) to take appropriate steps to ensure that the county government’s functions are performed and that it operates a financial management system that complies with the prescribed requirements; and (b) if necessary, to assume responsibility for the relevant functions. (5) The legislation under clause (3) shall—114 Constitution of Kenya, 2010 (a) require notice to be given to a county government of any measures that the national government intends to take; (b) permit the national government to take only measures that are necessary; (c) require the national government, when it intervenes, to take measures that will assist the county government to resume full responsibility for its functions; and (d) provide for a process by which the Senate may bring the intervention by the national government to an end. Conflict of laws. 191. (1) This Article applies to conflicts between national and county legislation in respect of matters falling within the concurrent jurisdiction of both levels of government. (2) National legislation prevails over county legislation if— (a) the national legislation applies uniformly throughout Kenya and any of the conditions specified in clause (3) is satisfied; or (b) the national legislation is aimed at preventing unreasonable action by a county that— (i)is prejudicial to the economic, health or security interests of Kenya or another county; or (ii) impedes the implementation of national economic policy. (3) The following are the conditions referred to in clause (2) ( a)— (a) the national legislation provides for a matter that cannot be regulated effectively by legislation enacted by the individual counties; (b) the national legislation provides for a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing— (i)norms and standards; or (ii) national policies; or (c) the national legislation is necessary for— (i)the maintenance of national security; (ii)the maintenance of economic unity;115 Constitution of Kenya, 2010 (iii) the protection of the common market in respect of the mobility of goods, services, capital and labour; (iv) the promotion of economic activities across county boundaries; (v)the promotion of equal opportunity or equal access to government services; or (vi) the protection of the environment. (4) County legislation prevails over national legislation if neither of the circumstances contemplated in clause (2) apply. (5) In considering an apparent conflict between legislation of different levels of government, a court shall prefer a reasonable interpretation of the legislation that avoids a conflict to an alternative interpretation that results in conflict. (6) A decision by a court that a provision of legislation of one level of government prevails over a provision of legislation of another level of government does not invalidate the other provision, but the other provision is inoperative to the extent of the inconsistency. PART 6—SUSPENSION OF COUNTY GOVERNMENTS Suspension of a county government. 192. (1) The President may suspend a county government— (a) in an emergency arising out of internal conflict or war; or (b) in any other exceptional circumstances. (2) A county government shall not be suspended under clause (1) (b) unless an independent commission of inquiry has investigated allegations against the county government, the President is satisfied that the allegations are justified and the Senate has authorised the suspension. (3) During a suspension under this Article, arrangements shall be made for the performance of the functions of a county government in accordance with an Act of Parliament. (4) The Senate may at any time terminate the suspension. (5) A suspension under this Article shall not extend beyond a period of ninety days.116 Constitution of Kenya, 2010 (6) On the expiry of the period provided for under clause (5), elections for the relevant county government shall be held. PART 7—GENERAL Qualifications for election as member of county assembly. 193. (1) Unless disqualified under clause (2), a person is eligible for election as a member of a county assembly if the person— (a) is registered as a voter; (b) satisfies any educational, moral and ethical requirements prescribed by this Constitution or an Act of Parliament; and (c) is either— (i)nominated by a political party; or (ii) an independent candidate supported by at least five hundred registered voters in the ward concerned. (2) A person is disqualified from being elected a member of a county assembly if the person— (a) is a State officer or other public officer, other than a member of the county assembly; (b) has, at any time within the five years immediately before the date of election, held office as a member of the Independent Electoral and Boundaries Commission; (c) has not been a citizen of Kenya for at least the ten years immediately preceding the date of election; (d) is of unsound mind; (e) is an undischarged bankrupt; (f) is serving a sentence of imprisonment of at least six months; or (g) has been found, in accordance with any law, to have misused or abused a State office or public office or to have contravened Chapter Six. (3) A person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted.117 Constitution of Kenya, 2010 Vacation of office of member of county assembly. 