Procedure for Suspension of a County Government in Kenya

The Constitution in Article 192 provides for the procedure for suspension of a county government in Kenya. It is the role of the President to handle the dissolution of a county government in Kenya.

Part 13 of the County Governments Act contains further provisions on the dissolution of a county government in Kenya.

What circumstances can lead to the winding up of county governments in Kenya? The President may suspend a county government under two grounds:

• in an emergency arising out of internal conflict or war; or
• in any other exceptional circumstances

A county government shall not be suspended in any other exceptional circumstances 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.

During a suspension under Article 192, arrangements shall be made for the performance of the functions of a county government in accordance with an Act of Parliament (this is found in the County Governments Act).

The Senate may at any time terminate the suspension. (Article 192(4)).

A suspension under Article 192 shall not extend beyond a period of ninety days. On the expiry of the 90-day period, elections for the relevant county government shall be held.

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procedure for the suspension of a county government

As indicated, the President may suspend a county government in an emergency arising out of internal conflict or war or in any other exceptional circumstances.

Suspension of county government in exceptional circumstances

Section 123 of the County Governments Act provides for the suspension of county government in Kenya in exceptional circumstances.

A person may petition the President to suspend a county government in any other exceptional circumstances if the county government engages in actions that are deemed to be against the common needs and interests of the citizens of a county.

A petition to suspend a county government in ay other exceptional circumstances shall be supported by the signatures of not less than ten per cent of the registered voters in the county.

The President shall, within fourteen days after receiving a petition against a county government, submit a report on the averments (allegations) made and grounds giving rise to the suspension of a county government before the apex intergovernmental body (hereinafter referred to as the apex body) established under the law governing intergovernmental relations for approval.

Upon approval by the apex body, the President shall nominate members of a Commission to inquire into and investigate the situation in the county and make recommendations on the suspension of the county government and shall, after approval by Senate, appoint the members of the Commission by notice in the Kenya Gazette.

The Commission shall comprise–

• a chairperson, who shall be an advocate of the High Court of Kenya with at least fifteen years’ experience;
• the chairperson of the National Police Service;
• two residents in the affected county and who have not for the last ten years stood for an elective office in the affected county government, or have been an officer or employee of the affected county government; and
• two other persons not resident in the affected county with experience in conflict management.

The Commission shall have all or any of the powers vested in a Commission under the Commissions of Inquiry Act (Cap. 102). At any inquiry the Commission undertakes, the county government in question and any member thereof shall be entitled to be heard (they can appear before the Commission to argue their case).

The Commission shall inquire into the matters before it within three months of its appointment and report on the facts and submit its recommendations to the President.

Where the Commission does not recommend the suspension of a county government, the President shall, within fourteen days of receipt of the report (on the facts and recommendations) of the Commission, submit to the Speaker of the Senate and the apex intergovernmental body –

• the report and the recommendations of the Commission; and
• the petition for suspension of the county government.

Where the Commission recommends the suspension of the county government, the President shall, within fourteen days of receipt of the report of the Commission, submit to the Speaker of the Senate–

• a memorandum stating either that –
  • the President is satisfied that justifiable grounds exist for suspension of the county government, or
  • the President is not satisfied that justifiable grounds exist for suspension of the county government
• the report and the recommendations of the Commission; and
• the petition for suspension of the county government.

Where the President, in the memorandum submitted, is satisfied that justifiable grounds exist for the suspension of a county government, the Speaker of the Senate shall refer the documents received above to the relevant committee of the Senate for consideration.

The committee shall, within fourteen days of receipt of the documents above, consider the documents and make its recommendations to the Senate on whether or not the Senate shall authorise the suspension of the county government.

The authorisation by the Senate on the suspension of the county government shall be by a resolution adopted in accordance with the provisions of Articles 122 and 123 of the Constitution.

Upon authorisation of the suspension of a county government by the Senate in terms of Article 192(2) of the Constitution, the President shall, within fourteen days of receipt of the Senate resolution and by notice in the Kenya Gazette, suspend the county government for a period not exceeding ninety days, or until the suspension is terminated earlier by the Senate in accordance with Article 192(4) of the Constitution.

Prorogation of the County Assembly

During the period of suspension of a county government, the County Assembly shall stand prorogued.

Prorogation is the action of discontinuing a session of the County Assembly without dissolving it.

During a period of suspension, the speaker, the deputy speaker and members of the County Assembly shall remain in office and shall retain half their benefits (salaries, etc).

All Bills introduced before the County Assembly and that have not received assent prior to suspension shall expire and shall be re-introduced as new bills upon the end of the suspension.

County Assembly committees shall be dissolved during the period of suspension and shall be reconstituted upon the end of the suspension.

The prorogation of the County Assembly shall come to an end–

• if the suspension is terminated by the Senate;
• upon the expiry of ninety days; or
• upon the publication of a notice on the holding of the election of the County Assembly in the Kenya Gazette by the Independent Electoral and Boundaries Commission according to the provisions of the Elections Act).

Suspension of the county executive committee

During the period of suspension of a county government, the functions of the county executive committee shall be suspended and its functions shall be undertaken by an Interim County Management Board.

During a period of suspension, the governor, deputy governor and members of the executive committee shall receive half of their benefits.

Termination of suspension by the Senate

Pursuant to Article 192(4) of the Constitution of Kenya, the Senate may at any time terminate the suspension of a county government. A member of the Senate may move a motion for the termination of a suspension.

Where a member gives notice of a motion to terminate the suspension of a county government, the Speaker of the Senate shall refer the proposed motion to the relevant select committee of the Senate.

The committee shall consider the proposed termination of the suspension of the county government and make recommendations as to whether or not the Senate shall terminate the suspension of the county government.

The committee shall report to the Senate within ten days of referral of the proposed motion to the committee.

In considering the proposed termination, the committee shall invite representations from the members of the public, the Interim County Management Board and any other relevant person.

The motion to terminate the suspension of a county government shall be moved before the Senate upon the tabling of the report of the committee (before the Senate).

If the motion to terminate the suspension of a county government is supported by a majority of all the county delegations of the Senate, the suspension of the county government stands terminated.

Upon the termination of a suspension of the county government –

• the Interim County Management Board appointed shall stand dissolved; and
• the governor, the deputy governor, and the members of the county executive committee, the County Assembly speaker and the members of the County Assembly shall resume their functions and continue to receive their benefits in full from the date of termination of the suspension and shall hold office for the remainder of their term.

County elections after suspension

Elections for a suspended county shall be held within ninety days after the suspension.

The Independent Electoral and Boundaries Commission shall cause elections of the governor and the County Assembly to be held in the affected county according to the provisions of the Elections Act (No. 24 of 2011).