194. (1) The office of a member of a county assembly becomes vacant— (a) if the member dies; (b) if the member is absent from eight sittings of the assembly without permission, in writing, of the speaker of the assembly, and is unable to offer satisfactory explanation for the absence; (c) if the member is removed from office under this Constitution or legislation enacted under Article 80; (d) if the member resigns in writing addressed to the speaker of the assembly; (e) if, having been elected to the assembly— (i)as a member of a political party, the member resigns from the party, or is deemed to have resigned from the party as determined in accordance with the legislation contemplated in clause (2); or (ii) as an independent candidate, the member joins a political party; (f)at the end of the term of the assembly; or (g) if the member becomes disqualified for election on grounds specified in Article 193 (2). (2) Parliament shall enact legislation providing for the circumstances under which a member of a political party shall be deemed, for the purposes of clause (1) ( e), to have resigned from the party. County assembly power to summon witnesses. 195. (1) A county assembly or any of its committees has power to summon any person to appear before it for the purpose of giving evidence or providing information. (2) For the purposes of clause (1), an assembly has the same powers as the High Court to— (a) enforce the attendance of witnesses and examining them on oath, affirmation or otherwise; (b) compel the production of documents; and118 Constitution of Kenya, 2010 (c) issue a commission or request to examine witnesses abroad. Public participation and county assembly powers, privileges and immunities. 196. (1) A county assembly shall— (a) conduct its business in an open manner, and hold its sittings and those of its committees, in public; and (b) facilitate public participation and involvement in the legislative and other business of the assembly and its committees. (2) A county assembly may not exclude the public, or any media, from any sitting unless in exceptional circumstances the speaker has determined that there are justifiable reasons for doing so. (3) Parliament shall enact legislation providing for the powers, privileges and immunities of county assemblies, their committees and members. County assembly gender balance and diversity. 197. (1) Not more than two-thirds of the members of any county assembly or county executive committee shall be of the same gender. (2) Parliament shall enact legislation to— (a) ensure that the community and cultural diversity of a county is reflected in its county assembly and county executive committee; and (b) prescribe mechanisms to protect minorities within counties. County government during transition. 198. While an election is being held to constitute a county assembly under this Chapter, the executive committee of the county, as last constituted remains competent to perform administrative functions until a new executive committee is constituted after the election. Publication of county legislation. 199. (1) County legislation does not take effect unless published in the Gazette. (2) National and county legislation may prescribe additional requirements in respect of the publication of county legislation.119 Constitution of Kenya, 2010 Legislation on Chapter. 200. (1) Parliament shall enact legislation providing for all matters necessary or convenient to give effect to this Chapter. (2) In particular, provision may be made with respect to— (a) the governance of the capital city, other cities and urban areas; (b) the transfer of functions and powers by one level of government to another, including the transfer of legislative powers from the national government to county governments; (c) the manner of election or appointment of persons to, and their removal from, offices in county governments, including the qualifications of voters and candidates; (d) the procedure of assemblies and executive committees including the chairing and frequency of meetings, quorums and voting; and (e) the suspension of assemblies and executive committees. CHAPTER TWELVE—PUBLIC FINANCE PART I—PRINCIPLES AND FRAMEWORK OF PUBLIC FINANCE Principles of public finance. 201. The following principles shall guide all aspects of public finance in the Republic— (a) there shall be openness and accountability, including public participation in financial matters; (b) the public finance system shall promote an equitable society, and in particular— (i)the burden of taxation shall be shared fairly; (ii)revenue raised nationally shall be shared equitably among national and county governments; and (iii) expenditure shall promote the equitable development of the country, including by making special provision for marginalised groups and areas; (c) the burdens and benefits of the use of resources and public borrowing shall be shared equitably between present and future generations; 120 Constitution of Kenya, 2010 (d) public money shall be used in a prudent and responsible way; and (e) financial management shall be responsible, and fiscal reporting shall be clear. Equitable sharing of national revenue. 202. (1) Revenue raised nationally shall be shared equitably among the national and county governments. (2) County governments may be given additional allocations from the national government’s share of the revenue, either conditionally or unconditionally. Equitable share and other financial laws. 203. (1) The following criteria shall be taken into account in determining the equitable shares provided for under Article 202 and in all national legislation concerning county government enacted in terms of this Chapter— (a) the national interest; (b) any provision that must be made in respect of the public debt and other national obligations; (c) the needs of the national government, determined by objective criteria; (d) the need to ensure that county governments are able to perform the functions allocated to them; (e) the fiscal capacity and efficiency of county governments; (f)developmental and other needs of counties; (g) economic disparities within and among counties and the need to remedy them; (h) the need for affirmative action in respect of disadvantaged areas and groups; (i)the need for economic optimisation of each county and to provide incentives for each county to optimise its capacity to raise revenue; (j)the desirability of stable and predictable allocations of revenue; and121 Constitution of Kenya, 2010 (k) the need for flexibility in responding to emergencies and other temporary needs, based on similar objective criteria. (2) For every financial year, the equitable share of the revenue raised nationally that is allocated to county governments shall be not less than fifteen per cent of all revenue collected by the national government. (3) The amount referred to in clause (2) shall be calculated on the basis of the most recent audited accounts of revenue received, as approved by the National Assembly. Equalisation Fund. 204. (1) There is established an Equalisation Fund into which shall be paid one half per cent of all the revenue collected by the national government each year calculated on the basis of the most recent audited accounts of revenue received, as approved by the National Assembly. (2) The national government shall use the Equalisation Fund only to provide basic services including water, roads, health facilities and electricity to marginalised areas to the extent necessary to bring the quality of those services in those areas to the level generally enjoyed by the rest of the nation, so far as possible. (3) The national government may use the Equalisation Fund— (a) only to the extent that the expenditure of those funds has been approved in an Appropriation Bill enacted by Parliament; and (b) either directly, or indirectly through conditional grants to counties in which marginalised communities exist. (4) The Commission on Revenue Allocation shall be consulted and its recommendations considered before Parliament passes any Bill appropriating money out of the Equalisation Fund. (5) Any unexpended money in the Equalisation Fund at the end of a particular financial year shall remain in that Fund for use in accordance with clauses (2) and (3) during any subsequent financial year. (6) This Article lapses twenty years after the effective date, subject to clause (7). (7) Parliament may enact legislation suspending the effect of clause (6) for a further fixed period of years, subject to clause (8).122 Constitution of Kenya, 2010 (8) Legislation under clause (7) shall be supported by more than half of all the members of the National Assembly, and more than half of all the county delegations in the Senate. (9) Money shall not be withdrawn from the Equalisation Fund unless the Controller of Budget has approved the withdrawal. Consultation on financial legislation affecting counties. 205. (1) When a Bill that includes provisions dealing with the sharing of revenue, or any financial matter concerning county governments is published, the Commission on Revenue Allocation shall consider those provisions and may make recommendations to the National Assembly and the Senate. (2) Any recommendations made by the Commission shall be tabled in Parliament, and each House shall consider the recommendations before voting on the Bill. PART 2—OTHER PUBLIC FUNDS Consolidated Fund and other public funds. 206. (1) There is established the Consolidated Fund into which shall be paid all money raised or received by or on behalf of the national government, except money that— (a) is reasonably excluded from the Fund by an Act of Parliament and payable into another public fund established for a specific purpose; or (b) may, under an Act of Parliament, be retained by the State organ that received it for the purpose of defraying the expenses of the State organ. (2) Money may be withdrawn from the Consolidated Fund only— (a) in accordance with an appropriation by an Act of Parliament; (b) in accordance with Article 222 or 223; or (c) as a charge against the Fund as authorised by this Constitution or an Act of Parliament. (3) Money shall not be withdrawn from any national public fund other than the Consolidated Fund, unless the withdrawal of the money has been authorised by an Act of Parliament. (4) Money shall not be withdrawn from the Consolidated Fund unless the Controller of Budget has approved the withdrawal.123 Constitution of Kenya, 2010 Revenue Funds for county governments. 207. (1) There shall be established a Revenue Fund for each county government, into which shall be paid all money raised or received by or on behalf of the county government, except money reasonably excluded by an Act of Parliament. (2) Money may be withdrawn from the Revenue Fund of a county government only— (a) as a charge against the Revenue Fund that is provided for by an Act of Parliament or by legislation of the county; or (b) as authorised by an appropriation by legislation of the county. (3) Money shall not be withdrawn from a Revenue Fund unless the Controller of Budget has approved the withdrawal. (4) An Act of Parliament may— (a) make further provision for the withdrawal of funds from a county Revenue Fund; and (b) provide for the establishment of other funds by counties and the management of those funds. Contingencies Fund. 208. (1) There is established a Contingencies Fund, the operation of which shall be in accordance with an Act of Parliament. (2) An Act of Parliament shall provide for advances from the Contingencies Fund if the Cabinet Secretary responsible for finance is satisfied that there is an urgent and unforeseen need for expenditure for which there is no other authority. PART 3—REVENUE-RAISING POWERS AND THE PUBLIC DEBT Power to impose taxes and charges. 209. (1) Only the national government may impose— (a) income tax; (b) value-added tax; (c) customs duties and other duties on import and export goods; and (d) excise tax.124 Constitution of Kenya, 2010 (2) An Act of Parliament may authorise the national government to impose any other tax or duty, except a tax specified in clause (3) ( a) or (b). (3) A county may impose— (a) property rates; (b) entertainment taxes; and (c) any other tax that it is authorised to impose by an Act of Parliament. (4) The national and county governments may impose charges for the services they provide. (5) The taxation and other revenue-raising powers of a county shall not be exercised in a way that prejudices national economic policies, economic activities across county boundaries or the national mobility of goods, services, capital or labour. Imposition of tax. 210. (1) No tax or licensing fee may be imposed, waived or varied except as provided by legislation. (2) If legislation permits the waiver of any tax or licensing fee— (a) a public record of each waiver shall be maintained together with the reason for the waiver; and (b) each waiver, and the reason for it, shall be reported to the Auditor-General. (3) No law may exclude or authorise the exclusion of a State officer from payment of tax by reason of— (a) the office held by that State officer; or (b) the nature of the work of the State officer. Borrowing by national government. 211. (1) Parliament may, by legislation— (a) prescribe the terms on which the national government may borrow; and (b) impose reporting requirements.125 Constitution of Kenya, 2010 (2) Within seven days after either House of Parliament so requests by resolution, the Cabinet Secretary responsible for finance shall present to the relevant committee, information concerning any particular loan or guarantee, including all information necessary to show— (a) the extent of the total indebtedness by way of principal and accumulated interest; (b) the use made or to be made of the proceeds of the loan; (c) the provision made for servicing or repayment of the loan; and (d) the progress made in the repayment of the loan. Borrowing by counties. 212. A county government may borrow only— (a) if the national government guarantees the loan; and (b) with the approval of the county government’s assembly. Loan guarantees by national government. 213. (1) An Act of Parliament shall prescribe terms and conditions under which the national government may guarantee loans. (2) Within two months after the end of each financial year, the national government shall publish a report on the guarantees that it gave during that year. Public debt. 214. (1) The public debt is a charge on the Consolidated Fund, but an Act of Parliament may provide for charging all or part of the public debt to other public funds. (2) For the purposes of this Article, “the public debt” means all financial obligations attendant to loans raised or guaranteed and securities issued or guaranteed by the national government. PART 4—REVENUE ALLOCATION Commission on Revenue Allocation. 215. (1) There is established the Commission on Revenue Allocation. (2) The Commission shall consist of the following persons appointed by the President—126 Constitution of Kenya, 2010 (a) a chairperson, who shall be nominated by the President and approved by the National Assembly; (b) two persons nominated by the political parties represented in the National Assembly according to their proportion of members in the Assembly; (c) five persons nominated by the political parties represented in the Senate according to their proportion of members in the Senate; and (d) the Principal Secretary in the Ministry responsible for finance. (3) The persons nominated under clause (2) shall not be members of Parliament. (4) To be qualified to be a member of the Commission under clause (2) (a), (b) or (c), a person shall have extensive professional experience in financial and economic matters. Functions of the Commission on Revenue Allocation. 216. (1) The principal function of the Commission on Revenue Allocation is to make recommendations concerning the basis for the equitable sharing of revenue raised by the national government— (a) between the national and county governments; and (b) among the county governments. (2) The Commission shall also make recommendations on other matters concerning the financing of, and financial management by, county governments, as required by this Constitution and national legislation. (3) In formulating recommendations, the Commission shall seek — (a) to promote and give effect to the criteria set out in Article 203 (1); (b) when appropriate, to define and enhance the revenue sources of the national and county governments; and (c) to encourage fiscal responsibility. (4) The Commission shall determine, publish and regularly review a policy in which it sets out the criteria by which to identify the marginalised areas for purposes of Article 204 (2).127 Constitution of Kenya, 2010 (5) The Commission shall submit its recommendations to the Senate, the National Assembly, the national executive, county assemblies and county executives. Division of revenue. 217. (1) Once every five years, the Senate shall, by resolution, determine the basis for allocating among the counties the share of national revenue that is annually allocated to the county level of government. (2) In determining the basis of revenue sharing under clause (1), the Senate shall— (a) take the criteria in Article 203 (1) into account; (b) request and consider recommendations from the Commission on Revenue Allocation; (c) consult the county governors, the Cabinet Secretary responsible for finance and any organisation of county governments; and (d) invite the public, including professional bodies, to make submissions to it on the matter. (3) Within ten days after the Senate adopts a resolution under clause (1), the Speaker of the Senate shall refer the resolution to the Speaker of the National Assembly. (4) Within sixty days after the Senate’s resolution is referred under clause (3), the National Assembly may consider the resolution, and vote to approve it, with or without amendments, or to reject it. (5) If the National Assembly— (a) does not vote on the resolution within sixty days, the resolution shall be regarded as having been approved by the National Assembly without amendment; or (b) votes on the resolution, the resolution shall have been— (i) amended only if at least two-thirds of the members of the Assembly vote in support of an amendment; (ii)rejected only if at least two-thirds of the members of the Assembly vote against it, irrespective whether it has first been amended by the Assembly; or (iii) approved, in any other case. 128 Constitution of Kenya, 2010 (6) If the National Assembly approves an amended version of the resolution, or rejects the resolution, the Senate, at its option, may either— (a) adopt a new resolution under clause (1), in which case the provisions of this clause and clause (4) and (5) apply afresh; or (b) request that the matter be referred to a joint committee of the two Houses of Parliament for mediation under Article 113, applied with the necessary modifications. (7) A resolution under this Article that is approved under clause (5) shall be binding until a subsequent resolution has been approved. (8) Despite clause (1), the Senate may, by resolution supported by at least two-thirds of its members, amend a resolution at any time after it has been approved. (9) Clauses (2) to (8), with the necessary modifications, apply to a resolution under clause (8). Annual Division and Allocation of Revenue Bills. 218. (1) At least two months before the end of each financial year, there shall be introduced in Parliament— (a) a Division of Revenue Bill, which shall divide revenue raised by the national government among the national and county levels of government in accordance with this Constitution; and (b) a County Allocation of Revenue Bill, which shall divide among the counties the revenue allocated to the county level of government on the basis determined in accordance with the resolution in force under Article 217. (2) Each Bill required by clause (1) shall be accompanied by a memorandum setting out— (a) an explanation of revenue allocation as proposed by the Bill; (b) an evaluation of the Bill in relation to the criteria set out in